Torts Casebook

TORTS
EDITORIAL ADVISORS
Rachel E. Barkow
Segal Family Professor of Regulatory Law and Policy
Faculty Director, Center on the Administration of Criminal Law
New York University School of Law
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law
University of California, Berkeley School of Law
Richard A. Epstein
Laurence A. Tisch Professor of Law
New York University School of Law
Peter and Kirsten Bedford Senior Fellow
The Hoover Institution
Senior Lecturer in Law
The University of Chicago
Ronald J. Gilson
Charles J. Meyers Professor of Law and Business
Stanford University
Marc and Eva Stern Professor of Law and Business
Columbia Law School
James E. Krier
Earl Warren DeLano Professor of Law
The University of Michigan Law School
Tracey L. Meares
Walton Hale Hamilton Professor of Law
Director, The Justice Collaboratory
Yale Law School
Richard K. Neumann, Jr.
Alexander Bickel Professor of Law
Maurice A. Deane School of Law at Hofstra University
Robert H. Sitkoff
John L. Gray Professor of Law
Harvard Law School
David Alan Sklansky
Stanley Morrison Professor of Law
Faculty Co-Director, Stanford Criminal Justice Center
Stanford Law School
ASPEN CASEBOOK SERIES
TORTS
Cases and Questions

Third Edition
Ward Farnsworth
Dean and John Jeffers Research Chair
The University of Texas School of Law
Mark F. Grady
Professor of Law
UCLA Law School
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Library of Congress Cataloging-in-Publication Data
Names: Farnsworth, Ward, 1967-author. | Grady, Mark F., author.

Title: Torts : cases and questions / Ward Farnsworth, Dean and John Jeffers Research Chair, The
University of Texas School of Law; Mark F. Grady, Professor of Law, UCLA Law School.
Description: Third edition. | New York : Wolters Kluwer, [2019] | Series: Aspen casebook series |
Includes index.
Identifiers: LCCN 2018054863 | eISBN: 9781543811261
Subjects: LCSH: Torts--United States. | LCGFT: Casebooks (Law)
Classification: LCC KF1250 .F37 2019 | DDC 346.7303--dc23
LC record available at https://lccn.loc.gov/2018054863
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For my students.
—W.F.
To Jeanne M. Brady
and Francis Taylor Grady.
—M.F.G.
SUMMARY OF CONTENTS
Contents
Preface to the Third Edition
Preface to the First Edition
Acknowledgments
Introduction
Chapter 1. Intentional Torts: The Prima Facie Case

Chapter 2. Intentional Torts: Privileges
Chapter 3. The Negligence Standard
Chapter 4. Duties and Limitations
Chapter 5. Cause in Fact
Chapter 6. Proximate Causation (Scope of Liability)
Chapter 7. Strict Liability
Chapter 8. Products Liability
Chapter 9. Damages
Chapter 10. Defenses
Table of Cases
Index
TABLE OF CONTENTS
Preface to the Third Edition

Preface to the First Edition
Acknowledgments
Introduction
Chapter 1. Intentional Torts: The Prima Facie Case

Section A. Battery
1. Intent and Volition
Vosburg v. Putney
2. Minimum Requirements
3. Consent and Its Limits
Mohr v. Williams
Section B. Trespass
Desnick v. American Broadcasting Companies, Inc.
Section C. Conversion
Section D. False Imprisonment
Restatement (Second) of Torts
Section E. Assault
Section F. Outrage
Daniel J. Givelber, The Right to Minimum Social
Decency and the Limits of Evenhandedness:
Intentional Infliction of Emotional Distress by
Outrageous Conduct
Chapter 2. Intentional Torts: Privileges

Section A. Defense of Person and Property
Katko v. Briney
Section B. Private Necessity
Ploof v. Putnam
Vincent v. Lake Erie Transportation Co.
Section C. Public Necessity
Section D. Discipline
Chapter 3. The Negligence Standard

Section A. The Reasonable Person
Restatement (Second) of Torts (1965)
1. Mental Ability and Mental States
Williams v. Hays
2. Physical Infirmities
3. Age
Purtle v. Shelton
Section B. Risks and Precautions
United States v. Carroll Towing Co.
Section C. Custom and the Problem of Medical Malpractice
The T.J. Hooper
Section D. Negligence Per Se: Criminal Statutes and Judge-Made
Rules
1. Violations of Criminal Statutes
Martin v. Herzog
2. Judge-Made Rules
Oliver Wendell Holmes, Jr., The Common Law
Section E. Res Ipsa Loquitur
Byrne v. Boadle
Judson v. Giant Powder Co.
Ybarra v. Spangard
Chapter 4. Duties and Limitations

Section A. Duties Arising from Affirmative Acts
Yania v. Bigan
Section B. Duties Arising from Undertakings
Hurley v. Eddingfield
Section C. Special Relationships
1. Duties to Rescue or Assist Others
2. Duties to Protect Others from Third Parties
Tarasoff v. Regents of the University of California
3. The Public Duty Doctrine
Section D. Duties Arising from the Occupation of Land
1. Duties to Trespassers
2. Duties to Licensees
3. Duties to Invitees
Section E. The Privity Limitation
H. R. Moch Co. v. Rensselaer Water Co.
Section F. Pure Economic Losses
Robins Dry Dock & Repair Co. v. Flint
Section G. The Negligent Infliction of Emotional Distress
Robb v. Pennsylvania Railroad Co.
Chapter 5. Cause in Fact

Section A. But-for Causation
New York Central Railroad v. Grimstad
Herskovits v. Group Health Cooperative of Puget Sound
Section B. Alternative Liability
Summers v. Tice
Sindell v. Abbott Laboratories
Section C. A Note on Apportionment
1. The Decline of Joint and Several Liability
2. Contribution
3. Complications
Chapter 6. Proximate Causation (Scope of Liability)

Section A. Remoteness and Foreseeability
In re Polemis
Overseas Tankship (U.K.) Ltd. v. Morts Dock &
Engineering Co., Ltd. [The Wagon Mound (No. 1)]
Section B. Intervening Causes
Brauer v. New York Central & H.R.R. Co.
Section C. Limitation of Duty: An Alternative Approach?
Palsgraf v. Long Island Railroad Co.
Chapter 7. Strict Liability

Section A. Liability for Animals
Behrens v. Bertram Mills Circus, Ltd.
Section B. Rylands v. Fletcher
Rylands v. Fletcher
Section C. Abnormally Dangerous Activities
Indiana Harbor Belt Railroad Co. v. American
Cyanamid Co.
Section D. Respondeat Superior
Ira S. Bushey & Sons v. United States
Chapter 8. Products Liability

Section A. Historical Development
MacPherson v. Buick Motor Co.
Escola v. Coca Cola Bottling Co.
Greenman v. Yuba Power Products, Inc.
Section B. Manufacturing Defects
Restatement Third, Torts: Products Liability (1997)
Welge v. Planters Lifesavers Co.
Section C. Design Defects
Dawson v. Chrysler Corp.
Section D. Failure to Warn
American Tobacco Co. v. Grinnell
McMahon v. Bunn-O-Matic Corp.
Chapter 9. Damages
Section A. Compensatory Damages
1. Damage to Property
United States v. Hatahley
2. Lost Earnings
3. Pain and Suffering; Emotional Distress; Hedonic
Damages
Section B. Punitive Damages
Murphy v. Hobbs
Kemezy v. Peters
Cass R. Sunstein, How Law Constructs Preferences
Chapter 10. Defenses

Section A. Contributory and Comparative Negligence
McIntyre v. Balentine
Section B. Express Assumption of Risk
Section C. Primary Assumption of the Risk
Murphy v. Steeplechase Amusement Co.
Section D. Secondary Assumption of the Risk and the Rise of
Comparative Fault
Marshall v. Ranne
Table of Cases
Index
PREFACE TO THE THIRD EDITION
This edition contains updated references to the Third Restatement and

corrections or clarifications at various points throughout. It most
significantly differs from the Second Edition, however, in being more
streamlined. The last three chapters have been dropped, though they remain
available as pdfs on demand from the authors for any instructors who wish
to use them. Other chapters have been made more concise. The goal has
been to create a book that better meets the needs of a typical one-semester
course, and that will not involve increased production costs that are passed
on to students. We are grateful to past users of the book for their very
helpful comments and suggestions.
W.F.
M.F.G.
February 2019
PREFACE TO THE FIRST EDITION
The distinctive approach of this casebook is to present pairs and clusters

of cases that contain factual similarities but arrive at different outcomes and
to invite exploration of how they might be distinguished. This is a departure
from the standard format of most casebooks, which typically present a lead
case and then notes afterward that talk about the case just presented, ask
questions about it, and make reference—usually in brief—to some related
cases. There are lead cases here, as in other books; but the notes afterward
consist largely of other judicial decisions presented at intermediate length:
not as long as lead cases, but still fully enough to support discussion of the
relationships between them. Our view is that the best way to examine an
issue of tort law is not by reading a case about it, but rather by reading two
cases that reach different results on related facts. We have found that this
approach makes for a compelling torts course, and that it offers the
following advantages in particular:
1. It makes clear to the user what to do with the reading: distinguish the
cases and think through their implications. The apparent tension between
cases is an invitation not only to work out the most that can be said to
reconcile them but also to ask more broadly what underlying theory would
make sense out of both results. On occasion the reader may conclude that
there is no good distinction and that the cases just represent different
approaches taken to the same question by two jurisdictions. But this is an
argument of last resort for the lawyer, as it ought to be for the law student.
2. The book helps build skill in the lawyer’s art of drawing intelligent
distinctions between cases that are superficially similar and analogies
between cases that are superficially different. This is one of the aspects of
legal method that a course on tort law most helpfully can teach. Despite the
growing significance of statutory activity, torts remains one of the few areas
of the curriculum that remains largely a matter of common law; it is an ideal
place to learn how to think out arguments that the factual differences
between cases ought to lead to different legal results. This approach also
calls on students to infer for themselves the contours of doctrines and the
policies behind them—another important practical skill to develop, and a
richer way to reach an understanding of the law than by hearing the editors’
views.
3. The process of sorting out decisions that are in at least superficial
tension brings tort doctrines to life: conflict, including apparent conflict
between cases, provides a motivation for thinking about legal problems and
a basis for lively classroom discussion of them. The challenge of explaining
the cases also has a puzzle-like quality that makes the process of learning
the material more stimulating. The form of the question—“what is the
distinction between X and Y?”—is repetitive, but the substance of it, and
the thinking it calls for, is different every time it is asked.
4. The casebook’s approach, properly used, yields an improved
understanding of the relationship between doctrine and procedure. To grasp
what it means to say that two cases conflict—to say that one was a case of
liability (“L”) and the other a case of no liability (“NL”)—requires an
appreciation of the procedural posture of each. The introduction to the book
explains this in basic terms, but attaining complete comprehension of the
intersection between the substance of cases and their procedural posture
takes time. It is an ongoing project during the first year of law school that
the book’s approach is meant to support.
5. The book provides instructors with flexibility in deciding what
normative ideas to explore in the course. Its presentation of cases is
compatible with an emphasis on their economic logic, on matters of
corrective justice, on other questions of policy, or on doctrine alone—or on
some combination of these approaches.
This last point bears some elaboration. Our degree of emphasis on cases
that reach different results on similar facts is unusual today, but it was more
common 100 years ago in early casebooks written by Wigmore, Bohlen,
Seavey and Thurston, and Ames and Smith. Those authors executed the
idea quite differently, and of course they put it into the service of an
intellectual agenda different from that of a twenty-first-century torts course.
Indeed, the modern torts course has no consensus agenda; different
instructors teach the course very differently. But we believe there was a
kernel of pedagogical ingenuity in those early books that has outlived the
intellectual priors they sometimes were written to advance. One of our
goals has been to revive what was useful and interesting in those
approaches and adapt it for use in the current environment of ideas about
tort law. We have found that starting with inquiries into the distinctions
between the cases serves well as a springboard for wide-ranging discussions
of the policy rationales behind the doctrines and the functions and interests
they serve.
With that said, our emphasis on case analysis is not exclusive. One of
the book’s subthemes includes periodic attention to statutes and the
institutional relationships between courts and legislatures. The chapters also
are seasoned with excerpts from relevant scholarly work, particularly on
questions of how judges, juries, and legal actors implement and think about
various legal doctrines. The seasoning is judicious; we have not attempted a
thorough presentation of scholarly perspectives on most issues in the book.
The literature on the law of torts is too extensive to permit this while still
achieving the book’s other aims. Meanwhile instructors vary widely in
which secondary sources they want to discuss, and there are many excellent
collections of those materials that can be assigned on a supplemental basis
for those seeking greater emphasis on the theoretical work.
The text also includes many problems to consider—several dozen,
interspersed within the chapters, that present the facts of real cases without
their resolutions. The format of these problems resembles in an abbreviated
way the examination questions students usually are asked to solve at the
end of the course, not to mention the format in which tort problems come to
the practicing lawyer: facts and questions, but no answers. We believe there
is value in preparing and working through problems of this kind during the
course, as they develop a style of analysis a bit different from the skills built
by thinking about cases where the court’s answer is supplied, and a bit
different as well from the immediate response called for by the in-class
hypothetical.
Finally, we have made a particular effort to fill the book with interesting
and memorable cases. One of the rewards of studying tort law is the chance
to see how various sorts of human dramas, conflicts and calamities—many
of them commonplace, many others rather outré—have been translated into
judicial accounts and given legal meaning. The cases thus include a
generous sampling of the legal responses to various terrors of modern life:
spilled coffee, the wreck of the Exxon Valdez, intrusive telemarketers, and
defamation on the internet. But they also offer a good look at the law’s
responses to great challenges of times past: the train robbery, the marine
monster, and the egg-sucking dog. Thinking about the application of similar
doctrines to situations old and new alike is instructive in its own right.
The book is meant to be assigned flexibly. Starting at Chapter 3 will be
the preference of many instructors; some may wish to assign Chapter 4, on
duties and their limitations, later or earlier in the course than its placement
indicates, or to take up the chapter on defenses based on the plaintiff’s
conduct earlier than its late location in the book suggests. None of this need
be considered cause for alarm on the reader’s part. The chapters of the book
are written deliberately to be usable in various orders.
Many footnotes, citations, and headings within the cases are omitted
without notice. The Table of Contents lists all the note cases within each
chapter that are presented at enough length to support discussion; it does
not mention secondary materials, including excerpts from the Restatements
of Torts, unless they comprise leading material in a chapter.
Ward Farnsworth
Mark F. Grady
February 2004
ACKNOWLEDGMENTS
Building this book has been a labor-intensive enterprise, and I would

like to thank my research assistants at the Boston University School of Law
for their help with it: Patryk Silver, Hermine Hayes-Klein, Shaun Ryan,
Justin Smith, Blaire Osgood, Heather Zuzenak, Lior Ohayon, Miller
Brownstein, and Alon Cohen. I also wish to thank three faculty colleagues
at Boston University who have taught from these materials and provided
very helpful suggestions: Randy Barnett, Nancy Moore, and Kenneth
Simons; Simons also was kind enough to contribute the basis for the
marginal analysis exercise that appears on pages 135-136. The manuscript
also benefited very much from the recommendations of several anonymous
reviewers for Aspen and Aspen’s own editors, including Curt Berkowitz,
Carol McGeehan, and Barbara Roth. I thank them all for their time and
assistance. Finally, I thank Brian Brooks, Dan Cantor, Ronald Cass, Janet
Farnsworth, Ward Farnsworth, Sr., Stephen Gilles, Russell Holmes, Adam
Long, Michael Lusi, Richard Posner, Christopher Roberts, Ted Skillman,
and Eugene Volokh for comments, inspiration, and other varieties of
support at various points in the process.
—W.F.
My contribution to this casebook evolved over a period of years at a

number of law schools: the University of Iowa, Northwestern University,
UCLA, and George Mason University. My own mentor was former UCLA
law professor Wesley J. Liebeler, whose incisive teaching made my part in
this project possible. The students in the various torts classes I have taught
helped me work out the relationships between the cases. A number of able
research assistants have made substantial contributions. They are (in
chronological order): Margery Huston (Iowa), Debra Ann Haberkorn
(Northwestern), Jacqueline Bares (Northwestern), Erik Dyhrkopp
(Northwestern), Pamela Holz (Northwestern), Jacques LeBoeuf
(Northwestern), Scott Rozmus (Northwestern), Phil Mann (UCLA), and
Paul Mills (UCLA).
—M.F.G.
We would like to thank the following authors and copyright holders for
permission to reprint portions of their work:
Ames, James Barr, Law and Morals, 22 Harv. L. Rev. 97 (1908).

Reprinted with permission of Harvard Law Review Association via
Copyright Clearance Center.
Givelber, Daniel J., The Right to Minimum Social Decency and the
Limits of Evenhandedness: Intentional Infliction of Emotional Distress by
Outrageous Conduct, 82 Colum. L. Rev. 42 (1982). Reprinted with
permission of Columbia Law Review Association via Copyright Clearance
Center.
Grady, Mark F., Res Ipsa Loquitur and Compliance Error, 142 U. Pa. L.
Rev. 887 (1994). Reprinted with permission of University of Pennsylvania
Law Review and the author.
Guthrie, Chris, Jeffrey J. Rachlinski, and Andrew J. Wistrich, Inside the

Judicial Mind, 86 Cornell L. Rev. 777 (2001). Reprinted with permission of
Cornell Law Review.
Restatement of the Law Second, Agency, copyright © 1958 by The

American Law Institute. Reproduced with permission. All rights reserved.
Restatement of the Law Second, Torts, copyright © 1965, 1977, 1979

by The American Law Institute. Reproduced with permission. All rights
reserved.
Restatement of the Law Third, Torts: Liability for Physical and

Emotional Harm, copyright © 2009, 2012 by The American Law Institute.
Reproduced with permission. All rights reserved.
Restatement of the Law Third, Torts: Liability for Intentional Torts to
Persons (T.D. 2, 2017), copyright © 2017 by The American Law Institute.
Reproduced with permission. All rights reserved.
Restatement of the Law Third, Torts: Products Liability, copyright ©

1998 by The American Law Institute. Reproduced with permission. All
rights reserved.
Schwartz, Gary, Cardozo as Tort Lawmaker, 49 DePaul L. Rev. 305

(1999). Reprinted with permission of DePaul Law Review.
Sunstein, Cass R., How Law Constructs Preferences 86 Geo. L.J. 2637
(1998). Copyright © 1998 The Georgetown Law Journal. Reprinted with
permission of the publisher, The Georgetown Law Journal.
Uniform Commercial Code, copyright © 2018 by The American Law

Institute. Reproduced with permission. All rights reserved.
Wright, Richard, Hand, Posner, and the Myth of the “Hand Formula,” 4
Theoretical Inquiries L. 145 (2003). Reprinted with permission of Tel Aviv
Univ/ Cegla Inst for Comparative and Private Intl Law via Copyright
Clearance Center.
Zipursky, Benjamin, Rights, Wrongs, and Recourse in the Law of Torts,

51 Vand. L. Rev. 1 (1998). Reprinted with permission of Vanderbilt Law
Review.
INTRODUCTION
The purpose of this introduction is to provide the newcomer to tort law

with a sense of orientation and context for the materials that follow and for
a typical first course on the subject. Part 1 describes the scope of the law of
torts and some major distinctions used to organize the field. Part 2 sketches
the historical development of tort liability. Part 3 explains the procedural
steps involved in bringing a tort suit; it also explains the use of the
“liability” (L) and “no liability” (NL) designations often used in this book
to describe the outcomes of the cases. Part 4 introduces some major
theoretical perspectives and analytical tools used by students and scholars
of tort law. All of these issues are treated only briefly; the explanations here
are just meant to give the reader a nodding acquaintance with issues that
will be explored in more detail during the rest of the course.
1. The Scope of the Law of Torts
The word “tort” is derived from the Latin word “tortus,” meaning crooked
or twisted. In French the word “tort” continues to have a general meaning
of “wrong,” and this remains its meaning in English legal usage as well.
Tort law governs legal responsibility, or “liability,” for wrongs that people
inflict on each other by various means: assaults, automobile accidents,
professional malpractice (for example, errors by doctors or lawyers),
defamation, and so forth. Torts is the body of law that furnishes the victim
of any of these forms of conduct with a remedy against the party
responsible for them. The person bringing the suit (the plaintiff) claims that
the defendant should be required to pay for the damage done. That is a
practical and nonlegalistic description of the office of tort law, and it is
incomplete in various ways; but it provides a general sense of what the
subject of torts is about and suggests how this branch of law differs from
others such as criminal law. Let us consider that distinction and some others
in more detail.
Torts vs. crimes. Some of the conduct addressed by the law of torts also
is addressed by the criminal law; indeed, in early English law the two
branches were unified, with damages to the victim of a wrong awarded as
part of a criminal proceeding against the wrongdoer. Today, however, there
is a broad division in the law between criminal liability on the one hand and
civil liability on the other. Civil actions generally refer to lawsuits brought
by one party against another seeking compensation for a wrong. Criminal
prosecutions are brought by a government seeking to punish the defendant.
Some key distinctions between these two types of proceedings may be
summarized as follows.
First, tort and criminal law often differ in the conduct they govern.
Some acts are both torts and crimes; a beating, for example, may result in
both a criminal prosecution and a tort suit. But other crimes are not torts.
Thus a crime may be committed without injury to anyone, as when a
defendant is prosecuted for driving faster than the speed limit allowed. In
this case there is no occasion for a tort suit by anyone seeking damages.
Likewise, many torts are not crimes. A defendant who injures someone
through an act of professional malpractice typically commits no crime and
will not be prosecuted, but may be required by the law of torts to pay
compensation to the injured party. Even where the same conduct does give
rise to both tort and criminal liability, the legal doctrines governing the two
types of case tend to be quite different, with different elements of proof and
different defenses available.
Second, tort and criminal law differ in the procedures they involve. A
crime is regarded by the law as an offense against the public; that is why it
results in a prosecution brought by the government, not by the immediate
victim of the wrong. A tort suit is brought by an injured party seeking
compensation for damage the defendant has caused. And because the stakes
of the two proceedings for the defendant are different, the standards of
proof in the two proceedings differ as well. In a criminal prosecution the
defendant must be proven guilty beyond a reasonable doubt; in a tort suit
the plaintiff must establish the defendant’s liability by a preponderance of
the evidence, a weaker standard. A tort suit and a criminal prosecution
based on the same conduct may go forward at the same time, or one after
the other. The two proceedings generally have no effect on each other,
though findings against a defendant made in a criminal case sometimes may
be regarded as settled for purposes of the tort suit as well.
Third, tort and criminal law differ in their purposes. Both are partly
concerned with deterring misconduct by attaching costs to it, but deterrence
is just one of the purposes classically ascribed to the criminal law—along
with retribution, rehabilitation, and incapacitation of the criminal.
Retribution and incapacitation rarely are thought to play any role in the law
of torts; the immediate purpose of a tort suit is to secure compensation for
the victim. There remains some overlap between even the apparently
different purposes served by criminal and tort suits. A criminal prosecution
may serve compensatory as well as punitive purposes by forcing a
defendant to pay restitution to the victim of a crime, and a tort suit may
serve a punitive as well as a compensatory function if the defendant is
required to pay punitive damages. But the differences between the aims of
tort and criminal law are large enough to result in quite different arguments
about what rules and policies make sense in the two fields.
Common law vs. statutes. The law of torts comes from two principal
sources: the common law and statutes. For our purposes, “common law”
refers to the body of law created by judges over the course of many
centuries in England and the United States. Judges deciding tort disputes in
classic common law fashion reason from one case to the next, with the
parties each arguing that their preferred result is the one most consistent
with the decisions the court already has made. When the court decides the
case it issues a written opinion explaining its decision; that opinion then
becomes a precedent that can be used as authority in subsequent cases.
Until well into the twentieth century most American tort law was common
law—i.e., judge-made. To learn the law of torts was to know a great many
cases.
Torts remains largely a common law field, but state legislatures now
play a significant role in its development as well. During the past half-
century it has become more common for judge-made tort doctrines to be
codified, modified, or repudiated by statute, or for legislatures to make
attempts to enact statutory “tort reform.” Administrative agencies also
supplement rules of tort liability with regulations that may cover some of
the same ground. In this book we will examine a number of statutory
contributions to the law of torts and consider the pros and cons of making
tort law by judicial decision and by legislation. But in the main this book
continues to treat torts as a common law subject, both because it largely
remains so and because training in common law reasoning—the process of
distinguishing cases and arguing about their precedential significance—is
one of the distinctive pedagogical functions of a first-year course on tort
law.
In the course of our studies we frequently will encounter the First,
Second, and Third Restatements of the Law of Torts published by the
American Law Institute (ALI). The ALI is an organization of lawyers,
judges, and academics; the Restatements are a set of projects in which they
attempt to clarify the content of the common law in various areas—torts,
contracts, agency, and so forth. The creation of a Restatement begins with
the appointment of a reporter (or more than one) responsible for drafting its
various sections. The reporter has primary responsibility for the final result,
but a Restatement is subject to comment, debate, and a vote by the
membership of the ALI before it is released. The reporter generally
attempts to state the best reading of the courts’ position on a question—
usually the position of the courts in a majority of jurisdictions, though
sometimes the ALI will side with a minority view that it believes is better
reasoned. Indeed, occasionally the ALI’s attempt to “restate” what courts
are doing will amount to a recommendation that they adopt a new
framework for decision that better reflects the direction of the law. The
resulting Restatements vary in the extent of their influence. In certain areas
of law they have had a great impact; the Second Restatement, for example,
formulated tests for products liability and invasion of privacy that have
been adopted in most jurisdictions. Other sections have been less
influential.
In all events, it is important to understand that the positions a
Restatement takes, whether in its “black letter” statements of law or the
illustrations and comments afterwards, are not law and may not reflect the
position taken in some jurisdictions. Courts are under no obligation to
follow the Restatements and sometimes reject them explicitly. Restatements
are best viewed as useful attempts, with greater or lesser success, to
summarize areas where the common law is complicated. We will consider
them often in that spirit. The First Restatement of Torts, written in the
1930s, we will encounter only rarely. The Restatement (Second), written
between 1964 and 1979, will make frequent appearances in the text. The
new Restatement (Third) does not attempt to cover all the ground that the
Second Restatement did, but we shall see that in some areas—including
products liability, apportionment, and certain aspects of the negligence tort
—the new work has made interesting revisions to the old and has provoked
occasional controversy.
Intentional vs. unintentional torts; negligence vs. strict liability. For the
sake of organization the substance of tort law can be divided along various
lines. The first involves the distinction between liability for intentional and
unintentional wrongs. The precise meaning of “intent” can become
complicated, as we shall see, but for present purposes just think of
intentional torts as those that typically involve deliberate conduct. Battery,
trespass, and conversion are classic examples. Unintentional torts refer to
harms caused inadvertently—“by accident,” as it were. The doctrines
governing liability for these two types of torts are different and are covered
in different sections of the book.
The world of unintentional torts can be further divided into two types:
strict liability and liability for negligence. A rule of strict liability generally
requires a defendant to pay for damage caused by an activity regardless of
how carefully it was conducted. A rule of negligence requires defendants to
pay only for harms caused by their failure to use reasonable care—with the
meaning of “reasonable” again subject to debate and qualification. Some
activities are governed by the one rule and some by the other. The
difference between these two types of liability is very important to an
understanding of tort law as a doctrinal matter (in other words, to an
understanding of how the rules work); the distinction also is central to much
of the theory surrounding the law of torts. Students of tort law have long
debated whether and when liability should be imposed on a defendant
without any showing of fault.
2. Historical Development
By way of additional context it will help to understand some differences

between the modern divisions in the law of torts just sketched and the
somewhat different distinctions that dominated the field until roughly the
second half of the nineteenth century. The American legal system borrowed
most of its structure from the English, and in England the roots of tort
doctrine are bound up with the historical development of jurisdictional rules
and requirements. Thus Henry Maine, an English legal historian of the
nineteenth century, wrote that in the early common law the “substantive law
has at first the look of being gradually secreted in the interstices of
procedure.” When the Normans invaded in 1066, England had no
centralized set of courts; its legal system consisted of a variety of local
courts. Over the next two hundred years the “King’s courts” were
established, but before bringing an action there a plaintiff had first to get
permission from the Lord Chancellor of England by securing a writ: a
document containing a standardized recital accusing the defendant of a
particular type of misconduct. The plaintiff would fill in the names, dates,
and place of the event. The writ directed the sheriff to produce the
defendant at the next Assizes—i.e., the next session of the royal courts. The
judge there was assisted in trying the case by a selection from the local
citizens, known then as the “inquest” and the forerunner of what we now
know as the jury.
The King’s courts were in competition with the local courts that
continued to be administered by English barons; as a concession to the
latter, the number of writs available to gain access to the royal courts was
frozen early on. More flexibility was to come later, but a lasting
consequence of this initial step was that one writ became the origin of most
actions we now would regard as sounding in tort: the writ of trespass vi et
armis—“with force and arms”—alleging that the defendant had broken the
King’s peace, thus entitling the King’s courts to jurisdiction over the
dispute. The writ of trespass encompassed a range of harms much broader
than suggested by its modern lay meaning of entry onto land without
permission. It came to be used in cases involving collisions and accidents of
all kinds, professional malpractice, and other conduct that the royal courts
agreed to treat as fitting within the pigeonhole created by the trespass writ.
Over time—by the fourteenth century, and then with greater clarity in the
centuries that followed—the royal courts began to recognize a new form of
action known as trespass on the case (or simply “case”). The old trespass
writ came to be used in cases alleging that the defendant inflicted harm in a
forcible and direct manner; case became the action used to allege that harm
had been inflicted indirectly.
At first glance the distinction between trespass and case may seem to
track the modern difference between intentional and unintentional torts, but
that was not so. The classic illustration of the difference between trespass
and case involved a log dropped by the defendant. If the log struck the
plaintiff, the remedy would lie in an action for trespass because the injury
was inflicted directly; if the plaintiff struck the log while driving in his
carriage, the injury would be considered indirect and the remedy would lie
in an action on the case. Notice that in either circumstance the defendant
may have dropped the log deliberately or inadvertently.
But what of the other great modern distinction—that between strict
liability and liability for negligence? The action on the case generally
required a showing of some fault on the defendant’s part, whether in the
form of carelessness or a bad intent; the liability for negligence now
familiar to us thus descends largely from old English action on the case.
Legal historians differ, however, on the role that notions of fault played in
early cases alleging trespass vi et armis. In the early leading case of Weaver
v. Ward, 80 Eng. Rep. 284 (K.B. 1616), the plaintiff and defendant were
fellow soldiers; the defendant shot the plaintiff while they were skirmishing
with their muskets. The defendant pled that the shooting had been
accidental. The court rejected this defense but said that the legal outcome
might have been different if the accident had been shown to be “inevitable.”
Whether this amounted to strict liability or to an implied requirement that
the defendant be shown to have been at fault is a matter of some debate.
See, e.g., Arnold, Accident, Mistake, and Rules of Liability in the
Fourteenth Century Law of Torts, 128 U. Pa. L. Rev. 361 (1979); Baker, An
Introduction to English Legal History 337-345 (1979).
One naturally may wonder, then, how the transition was made from the
old writs to the organizing ideas—negligence, strict liability, and intentional
torts—sketched in the previous section of this introduction. During the
nineteenth century the writ system was abolished in both England and the
United States, and the distinction between trespass and case soon
evaporated as well. Before this time, “torts” did not exist as an independent
subject matter, so naturally the division of it into negligence, strict liability,
and intentional torts did not exist, either. There simply was a collection of
unrelated writs that lawyers used to bring claims for recovery in various
non-contractual situations. The notion of “negligence” or “neglect” was
used narrowly to refer just to situations where a defendant failed to carry
out a specific duty to some plaintiff prescribed by law. As the writ system
fell away, however, courts and scholars made attempts to replace it with
broader efforts at conceptualization. The results of these conceptual efforts
included the creation of categories and vocabulary that continue to be used
now.
An important example of one of the judicial contributions was Brown v.
Kendall, 60 Mass. 292 (1850). The defendant was trying to separate two
fighting dogs by beating them with a stick; on the backswing the stick hit
the plaintiff in the eye. The Chief Justice of the Supreme Judicial Court of
Massachusetts, Lemuel Shaw, wrote an opinion saying that a plaintiff suing
a defendant in trespass must show “either that the intention was unlawful,
or that the defendant was in fault.” Thus “if both plaintiff and defendant at
the time of the blow were using ordinary care, or if at that time the
defendant was using ordinary care, and the plaintiff was not, or if at that
time, both the plaintiff and defendant were not using ordinary care, then the
plaintiff could not recover.” This way of talking about liability for an
accidental injury is not far from the language courts would use today.
Brown v. Kendall is regarded as a landmark in American law because it was
the first to so speak of “fault” as a standard of liability with wide
application.
The idea then emerged gradually that a defendant might in general be
held liable for misfeasance: for doing some act negligently, and thus
violating a duty to be careful that was not limited to a specific group of
beneficiaries. This notion was pressed forward in scholarship by Oliver
Wendell Holmes, Jr., later in the nineteenth century. Holmes’s examination
of the case law led him to argue for the existence of a general principle that
underpinned various forms of liability then capable of being summarized as
“torts”: liability required a showing of fault, or negligence. We will look at
some of Holmes’s writings, and consider the meaning that the fault
principle came to acquire, in chapter three of this book: The Negligence
Standard.
The social significance of the negligence standard has been the subject
of extensive debate. Some scholars have argued that a fault requirement is
best viewed as a nineteenth century innovation that served as a subsidy to
encourage developing industries—railroads, canals, and the like: firms
would not be financially responsible for the injuries routinely caused by
those sorts of enterprises unless they could be shown to have acted in some
sense wrongfully. See, e.g., Morton Horwitz, The Transformation of
American Law (1979). Others have argued that the fault requirement was in
place from the outset of the nineteenth century and that it benefited many
different sorts of defendants, thus undercutting the “subsidy” thesis. At
various points in the book—principally in the chapters on Strict Liability
and Nuisance—we shall have occasion to consider further the intersection
between legal standards and industrial development.
Meanwhile some modern intentional tort actions still retain the names
given to them under the old writ system: a suit for trespass to land, for
example, or for replevin (a suit seeking the return of the plaintiff’s goods).
Traces of the old system also survive in the continued availability of certain
writs in American law, such as the writ of mandamus, or of habeas corpus,
or of coram nobis—none of which have much to do with tort law, however.
Part of the value of understanding the English background is that it will
help you to better comprehend old cases. But it also will help you to
understand basic concepts and distinctions you will see in modern cases that
wrestle with doctrines whose roots lie in the old forms of action.
3. Modern Procedure: How to Understand the Posture of a Case
This part of the introduction is meant to help you make sense out of the
cases you will be reading by explaining a bit about how a legal question
comes before a judge and results in a written opinion. (This is a topic that
you will cover in more detail in your course on civil procedure.) It is
important to understand, first, that when judges write opinions they
generally are not making overall decisions about whether the defendant
owes money to the plaintiff. Our legal system breaks that decision into
parts. In every case you read, a plaintiff is making claims about two things:
the facts—in other words, the events that occurred in the world (“the
defendant’s dog bit me”); and the law—in other words, the legal rules that
apply to the facts (“when a dog bites someone, the dog’s owner is obliged to
pay compensation”). The opinions that judges write discuss propositions of
the second sort: they decide legal issues, such as whether and when dog
owners have to pay compensation when their dogs bite people. Judges
generally do this by making certain assumptions about the facts of the case
in front of them and then deciding whether the law imposes liability in
those circumstances. If the factual questions in a case—such as whether the
defendant’s dog really did bite the plaintiff—are disputed, they typically
must be decided separately by a jury (or perhaps by a judge acting as a
“trier of fact”). The key distinction to grasp at this point is between (a)
questions of law that result in opinions with significance for lots of cases,
and (b) questions of fact that are hashed out by the parties in front of a jury,
and that do not have significance for later cases (though of course they are
of great importance to the parties themselves). If you want to understand the
law governing dog bites, it is very important to know whether a dog owner
is always liable for damage done by her dog. It is not important for you to
know whether, in the case where that legal question was settled, the
defendant’s dog really did bite the plaintiff.
When we read opinions, we often will refer to them as resulting in
“liability” (L) or “no liability” (NL). This is a useful convention because it
provides a quick way to keep straight the basic outcomes of the cases we
consider. The labels nevertheless require a bit of explanation. An L case is
one where the court decided the issue raised in favor of the plaintiff and
against the defendant—though it need not be a case where the defendant
ultimately (i.e., at the end of the case) was held liable in damages. The court
may simply be saying that on certain assumptions which may or may not
turn out to be accurate after a trial is held, liability would be appropriate.
An NL case is one where the court says that the facts it describes do not
give rise to liability. A court can make statements like these at several
different moments during a case. Here is a summary of them.
a. Dismissal of a complaint. Suppose D’s dog bites P. P files a lawsuit

against D seeking damages. P’s lawsuit begins the way that all lawsuits
begin: P files a complaint (a short statement of his allegations and of the
legal basis of his claim against D). Now suppose D responds, as defendants
sometimes do, by making a motion in court to have P’s complaint dismissed
(sometimes also known as filing a demurrer). A court will decide D’s
motion to dismiss P’s complaint by assuming that all the facts alleged in the
complaint are true, and then asking whether those facts would—if true—
entitle the plaintiff to recover damages from the defendant. If the answer is
“yes,” then for our purposes this is considered a case of liability: the court is
saying that if the facts of a case are thus-and-so, the defendant is required to
pay damages to the plaintiff. This is true whether the decision is being made
by a trial court or a court of appeals.
Note that if the facts of the case turn out later (perhaps after a trial) not
to be as the plaintiff alleged in the complaint, then the defendant will not be
held liable and will not have to pay anything to the plaintiff after all. But we
still will think of the court’s earlier opinion a case of “liability,” because the
court was saying that liability would exist under the conditions that it
described (namely, the conditions alleged in the plaintiff’s complaint). If, on
the other hand, the court dismisses the plaintiff’s complaint (or “sustains the
demurrer”), then we would consider it a case of no liability—both in the
sense that the defendant won the case and did not owe the plaintiff
anything, and also in the sense, more important for our purposes, that the
court assumed certain facts to be true and said that they would create no
liability.
b. Summary judgment. Assuming the plaintiff’s complaint is not

dismissed, the next step in the life of a lawsuit is discovery: the exchange of
information about the case between the parties. Witnesses have their
depositions taken (in essence they are interviewed under oath, with their
answers recorded by a stenographer), perhaps the plaintiff is examined by a
physician who writes a report, and so forth. This process results in the
creation of a record of the case: a set of documents comprising all the
evidence that a jury would hear if there were a trial.
At the end of the discovery process, a defendant often will move for
summary judgment. The defendant’s claim then is that there is no point in
having a trial because the plaintiff has not come up with evidence that
would allow a reasonable jury to bring in a verdict in the plaintiff’s favor.
This time the court would decide the motion not by assuming the claims in
the plaintiff’s complaint are true (we are beyond that stage of the case now),
but rather by assuming that all of the plaintiff’s witnesses would be believed
by a jury and that a jury would draw all reasonable inferences from the
evidence in the plaintiff’s favor. Then, as in the previous example, the court
would ask whether, given those assumptions, the law would hold the
defendant liable to the plaintiff. If the answer is yes, then we would again
consider it a case of “liability,” even though the defendant’s actual liability
would have yet to be determined by a jury. The court merely would be
saying that a jury could find the defendant liable if it believed the plaintiff’s
witnesses and so forth. Conversely, if the court gave summary judgment to
the defendant, then it would be a case of no liability: we would know that
the facts the court assumed to be true do not make a defendant liable to a
plaintiff.
When you are thinking about the facts of a case where summary
judgment was granted or denied, remember that the court was giving the
benefit of a doubt to the party opposing the motion (the party who wants a
trial—usually the plaintiff, though occasionally the parties’ roles can be
reversed). You can stylize the case accordingly in your mind’s eye: the
court’s decision is based on the assumption that a jury would draw all
reasonable inferences in favor of the plaintiff; you therefore can interpret
the facts of the case accordingly, just looking at the plaintiff’s evidence.
c. Directed verdicts. Now suppose the defendant does not succeed in

getting the plaintiff’s complaint dismissed and also does not succeed in
obtaining summary judgment. There is then a trial to resolve disputes about
the facts of the case. After the plaintiff has presented his case, or after both
sides have presented their cases, or after the jury has reached a decision, the
defendant has the option of moving for judgment as a matter of law. This
also is known in many jurisdictions as moving for a directed verdict if the
request is made before the jury deliberates or a request for judgment
notwithstanding the verdict (“j.n.o.v.”) if the request is made after the jury
has returned its decision. A judge generally decides any of these motions by
just looking at the plaintiff’s evidence and asking whether, if it is accepted
by the jury and interpreted as favorably to the plaintiff as it reasonably can
be, a rational jury could find the defendant liable. If not, it is a case of no
liability. If so, it is a case of liability for our purposes. As usual, the court
has made certain assumptions and has said whether those assumed facts
would lead to liability.
The procedural posture just described sounds (and is) very similar to the
summary judgment procedure discussed a moment ago, because in either
situation the court is asking whether, if the plaintiff’s witnesses are believed
and all inferences are drawn in the plaintiff’s favor, a rational jury could
find for the plaintiff. The difference is just that summary judgment asks the
question before trial (in an effort to prevent the trial from occurring if its
outcome is a foregone conclusion), whereas a motion for judgment as a
matter of law asks the same question after the plaintiff’s evidence has been
presented in court (in an effort to prevent the trial from continuing, or from
ending with a judgment against the defendant that the evidence cannot
support). In either case the defendant generally is arguing that the plaintiff’s
evidence is inadequate as a matter of law.
A variation on this last theme occurs when the defendant (or plaintiff,
but assume it is the defendant for simplicity’s sake) complains that the trial
court gave the jury incorrect instructions. A court of appeals generally
decides such claims by first deciding whether the instruction was incorrect;
if so, the court then asks whether a correctly instructed jury could have
brought in a verdict for the defendant if it believed all of the defendant’s
witnesses, etc.
May vs. Must. The explanation so far glosses over an important

distinction. Occasionally a court says that if the factual assumptions it is
making are found to be true, a defendant cannot be held liable or must be
liable. Those are very strong precedents. In other cases—and commonly
when a court denies a defendant’s motion for summary judgment or
judgment as a matter of law—a court offers a weaker holding: it concludes
that on the facts it is assuming are true, a defendant may be held liable by a
jury; in other words, it would be reasonable for a jury to find liability. But
this does not mean the jury is required to do so. These holdings still are
important because they mean that the facts the court describes entitle the
plaintiff to a trial where a jury will decide whether the defendant behaved
reasonably, or decide whether the plaintiff’s injuries were a foreseeable
result of the defendant’s behavior, or answer other “jury questions.” Indeed,
in real tort cases that typically is the key legal determination: whether the
plaintiff gets to a jury.
As a practical matter, this means that we will most often encounter two
kinds of decisions in tort cases. First are the “NL” cases where the court
dismissed the plaintiff’s complaint or said that the defendant was entitled to
summary judgment or a directed verdict. In these situations the court is
saying that as a matter of law there cannot be liability on the facts the
plaintiff claims to be able to prove. Second are the “L” cases where the
court says there could be liability—cases where a jury must be permitted to
find liability if it determines that the defendant acted in the way the plaintiff
claims. These might more precisely be labeled “PL” cases for “potential
liability,” but for the sake of elegance we will stick with the “L”
designation. We will only occasionally encounter cases where a court says
there must be liability if the plaintiff’s evidence is believed. Those cases
will become easy to spot as you get the hang of working with the different
procedural postures in which cases come before courts.
Summary. We have just surveyed the most common settings in which

judges make statements about when defendants can be held liable to
plaintiffs. A judge might make such a pronouncement when deciding a
defendant’s motion to dismiss a plaintiff’s complaint; when deciding a
defendant’s motion for summary judgment; or when deciding a defendant’s
motion for a directed verdict (or judgment as a matter of law). Decisions
made in these three procedural postures may be equally strong precedents.
Regardless of the posture of the case, a court is making certain assumptions
about the facts and then deciding whether those facts would or could lead to
liability if they eventually were found to be true by a jury. Whether the
story is true is another question—one very important to the parties, of
course, but not important to lawyers using the case later on, claiming that it
is a precedent to which future courts must stay consistent.
Decisions on the motions just described are made first by trial judges,
sometimes without written opinions. A party who does not like a trial
judge’s decision can ask at some point—usually when the case is over in the
trial court—to have the decision reviewed by a court of appeals: a panel of
judges that reviews questions of law and issues opinions about them. The
holdings of the resulting appellate opinions are precedents that bind all
lower courts whose work the court of appeals reviews; a decision by a state
supreme court, for example, is a binding precedent that must be followed by
all courts in the state. The opinion may also be given some weight by courts
in other states, where the decision is not binding but may be found
persuasive. All else equal, courts like to be consistent with other courts
elsewhere.
This book often will ask you what distinctions can be drawn between
two cases you have read. If the cases were decided in different jurisdictions
(as usually will be true), it is always possible that there is no good
distinction between them; it may just be that the courts involved adopted
different rules of law, as jurisdictions sometimes do. But attempting to draw
distinctions between cases that seem to reach contradictory results is a
valuable exercise regardless of whether the cases purport to be consistent
with each other. When a practicing lawyer is confronted with a similar case
from another jurisdiction that resulted in an unhelpful opinion, saying that
the other case should be disregarded because it is from a different state is an
argument of last resort. The better route is to distinguish the adverse case by
showing that there are good reasons why it came out as it did that do not
apply to the case “at bar.” This book is intended in part to help increase
your skill at creating such arguments. So when the text asks “What is the
distinction between X and Y,” you may consider this the equivalent of a
challenge—if only as an exercise—to come up with the best argument you
can that the cases can be squared with each other.
If this is your first exposure to the nuts and bolts of procedure, it no
doubt will seem complicated and confusing. It all will become clearer as
you work through some cases (and a separate course on civil procedure).
4. Analytical Perspectives
A course on tort law typically has several goals. One is a mastery of the
doctrines that comprise the field. Another, as just discussed, is the
development of a lawyerly ability to work with case law. Still another is an
improved capacity to think intelligently about the problems that tort law
attempts to address. This final section of the introduction to the book briefly
introduces some major perspectives and analytical tools that students and
scholars of tort law bring to bear on the subject.
The dominant theoretical perspectives on torts often change from one
generation to the next. Most torts scholars at this writing can be broadly
divided into two groups: those who believe the purpose of the law of torts is
to regulate conduct and those who believe the purpose of the enterprise is to
achieve some form of corrective justice. As we shall see, there are some
who attempt to mix these approaches, but it will be convenient to begin by
treating them as distinct.
Regulation, deterrence, and economics. In the view of the first camp of

scholars, the most important aspect of a court’s decision in a tort case is the
impact it will have on the behavior of others in the future. The most
prominent advocates of this view are economists who believe that the
purpose of tort law should be to minimize the costs of accidents. Every
accident or other tort creates costs for its victims; but precautions against
accidents are expensive, too—as are lawsuits afterwards. The goal of the
legal system, on this view, should be to keep to a minimum the combined
costs of precautions, accidents, and litigation. Sometimes this will mean
that the law should try to induce people to take more precautions than they
do; sometimes it will mean that people take too many precautions already,
or that it is too costly to use the legal system to try to change their behavior.
The rules of tort law thus should give people incentives to take precautions
that are efficient—i.e., cost-justified: precautions that prevent injuries more
costly than the precautions but that allow injuries to occur if they are less
costly than the precautions. The economic approach to tort law was
pioneered by Guido Calabresi and Richard Posner, both of whom did
seminal scholarly work in the 1960s and 1970s and later became federal
appellate judges. (We will encounter their judicial work at various points in
this book.) Their initial contributions have been followed by a vast
economic literature analyzing the efficiency of tort doctrines.
Corrective justice. The other large branch of torts scholarship views the
law of torts as a moral enterprise, the purpose of which is to produce justice
between plaintiff and defendant. Some of the work in this area attempts to
build formally on Aristotle’s notion of corrective justice or on the work of
Kant and other philosophers. Other influential efforts by legal scholars have
been reasoned out less formally—from notions of personal autonomy, and
the right to redress when one’s personal integrity is unjustifiably invaded;
from reciprocal obligations of care owed between members of the same
community and the duty to compensate that arises when a party fails to live
up to those obligations; or from the snug connection in tort law between a
defendant’s wrong and a plaintiff’s right to collect damages for the resulting
injuries, which might seem at odds with the economic view that tort
damages are assessed just for the sake of deterring future misconduct. What
these theories have in common is a deontological thrust—in other words, a
perspective that evaluates rules according to their moral content, not
whether they induce people to act in desirable ways. (The economic
approach to tort law might be considered a moral enterprise, too, but the
relevant morality is consequentialist: a variety of utilitarianism.)
Adherents to these schools of thoughts have a set of standard criticisms
to exchange with each other. Economists often regard theories of corrective
justice as mush—lacking in clear or persuasive guidelines for determining
what conduct counts as “wrongful,” unable by their terms (their self-
professed hostility to instrumental thinking) to contribute to human welfare,
and lacking as well in empirical content that might be verified. Moral
theorists are known to dismiss the economic approach on grounds of their
own: skepticism about whether people have the knowledge and rationality
to be deterred by tort law in the way that economists suggest, and rejection
of efficiency as a morally appealing goal for the legal system.
At the same time, some scholars have advanced “mixed theories” that
draw on both traditions of argument. They may argue, for example, that
appeals to efficiency actually have an underlying moral component.
Meanwhile there are still others who embrace the idea that tort law should
be viewed as a regulatory regime that provides incentives to people
deciding what precautions to take, but who reject the economists’ view that
the purpose of the regulatory enterprise is just to minimize the joint cost of
precautions and accidents. They may adopt other, more distributional goals,
viewing tort law as a form of social insurance that protects victims of
injuries from unanticipated losses and that shifts the costs of accidents onto
the activities that cause them.
We will revisit some of these ideas later, and your instructor may pursue
them during class discussions. In the meantime, however, these large
debates over tort theory can be reduced to some questions and
considerations you can ask as you start to think about the cases you read in
this book. What incentives do the courts’ rulings create? Are the incentives
likely to have practical significance? What administrative costs does a
court’s holding create or avoid—in other words, what difficulties of
application and what potentials for error? Is the court’s decision fair—and
to whom, and by what criterion? These are important questions to ask in
thinking about problems of tort law and trying to assess the merits of the
courts’ responses to them. They also can be powerful tools for lawyers, as
they serve as sources of the types of policy arguments that often are central
to a court’s resolution of a case.
Chapter 1
Intentional Torts: The Prima Facie Case
Torts come in two general varieties: unintentional and intentional.

Unintentional torts include most sorts of harms generally regarded as
accidental; they are covered in later chapters. Intentional torts — the subject
of this chapter — are harms inflicted more or less deliberately. For each
intentional tort there is a distinct prima facie case consisting of certain
things (“elements” of the claim) that a plaintiff must allege and then prove
in order to win a lawsuit. The defendant can respond to that prima facie
case either by denying what the plaintiff has said or by raising an
affirmative defense — in other words, by alleging and then proving some
additional facts that undercut the plaintiff’s case, perhaps by justifying the
defendant’s actions. Those defenses are considered in the next chapter; this
chapter is devoted to the elements of the plaintiff’s prima facie case. We
will begin by considering the tort of battery in some detail. Afterwards we
will look in a bit less detail at trespass, conversion, false imprisonment,
assault, and outrage (otherwise known as the intentional infliction of
emotional distress).
A. BATTERY
1. Intent and Volition
Vosburg v. Putney
80 Wis. 523, 50 N.W. 403 (1891)
[The plaintiff, 14 years old at the time in question, brought an action for
battery against the defendant, who was 12 years old. The complaint charged
that the defendant kicked the plaintiff in the shin in a schoolroom in
Waukesha, Wisconsin, after the teacher had called the class to order. The
kick, though so light that the plaintiff didn’t feel it at first, aggravated a
prior injury that the plaintiff had suffered and caused his leg to become
lame. The jury rendered a special verdict as follows:
(1) Had the plaintiff during the month of January, 1889, received an
injury just above the knee, which became inflamed and produced
pus? A. Yes.
(2) Had such injury on the 20th day of February, 1889, nearly healed at
the point of the injury? A. Yes.
(3) Was the plaintiff, before said 20th of February, lame as the result of
such injury? A. No.
(4) Had the tibia in the plaintiff’s right leg become inflamed or
diseased to some extent before he received the blow or kick from
the defendant? A. No.
(5) What was the exciting cause of the injury to the plaintiff’s leg? A.
Kick.
(6) Did the defendant, in touching the plaintiff with his foot, intend to
do him any harm? A. No.
(7) At what sum do you assess the damages of the plaintiff? A. Twenty-
five hundred dollars.
The trial court entered judgment for the plaintiff on the special verdict.
The defendant appealed.]
LYON, J. — [After stating the facts:] The jury having found that the
defendant, in touching the plaintiff with his foot, did not intend to do him
any harm, counsel for defendant maintain that the plaintiff has no cause of
action, and that defendant’s motion for judgment on the special verdict
should have been granted. In support of this proposition counsel quote from
2 Greenl. Ev. §83, the rule that “the intention to do harm is of the essence of
an assault.” Such is the rule, no doubt, in actions or prosecutions for mere
assaults. But this is an action to recover damages for an alleged assault and
battery. In such case the rule is correctly stated, in many of the authorities
cited by counsel, that plaintiff must show either that the intention was
unlawful, or that the defendant is in fault. If the intended act is unlawful, the
intention to commit it must necessarily be unlawful. Hence, as applied to
this case, if the kicking of the plaintiff by the defendant was an unlawful
act, the intention of defendant to kick him was also unlawful. Had the
parties been upon the playgrounds of the school, engaged in the usual
boyish sports, the defendant being free from malice, wantonness, or
negligence, and intending no harm to plaintiff in what he did, we should
hesitate to hold the act of the defendant unlawful, or that he could be held
liable in this action. Some consideration is due to the implied license of the
play-grounds. But it appears that the injury was inflicted in the school, after
it had been called to order by the teacher, and after the regular exercises of
the school had commenced. Under these circumstances, no implied license
to do the act complained of existed, and such act was a violation of the
order and decorum of the school, and necessarily unlawful. Hence we are of
the opinion that, under the evidence and verdict, the action may be
sustained. . . .
Certain questions were proposed on behalf of defendant to be submitted
to the jury, founded upon the theory that only such damages could be
recovered as the defendant might reasonably be supposed to have
contemplated as likely to result from his kicking the plaintiff. The court
refused to submit such questions to the jury. The ruling was correct. The
rule of damages in actions for torts was held in Brown v. Railway Co., 54
Wis. 342, to be that the wrongdoer is liable for all injuries resulting directly
from the wrongful act, whether they could or could not have been foreseen
by him. The chief justice and the writer of this opinion dissented from the
judgment in that case, chiefly because we were of the opinion that the
complaint stated a cause of action ex contractu, and not ex delicto, and
hence that a different rule of damages — the rule here contended for — was
applicable. We did not question that the rule in actions for tort was correctly
stated. That case rules this on the question of damages. . . .
NOTES
1. Seven questions. When a jury renders a general verdict, it simply

finds the defendant liable or not liable. Sometimes, as in Vosburg, a judge
will instead ask the jury to render a special verdict: a set of answers to more
specific questions. A special verdict shows the basis of the jury’s
conclusions and thus makes it easier for a court reviewing the verdict to
know what the jury thought about particular issues that may seem critical in
retrospect. The defendant in Vosburg fastened onto one particular finding in
its special verdict and claimed that it entitled him to victory. Which one?
2. Touch football. In Knight v. Jewett, 275 Cal. Rptr. 292 (Cal. App.
1990), aff’d, 834 P.2d 696 (Cal. 1992), Knight, Jewett, and several other
friends gathered at a house in Vista to watch the Super Bowl. Knight and
Jewett were among those who decided to play a game of touch football
during halftime using the kind of miniature football often used by children.
Knight and Jewett were on different teams. The only rule they explicitly
agreed upon was that to stop the player with the ball it was necessary to
touch the player above the waist with two hands. Knight’s understanding
was that the game would not involve forceful pushing or shoving.
Soon after the game started, Jewett ran into Knight during a play;
Knight told Jewett that she would leave the game if he didn’t stop playing
so rough. On the next play Jewett knocked Knight down and stepped on the
little finger of her right hand. Jewett’s account was that he had jumped up to
intercept a pass and knocked Knight over as he came down; when he
landed, he stepped back and onto Knight’s hand. Knight’s version of the
events was somewhat different: as Jewett was chasing one of her teammates
who had caught the ball, he came up 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. Knight conceded in deposition testimony that Jewett
did not intend to step on her hand and did not intend to hurt her.
Knight had three surgeries on the finger, but they proved unsuccessful.
Ultimately the finger was amputated. She sued Jewett for battery, among
other things. The trial court gave summary judgment to Jewett, and the
court of appeals affirmed:
A requisite element of assault and battery is intent. Here, however,

there is no evidence that Jewett intended to injure Knight or commit a
battery on her. Moreover, the record affirmatively shows Knight does
not believe Jewett had the intent to step on her hand or injure her.
Without the requisite intent, Knight cannot state a cause of action for
assault and battery.
What is the superficial similarity between Knight v. Jewett and Vosburg
v. Putney? What is the distinction between them?
3. The piano lesson (problem). In White v. University of Idaho, 768 P.2d
827 (Idaho 1989), Richard Neher was a professor of music at the University
of Idaho. One morning he was visiting the home of one of his students,
Carol White. White was seated at a counter when Neher walked up behind
her and touched her back with both of his hands in a movement later
described as one a pianist would make in striking and lifting the fingers
from a keyboard. The resulting contact generated unexpectedly harmful
injuries: White suffered thoracic outlet syndrome, requiring the removal of
the first rib on the right side; she also experienced scarring of the brachial
plexus nerve, which necessitated the severing of the scalenus anterior
muscles in her neck. White sued Neher and the University of Idaho to
recover her damages.
The University sought summary judgment on the ground that under a
state statute it could not be held liable for a battery committed by one of its
employees. The question thus became whether Neher’s act had been a
battery. Neher stated that he intentionally touched the plaintiff’s back but
said that his purpose was to demonstrate the sensation of this particular
movement by a pianist, not to cause any harm. He explained that he has
occasionally used this contact method in teaching his piano students. The
plaintiff said that Neher’s act took her by surprise, that she would not have
consented to such contact, and that she found it offensive. What result on
the summary judgment motion?
4. Doctrinal distinctions. The definition of battery raises some issues on
which courts do not always agree. The approach to intent shown in the
cases above, and followed by a majority of courts, is known as “single
intent”: the plaintiff in a battery case must show that the defendant intended
the touching, not that the defendant intended the harm that followed from it.
A minority of courts require “dual intent” — that is, a showing that the
defendant intended both of those things.
Note that the word “intent” must be used with care in the law of torts,
because it is often used to refer to states of mind that do not seem
intentional in the casual sense of the word. A person is typically said to
“intend” a result if achieving it was the purpose of whatever act the person
committed. But a result is also said to be “intended,” for purposes of a tort
claim, if one commits an act knowing that the result is substantially certain
to follow from it — whether that result was desired or not. This distinction
makes no difference in the most typical cases of battery. Can you think of
atypical situations in which it would be likely to matter?
5. Offensive battery. We can distinguish between two kinds of battery:
touchings that are physically harmful and touchings that are offensive.
From Restatement Third, Torts: Intentional Torts to Persons (Tentative
Draft):
§3. BATTERY: DEFINITION OF OFFENSIVE CONTACT
A contact is offensive [for purposes of the tort of battery] if:

(a) the contact is offensive to a reasonable sense of personal
dignity; or
(b) the contact is highly offensive to the other’s unusually
sensitive sense of personal dignity, and the actor knows that the
contact will be highly offensive to the other.
Liability under Subsection (b) shall not be imposed if the court
determines that avoiding the contact would have been unduly
burdensome or that imposing liability would violate public policy.
Illustration 6 to that portion of the Restatement begins as follows:
Caterer is hired to serve food for a wedding reception. He is informed

that one of the guests, Omar, refuses to eat pork because under his
religion consuming pork is a great sin. During the reception, as guests
are about to be served food, Caterer realizes that he neglected to
inform the food-preparation team of Omar’s request. Caterer decides
not to inform Omar that the main course contains pork, in order to
avoid the burden of preparing another meal for Omar at the last
minute. After Omar has eaten the main course, he discovers that it
contained pork, and he is extremely upset.
Complete the illustration: should Caterer be subject to liability for battery?

What result under §3?
6. The insanity defense. In Polmatier v. Russ, 537 A.2d 468 (Conn.
1988), the defendant, Norman Russ, opened fire on his father-in-law with a
shotgun, killing him. Five hours later Russ was found in a wooded area two
miles away, crying and sitting naked on a tree stump holding the shotgun
and his infant daughter. Russ later described himself as a supreme being
who had the power to rule the destiny of the world. He further claimed that
his father-in-law was a spy for the Red Chinese who had planned to kill
him. Russ was prosecuted for murder and found not guilty by reason of
insanity; a psychiatrist testified that Russ suffered from a severe case of
paranoid schizophrenia with auditory hallucinations. The decedent’s wife
then brought a civil suit against Russ for wrongful death. The same
psychiatric testimony was offered. The trial court gave judgment to the
plaintiff and the Connecticut Supreme Court affirmed. The court first
announced its general adherence to the traditional rule against making an
allowance for insanity in measuring a defendant’s intent, adopting this
statement of the rationale from an earlier Illinois case:
There is, to be sure, an appearance of hardship in compelling one to

respond for that which he is unable to avoid for want of the control of
reason. But the question of liability in these cases is one of public
policy. If an insane person is not held liable for his torts, those
interested in his estate, as relatives or otherwise, might not have a
sufficient motive to so take care of him as to deprive him of
opportunities for inflicting injuries upon others. There is more
injustice in denying to the injured party the recovery of damages for
the wrong suffered by him, than there is in calling upon the relatives
or friends of the lunatic to pay the expense of his confinement, if he
has an estate ample enough for that purpose. The liability of lunatics
for their torts tends to secure a more efficient custody and
guardianship of their persons. Again, if parties can escape the
consequences of their injurious acts upon the plea of lunacy, there
will be a strong temptation to simulate insanity with a view of
masking the malice and revenge of an evil heart.
The court then further rejected Russ’s claim that his act was involuntary:
The defendant argues that for an act to be done with the requisite
intent, the act must be an external manifestation of the actor’s will.
The defendant specifically relies on the Restatement (Second) of
Torts §14, comment b, for the definition of what constitutes an “act,”
where it is stated that “a muscular movement which is purely
reflexive or the convulsive movements of an epileptic are not acts in
the sense in which that word is used in the Restatement. So too,
movements of the body during sleep or while the will is otherwise in
abeyance are not acts. An external manifestation of the will is
necessary to constitute an act, and an act is necessary to make one
liable [for a battery]. . . .” The defendant argues that if his “activities
were the external manifestations of irrational and uncontrollable
thought disorders these activities cannot be acts for purposes of
establishing liability for assault and battery.” We disagree.
We note that we have not been referred to any evidence indicating
that the defendant’s acts were reflexive, convulsive or epileptic.
Furthermore, under the Restatement (Second) of Torts §2, “act” is
used “to denote an external manifestation of the actor’s will and does
not include any of its results, even the most direct, immediate, and
intended.” Comment b to this section provides in pertinent part: “A
muscular reaction is always an act unless it is a purely reflexive
reaction in which the mind and will have no share.” Although the trial
court found that the defendant could not form a rational choice, it did
find that he could make a schizophrenic or crazy choice. Moreover, a
rational choice is not required since “[a]n insane person may have an
intent to invade the interests of another, even though his reasons and
motives for forming that intention may be entirely irrational.”
Restatement (Second) of Torts §895J, comment c. The following
example is given in the Restatement to illustrate the application of
comment c: “A, who is insane believes that he is Napoleon
Bonaparte, and that B, his nurse, who confines him in his room, is an
agent of the Duke of Wellington, who is endeavoring to prevent his
arrival on the field of Waterloo in time to win the battle. Seeking to
escape, he breaks off the leg of a chair, attacks B with it and fractures
her skull. A is subject to liability to B for battery.”
7. The first law of nature. In Laidlaw v. Sage, 158 N.Y. 73, 52 N.E. 679
(1899), rev’g 2 A.D. 374, 37 N.Y.S. 770 (1896), a mysterious stranger, later
determined to be a man called Norcross, appeared one afternoon at the New
York office of Russell Sage, a wealthy financier and philanthropist. The
stranger was carrying a carpet bag and said that he wanted to see Sage
about some railroad bonds; he claimed to have a letter of introduction from
John D. Rockefeller. Sage invited Norcross in and then read the letter; it ran
as follows: “The bag I hold in my hand contains ten pounds of dynamite. If
I drop this bag on the floor, the dynamite will explode, and destroy this
building in ruins, and kill every human being in the building. I demand
$1,200,000, or I will drop the bag. Will you give it? Yes or no?” Sage
returned the letter to Norcross and then started to talk, saying that he was
short of time and that if Norcross’s business was going to take long he
should come back later. While Sage was talking he slowly moved toward a
clerk in his office who did not realize what was happening. Sage placed his
hand on his clerk’s shoulder and gently moved him in front of Norcross so
that the clerk’s body was blocking Sage from the possible blast. Norcross
soon concluded that he was not going to get the money and pulled the fuse
on the carpet bag; this detonated a tremendous explosion that wrecked
Sage’s office and much of the rest of the building. Norcross was obliterated
by the blast and the clerk was injured. Russell Sage was unharmed. The
clerk sued Sage for battery.
The case was tried several times due to the appellate courts’
determinations of error in the trial court. The evidence in the resulting trials
raised questions about whether the plaintiff might have sustained the same
injuries whether or not the defendant had used him as a shield and whether
the defendant had acted voluntarily. In the fourth trial the jury returned a
verdict for the plaintiff and the trial court entered judgment upon it. The
defendant appealed to the New York Court of Appeals, which held that the
trial court misdirected the jury on whether the defendant had committed a
voluntary act and that the defendant was entitled to a fifth trial of the case
against him. Said the court:
That the duties and responsibilities of a person confronted with such a

danger are different and unlike those which follow his actions in
performing the ordinary duties of life under other conditions is a
well-established principle of law. The rule applicable . . . is stated in
Moak’s Underhill on Torts (page 14), as follows: “The law presumes
that an act or omission done or neglected under the influence of
pressing danger was done or neglected involuntarily.” It is there said
that this rule seems to be founded upon the maxim that self-
preservation is the first law of nature, and that, where it is a question
whether one of two men shall suffer, each is justified in doing the
best he can for himself. . . . Indeed, the trial court recognized this
doctrine in its charge, but submitted to the jury the question whether
the act of the defendant was involuntary, and induced by impending
danger, adding that the testimony of the defendant that everything he
did, he did intentionally, was sufficient to justify it in finding that he
voluntarily moved the plaintiff in the manner claimed by him. . . .
[I]t is extremely difficult, upon a consideration of all the evidence
in the record relating to this subject, to see how a jury was justified in
finding that the defendant voluntarily interfered with the person of
the plaintiff. . . .
It is impossible to consider the plaintiff’s injuries without a
feeling of profound sympathy. His misfortune was a severe one, but
sympathy, although one of the noblest sentiments of our nature,
which brings its reward to both the subject and actor, has no proper
place in the administration of the law. It is properly based upon moral
or charitable considerations alone, and neither courts nor juries are
justified in yielding to its influence in the discharge of their important
and responsible duties.
Was Laidlaw v. Sage correctly decided? Can it be squared with

Polmatier v. Russ? If not, which case offers a preferable view of the
voluntary act requirement?
8. Horse play. In Keel v. Hainline, 331 P.2d 397 (Okla. 1958),
approximately 40 students at a public middle school in Tulsa went to a
classroom for instruction in music. The class met at 10:30 A.M., but for
unknown reasons their instructor did not make an appearance until some 30
minutes later. During the instructor’s absence several of the male students
indulged in what they termed “horse play”: they assembled at opposite ends
of the classroom and threw chalkboard erasers and chalk back and forth at
each other. This went on for about half an hour; it ended when an eraser
thrown by one of the defendants struck the plaintiff in the face, shattering
her glasses and resulting in her loss of one eye. The plaintiff had been
sitting in her chair near the center of the room and studying her lessons
when she was struck by the eraser; she had not been participating in the
horse play. None of the defendants intended to strike or injure the plaintiff.
They were throwing the erasers at each other in sport and apparently
without intending to cause injury.
The plaintiff brought a suit for battery against several of the boys: the
one who threw the eraser and also several of the others involved in the
eraser fight. The jury brought in a verdict in her favor against all of the
defendants, and the trial court entered judgment upon it. One of the
defendants — the defendant at whom the fateful eraser had been thrown —
appealed.
Held, for the plaintiff, that the trial court did not err in entering
judgment on the jury’s verdict. Said the court:
Defendant strenuously argues that the class had not been called to
order by the teacher and that the defendants were merely playing until
the teacher arrived, and therefore could not be said to have been
engaged in any wrongful or unlawful acts. We do not agree. We do
not believe and are not willing to hold that the willful and deliberate
throwing of wooden blackboard erasers at other persons in a class
room containing 35 to 40 students is an innocent and lawful pastime,
even though done in sport and without intent to injure. Such conduct
is wrongful, and we so hold. Under such circumstances the rule
applicable to this case is well stated at 4 Am. Jur. 128, Assault and
Battery, sec. 5, as follows: “Where, however, the basis of an action is
assault and battery, the intention with which the injury was done is
immaterial so far as the maintenance of the action is concerned,
provided the act causing the injury was wrongful, for if the act was
wrongful, the intent must necessarily have been wrongful. The fact
that an act was done with a good intention, or without any unlawful
intention, cannot change that which, by reason of its unlawfulness, is
essentially an assault and battery into a lawful act, thereby releasing
the aggressor from liability.”
Keel, the defendant who appealed, also argued that he should not be held
liable because everyone agreed that he did not throw the eraser that hit the
plaintiff. The trial court had instructed the jury as follows:
If you find for the plaintiff and against the defendant who actually
threw the eraser, then you are instructed that if you should further
find and believe from a preponderance of the evidence, that one or
more of the remaining defendants, did by their acts, signs, gestures,
words or demeanor, either aid, abet, encourage, procure, promote or
instigate the assault and battery, then your verdict should be against
all of the defendants who participated in the assault and battery, if
any, either as the actual assailant or by aiding, abetting, encouraging,
procuring, promoting or instigating the throwing of the eraser by the
actual assailant.
The Oklahoma Supreme Court rejected Keel’s argument and approved

the above instruction as a correct statement of the law.
What is the relationship between Keel v. Hainline and Vosburg v.
Putney? What were the intentions of the defendant who threw the eraser?
Of the defendant (the appellant here) at whom the eraser was thrown?
9. Transferred intent. The basic doctrine that permitted the student who
threw the eraser to be held liable is known as “transferred intent”: if A
attempts to commit a battery against B but mistakenly hits C instead, C can
sue A for battery. It is no defense for A to say that he had no intent to cause
contact with C. A’s intentions toward B are combined with the harmful
contact with C to create a battery. Consider what result should follow from
this Illustration in Restatement Third, Torts: Intentional Torts to Persons:
John, a security guard at a nightclub, is angry that Rudy, an

intoxicated patron, refuses to leave. John fires a gun at Rudy in order
to injure him. The bullet misses Rudy, ricochets across the street, and
strikes the bicycle of Nancy a block away. As a result, Nancy falls off
her bicycle, suffering a concussion.
Finish the illustration: is the security guard liable to the rider of the bicycle
for battery?
10. “Transferred” transferred intent. The Oklahoma courts went
beyond ordinary transferred intent in also affirming liability for Keel, the
boy at whom the eraser was thrown. This amounts to transferred intent in a
different sense than was discussed a moment ago; it is a kind of liability
imposed upon Keel for a secondary role in the events that produced the
plaintiff’s injury. What are the implications of such liability? Does it mean
that if A shoots at B but mistakenly hits C, B is liable to C for battery?
What if B had been goading A?
11. Collecting the judgment. Vosburg v. Putney and Keel v. Hainline
both involve litigation against children, raising natural questions about how
the defendants proposed to collect the judgments they won. The common
law does not hold parents liable for their children’s tortious acts, so
judgments against children generally cannot be executed against their
parents’ assets. The plaintiff can collect the judgment from the child if the
child has assets; and in some instances the plaintiff may also be able to
renew the judgment at intervals prescribed by statute as the child grows
older and accumulates property.
The common law rule respecting parents and children has been
modified by statute in many jurisdictions. This North Carolina statute, N.C.
Gen. Stat. §1-538.1, is typical:
Any person or other legal entity shall be entitled to recover actual

damages suffered in an amount not to exceed a total of two thousand
dollars ($2,000) from the parent or parents of any minor who shall
maliciously or willfully injure such person or destroy the real or
personal property of such person.
To these rules compare the doctrine of respondeat superior, which

generally allows employers to be sued for acts of negligence committed by
their employees in the course of their employment (and also for intentional
torts employees commit in furtherance of their employers’ interests). Why
might it be that employers routinely are held liable for torts committed by
their employees while parents usually are not held liable for torts committed
by their children? That question is considered in more detail in the
treatment of respondeat superior later in the book.
12. Wild pitch. In Manning v. Grimsley, 643 F.2d 20 (1st Cir. 1981), the
plaintiff was a spectator at a baseball game between the Boston Red Sox
and the Baltimore Orioles at Fenway Park in Boston. He was seated in the
right field bleachers, separated from the bullpen by a wire mesh fence. As
Ross Grimsley, a pitcher for the Orioles, was warming up, the Red Sox fans
continuously heckled him. On several occasions Grimsley gave the hecklers
dirty looks. Finally Grimsley wound up as though to throw toward the
bullpen plate one last time; but when he threw the ball, it flew at more than
80 miles an hour away from the plate and directly toward the hecklers in the
bleachers. The ball went through the wire mesh fence and hit the plaintiff,
who may or may not have been a heckler. The district court directed a
verdict for the defendants on the plaintiff’s battery count. The plaintiff sued
Grimsley and the Orioles. The trial court gave a directed verdict to the
defendants; the court of appeals reversed and remanded the case for a new
trial. Said the court:
We, unlike the district judge, are of the view that from the evidence
that Grimsley was an expert pitcher, that on several occasions
immediately following heckling he looked directly at the hecklers,
not just into the stands, and that the ball traveled at a right angle to
the direction in which he had been pitching and in the direction of the
hecklers, the jury could reasonably have inferred that Grimsley
intended (1) to throw the ball in the direction of the hecklers, [and]
(2) to cause them imminent apprehension of being hit . . . .
The foregoing evidence and inferences would have permitted a
jury to conclude that the defendant Grimsley committed a battery
against the plaintiff. This case falls within the scope of Restatement
Torts 2d §13 which provides, inter alia, that an actor is subject to
liability to another for battery if intending to cause a third person to
have an imminent apprehension of a harmful bodily contact, the actor
causes the other to suffer a harmful contact. Although we have not
found any Massachusetts case which directly supports that aspect of
§13 which we have just set forth, we have no doubt that it would be
followed by the Massachusetts Supreme Judicial Court. . . . The
whole rule and especially that aspect of the rule which permits
recovery by a person who was not the target of the defendant embody
a strong social policy including obedience to the criminal law by
imposing an absolute civil liability to anyone who is physically
injured as a result of an intentional harmful contact or a threat thereof
directed either at him or a third person. It, therefore, was error for the
district court to have directed a verdict for defendant Grimsley on the
battery count. . . .
What is the relationship between Grimsley and Keel v. Hainline (the
case of the errant eraser)? Does it follow from the appellant’s liability in
Keel that the plaintiff in Grimsley also could have brought suit against the
hecklers?
13. When will intent transfer? It will aid your understanding of
Manning v. Grimsley to note that Grimsley was found to have intended to
cause the hecklers “imminent apprehension of being hit.” To intentionally
cause someone to have imminent apprehension of being hit is to commit an
assault, not a battery. Since Grimsley did have a sufficient intent to commit
an intentional tort, however, that intent was enough to support liability for
battery.
Suppose the Vosburg defendant tried to kick one of his friends but
missed and instead kicked the plaintiff, causing catastrophic injury to his
leg. Would there be liability under the reasoning of Manning v. Grimsley?
Would there be liability for Vosburg’s friend under Keel v. Hainline?
2. Minimum Requirements
Having considered the intent requirement for battery, we now start our
consideration of another aspect of the tort: the requirement that the
defendant must commit or cause a harmful or offensive touching of the
plaintiff. This element can raise several distinct types of issues that we will
consider in turn. The first is how direct and invasive the contact between
the parties must be before it rises to the level of “harmful or offensive.”
1. Smoke gets in your eyes. In Leichtman v. WLW Jacor
Communications, Inc., 634 N.E.2d 697 (Ohio App. 1994), the plaintiff, an
antismoking advocate, alleged that he was invited to appear as a guest on a
radio talk show to discuss smoking and the effects of secondary smoke. At
the urging of one of the show’s hosts, a second host lit a cigar and
repeatedly blew smoke in the plaintiff’s face. The plaintiff sued the two
hosts and the radio station for battery, claiming the host blew the smoke in
his face “for the purpose of causing physical discomfort, humiliation and
distress.” The trial court dismissed the claim. The court of appeals reversed,
holding that tobacco smoke was “particulate matter” capable of making
physical contact and of offending a reasonable sense of personal dignity,
and thus that if the defendant intentionally directed the smoke toward the
plaintiff he could be held liable for committing a battery.
2. Liability for buses. In Madden v. D.C. Transit System, Inc., 307 A.2d
756 (D.C. 1973), the plaintiff sought $70,000 in damages from the
defendant for assault and battery. The plaintiff alleged that while standing
on the traffic island near the corner of an intersection he was contacted by
fumes and offensive oily substances that the defendant permitted to spew
from two of its buses. The plaintiff further alleged that the defendant was
aware that these regularly were discharged from its buses and that the
emissions therefore were intentional. The trial court dismissed the
complaint, stating that absent a showing of malice, willfulness, or specific
wrongful intent, the defendant could not be held liable for the acts alleged.
The plaintiff appealed, and the District of Columbia Court of Appeals
affirmed.
What is the distinction between Madden v. D.C. Transit System, Inc. and
Leichtman v. WLW Jacor Communications, Inc.?
3. Just checking. In Morgan v. Loyacomo, 1 So. 2d 510 (Miss. 1941),
the plaintiff purchased an article of underwear from the defendant’s store.
The defendant’s manager saw the purchase and suspected that the plaintiff
had taken two garments but paid for only one. The manager followed the
plaintiff out of the store and pursued her for a block; he then called to her in
front of several other people and said he was obliged to investigate whether
she had taken an article from the store without paying for it. He seized the
package from under her arm, opened it, and discovered that he had been
incorrect. The plaintiff sued the store for battery (as well as slander and
assault). The trial court entered judgment on a verdict for the plaintiff, and
the Mississippi Supreme Court affirmed: “The authorities are agreed that, to
constitute an assault and battery, it is not necessary to touch the plaintiff’s
body or even his clothing; knocking or snatching anything from plaintiff’s
hand or touching anything connected with his person, when done in a rude
or insolent manner, is sufficient.”
What should the manager have done? The common law originally
provided shopkeepers with a privilege to use reasonable force to retake their
goods from thieves, but merchants using the privilege were fully liable in
tort if they turned out to be mistaken in the way the defendant’s manager
was here. By the latter half of the twentieth century retailers commonly had
moved their wares out from behind counters and onto floors where
customers could inspect them, making it harder to be sure whether a theft
was occurring; the privilege was broadened accordingly, sometimes by
courts and sometimes by statute. See, e.g., Ariz. Rev. Stat. §13-1805(c): “A
merchant, or a merchant’s agent or employee, with reasonable cause, may
detain on the premises in a reasonable manner and for a reasonable time any
person suspected of shoplifting [] for questioning or summoning a law
enforcement officer.”
4. Crowded world. In Wallace v. Rosen, 765 N.E.2d 192 (Ind. App.
2002), the plaintiff, Mable Wallace, was delivering homework to her
daughter at a public high school in Indianapolis. Wallace and her daughter
were standing on the second floor landing of a stairwell when the school
initiated a fire drill. An alarm sounded. One of the school’s teachers, Rosen,
led her class to the stairway where Wallace was standing. Rosen told
Wallace to “move it” because a fire drill was in progress. Wallace’s
testimony was that Rosen put her fingers on Wallace’s shoulders and turned
her 90 degrees toward the open stairs. At that point Wallace slipped and fell
down the stairs (she was recovering from foot surgery, and so was less
stable than usual) and sustained various injuries. She sued Rosen and the
school system. The trial court refused to instruct the jury that it could find
the defendants liable for battery if Wallace’s testimony was believed. The
case proceeded on other counts, and the jury brought in a verdict for the
defendants. The plaintiff appealed, claiming the trial court was mistaken in
refusing to instruct the jury on battery. The court of appeals affirmed:
Professors Prosser and Keeton [] made the following observations

about the intentional tort of battery and the character of the
defendant’s action:
“[I]n a crowded world, a certain amount of personal contact is
inevitable and must be accepted. Absent expression to the contrary,
consent is assumed to all those ordinary contacts which are
customary and reasonably necessary to the common intercourse of
life, such as a tap on the shoulder to attract attention, a friendly grasp
of the arm, or a casual jostling to make a passage. . . .
“The time and place, and the circumstances under which the act is
done, will necessarily affect its unpermitted character, and so will the
relations between the parties. A stranger is not to be expected to
tolerate liberties which would be allowed by an intimate friend. But
unless the defendant has special reason to believe that more or less
will be permitted by the individual plaintiff, the test is what would be
offensive to an ordinary person not unduly sensitive as to personal
dignity.”
Prosser and Keeton on Torts §9. . . . The conditions on the
stairway of Northwest High School during the fire drill were an
example of Professors Prosser and Keeton’s “crowded world.”
Individuals standing in the middle of a stairway during the fire drill
could expect that a certain amount of personal contact would be
inevitable. Rosen had a responsibility to her students to keep them
moving in an orderly fashion down the stairs and out the door. Under
these circumstances, Rosen’s touching of Wallace’s shoulder or back
with her fingertips to get her attention over the noise of the alarm
cannot be said to be a rude, insolent, or angry touching.
What is the distinction between Wallace v. Rosen and Morgan v.

Loyacomo? What is the distinction between Wallace and White v. University
of Idaho (the L case of the piano teacher’s unwelcome demonstration of
technique)?
3. Consent and Its Limits
A second and more complex question concerning battery, to which we now

will devote more time, involves whether and when a plaintiff’s consent to
such contact may free the defendant from liability. Sometimes a defendant
will offer a plaintiff’s consent as an affirmative defense, or a “privilege,” to
a battery claim; in other cases the consent may simply render an otherwise
offensive contact inoffensive, negating an essential aspect of the plaintiff’s
case. We discuss consent in this section rather than in Chapter 2 on
privileges because it is closely connected to the question of whether a
touching is harmful or offensive in the first place.
Mohr v. Williams
104 N.W. 818 (Minn. 1906)
BROWN, J. — Defendant is a physician and surgeon of standing and

character, making disorders of the ear a specialty, and having an extensive
practice in the city of St. Paul. He was consulted by plaintiff, who
complained to him of trouble with her right ear, and, at her request, made an
examination of that organ for the purpose of ascertaining its condition. He
also at the same time examined her left ear, but, owing to foreign substances
therein, was unable to make a full and complete diagnosis at that time. The
examination of her right ear disclosed a large perforation in the lower
portion of the drum membrane, and a large polyp in the middle ear, which
indicated that some of the small bones of the middle ear (ossicles) were
probably diseased. He informed plaintiff of the result of his examination,
and advised an operation for the purpose of removing the polyp and
diseased ossicles. After consultation with her family physician, and one or
two further consultations with defendant, plaintiff decided to submit to the
proposed operation. She was not informed that her left ear was in any way
diseased, and understood that the necessity for an operation applied to her
right ear only. She repaired to the hospital, and was placed under the
influence of anaesthetics; and, after being made unconscious, defendant
made a thorough examination of her left ear, and found it in a more serious
condition than her right one. A small perforation was discovered high up in
the drum membrane, hooded, and with granulated edges, and the bone of
the inner wall of the middle ear was diseased and dead. He called this
discovery to the attention of Dr. Davis — plaintiff’s family physician, who
attended the operation at her request — who also examined the ear, and
confirmed defendant in his diagnosis. Defendant also further examined the
right ear, and found its condition less serious than expected, and finally
concluded that the left, instead of the right, should be operated upon;
devoting to the right ear other treatment. He then performed the operation
of ossiculectomy on plaintiff’s left ear; removing a portion of the drum
membrane, and scraping away the diseased portion of the inner wall of the
ear. The operation was in every way successful and skillfully performed. It
is claimed by plaintiff that the operation greatly impaired her hearing,
seriously injured her person, and, not having been consented to by her, was
wrongful and unlawful, constituting an assault and battery; and she brought
this action to recover damages therefor. The trial in the court below resulted
in a verdict for plaintiff for $14,322.50. Defendant thereafter moved the
court for judgment notwithstanding the verdict, on the ground that, on the
evidence presented, plaintiff was not entitled to recover, or, if that relief was
denied, for a new trial on the ground, among others, that the verdict was
excessive; appearing to have been given under the influence of passion and
prejudice. The trial court denied the motion for judgment, but granted a new
trial on the ground, as stated in the order, that the damages were excessive.
Defendant appealed from the order denying the motion for judgment, and
plaintiff appealed from the order granting a new trial. . . .
We shall consider first the question whether, under the circumstances
shown in the record, the consent of plaintiff to the operation was necessary.
If, under the particular facts of this case, such consent was unnecessary, no
recovery can be had, for the evidence fairly shows that the operation
complained of was skillfully performed and of a generally beneficial nature.
But if the consent of plaintiff was necessary, then the further questions
presented become important. This particular question is new in this state. At
least, no case has been called to our attention wherein it has been discussed
or decided, and very few cases are cited from other courts. We have given it
very deliberate consideration, and are unable to concur with counsel for
defendant in their contention that the consent of plaintiff was unnecessary.
The evidence tends to show that, upon the first examination of plaintiff,
defendant pronounced the left ear in good condition, and that, at the time
plaintiff repaired to the hospital to submit to the operation on her right ear,
she was under the impression that no difficulty existed as to the left. In fact,
she testified that she had not previously experienced any trouble with that
organ. It cannot be doubted that ordinarily the patient must be consulted,
and his consent given, before a physician may operate upon him. It was said
in the case of Pratt v. Davis, 37 Chicago Leg. News, 213, referred to and
commented on in Cent. Law J. 452: “Under a free government, at least, the
free citizen’s first and greatest right, which underlies all others — the right
to the inviolability of his person; in other words, the right to himself — is
the subject of universal acquiescence, and this right necessarily forbids a
physician or surgeon, however skillful or eminent, who has been asked to
examine, diagnose, advise, and prescribe (which are at least necessary first
steps in treatment and care), to violate, without permission, the bodily
integrity of his patient by a major or capital operation, placing him under an
anaesthetic for that purpose, and operating upon him without his consent or
knowledge.” 1 Kinkead on Torts, §375, states the general rule on this
subject as follows: “The patient must be the final arbiter as to whether he
will take his chances with the operation, or take his chances of living
without it. Such is the natural right of the individual, which the law
recognizes as a legal one. Consent, therefore, of an individual, must be
either expressly or impliedly given before a surgeon may have the right to
operate.” There is logic in the principle thus stated, for, in all other trades,
professions, or occupations, contracts are entered into by the mutual
agreement of the interested parties, and are required to be performed in
accordance with their letter and spirit. No reason occurs to us why the same
rule should not apply between physician and patient. If the physician
advises his patient to submit to a particular operation, and the patient
weighs the dangers and risks incident to its performance, and finally
consents, he thereby, in effect, enters into a contract authorizing his
physician to operate to the extent of the consent given, but no further. It is
not, however, contended by defendant that under ordinary circumstances
consent is unnecessary, but that, under the particular circumstances of this
case, consent was implied; that it was an emergency case, such as to
authorize the operation without express consent or permission. The medical
profession has made signal progress in solving the problems of health and
disease, and they may justly point with pride to the advancements made in
supplementing nature and correcting deformities, and relieving pain and
suffering. The physician impliedly contracts that he possesses, and will
exercise in the treatment of patients, skill and learning, and that he will
exercise reasonable care and exert his best judgment to bring about
favorable results. The methods of treatment are committed almost
exclusively to his judgment, but we are aware of no rule or principle of law
which would extend to him free license respecting surgical operations.
Reasonable latitude must, however, be allowed the physician in a particular
case; and we would not lay down any rule which would unreasonably
interfere with the exercise of his discretion, or prevent him from taking such
measures as his judgment dictated for the welfare of the patient in a case of
emergency. If a person should be injured to the extent of rendering him
unconscious, and his injuries were of such a nature as to require prompt
surgical attention, a physician called to attend him would be justified in
applying such medical or surgical treatment as might reasonably be
necessary for the preservation of his life or limb, and consent on the part of
the injured person would be implied. And again, if, in the course of an
operation to which the patient consented, the physician should discover
conditions not anticipated before the operation was commenced, and which,
if not removed, would endanger the life or health of the patient, he would,
though no express consent was obtained or given, be justified in extending
the operation to remove and overcome them. But such is not the case at bar.
The diseased condition of plaintiff’s left ear was not discovered in the
course of an operation on the right, which was authorized, but upon an
independent examination of that organ, made after the authorized operation
was found unnecessary. Nor is the evidence such as to justify the court in
holding, as a matter of law, that it was such an affection as would result
immediately in the serious injury of plaintiff, or such an emergency as to
justify proceeding without her consent. She had experienced no particular
difficulty with that ear, and the questions as to when its diseased condition
would become alarming or fatal, and whether there was an immediate
necessity for an operation, were, under the evidence, questions of fact for
the jury.
[Affirmed.]
NOTES
1. Ghost surgery. In Grabowski v. Quigley, 684 A.2d 610 (Pa. Super.

1996), the plaintiff, Grabowski, injured his back when he slipped and fell
on a patch of ice. He sought treatment from defendant Quigley. As a result
of their consultation Grabowski agreed that he would undergo surgery and
that Quigley would perform it. Some days later Grabowski was put under
anesthesia and the surgery was performed. Afterwards Grabowski
encountered problems with his left foot; it dragged when he walked.
Quigley recommended more surgery. Grabowski decided to seek a second
opinion and requested copies of his medical records. Upon inspecting them
he discovered that his first surgery largely had been performed not by
Quigley, who had been in the next county during most of the operation, but
by a colleague of Quigley’s named Bailes. Quigley later wrote a letter about
the incident to one of his superiors describing what happened when he
received a telephone call informing him that Grabowski was ready for
surgery:
[Y]ou can imagine my chagrin when [approximately one hour after

anesthesia had been introduced] I received a phone call that my first
case was on the table already asleep. At this point we faced two
options, one of reawakening [Grabowski] and informing him of the
mishap or having another physician starting the case and allowing
time to return and finish it. We elected to do the latter.
Grabowski’s suit alleged that Quigley and Bailes were liable for battery
because the surgery was not performed by the doctor to whom Grabowski
gave his consent — a phenomenon known as “ghost surgery.” The trial
court gave summary judgment to the defendants. The court of appeals
reversed:
Over thirty years ago our Supreme Court stated that “where a patient
is mentally and physically able to consult about his condition, in the
absence of an emergency, the consent of the patient is ‘a prerequisite
to a surgical operation by his physician’ and an operation without the
patient’s consent is a technical assault.” Smith v. Yohe, 194 A.2d 167
(Pa. 1963). . . . Since Appellant has alleged facts which, if true,
established that consent was not given to Bailes and/or Quigley to
perform the surgery in the manner in which it occurred, he has
thereby alleged sufficient facts to establish a cause of action for
battery against them.
What were Grabowski’s damages? Compare this item from the

Restatement (Second) of Torts:
§52. CONSENT: TO WHOM GIVEN
Comment b. It should be noted that there will be many cases, as

where a patient goes to a hospital and is assigned a particular doctor,
but is dealing with and relying upon the hospital rather than the
individual, in which the consent given to one may reasonably be
interpreted to include the acts of another, or of assistants or
subordinates.
2. Objective norms. In Brzoska v. Olson, 668 A.2d 1355 (Del. 1995),
Raymond Owens, a dentist in Wilmington, tested positive in early 1989 for
the Human Immunodeficiency Virus (HIV). By the summer of 1990 Owens
had AIDS, and he soon exhibited open lesions, weakness, and memory loss.
In February of 1991 Owens discontinued his dental practice and was
hospitalized. He died a month later. A group of his patients who had not
known that Owens was so afflicted brought suit against Owens’s estate
alleging liability for battery and other torts. None of the patients tested
positive for HIV, but they sought damages for mental anguish and
reimbursement of payments they made to Owens for dental treatment. The
trial court gave summary judgment to the defendant. The Delaware
Supreme Court affirmed. The court found, first, that Owens had not
committed an offensive touching of any of the plaintiffs:
The offensive character of a contact in a battery case is assessed by a

“reasonableness” standard. In a “fear of AIDS” case in which battery
is alleged, therefore, we examine the overall reasonableness of the
plaintiffs’ fear in contracting the disease to determine whether the
contact or touching was offensive. Since HIV causes AIDS, any
assessment of the fear of contracting AIDS must, ipso facto, relate to
the exposure to HIV. Moreover, because HIV is transmitted only
through fluid-to-fluid contact or exposure, the reasonableness of a
plaintiff’s fear of AIDS should be measured by whether or not there
was a channel of infection or actual exposure of the plaintiff to the
virus. . . .
[T]he record fails to establish actual exposure to HIV. Plaintiffs
argue to the contrary, noting that Dr. Owens exhibited lesions on his
arms, legs, and elbow, and that he was known to have cut himself on
at least one occasion while working on a patient. They have not,
however, averred that the wound or lesions of Dr. Owens ever came
into contact with the person of any of the plaintiffs, nor have they
identified which patient was present during Dr. Owens’ injury or even
whether that patient was a plaintiff in this action. In fact, nothing in
this record suggests any bleeding from Dr. Owens or that any wound
or lesions ever came into contact with a break in the skin or mucous
membrane of any of the plaintiffs. Plaintiffs have failed to
demonstrate any evidence of actual exposure to potential HIV
transmission beyond mere unsupported supposition. . . .
Were we to authorize recovery for battery for this type of
subjective, offensive touching, we would permit a common law civil
tort to form the basis for recovery in an area which requires the
application of medical standards and probabilities. We would thus
substitute the most fragile sensibilities of the patient for the objective
norms which govern the rendering of medical/dental care in the
community.
The plaintiffs further alleged that Owens had misrepresented his health
to many of them, denying that he had AIDS when he was asked; they
alleged that they would not have consented to the dental procedures he
performed if they had known that he had AIDS. The court rejected this
theory of battery as well:
In our view, the tort of battery is properly limited in the

medical/dental setting to those circumstances in which a health care
provider performs a procedure to which the patient has not consented.
In other words, “a battery consists of a touching of a substantially
different nature and character than that which the patient consented.”
K.A.C. v. Benson, 527 N.W.2d 553 (Minn. 1995). A physician may
be held liable for battery when he or she obtains the consent of the
patient to perform one procedure and the physician instead performs
a substantially different procedure for which consent was not
obtained. A patient’s consent is not vitiated, however, when the
patient is touched in exactly the way he or she consented. . . .
Is Brzoska v. Olson consistent with Grabowski v. Quigley (the L case

where the plaintiff’s surgery was performed by a doctor he did not expect)?
How might the cases be distinguished?
3. Idiosyncratic objections. In Cohen v. Smith, 648 N.E.2d 329 (Ill.
App. 1995), the plaintiff was admitted to a hospital to deliver her baby. It
was determined that she would need to deliver by caesarian section. She
informed her doctor, who in turn informed the hospital, that her religious
beliefs forbade her to be seen unclothed by a man other than her husband.
The plaintiff’s complaint alleged that during the ensuing procedure a male
nurse employed by the hospital nevertheless saw and touched her while her
clothes were off. She sued the nurse and the hospital for battery and
intentional infliction of emotional distress. The trial court dismissed her
complaint; the court of appeals reversed:
Although most people in modern society have come to accept the

necessity of being seen unclothed and being touched by members of
the opposite sex during medical treatment, the plaintiffs had not
accepted these procedures and, according to their complaint, had
informed defendants of their convictions. This case is similar to cases
involving Jehovah’s Witnesses who were unwilling to accept blood
transfusions because of religious convictions. Although most people
do not share the Jehovah’s Witnesses’ beliefs about blood
transfusions, our society, and our courts, accept their right to have
that belief. Similarly, the courts have consistently recognized
individuals’ rights to refuse medical treatment even if such a refusal
would result in an increased likelihood of the individual’s death. . . .
Accepting as true the plaintiffs’ allegations that they informed
defendants of their religious beliefs and that defendants persisted in
treating Patricia Cohen as they would have treated a patient without
those beliefs, we conclude that the trial court erred in dismissing both
the battery and the intentional infliction of emotional distress counts.
What is the distinction between Cohen v. Smith and Brzoska v. Olson

(the NL case of the dentist who had AIDS)?
4. Implied consent. In Werth v. Taylor, 475 N.W.2d 426 (Mich. App.
1991), the plaintiff, Cindy Werth, was a Jehovah’s Witness. Her faith
regarded it as a sin to receive a blood transfusion. Werth began to
experience considerable bleeding from her uterus after giving birth to twins
at the defendant hospital. Her doctor, Parsons, recommended dilation of her
cervix and curettage of the uterine lining (a “D & C” procedure). Werth
soon was placed under general anesthesia. The bleeding continued along
with a rise in Werth’s blood pressure and other alarming symptoms, causing
Parsons to conclude that without a blood transfusion Werth would die. One
of the other doctors present, Taylor, ordered the transfusion. Parsons
informed Taylor that Werth was a Jehovah’s witness; Taylor replied, “that
may be, but she needs the blood.”
Werth recovered fully from the procedure; she then sued Parsons,
Taylor, and the hospital for battery. Her evidence was that when she had
preregistered at the hospital she had filled out a form titled “Refusal to
Permit Blood Transfusion.” After the delivery of the twins, Parsons had
talked with Werth and her husband about their view regarding transfusions.
Werth recalled the conversation as follows:
[Parsons] said, “I understand that you’re one of Jehovah’s Witnesses
and that you won’t take blood,” and Don and I both said, “That’s
correct.” And she said, “You mean to tell me if your wife’s dying on
the table that you’re not going to give her blood?” And we said —
Don said, “That’s — well, I don’t want her to have blood, but I don’t
want her to die. We want the alternative treatment.”
Werth’s husband recalled the two of them telling Parsons that Werth did
not want a transfusion under any circumstances, though he also said that he
was not focused on the possibility of her death at that time because he was
not under the impression that her life was at risk.
The trial court gave summary judgment to the defendants. The court of
appeals affirmed:
[T]he law implies the consent of an unconscious patient to medical

procedures needed to preserve the patient’s life. If a physician treats
or operates on a patient without consent, he has committed an assault
and battery and may be required to respond in damages. Consent may
be expressed or implied. It has been held that consent is implied
where an emergency procedure is required and there is no opportunity
to obtain actual consent or where the patient seeks treatment or
otherwise manifests a willingness to submit to a particular treatment.
It is undisputed that Cindy was unconscious when the critical
decision regarding the blood transfusion to avoid her death was being
made. Her prior refusals had not been made when her life was
hanging in the balance or when it appeared that death might be a
possibility if a transfusion were not given. Clearly, her refusals were,
therefore, not contemporaneous or informed. Thus, a record could not
be developed regarding Cindy’s refusal which would leave open an
issue upon which reasonable minds could differ.
What could Werth’s damages have been? What is the distinction

between Werth v. Taylor and Cohen v. Smith? Between Werth v. Taylor and
Grabowski v. Quigley (the L case of “ghost surgery”)? Between Werth v.
Taylor and Mohr v. Williams?
Was there anything Werth could have done to prevent the transfusion?
Did the court mean to suggest that Werth’s acts suggested actual consent to
a transfusion if her life was at stake? Or was the court prepared to infer
consent in these circumstances for reasons apart from Werth’s actual
wishes? The former variety of consent is known as consent implied in fact;
the latter is known as consent implied in law.
5. Consent and its consequences. From the Restatement (Second) of
Torts:
§892. MEANING OF CONSENT
(1) Consent is willingness in fact for conduct to occur. It may be

manifested by action or inaction and need not be communicated to the
actor.
(2) If words or conduct are reasonably understood by another to be
intended as consent, they constitute apparent consent and are as
effective as consent in fact.
Comment c. Apparent consent. Even when the person concerned
does not in fact agree to the conduct of the other, his words or acts or
even his inaction may manifest a consent that will justify the other in
acting in reliance upon them. This is true when the words or acts or
silence and inaction, would be understood by a reasonable person as
intended to indicate consent and they are in fact so understood by the
other. . . .
Illustration 4. In the course of a quarrel, A threatens to punch B in
the nose. B says nothing but stands his ground. A punches B in the
nose. A is not justified upon the basis of apparent consent.
§892A. EFFECT OF CONSENT
Illustration 5. In a friendly test of strength, A permits B to punch

him in the chest as hard as he can. B does so. Unknown to either A or
B, A has a defective heart and as a result of the blow he drops dead.
A’s consent is effective to bar recovery for his death.
Illustration 6. The same facts as in Illustration 5 except that,
without any intent or negligence on the part of B, A is knocked over
against his valuable vase, which is shattered. The same result.
Illustration 9. A consents to a fight with B. Unknown to A, B uses
a set of brass knuckles. B hits A in the nose, inflicting exactly the
same harm as if he had used his fist. A’s consent is not effective to bar
his recovery.
6. Frontiers of liability (problem). In Neal v. Neal, 873 P.2d 871 (Idaho

1994), the plaintiff, Mary Neal, discovered that her husband, Thomas, was
having an affair with a woman named LaGasse. In addition to filing for
divorce she sued her husband for battery. Her theory was that she would not
have had sexual intercourse with her husband during the time the affair was
occurring if she had known about it; thus the consent she granted to her
husband was fraudulently induced and her sexual relations with him
amounted to a battery. What result?
7. Fraud and mistake. From the Restatement (Second) of Torts:
§892B. CONSENT UNDER MISTAKE,

MISREPRESENTATION, OR DURESS
Illustration 6. A consents to a friendly boxing match with B. B

knows that A is unaware of the fact that A has a defective heart. B
punches A in the chest and A suffers a heart attack. B is subject to
liability to A for battery.
Illustration 8. A permits B to stain A’s face with walnut juice, for
purposes of masquerade. A is ignorant of the fact that walnut juice
leaves a permanent stain and B knows that A does not know it. B is
subject to liability to A for battery.
§57. FRAUD OR MISTAKE AS TO COLLATERAL MATTER
Illustration 1. A, to induce B to submit to intimate familiarities,

offers her a paper which A represents to be a twenty dollar bill but
which he knows to be counterfeit. B, believing the paper to be a
genuine bill, submits. A is not liable to B for battery.
Illustration 2. The same facts as in Illustration 1, except that the
paper is offered if B will submit to a blood transfusion. A is subject to
liability to B for the harm done by the operation to which A has
fraudulently induced him to submit.
Are these illustrations consistent with each other? Are they consistent
with the cases we have considered?
8. Consent to illegal acts. In Hart v. Geysel, 294 P. 570 (Wash. 1930),
two men, Cartwright and Geysel, engaged in an illegal prize fight in Seattle.
Cartwright died from injuries he received in the fight, and the administrator
of his estate sued Geysel for damages. Geysel defended on the ground that
Cartwright had consented to the fight. The trial court dismissed the
complaint, and the Washington Supreme Court affirmed:
[I]n our opinion one who engages in prize fighting, even though
prohibited by positive law, and sustains an injury, should not have a
right to recover any damages that he may sustain as the result of the
combat, which he expressly consented to and engaged in as a matter
of business or sport. To enforce the criminal statute against prize
fighting, it is not necessary to reward the one that got the worst of the
encounter at the expense of his more fortunate opponent.
The majority cited this discussion from the American Law Institute:
[O]ne who has sufficiently expressed his willingness to suffer a

particular invasion has no right to complaint if another acts upon his
consent so given. The very nature of rights of personality, which are
in freedom to dispose of one’s interests of personality as one pleases,
fundamentally requires this to be so. There is a further principle,
applicable not only in tort law but throughout the whole field of law,
and perhaps more conspicuously in other subjects, to the effect that
no man shall profit by his own wrongdoing. . . .
Clearly if a plaintiff has consented to being struck by another in
the course of a brawl, his right to the control of his person and to
determine by whom and how it shall be touched has not been
invaded. And it is equally clear that if he has so expressed his consent
to the blow that, were he not party to a breach of the peace, his assent
would be an operative consent and so bar his liability, he is profiting
by the illegality of his conduct if because he is party to the breach of
the peace he gains a right of action which but for his criminal joinder
therein he would not have had.
9. Road rage. In McNeil v. Mullin, 79 P. 168 (Kan. 1905), the plaintiff

and the defendant, both driving horse-drawn buggies, exchanged various
hostile words. Each dismounted and removed his hat and coat. A fight
ensued. The plaintiff sued the defendant to recover for injuries he suffered
in the brawl. The defendant responded that the plaintiff should be barred
from recovery by his consent to the fight. The trial court entered judgment
on a verdict for the defendant. The Kansas Supreme Court reversed and
remanded for a new trial. It held that in view of the parties’ consent, neither
party could claim to have acted in self-defense; but nor was the plaintiff’s
consent to fight a good defense against his claim against the defendant for
battery:
There is some natural repugnancy to allowing damages to be

recovered by a bullying blackguard who has courted a fight and has
been soundly thrashed, but the law can indulge in no sentiment
regarding the matter. It can concede no legal effect to his vicious
purpose. His consent to fight must be treated as utterly void, and each
party must be left to suffer all consequences, civil and criminal, of his
reprehensible conduct.
The court cited this passage from Cooley on Torts in support of its holding:
Consent is generally a full and perfect shield, when that is

complained of as a civil injury which was consented to. A man
cannot complain of a nuisance, the erection of which he concurred in
or countenanced. He is not injured by a negligence which is partly
chargeable to his own fault. A man may not even complain of the
adultery of his wife, which he connived at or assented to. If he
concurs in the dishonor of his bed, the law will not give him redress,
because he is not wronged. These cases are plain enough, because
they are cases in which the questions arise between the parties alone.
But in case of a breach of the peace it is different. The state is
wronged by this, and forbids it on public grounds. If men fight, the
state will punish them. If one is injured, the law will not listen to an
excuse based on a breach of the law. There are three parties here; one
being the state, which, for its own good, does not suffer the others to
deal on a basis of contract with the public peace. The rule of law is
therefore clear and unquestionable that consent to an assault is no
justification.
Does the opinion in McNeil imply that professional boxers generally
should be able to sue each other for injuries they inflict on one another?
How might that case be distinguished from McNeil?
10. Dueling and deterrence. The second of the two cases just presented
— McNeil — represents the rule followed by courts in the majority of
jurisdictions: consent to an unlawful act is no defense to a claim of battery.
Either participant in mutual combat can collect damages from the other.
Distinguish this situation from that of self-defense, where A attacks B and
B fights back. There is no consent involved in such a case. As we will see
when we consider defenses to intentional tort claims, B’s battery against A
may then be privileged by a plea of self-defense so long as it was not an
excessive response to A’s initial attack. The problem of consent considered
in Hart and McNeil, by contrast, arises when two parties agree to fight —
with the result sometimes referred to as a “mutual affray,” akin to a duel.
Which rule — the majority or the minority (represented by Hart, in
which neither party can collect damages) — seems more likely to
discourage fights? Consider whether the legal rule is likely to have any
effect on the behavior of the average person deciding whether to fight; but
consider, too, whether the response of the average person is the important
question from the standpoint of public policy. Note that for the law to have
such consequences, it need not influence the behavior of the average
person. It need only affect the behavior of some people (those “at the
margin,” as economists say). And some potential combatants may be more
likely than others to know the legal rule or to have it transmitted to them
indirectly (in which of the two cases just considered is this more likely?). In
any event, it is valuable to begin thinking carefully about the possible ways
that legal rules could influence behavior — about the “ex ante” effects of
rules. In this case it may help to break the problem down by thinking it
through one character at a time. Start with the winner of a fight. Which rule
would he prefer: the majority’s or the minority’s? How might the behavior
of someone who expected to be a winner be affected by the majority rule?
Then ask the same questions about the loser and his behavior. Whom is it
more important to deter: winners or losers? Before fights begin, of course,
the participants may not know who will be the winner. What does the
typical participant in a fight probably expect?
11. Consent to crime. From the Restatement (Second) of Torts:
§892C. CONSENT TO CRIME
(1) Except as stated in Subsection (2), consent is effective to bar

recovery in a tort action although the conduct consented to is a crime.
(2) If conduct is made criminal in order to protect a certain class
of persons irrespective of their consent, the consent of members of
that class to the conduct is not effective to bar a tort action.
Illustration 3. A and B agree to fight a duel with pistols. A fires at
B and his bullet strikes and breaks B’s arm. A is not liable to B.
Illustration 7. A statute makes it rape to have sexual intercourse
with a girl under the age of sixteen even with her consent. At the
solicitation of A, a girl of fourteen, B has intercourse with her. A’s
consent does not bar her action for battery.
Illustration 10. A statute makes adultery a crime. A, a married
woman, commits adultery with B. Neither is liable to the other for the
contacts inseparable from their crime.
12. Arm wrestling. In Hollerud v. Malamis, 174 N.W.2d 626 (Mich.

App. 1969), the plaintiff, Hollerud, concluded an evening of drinking with
several rounds of alcoholic beverages at the defendant’s establishment, the
Rainbow bar. Hollerud engaged there in what he called an “Indian
wrestling” match with the bartender, in the course of which he sustained
injuries to his fingers that caused him lasting difficulties in his work as a
bricklayer. The trial court gave summary judgment to the defendants; the
court of appeals reversed:
The trial judge concluded that Edward Hollerud willingly and

knowingly participated in a friendly Indian wrestling match.
Although in the ordinary case a plaintiff’s consent to an assault and
battery is a defense precluding a civil action, if the plaintiff, owing to
his state of intoxication, was incapable of expressing a rational will
and the defendant had knowledge of this state, the consent was
ineffective.
The separate count for assault and battery alleged that Edward
Hollerud was in a drunken condition when he entered the Rainbow
Bar and that the bartender knew or should have known that he was
intoxicated and that Hollerud did not freely and voluntarily enter into
the Indian wrestling contest. Hollerud should have been allowed to
prove the effect of this alleged intoxication on his mental faculties
and the trier of fact should have been allowed to determine whether
he was capable of consenting to engage in an Indian wrestling
contest.
Suppose the bartender had been intoxicated, too. Would this have
provided him with a defense against Hollerud’s claim of battery? Which of
the cases considered so far would be most helpful in answering that
question? If the answer is “no,” why might a court be more inclined to treat
intoxication as undercutting Hollerud’s consent than to treat it as
undercutting the bartender’s intent?
13. A demonstration of karate (problem). In Miller v. Couvillion, 676
So. 2d 668 (La. App. 1996), the plaintiff, Ray Miller, was a sales clerk at an
establishment known as Chuck’s Ace Hardware. Miller was injured while
attempting to assist the store’s manager; Rick Savage, in performing an
informal demonstration of karate in the warehouse section of the store. The
men placed a cinder block pad on a forklift; Miller climbed onto the forklift
and braced the pad by standing on it. Savage tried twice to break the pad
with a karate chop, but was unsuccessful. An announcement then came over
the public address system requesting customer assistance elsewhere in the
store. As Miller began to climb down from the forklift, Savage took one last
kick at the cinder block pad; the contact caused Miller to fall and injure his
arm. Miller sued his employer, his insurer, and Savage, claiming that his
injury was the result of an intentional tort — a battery by Savage — for
which Chuck’s was vicariously responsible.
Did Miller have a good claim for battery? Support your conclusion with
arguments from any of the cases considered in this chapter; consider, too,
how variations on these facts would lead to different legal conclusions.
B. TRESPASS
Trespass to land traditionally is known to the common law by the more

formal name of trespass quare clausum fregit (“wherefore he broke the
close”; in other words, the writ called upon the defendant to explain
whether and why he entered the plaintiff’s property), or “qcf” for short. It is
distinct from trespass de bonis asportatis (“of goods carried away,”
referring to interference with, or damage inflicted upon, chattels, i.e.,
personal property). Trespass to land is distinct as well from the tort of
nuisance, though the two types of claim occasionally overlap. Whereas
trespass protects the right to exclusive possession of the land, nuisance law
protects the right to its use and enjoyment and tends to be reserved for less
tangible and direct interferences. A stranger running across your property
without authorization commits a trespass but not a nuisance; a neighbor
who plays unreasonably loud music may be liable for causing a nuisance
but not a trespass. The law of nuisance is covered in a later chapter.
Desnick v. American Broadcasting Companies, Inc.

44 F.3d 1345 (7th Cir. 1995)
[The Desnick Eye Center and two of its surgeons sued ABC, the
producer of the ABC program Prime Time Live, and reporter Sam
Donaldson for trespass and other torts. ABC’s producer had dispatched
employees equipped with concealed cameras to offices of the Desnick Eye
Center in Wisconsin and Indiana. Posing as patients, these persons — seven
in all — requested eye examinations, and employees of the Desnick Eye
Center were secretly videotaped examining them. ABC used the videotapes
on an episode of Prime Time Live that was highly critical of Dr. Desnick
and his ophthalmic clinics. Desnick sued ABC, claiming among other
things that the defendants committed a trespass in insinuating the test
patients into the Wisconsin and Indiana offices of the Desnick Eye Center;
he claimed that he would not have consented to their presence if their true
identities and motives had been known. The district court dismissed the
trespass counts in the complaint, and the plaintiffs appealed.]
Posner, Chief Judge — [After stating the facts:] To enter upon another’s
land without consent is a trespass. The force of this rule has, it is true, been
diluted somewhat by concepts of privilege and of implied consent. But
there is no journalists’ privilege to trespass. And there can be no implied
consent in any nonfictitious sense of the term when express consent is
procured by a misrepresentation or a misleading omission. The Desnick Eye
Center would not have agreed to the entry of the test patients into its offices
had it known they wanted eye examinations only in order to gather material
for a television expose of the Center and that they were going to make
secret videotapes of the examinations. Yet some cases, illustrated by Martin
v. Fidelity & Casualty Co., 421 So. 2d 109, 111 (Ala. 1982), deem consent
effective even though it was procured by fraud.
There must be something to this surprising result. Without it a restaurant
critic could not conceal his identity when he ordered a meal, or a browser
pretend to be interested in merchandise that he could not afford to buy.
Dinner guests would be trespassers if they were false friends who never
would have been invited had the host known their true character, and a
consumer who in an effort to bargain down an automobile dealer falsely
claimed to be able to buy the same car elsewhere at a lower price would be
a trespasser in the dealer’s showroom. Some of these might be classified as
privileged trespasses, designed to promote competition. Others might be
thought justified by some kind of implied consent — the restaurant critic
for example might point by way of analogy to the use of the “fair use”
defense by book reviewers charged with copyright infringement and argue
that the restaurant industry as a whole would be injured if restaurants could
exclude critics. But most such efforts at rationalization would be little better
than evasions. The fact is that consent to an entry is often given legal effect
even though the entrant has intentions that if known to the owner of the
property would cause him for perfectly understandable and generally ethical
or at least lawful reasons to revoke his consent.
The law’s willingness to give effect to consent procured by fraud is not
limited to the tort of trespass. The Restatement gives the example of a man
who obtains consent to sexual intercourse by promising a woman $100, yet
(unbeknownst to her, of course) he pays her with a counterfeit bill and
intended to do so from the start. The man is not guilty of battery, even
though unconsented-to sexual intercourse is a battery. Restatement (Second)
of Torts sec. 892B, illustration 9, pp. 373-74 (1979). Yet we know that to
conceal the fact that one has a venereal disease transforms “consensual”
intercourse into battery. Crowell v. Crowell, 180 N.C. 516 (1920).
Seduction, standardly effected by false promises of love, is not rape;
intercourse under the pretense of rendering medical or psychiatric treatment
is, at least in most states. It certainly is battery. Trespass presents close
parallels. If a homeowner opens his door to a purported meter reader who is
in fact nothing of the sort — just a busybody curious about the interior of
the home — the homeowner’s consent to his entry is not a defense to a suit
for trespass. Bouillon v. Laclede Gaslight Co., 148 Mo. App. 462 (1910).
And likewise if a competitor gained entry to a business firm’s premises
posing as a customer but in fact hoping to steal the firm’s trade secrets.
Rockwell Graphic Systems, Inc. v. DEV Industries, Inc., 925 F.2d 174, 178
(7th Cir. 1991).
How to distinguish the two classes of case — the seducer from the
medical impersonator, the restaurant critic from the meter-reader
impersonator? The answer can have nothing to do with fraud; there is fraud
in all the cases. It has to do with the interest that the torts in question,
battery and trespass, protect. The one protects the inviolability of the
person, the other the inviolability of the person’s property. The woman who
is seduced wants to have sex with her seducer, and the restaurant owner
wants to have customers. The woman who is victimized by the medical
impersonator has no desire to have sex with her doctor; she wants medical
treatment. And the homeowner victimized by the phony meter reader does
not want strangers in his house unless they have authorized service
functions. The dealer’s objection to the customer who claims falsely to have
a lower price from a competing dealer is not to the physical presence of the
customer, but to the fraud that he is trying to perpetuate. The lines are not
bright — they are not even inevitable. They are the traces of the old forms
of action, which have resulted in a multitude of artificial distinctions in
modern law. But that is nothing new.
There was no invasion in the present case of any of the specific interests
that the tort of trespass seeks to protect. The test patients entered offices that
were open to anyone expressing a desire for ophthalmic services and
videotaped physicians engaged in professional, not personal,
communications with strangers (the testers themselves). The activities of
the offices were not disrupted, as in People v. Segal, 358 N.Y.S.2d 866
(Crim. Ct. 1974), another case of gaining entry by false pretenses. Nor was
there any “inva[sion of] a person’s private space,” Haynes v. Alfred A.
Knopf, Inc., 8 F.3d at 1229, as in our hypothetical meter-reader case, as in
the famous case of De May v. Roberts, 46 Mich. 160 (1881) (where a
doctor, called to the plaintiff’s home to deliver her baby, brought along with
him a friend who was curious to see a birth but was not a medical doctor,
and represented the friend to be his medical assistant), as in one of its
numerous modern counterparts, Miller v. National Broadcasting Co., 232
Cal. Rptr. 668, 679 (1986), and as in Dietemann v. Time, Inc., 449 F.2d 245
(9th Cir. 1971), on which the plaintiffs in our case rely. Dietemann involved
a home. True, the portion invaded was an office, where the plaintiff
performed quack healing of nonexistent ailments. The parallel to this case is
plain enough, but there is a difference. Dietemann was not in business, and
did not advertise his services or charge for them. His quackery was private.
No embarrassingly intimate details of anybody’s life were publicized in
the present case. There was no eavesdropping on a private conversation; the
testers recorded their own conversations with the Desnick Eye Center’s
physicians. There was no violation of the doctor-patient privilege. There
was no theft, or intent to steal, trade secrets; no disruption of decorum, of
peace and quiet; no noisy or distracting demonstrations. . . . “Testers” who
pose as prospective home buyers in order to gather evidence of housing
discrimination are not trespassers even if they are private persons not acting
under color of law. The situation of the defendants’ “testers” is analogous.
Like testers seeking evidence of violation of anti-discrimination laws, the
defendants’ test patients gained entry into the plaintiffs’ premises by
misrepresenting their purposes (more precisely by a misleading omission to
disclose those purposes). But the entry was not invasive in the sense of
infringing the kind of interest of the plaintiffs that the law of trespass
protects; it was not an interference with the ownership or possession of
land. We need not consider what if any difference it would make if the
plaintiffs had festooned the premises with signs forbidding the entry of
testers or other snoops. Perhaps none, see United States v. Centennial
Builders, Inc., 747 F.2d 678, 683 (11th Cir. 1984), but that is an issue for
another day.
[The court affirmed dismissal of the trespass counts of the complaint,
and remanded for further proceedings on other issues.]
NOTES
1. Battery and trespass. The Desnick opinion illustrates the parallels

between trespass and battery; notice that the court is comfortable wandering
back and forth between the two torts as it discusses the significance of
fraudulently induced consent. One reason for the parallels, as noted in the
introduction to this book, is that during much of the history of the common
law, the tort of trespass covered a broad gamut of wrongs now known by
other names, including both battery and trespass to land (as well as assault,
false imprisonment, and other harms inflicted more or less directly). To
which case in the section on battery is Desnick most analogous? Can
Desnick be distinguished (need it be distinguished?) from Neal v. Neal, the
case where the plaintiff said that her husband’s extramarital affair vitiated
her consent to sexual relations with him?
2. Conditional consent. From the Restatement (Second) of Torts (1965):
§168. CONDITIONAL OR RESTRICTED CONSENT
A conditional or restricted consent to enter land creates a

privilege to do so only in so far as the condition or restriction is
complied with.
Illustration 1. A, the owner of Blackacre, licenses B to drive his
cow through Blackacre to B’s pasture, lot X. B enters Blackacre to
draw gravel from lot X, or to go to lot Y. In either case B’s entry is a
trespass.
Illustration 4. The A Gas Company, having mistakenly concluded
that B has not paid his bill for gas, sends its servant, C, to B’s house
to remove the meter. C is given permission to enter to read the meter.
He removes the meter. The A Company is subject to liability for a
trespass.
Illustration 6. A grants to B, a contractor, a license to store his
trucks in A’s barn. B not only stores his trucks in A’s barn, but also
makes extensive repairs on such trucks while they are in the barn.
While using an acetylene torch in repairing a truck, B sets fire to and
burns down the barn. B is a trespasser.
Are these illustrations consistent with Desnick v. American Broadcasting

Companies?
3. Trespass generally. From the Restatement (Second) of Torts:
§158. LIABILITY FOR INTENTIONAL INTRUSIONS ON LAND
One is subject to liability to another for trespass, irrespective of

whether he thereby causes harm to any legally protected interest of
the other, if he intentionally
(a) enters land in the possession of the other, or causes a thing or
a third person to do so, or
(b) remains on the land, or
(c) fails to remove from the land a thing which he is under a
duty to remove.
Illustration 1. A, against B’s will, forcibly carries B upon the land
of C. A is a trespasser; B is not.
Illustration 2. A tornado lifts A’s properly constructed house from
A’s land and deposits it on B’s land. This is not a trespass.
Comment i. Causing entry of a thing. The actor, without himself
entering the land, may invade another’s interest in its exclusive
possession by throwing, propelling, or placing a thing either on or
beneath the surface of the land or in the air space above it. Thus, in
the absence of the possessor’s consent or other privilege to do so, it is
an actionable trespass to throw rubbish on another’s land, even
though he himself uses it as a dump heap, or to fire projectiles or to
fly an advertising kite or balloon through the air above it, even
though no harm is done to the land or to the possessor’s enjoyment of
it.
4. Tally-ho! In Pegg v. Gray, 82 S.E.2d 757 (N.C. 1954), the plaintiff

owned a farm that included a herd of about 70 cattle kept in areas
partitioned with barbed wire. The defendant, who lived on an adjoining
farm, kept a team of hounds he used to hunt foxes. During the hunting
season the defendant would loose the dogs and they often would chase
foxes onto the plaintiff’s property; the foxes would run in and through the
plaintiffs’ herds, sometimes inciting the cattle to stampede and break down
the fences that enclosed them. The plaintiff sued the defendant for trespass.
The trial court nonsuited the plaintiff; the North Carolina Supreme Court
reversed:
[B]y natural instinct and habit an ordinary dog of most breeds is

inclined to roam around and stray at times from its immediate habitat
without causing injury or doing damage to persons or property. . . .
And so, since early times the law has been and still is that the owner
of a reputable dog is not answerable in damages for its entry upon the
lands of another upon its own volition under circumstances
amounting to an unprovoked trespass.
However, the rule is different where a dog owner or keeper for the
purpose of sport intentionally sends a dog on the lands of another or
releases a dog or pack of dogs with knowledge, actual or
constructive, that it or they likely will go on the lands of another or
others in pursuit of game. In such cases the true rule would seem to
be that the owner or keeper, in the absence of permission to hunt
previously obtained, is liable for trespass, and this is so although the
master does not himself go upon the lands, but instead sends or so
allows his dog or dogs to go thereon in pursuit of game. . . .
It may be conceded that since Samson, according to the folk tale
of biblical lore, tied the firebrands to the tails of 300 foxes and sent
them into the grain fields of the Philistines (Judges 15:4, 5) the fox
has been looked upon by many persons as a noxious animal, to be
exterminated. Nevertheless, to countless thousands of devotees of the
chase the death of a fox, unless it be in front of hounds, is regarded as
a social crime. We embrace the view [that] fox hunting as ordinarily
pursued — certainly as shown by the record in this case — is pure
sport to be followed in subordination to established property rights
and subject to the principles governing the law of trespass.
5. Fore! In Malouf v. Dallas Athletic Country Club, 837 S.W.2d 674

(Tex. App. 1992), the plaintiffs lived next to the defendant’s golf course in
the town of Mesquite. The plaintiffs’ evidence was that their automobiles
were damaged on three separate occasions when balls struck by golfers on
the sixth hole went astray. They brought suit against the defendant for
trespass. The defendant won judgment after a bench trial. The court of
appeals affirmed:
[T]he record reflects neither legal nor factual evidence that either [the
defendant] or the individual golfers intended to commit an act which
violated a property right. During a game of golf, on the [defendant’s]
course, the individual golfers intend to hit golf balls toward hole
number six. This does not violate a property right. The fact that the
ball may “slice” or “hook” onto appellants’ properties is an
unintended consequence. . . . Because appellants failed to
demonstrate that [the defendant country club] or the individual
golfers intentionally caused the golf balls to damage appellants’
personal property, we cannot say that the trial court’s conclusion of
law that the [club] did not trespass is erroneous.
What is the distinction between Pegg v. Gray (L for defendant whose
dogs strayed onto plaintiff’s property) and Malouf v. Dallas Athletic
Country Club (NL for defendant whose golfers hit stray balls onto
plaintiff’s property)? In view of the procedural posture of the two cases,
how should their facts be stylized (in other words, what assumptions about
the facts should be made) if Malouf is to be viewed as a case of no liability
and Pegg described as a case of liability?
6. Trespass vs. negligence. It might seem odd that a golfer’s errant shot
could break a car’s windshield without resulting in liability. But the holding
just considered from Malouf does not necessarily imply that the plaintiffs
can collect nothing; it just establishes that they were not the victims of a
trespass. The plaintiffs here also would be free to press claims that the
country club or the golfers were negligent, a different theory of liability. In
fact the plaintiffs in Malouf did claim that the club had negligently designed
its golf course — but this claim failed as well. The plaintiffs brought no
claims against the individual golfers, apparently because they could not be
identified. Why else might the plaintiffs be more interested in prevailing
against the club?
7. Trespass vs. battery. What is the relationship between the standard for
judging intent used in the Pegg and Malouf cases and the meaning of intent
in the law of battery — e.g., in cases like Vosburg v. Putney or White v.
University of Idaho? Consider these excerpts from the Second Restatement:
§164. INTRUSIONS UNDER MISTAKE
One who intentionally enters land in the possession of another is

subject to liability to the possessor of the land as a trespasser,
although he acts under a mistaken belief of law or fact, however
reasonable, not induced by the conduct of the possessor, that he
(a) is in possession of the land or entitled to it, or
(b) has the consent of the possessor or of a third person who has
the power to give consent on the possessor’s behalf, or
(c) has some other privilege to enter or remain on the land.
Illustration 3. A employs a surveyor of recognized ability to make
a survey of his land. The survey shows that a particular strip of land
is within his boundaries. In consequence, A clears this land of timber
and prepares it for cultivation. In fact, the survey is mistaken and the
strip in question is part of the tract owned by his neighbor, B. A is
subject to liability to B.
§166. NON-LIABILITY FOR ACCIDENTAL INTRUSIONS
Except where the actor is engaged in an abnormally dangerous

activity, an unintentional and non-negligent entry on land in the
possession of another, or causing a thing or third person to enter the
land, does not subject the actor to liability to the possessor, even
though the entry causes harm to the possessor or to a thing or third
person in whose security the possessor has a legally protected
interest.
Illustration 1. A is walking along the sidewalk of a public
highway close to the border of B’s land. Without fault on his part, A
slips on a piece of ice, and falls against and breaks a plate glass
window in B’s store adjoining the sidewalk. A is not liable to B.
Illustration 4. A is carefully driving his well-broken horses on a
highway. Frightened by a locomotive, they become unmanageable
and run away, striking and damaging an iron lamp post on B’s land. A
is not liable to B.
Are these Restatement provisions consistent? Are they consistent with

the cases just considered?
8. A dog’s breakfast. In Van Alstyne v. Rochester Telephone Corp., 296
N.Y.S. 726 (City Ct. 1937), the plaintiff was the owner of a pair of valuable
hunting dogs, Nancy and Pooch. The defendant telephone company
maintained a cable that ran over the area of the plaintiff’s lot where the dogs
were kept. In May of 1936 the defendant’s agents, present on the plaintiff’s
land by permit or easement, performed work on the cable. They removed
the cable’s insulation, which was made of lead. After performing their
operations they used molten lead to seal the cable again. Nancy died of lead
poisoning in June; Pooch died from the same cause another month later.
The plaintiff inspected his property and found lead that appeared to have
dripped when the defendant’s men were sealing the cable. His theory, which
the court accepted, was that the dogs died when they ate similar drops left
behind by the defendant’s agents.
The plaintiff sued the defendant on theories of both negligence and
trespass. The court dismissed the negligence claim on the ground that the
possibility of harm to the dogs — the chance that the dogs would eat the
lead, and that it would prove fatal — was unforeseeable to the defendant’s
workers. The court nevertheless gave judgment to the plaintiff, finding that
the workers trespassed when they left the lead drippings behind and that
they therefore were responsible for the consequences regardless of fault:
True, the defendant had an easement for the maintenance of its line,
and presumably this expressly conferred the right of access to the
plaintiff’s land for purposes of repairs or extensions. But it is not to
be presumed, nor is it shown, that the defendant had an express right
to cast unnecessarily, or to leave in any event, articles or substances
upon the premises. Lacking such an express right, the law gives him
none.
Such an invasion of the premises of another renders the invader
liable whether it be intentional or not, or whether the loss resulting to
the owner be direct or consequential. He is liable regardless of the
existence or nonexistence of negligence. . . . It does not matter that
the plaintiff here seeks recovery, not for direct damage to his soil or
to vegetation or structures, but for consequential damages. Recovery
does not depend upon directness of the damage. The test is whether
there was a direct invasion. Given that, responsibility follows. . . .
It follows that the defendant, by depositing lead on the plaintiff’s
premises, became an intruder, and is liable for the consequences
regardless of whether the results could or should reasonably have
been foreseen, or whether the acts constituted negligence. . . .
It requires no finespun reasoning to hold one responsible for a
wrong done another who is without fault. But in a practical world,
there must be practical limits. The law says a man in an ordinary
situation should not, although in the wrong, be held for consequences
which a reasonably attentive and careful man would not foresee. That
rule found expression, and it endures, because it accords with the
opinion of the average man.
It is a rule of action in the world at large. The immunity which it
grants does not accompany the actor when he intrudes upon the
property of another. There the owner is supreme. His house is his
castle, and his estate his exclusive domain. There, not all the rules
which govern in the world at large apply. No intrusion is so trifling as
to be overlooked, and no result of the intrusion is to be without
remedy because it was unusual or unexpected.
Is there a satisfactory distinction between Van Alstyne v. Rochester

Telephone Corp. and Malouf v. Dallas Athletic Club? Is Van Alstyne
consistent with the Restatement provisions (§164 and §166) that preceded
it? With Desnick v. American Broadcasting Companies?
9. Tort and property. Some of the hardest and most interesting questions
in the law of trespass involve the definition of the rights that accompany
ownership of land. These are issues that receive fuller treatment in courses
on property law, but they are important to an understanding of the trespass
tort as well — an overlap that illustrates the theoretical link between the law
of torts and the law of property more generally. One way to look at these
topics is to think of property law, broadly understood, as involving the
acquisition of rights. Tort law determines when invasions of those rights
occur and how they are rectified; contract law governs how the rights are
exchanged. If this model is not intuitive, it may be because while most tort
cases involve personal injuries, courses on property law do not generally
spend much time on the notion that one has a “property right” in one’s own
physical person. And meanwhile courses on tort law tend to focus more on
the evaluation of the defendant’s conduct than on the definition of the
plaintiff’s rights. But trespass cases expose the relationship between torts
and property law in a more obvious way. The branch of tort law known as
trespass protects property rights in a literal, conventional sense: it protects
an owner’s interest in exclusive possession of land. Property law determines
what the content of those rights are; tort law determines when they have
been violated. The two inquiries merge in the following cases, where the
question of whether anyone’s rights have been invaded in a way that can
support a tort suit depends on what we mean when we speak of ownership
of land.
10. Caves. In Edwards v. Lee, 19 S.W.2d 992 (Ky. App. 1929); 24
S.W.2d 619 (Ky. App. 1930), the defendant, L. P. Edwards, discovered the
entrance to a cave on his property. He named it the Great Onyx Cave, built
a hotel near its mouth, widened the footpaths within it, advertised its
existence, and attracted a stream of visitors who paid entrance fees and
generated substantial revenue. A number of years later one of Edwards’s
neighbors, F. P. Lee, sued Edwards for trespass, alleging that substantial
portions of the cave extended under his land. The trial court ordered a
survey, determined that about one-third of the cave was owned by Lee,
awarded damages to him, and enjoined Edwards from further trespassing on
Lee’s property. The court of appeals affirmed:
Cujus est solum, ejus est usque ad coelum ad infernos (to

whomsoever the soil belongs, he owns also to the sky and to the
depths), is an old maxim and rule. It is that the owner of realty, unless
there has been a division of the estate, is entitled to the free and
unfettered control of his own land above, upon, and beneath the
surface. So whatever is in a direct line between the surface of the land
and the center of the earth belongs to the owner of the surface.
Ordinarily that ownership cannot be interfered with or infringed by
third persons. . . .
Logan, J., issued a memorable dissent:
The rule should be that he who owns the surface is the owner of
everything that may be taken from the earth and used for his profit or
happiness. . . . A cave or cavern should belong absolutely to him who
owns its entrance, and this ownership should extend even to its
utmost reaches if he has explored and connected these reaches with
the entrance. . . .
Shall a man be allowed to stop airplanes flying above his land
because he owns the surface? He cannot subject the atmosphere
through which they fly to his profit or pleasure; therefore, so long as
airplanes do not injure him, or interfere with the use of his property,
he should be helpless to prevent their flying above his dominion.
Should the waves that transmit intelligible sound through the
atmosphere be allowed to pass over the lands of surface-owners? If
they take nothing from him and in no way interfere with his profit or
pleasure, he should be powerless to prevent their passage. . . .
In the light of these unannounced principles which ought to be the
law in this modern age, let us give thought to the petitioner Edwards,
his rights and his predicament, if that is done to him which the circuit
judge has directed to be done. Edwards owns this cave through right
of discovery, exploration, development, advertising, exhibition, and
conquest. Men fought their way through the eternal darkness, into the
mysterious and abysmal depths of the bowels of a groaning world to
discover the theretofore unseen splendors of unknown natural scenic
wonders. . . . They created an underground kingdom where Gulliver’s
people may have lived or where Ayesha may have found the
revolving column of fire in which to bathe meant eternal youth. . . .
First came one to see, then another, then two together, then small
groups, then small crowds, then large crowds, and then the
multitudes. Edwards had seen his faith justified. . . .
Then came the horse leach’s daughters crying: “Give me,” “give
me.” Then came the “surface men” crying, “I think this cave may run
under my lands.” They do not know, they only “guess,” but they seek
to discover the secrets of Edwards so that they may harass him and
take from him that which he has made his own. They have come to a
court of equity and have asked that Edwards be forced to open his
doors and his ways to them so that they may go in and despoil him;
that they may lay his secrets bare so that others may follow their
example and dig into the wonders which Edwards has made his own.
What may be the result if they stop his ways? They destroy the cave,
because those who visit it are they who give it value, and none will
visit it when the ways are barred so that it may not be exhibited as a
whole.
11. Airspace. In Smith v. New England Aircraft Co., 170 N.E. 385
(Mass. 1930), the plaintiffs owned a country estate near Worcester known
as Lordvale; it consisted of about 270 acres. In 1927 the Worcester Airport
was opened on roughly 100 acres of land adjacent to the plaintiffs’ property.
Within a few years the defendants regularly were flying their airplanes
(biplanes and single-propeller models) over the plaintiffs’ property at
heights ranging from 100 to 1,000 feet. The plaintiffs brought suit for
trespass. The Supreme Judicial Court began its analysis by noting that
federal and state laws generally required airplanes to maintain altitudes of at
least 500 feet. The Court rejected the possibility of claims against the
defendants for flights above those thresholds, finding the federal statutes to
be legitimate uses of the government’s police power that impliedly
authorized air traffic on the terms they set out. But the Court found that the
occasional flights by the defendants at altitudes below 500 feet, as when
they performed takeoffs and landings, presented harder problems:
The bald question in the case at bar is whether aircraft, in order to

reach or leave an airport, may of right fly so low as 100 feet over
brush and woodland not otherwise utilized, against the protest of the
owner. Suggestions as to flight of carrier pigeons and the practice of
falconry over private lands seem to us too remote and distinct from
the mechanical flights of high powered aircraft to be helpful in
ascertainment of rights in the case at bar. There are numerous cases
holding that invasion of the airspace above the land without contact
with its surface constitutes trespass. In discussing this subject it is
said in Pollock on Torts (13th Ed.) p. 362: “It does not seem possible
on the principles of the common law to assign any reason why an
entry above the surface should not also be a trespass, unless indeed it
can be said that the scope of possible trespass is limited by that of
possible effective possession, which might be the most reasonable
rule.” Even if this suggestion of extreme limit be adopted as the test,
namely, that “the scope of possible trespass is limited by that of
possible effective possession,” the plaintiffs seem entitled to assert
that there have been trespasses upon their land. It is general
knowledge that, while not extremely common in this vicinity, trees
not infrequently reach heights in growth considerably in excess of
100 feet. In other parts of the country there are trees of much greater
height. It is found by the master that the plaintiffs have undertaken to
reforest a part of their estate by planting Norway pine and spruce. It
is well known that buildings in many cities exceed 100 feet in height.
Not infrequently they reach 300 feet or even more. . . . It would be
impracticable to draw a feasible distinction as matter of right between
the aircraft used by the defendants and aircraft of larger size, heavier
weight and more powerful motors, and between the number and
extent of use of the aircraft here involved and the much larger number
and more extensive use incident to growth of air navigation.
The combination of all these factors seems to us, under settled
principles of law, after making every reasonable legal concession to
air navigation as commonly understood and as established under the
statutes and regulations here disclosed, to constitute trespass to the
land of the plaintiffs so far as concerns the take-offs and landings at
low altitudes and flights thus made over the land of the plaintiffs “at
altitudes as low as one hundred feet.” Air navigation, important as it
is, cannot rightly levy toll upon the legal rights of others for its
successful prosecution. No reason has been suggested why airports of
sufficient area may not be provided so that take-offs and landings of
aircraft may be made without trespass upon the land of others. If, in
the interest of aerial navigation, rights of flight at such low altitude
over lands of others are of sufficient public importance, doubtless the
power of eminent domain for acquisition of rights of way in airspaces
might be authorized.
Is Smith v. New England Aircraft Co. consistent with Edwards v. Lee? If

they are not consistent, is the inconsistency justifiable?
C. CONVERSION
The torts of conversion and trespass to chattels both involve interference

with the personal property of another. The differences between them largely
are matters of degree that can be traced back to the common law forms of
action from which they descended. As noted earlier, the writ of trespass de
bonis asportatis was available in cases where the defendant simply took the
plaintiff’s goods; and if a defendant was entrusted with the goods but then
refused to return them, the plaintiff could seek a writ of detinue. These
forms of action often were made unattractive, however, by the limitations,
procedures, and remedies attached to them, so a new but related form of
action later was made available as well: the action for trover, in which the
plaintiff technically (and usually fictitiously) alleged that the defendant had
found his goods and either damaged or failed to return them. The trover
action evolved into the tort we now know as conversion, which generally
entitles a plaintiff to collect damages where the defendant has interfered
with the plaintiff’s personal property to such an extent that the defendant is
required to pay its full value — a kind of forced judicial sale of the property
from the plaintiff to the defendant.
Conversion will be the primary focus of this section because it now
largely supersedes the tort of trespass to chattels, but the latter action
remains useful in cases where the defendant commits a minor act of
interference with the plaintiff’s property rights; later we shall see an
example. The elements of the two torts, and the overlap between them, are
sketched in these provisions from the Restatement (Second) of Torts (1965):
§217. WAYS OF COMMITTING TRESPASS TO CHATTEL
A trespass to a chattel may be committed by intentionally

(a) dispossessing another of the chattel, or
(b) using or intermeddling with a chattel in the possession of
another.
§218. LIABILITY TO PERSON IN POSSESSION
One who commits a trespass to a chattel is subject to liability to

the possessor of the chattel if, but only if,
(a) he dispossesses the other of the chattel, or
(b) the chattel is impaired as to its condition, quality, or value, or
(c) the possessor is deprived of the use of the chattel for a
substantial time, or
(d) bodily harm is caused to the possessor, or harm is caused to
some person or thing in which the possessor has a legally protected
interest.
Illustration 3. A leaves his car parked in front of a store. B
releases the brake on A’s car and pushes it three or four feet, doing no
harm to the car. B is not liable to A.
Illustration 4. A leaves his car parked near the corner. B, desiring
to play a joke upon A, pushes the car around the corner where it
cannot be easily seen by A. A comes out for his car, and fails to
discover it for an hour. B is subject to liability for trespass to A.
§222A. WHAT CONSTITUTES CONVERSION
(1) Conversion is an intentional exercise of dominion or control

over a chattel which so seriously interferes with the right of another
to control it that the actor may justly be required to pay the other the
full value of the chattel.
(2) In determining the seriousness of the interference and the
justice of requiring the actor to pay the full value, the following
factors are important:
(a) the extent and duration of the actor’s exercise of dominion or
control;
(b) the actor’s intent to assert a right in fact inconsistent with the
other’s right of control;
(c) the actor’s good faith;
(d) the extent and duration of the resulting interference with the
other’s right of control;
(e) the harm done to the chattel;
(f) the inconvenience and expense caused to the other.
Illustration 1. On leaving a restaurant, A by mistake takes B’s hat
from the rack, believing it to be his own. When he reaches the
sidewalk A puts on the hat, discovers his mistake, and immediately
re-enters the restaurant and returns the hat to the rack. This is not a
conversion.
Illustration 2. The same facts as in Illustration 1, except that A
keeps the hat for three months before discovering his mistake and
returning it. This is a conversion.
Illustration 3. The same facts as in Illustration 1, except that as A
reaches the sidewalk and puts on the hat a sudden gust of wind blows
it from his head, and it goes down an open manhole and is lost. This
is a conversion.
Illustration 4. Leaving a restaurant, A takes B’s hat from the rack,
intending to steal it. As he approaches the door he sees a policeman
outside, and immediately returns the hat to the rack. This is a
conversion.
§226. CONVERSION BY DESTRUCTION OR ALTERATION
One who intentionally destroys a chattel or so materially alters its

physical condition as to change its identity or character is subject to
liability for conversion to another who is in possession of the chattel
or entitled to its immediate possession.
Illustration 4. A intentionally feeds poisonous weeds to B’s horse.
The horse is made ill for a few hours, but promptly recovers. This is a
trespass to the horse, but not a conversion. If, however, the horse is
made ill for a month, there is both a trespass and a conversion.
Illustration 5. A intentionally slashes the tire of B’s automobile,
ruining the tire. This is a conversion of the tire, but under ordinary
circumstances in which the tire is easily replaced it is not a
conversion of the automobile. If, however, the automobile is in a
desert where another tire cannot be obtained for a month, there is a
conversion of the automobile.
It will be useful to note here another distinction between forms of

action. In a conversion action the plaintiff seeks damages, not the return of
the property. A plaintiff who instead wants the property returned brings a
suit for replevin. In addition to allowing the plaintiff to “replevy” the
property, this action also enables the recovery of damages for the loss of a
chattel’s use while the defendant wrongfully exercised dominion over it.
Since the underlying elements of a conversion and replevin action typically
are the same, we will not be considering them separately; in practice they
function as different remedies for the same conduct. In the cases that follow
we will see plaintiffs using both routes.
The core case of conversion is simple to understand: the defendant stole
the plaintiff’s goods; the plaintiff is entitled to recover damages. But
conversion also covers a variety of more interesting situations where the
defendant has exerted control over property that falls short of theft but is
inconsistent with the plaintiff’s rights of ownership, as the following cases
illustrate.
1. The last laugh. In Russell-Vaughn Ford, Inc. v. Rouse, 206 So. 2d
371 (Ala. 1968), the plaintiff, E. W. Rouse, paid a series of visits to the
defendant’s car dealership to discuss the possibility of trading in his Ford
Falcon and some amount of cash for a new Ford. During his third visit one
of the salesmen, Virgil Harris, asked Rouse for the keys to his Falcon.
Rouse handed them over, then went to look at new cars the dealership had
on display. The parties were not able to agree on terms of a trade. At this
point Rouse asked for the return of the keys to his car. The salesman said he
didn’t know where the keys were. Rouse asked the manager and several
other employees for his keys. They, too, said they were unable to help;
several salesmen and mechanics sat on nearby cars and watched Rouse,
laughing at him. Rouse called the Birmingham police. Upon the arrival of
one of its officers, the defendant’s salesman tossed the keys to Rouse,
saying they had “just wanted to see him cry a while.”
Rouse sued the defendant for conversion of his Falcon. The jury
brought in a general verdict in Rouse’s favor for $5,000. The Alabama
Supreme Court affirmed:
Initially it is argued that the facts of this case do not make out a case
of conversion. . . . We are not persuaded that the law of Alabama
supports this proposition. . . . A remarkable admission in this regard
was elicited by the plaintiff in examining one of the witnesses for the
defense. It seems that according to a salesman for Russell-Vaughn
Ford, Inc., it is a rather usual practice in the automobile business to
“lose keys” to cars belonging to potential customers. We see nothing
in our cases which requires in a conversion case that the plaintiff
prove that the defendant appropriated the property to his own use;
rather, as noted in the cases referred to above, it is enough that he
show that the defendant exercised dominion over it in exclusion or
defiance of the right of the plaintiff. We think that has been done
here.
Further, appellants argue that there was no conversion since the
plaintiff could have called his wife at home, who had another set of
keys and thereby gained the ability to move his automobile. We find
nothing in our cases which would require the plaintiff to exhaust all
possible means of gaining possession of a chattel which is withheld
from him by the defendant, after demanding its return. On the
contrary, it is the refusal, without legal excuse, to deliver a chattel,
which constitutes a conversion.
2. Exceeding the scope of permission. In Palmer v. Mayo, 68 A. 369

(Conn. 1907), the plaintiff, Frank Palmer, operated a livery business in New
Haven. His evidence was that the defendant Mayo rented a horse and
carriage for the stated purpose of driving to East Haven on business. While
on the way there Mayo stopped at the house of a friend, one Scott. Mayo
gave permission to Scott to use the carriage to drive Scott’s father-in-law,
Cook, to Cook’s home a few blocks away. Cook and Scott drove off in the
carriage and crashed it into a trolley pole, by which collision the carriage
was destroyed and the horse killed. Palmer brought a suit for conversion
against Mayo and Cook. Palmer’s evidence was that Cook and Scott had
taken the carriage to a series of saloons in West Haven and become drunk.
Cook’s evidence was that he was not drunk, that he was not driving the
carriage (Scott was), and that when he borrowed the carriage he thought it
belonged to Mayo. A jury brought in a verdict against both defendants.
Cook appealed, claiming the jury had been misinstructed. The Connecticut
The defendant Cook in substance requested the court to charge the

jury that he would not be liable to the plaintiff for the injury to the
horse and carriage, (1) if he had no knowledge of the particular
purpose for which they were hired, but supposed from Mayo’s
representations that they belonged to him; nor (2) if he had no control
or management of the horse and carriage, but was merely riding with
Scott; nor (3) if the collision with the telegraph or trolley pole and car
was an “inevitable accident,” caused by the horse becoming
frightened and uncontrollable from the noise of a passing train, and
without any negligence upon the part of this defendant. The charge
was favorable to said defendant upon the first and second of these
requests, excepting as the court very properly charged that Cook
would be liable in any event if it was proved that he negligently drove
the horse and carriage into a telegraph or trolley pole, as alleged in
the complaint, and so caused the injury. As to the third request the
court instructed the jury in substance that, if Mayo loaned the horse
and carriage to Cook, and he knew the purpose for which they had
been hired by Mayo, he would be liable even if the collision with the
telegraph or trolley pole and car was accidental and without any
negligence on the part of this defendant.
The third request was rightly refused, nor should a new trial be
granted upon the instruction given by the court upon the subject of
that request. A bailee is liable in an action of tort for an injury to
property bailed occurring during a use of it by him, or by others with
his consent, which was neither expressly nor impliedly authorized by
the contract of bailment, even though such injury was the result of
accident, and not of negligence in the manner in which the property
was used. Whether one who receives property from a bailee, without
knowledge of the purpose for which it is to be used under the contract
of bailment, is liable for an injury to it arising from a use not
authorized by such contract, without proof of negligence, we have no
occasion to decide, since the trial court charged in the defendant
Cook’s favor upon that question.
What should be the answer to the final question the court describes but
leaves unanswered? At what point had Mayo irrevocably committed an act
of conversion? At what point had Cook done so? To which case in the
section on trespass is Palmer v. Mayo most analogous?
3. Mistaken dominion. In Spooner v. Manchester, 133 Mass. 270 (Mass.
1882), the defendant hired a horse and carriage from the defendant to drive
from Worcester to Clinton and back. On his return trip the defendant
inadvertently took a wrong turn and ended up on the road to Northborough,
a town east of both Clinton and Worcester. After discovering his error he
sought advice and was told that the best route to Worcester from his current
position was to detour through Northborough. He proceeded accordingly;
but while traveling through Northborough the horse became lame. The
plaintiff sued the defendant for conversion of the horse. The case was tried
without a jury. The judge found that the injury to the horse was not caused
by any negligence on the defendant’s part; nor was the defendant negligent
in becoming lost. The trial court nevertheless gave judgment to the plaintiff.
The Supreme Judicial Court of Massachusetts reversed:
If a person wrongfully exercises acts of ownership or of dominion

over property under a mistaken view of his rights, the tort,
notwithstanding his mistake, may still be a conversion, because he
has both claimed and exercised over it the rights of an owner; but
whether an act involving the temporary use, control or detention of
property implies an assertion of a right of dominion over it, may well
depend upon the circumstances of the case and the intention of the
person dealing with the property.
In the case at bar, the use made of the horse by the defendant was
not of a different kind from that contemplated by the contract
between the parties, but the horse was driven by the defendant, on his
return to Worcester, a longer distance than was contemplated, and on
a different road. If it be said that the defendant intended to drive the
horse where in fact he did drive him, yet he did not intend to violate
his contract or to exercise any control over the horse inconsistent with
it. There is no evidence that the defendant was not at all times
intending to return the horse to the plaintiff, according to his contract,
or that whatever he did was not done for that purpose, or that he ever
intended to assume any control or dominion over the horse against
the rights of the owner. After he discovered that he had taken the
wrong road, he did what seemed best to him in order to return to
Worcester. Such acts cannot be considered a conversion.
What is the distinction between Spooner v. Manchester and Palmer v.

Mayo?
4. Acts of imposters (problem). In Wiseman v. Schaffer, 768 P.2d 800
(Idaho 1989), the defendant, Schaffer, was the proprietor of a tow-truck
business. He received a telephone request from one Larry Wiseman asking
him to tow a pickup truck from the Husky Truck Stop in Port Falls to the
yard of a nearby welding shop. The caller said that the $30 needed to cover
the towing charge would be left on the sun visor inside the truck. Schaffer
located the truck and the money and towed the truck to the welding yard as
directed. The truck soon was stolen from that location. It later came out that
the caller who requested the tow had been an imposter; the real Larry
Wiseman had been inside the truck stop with his wife throughout the
sequence of events. Neither the truck nor the imposter ever was found.
Wiseman sued Schaffer for negligence and conversion. Schaffer
produced as witnesses two other tow-truck operators who said it was not
unusual for them to tow unattended vehicles on the basis of authorization
furnished over the phone. The jury found no negligence on the defendant’s
part, and the court of appeals affirmed on this point. What result on the
claim for conversion?
5. Customers of thieves. In O’Keeffe v. Snyder, 416 A.2d 862 (N.J.
1980), the plaintiff was the famous artist Georgia O’Keeffe. She alleged
that in 1946 a set of her paintings had been stolen from an art gallery run by
her husband, Alfred Stieglitz. She told friends of the theft but did not report
or record it. In 1975 she learned that the paintings were on display at the
Crispo Gallery in New York. A man named Snyder claimed to own the
paintings; he had bought them for $35,000 from one Ulrich Frank, who in
turn claimed to have inherited them from his father. It was impossible to
show how Frank’s father had come into possession of the paintings, but
evidently both Frank and Snyder were unaware that the artworks had
disreputable origins. O’Keeffe brought a replevin action against Snyder to
recover the paintings. The trial court gave summary judgment to Snyder.
The court of appeals reversed, holding that O’Keeffe’s evidence, if
accepted, would entitle her to recover the paintings; the New Jersey
Supreme Court agreed, subject to O’Keeffe’s satisfaction of the statute of
limitations. The Court held that “if the paintings were stolen, the thief
acquired no title and could not transfer good title to others regardless of
their good faith and ignorance of the theft.” (To satisfy the statute of
limitations, the court said that O’Keeffe would have to show that she
brought suit within six years of “when she first knew, or reasonably should
have known through the exercise of due diligence, of the cause of action,
including the identity of the possessor of the paintings.”)
The rule employed in O’Keeffe’s case has been stated more colorfully:
“title, like a stream, cannot rise higher than its source.” Jordan v. Kancel,
361 P.2d 894 (Kan. 1961). It also is the subject of a Latin maxim: Nemo dat
quod non habet (known sometimes as the “nemo dat” rule), which has been
variously translated as “he who hath not, cannot give,” or “one cannot give
what one does not have” — the application here being that a thief can
transfer no better title than he himself has, i.e., none.
6. Further acts of imposters. In Phelps v. McQuade, 115 N.E. 441 (N.Y.
1917), the plaintiffs were jewelers. They were approached by a man falsely
claiming to be one Baldwin J. Gwynne of Cleveland. The plaintiffs made
inquiries to a credit bureau and determined that Baldwin Gwynne had a
satisfactory rating; on this basis they delivered valuable jewelry to the man
impersonating him. The imposter then sold the jewelry to a man named
McQuade, who paid full value for it and had no notice of its illegitimate
origins. When the plaintiffs learned what had happened, they sued
McQuade to recover the jewels. The trial court gave judgment to the
plaintiffs, but the New York Court of Appeals held the defendants entitled
to a directed verdict. The question in the case was whether the man
impersonating Baldwin Gwynne received title to the jewelry from the
plaintiffs. If he did, then he was able to transfer the title to McQuade, and
since McQuade was a “bona fide purchaser for value” he would not be held
liable for conversion. The court found for the defendant, holding that
Gwynne had indeed received title from the plaintiffs (and thus had
conveyed it to McQuade). Said the court: “Where the vendor of personal
property intends to sell his goods to the person with whom he deals, then
title passes, even though he be deceived as to that person’s identity or
responsibility. Otherwise it does not. It is purely a question of the vendor’s
intention.”
What is the distinction between Phelps v. McQuade and O’Keeffe v.
Snyder? How can Phelps be considered consistent with the “nemo dat”
rule?
7. The innocent purchaser. Taken together the O’Keeffe and Phelps
cases illustrate an old difficulty in the law of conversion: the treatment of
the later purchaser who acquires goods from a fraud or a thief. The common
law has long distinguished between these last two categories. A thief
acquires no title to the property he steals (his title is said to be “void”), and
so can convey no title to a purchaser; nor can the purchaser pass on
anything better to anybody else. Thus someone who buys goods from a
thief, or who acquires the goods later in the chain of sale, is liable for
conversion to the original owner. This doctrine can produce harsh results; it
means that a good-faith purchaser who pays full value for goods can be
required to make a second and equal payment to their rightful owner (or to
hand over the goods despite having paid for them) if they turn out to have
been stolen at some earlier point in the line of ownership. O’Keeffe
illustrates the point, as well as a constraint on the original owner’s power to
reclaim the goods from their eventual innocent possessor: the statute of
limitations.
The result is different, however, if the victim originally lost his goods to
a fraud. In that case the fraud obtains “voidable” title — voidable, that is,
by the victim of the fraud once the misdeed is discovered. At that point the
victim can seek damages from the fraud or can try to rescind the
transaction. But until that voiding occurs the fraud does have title to the
goods and is capable of passing it on to an innocent purchaser. Such a buyer
is immune from a claim of conversion by the victim of the fraud. This was
the reason for the finding of no liability in Phelps. What is the sense of the
distinction the law draws between frauds and thieves?
Some of this territory now is governed by the Uniform Commercial
Code, §2-403 of which provides as follows:
(1) A purchaser of goods acquires all title which his transferor
had or had power to transfer except that a purchaser of a limited
interest acquires rights only to the extent of the interest purchased. A
person with voidable title has power to transfer a good title to a good
faith purchaser for value. When goods have been delivered under a
transaction of purchase the purchaser has such power even though:
(a) The transferor was deceived as to the identity of the
purchaser, or
(b) The delivery was in exchange for a check which is later
dishonored, or
(c) It was agreed that the transaction was to be a “cash sale,” or
(d) The delivery was procured through fraud punishable as
larcenous under the criminal law.
(2) Any entrusting of possession of goods to a merchant who
deals in goods of that kind gives him power to transfer all rights of
the entruster to a buyer in ordinary course of business.
(3) “Entrusting” includes any delivery and any acquiescence in
retention of possession regardless of any condition expressed
between the parties to the delivery or acquiescence and regardless of
whether the procurement of the entrusting or the possessor’s
disposition of the goods have been such as to be larcenous under the
criminal law. . . .
8. The retrieval of loot. In Kelley Kar Co. v. Maryland Casualty Co.,

298 P.2d 590 (Cal. App. 1956), a man named Holland robbed the Farmers
National Bank in Erick, Oklahoma. He then went to California and bought a
Mercury automobile from the Kelley Kar Company. He obtained it by
paying $1,000 in cash obtained from the robbery and also trading in a Buick
that he had bought elsewhere — again with proceeds from the robbery. The
bank’s insurance company, having compensated the bank for its losses, was
subrogated to the bank’s rights (i.e., it had the right to pursue any lawsuits
the bank could have brought); the insurer thus sued the car dealership to
collect the Buick and the stolen cash — “identifiable loot money” — that
the dealer had accepted from the thief. The trial court gave judgment to the
defendant. The court of appeals affirmed:
One who receives stolen money in good faith and for good
consideration will prevail over the unfortunate victim of the thief. . . .
Of course no title of a stolen chattel can pass from the thief. However,
the instant action does not involve a stolen chattel. The Buick
automobile taken by respondent in trade was not stolen by Holland. It
was purchased by him with stolen funds. Section 1744 of the Civil
Code provides: “Where the seller of goods has a voidable title
thereto, but his title has not been avoided at the time of the sale, the
buyer acquires a good title to the goods, provided he buys them in
good faith, for value, and without notice of the seller’s defect of
title.” It is common knowledge that not every business man can delve
into the problem of how or where or with what funds a chattel offered
him for purchase was acquired. So long as he buys in good faith and
exercises all the precautions as to title that the reasonable man would
exercise and so long as he is not put on notice by an unusually low
price, it must be deemed that the transaction was valid and in the
normal course of business. Only bad faith on the part of such
purchaser of a chattel purchased with stolen money can deprive him
of ownership of the chattel.
What is the distinction between Kelley Kar Co. v. Maryland Casualty

Co. and O’Keeffe v. Snyder?
9. Honor among thieves. In Anderson v. Gouldberg, 53 N.W. 636
(Minn. 1892), the defendants took logs from the property of one Sigfrid
Anderson. Anderson sued the defendants to replevy the logs. The
defendants argued that Anderson tortiously had acquired the logs in the first
place by trespassing on the land of a third party. The jury nevertheless
brought in a verdict for Anderson, and the trial court entered judgment upon
it; the Minnesota Supreme Court affirmed:
[T]he only question is whether bare possession of property, though

wrongfully obtained, is sufficient title to enable the party enjoying it
to maintain replevin against a mere stranger, who takes it from him.
We had supposed that this was settled in the affirmative as long ago,
at least, as the early case of Armory v. Delamirie, 1 Strange, 504, so
often cited on that point. When it is said that to maintain replevin the
plaintiff’s possession must have been lawful, it means merely that it
must have been lawful as against the person who deprived him of it;
and possession is good title against all the world except those having
a better title. Counsel says that possession only raises a presumption
of title, which, however, may be rebutted. Rightly understood, this is
correct; but counsel misapplies it. One who takes property from the
possession of another can only rebut this presumption by showing a
superior title in himself, or in some way connecting himself with one
who has. One who has acquired the possession of property, whether
by finding, bailment, or by mere tort, has a right to retain that
possession as against a mere wrongdoer who is a stranger to the
property. Any other rule would lead to an endless series of unlawful
seizures and reprisals in every case where property had once passed
out of the possession of the rightful owner.
The case of Armory v. Delamirie, which the court cites, is an English

decision from 1722. The plaintiff found a jewel in the course of his work as
a chimney sweep. He gave the jewel to one of his superiors, who then
declined to give it back; the plaintiff sued for its recovery. The court held
that the finder of the stone, while having no absolute right to it, nevertheless
had rights superior to all but its rightful owner. The case usually is
considered in detail in courses on property law. How does Anderson extend
Armory?
Suppose a sheriff seizes stolen property from a thief and the thief brings
a replevin action against the sheriff, noting — correctly, let us assume —
that the original owner of the property cannot be found. Such suits routinely
fail. Is this consistent with Anderson v. Gouldberg?
10. Frontiers of liability for conversion. In Moore v. Regents of the
University of California, 793 P.2d 479 (Cal. 1990), the plaintiff, Moore, was
diagnosed with hairy-cell leukemia. As part of the treatment for the disease
the defendant’s doctors removed his spleen. Without Moore’s knowledge
the doctors then performed research on cells obtained from the spleen and
determined that they had unique value; Moore’s white blood cells
overproduced certain proteins that help regulate the immune system. The
defendants developed his cells into a “cell line” capable of reproducing
indefinitely and obtained a patent on it. Some predictions within the
industry suggested that the ultimate market value of the line would be
approximately three billion dollars. The plaintiff brought a suit for
conversion, among other claims. The trial court dismissed the complaint.
The court of appeals reversed:
Defendants’ position that plaintiff cannot own his tissue, but that they
can, is fraught with irony. Apparently, defendants see nothing
abnormal in their exclusive control of plaintiff’s excised spleen, nor
in their patenting of a living organism derived therefrom. We cannot
reconcile defendant’s assertion of what appears to be their property
interest in removed tissue and the resulting cell-line with their
contention that the source of the material has no rights therein. . . .
Defendants contend that plaintiff has no property right in the
knowledge gained or the new things made in the course of the study
of his cells. This is an inaccurate characterization of this case. . . . The
complaint alleges that defendants exploited plaintiff’s cells, not just
the knowledge gained from them. Without these small indispensable
pieces of plaintiff, there could have been no three billion dollar cell-
line. . . .
Defendants argue that even if plaintiff’s spleen is personal
property, its surgical removal was an abandonment by him of a
diseased organ. They assert that he cannot, therefore, bring an action
for conversion. . . . The question whether the plaintiff abandoned his
spleen, or any of the other tissues taken by the defendants, is plainly a
question of fact as to what his intent was at the time. . . . In
California, absent evidence of a contrary intent or agreement, the
reasonable expectation of a patient regarding tissue removed in the
course of surgery would be that it may be examined by medical
personnel for treatment purposes, and then promptly and permanently
disposed of by interment or incineration in compliance with Health
and Safety Code section 7054.4. Simply consenting to surgery under
such circumstances hardly shows indifference to what may become of
a removed organ or who may assert possession of it. Any use to
which there was no consent, or which is not within the accepted
understanding of the patient, is a conversion. It cannot be seriously
asserted that a patient abandons a severed organ to the first person
who takes it, nor can it be presumed that the patient is indifferent to
whatever use might be made of it.
The California Supreme Court then reversed the court of appeals,

ordering the dismissal of Moore’s claims for conversion:
Of the relevant policy considerations, two are of overriding
importance. The first is protection of a competent patient’s right to
make autonomous medical decisions. . . . This policy weighs in favor
of providing a remedy to patients when physicians act with
undisclosed motives that may affect their professional judgment. The
second important policy consideration is that we not threaten with
disabling civil liability innocent parties who are engaged in socially
useful activities, such as researchers who have no reason to believe
that their use of a particular cell sample is, or may be, against a
donor’s wishes.
[A]n examination of the relevant policy considerations suggests
an appropriate balance: Liability based upon existing disclosure
obligations, rather than an unprecedented extension of the conversion
theory, protects patients’ rights of privacy and autonomy without
unnecessarily hindering research. . . . To be sure, the threat of liability
for conversion might help to enforce patients’ rights indirectly. This
is because physicians might be able to avoid liability by obtaining
patients’ consent, in the broadest possible terms, to any conceivable
subsequent research use of excised cells. Unfortunately, to extend the
conversion theory would utterly sacrifice the other goal of protecting
innocent parties. Since conversion is a strict liability tort, it would
impose liability on all those into whose hands the cells come, whether
or not the particular defendant participated in, or knew of, the
inadequate disclosures that violated the patient’s right to make an
informed decision. In contrast to the conversion theory, the fiduciary-
duty and informed-consent theories protect the patient directly,
without punishing innocent parties or creating disincentives to the
conduct of socially beneficial research.
The court concluded that Moore had stated a good cause of action for
breach of fiduciary duty and for the performance of medical procedures
without his informed consent — in both cases because the doctors failed to
disclose to him their financial interest in his organs.
11. Intangibles. In Kremen v. Cohen, 337 F.3d 1024 (9th Cir. 2003), a
man named Kremen registered the Internet domain name “sex.com” in 1994
through Network Solutions, the firm charged with assigning such
designations. Soon thereafter, a con artist named Cohen, recently released
from prison, sent a fraudulent letter to Network Solutions; the letter
purported to be from Kremen’s firm and announced that it was abandoning
the domain name. Network Solutions accepted the letter at face value and
gave the domain name to Cohen. Cohen used the domain name to create
what the court described as a “lucrative online porn empire.” Kremen sued
Cohen and won $65 million in damages, but was not able to collect the
judgment as Cohen fled to Mexico. Kremen then brought a suit for
conversion against Network Solutions. The district court gave summary
judgment to the defendant. The court of appeals, per Kozinski, J., reversed:
Property is a broad concept that includes every intangible benefit and

prerogative susceptible of possession or disposition. We apply a
three-part test to determine whether a property right exists: First,
there must be an interest capable of precise definition; second, it must
be capable of exclusive possession or control; and third, the putative
owner must have established a legitimate claim to exclusivity.
Domain names satisfy each criterion. Like a share of corporate stock
or a plot of land, a domain name is a well-defined interest. Someone
who registers a domain name decides where on the Internet those
who invoke that particular name — whether by typing it into their
web browsers, by following a hyperlink, or by other means — are
sent. Ownership is exclusive in that the registrant alone makes that
decision. Moreover, like other forms of property, domain names are
valued, bought and sold, often for millions of dollars, and they are
now even subject to in rem jurisdiction, see 15 U.S.C. §1125(d)(2). . .
.
Kremen therefore had an intangible property right in his domain
name, and a jury could find that Network Solutions “wrongful[ly]
dispos[ed] of” that right to his detriment by handing the domain name
over to Cohen. The district court nevertheless rejected Kremen’s
conversion claim. It held that domain names, although a form of
property, are intangibles not subject to conversion. This rationale
derives from a distinction tort law once drew between tangible and
intangible property: Conversion was originally a remedy for the
wrongful taking of another’s lost goods, so it applied only to tangible
property. Virtually every jurisdiction, however, has discarded this
rigid limitation to some degree. Many courts ignore or expressly
reject it. . . .
The district court supported its contrary holding with several
policy rationales, but none is sufficient grounds to depart from the
common law rule. The court was reluctant to apply the tort of
conversion because of its strict liability nature. . . . [B]ut there is
nothing unfair about holding a company responsible for giving away
someone else’s property even if it was not at fault. Cohen is
obviously the guilty party here, and the one who should in all fairness
pay for his theft. But he’s skipped the country, and his money is
stashed in some offshore bank account. Unless Kremen’s luck with
his bounty hunters improves, Cohen is out of the picture. The
question becomes whether Network Solutions should be open to
liability for its decision to hand over Kremen’s domain name.
Negligent or not, it was Network Solutions that gave away Kremen’s
property. Kremen never did anything. It would not be unfair to hold
Network Solutions responsible and force it to try to recoup its losses
by chasing down Cohen. This, at any rate, is the logic of the common
law, and we do not lightly discard it.
The district court was worried that “the threat of litigation
threatens to stifle the registration system by requiring further
regulations by [Network Solutions] and potential increases in fees.”
Given that Network Solutions’s “regulations” evidently allowed it to
hand over a registrant’s domain name on the basis of a facially
suspect letter without even contacting him, “further regulations”
don’t seem like such a bad idea. And the prospect of higher fees
presents no issue here that it doesn’t in any other context. A bank
could lower its ATM fees if it didn’t have to pay security guards, but
we doubt most depositors would think that was a good idea.
The district court thought there were “methods better suited to
regulate the vagaries of domain names” and left it “to the legislature
to fashion an appropriate statutory scheme.” The legislature, of
course, is always free (within constitutional bounds) to refashion the
system that courts come up with. But that doesn’t mean we should
throw up our hands and let private relations degenerate into a free-
for-all in the meantime. We apply the common law until the
legislature tells us otherwise. And the common law does not stand
idle while people give away the property of others.
12. Liability for spam. In CompuServe, Inc. v. Cyber Promotions, Inc.,

962 F. Supp. 1015 (S.D. Ohio 1997), the plaintiff was an Internet service
provider. The defendant was an advertising firm that sent unsolicited e-mail
advertisements, known as “spam,” to hundreds of thousands of e-mail
accounts, many of which were held by CompuServe’s customers.
CompuServe notified the defendant that it was prohibited from using
CompuServe’s computer equipment to process and store its advertisements;
the transmissions nevertheless continued. CompuServe sued the defendant
for trespass to chattels. The court granted the request for a preliminary
injunction, finding that CompuServe was likely to succeed on the merits:
Electronic signals generated and sent by computer have been held to

be sufficiently physically tangible to support a trespass cause of
action. It is undisputed that plaintiff has a possessory interest in its
computer systems. Further, defendants’ contact with plaintiff’s
computers is clearly intentional. Although electronic messages may
travel through the Internet over various routes, the messages are
affirmatively directed to their destination. . . .
A plaintiff can sustain an action for trespass to chattels, as
opposed to an action for conversion, without showing a substantial
interference with its right to possession of that chattel. Harm to the
personal property or diminution of its quality, condition, or value as a
result of defendants’ use can also be the predicate for liability. . . . To
the extent that defendants’ multitudinous electronic mailings demand
the disk space and drain the processing power of plaintiff’s computer
equipment, those resources are not available to serve CompuServe
subscribers. Therefore, the value of that equipment to CompuServe is
diminished even though it is not physically damaged by defendants’
conduct. . . .
Defendants suggest that “[u]nless an alleged trespasser actually
takes physical custody of the property or physically damages it,
courts will not find the ‘substantial interference’ required to maintain
a trespass to chattel claim.” To support this rather broad proposition,
defendants cite only two cases which make any reference to the
Restatement. In Glidden v. Szybiak, 63 A.2d 233 (N.H. 1949), the
court simply indicated that an action for trespass to chattels could not
be maintained in the absence of some form of damage. The court held
that where plaintiff did not contend that defendant’s pulling on her
pet dog’s ears caused any injury, an action in tort could not be
maintained. In contrast, plaintiff in the present action has alleged that
it has suffered several types of injury as a result of defendants’
conduct. In Koepnick v. Sears Roebuck & Co., 158 Ariz. 322, 762
P.2d 609 (1988) the court held that a two-minute search of an
individual’s truck did not amount to a “dispossession” of the truck as
defined in Restatement §221 or a deprivation of the use of the truck
for a substantial time. It is clear from a reading of Restatement §218
that an interference or intermeddling that does not fit the §221
definition of “dispossession” can nonetheless result in defendants’
liability for trespass.
D. FALSE IMPRISONMENT
The tort of false imprisonment protects the plaintiff’s interest in freedom of

movement. It generally is committed when one party confines another
without authorization. The word “imprisonment” may be thought to
connote formal incarceration, but today it is understood that false
imprisonments can arise informally as well — in a room, a car, or anyplace
else to which a party’s liberty of movement might wrongfully be restricted.
§35. FALSE IMPRISONMENT
(1) An actor is subject to liability to another for false

imprisonment if
(a) he acts intending to confine the other or a third person within
boundaries fixed by the actor, and
(b) his act directly or indirectly results in such a confinement of
the other, and
(c) the other is conscious of the confinement or is harmed by it.
§36. WHAT CONSTITUTES CONFINEMENT
(1) To make the actor liable for false imprisonment, the other’s
confinement within the boundaries fixed by the actor must be
complete.
(2) The confinement is complete although there is a reasonable
means of escape, unless the other knows of it.
(3) The actor does not become liable for false imprisonment by
intentionally preventing another from going in a particular direction
in which he has a right or privilege to go.
Illustration 6. A by an invalid process restrains B within limits
which are coterminous with the boundaries of a considerable town.
A has confined B.
Illustration 7. A serves upon B an invalid writ purporting to
restrain B from leaving a particular State of the United States. B
submits, believing the writ to be valid. A has confined B.
Illustration 8. A wrongfully prevents B from entering the United
States. A has not confined B, although B, in a sense, may be said to
be confined within the rest of the habitable world.
§38. CONFINEMENT BY PHYSICAL BARRIERS
The confinement may be by actual or apparent physical barriers.

Illustration 2. A takes away the crutches of B who, being a
cripple, is unable to walk without them. A has confined B.
Illustration 3. A removes a ladder which is the only available
means by which B can get out of a well. A has confined B.
NOTES
1. Deprogramming. In Peterson v. Sorlien, 299 N.W.2d 123 (Minn.

1980), the plaintiff was a 21-year-old student at Moorhead State College in
Minnesota. During her freshman year she joined a local chapter of The
Way, a religious organization with a strong emphasis on fund-raising.
Members were expected to obtain employment and tithe 10 percent of their
earnings to the ministry, to purchase books and tapes and enroll in training
programs, and to recruit others into The Way. The plaintiff did all this, and
to further finance her contributions she also sold a car her parents had given
to her. Her parents watched these developments with alarm. Their evidence
was that as their daughter became involved in The Way her academic
performance declined and she seemed increasingly distraught, irritable, and
alienated from her family. The family concluded that she was in a state of
psychological bondage.
At the end of her junior year, the plaintiff’s father picked her up in his
car and unexpectedly drove her to a house in Minneapolis where he had
arranged to have her “deprogrammed.” She was met there by a professional
deprogrammer and a group of young people who had been involved in cults
and who attempted to convince her that she had been brainwashed. At first
the plaintiff responded by curling into a fetal position, crying, and covering
her ears; she begged to be released, and at times she would scream
hysterically and flail at her father. After a few days at the house, however,
she became friendly and vivacious, having conversations with her father,
going roller skating, and joining in a picnic in a public park. The plaintiff
spent the next two weeks at the house in Minneapolis and traveling with
one of the former cult members who had been part of the deprogramming
effort. The plaintiff also spoke frequently by telephone with her fiancé, a
member of the ministry who played tapes and songs to her and begged her
to return to the fold.
About two weeks after she first arrived at the house, the plaintiff
stepped outside, stopped a passing police car, and asked to be returned to
the ministry. She sued her parents and the deprogrammers for false
imprisonment and other torts. A jury brought in a verdict for the defendants
and the Minnesota Supreme Court affirmed the resulting judgment:
The period in question began on Monday, May 24, 1976, and ceased
on Wednesday, June 9, 1976, a period of 16 days. The record clearly
demonstrates that Susan willingly remained in the company of
defendants for at least 13 of those days. . . . Had Susan desired,
manifold opportunities existed for her to alert the authorities of her
allegedly unlawful detention; in Minneapolis, two police officers
observed at close range the softball game in which she engaged; en
route to Ohio, she passed through the security areas of the Twin
Cities and Columbus airports in the presence of security guards and
uniformed police; in Columbus she transacted business at a bank,
went for walks in solitude and was interviewed by an F.B.I. agent
who sought assurances of her safety. . . . In his summation to the jury,
the trial judge instructed that to deem consent a defense to the charge
of false imprisonment for the entire period or for any part therein, a
preponderance of the evidence must demonstrate that such plaintiff
voluntarily consented. The central issue for the jury, then, was
whether Susan voluntarily participated in the activities of the first
three days. The jury concluded that her behavior constituted a waiver.
...
Although carried out under colorably religious auspices, the
method of cult indoctrination, viewed in a light most favorable to the
prevailing party, is predicated on a strategy of coercive persuasion
that undermines the capacity for informed consent. While we
acknowledge that other social institutions may utilize a degree of
coercion in promoting their objectives, none do so to the same extent
or intend the same consequences. Society, therefore, has a compelling
interest favoring intervention. The facts in this case support the
conclusion that plaintiff only regained her volitional capacity to
consent after engaging in the first three days of the deprogramming
process. As such, we hold that when parents, or their agents, acting
under the conviction that the judgmental capacity of their adult child
is impaired, seek to extricate that child from what they reasonably
believe to be a religious or pseudo-religious cult, and the child at
some juncture assents to the actions in question, limitations upon the
child’s mobility do not constitute meaningful deprivations of personal
liberty sufficient to support a judgment for false imprisonment. But
owing to the threat that deprogramming poses to public order, we do
not endorse self-help as a preferred alternative. In fashioning a
remedy, the First Amendment requires resort to the least restrictive
alternative so as to not impinge upon religious belief.
Otis, J., dissented:
[The majority furnishes] no guidelines or criteria for what constitutes

“impaired judgmental capacity” other than the fact that the adult child
has embraced an unorthodox doctrine with a zeal which has given the
intervenor cause for alarm, a concern which may be well-founded, ill-
founded, or unfounded.
Nor do we specify whether the “cult” must be for a benign or a
malevolent purpose. It is enough that the intervenor has reason to
believe it is a cult i.e. “an unorthodox system of belief” and that at
some juncture during the adult child’s involuntary confinement, she
“assents,” that is to say, yields or surrenders, possibly from
exhaustion or fatigue, and possibly for a period only long enough to
regain her composure. . . .
At age 21, a daughter is no longer a child. She is an adult. Susan
Peterson was not only an adult in 1976 but she was a bright, well-
educated adult. For whatever reason, she was experiencing a period
of restlessness and insecurity which is by no means uncommon in
students of that age. But to hold that for seeking companionship and
identity in a group whose proselyting tactics may well be suspect, she
must endure without a remedy the degrading and humiliating
treatment she received at the hands of her parents, is, in my opinion,
totally at odds with the basic rights of young people to think
unorthodox thoughts, join unorthodox groups, and proclaim
unorthodox views. I would reverse the denial of recovery as to that
cause of action.
The jury did find two of the deprogrammers liable for intentional
infliction of emotional distress, and awarded the plaintiff a total of $10,000
in punitive damages against them.
2. The iron hand. In Eilers v. Coy, 582 F. Supp. 1093 (D. Minn. 1984),
the plaintiff was a 24-year-old member of the Disciples of Jesus Christ,
which the defendant’s evidence depicted as “an authoritarian religious
fellowship directed with an iron hand by Brother Rama Behera.” Members
of the plaintiff’s family became concerned about changes in his personality
after he joined the group. They also worried that he might have suicidal
tendencies. They arranged to have the plaintiff abducted and taken for
deprogramming to an institution called the Tau Center. During his first days
there the plaintiff was kept handcuffed to a bed in a dormitory-style room
with plywood over the windows. Once when he was allowed to use the
bathroom he made a dash for one of the exits, but guards captured him and
returned him to his room. After several days of resistance, however, the
plaintiff pretended to consent to his confinement and became cooperative.
At the end of a week at the Tau Center, the plaintiff was taken by car to
Iowa for further deprogramming. Near the outset of the journey he managed
to jump out of the car and call for help. Local residents assisted him in
escaping and called the police. He soon rejoined the Disciples and sued the
deprogrammers for false imprisonment.
The district court gave a directed verdict to the plaintiff. The court
thought that Peterson v. Sorlien, a controlling Minnesota precedent, was
distinguishable. Do you agree?
3. Bounty hunters. In Bright v. Ailshie, 641 N.W.2d 587 (Mich. 2002), a
man named Vincent Bright was arrested in Missouri on a drug-related
charge. He identified himself to the police as his brother, Dennis Bright; he
gave them Dennis’s date of birth, Social Security number, and address.
Vincent was released on bail after entering into an agreement with a bail
bond company — again in his brother’s name. Vincent absconded on the
bond. The bail bond firm hired a bounty hunter, one Moore, to apprehend
him. Moore found Dennis Bright in Detroit, took him into custody, and
brought him back to Missouri. It was then determined that Dennis Bright
was not the correct party and the arrest warrant was amended accordingly.
Dennis Bright sued the bounty hunter and bail bond firm, among others, for
false imprisonment. The trial court gave summary judgment to the
defendants and the court of appeals affirmed, finding that Moore had
probable cause to believe that Dennis Bright was a felon. The Michigan
Supreme Court reversed. The court held the case governed by a statute,
Mich. Comp. Laws §764.16:
A private person may make an arrest in the following situations:
(a) For a felony committed in the private person’s presence.
(b) If the person to be arrested has committed a felony although
not in the private person’s presence.
(c) If the private person is summoned by a peace officer to assist
the officer in making an arrest.
(d) If the private person is a merchant, an agent of a merchant,
an employee of a merchant, or an independent contractor providing
security for a merchant of a store and has reasonable cause to
believe that the person to be arrested has violated section 356c or
356d of the Michigan penal code, Act No. 328 of the Public Acts of
1931, being sections 750.356c and 750.356d of the Michigan
Compiled Laws, in that store, regardless of whether the violation
was committed in the presence of the private person.
Said the court:
The plain language of subsection (b) provides authority for a private

person to arrest another, if the other has committed a felony. The
statute does not grant arrest authority where the other has not
committed a felony even if the private person has probable cause to
believe the other has committed a felony. Notwithstanding the clarity
of the Michigan statute, the Court of Appeals [in People v. Bashans,
80 Mich. App. 702 (1978)] incorrectly read a probable cause
qualification into M.C.L. §764.16. This may not be done. Although
such authority may have existed at common law, that authority was
abrogated by our Legislature in 1927.
The court contrasted the result here with the result that might be
produced by more liberal statutes such as Cal. Penal Code §837:
A private person may arrest another:
1. For a public offense committed or attempted in his presence.
2. When the person arrested has committed a felony, although not in
his presence.
3. When a felony has in fact been committed, and he has reasonable
cause for believing the person arrested to have committed it.
Would the plaintiff have had a good claim for false imprisonment
against his brother, Vincent?
4. The citizen’s arrest. The power of a private person to make a citizen’s
arrest is considered here because actions in excess of that authority can
amount to false imprisonment. (If one party makes an improper citizen’s
arrest of another, the result sometimes may be called “false arrest” rather
than false imprisonment, but in most jurisdictions nothing of substance
turns on this difference in terminology.) It also is possible to view the
citizen’s arrest as a privilege that arises as a defense to a claim of false
imprisonment. The defendant typically asserts the power to make a citizen’s
arrest as a defense after the plaintiff has made out a prima facie case; the
defendant thus is assigned the burden of demonstrating that the elements of
a justifiable citizen’s arrest were satisfied. On this view the power to make a
citizen’s arrest could as well have been treated in Chapter 2, which covers
various privileges that can be used to justify actions that are prima facie
intentional torts.
As Bright v. Ailshie illustrates, the power to make a citizen’s arrest is
now widely regulated by statute. In some states, however, the source of the
power to make a citizen’s arrest still remains the common law, the rules of
which generally track the California statute excerpted above. The
Restatement (Second) of Torts §119 (1965) offers these illustrations:
Illustration 2. A sees B and C bending over a dead man, D. B and
C each accuse the other of murdering D. A is not sure that either B or
C did the killing, but he has a reasonable suspicion that either B or C
killed D. A is privileged to arrest either or both.
Illustration 3. A, while passing B’s house, hears a woman’s
scream. He rushes into the house and discovers that the woman was
screaming because B was beating her. A is privileged to arrest B.
Illustration 5. A, a private citizen, sees B and C engaged in a
mutual affray. He runs towards them. B and C both flee in different
directions. A pursues B, whom he arrests after a short pursuit. A is
privileged to do so. He thereupon goes in search of C. C has
disappeared, and A makes inquiries as to his whereabouts and
discovers that he has gone to a distant suburb of the city. He stops for
a quarter of an hour to get his supper, and then takes a taxicab and
follows C, whom he eventually finds some three or four hours later.
A is then privileged to arrest C.
Illustration 6. A is murdered by B. C, B’s wife, in order to give B
opportunity to escape, draws suspicion upon herself, thus leading D
to believe her guilty of the murder of A. D is privileged to arrest C.
Suppose you observe a drunk driver. Do you have the power to make a
citizen’s arrest? For conflicting answers under different statutes, see State v.
McAteer, 511 S.E.2d 79 (S.C. 2000), and People v. Ciesler, 710 N.E.2d
1270 (Ill. App. 1999). The general reason for the disagreement is that states
vary in their willingness to permit citizens’ arrests for misdemeanors — or
they agree that such arrests are allowed if the misdemeanor is a “breach of
the peace,” but disagree about whether drunk driving satisfies that criterion.
5. Shoplifters. The common law generally recognized that same
distinction between felonies and misdemeanors, and did not permit citizen’s
arrests for misdemeanors that were nonviolent. This created a dilemma for
the shopkeeper who suspected that a customer was engaged in shoplifting.
Since shoplifting usually is a misdemeanor (it depends on the value of the
goods stolen) and since it is not typically considered a “breach of the
peace,” in most cases there was no common law privilege to detain a
suspected shoplifter. The suspicious shopkeeper could invoke a limited
common law privilege to use reasonable force to recover his stolen chattels,
but the privilege was and is unforgiving; if it is used mistakenly, the actor is
liable in damages no matter how reasonable the mistake may have been.
See Atlantic & Pac. Tea Co. v. Paul, 261 A.2d 731 (Md. 1970); Gortarez v.
Smitty’s Super Valu, Inc., 680 P.2d 807 (Ariz. 1984). In response to this
problem most states have passed statutes giving shopkeepers a limited
privilege to detain suspected shoplifters without liability even if their
suspicions prove to be unfounded. We saw a brief example of such a statute
in connection with Morgan v. Loyacomo, a case in the section of this
chapter on battery. The statutes invariably permit the merchant to detain a
suspect only in a reasonable manner and for a reasonable time. They thus
generate frequent litigation by customers wrongly suspected of shoplifting
who complain that they were held too long for investigation. Like many
other questions of reasonableness in the law of torts, these have a tendency
to go to the jury.
6. Stek up artist. In Baggett v. National Bank & Trust Co., 330 S.E.2d
108 (Ga. App. 1985), the plaintiff, Richard Baggett, entered the defendant’s
bank to deposit a check. He filled out a deposit slip from a supply provided
for customer use and handed it to the teller along with his check.
Unbeknownst to Baggett, on the back of the deposit slip someone had
written “This is a stek up.” When the teller saw this message she walked
away from her window and phoned the bank manager, telling him to call
the police. She then went back to the window and deposited Baggett’s
check. He left the bank and drove away. Meanwhile the manager had
sounded the bank’s silent alarm, which summoned the police; an officer
soon arrived, was informed of what had happened, and issued a radio
bulletin. Baggett was arrested a few minutes later. He was brought to the
bank and identified by the teller as the one who passed the note. An
investigation at the scene revealed that a number of other deposit slips had
similar notes written on them and that Baggett’s handwriting did not match.
Baggett nevertheless was taken to police headquarters and questioned
further. He was released about three hours after his initial arrest. He sued
the bank for false imprisonment. The trial court gave summary judgment to
the bank, and the court of appeals affirmed:
The evidence submitted by the bank in support of its motion for

summary judgment establishes without dispute that the decision to
arrest Baggett was made solely by the police, based on the bank
employees’ accurate and good faith account of what had transpired,
and without any request on their part that he be detained or held in
custody. We reject Baggett’s contention that contrary evidence is
created by two averments in his own affidavit, one to the effect that
he was told by a police detective that the teller had identified him as
“the guy who tried to rob her” and another to the effect that the acting
manager asked him as he was being transported to the bank’s
conference room, “‘Ricky, why did you do it?’” The former statement
is double hearsay and consequently without probative value, while
the latter statement does not conflict with the evidence showing that
the bank employees provided accurate information to police and
made no effort to procure the arrest. It follows that the trial court did
not err in granting summary judgment to the bank with respect to the
false imprisonment claim.
Would the plaintiff have had a good claim for false imprisonment
against the author of the language on the back of the deposit ticket?
7. Standing on principle. In Melton v. LaCalamito, 282 S.E.2d 393 (Ga.
App. 1981), the plaintiff rented a U-Haul trailer in New Jersey to use in
moving his belongings to Georgia. He returned the trailer to a dealership in
Atlanta operated by the defendant, Melton. As he was unhitching the trailer
Melton looked in the plaintiff’s trunk and saw a pair of furniture pads — a
type of blanket that U-Haul rented out with its trailers; the value of the pads
was approximately $4 apiece. The plaintiff refused to hand them over. He
said that he had obtained the blankets when his father was a U-Haul dealer
in New Jersey and that they had been in his family for more than a decade;
he also pointed out that his rental agreement made no mention of the pads.
Melton would not yield and called the police. An officer soon arrived, as
did the plaintiff’s mother, who had been traveling with him. She
corroborated his account of the blankets’ origins. The responding officer
later testified as follows:
Q. Now, when you talked with [the plaintiff], what did you say and
what did he say?
A. . . . I advised the subject . . . that all we wanted to do was give the
company their blankets back. Mr. Melton stated that he didn’t want
to go to court or he didn’t want to see the guy locked up or anything.
He just wanted his company’s blankets back. . . .
Q. Now, when you said all you wanted was to get U-Haul’s property
back, what did he say?
A. [Plaintiff] advised me he wasn’t going to return the property. Again,
he said it was property of his family. . . . Since we weren’t able to get
Mr. LaCalamito to return the blankets to the company, to U-Haul, we
had no choice but to make an arrest.
The plaintiff was taken to jail and spent the next several hours there. It
turned out that he had been telling the truth, however, and the charges
against him were dismissed the next day. He sued Melton for false
imprisonment. The trial court entered judgment on a jury verdict in favor of
the plaintiff for $10,000 in compensatory damages and $5,000 in punitive
damages. The court of appeals affirmed:
The rule applicable in a situation such as that presented in this case is

stated in W. Prosser, Law of Torts §119 (1971): “If the defendant
(here Melton) merely states what he believes, leaving the decision to
prosecute entirely to the uncontrolled discretion of the officer, or if
the officer makes an independent investigation, or prosecutes for an
offense other than the one charged by the defendant, the latter is not
regarded as having instigated the proceeding; but if it is found that his
persuasion was the determining factor in inducing the officer’s
decision, or that he gave information which he knew to be false and
so unduly influenced the authorities, he may be held liable.”
The testimony shows that Melton indicated to the police that he
did not want to go to court or to see appellee jailed. Nevertheless,
during a period of discussion lasting 30 to 40 minutes, Melton
continued to insist on the surrender of the furniture pads as property
belonging to U-Haul. Since appellee refused to surrender the pads,
the police “had no choice but to make an arrest.” Under these
circumstances, the jury was authorized to conclude that Melton’s
insistance [sic] that the pads were U-Haul property was the
determining factor leading to appellee’s arrest and prosecution. . . .
The court also found that in view of all the facts available to him,
Melton did not have probable cause to support his instigation of the
plaintiff’s arrest.
What is the distinction between Melton v. LaCalamito and Baggett v.
National Bank & Trust Co.? With these cases compare the following
provision from the Restatement (Second) of Torts (1965):
§45A. INSTIGATING OR PARTICIPATING IN FALSE IMPRISONMENT
One who instigates or participates in the unlawful confinement of

another is subject to liability to the other for false imprisonment.
Comment c. Instigation. If the confinement is unprivileged, the
one who instigates it is subject to liability to the person confined for
the false imprisonment. Instigation consists of words or acts which
direct, request, invite or encourage the false imprisonment itself. In
the case of an arrest, it is the equivalent, in words or conduct, of
“Officer, arrest that man!” It is not enough for instigation that the
actor has given information to the police about the commission of a
crime, or has accused the other of committing it, so long as he leaves
to the police the decision as to what shall be done about any arrest,
without persuading or influencing them. Likewise it is not an
instigation of a false arrest where the actor has requested the
authorities to make a proper and lawful arrest, and has in no way
invited or encouraged an improper one, or where he has requested an
arrest at a time when it would be proper and lawful, and it is
subsequently made at a time when it has become improper.
Is this Restatement provision consistent with the two cases just considered?
8. Malicious prosecution distinguished. When false imprisonment
claims arise in the settings just considered — i.e., instigation of an arrest —
they bear a family resemblance to the tort of malicious prosecution, but the
two torts have different origins and different elements. False imprisonment
is descended from the old tort of trespass and usually is understood to
involve direct interference with the plaintiff’s freedom of movement.
Malicious prosecution involves more indirect steps to confine the plaintiff
and thus had to be brought in the old days as an action for trespass on the
case. The practical difference between the torts today generally involves the
quality of the processes used to incarcerate the plaintiff. If the arrest itself is
lawful — as always will be the case, for example, if a warrant for the
plaintiff’s arrest has been sought and obtained — then the resulting
imprisonment cannot be considered “false,” but the private defendant who
sought the prosecution still may be held liable for malicious prosecution.
False imprisonment claims arise when the arrest is made without a warrant.
In that case the lawfulness of the arrest depends on whether it is supported
by probable cause. If the officer relies on the defendant’s importunings and
they turn out to have been unsupported by probable cause, the plaintiff may
be able to sue the defendant for false imprisonment. It depends on the
relationship between the defendant’s acts and the officer’s decisions, as
Baggett and Melton illustrate. Meanwhile the police officer typically will
enjoy immunity from state law claims for false imprisonment or malicious
prosecution, though liability remains a possibility under 42 U.S.C. §1983 if
the plaintiff’s federal constitutional rights were violated.
E. ASSAULT
The tort of assault typically is a companion to the tort of battery. We

consider it here, a little later in the chapter, because consideration of assault
also serves as a natural prologue to the modern tort of outrage, or
intentional infliction of emotional distress, which will be our final topic.
§21. ASSAULT
(1) An actor is subject to liability to another for assault if

(a) he acts intending to cause a harmful or offensive contact with
the person of the other or a third person, or an imminent
apprehension of such a contact, and
(b) the other is thereby put in such imminent apprehension.
(2) An action which is not done with the intention stated in
Subsection (1, a) does not make the actor liable to the other for an
apprehension caused thereby although the act involves an
unreasonable risk of causing it and, therefore, would be negligent or
reckless if the risk threatened bodily harm.
§22. ATTEMPT UNKNOWN TO OTHER
Illustration 2. A, standing behind B, points a pistol at him. C

overpowers A before he can shoot. B, hearing the noise turns around
and for the first time realizes the danger to which he had been
subjected. A is not liable to B.
§24. WHAT CONSTITUTES APPREHENSION
Illustration 1. A, a scrawny individual who is intoxicated,

attempts to strike with his fist B, who is the heavyweight champion
pugilist of the world. B is not at all afraid of A, is confident that he
can avoid any such blow, and in fact succeeds in doing so. A is
subject to liability to B.
Comment c. Rationale. The apparent anomaly of the fact that
almost from the very beginning of the common law legal protection
was accorded to the interest in freedom from this one curious type of
mental impression, but until recently protection was denied to the
interest in freedom from other emotional disturbances which
everyone recognizes as extremely distressing, such as serious fright
or anxiety for the safety of oneself or a member of his family, is
explainable only by the fact that the action for assault is a survival
from the time when the action of trespass gave to the persons who
were the victims of minor crimes a private right of action. The
primary purpose of this action was to punish the wrongdoer, although
the major part of the penalty imposed upon him went to the private
individual aggrieved. The civil action of trespass for assault still
presents a strong analogy to criminal prosecutions for an attempt to
commit a crime. In reality, it was originally an action brought by the
person aggrieved by the actor’s attempt to commit a battery upon
him.
§28. APPREHENSION OF UNINTENDED BODILY CONTACT
If the actor intends merely to put the other in apprehension of a

bodily contact, he is subject to liability for an assault to the other if
the other, although realizing that the actor does not intend to inflict
such a contact upon him, is put in apprehension of the contact.
Illustration 1. A, an expert knife thrower, intending to frighten B,
who is standing against a wall, throws a knife toward him not
intending to hit him. B, though knowing A’s intention, does not share
A’s perfect confidence in his marksmanship and is put in
apprehension of being struck by the knife. A is subject to liability to
B.
§32. CHARACTER OF INTENT NECESSARY
(1) To make the actor liable for an assault, the actor must have
intended to inflict a harmful or offensive contact upon the other or to
have put the other in apprehension of such contact.
(2) If an act is done with the intention of affecting a third person
in the manner stated in Subsection (1), but puts another in
apprehension of a harmful or offensive contact, the actor is subject to
liability to such other as fully as though he intended so to affect him.
Illustration 1. A throws a stone at B, whom he believes to be
asleep. B, who is in fact awake, sees A throwing the stone and
escapes by dodging. A is subject to liability to B.
Illustration 3. A and B are trespassing in C’s woods. C observes
B and points a gun at him, threatening to shoot. A, at the moment,
comes from behind a tree and seeing C’s gun pointed in his direction
is put in apprehension of being shot. C is subject to liability to A as
well as to B.
1. Sinister phone calls. In Brower v. Ackerley, 943 P.2d 1141 (Wash.

App. 1997), the plaintiff, Jordan Brower, lived in Seattle and was active in
community affairs. The defendants, two brothers named Ackerley, ran a
company that engaged in advertising on billboards. Brower did not like
billboards, and he determined that the city had not authorized some of the
billboards the Ackerleys had erected. Brower tried in various ways to
persuade the city to remove the billboards. At last he succeeded in having
them declared illegal. Throughout the course of this campaign Brower
received anonymous telephone calls that troubled him. In the beginning the
caller told Brower to “get a life.” The calls took a more aggressive tone as
Brower’s efforts became more successful. One night the caller said, “I’m
going to find out where you live and I’m going to kick your ass.” He called
back an hour later and said, in a voice that Brower described as “eerie and
sinister,” “Ooooo, Jordan, oooo, you’re finished; cut you in your sleep, you
sack of shit.” Brower had the calls traced and determined that they came
from the Ackerleys’ house. Brower sued the Ackerleys on various theories,
including assault; he said the calls caused him feelings of panic and terror,
as well as a rising pulse, light-headedness, sweaty palms, and sleeplessness.
The trial court gave summary judgment to the Ackerleys. The court of
appeals affirmed as to the assault claim:
To constitute civil assault, the threat must be of imminent harm. As

one commentator observes, it is “the immediate physical threat which
is important, rather than the manner in which it is conveyed.” The
Restatement’s comment is to similar effect: “The apprehension
created must be one of imminent contact, as distinguished from any
contact in the future.” The Restatement gives the following
illustration: “A threatens to shoot B and leaves the room with the
express purpose of getting his revolver. A is not liable to B.” . . .
[The telephone calls] threatened action in the near future, but not
the imminent future. The immediacy of the threats was not greater
than in the Restatement’s illustration where A must leave the room to
get his revolver. Because the threats, however frightening, were not
accompanied by circumstances indicating that the caller was in a
position to reach Brower and inflict physical violence “almost at
once,” we affirm the dismissal of the assault claim.
The court did, however, rule that the plaintiff was entitled to a jury trial
on his claim for intentional infliction of emotional distress — a topic
covered in the next section of the chapter.
2. The bat warehouse. In Bennight v. Western Auto Supply Co., 670
S.W.2d 373 (Tex. App. 1984), Cathy Bennight worked for the defendant’s
retail store. The rear of the store consisted of a warehouse that was known
to be infested with bats. Bennight’s manager required her to work in that
area despite her protests. One day she was attacked by a number of bats;
none of them bit her, though one became entangled in her hair. The
following day one of the bats did bite her. She had to be administered an
anti-rabies treatment, and she reacted badly to it; she became blind and
suffered various emotional problems as a result. State law required that
Bennight’s own claim against Western Auto be made through the state’s
workers’ compensation programs. Her husband, however, brought a civil
suit against Western Auto for loss of consortium. The provisions of the
workers’ compensation statute provided that Bennight’s husband could sue
only if his wife’s injury was the result of an intentional tort, and not if it was
accidental. A jury brought in the following special verdict:
1. Do you find from a preponderance of the evidence that on the

occasion in question [the manager] required Cathy Bennight to work in
the warehouse area against her will with the intention of causing her to
be bitten by a bat or to be otherwise exposed to rabies? Answer: We do
not. . . .
3. Do you find from a preponderance of the evidence that
[Western Auto], through its manager, intentionally maintained an
unsafe place to work? Answer: We do.
4. Do you find from a preponderance of the evidence that on the
occasion in question [the manager] required Cathy Bennight to work
in the loft against her will when he knew that such place was an
unsafe place to work? Answer: We do.
The jury set Mr. Bennight’s damages at $87,500. The trial court held the
injury accidental and entered a judgment that the plaintiff take nothing. The
court of appeals reversed and held him entitled to recover:
[T]he unlawful and intentional invasion of one legally protected

interest of another will supply the intent necessary to hold the actor
liable for the unintended consequences of his act when some other
legally protected interest of the victim is harmed in consequence of
the act. The jury’s answer to special issue 1 establishes only that the
manager did not intend that Cathy be bitten by a bat and exposed to
rabies; it does not establish, as a matter of law, that he committed no
intentional tort against Cathy, for as we will discuss below, the jury’s
answer to the remaining special issues established that he
intentionally committed an assault against her and his intent in that
regard is imputed by operation of law to the actual harm which did
occur with catastrophic results. . . .
Intentionally placing Cathy in . . . fear [of being attacked by the
bats] was an “assault,” an invasion of her personality, and an
independent intentional tort in and of itself. More to the point for our
present purposes, the manager’s intention to place Cathy in such
apprehension extends by operation of law to the specific additional
injury which she did receive and for which she sought recovery,
whether or not the manager in fact intended that additional and
subsequent harm.
Was the Bennight case rightly decided? If it was, then what is the
distinction between Bennight and Brower v. Ackerley?
3. All in good fun. In Langford v. Shu, 128 S.E.2d 210 (N.C. 1962),
Langford went to visit the house of her neighbor, one Midgie Shu. As she
crossed the Shus’ porch, Langford saw a wooden box there labeled
“Danger, African Mongoose, Live Snake Eater.” Shu explained that the box
contained a mongoose that her husband had given to their children; she told
Langford to have a look at the box and said that the creature would do her
no harm. Langford observed the box but kept about four feet away from it,
declining “to get near that thing” because she was afraid of snakes. As she
was looking at the box, one of the Shu children released a spring that held it
closed. A screeching sound came forth from it and a furry object sprang at
Langford. In fact it was a fox tail attached to a spring. There was no
mongoose. Langford was unable to appreciate the distinction, however; she
turned to run and stumbled into a brick wall, tearing cartilage in her knee.
She sued Shu for assault. The trial court gave Shu judgment as a matter of
law. The North Carolina Supreme Court reversed:
Defendant in this case set the stage for her children’s prank; she aided
and abetted it by her answers to the plaintiff’s questions about the
box. Defendant had seen the box demonstrated and she knew as only
the mother of boys aged nine and eleven could know, that unless she
took positive steps to prevent it, they would not let such a wary and
apprehensive prospect as Mrs. Langford escape without a
demonstration. To reach any other conclusion would be to ignore the
propensities of little boys who, since the memory of a man runneth
not to the contrary, have delighted to stampede timorous ladies with
snakes, bugs, lizards, mice and other rewarding small creatures which
hold no terror for youngsters. It is implicit in this evidence that
defendant expected to enjoy the joke on her neighbor as much as the
children, and that she participated in the act with them. To say that
she should not have expected one of the boys to spring “the
mongoose” on plaintiff would strain credulity.
Suppose defendant threatens to shoot plaintiff with a gun. Defendant

believes the gun is loaded; plaintiff knows it is not. Liability for assault?
4. The restrained swordsman. In Tuberville v. Savage, 86 Eng. Rep. 684
(K.B. 1669), the plaintiff sued the defendant for battery. The defendant
countered that the plaintiff had provoked him by first committing an assault.
The plaintiff had put his hand on his sword and said to the defendant, “If it
were not assize-time, I would not take such language from you.” (By
referring to “assize-time,” the plaintiff meant that the judges who heard
civil cases were in town and thus that the courts were in session.) It was
held that the plaintiff had not committed an assault and was entitled to
judgment:
[T]he declaration of the plaintiff was, that he would not assault [the
defendant], the Judges being in town; and the intention as well as the
act makes an assault. Therefore if one strike another upon the hand,
or arm, or breast, in discourse, it is no assault, there being no
intention to assault; but if one intending to assault, strike at another
and miss him, this is an assault; so if he hold up his hand against
another in a threatening manner and say nothing, it is an assault.
What is the distinction between Tuberville v. Savage and Langford v. Shu?

5. Dishonorable purposes (problem). In Newell v. Whitcher, 53 Vt. 589
(Vt. 1880), the plaintiff, Newell, was a blind woman who gave music
lessons to the defendant’s children in their house once a week, staying there
overnight on each occasion. On the night in question Newell was awakened
by the sound of someone entering her room. It was the defendant. He sat
down on her bed and leaned over her; as the court described the events, he
“made repeated and persistent solicitations to her for sexual intimacy, which
she repelled, and urged him to leave her room. She got up from her bed,
dressed herself and sat up the residue of the night.” Newell brought suit
against the defendant to recover for the sickness and fright she claimed to
have suffered as a result. The trial court entered judgment on a jury verdict
in the plaintiff’s favor. The defendant appealed. What result?
F. OUTRAGE
The tort of intentional infliction of emotional distress — often known as

IIED or as the tort of outrage — is a relative newcomer to the law. The
common law did not recognize freestanding liability for the infliction of
emotional harm, and as late as 1934 the first Restatement of Torts explicitly
repudiated the idea. The classic rationales for rejecting the tort were the
difficulty of proving that the defendant’s conduct caused the plaintiff’s
harm, the danger of fraudulent claims, and the fear of a flood of litigation.
But courts have long been willing to award damages for emotional distress
where it results from (or is “parasitic” upon) the commission of some other,
independent tort. During the middle of the twentieth century scholars
argued that courts had begun using this rule to impose liability for outrage
after all; in cases where a plaintiff’s distress was serious and seemed to call
for relief, courts would strain to find some physical contact in the case so
that it might be called a battery, or they would stretch other existing legal
categories to find liability in the case and thus permit an award of damages
for distress. In 1948 these arguments led the American Law Institute to
recognize intentional infliction of emotional distress as its own cause of
action. The elements then were further adjusted a bit in the Restatement
(Second), issued in 1965, and the resulting formulation was quite
influential. Most jurisdictions now subscribe to it:
§46. OUTRAGEOUS CONDUCT CAUSING SEVERE EMOTIONAL DISTRESS
(1) One who by extreme and outrageous conduct intentionally or

recklessly causes severe emotional distress to another is subject to
liability for such emotional distress, and if bodily harm to the other
results from it, for such bodily harm.
(2) Where such conduct is directed at a third person, the actor is
subject to liability if he intentionally or recklessly causes severe
emotional distress
(a) to a member of such person’s immediate family who is
present at the time, whether or not such distress results in bodily
harm, or
(b) to any other person who is present at the time, if such
distress results in bodily harm.
Comment d. Extreme and outrageous conduct. The cases thus far
decided have found liability only where the defendant’s conduct has
been extreme and outrageous. It has not been enough that the
defendant has acted with an intent that is tortious or even criminal, or
that he has intended to inflict emotional distress, or even that his
conduct has been characterized by “malice,” or a degree of
aggravation that would entitle the plaintiff to punitive damages for
another tort. Liability has been found only where the conduct has
been so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community. Generally,
the case is one in which the recitation of the facts to an average
member of the community would arouse his resentment against the
actor, and lead him to exclaim, “Outrageous!”
Illustration 4. A makes a telephone call but is unable to get his
number. In the course of an altercation with the telephone operator, A
calls her a God damned woman, a God damned liar, and says that if
he were there he would break her God damned neck. B suffers severe
emotional distress, broods over the incident, is unable to sleep, and is
made ill. A’s conduct, although insulting, is not so outrageous or
extreme as to make A liable to B.
Illustration 9. A, an eccentric and mentally deficient old maid,
has the delusion that a pot of gold is buried in her back yard, and is
always digging for it. Knowing this, B buries a pot with other
contents in her yard, and when A digs it up causes her to be escorted
in triumph to the city hall, where the pot is opened under
circumstances of public humiliation to A. A suffers severe emotional
disturbance and resulting illness. B is subject to liability to A for
both.
Illustration 10. A knows that B, a Pennsylvania Dutch farmer, is
extremely superstitious, and believes in witchcraft. In order to force
B to sell A his farm, A goes through the ritual of putting a “hex” on
the farm, causing B to believe that it is bewitched so that crops will
not grow on it. B suffers severe emotional distress and resulting
illness. A is subject to liability to B for both.
Illustration 12. A is in a hospital suffering from a heart illness and
under medical orders that he shall have complete rest and quiet. B
enters A’s sick room for the purpose of trying to settle an insurance
claim. B’s insistence and boisterous conduct cause severe emotional
distress, and A suffers a heart attack. B is subject to liability to A if
he knows of A’s condition, but is not liable if he does not have such
knowledge.
Daniel J. Givelber, The Right to Minimum Social Decency and the

Limits of Evenhandedness: Intentional Infliction of Emotional
Distress by Outrageous Conduct
82 Colum. L. Rev. 42 (1982)
The tort of intentional infliction of emotional distress by outrageous

conduct differs from traditional intentional torts in an important respect: it
provides no clear definition of the prohibited conduct. Battery, assault, and
false imprisonment describe specific forms of behavior; while we can
quibble about whether a kick in the playground should be attended with the
same legal consequences as a kick in the classroom, everyone can agree that
you cannot have a battery without physical contact (or an assault without at
least the appearance of attempted physical contact, or a false imprisonment
without restraint of the freedom of movement). The relative ease with
which injury may be established is counterbalanced by the specificity of the
prohibited behavior.
The term “outrageous” is neither value-free nor exacting. It does not
objectively describe an act or series of acts; rather, it represents an
evaluation of behavior. The concept thus fails to provide clear guidance
either to those whose conduct it purports to regulate, or to those who must
evaluate that conduct. The Restatement tells us that what is prohibited is
conduct that is so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.
This is a strange description of a rule of law. Those situations in which
“average members of the community” are up in arms over the outrageous
conduct of individuals are situations in which the evenhanded application of
law is threatened. A central goal of due process is to ensure that individuals
are not judged by the “passion and prejudice of the moment,” but are rather
evaluated by rules of universal applicability, fairly and evenhandedly
applied. To suggest, as the Restatement does, that civil liability should turn
on the resentments of the average member of the community appears to turn
the passions of the moment into law. . . .
Given the open-ended nature of outrageousness, what led the
proponents of the tort to recommend this test and courts to adopt it? To
attempt to answer these questions we must first understand why the tort
requires any limitation beyond the requirement that the defendant intended
to cause the plaintiff emotional distress and succeeded.
There are a number of justifications for such a limitation. First,
incivility is so pervasive in our society that it is inappropriate for the law to
attempt to provide a remedy for it in every instance. The effort would tax
available judicial resources as well as open the door to false claims. It
would provide a judicial forum to the adjudication of private feuds. Public
adjudication of common irritations and arguments would dignify most
disputes far beyond their social importance (and, perhaps, retard their
resolution through normal social processes). Second, there is the view that
only outrageous conduct is so severe as to provide reliable confirmation that
the plaintiff’s suffering is genuine and reasonable. Third, there is concern
for personal liberty both for its own sake and for its purported capability to
enhance mental health and reduce aggression. This liberty interest includes
much more than the freedom to get mad or be impolite. It also includes the
freedom to exercise privacy rights even in the face of certain knowledge
that it will severely distress another; extramarital affairs, divorce, and
abortion are prime examples. Finally, there is the perceived social utility of
mild (or not so mild) oppression. There are simply a large number of
situations in which intentionally making others uncomfortable, unhappy,
and upset is viewed as justified either in pursuit of one’s legal rights (e.g.,
debt collection) or in service of a greater social good (e.g., cross-
examination at trial) or for the person’s “own good” (e.g., basic training). . .
.
The practical impact of the tort varies with the relationship between
plaintiff and defendant. When the parties have a pre-existing economic
relationship based or apparently based on contract, courts are frequently
willing to uphold determinations of outrageousness. These cases reflect a
common theme — they require a basic level of fair procedure and decency
in dealings between people who occupy unequal bargaining positions and
are bound (or apparently bound) by voluntary agreements. When the parties
are not bound by contract, the cases are fewer, the results more
unpredictable, and doctrine virtually nonexistent.
1. Blowing off steam. In Roberts v. Saylor, 637 P.2d 1175 (Kan. 1981),
the plaintiff underwent surgery three times. The first surgeon left some
sutures in the plaintiff. A second surgeon, Saylor, later performed a second
operation to remove the sutures. The plaintiff then brought a malpractice
suit against the first surgeon and attempted to enlist the help of Dr. Saylor.
Saylor would not cooperate, however, saying (as the plaintiff later recalled
it) that he “despised people” like the plaintiff “for causing doctors trouble,
and we was a bunch of thieves without a gun is what he said.” The plaintiff
thus sued Saylor as well. That suit was settled. Three years later the plaintiff
underwent a third, unrelated surgery at the same hospital, which was to be
performed by a different doctor. Shortly before the surgery began the
plaintiff was lying on a gurney just outside the operating room, having
received preoperative medication. The plaintiff’s evidence was that Saylor
saw her on the gurney as he left a nearby lounge where he was seeking
advice regarding a medical problem from which he himself was suffering.
Saylor entered the preoperation room and approached the plaintiff on the
gurney; then, as the plaintiff recounted it, “I looked up at him and he says,
‘I don’t like you, I don’t like you,’ and he says, ‘I wanted to tell you that
before you went in there.’ He was real hostile in the face when I looked
back up at him from the cart.”
The plaintiff sued Saylor for intentional infliction of emotional distress.
As to the extent of her distress, her deposition ran as follows:
Q. Well, what other damages, or what is it that you’re claiming by
way of damages in this case; how have you been injured or
damaged by what occurred that day?
A. Because I’m upset about it; I’m still upset. I was upset then and
I’m still upset.
Q. Well, is that all?
A. When I seen him down there I was afraid that maybe he would
come in there and try to do something to me, I didn’t know. . . .
Q. I’m trying to find out — I’m not talking about any, I’m trying to
find out —
A. Didn’t do no bodily harm to me.
On cross-examination by her own attorney, plaintiff testified that as a

result of defendant’s conduct she was scared and didn’t want to go into
surgery. The trial court held Saylor entitled to summary judgment, and the
Kansas Supreme Court agreed:
It should be understood that liability does not arise from mere insults,
indignities, threats, annoyances, petty expressions, or other
trivialities. Members of the public are necessarily expected and
required to be hardened to a certain amount of criticism, rough
language and to occasional acts and words that are definitely
inconsiderate and unkind. The law should not intervene where
someone’s feelings merely are hurt. Freedom remains to express an
unflattering opinion and to blow off relatively harmless steam which
comes from an uncontrollable temper. Conduct to be a sufficient basis
for an action to recover for emotional distress must be outrageous to
the point that it goes beyond the bounds of decency and is utterly
intolerable in a civilized society. . . .
2. Studies in bedside manner. In Greer v. Medders, 336 S.E.2d 328 (Ga.

App. 1985), the plaintiff, Greer, underwent surgery and was recovering at
the hospital when his attending physician went on vacation and left Greer in
the care of a colleague, Medders. When Medders did not visit Greer for
several days, Greer called Medders’ office to complain. Medders soon
arrived at Greer’s room; the plaintiff’s evidence was that Medders made the
following statements in front of Greer, his wife, and a nurse who was
present: “Let me tell you one damn thing, don’t nobody call over to my
office raising hell with my secretary . . . I don’t have to be in here every
damn day checking on you because I check with physical therapy . . . I
don’t have to be your damn doctor.” Mrs. Greer interjected that Medders
need not worry, as he would no longer be her husband’s doctor; whereupon
Medders stated: “If your smart ass wife would keep her mouth shut things
wouldn’t be so bad.” Medders left the room, whereupon Mrs. Greer began
to cry and Mr. Greer experienced episodes of uncontrollable shaking for
which he required psychiatric treatment. The Greers sued Medders for
intentional infliction of emotional distress. The trial court gave summary
judgment to Medders. The court of appeals reversed:
Given the fact that the alleged statements at issue in this case were
made by a physician to a post-operative patient and his wife as the
patient lay in a hospital bed, we cannot say as a matter of law that the
statements were insufficiently abusive to support a recovery for the
tort of intentional infliction of emotional distress. Accordingly, we
hold that the trial court erred in awarding summary judgment in favor
of Dr. Medders.
Is there a satisfactory distinction between Greer v. Medders and Roberts

v. Saylor?
3. Gorilla motif. In Muratore v. M/S Scotia Prince, 845 F.2d 347 (1st
Cir. 1988), the plaintiff, Muratore, was a passenger on a cruise ship that
traveled between Maine and Nova Scotia. As she first boarded the ship two
of the cruise line’s employees were attempting to take pictures of the
arriving passengers. Muratore said that she did not want her picture taken.
When the photographers would not relent, Muratore turned and walked onto
the ship backwards. The photographers nevertheless took her picture and
displayed the resulting photograph of her backside near the ship’s
concession stand along with the other pictures they had taken; over the back
of the plaintiff’s head they superimposed a picture of a gorilla’s face. Later
during the cruise one of the photographers, this time dressed in a gorilla
suit, approached Muratore again. Once more she turned her back. This time
the other photographer shouted, “take the back of her — she likes things
from the back.” Muratore understood this remark to have lewd connotations
and was embarrassed by it. The photographers tried to photograph her on
other occasions as well; she spent several hours in her cabin during the
cruise to avoid harassment by them. Upon her return she sued the cruise
line for intentional infliction of emotional distress. The trial court found in
Muratore’s favor and awarded her $5,000 in compensatory damages:
The first element [of the IIED tort] focuses on the defendant-actor’s
state of mind: the defendant must have acted “intentionally or
recklessly,” or have been “certain or substantially certain” that his or
her conduct would cause the plaintiff severe emotional distress. In the
present case, the Court finds clear evidence that this element is
satisfied. Plaintiff indicated continuously, beginning with her very
first encounter with the photographers, that she did not wish to have
her picture taken. . . . The photographers’ continued harassment and
taunting remarks lead the Court to conclude that the photographers’
conduct was in fact intentional.
The second element goes to the nature of the conduct: the degree
to which the conduct was “outrageous.” [Case law] and section 46 of
the Restatement (Second) of Torts suggest a rather rigorous test for
“outrageousness.” Comment f to that section, however, also makes
clear that “[t]he extreme and outrageous character of the conduct may
arise from the actor’s knowledge that the other is particularly
susceptible to emotional distress. . . .” Again, the Court concludes
that Plaintiff’s initial reaction to having her picture taken indicated a
particular sensitivity.
The Court can perceive no valid rationale for a carrier or its agent
to insist on taking photographs of a passenger over the passenger’s
objection, especially when the photographs are taken in the pecuniary
interests of the carrier or its agent. Furthermore, the offensive conduct
did not end with the initial encounter: the photographers continued to
approach Plaintiff, take her picture, and make lewd comments. The
Court finds the photographers’ conduct, taken as a whole, to be so
reprehensible as to meet the requirement of “outrageous” or
“atrocious” conduct.
The third element requires a causal connection between the
Defendant’s actions and the Plaintiff’s emotional distress. Here the
Court finds that Prince of Fundy [the defendant] has little room to
quibble. . . .
The fourth and final element focuses on the degree of Plaintiff’s
emotional distress. [Prior case law has] established that the emotional
distress must be “severe” so that “no reasonable [person] could be
expected to endure it.” The Maine Supreme Judicial Court expressly
added, however, that “‘shock, illness, or other bodily harm’ . . . is not
an absolute prerequisite for recovery of damages for intentional, as
opposed to negligent, infliction of emotional distress,” and that “[i]n
appropriate cases, ‘severe’ emotional distress may be inferred from
the ‘extreme and outrageous’ nature of the defendant’s conduct
alone.” . . .
The court of appeals affirmed. As this case illustrates — and as some of the
cases to come will confirm — sexual harassment in one form or another is a
common element in modern claims of intentional infliction of emotional
distress.
4. The thick-skinned plaintiff. In Pemberton v. Bethlehem Steel Corp.,
502 A.2d 1101 (Md. Spec. App. 1986), the plaintiff, Pemberton, was an
official for the union that represented the Bethlehem Steel Corporation’s
employees. He sued the corporation for intentional infliction of emotional
distress and other torts. Pemberton claimed that Bethlehem, unhappy with
his conduct on behalf of the union, hired a private investigator to place him
under surveillance; that the investigator obtained evidence that Pemberton
was conducting an extramarital affair; and that Bethlehem anonymously
sent this evidence to Pemberton’s wife, ultimately precipitating their
divorce. Bethlehem also obtained “mug shots” from an arrest of Pemberton
that had occurred about 15 years earlier and circulated the pictures to the
members of his union. The trial court gave summary judgment to the
defendant. The Court of Special Appeals affirmed:
For conduct to meet the test of “outrageousness,” it must be “so

extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Restatement of Torts 2d, §46. Whether the conduct
complained of meets that test is, in the first instance, for the court to
determine, and, in addressing that question, the court must consider
not only the conduct itself but also the “personality of the individual
to whom the misconduct is directed.” Harris v. Jones, 281 Md. 560
(1977). We do not regard the sending of truthful information
pertaining to the criminal conviction of an admittedly rough-and-
tumble labor official to his fellow union members, the placing of such
a person under the kind of surveillance indicated in this record, or the
sending of truthful information about his extramarital affair to his
wife to meet the test laid down in Harris.
Nor has appellant pled or shown the degree of distress required.
To satisfy the fourth requirement, a plaintiff must establish a truly
devastating effect from the defendant’s conduct. The emotional
response must be so acute “that no reasonable person could be
expected to endure it”; he must be “unable to function,” “unable to
attend to necessary matters.” Hamilton v. Ford Motor Credit Co.,
supra, 66 Md. App. at 59-60. There is no such indication here.
Can Pemberton v. Bethlehem Steel Corp. be squared with Muratore v.

M/S Scotia Prince?
5. Villainous advices. In Figueiredo-Torres v. Nickel, 584 A.2d 69 (Md.
1991), the plaintiff and his wife sought the assistance of the defendant,
Herbert Nickel, a psychologist and marriage counselor. They saw Nickel
together and separately. Soon Nickel and the plaintiff’s wife were engaged
in an affair, and Nickel was counseling the plaintiff that he and his wife
ought to seek a separation. The plaintiff sued Nickel for professional
negligence and for intentional infliction of emotional distress. The trial
court dismissed the complaint; the Maryland Court of Appeals reversed:
Nickel contends that, because Torres’ wife was a consenting adult

and sexual relations between consenting adults in modern society is
not extreme and outrageous conduct, the intentional infliction of
emotional distress count was properly dismissed. Nickel’s analysis
neglects one important detail. Nickel was not “the milkman, the
mailman, or the guy next door”; he was Torres’ psychologist and
marriage counselor.
As we recognized in [Harris v. Jones, 380 A.2d 611 (1977)], “the
extreme and outrageous character of the defendant’s conduct may
arise from his abuse of a position, or relation with another person,
which gives him actual or apparent authority over him, or power to
affect his interests.” Furthermore, “[i]n cases where the defendant is
in a peculiar position to harass the plaintiff, and cause emotional
distress, his conduct will be carefully scrutinized by the courts.” A
psychologist-patient relationship, by its nature, focuses on the psyche
of the patient; and a psychologist is in a unique position to influence
the patient’s emotional well-being. For this reason, a psychologist-
patient relationship falls squarely into the category of relationships
which are carefully scrutinized by the courts. . . .
In addition to the allegations of sexual misconduct, Torres further
alleges that, despite his knowledge that Torres “was particularly
susceptible to emotional upset, anxiety and distress” and
“emotionally and mentally unstable,” Nickel “demoralized [Torres]
by making statements, and engaging in conduct that was destructive
to [Torres’] ego development and self-respect,” and “caused further
and greater feelings of helplessness, discouragement, shame, guilt,
fear and confusion by telling him he was a ‘codfish’ and that his wife
deserved a ‘fillet’; by telling him he had bad breath and should not go
near his wife, and by falsely and systematically telling [Torres] that
the deterioration of [Torres’] relationship with his wife was
exclusively the result of [Torres’] conduct.” . . . Coming from a
stranger, or even a friend, this conduct may not be outrageous; but we
are not prepared to state as a matter of law that such behavior by a
psychologist which takes advantage of the patient’s known emotional
problems is not extreme and outrageous conduct sufficient to support
an intentional infliction of emotional distress claim.
What is the analogy between Figueiredo-Torres v. Nickel and Greer v.

Medders (the L case of the doctor who scolded the patient and his wife)?
6. Criminal conversation. A difficulty that often arises in connection
with cases like Figueiredo-Torres v. Nickel is that the common law regarded
adulterous affairs as tortious on independent grounds: the paramour could
be sued for “criminal conversation,” a tort which consisted of having sexual
intercourse with the spouse of another. Criminal conversation was part of a
family of so-called amatory torts that also included seduction, alienation of
affections, and breach of promise to marry. A majority of states have
abolished all of these actions by judicial decision or by passing legislation
known as “heart balm” statutes. Courts in those states often will dismiss
claims for intentional infliction of emotional distress based on adultery or
other conduct that might have been the subject of an amatory tort suit at
common law, reasoning that plaintiffs should not be able to avoid the
legislature’s intent by putting new labels on their claims. But sometimes, as
in Figueiredo-Torres v. Nickel, IIED claims still survive on such facts. The
court in the latter case relied on the following language from a similar
Oregon decision:
[C]riminal conversation consists of sexual intercourse with the

spouse of another person, and the elements of alienation of affection
are wrongful conduct of the defendant which is intended to cause and
which actually does cause the plaintiff the loss of the affection and
consortium of the plaintiff’s spouse. The gravamen of the tort of
intentional infliction of severe emotional distress, on the other hand,
is that the plaintiff has suffered a loss due to intentionally inflicted
severe emotional distress. It is the nature of the loss allegedly
suffered by plaintiff in this case that distinguishes his claim of
intentional infliction of severe emotional distress from the torts of
alienation of affections and criminal conversation. He claims to have
suffered severe emotional distress as a result of Johnson’s alleged
intentional conduct; his claimed loss is not the loss of his wife’s
society and companionship. That Johnson allegedly used his sexual
relationship with plaintiff’s wife as the means to intentionally inflict
severe emotional distress on plaintiff does not transform plaintiff’s
claim into one for either alienation of affections or criminal
conversation.
Spiess v. Johnson, 748 P.2d 1020 (Or. App.), aff’d, 765 P.2d 811 (Or. 1988)
(italics in original). The distinctions drawn here can be difficult to manage;
perhaps unsurprisingly, courts disagree about whether liability survives
these statutes in various factual situations — as when, for example, a
husband discovers that he is not the father of his children. Compare G.A.W.,
III v. D.M.W., 596 N.W.2d 284 (Minn. App. 1999) (finding that such claims
survive passage of the state’s heart balm statute), with Doe v. Doe, 747 A.2d
617 (Md. 2000) (finding that they do not).
7. Public figures. In Hustler Magazine v. Falwell, 485 U.S. 46 (1988),
Hustler magazine published a parody of an advertisement for Campari
Liqueur. The actual Campari advertisements featured interviews with
celebrities about their “first times”; this referred to the first time the
celebrities had sampled Campari, but the ads also attempted to create
amusement through the sexual connotations of the term. The Hustler parody
copied the format and layout of the Campari ads; it featured the plaintiff,
Jerry Falwell, stating that his “first time” was during a drunken incestuous
rendezvous with his mother in an outhouse. The item contained a small
disclaimer at the bottom reading, “ad parody — not to be taken seriously.”
Falwell sued Hustler for intentional infliction of emotional distress, libel,
and other torts. A jury brought in a verdict for Hustler on the libel claim,
finding that the parody could not “reasonably be understood as describing
actual facts about [Falwell] or actual events in which [he] participated,” but
it ruled in Falwell’s favor on the emotional distress claim, awarding him
$100,000 in compensatory damages and $50,000 in punitive damages. The
trial court entered judgment on the verdict. The United States Supreme
Court held the result unconstitutional:
Despite their sometimes caustic nature, from the early cartoon

portraying George Washington as an ass down to the present day,
graphic depictions and satirical cartoons have played a prominent role
in public and political debate. Nast’s castigation of the Tweed Ring,
Walt McDougall’s characterization of Presidential candidate James G.
Blaine’s banquet with the millionaires at Delmonico’s as “The Royal
Feast of Belshazzar,” and numerous other efforts have undoubtedly
had an effect on the course and outcome of contemporaneous debate.
Lincoln’s tall, gangling posture, Teddy Roosevelt’s glasses and teeth,
and Franklin D. Roosevelt’s jutting jaw and cigarette holder have
been memorialized by political cartoons with an effect that could not
have been obtained by the photographer or the portrait artist. From
the viewpoint of history it is clear that our political discourse would
have been considerably poorer without them.
Respondent contends, however, that the caricature in question
here was so “outrageous” as to distinguish it from more traditional
political cartoons. There is no doubt that the caricature of respondent
and his mother published in Hustler is at best a distant cousin of the
political cartoons described above, and a rather poor relation at that.
If it were possible by laying down a principled standard to separate
the one from the other, public discourse would probably suffer little
or no harm. But we doubt that there is any such standard, and we are
quite sure that the pejorative description “outrageous” does not
supply one. “Outrageousness” in the area of political and social
discourse has an inherent subjectiveness about it which would allow a
jury to impose liability on the basis of the jurors’ tastes or views, or
perhaps on the basis of their dislike of a particular expression. An
“outrageousness” standard thus runs afoul of our longstanding refusal
to allow damages to be awarded because the speech in question may
have an adverse emotional impact on the audience. . . .
We conclude that public figures and public officials may not
recover for the tort of intentional infliction of emotional distress by
reason of publications such as the one here at issue without showing
in addition that the publication contains a false statement of fact
which was made with “actual malice,” i.e., with knowledge that the
statement was false or with reckless disregard as to whether or not it
was true.
The “actual malice” standard the Court set out in the last paragraph is
the same one that the Court had fashioned in prior cases, notably New York
Times v. Sullivan, 376 U.S. 254 (1964), for claims by public figures that
they have been libeled by a defendant’s false statements.
8. Private figures. In Van Duyn v. Smith, 527 N.E.2d 1005 (Ill. App.
1988), the plaintiff, Margaret Van Duyn, was the executive director of an
abortion clinic in Peoria. The defendant was an anti-abortion activist. The
plaintiff alleged, among other things, that the defendant followed her in his
car on several occasions, that he confronted her at the airport and interfered
with her comings and goings there, that he picketed her residence and
workplace, and that he published disparaging posters featuring the
plaintiff’s picture. The first was a “Wanted” poster that resembled those
used by the FBI to identify fugitives; it said that the plaintiff was wanted
“for prenatal killing in violation of the Hippocratic Oath and Geneva
Code,” that she used the alias “Margaret the Malignant,” and that she
participated in killing for profit. At the bottom of the poster were these
words: “Nothing in this poster should be interpreted as a suggestion of any
activity that is presently considered unethical. Once abortion was a crime
but it is not now considered a crime.” The second poster bore the message
“Face the American Holocaust” and featured pictures of aborted fetuses
along with anti-abortion messages. The defendant distributed the posters to
those living within three blocks of the plaintiff’s residence. The plaintiff
sued for intentional infliction of emotional distress and defamation. The
trial court dismissed the complaint; the court of appeals reversed in part,
reinstating the IIED claim:
[T]he court in Hustler Magazine was clear in its holding that only
public officials and public figures may not recover for intentional
infliction of emotional distress based upon publications such as ad
parodies without satisfying the New York Times standard of actual
malice. In our view, the present case does not concern a public
official, nor does it concern public figures as that status has been
defined by the Supreme Court, as those who are “intimately involved
in the resolution of important public questions or, by reason of their
fame, shape events in areas of concern to society at large.” Associated
Press v. Walker, 388 U.S. 130 (1964). Moreover, instances of
involuntary public figures are exceedingly rare.
“For the most part those who attain . . . (public figure) . . . status
have assumed roles of especial prominence in the affairs of society.
Some occupy positions of such persuasive power and influence that
they are deemed public figures for all purposes. More commonly
those classed as public figures have thrust themselves to the forefront
of particular public controversies in order to influence the resolution
of the issues. In either event, they invite attention and comment.”
Gertz v. Robert Welch, 418 U.S. 323, 345 (1973).
We do not consider plaintiff a public figure in this case merely
because of her status as the executive director of an abortion clinic.
Although she must apparently be a pro-choice advocate, we do not
consider her as being in a position to influence society. . . . Although
we do not discount defendant’s right to free speech under the First
Amendment, we do not read Hustler Magazine as requiring proof of
an additional element to the tort of intentional infliction of emotional
distress where the plaintiff is a private individual. Therefore, we
consider it proper to take into account the posters and surrounding
circumstances when determining if defendant’s conduct was
sufficiently outrageous to cause plaintiff to suffer severe emotional
distress.
If the only alleged actions were the contents and distribution of
the two posters, we would be inclined to affirm the trial court’s
dismissal. However, the distribution of the posters is just the last in a
series of events that has spanned a two year period. We find it
particularly bothersome that defendant, a seemingly well-educated
person, would stoop to following, in his car, plaintiff while she was
driving her car and to confronting plaintiff at the airport and
preventing her ingress and egress. We believe this type of behavior,
compounded with the other acts alleged, is worthy of a jury’s
consideration whether defendant is liable for the intentional infliction
of emotional distress. . . .
What is the distinction between Van Duyn v. Smith and Hustler

Magazine v. Falwell?
9. Limited purpose public figures. In Walko v. Kean College, 561 A.2d
680 (N.J. Super. Law Div. 1988), the plaintiff, Ann Walko, was an
instructor at the school of education at Kean College and assistant to the
dean there. The student newspaper, The Independent, published a parody
issue titled The Incredible. Its contents included a mock advertisement for a
telephone sex service called “Whoreline”; the ad listed the plaintiff’s name
along with the names of three other well-known figures on campus. The
satirical advertisement evidently had something to do with a controversy on
campus regarding a real telephone hotline offered by the administration.
The plaintiff sued the college for intentional infliction of emotional distress.
The trial court dismissed her claim:
The “Whoreline” ad that plaintiff complained of appeared surrounded

by a page of obviously “fake” ads, in the middle of what was
unquestionably a parody of the usual student newspaper. No
reasonable person, even glancing at the offending ad, could possibly
conclude that it was a factual statement of plaintiff’s availability for
“good telephone sex.” . . . Given all of the surrounding
circumstances, the Court is compelled to conclude that virtually
everyone who read Ann Walko’s name in the “Whoreline” ad would
know that it was a joke . . . not a very good joke, perhaps; downright
vulgar and tasteless, most readers probably would conclude; but
definitely not an assertion of fact that anyone would take seriously.
The court further concluded that the plaintiff was a public figure:
Ann Walko is properly considered a “public figure” within the

college community. . . . The concept of a limited-purpose public
figure has developed in both federal and state law. The “limited”
purpose has generally related to a particular issue, thus defining the
person as a public figure only when the publication in controversy
concerns that issue. E.g., Gomez v. Murdoch, 475 A.2d 622 (N.J.
App. Div. 1984) (jockey is a public figure when publication relates to
his professional performance). A key element, where public figure
status has been so conferred on a plaintiff, is the plaintiff’s own
access to the media. The same concept logically applies to a
particular community — whether it be a geographical, institutional,
or interest-group community. . . .
Two key themes — the plaintiff’s status in the community and the
nature of the issue or controversy — and the interaction between
them “reflect changing relationships between the policies of
encouraging free speech and fairness to the individual.” Sisler v.
Gannett Co., Inc., 516 A.2d 1083. That the Kean College “Hotline”
which is parodied in the offending ad was the subject of a then
current controversy, along with plaintiff Ann Walko’s status as an
instructor and administrator at Kean College, support a finding that
she is a limited-purpose public figure for purposes of applying the
Hustler decision to this case.
Is there a satisfactory distinction between Walko v. Kean College and

Van Duyn v. Smith?
10. Berating the brides (problem). In Murray v. Schlosser, 574 A.2d
1339 (Conn. Super. 1990), the defendants were the hosts of a radio show
broadcast in Hartford. On Thursdays the defendants conducted a feature
called “Berate the Brides.” They would review the photographs
accompanying the wedding announcements in the Hartford Courant
newspaper and invite their listeners to call in and vote for the “dog of the
week.” On the day in question the defendants named the plaintiff the dog of
the week. One of the hosts concluded that the plaintiff was “too ugly even
to rate”; the other host said that she wouldn’t want to see her worst enemy
with the plaintiff. They announced that the plaintiff had been awarded a
collar and a case of Ken-L-Ration dog food. The plaintiff sued on several
theories, including intentional infliction of emotional distress. What result
on that count?
11. Statutory intersections. In addition to giving rise to possible claims
of outrage, harassing behavior in the workplace also may create liability
under federal civil rights statutes. Title VII of the Civil Rights Act of 1964
(42 U.S.C. §2000e et seq.) and 42 U.S.C §1981 both provide for relief to
employees harassed on account of their race; Title VII also has been
interpreted to permit claims for sexual harassment — whether between
members of the opposite sex or the same sex — that creates an “abusive
working environment.” See Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993);
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). In certain
circumstances student plaintiffs also have the right to sue school districts
under a federal statute (Title IX of the Education Amendment of 1972) for
sexual harassment by teachers or by other students if the school’s
authorities have notice of the acts and display “deliberate indifference”
concerning them. The details of these statutory causes of action are beyond
the scope of this book; they are considered in courses on employment law.
But it is important to understand that such claims sometimes are brought
alongside claims of liability for outrage, and that the substantive standards
and procedural rules governing the two forms of liability can differ
significantly.
Chapter 2
Intentional Torts: Privileges
Once a plaintiff has made out a prima facie case of battery or another
intentional tort, the defendant may deny some element of the plaintiff’s case
— claiming, for example, that he lacked the intent necessary for a battery.
But a defendant also can raise affirmative defenses: claims that while the
basic elements of a battery or trespass may be made out, other
circumstances also are present that excuse the defendant’s behavior. In this
chapter we focus primarily on two examples: the privilege created by the
need to defend one’s person and property, and the necessity privilege. At
the end of the chapter we briefly consider two additional privileges: public
necessity and the imposition of discipline.
A. DEFENSE OF PERSON AND PROPERTY
Katko v. Briney
183 N.W.2d 657 (Iowa 1971)
[The defendants, Edward and Bertha Briney, owned an 80-acre farm in

Iowa with a house on it. They did not live there; they used the house mostly
for storage. After suffering a series of trespasses and break-ins at the house,
the Brineys boarded up its windows and doors and posted “no trespass”
signs nearby. After still another break-in Edward Briney set a trap in one of
the bedrooms. He tied a 20-gauge shotgun to an iron bed with the barrel
pointed at the bedroom door, then ran a wire from the doorknob to the gun’s
trigger so that it would fire when the door was opened. Briney first pointed
the gun so an intruder would be hit in the stomach, but at his wife’s
suggestion it was lowered to hit the legs. He later stated that he set the gun
because he “was mad and tired of being tormented,” but also testified that
he “did not intend to injure anyone.” He nailed tin over the bedroom
window. The spring gun could not be seen from the outside, and no warning
of its presence was posted.
[The plaintiff broke into the house with a friend in search of antiques.
He entered the bedroom and set off the gun; it removed much of his right
leg. The plaintiff remained in the hospital for 40 days. He was prosecuted,
pled guilty to petty larceny, was fined $50, and was paroled from a 60-day
jail sentence. He then brought suit against the Brineys. At the Brineys’
request the plaintiff’s action was tried to a jury consisting of residents of the
community where the defendants’ property was located. The jury returned a
verdict for the plaintiff and against the defendants for $20,000 actual and
$10,000 punitive damages. The trial court entered judgment on the verdict.
The Brineys appealed.]
MOORE, C.J. — . . . The main thrust of defendants’ defense in the trial

court and on this appeal is that “the law permits use of a spring gun in a
dwelling or warehouse for the purpose of preventing the unlawful entry of a
burglar or thief.” They repeated this contention in their exceptions to the
trial court’s instructions 2, 5 and 6. They took no exception to the trial
court’s statement of the issues or to other instructions. . . .
Instruction 6 stated: “An owner of premises is prohibited from willfully
or intentionally injuring a trespasser by means of force that either takes life
or inflicts great bodily injury; and therefore a person owning a premise is
prohibited from setting out ‘spring guns’ and like dangerous devices which
will likely take life or inflict great bodily injury, for the purpose of harming
trespassers. The fact that the trespasser may be acting in violation of the law
does not change the rule. The only time when such conduct of setting a
‘spring gun’ or a like dangerous device is justified would be when the
trespasser was committing a felony of violence or a felony punishable by
death, or where the trespasser was endangering human life by his act.” . . .
The overwhelming weight of authority, both textbook and case law,
supports the trial court’s statement of the applicable principles of law.
Prosser on Torts, Third Edition, pages 116-118, states:
“ . . . 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 a self-
defense. . . . [S]pring guns and other mankilling devices are not
justifiable against a mere trespasser, or even a petty thief. They are
privileged only against those upon whom the landowner, if he were
present in person would be free to inflict injury of the same kind.”
Restatement of Torts, section 85, page 180, states: “The value of human
life and limb, not only to the individual concerned but also to society, so
outweighs the interest of a possessor of land in excluding from it those
whom he is not willing to admit thereto that a possessor of land has, as is
stated in §79, no privilege to use force intended or likely to cause death or
serious harm against another whom the possessor sees about to enter his
premises or meddle with his chattel, unless the intrusion threatens death or
serious bodily harm to the occupiers or users of the premises. . . . A
possessor of land cannot do indirectly and by a mechanical device that
which, were he present, he could not do immediately and in person.
Therefore, he cannot gain a privilege to install, for the purpose of protecting
his land from intrusions harmless to the lives and limbs of the occupiers or
users of it, a mechanical device whose only purpose is to inflict death or
serious harm upon such as may intrude, by giving notice of his intention to
inflict, by mechanical means and indirectly, harm which he could not, even
after request, inflict directly were he present.”
In Volume 2, Harper and James, The Law of Torts, section 27.3, pages
1440, 1441, this is found: “The possessor of land may not arrange his
premises intentionally so as to cause death or serious bodily harm to a
trespasser. The possessor may of course take some steps to repel a trespass.
If he is present he may use force to do so, but only that amount which is
reasonably necessary to effect the repulse. Moreover if the trespass
threatens harm to property only — even a theft of property — the possessor
would not be privileged to use deadly force, he may not arrange his
premises so that such force will be inflicted by mechanical means. If he
does, he will be liable even to a thief who is injured by such device.” . . .
The legal principles stated by the trial court in [its] instructions . . . are
well established and supported by the authorities cited and quoted supra.
There is no merit in defendants’ objections and exceptions thereto.
Defendants’ various motions based on the same reasons stated in exceptions
to instructions were properly overruled.
Plaintiff’s claim and the jury’s allowance of punitive damages, under
the trial court’s instructions relating thereto, were not at any time or in any
manner challenged by defendants in the trial court as not allowable. We
therefore are not presented with the problem of whether the $10,000 award
should be allowed to stand. . . .
Affirmed.
LARSON, J., dissenting. . . . The better rule is that an owner of buildings

housing valuable property may employ the use of spring guns or other
devices intended to repel but not seriously injure an intruder who enters his
secured premises with or without a criminal intent, but I do not advocate its
general use, for there may also be liability for negligent installation of such
a device. What I mean to say is that under such circumstances as we have
here the issue as to whether the set was with an intent to seriously injure or
kill an intruder is a question of fact that should be left to the jury under
proper instructions, that the mere setting of such a device with a resultant
serious injury should not as a matter of law establish liability.
Although I am aware of the often-repeated statement that personal
rights are more important than property rights, where the owner has stored
his valuables representing his life’s accumulations, his livelihood business,
his tools and implements, and his treasured antiques as appears in the case
at bar, and where the evidence is sufficient to sustain a finding that the
installation was intended only as a warning to ward off thieves and
criminals, I can see no compelling reason why the use of such a device
alone would create liability as a matter of law. . . .
NOTES
1. American Gothic. The result in Katko was controversial and stirred

some onlookers to mail unsolicited contributions to the Brineys to help pay
the damage award Katko had obtained against them. The Brineys
nevertheless were unable to satisfy the entire judgment, so Katko moved to
have their house auctioned off by the sheriff. It was purchased by
sympathetic neighbors who then leased it back to the Brineys. Relations
between the parties later turned sour, however; the value of the property
went up, and the neighbors sought to oust the Brineys from the property.
For more background on Katko v. Briney, see Geoffrey W. R. Palmer, The
Iowa Spring Gun Case: A Study in American Gothic, 56 Iowa L. Rev. 1219
(1971).
2. Calibrated measures. If a peaceful but determined trespasser refuses
to leave an owner’s property despite the owner’s protests and gentle
physical encouragement, what is the owner to do? Is notice relevant? Would
the outcome in Katko v. Briney have been different if the defendant had
marked the house with clear warnings?
3. Escaping thieves. In Wright v. Haffke, 196 N.W.2d 176 (Neb. 1972),
the plaintiff and a confederate entered a grocery store owned and operated
by the defendant, Haffke. When they reached the checkout counter, one of
them knocked Haffke off balance; Haffke saw them reach into the cash
register and then turn for the door. He drew a gun and shot the plaintiff in
the back. The plaintiff sued Haffke, who defended on the ground that he
was privileged to use a gun to protect his property. The jury brought in a
verdict for the defendant, and the Nebraska Supreme Court affirmed:
It is plaintiff’s contention that the use of a firearm in view of the

circumstances herein constituted the use of unreasonable force as a
matter of law. With this we do not agree. We do not believe that a
person must docilely submit to robbery and the spiriting away of his
property by a felon. To hold otherwise would seriously hamper the
right of law-abiding individuals to peacefully enjoy their property;
would encourage felons in the pursuit of their nefarious activities;
and would make a farce of our criminal law. Ordinarily, a firearm
may be used if reasonably necessary to prevent the commission of a
felony or to arrest a felon after a felony has been committed. We do
not disagree with plaintiff that the law generally places a higher value
upon human life than mere rights of property. When a firearm is used,
the question always is whether the force used exceeded permissible
limits and is a question for the jury under proper instructions. . . .
There is a conflict among the various jurisdictions as to whether
one may resort to a firearm to prevent a theft of property. See
Annotation, 100 A.L.R.2d 1012. The conflict, however, is in most
instances one of degree. For minor thefts the use of a firearm would
not be justified, but for more serious felonies, such as robbery, the use
may be justified. In this case, the shooting occurred after the
participants had committed an assault and while they were attempting
to commit a robbery. Defendant owed plaintiff no duty of affirmative
care, and had the right to resist the attempted robbery and to use
whatever means lay within his power, necessary to that end, even to
the extent of using a firearm to retain his property. It was for the jury
to determine, however, whether the plaintiff was actually engaged in
an attempt to commit a robbery or, if not, whether defendant had
reasonable grounds to so believe.
What is the distinction between Wright v. Haffke and Katko v. Briney

(the L case of the spring gun)?
4. Watchdogs. In Woodbridge v. Marks, 45 N.Y.S. 156 (N.Y. App. Div.
1897), the defendant had two watchdogs that he knew to be vicious. They
were chained to rods on his property that gave them about 50 feet of range
apiece. The chains allowed the dogs to protect the defendant’s ice house and
chicken house but did not allow either dog to reach the residence or the
walkways leading to it. The residence was used only in the summer and was
unoccupied at the time of the incident giving rise to the case. The plaintiff’s
evidence was that he had entered the property in the evening in search of a
man he believed was at work in the barn. The plaintiff left the defendant’s
walkways because he was unable to follow them in the darkness. One of the
defendant’s dogs met the plaintiff, threw him down, and severely injured
him. He sued the defendant to recover for his injuries. The jury brought in a
verdict for the plaintiff and the court entered judgment upon it. The
Appellate Division reversed, holding that judgment must be entered for the
defendant. Said the court:
[I]f, as a matter of law, a man whose ferocious dog bites another is

liable for the injury, no matter how the dog was confined at the time,
or under what circumstances the injury was done, provided only the
owner knew him to be ferocious, it follows that it is practically
impossible to lawfully keep a dog for the purpose of defending one’s
premises. If the dog must be so confined that under no circumstances
can he attack or injure a trespasser, then he may as well be dead; and
the rule results in this: that no dog capable of defending property can
be lawfully kept by any person. In my judgment, it has not yet been
decided in this state that a man may not lawfully keep and cautiously
use a ferocious dog for the defense of his premises in the nighttime,
or that a trespasser who comes in the way of a dog so used can
recover for injuries sustained, even though his trespass is inspired by
no wrongful purpose.
[T]he mere keeping of a ferocious dog, knowing him to be such,
for the purpose of defending one’s premises, is not in itself unlawful;
and, when injury follows from one so kept, the manner of his
confinement and the circumstances attending the injury are all to be
considered in determining the owner’s liability.
The plaintiff in Woodbridge said his case was analogous to cases

involving spring guns; the court responded elsewhere in its opinion that
“the analogy is not complete.” Why? What is the distinction between
Woodbridge v. Marks and Katko v. Briney?
5. Egg-sucking dog. In Hull v. Scruggs, 2 So. 2d 543 (Miss. 1941), the
plaintiff and defendant lived about a mile apart. For three weeks before the
incident, the plaintiff’s dog had come on to the defendant’s property and
sucked all the eggs which were laid by the defendant’s turkeys and guinea
hens. The defendant finally shot the dog and killed it. The plaintiff sued the
defendant to recover for the value of the animal. The jury brought in a
verdict for the plaintiff, and the defendant appealed. The Mississippi
Supreme Court reversed:
It is a fact of common knowledge that when a dog has once acquired

the habit of egg-sucking there is no available way by which he may
be broken of it, and that there is no calculable limit to his appetite in
the indulgence of the habitual propensity. And generally he has a
sufficient degree of intelligence that he will commit the offense, and
return to it upon every clear opportunity, in such a stealthy way that
he can seldom be caught in the act itself.
When a dog of that character has for three weeks taken up his
abode upon the premises of one not his owner, or else from time to
time during the course of such a period and from day to day as well
as often during the night, has returned to and entered upon the
premises of one not his owner, and has destroyed and continued to
destroy all the eggs of the fowls kept by the owner of the premises,
what shall the victimized owner of the premises do? Nobody will
contend that he shall be obliged to forgo the privilege to own and
keep fowls and to obtain and have the eggs which they lay; nor will it
be contended that he is obliged to build extra high fences, so high as
to keep out the trespassing dog, even if fences could be so built. The
premises and its privileges belong to the owner thereof, not to the
dog.
He must then, as the most that could be required of him, take one
or the other, and when necessary all, of the three following courses:
(1) He must use reasonable efforts to drive the dog away and in such
appropriate manner as will probably cause him to stay away; or (2) he
must endeavor to catch the dog and confine him to be dealt with in a
manner which we do not enter upon because not here before us; or (3)
he must make reasonable efforts to ascertain and notify the owner of
the dog, so that the latter may have opportunity to take the necessary
precautions by which to stop the depredations. It is undisputed in this
record that the owner of the premises resorted in a reasonably diligent
manner and for a sufficient length of time to each and all of the three
foregoing courses of action, but his reasonable efforts in that pursuit
resulted, every one of them, in failure.
What else was there reasonably left but to kill the animal? There
was nothing else; and we reject the contention, which seems to be the
main ground taken by appellee, that admitting all that has been said,
the dog could not lawfully be killed except while in the actual
commission of the offense. This is a doctrine which applies in many
if not most cases, but is not available under facts such as presented by
this record. After such a period of habitual depredation as shown in
this case, and having taken the alternative steps aforementioned, the
owner of the premises is not required to wait and watch with a gun
until he can catch the predatory dog in the very act. Such a dog would
be far more watchful than would the watcher himself, and the
depredation would not occur again until the watcher had given up his
post and had gone about some other task, but it would then recur, and
how soon would be a mere matter of opportunity.
What is the distinction between Hull v. Scruggs and Katko v. Briney (the
L case of the spring gun)?
6. Animal vs. animal. In Kershaw v. McKown, 196 Ala. 123 (Ala.
1916), the plaintiff sued the defendant for killing his dog. The dog had been
attacking the defendant’s goat. The trial court instructed the jury as follows:
If you believe from the evidence that the dog here sued for was not
worth greatly more than the goat, and if you further believe that the
dogs were acting in a way that would lead a reasonably prudent man
to conclude that it was necessary to kill these dogs in order to save
the life of the goat or save it from great bodily harm, then you should
render a verdict for defendant.
The jury brought in a verdict for the defendant, and the plaintiff
appealed; the plaintiff made the following argument that the instruction the
jury was given had been defective:
The charges refused to plaintiff asserted the proposition that, if the

goat which was being attacked was of less value than that of the dog
killed, or if the value of the two was not greatly disproportionate, the
verdict should be for the plaintiff for the value of the dog killed, and
that, if defendant could have driven the dogs away, and thus save the
goat from harm or death, then he had no right to kill the dog.
Held, for the defendant, that the jury was instructed properly:
The most that can properly be said as a rule of law is, that there must
be an apparent necessity for the defense, honestly believed to be real,
and then the acts of defense must in themselves be reasonable. Acts
beyond reason are excessive. The consequences of the proposed act
to the aggressor should be considered in connection with the
consequences of nonaction to the party defending, whether the
defense be made in favor of person or property; and in case of
defense of domestic animals from attacks of other animals the
relative value of the animals may be a proper circumstance for the
jury to consider in arriving at a conclusion whether the defense was a
reasonable one under the circumstances.
How were the instructions the plaintiff wanted different from those
actually used? Why should the defendant be required to pay damages if his
goat was worth much less than the plaintiff’s dog, but not required to pay
damages if his goat was worth more, or was worth about the same amount?
Suppose the dog had been of distinguished pedigree, and so “worth greatly
more than the goat.” What was the defendant supposed to do then?
An earlier appellate court opinion in Kershaw explained the question of
relative value in this way:
[N]ot only out of a regard for the peace and good order of society . . .
but from a sense of abstract right and justice, the law, as a rule,
forbids the killing by one of another’s hog in order to protect his own
chicken because, if it permitted it, the result would be to lay down a
doctrine that would allow the destruction of a $50 hog to save a 50-
cent chicken, and, consequently, would be measuring the right of a
chicken owner by a standard out of all proportion to the wrong done,
or suffered to be done, by the hog owner. Certainly, no man would
contend that it would be right for the law to countenance the killing
of a horse to save the life of a chicken that was at the time being
viciously trampled upon by the horse.
12 Ala. App. 485, 488-489. Some states nevertheless reject the notion that
the value of a dog should be taken into account in assessing a defendant’s
liability for shooting such an animal when it threatens livestock —
especially when the defendant’s right to kill the dog is established by
statute. See, e.g., Granier v. Chagnon, 203 P.2d 982 (Mont. 1949) (“It
matters not whether the sheep-stealing dog be a patrician or a plebeian dog.
Each suffers the same fate.”).
7. Beasts of a stranger. The problem of trespassing livestock was a

familiar one to the common law. The favored response was to “distrain”
(seize) the offending animal and condition its release on the owner’s
payment of damages. See 4 William Blackstone, Commentaries on the
Laws of England 1024:
Another injury for which distresses may be taken is where a man

finds beasts of a stranger wandering in his grounds damage-feasant;
that is, doing him hurt or damage by treading down his grass or the
like; in which case the owner of the soil may distrain them till
satisfaction be made him for the injury he has thereby sustained.
The common law license to impound trespassing animals is now widely

regulated by statute; see, e.g., Del. Code Ann. tit. 3, §7702:
Any person or resident owning land in this State may take up any
livestock found running at large upon the public highways or on lands
owned by that person and impound the same. Such person may
demand and receive a reasonable sum for the care and feeding of the
animal or animals while in his care. The care and shelter provided shall
be humane and shall be adequate for the size and class of livestock
impounded.
8. The single owner principle. In Bamford v. Turnley, 122 Eng. Rep. 25,
33 (Exch. Ch. 1862), rev’g 122 Eng. Rep. 25 (Q.B. 1860), the defendant
was a brickmaker sued by one of his neighbors for creating a nuisance.
Bramwell, B., made a famous argument by analogy that “[i]t is for the
public benefit that trains should run, but not unless they pay their expenses.
If one of these expenses is the burning down of a wood of such value that
the railway owners would not run the train and burn down the wood if it
were their own, neither is it for the public benefit that they should if the
wood is not their own. If, though the wood were their own, they still would
find it compensated them to run trains at the cost of burning the wood, then
they obviously ought to compensate the owner of such wood, not being
themselves, if they burn it down in making their gains.” Consider
Bramwell’s argument as a general suggestion that in deciding whether a
defendant has acted wrongfully, we might ask how the situation would have
been handled by a single owner who was responsible both for the source of
the threat and for the property being threatened. Does this approach shed
light on the cases just considered?
9. Rules of engagement. The law governing the privilege of self-defense
contains a number of additional intricacies. The following excerpts from the
Restatement (Second) of Torts illustrate them. These are best understood as
attempts to summarize the law on questions where case law often is scarce;
they do not represent rules that all jurisdictions can be expected to follow.
They are offered here just to show the range of problems that can arise in
this area of law and some proposed solutions to them.
§63. SELF-DEFENSE BY FORCE NOT THREATENING

DEATH OR SERIOUS BODILY HARM
Comment 1. Actor’s duty to avoid force. The actor cannot

reasonably believe that the use of force is necessary until he has
exhausted all other reasonably safe means of preventing the other
from inflicting bodily harm upon him.
Illustration 13. A in the dusk mistakes B for C. A approaches B
with his cane raised as if to strike and says: “Now, C, I have my
chance to punish you.” B has ample time to disclose his identity
before A can get within striking distance. He does not do so but
awaits A’s attack and knocks him down. B is subject to liability to A.
Comment m. Actor’s duty to retreat. The actor, if he reasonably
believes that he is threatened with the intentional imposition of bodily
harm, or even of an offensive contact, may stand his ground and repel
the attack by the use of reasonable force, which does not threaten
serious harm or death, even though he might with absolute certainty
of safety avoid the threatened bodily harm or offensive contact by
retreating.
Illustration 14. A is standing on a public highway. B, who is some
distance away, runs toward A, brandishing a cane and threatening to
beat him. A may stand his ground, await B’s attack and defend
himself against it by knocking B down, although A knows that B is
lame and that he can with perfect safety avoid the threatened beating
by retreat. [But see Illustration 5 below.]
§65. SELF-DEFENSE BY FORCE THREATENING DEATH OR SERIOUS BODILY

HARM
Illustration 1. A attempts to slap B’s face. B is not privileged to

shoot or stab A to prevent him from doing so, although, being much
weaker than A, B cannot otherwise prevent A from slapping him.
Illustration 5. A is standing upon a public highway. B, while still
some distance away, starts towards A brandishing a razor and
threatening to kill him. B is lame, and A knows that he can with
perfect safety avoid B’s attack by running away. A is not privileged to
stand his ground, await B’s attack and shoot or stab B to defend
himself against it.
Comment i. Standing one’s ground in his dwelling place. [O]ne
attacked in his dwelling place may await his assailant and use deadly
force to repel him though he could prevent the assailant from
attacking him by closing the door and so excluding the assailant from
the premises. But the mere fact that a man is threatened with an
attack while he is within his own dwelling place does not justify him
in using deadly weapons if he can avoid the necessity of so doing by
any alternative other than flight or standing a siege. A man can no
more justify using deadly weapons when he is in his own home than
he can when he is upon a public highway, if he can avoid the
necessity of doing so by complying with a demand, other than a
demand that he shall retreat, give up the possession of his dwelling or
permit an intrusion into it, or abandon an attempt to make a lawful
arrest.
Illustration 6. A is standing in the vestibule of his dwelling house.
B starts toward A brandishing a razor and threatening to kill him. A is
privileged to stand his ground, await B’s attack and shoot or stab him,
although A could with perfect safety avoid B’s attack by retreating to
an inner room or by closing and locking the door of the vestibule.
Illustration 7. A goes to B’s dwelling place. Having gained
admittance peaceably, he points a revolver at B and threatens to shoot
him unless B gives him a watch which B is carrying and which is the
property of B, but which A in good faith claims to be his. In
determining whether B is privileged to defend himself by shooting A
rather than give up the watch, the fact that the demand is made upon
him in his own dwelling place instead of upon a public highway is
immaterial.
§73. HARMFUL CONTACT IN DEFENSE AGAINST HARM THREATENED

OTHERWISE THAN BY OTHER
Illustration 3. A and B are sailing in a small boat, which is about
to be swamped by a squall. The boat is manifestly incapable of
carrying both. A, being the stronger, pushes B into the water. A
reaches shore in safety in the boat, but B drowns. A is subject to
liability under a wrongful death statute for the death of B.
§76. DEFENSE OF THIRD PERSON
The actor is privileged to defend a third person from a harmful or

offensive contact or other invasion of his interests of personality
under the same conditions and by the same means as those under and
by which he is privileged to defend himself if the actor correctly or
reasonably believes that
(a) the circumstances are such as to give the third person a
privilege of self-defense, and
(b) his intervention is necessary for the protection of the third
person.
Illustration 4. A attacks B, knocks him down, draws a knife, and
is about to stab B. C, a bystander who is a stranger to both A and B,
intervenes to protect B, and strikes A on the head with a pitchfork,
inflicting serious injury. C is not liable to A.
§261. PRIVILEGE OF SELF-DEFENSE OR DEFENSE OF THIRD PERSON
One is privileged to commit an act which would otherwise be a

trespass to or a conversion of a chattel in the possession of another,
for the purpose of defending himself or a third person against the
other, under the same conditions which would afford a privilege to
inflict a harmful or offensive contact upon the other for the same
purpose.
Illustration 1. A, while visiting in B’s house, is assaulted by B,
who seizes a valuable vase to hurl at him. To protect himself, A picks
up B’s umbrella, and with it knocks the vase out of B’s hands and
breaks it and the umbrella. A is not liable to B for the value of either
the umbrella or the vase.
B. PRIVATE NECESSITY
Ploof v. Putnam
81 Vt. 471, 71 A. 188 (1908)
MUNSON, J. — It is alleged as the ground of recovery that on the 13th

day of November, 1904, the defendant was the owner of a certain island in
Lake Champlain, and of a certain dock attached thereto, which island and
dock were then in charge of the defendant’s servant; that the plaintiff was
then possessed of and sailing upon said lake a certain loaded sloop, on
which were the plaintiff and his wife and two minor children; that there
then arose a sudden and violent tempest, whereby the sloop and the
property and persons therein were placed in great danger of destruction;
that, to save these from destruction or injury, the plaintiff was compelled to,
and did, moor the sloop to defendant’s dock; that the defendant, by his
servant, unmoored the sloop, whereupon it was driven upon the shore by
the tempest, without the plaintiff’s fault; and that the sloop and its contents
were thereby destroyed, and the plaintiff and his wife and children cast into
the lake and upon the shore, receiving injuries. This claim is set forth in two
counts — one in trespass, charging that the defendant by his servant with
force and arms willfully and designedly unmoored the sloop; the other in
case, alleging that it was the duty of the defendant by his servant to permit
the plaintiff to moor his sloop to the dock, and to permit it to remain so
moored during the continuance of the tempest, but that the defendant by his
servant, in disregard of this duty, negligently, carelessly, and wrongfully
unmoored the sloop. Both counts are demurred to generally.
There are many cases in the books which hold that necessity, and an
inability to control movements inaugurated in the proper exercise of a strict
right, will justify entries upon land and interferences with personal property
that would otherwise have been trespasses. A reference to a few of these
will be sufficient to illustrate the doctrine. In Miller v. Fandrye, Poph. 161,
trespass was brought for chasing sheep, and the defendant pleaded that the
sheep were trespassing upon his land, and that he with a little dog chased
them out, and that, as soon as the sheep were off his land, he called in the
dog. It was argued that, although the defendant might lawfully drive the
sheep from his own ground with a dog, he had no right to pursue them into
the next ground; but the court considered that the defendant might drive the
sheep from his land with a dog, and that the nature of a dog is such that he
cannot be withdrawn in an instant, and that, as the defendant had done his
best to recall the dog, trespass would not lie. . . . If one have a way over the
land of another for his beasts to pass, and the beasts, being properly driven,
feed the grass by morsels in passing or run out of the way and are promptly
pursued and brought back, trespass will not lie. See Vin. Ab. Trespass, K. a,
pl. 1. A traveler on a highway who finds it obstructed from a sudden and
temporary cause may pass upon the adjoining land without becoming a
trespasser because of the necessity. An entry upon land to save goods which
are in danger of being lost or destroyed by water or fire is not a trespass. In
Proctor v. Adams, 113 Mass. 376, 18 Am. Rep. 500, the defendant went
upon the plaintiff’s beach for the purpose of saving and restoring to the
lawful owner a boat which had been driven ashore, and was in danger of
being carried off by the sea; and it was held no trespass.
This doctrine of necessity applies with special force to the preservation
of human life. One assaulted and in peril of his life may run through the
close of another to escape from his assailant. 37 Hen, VII, pl. 26. One may
sacrifice the personal property of another to save his life or the lives of his
fellows. . . .
It is clear that an entry upon the land of another may be justified by
necessity, and that the declaration before us discloses a necessity for
mooring the sloop. But the defendant questions the sufficiency of the counts
because they do not negative the existence of natural objects to which the
plaintiff could have moored with equal safety. The allegations are, in
substance, that the stress of a sudden and violent tempest compelled the
plaintiff to moor to defendant’s dock to save his sloop and the people in it.
The averment of necessity is complete, for it covers not only the necessity
of mooring, but the necessity of mooring to the dock; and the details of the
situation which created this necessity, whatever the legal requirements
regarding them, are matters of proof, and need not be alleged. It is certain
that the rule suggested cannot be held applicable irrespective of
circumstances, and the question must be left for adjudication upon
proceedings had with reference to the evidence or the charge. . . .
Judgment affirmed and cause remanded.
NOTES
1. Technological solutions. Suppose that instead of appointing a servant
to push away unwanted boats, Putnam had installed a locked gate that
prevented strangers from using his dock, or had bought a dog to frighten
away people like the Ploofs. Liability? If not, why not?
2. Nowhere to run. In Rossi v. DelDuca, 181 N.E.2d 591 (Mass. 1962),
the plaintiff, a young girl, was walking home from school one day with a
friend when they were confronted by a German Weimaraner dog. The girls
tried to run away down an adjacent street. Upon discovering that it was a
dead end, and with the Weimaraner in pursuit, they escaped into a field
owned by the defendant. There, however, they were confronted by two
Great Danes the defendant kept to guard equipment stored in the field. One
of the Danes jumped on the plaintiff and bit her neck. She sued the
defendant for damages under Mass. Gen. Laws ch. 140, §155, which read:
If any dog shall do any damage to either the body or property of

any person, the owner or keeper . . . shall be liable for such damage,
unless such damage shall have been occasioned to the body or property
of a person who, at the time such damage was sustained, was
committing a trespass or other tort, or was teasing, tormenting or
abusing such dog.
The defendant argued that the plaintiff was barred from recovery
because she admitted that she was trespassing on the defendant’s field when
his dogs attacked her. The plaintiff nevertheless was held to have a good
claim; in affirming the trial court’s denial of the defendant’s motion for a
directed verdict, the court said that the pursuit of the plaintiff by the
Weimaraner
brings the case, we think, within the principle that one is privileged to
enter land in the possession of another if it is, or reasonably appears
to be, necessary to prevent serious harm to the actor or his property.
This privilege not only relieves the intruder from liability for
technical trespass . . . but it also destroys the possessor’s immunity
from liability in resisting the intrusion. Ploof v. Putnam, 81 Vt. 471,
71 A. 188 (1908)[.]
What is the distinction between Rossi v. DelDuca and Woodbridge v.
Marks (the NL case in the section on the self-defense privilege where a
watchdog bit a trespasser)?
Vincent v. Lake Erie Transportation Co.

109 Minn. 456, 124 N.W. 221 (1910)
O’BRIEN, J. — The steamship Reynolds, owned by the defendant, was

for the purpose of discharging her cargo on November 27, 1905, moored to
plaintiff’s dock in Duluth. While the unloading of the boat was taking place
a storm from the northeast developed, which at about 10 o’clock P.M., when
the unloading was completed, had so grown in violence that the wind was
then moving at 50 miles per hour and continued to increase during the
night. There is some evidence that one, and perhaps two, boats were able to
enter the harbor that night, but it is plain that navigation was practically
suspended from the hour mentioned until the morning of the 29th, when the
storm abated, and during that time no master would have been justified in
attempting to navigate his vessel, if he could avoid doing so. After the
discharge of the cargo the Reynolds signaled for a tug to tow her from the
dock, but none could be obtained because of the severity of the storm. If the
lines holding the ship to the dock had been cast off, she would doubtless
have drifted away; but, instead, the lines were kept fast, and as soon as one
parted or chafed it was replaced, sometimes with a larger one. The vessel
lay upon the outside of the dock, her bow to the east, the wind and waves
striking her starboard quarter with such force that she was constantly being
lifted and thrown against the dock, resulting in its damage as found by the
jury, to the amount of $500.
We are satisfied that the character of the storm was such that it would
have been highly imprudent for the master of the Reynolds to have
attempted to leave the dock or to have permitted his vessel to drift away
from it. One witness testified upon the trial that the vessel could have been
warped into a slip, and that, if the attempt to bring the ship into the slip had
failed, the worst that could have happened would be that the vessel would
have been blown ashore upon a soft and muddy bank. The witness was not
present in Duluth at the time of the storm, and while he may have been right
in his conclusions, those in charge of the dock and the vessel at the time of
the storm were not required to use the highest human intelligence, nor were
they required to resort to every possible experiment which could be
suggested for the preservation of their property. Nothing more was
demanded of them than ordinary prudence and care, and the record in this
case fully sustains the contention of the appellant that, in holding the vessel
fast to the dock, those in charge of her exercised good judgment and
prudent seamanship.
The situation was one in which the ordinary rules regulating property
rights were suspended by forces beyond human control, and if, without the
direct intervention of some act by the one sought to be held liable, the
property of another was injured, such injury must be attributed to the act of
God, and not to the wrongful act of the person sought to be charged. If
during the storm the Reynolds had entered the harbor, and while there had
become disabled and been thrown against the plaintiffs’ dock, the plaintiffs
could not have recovered. Again, if while attempting to hold fast to the
dock the lines had parted, without any negligence, and the vessel carried
against some other boat or dock in the harbor, there would be no liability
upon her owner. But here those in charge of the vessel deliberately and by
their direct efforts held her in such a position that the damage to the dock
resulted, and, having thus preserved the ship at the expense of the dock, it
seems to us that her owners are responsible to the dock owners to the extent
of the injury inflicted.
In Depue v. Flatau, 100 Minn. 299 (1907), this court held that where the
plaintiff, while lawfully in the defendants’ house, became so ill that he was
incapable of traveling with safety, the defendants were responsible to him in
damages for compelling him to leave the premises. If, however, the owner
of the premises had furnished the traveler with proper accommodations and
medical attendance, would he have been able to defeat an action brought
against him for their reasonable worth?
In Ploof v. Putnam, 71 A. 188 (1908), the Supreme Court of Vermont
held that where, under stress of weather, a vessel was without permission
moored to a private dock at an island in Lake Champlain owned by the
defendant, the plaintiff was not guilty of trespass, and that the defendant
was responsible in damages because his representative upon the island
unmoored the vessel, permitting it to drift upon the shore, with resultant
injuries to it. If, in that case, the vessel had been permitted to remain, and
the dock had suffered an injury, we believe the shipowner would have been
held liable for the injury done.
Theologians hold that a starving man may, without moral guilt, take
what is necessary to sustain life; but it could hardly be said that the
obligation would not be upon such person to pay the value of the property
so taken when he became able to do so. And so public necessity, in times of
war or peace, may require the taking of private property for public
purposes; but under our system of jurisprudence compensation must be
made.
Let us imagine in this case that for the better mooring of the vessel
those in charge of her had appropriated a valuable cable lying on the dock.
No matter how justifiable such appropriation might have been, it would not
be claimed that, because of the overwhelming necessity of the situation, the
owner of the cable could not recover its value.
This is not a case where life or property was menaced by any object or
thing belonging to the plaintiff, the destruction of which became necessary
to prevent the threatened disaster. Nor is it a case where, because of the act
of God, or unavoidable accident, the infliction of the injury was beyond the
control of the defendant, but is one where the defendant prudently and
advisedly availed itself of the plaintiffs’ property for the purpose of
preserving its own more valuable property, and the plaintiffs are entitled to
compensation for the injury done.
[The jury had brought in a verdict for the plaintiff, and the trial court
had issued an order denying a new trial. The court affirmed that order.]
LEWIS, J., dissenting. — . . . It was assumed on the trial before the lower
court that appellant’s liability depended on whether the master of the ship
might, in the exercise of reasonable care, have sought a place of safety
before the storm made it impossible to leave the dock. The majority opinion
assumes that the evidence is conclusive that appellant moored its boat at
respondent’s dock pursuant to contract, and that the vessel was lawfully in
position at the time the additional cables were fastened to the dock, and the
reasoning of the opinion is that, because appellant made use of the stronger
cables to hold the boat in position, it became liable under the rule that it had
voluntarily made use of the property of another for the purpose of saving its
own.
In my judgment, if the boat was lawfully in position at the time the
storm broke, and the master could not, in the exercise of due care, have left
that position without subjecting his vessel to the hazards of the storm, then
the damage to the dock, caused by the pounding of the boat, was the result
of an inevitable accident. If the master was in the exercise of due care, he
was not at fault. The reasoning of the opinion admits that if the ropes, or
cables, first attached to the dock had not parted, or if, in the first instance,
the master had used the stronger cables, there would be no liability. If the
master could not, in the exercise of reasonable care, have anticipated the
severity of the storm and sought a place of safety before it became
impossible, why should he be required to anticipate the severity of the
storm, and, in the first instance, use the stronger cables?
I am of the opinion that one who constructs a dock to the navigable line
of waters, and enters into contractual relations with the owner of a vessel to
moor at the same, takes the risk of damage to his dock by a boat caught
there by a storm, which event could not have been avoided in the exercise
of due care, and further, that the legal status of the parties in such a case is
not changed by renewal of cables to keep the boat from being cast adrift at
the mercy of the tempest.
NOTES
1. Incomplete privilege. Does Vincent contradict Ploof v. Putnam? If

Vincent holds that in cases like Ploof the plaintiff has to pay for any damage
done, what is left of the privilege in Ploof? If the defendant’s behavior in
Vincent was reasonable, why should he be obliged to pay anything to
anyone?
2. The single owner revisited. Recall Baron Bramwell’s suggestion in
Bamford v. Turnley that it may be useful to consider how a conflict would
be resolved if all of its elements were under the same ownership. What are
the implications of this idea for cases like Vincent? Consider Richard A.
Epstein, A Theory of Strict Liability, 1 J. Legal Stud. 2, 158 (1973):
Had the Lake Erie Transportation Company owned both the dock and
the ship, there could have been no lawsuit as a result of the incident.
The Transportation Company, now the sole party involved, would,
when faced with the storm, apply some form of cost-benefit analysis
in order to decide whether to sacrifice its ship or its dock to the
elements. Regardless of the choice made, it would bear the
consequences and would have no recourse against anyone else. There
is no reason why the company as a defendant in a lawsuit should be
able to shift the loss in question because the dock belonged to
someone else. The action in tort in effect enables the injured party to
require the defendant to treat the loss he has inflicted on another as
though it were his own. If the Transportation Company must bear all
the costs in those cases in which it damages its own property, then it
should bear those costs when it damages the property of another.
Is this analysis consistent with the rules governing defense of property

that were considered in the previous section of this chapter?
3. Overnight guests. In Texas Midland Ry. Co. v. Geraldon, 128 S.W.
611 (Tex. 1910), the plaintiff and his wife and child went to the defendant’s
railroad station in the late afternoon to catch a train destined for the town of
Commerce. The train already had left the depot by the time they arrived.
The plaintiff and his family decided to wait inside the station for the next
train, which was to pass through at 5:00 the following morning. At about
10:00 that evening, however, an agent for the railroad company said it was
time to close the building and ordered them out. The plaintiff’s evidence
was that it was raining, that his wife was vulnerable to illness, and that
being forced out into the rain would put her in danger of becoming sick —
and that all of these facts were made known to the agent for the railroad.
When the plaintiff said he would not leave the depot, the agent summoned a
marshal to oust them. Rather than be arrested, the plaintiff left the station
with his family for a boarding house that was 150 to 300 yards away. By the
time they arrived the rain had soaked the plaintiff’s wife to her skin, and she
had no change of clothes (the family’s possessions had been left in boxes at
the station that were nailed shut and waiting to be loaded onto the train);
and as a result she did become sick and suffered various injuries. The
plaintiff sued the railroad for the damages suffered by his wife. The jury
found for the plaintiff and the defendant appealed. The Texas Supreme
Court affirmed:
We must assume, in deference to the verdict of the jury, that the agent
of the railroad company knew that the condition of Mrs. Geraldon
was such that for her to go out into the rain at night would endanger
her health, and we must assume that it was raining to that extent that
made it reasonably certain to the agent that injury to her health might
result from putting her out of the depot into such a rain as was then
falling. Under such circumstances it was not lawful for the agent of
the railroad company to force Mrs. Geraldon out of the room and into
the rain whereby her health might be impaired, and it appearing from
the evidence that the agent of plaintiff in error having thus knowingly
forced Mrs. Geraldon out of the room and into the rain, which caused
her to suffer physical pain, the railroad company was properly held
responsible for the results. Ploof v. Putnam, 81 Vt. 471.
What is the analogy between Texas Midland Ry. Co. v. Geraldon and
Ploof v. Putnam? Is the Texas Midland case inconsistent with Vincent v.
Lake Erie Transportation Co.? Would you expect Texas Midland to be
decided the same way if the facts were repeated today? If not, why not?
4. Jumping the queue. In London Borough of Southwark v. Williams,
[1971] 2 All E.R. 175, a man named Williams and his family were
homeless and living in London. They had no relatives to assist them, nor
was the government’s housing department able to help. They found empty
housing owned by the borough, however, and appropriated it, becoming
“squatters.” When the Borough brought an action to evict them, they
defended on the ground of private necessity. They were denied the use of
the privilege. Said Denning, L.J.:
There is authority for saying that in case of great and imminent

danger, in order to preserve life, the law will permit an encroachment
on private property. . . . The doctrine so enunciated must, however, be
carefully circumscribed. Else necessity would open the door to many
an excuse. . . . If homelessness were once admitted as a defence to
trespass, no one’s house could be safe. Necessity would open a door
which no man could shut. It would not only be those in extreme need
who would enter. There would be others who would imagine that
they were in need, or would invent a need, so as to gain entry. Each
man would say his need was greater than the next man’s. The plea
would be an excuse for all sorts of wrongdoing. So the courts must,
for the sake of law and order, take a firm stand. They must refuse to
admit the plea of necessity to the hungry and the homeless; and trust
that their distress will be relieved by the charitable and the good.
In a concurring opinion, Megaw, L.J., argued that the defendants’
squatting would interfere with the Borough’s system of administrative
allocation:
One factor which has to be borne in mind is that by allowing to be

done what the squatting association wishes to be done there would at
least be the danger that persons who are already on the council’s
housing list may find themselves, in relation to the obtaining of
accommodation, falling behind those who are lower on the list or
who have not been on the list at all; and it can well be understood that
to such persons, who perhaps have been waiting their turn in the
queue for a long time, it might be a matter of great heart burning, and
perhaps the end of any possibility of maintaining the fairness to
everyone which is inherent in an orderly queue.
What is the distinction between the Borough of Southwark case and

Ploof v. Putnam? What is the distinction between Borough of Southwark
and Texas Midland Ry. Co. v. Geraldon? What is different about the
circumstances under which the respective defendants have appropriated the
plaintiffs’ property?
5. High transaction costs? One way to interpret cases like Ploof and
Vincent is by positing that property rights must give way when human life
or catastrophic property damage is threatened. The challenge for this view
is to explain why Borough of Southwark was a case of liability for trespass.
The concurring opinion in the case suggests one answer: to allow squatting
by the defendants would be to unravel a program that does more than
squatting to help homeless people. But what if there were no such
alternative program and relatively few squatters? Would the result in the
case be different?
Many economic analysts subscribe to a theory that suggests the result
should not be different. They argue that the law treats rights as more
flexible and less absolute in situations where it is hard to enter into
voluntary transactions over them. So when it is difficult for parties to make
deals with each other as a practical matter (when “transaction costs” are
high), the law allows people to take each other’s entitlements and pay
damages; by awarding damages, the law makes the deal for the parties that
they might have made for themselves if bargaining had been feasible. When
transaction costs are low, the law is more likely to protect rights with
“property rules” that result in stronger sanctions than the payment of
damages if they are violated — e.g., fines or imprisonment. See Calabresi
& Melamed, Property Rules, Liability Rules, and Inalienability: One View
of the Cathedral, 85 Harv. L. Rev. 1089 (1972).
Does this theory explain cases like Ploof and Vincent? In a sense
bargaining was possible in those cases; the parties could have identified
each other easily enough, and could have made offers that might have been
accepted or rejected. So why was it held that Ploof was allowed to skip the
bargaining and trespass even if Putnam did not want him there? Some
economists would argue that a privilege is necessary in cases like Ploof
because real bargaining is quite difficult in such situations. They involve
not only little time to negotiate, but also bilateral monopolies: situations
where each side has no alternative but to bargain with the other, which may
give one of the parties inordinate leverage. Putnam, for example, would
seem to be in a position to demand nearly any price from Ploof, in the same
way an ordinary monopolist can demand supercompetitive prices for goods.
So while voluntary transactions are possible here, the problem from an
economic standpoint is that there is not a well-functioning market for the
rights involved. If the Ploofs knew in advance that they would need use of a
dock, and had been able to bargain with every dock owner on the island,
presumably they would have been able to reach reasonable terms with most
any of them. Perhaps it is this situation that the law tries to mimic by
allowing the Ploofs to occupy Putnam’s dock (subject, presumably, to the
damages rule of Vincent).
Were transaction costs high in the Borough of Southwark case?
C. PUBLIC NECESSITY
1. Mouse’s case. In Mouse’s Case, 77 Eng. Rep. 1341 (K.B. 1609), the
report ran as follows (note that the word “surcharge” as used below is a
verb meaning “overload”):
In an action of trespass brought by Mouse, for a casket, and a

hundred and thirteen pounds, taken and carried away, the case was,
the ferryman of Gravesend, took forty-seven passengers into his
barge, to pass to London, and Mouse was one of them, and the barge
being upon the water, a great tempest happened, and a strong wind, so
that the barge and all the passengers were in danger to be drowned, if
a hogshead of wine and other ponderous things were not cast out, for
the safeguard of the lives of the men: it was resolved per totam
Curiam, that in case of necessity, for the saving of the lives of the
passengers, it was lawful to the defendant, being a passenger, to cast
the casket of the plaintiff out of the barge, with the other things in it; .
. . and the first day of this term, this issue was tried, and it was proved
directly, that if the things had not been cast out of the barge, the
passenger had been drowned; and that . . . they were ejected, some by
one passenger, and some by another; and upon this the plaintiff was
nonsuit[.]
It was also resolved, that although the ferryman surcharge the
barge, yet for the safety of the lives of passengers in such a time and
accident of necessity, it is lawful for any passenger to cast the things
out of the barge: and the owners shall have their remedy upon the
surcharge against the ferryman, for the fault was in him upon the
surcharge; but if no surcharge was, but the danger accrued only by
the act of God, as by tempest, no default being in the ferryman,
everyone ought to bear his loss for the safeguard and life of a man[.]
The result, then, was that Mouse’s case against the other passenger
failed. (Mouse still might have been entitled to reimbursement from all
those whose property was saved by throwing his goods overboard; this is
the doctrine of general average from the law of admiralty.) What is the
distinction between Mouse’s Case and Vincent v. Lake Erie Transportation
Co.? Is the result here consistent with what Mouse reasonably should have
expected when he got onto the barge?
2. The needs of the many outweigh the needs of the few. In Surocco v.
Geary, 3 Cal. 70 (1853), the defendant Geary, alcalde (mayor) of San
Francisco, was sued for ordering the plaintiff’s house destroyed in an
attempt to stop the progress of a fire raging through the city in December of
1849. The plaintiffs’ evidence was that they were in the process of
removing their property from the building when the city blew it up, and that
they otherwise would have been able to save more of their goods. The trial
court gave judgment to the plaintiffs; the California Supreme Court
reversed:
A house on fire, or those in its immediate vicinity, which serve to

communicate the flames, becomes a nuisance, which it is lawful to
abate, and the private rights of the individual yield to the
considerations of general convenience, and the interests of society.
Were it otherwise, one stubborn person might involve a whole city in
ruin, by refusing to allow the destruction of a building which would
cut off the flames and check the progress of the fire, and that, too,
when it was perfectly evident that his building must be consumed. . . .
The evidence in this case clearly establishes the fact, that the
blowing up of the house was necessary, as it would have been
consumed had it been left standing. The plaintiffs cannot recover for
the value of the goods which they might have saved: they were as
much subject to the necessities of the occasion as the house in which
they were situate; and if in such cases a party was held liable, it
would too frequently happen, that the delay caused by the removal of
the goods would render the destruction of the house useless. . . .
Why might it be useful to have separate doctrines of public and private

necessity rather than one “necessity” doctrine that treats both situations the
same way? What problem is the public necessity doctrine intended to
address? Under the doctrine of public necessity, who bears the costs if
houses are torn down to stop a fire, and who gains the benefits? How would
the answers to those questions change if there were no such doctrine?
Would you expect these differences to affect anyone’s behavior? To answer
some of these questions it may help to remember what perhaps is apparent
from Mouse’s Case: the privilege of public necessity is not just available to
governments; if the defendants in the Surocco case had been private citizens
rather than the mayor, the result would have been the same.
With Geary’s approach, contrast the route taken by the Lord Mayor of
London, Thomas Bludworth, during the early stages of the Great Fire of
London of 1666:
The destruction of houses to clear a way in advance of the flames was

suggested to Bludworth soon after dawn, but the cautious Lord
Mayor hesitated; the cost was great. “Who shall pay the charge of
rebuilding the houses?” he asked those who so advised him, little
appreciating the larger charge that London must needs pay. To others
who again pressed him to take this necessary course he answered,
that he dare not do so without the consent of the owners. Thereby he
brought down upon himself universal blame.
W.G. Bell, The Great Fire of London in 1666 29-30 (1920). The fire burned
for four days; more than 13,000 houses were destroyed. A later court
described Bludworth’s early reluctance to pull down houses as “a
memorable instance of folly.” Respublica v. Sparhawk, 1 U.S. 359 (Pa.
Super. Ct. 1788).
3. False alarm. In Struve v. Droge, 62 How. Pr. 233 (N.Y. Sup. Ct.
1881), the plaintiff was a painter of frescoes; the defendant was his
landlord. They lived in neighboring apartments. One morning the landlord
saw smoke outside the plaintiff’s window. He knocked at the plaintiff’s
door and received no response. Finding the door locked, he broke into the
apartment through another entrance. He saw that there was no fire and left.
It turned out that the smoke had come from a nearby chimney. Meanwhile
the landlord’s efforts to break in to the plaintiff’s apartment caused damage
to the plaintiff’s property for which he brought suit to recover. The trial
court gave judgment to the defendant, holding that the landlord had acted
justifiably and therefore owed nothing. The court of appeals reversed:
The law seems to be this, that in a case of public necessity, to prevent

the spreading of a fire, any individual may demolish a building,
without being responsible in trespass or otherwise. If, however, such
public necessity does not exist, and, in point of fact, there is no need
of the destruction, the person who commits the act is responsible in
damages.
Why this limitation on the doctrine? Is it consistent with the language of

the Restatement that follows below?
4. Some further illustrations. From the Restatement (Second) of Torts:
§262. PRIVILEGE CREATED BY PUBLIC NECESSITY

One is privileged to commit an act which would otherwise be a
trespass to a chattel or a conversion if the act is or is reasonably
believed to be necessary for the purpose of avoiding a public disaster.
Illustration 1. In the course of fighting a serious and widespread
conflagration, A, a fireman, removes B’s car lawfully parked on the
highway for the purpose of gaining access to a fire plug. In so doing,
A unavoidably damages the car. A is not liable for the harm thus
caused.
Illustration 2. A, an agister of cattle, kills B’s bull, which is in his
possession, to prevent a spread of infection which is dangerous to
other cattle and to human beings. If the act is reasonably necessary to
prevent the spread of the disease, A is not liable to B.
Illustration 3. A, a fireman, demands that B get out of his
automobile and permit the fireman to drive it to a widespread
conflagration. B refuses to turn his car over to A, but offers to drive
him to the fire. A is not privileged to take the car.
What result in Illustration 2 if the infection of B’s bull was caused by

A’s earlier act of negligence?
5. Takings. When the public necessity defense is raised by a
government, plaintiffs sometimes respond by arguing that the destruction of
their property amounted to a “taking” that entitled them to compensation
under eminent domain provisions of the federal or state constitutions. The
federal version, contained in the Fifth Amendment, provides, “nor shall
private property be taken for public use, without just compensation”; state
constitutions typically contain similar language. The most conventional
office of such provisions is to entitle property owners to compensation
when the government decides to build a highway, airport, or other public
facility where their homes sit. Courts disagree, however, about the
applicability of such provisions to cases of the sort considered in this
section. Thus in Wegner v. Milwaukee Mutual Insurance Co., 479 N.W.2d
38 (Minn. 1992), an armed suspect fled the scene of a drug bust and hid in
the plaintiff’s house. A SWAT team from the Minneapolis police
department surrounded the residence and fired tear gas and “flash-bang”
grenades through its windows; they soon captured the suspect as he tried to
escape out a basement window. In the meantime the plaintiff’s house
sustained $70,000 in damage. The plaintiff sued the city, seeking
compensation under the “just compensation” clause of Minnesota’s
constitution; the Minnesota Supreme Court sustained the claim:
We are not inclined to allow the city to defend its actions on the
grounds of public necessity under the facts of this case. We believe
the better rule, in situations where an innocent third party’s property
is taken, damaged or destroyed by the police in the course of
apprehending a suspect, is for the municipality to compensate the
innocent party for the resulting damages. The policy considerations in
this case center around the basic notions of fairness and justice. At its
most basic level, the issue is whether it is fair to allocate the entire
risk of loss to an innocent homeowner for the good of the public. We
do not believe the imposition of such a burden on the innocent
citizens of this state would square with the underlying principles of
our system of justice.
For a different view, see Customer Co. v. City of Sacramento, 895 P.2d 900
(Cal. 1995), where again a SWAT team damaged a plaintiff’s building by
firing tear gas inside to flush out a suspect. The plaintiff sought
compensation under the eminent domain provision of California’s
constitution, which provided that “Private property may be taken or
damaged for public use only when just compensation, ascertained by a jury
unless waived, has first been paid to, or into court for, the owner.” The
California Supreme Court held the city entitled to judgment on the
pleadings, finding that the attempts to smoke out the suspect to be exercises
of the state’s “police power” rather than its power of eminent domain.
D. DISCIPLINE
The common law provides certain defendants with a limited privilege to

impose discipline in various circumstances; this privilege permits parents
and teachers (acting in place of parents, or “in loco parentis”), as well as
some others, to use reasonable force to maintain order.
1. The sea captain’s privilege. In Forbes v. Parsons, 9 F. Cas. 417 (E.D.
Pa. 1839), Forbes entered into a contract to serve as cook aboard the
Suffolk, a ship sailing from Great Britain to Philadelphia. He brought a libel
(the maritime term for a lawsuit) in federal court under the admiralty
jurisdiction against the ship’s captain, Parsons; he claimed that Parsons
committed a battery by beating him with a rope and a frying pan. The
captain did not deny chastising Forbes but claimed the contact was justified
by the sea captain’s privilege to preserve discipline on board ship. The court
agreed:
It cannot be doubted that [Forbes’s] cooking was exceedingly bad,

either from want of skill or willful neglect; and the evidence is
satisfactory to show that his galley and pans were kept in a very dirty
condition. The bad cooking is proved by the crew, his own witnesses,
as well as by the officers of the ship. . . . The men once went, in a
body, to the captain, with the complaint that the victuals were so
badly cooked that they could not eat them. The fault was not in the
ship’s provisions, which, it is admitted, were good. . . .
If his deficiencies were the result of carelessness or obstinacy,
[Forbes] was, doubtless, a fit object of punishment, and if he was
really ignorant and incapable of the duties of the place he had
assumed, he was guilty of a fraud and deception in undertaking to
perform them, and comes here entitled to no particular favor.
However this may be as to his cooking, it can hardly be denied that,
with ordinary care and industry, he might have kept his galley and
pans clean. Upon the subject of his ignorance and incapacity, we
cannot avoid to remark that it was of very serious importance to the
officers and crew of a ship. To have before them a long voyage, with
the disheartening prospect of having their food set before them in a
condition hardly fit to be put into their mouths, was indeed a trial of
patience and temper that few men would pass through and maintain
their good humor. The defects of an ordinary seaman may be supplied
by his comrades, but the cook stands by himself, and if he fails, no
substitute, unless by an accident, can be found. To have a good dinner
spoiled by the cook, is only next to having no dinner. The stomach
has a wonderful control over the man and his passions, and a good-
natured man, disappointed of his dinner, may become very cross. . . .
Having thus stated the cause and provocation given by the
libellant, for the injuries he complains of, we must look to the
conduct of the other party, and see whether he has exceeded the
bounds of moderation, in punishing the offences of the libellant; for it
must not be understood that this, or any other provocation, will justify
cruel and immoderate chastisements. . . .
Nobody will believe that the law which governs the deportment
of men on shore to each other, can be applied to their habits and
conduct on board of a ship. That which would be an assault, or an
assault and battery, in a drawing-room, or in the streets of our city,
and punishable by indictment or a civil suit, cannot be so considered
among the rough inmates of a ship at sea. The code of manners is
entirely different, as is the situation and character of the men. If
striking at a man, without touching him, or pointing an offensive
weapon to him, or holding up the fist, were to be considered as good
ground for a suit; if any rude or angry touching of the person,
however lightly, is to be adjudged an assault and battery, for which
damages may be recovered; no vessel could arrive without a plentiful
crop of actions, equally injurious to the plaintiff and defendant. This
cannot be the law of the sea practically, whatever it may be in theory.
In questions of this kind, between the officers and the seamen of a
ship, my desire has been to maintain a safe and proper discipline,
preserving, on the one hand, a necessary and salutary obedience on
the part of the seamen, and on the other, protecting him from all
cruelty and undue violence, and from any severity not required for
the support of the proper authority of the officer, giving a liberal
consideration to the exigencies of the occasion. The officer may not,
under the pretence of discipline, take advantage of some trifling fault
to indulge ferocious passions, or some particular ill will against the
offender. . . .
The court applied these principles to Forbes’s claim as follows:
No serious injury appears ever to have been done to him, at any time;
he went to his work, as usual, immediately after every beating, and
none of the witnesses speak of the beatings as being severe, much
less disabling. The instrument used was a rope, about the size of
which there is a difference between the witnesses of the libellant, and
those produced on the part of the respondent. The wiping a dirty knife
across his face, and the blow with a dirty frying pan, can not be
considered as very aggravated or cruel assaults, nor were they
followed by any serious consequences. If the articles in question were
as dirty as they have been represented, we can hardly be surprised
that they should suddenly have been used as the means of
punishment.
2. Legislative meddling. Flogging on board vessels of commerce was

banned by Congress in 1850 (9 Stat. 515; Rev. Stat. §4611).
3. The schoolmaster’s privilege. In Lander v. Seaver, 32 Vt. 114 (1859),
the plaintiff, Peter Lander, was an eleven-year-old student at a school run by
the defendant, Seaver. One day after school Lander was driving his father’s
cow past Seaver’s house; Seaver and some of Lander’s schoolmates were
present there. Lander called the defendant “Old Jack Seaver.” At the start of
school the next morning, Seaver reprimanded Lander for using insulting
language and then whipped him with a rawhide. The plaintiff’s evidence
was that the whipping was severe. The trial court instructed the jury that if
Seaver acted from proper motives and in good faith, he should not be held
liable if the jury found that the punishment he administered was too severe;
the court said that “if a schoolmaster was to be made liable for every error
in judgment, in the opinion of a jury, when he acted with good intentions, it
would be quite difficult to find a schoolmaster who would assume the
authority of correction, without which a school could not well be carried
on.” So instructed, the jury brought in a verdict for Seaver and the trial
court entered judgment upon it.
The Vermont Supreme Court reversed and remanded. The court had no
difficulty with the punishment of the student for acts he committed outside
the school, finding that “where the offence has a direct and immediate
tendency to injure the school and bring the master’s authority into
contempt, as in this case, when done in the presence of other scholars and
of the master, and with a design to insult him, we think he has the right to
punish the scholar for such acts if he comes again to school.” But the court
found that the jury had been instructed improperly on the question of
permissible force:
The parent, unquestionably, is answerable only for malice or wicked

motives or an evil heart in punishing his child. . . . This parental
power is little liable to abuse, for it is continually restrained by
natural affection, the tenderness which the parent feels for his
offspring, an affection ever on the alert, and acting rather by instinct
than reasoning.
The schoolmaster has no such natural restraint. Hence he may not
safely be trusted with all a parent’s authority, for he does not act from
the instinct of parental affection. He should be guided and restrained
by judgment and wise discretion, and hence is responsible for their
reasonable exercise. . . .
The law, as we deem it to exist, is this: — A schoolmaster has the
right to inflict reasonable corporeal punishment. He must exercise
reasonable judgment and discretion in determining when to punish
and to what extent. In determining upon what is a reasonable
punishment, various considerations must be regarded, the nature of
the offence, the apparent motive and disposition of the offender, the
influence of his example and conduct upon others, and the sex, age,
size and strength of the pupil to be punished. Among reasonable
persons much difference prevails as to the circumstances which will
justify the infliction of punishment, and the extent to which it may
properly be administered. On account of this difference of opinion,
and the difficulty which exists in determining what is a reasonable
punishment, and the advantage which the master has by being on the
spot to know all the circumstances, the manner, look, tone, gestures
and language of the offender (which are not always easily described),
and thus to form a correct opinion as to the necessity and extent of
the punishment, considerable allowance should be made to the
teacher by way of protecting him in the exercise of his discretion.
Especially should he have this indulgence when he appears to have
acted from good motives and not from anger or malice. Hence the
teacher is not to be held liable on the ground of excess of punishment,
unless the punishment is clearly excessive and would be held so in
the general judgment of reasonable men.
A less sanguine view of the teacher’s prerogative was taken in Cooper

v. McJunkin, 4 Ind. 290 (1853):
In one respect the tendency of the rod is so evidently evil, that it

might, perhaps, be arrested on the ground of public policy. The
practice has an inherent proneness to abuse. The very act of whipping
engenders passion, and very generally leads to excess. Where one or
two stripes only were at first intended, several usually follow, each
increasing in vigor as the act of striking inflames the passions. This is
a matter of daily observation and experience. Hence the spirit of the
law is, and the leaning of the courts should be, to discountenance a
practice which tends to excite human passions to heated and
excessive action, ending in abuse and breaches of the peace. Such a
system of petty tyranny cannot be watched too cautiously nor
guarded too strictly. . . .
It can hardly be doubted but that public opinion will, in time,
strike the ferule from the hands of the teacher, leaving him as the true
basis of government, only the resources of his intellect and heart.
Such is the only policy worthy of the state, and of her otherwise
enlightened and liberal institutions. It is the policy of progress. The
husband can no longer moderately chastise his wife; nor, according to
the more recent authorities, the master his servant or apprentice. Even
the degrading cruelties of the naval service have been arrested. Why
the person of the school-boy, “with his shining morning face,” should
be less sacred in the eye of the law than that of the apprentice or the
sailor, is not easily explained. It is regretted that such are the
authorities, — still courts are bound by them. All that can be done,
without the aid of legislation, is to hold every case strictly within the
rule; and if the correction be in anger, or in any other respect
immoderately or improperly administered, to hold the unworthy
perpetrator guilty of assault and battery.
4. Modern times. In Rinehart v. Board of Education, 621 N.E.2d 1365

(Ohio App. 1993), the plaintiff, Rinehart, was a twelve-year-old student at
an elementary school where Uhrig, one of the defendants, worked as a
teacher. During the lunch hour and in front of several of his classmates,
Rinehart referred to Uhrig as a “dick-head.” A few minutes later his fellow
students reported this to Uhrig; when Uhrig confronted Rinehart he
admitted making the statement. Uhrig informed Rinehart that he was going
to administer a paddling to him. He instructed Rinehart to reach down and
touch his ankles and then spanked him several times with a paddle.
Rinehart’s evidence was that the paddling caused severe bruising, resulting
in emotional distress and medical expenses. Rinehart and his father sued
Uhrig and the school district. The use of corporal punishment in Ohio was
governed by Ohio Rev. Code Ann. §3319.41, which read in part as follows:
Except as otherwise provided by rule of the board of education [or]

the governing body of the private school, a person employed or
engaged as a teacher, principal, or administrator in a school, whether
public or private, may inflict or cause to be inflicted, reasonable
corporal punishment upon a pupil attending such school whenever
such punishment is reasonably necessary in order to preserve
discipline while such pupil is subject to school authority.
The defendant Board of Education in turn had adopted the following

rule:
Corporal punishment where other methods have failed may be

administered by a teacher or by the Principal if not actuated by
malice or anger, expressed or implied, and if there is no danger of
physical injury to the student. The only acceptable corporal
punishment is by the use of a properly designed paddle. Such
corporal punishment shall be administered only in the presence of at
least one witness who shall be a teacher, a staff member, a principal,
or a parent. An exception to this corporal punishment rule may be
made in cases of emergency when a student becomes an immediate
threat to the safety, health or life of others and his/her removal must
be made by physical force. Such removals shall be reported as soon
as possible to the Principal. Also it is strongly recommended that the
witness be of the same sex as the student.
The trial court gave summary judgment to the defendants. The court of
appeals affirmed:
Uhrig followed the Board’s policy on corporal punishment to the

letter. Paul had been “out of line” and talking earlier that same day. It
is apparent from Paul’s continuing course of misbehavior that other
methods of discipline (including sending Paul to Saturday school as
punishment for talking in class) were ineffective and had failed. None
of the evidentiary material creates a genuine issue of fact as to
whether Uhrig’s actions were conducted with a malicious purpose or
in a wanton or reckless manner.
The defendant’s policy applied only if there was “no danger of physical
injury to the student”; in view of the plaintiff’s claimed injuries, why did
the court conclude that the defendant’s policy was followed “to the letter”?
5. Instilling spirit. In Hogenson v. Williams, 542 S.W.2d 456 (Tex. Civ.
App. 1976), the plaintiff (via his parents) sued his junior high school
football coach for assault, a claim equivalent to battery under Texas law.
During a practice session of the seventh-grade football team, the defendant
became displeased with the plaintiff’s performance of blocking
assignments. He started yelling at the boy, then struck his helmet with force
sufficient to cause him to stumble and fall to the ground, and finally
grabbed his face mask. The defendant later said that he did these things to
the plaintiff for the purpose of “firing him up” or “instilling spirit in him.”
The plaintiff soon was admitted to the hospital complaining of weakness of
his left hand, left forearm and elbow region and spasms of the left neck
muscles. His condition was diagnosed as a severe cervical sprain and
bruising of the brachial plexus. He was discharged from the hospital after
eight days and recovered several months later.
The jury, instructed that “an intent to injure is the gist of an assault,”
found that the defendant did not commit an assault; the jury also found that
the defendant’s contact with the plaintiff was done for “instruction and
encouragement” without any intent to injure him. The trial court gave
judgment to the defendant. The court of appeals then reversed and
remanded for a new trial, finding that the definition of assault given to the
jury too narrow (no intent to injure was necessary) and that the trial court
had defined the disciplinary privilege too broadly:
[W]e do not accept the proposition that a teacher may use physical
violence against a child merely because the child is unable or fails to
perform, either academically or athletically, at a desired level of
ability, even though the teacher considers such violence to be
“instruction and encouragement.” . . . [A]ny force used must be that
which the teacher reasonably believes necessary (1) to enforce
compliance with a proper command issued for the purpose of
controlling, training or educating the child, or (2) to punish the child
for prohibited conduct; and in either case, the force or physical
contact must be reasonable and not disproportionate to the activity or
the offense. In the event of a retrial, defensive issues based upon
privileged force should be accompanied with instructions clearly
enunciating these principles.
6. Battered wives. A moment ago we saw the court in Cooper v.

McJunkin state — in 1853 — that “[t]he husband can no longer moderately
chastise his wife.” A further word is in order regarding tort liability for
domestic abuse; but an understanding of the issue requires first a more
general look at the legal position occupied by married women before the
twentieth century. The common law generally did not permit married
women to own property. When a woman married, any wealth she owned
immediately became her husband’s to spend during his life or dispose of at
his death as he saw fit; likewise any earnings she produced or any wealth
she inherited during the marriage. Nor, with minor exceptions, could
married women make enforceable contracts, and their participation in tort
litigation was comparably restricted: a married woman could not bring a
tort suit unless her husband joined her as a co-plaintiff, and husbands were
liable for any torts their wives committed and had to be made co-defendants
in any suits against them. These rules might seem to have complicated the
prospect of a suit for battery by a wife against an abusive husband, but in
fact this possibility was dealt with in a clear and straightforward fashion:
the doctrine of interspousal immunity forbade civil suits of any sort
between husband and wife.
Against this backdrop it is easy to understand why there is no early
American case law discussing a husband’s liability for beating his wife.
Wives could not sue their husbands for anything. This did not necessarily
mean that such beatings were lawful, but it did mean that a married
woman’s only legal recourse for abuse was to seek a criminal prosecution.
The precise view of such prosecutions taken by the common law courts is
difficult to pin down. In 1765 the English jurist William Blackstone
described the situation as follows:
The husband also, by the old law, might give his wife moderate
correction. For as he is to answer for her misbehavior, the law
thought it reasonable to intrust him with this power of restraining her,
by domestic chastisement, in the same moderation that a man is
allowed to correct his apprentices or children; for whom the master or
parent is also liable in some cases to answer. But this power of
correction was confined within reasonable bounds, and the husband
was prohibited from using any violence to his wife, aliter quam ad
virum, ex causa regiminis et castigationis uxoris suae, licite et
rationabiliter pertinet (otherwise than lawfully and reasonably
belongs to the husband for the due government and correction of his
wife). The civil law gave the husband the same, or a larger, authority
over his wife: allowing him, for some misdemeanors, flagellis et
fustibus acriter verberare uxorem (to beat his wife severely with
scourges and sticks); for others, only modicam castigationem
adhibere (to use moderate chastisement). But with us, in the politer
reign of Charles the Second, this power of correction began to be
doubted; and a wife may now have security of the peace against her
husband; or, in return, a husband against his wife. Yet the lower rank
of people, who were always fond of the old common law, still claim
and exert their ancient privilege: and the courts of law will still
permit a husband to restrain a wife of her liberty, in case of any gross
misbehavior.
By the nineteenth century most American courts formally repudiated the

notion that a husband had a right to beat his wife. Thus in Fulgham v. State,
46 Ala. 143 (1871), the Alabama Supreme Court, in affirming a husband’s
criminal conviction for battery of his spouse, offered this comment on the
privilege Blackstone described:
Judge Blackstone calls it merely an ancient privilege, and quotes no

decided case, and possibly none such could then be found, which
supports the privilege referred to by him, as a universal law. This
distinguished author published his commentaries above one hundred
years ago, when society was much more rude, out of the towns and
cities in England, than it is at the present day in this country; and the
exercise of a rude privilege there is no excuse for a like privilege
here. . . . [T]he common law of “wife whipping” among “the lower
rank of people” in Great Britain, has never been the common law of
this State. It is, at best, but a low and barbarous custom, and never
was a law.
It is difficult to find American cases taking a contrary view and explicitly

stating that husbands had a right to chastise their wives. There are a few
such examples, however; perhaps the clearest is State v. Black, 1 Win. 266
(N.C. 1864), where the North Carolina Supreme Court reversed a husband’s
conviction for battery:
A husband is responsible for the acts of his wife, and he is required to

govern his household, and for that purpose the law permits him to use
towards his wife such a degree of force as is necessary to control an
unruly temper and make her behave herself; and unless some
permanent injury be inflicted, or there be an excess of violence, or
such a degree of cruelty as shows that it is inflicted to gratify his own
bad passions, the law will not invade the domestic forum or go
behind the curtain. It prefers to leave the parties to themselves, as the
best mode of inducing them to make the matter up and live together
as man and wife should.
A few years later another defendant in the same state was prosecuted for
whipping his wife. The trial court acquitted him on the ground that the lash
he used for the purpose was no broader than his thumb. The North Carolina
Supreme Court affirmed, and took the opportunity to refine its position:
[F]amily government is recognized by law as being as complete in

itself as the State government is in itself, and yet subordinate to it;
and that we will not interfere with or attempt to control it, in favor of
either husband or wife, unless in cases where permanent or malicious
injury is inflicted or threatened, or the condition of the party is
intolerable. For, however great are the evils of ill temper, quarrels,
and even personal conflicts inflicting only temporary pain, they are
not comparable with the evils which would result from raising the
curtain, and exposing to public curiosity and criticism, the nursery
and the bed chamber. Every household has and must have, a
government of its own, modelled to suit the temper, disposition and
condition of its inmates. Mere ebullitions of passion, impulsive
violence, and temporary pain, affection will soon forget and forgive;
and each member will find excuse for the other in his own frailties.
But when trifles are taken hold of by the public, and the parties are
exposed and disgraced, and each endeavors to justify himself or
herself by criminating the other, that which ought to be forgotten in a
day, will be remembered for life. . . .
It will be observed that the ground upon which we have put this
decision, is not, that the husband has the right to whip his wife much
or little; but that we will not interfere with family government in
trifling cases. . . . Two boys under fourteen years of age fight upon
the playground, and yet the courts will take no notice of it, not for the
reason that boys have the right to fight, but because the interests of
society require that they should be left to the more appropriate
discipline of the school room and of home. It is not true that boys
have a right to fight; nor is it true that a husband has a right to whip
his wife. And if he had, it is not easily seen how the thumb is the
standard of size for the instrument which he may use, as some of the
old authorities have said; and in deference to which was his Honor’s
charge. A light blow, or many light blows, with a stick larger than the
thumb, might produce no injury; but a switch half the size might be
so used as to produce death. The standard is the effect produced, and
not the manner of producing it, or the instrument used.
State v. Rhodes, 61 N.C. 453 (1868). This passage captures the position that
many courts took well into the twentieth century: formal condemnation of
domestic abuse, but a refusal to use the machinery of the criminal law to
address it in any but very extreme cases. Did this amount to a privilege to
engage in wife beating? Do rights have value if courts decline to enforce
them?
Meanwhile the potential for civil liability for domestic abuse began to
emerge in the second half of the nineteenth century. States passed Married
Women’s Property Acts that varied in their details but generally gave
married women the right to own property, to sue and be sued, and to
otherwise establish legal identities separate from their husbands. For many
years a majority of courts nevertheless continued to retain interspousal
immunity and thus reject tort suits brought by wives against their husbands
to redress personal injuries. The courts reasoned that such litigation would
spoil domestic harmony and would create a temptation for spouses to
collude in producing fraudulent claims to extract money from insurance
companies. It was not until the second half of the twentieth century that
almost all jurisdictions abolished interspousal immunity for most purposes,
including suits alleging battery. For a more extensive account, see Siegel,
The Rule of Love: Wife Beating as Prerogative and Privacy, 105 Yale L.J.
2117 (1996).
Civil liability for marital rape has been particularly slow to develop.
During most of the history of the common law a husband could not be
prosecuted or sued for the rape of his wife. Starting in the 1970s, however,
state legislatures modified their criminal provisions governing the issue.
The complete exemption from prosecution for marital rape appears now to
have been abolished in every jurisdiction, but many states retain it in partial
form; they recognize marital rape as a crime only if the spouses are living
separately or if the degree of force involved is sufficiently severe, or they
recognize it but punish it less severely than other rapes. These steps on the
criminal side, along with the abrogation of interspousal immunity, have
been treated by courts as creating civil liability for marital rape as well. See,
e.g., In re Estate of Peters, 765 A.2d 468 (Vt. 2000); Henriksen v. Cameron,
622 A.2d 1135 (Me. 1993).
Even as formal barriers to civil suits fall away, tort law appears to play a
relatively minor role in redressing domestic violence. This sometimes has
been attributed to the lack of assets usually held by the potential defendants
in such cases as well as their lack of insurance (insurance policies typically
exclude coverage for intentional acts). An additional difficulty is that until
they achieve a separation or divorce, victims of torts within a marriage face
a variety of obvious practical obstacles to bringing a suit; and once the
divorce has been obtained, statutes of limitations and principles of res
judicata may make recovery in tort difficult. For further discussion, see
Wriggins, Domestic Violence Torts, 75 S. Cal. L. Rev. 121 (2001).
Chapter 3
The Negligence Standard
When a plaintiff sues a defendant for “negligence,” the first question

traditionally is whether the defendant owed the plaintiff a duty — an issue
considered in a separate chapter. The second question, and the subject of
this chapter, is whether the defendant breached that duty by failing to use
reasonable care. Often, as in auto accident or malpractice cases where a
defendant’s obligation to be careful is obvious because of the risks the
activity creates, the existence of a duty is taken for granted; the litigation
focuses immediately on whether the defendant breached the duty by acting
negligently. Thus while the question of the defendant’s duty to the plaintiff
may come first as a formal matter, as a practical matter the first question in
many negligence cases is whether the defendant took reasonable
precautions against the harm that occurred. This chapter considers a series
of issues that arise in answering that question — and the related question of
whether the plaintiff might have been negligent as well.
The word “negligence” sometimes is used to refer generally to the tort
we are studying (the tort of negligence), but sometimes is used to refer
more specifically to this second element of the tort (breach of the duty of
care owed to the defendant) — in other words, as a sort of synonym for
carelessness. So it is possible to refer to a negligent (i.e., careless)
defendant who nonetheless is not held liable for the tort of negligence
(consisting of duty, breach, causation, and damages). This dual usage of the
word can be confusing at first; it may help to avoid speaking of defendants
as behaving “negligently,” and to speak instead of their failure to use due
care.
A. THE REASONABLE PERSON
§283. CONDUCT OF A REASONABLE MAN; THE STANDARD
Unless the actor is a child, the standard of conduct to which he

must conform to avoid being negligent is that of a reasonable man
under like circumstances.
This general formulation from the Restatement remains a common basis

for a jury instruction in a negligence case. What are the attributes of the
reasonable person whose behavior provides the benchmark for this
judgment? Is the reasonable person of tort law simply a person with average
intelligence, ability, and experience? Or is it perhaps an average person with
the defendant’s intelligence, ability, and experience? If there are two
defendants in a case, one 15 years old and the other 50, should their conduct
be measured against the same standard, or against the conduct of reasonable
people aged 15 and 50, respectively?
1. Mental Ability and Mental States
Williams v. Hays
143 N.Y. 442, 38 N.E. 449 (1894)
157 N.Y. 541, 52 N.E. 589 (1899)
[The defendant, William Hays, was captain and part owner of the Emily
T. Sheldon, a two-masted sailing ship bound from Maine to Annapolis with
a cargo of ice. Soon after leaving port the ship encountered a storm with
high winds, heavy rains, and light snow. Hays tried to sail the ship toward
Cape Cod, but it became impossible for him to tell where he was. He set the
ship’s two sails against each other to bring the vessel to a standstill and ride
out the storm. After 24 hours of this he again tried to find Cape Cod;
another 12 hours later, the Thatcher Island lights (a pair of lighthouses near
Gloucester) at last came into view. Though the seas remained heavy, the
storm subsided, and Hays retired to his cabin. He had been on the deck of
the ship and with little to eat for 48 hours. He took 15 grains of quinine (a
remedy — not alcoholic — for fever and malaria, which Hays feared he
might have contracted) and lay down. A few hours later, the ship’s mate
roused Hays to say that the crew was having trouble steering the ship. A
tugboat soon passed, said that the Sheldon’s rudder appeared to be broken,
and offered to tow the vessel to shore. Hays declined. Another tug passed
and made a similar offer; this, too, Hays refused. The testimony of the
Sheldon’s crew was that at this point Hays was “staggering about the vessel,
making irresponsive answers to questions, appeared to be in a dazed
condition, and to be either drunk or insane.” The crew told Hays that the
Sheldon was being dragged toward shore by the tides, but he would take no
measures in response. The ship eventually was wrecked on Peaked Hill Bar,
near Provincetown. A life-saving boat soon arrived, but it took its crew
several hours to coax Hays to come ashore. Hays later was able to
remember nothing that had occurred that day.]
EARL, J. — [After stating the facts:] [The plaintiff, as representative of

the Sheldon’s other owners,] brought this action against the defendant to
recover damages for the loss of the vessel, alleging that it was due to his
carelessness and misconduct. The defendant claims that from the time he
went to his cabin, leaving the vessel in charge of his mate and crew, to the
time the vessel was wrecked, and he found himself in the life saving station,
he was unconscious, and knew nothing of what occurred, that in fact he
was, from some cause, insane, and therefore not responsible for the loss of
the vessel. The case was submitted to the jury on the theory that the
defendant, if sane, was guilty of negligence causing the destruction of the
vessel, but, if insane, was not responsible for her loss through any conduct
on his part which, in a sane person, would have constituted such negligence
as would have imposed responsibility. [The jury found for the defendant,
and the plaintiff brought this appeal.]
The important question for us to determine, then, is whether the insanity
of the defendant furnishes a defense to the plaintiff’s claim, and I think it
does not. The general rule is that an insane person is just as responsible for
his torts as a sane person, and the rule applies to all torts, except, perhaps,
those in which malice, and therefore intention, actual or imputed, is a
necessary ingredient, like libel, slander, and malicious prosecution. In all
other torts, intention is not an ingredient, and the actor is responsible,
although he acted with a good and even laudable purpose, without any
malice. The law looks to the person damaged by another, and seeks to make
him whole, without reference to the purpose or the condition, mental or
physical, of the person causing the damage. The liability of a lunatic for his
torts, in the opinions of judges, has been placed upon several grounds. The
rule has been invoked that, where one of two innocent persons must bear a
loss, he must bear it whose act caused it. It is said that public policy
requires the enforcement of the liability, that the relatives of a lunatic may
be under inducement to restrain him, and that tort feasors may not simulate
or pretend insanity to defend their wrongful acts, causing damage to others.
The lunatic must bear the loss occasioned by his torts, as he bears his other
misfortunes, and the burden of such loss may not be put upon others. . . .
[The court quoted from Cooley on Torts:] “Undoubtedly, there is some
appearance of hardship, even of injustice, in compelling one to respond for
that which, for want of the control of reason, he was unable to avoid; that it
is imposing upon a person already visited with the inexpressible calamity of
mental obscurity an obligation to observe the same care and precaution
respecting the rights of others that the law demands of one in the full
possession of his faculties. But the question of liability in these cases, as
well as in others, is a question of policy; and it is to be disposed of as would
be the question whether the incompetent person should be supported at the
expense of the public, or of his neighbors, or at the expense of his own
estate. If his mental disorder makes him dependent, and at the same time
prompts him to commit injuries, there seems to be no greater reason for
imposing upon the neighbors or the public one set of these consequences,
rather than the other; no more propriety or justice in making others bear the
losses resulting from his unreasoning fury, when it is spent upon them or
their property, than there would be in calling upon them to pay the expense
of his confinement in an asylum, when his own estate is ample for the
purpose.” . . .
If the defendant had become insane solely in consequence of his efforts
to save the vessel during the storm, we would have had a different case to
deal with. He was not responsible for the storm, and while it was raging his
efforts to save the vessel were tireless and unceasing; and, if he thus became
mentally and physically incompetent to give the vessel any further care, it
might be claimed that his want of care ought not to be attributed to him as a
fault. In reference to such a case, we do not now express any opinion.
[Reversed and remanded.]
[After the case was returned to the trial court, the defendant, relying on
the last paragraph excerpted above, argued that the case should be sent
again to a jury to determine “whether or not the defendant became insane
solely in consequence of his efforts to save the vessel during the storm.”
The trial judge disagreed and gave a directed verdict to the plaintiff. The
defendant appealed, and the Court of Appeals again reversed and
remanded:]
HAIGHT, J. — . . . Upon directing a verdict in favor of the plaintiff, the

trial court said: “Assuming, as we must, for such purpose, that the condition
of the defendant was the result of exhaustion, caused by his efforts to save
the ship from the perils of the storm, and the heavy dose of quinine which
he took as a remedy, I fail to see how that presents any exception to the
principle laid down by the court of appeals, that a person of unsound mind
is responsible for the consequences of acts which in the case of a sane
person would be negligent. In other words, the standard by which he is to
be judged is the same as that which must be applied to the actions of a sane
person. It certainly seems to be a cruel doctrine; but as it is apparently based
upon the principle that, as between two innocent persons, the loss must fall
upon him who caused it, rather than upon the other, the best that can be said
about it is that it is a rule which serves the convenience of the public, to
which individual rights must give way.” . . .
We cannot give our assent to such a view of the law. To our minds it is
carrying the law of negligence to a point which is unreasonable, and, prior
to this case, unheard of, and is establishing a doctrine abhorrent to all
principles of equity and justice. In this case, as we have seen, the storm
commenced on Friday, continued through Saturday and Sunday, and it was
not until 5 o’clock Monday morning that the defendant was relieved from
the care of his vessel. For three days and nights he had been upon duty
almost continuously, and for the last 48 hours had not been below the deck.
The man is not yet born in whom there is not a limit to his physical and
mental endurance, and, when that limit has been passed, he must yield to
laws over which man has no control. When the case was here before, it was
said that the defendant was bound to exercise such reasonable care and
prudence as a careful and prudent man would ordinarily give to his own
vessel. What careful and prudent man could do more than to care for his
vessel until overcome by physical and mental exhaustion? To do more was
impossible. And yet we are told that he must, or be responsible. Among the
familiar legal maxims are the following: The law intends what is agreeable
to reason; it does not suffer an absurdity. Impossibility is an excuse in law,
and there is no obligation to perform impossible things. Applying these
maxims to the case under consideration, we think the fallacy of the
reasoning below is apparent, and that it cannot and ought not to be
sustained.
Reversed and remanded.
NOTES
1. The law intends what is agreeable to reason. What rules emerge from
the two opinions of the Court of Appeals? Are they consistent? Williams v.
Hays often is cited for the proposition that lunacy is no defense to a claim
of negligence — a description of the holding that leaves out the
qualifications Haight, J., added in the court’s second opinion above. When
are those qualifications likely to be important? Suppose a surgeon at an
understaffed hospital performs surgery for 48 consecutive hours; she then
capitulates to exhaustion or madness and commits an act of malpractice.
What does Williams v. Hays suggest would be the proper instruction for the
jury in such a case? What result if the defendant is an overworked associate
at a large law firm, resulting in a claim of legal rather than medical
malpractice?
After the second decision of the court of appeals, the plaintiff dropped
his case against Hays. For details, see W.B. Hornblower, Insanity and the
Law of Negligence, 5 Colum. L. Rev. 278 (1905).
2. Lacking the highest order of intelligence. In Vaughan v. Menlove, 132
Eng. Rep. 490 (C.P. 1837), the defendant built a haystack near the edge of
his property. His neighbor repeatedly complained that it was a fire hazard.
The defendant responded that his property was insured, and said that he
would “chance it.” The defendant later built a chimney through the
haystack; either despite this precaution or because of it, however, the stack
burst into flames. The fire spread to the defendant’s barn and stables, and
from there to the plaintiff’s cottages, which were entirely destroyed. The
trial court told the jury that it was to decide whether the fire was caused by
gross negligence on the part of the defendant; the jury further was
instructed that the defendant was bound to use such reasonable caution as a
prudent person would have exercised under the circumstances. The jury
returned a verdict for the plaintiff. The defendant appealed, contesting the
instructions given to the jury and arguing that he “ought not to be
responsible for the misfortune of not possessing the highest order of
intelligence.”
Held, for the plaintiff, that the trial court instructed the jury correctly:
It is contended . . . that the learned Judge was wrong in leaving this to

the jury as a case of gross negligence, and that the question of
negligence was so mixed up with reference to what would be the
conduct of a man of ordinary prudence that the jury might have
thought the latter the rule by which they were to decide; that such a
rule would be too uncertain to act upon; and that the question ought
to have been whether the Defendant had acted honestly and bona fide
to the best of his own judgment. That, however, would leave so vague
a line as to afford no rule at all, the degree of judgment belonging to
each individual being infinitely various. . . . The care taken by a
prudent man has always been the rule laid down; and as to the
supposed difficulty of applying it, a jury has always been able to say,
whether, taking that rule as their guide, there has been negligence on
the occasion in question.
Instead, therefore, of saying that the liability for negligence
should be co-extensive with the judgment of each individual, which
would be as variable as the length of the foot of each individual, we
ought rather to adhere to the rule which requires in all cases a regard
to caution such as a man of ordinary prudence would observe. That
was in substance the criterion presented to the jury in this case[.]
What is the relationship between Vaughan v. Menlove and Williams v.

Hays? Are the cases consistent? Does the same rationale underlie the two
decisions?
3. Mental disabilities. In Lynch v. Rosenthal, 396 S.W.2d 272 (Mo.
App. 1965), the plaintiff, Ronald Lynch, was a 22-year-old man with the
mental capacity of a child of less than ten years old and an I.Q. of 65. Ten
years earlier the defendant’s wife had taken Lynch out of the State Home
for children who were “subnormal,” or mentally retarded; since then Lynch
had lived on the defendant’s farm, helping out with chores and being treated
like a member of the family. One day the defendant asked Lynch to help
him with the corn picking. Lynch was instructed to walk between the corn
picker and a wagon into which corn from the picker was discharged. He
was to pick up any corn that fell onto the ground and put it in the wagon.
While attempting to do this, Lynch stumbled into the picker. His right arm
became caught in its husking rollers, resulting in serious injuries. Lynch
brought a lawsuit claiming the defendant had been negligent in failing to
warn him directly that it would be dangerous to come too close to the
picker. The defendant argued that Lynch had been contributorily negligent
as a matter of law in coming too near the machine. Lynch’s expert, a
psychiatrist, testified that there are three categories of subnormal mentality:
“moron, low moron, and idiot”; he said Lynch was a “low moron,” and did
not have the ability to appreciate the danger of moving machinery, though
he could have comprehended a clear warning to stay away from it. The jury
returned a verdict for Lynch, and the defendant appealed.
Held, for the plaintiff, that the evidence was sufficient to support the
verdict, and that the plaintiff was not contributorily negligent as a matter of
law. Said the court:
[T]here was medical evidence to the effect that plaintiff’s mental

condition was such that he would understand a direct warning to stay
away from [] machinery, which defendant did not give, but that he
might not be able to understand the reason therefor. The extent of his
mental deficiency was fully explored in the evidence. . . . Here, there
is testimony to the effect that defendant directed plaintiff, a mentally
subnormal person, to walk behind the picker, between it and the
following wagon, which defendant himself admitted was a dangerous
place to walk. The plaintiff’s contributory negligence, under the
evidence here, was for the jury to determine.
What was the significance in this case of Lynch’s mental impairments?
What is the superficial similarity between Lynch v. Rosenthal and Vaughan
v. Menlove (the L case where the court said the defendant should be held to
the standard of a reasonable person regardless of whether he possessed
below average intelligence)? In what respects are the two cases answering
different questions?
4. Distinct defects. From Oliver Wendell Holmes, Jr., The Common
Law 86-88 (1881):
There are exceptions to the principle that every man is presumed to

possess ordinary capacity to avoid harm to his neighbors, which
illustrate the rule, and also the moral basis of liability in general.
When a man has a distinct defect of such a nature that all can
recognize it as making certain precautions impossible, he will not be
held answerable for not taking them. A blind man is not required to
see at his peril; and although he is, no doubt, bound to consider his
infirmity in regulating his actions, yet if he properly finds himself in a
certain situation, the neglect of precautions requiring eyesight would
not prevent his recovering for an injury to himself, and, it may be
presumed, would not make him liable for injuring another. So it is
held that, in cases where he is the plaintiff, an infant of very tender
years is only bound to take the precautions of which an infant is
capable; the same principle may be cautiously applied where he is
defendant. Insanity is a more difficult matter to deal with, and no
general rule can be laid down about it. There is no doubt that in many
cases a man may be insane, and yet perfectly capable of taking the
precautions, and of being influenced by the motives, which the
circumstances demand. But if insanity of a pronounced type exists,
manifestly incapacitating the sufferer from complying with the rule
which he has broken, good sense would require it to be admitted as
an excuse.
Did the defendant in Vaughan v. Menlove have a “distinct” defect as

Holmes used that expression? Did the plaintiff in Lynch v. Rosenthal?
Holmes’s understanding received the following endorsement in §289 of the
Restatement (Second) of Torts (1965):
Comment n. Inferior qualities. If the actor is a child, allowance is
made for his inferior qualities of mind and body, and the standard
becomes that of a reasonable man with such qualities[.] If the actor is
ill or otherwise physically disabled, allowance is made for such
disability[.] Except in such cases, the actor is held to the standard of a
reasonable man as to his attention, perception, memory, knowledge of
other pertinent matters, intelligence, and judgment, even though he
does not in fact have the qualities of a reasonable man. The individual
who is habitually wool-gathering and inattentive, absent-minded,
forgetful, ignorant or inexperienced, slow-witted, stupid, or a fool,
must conform to the standards of the society in which he lives, or if
he cannot conform to them must still make good the damage he does.
5. Bridge unsafe. In Weirs v. Jones County, 53 N.W. 321 (Iowa 1892),

the defendant county determined that one of its bridges was in an unsafe
condition, condemned it, and posted signs reading “Bridge unsafe” at each
end. The plaintiff, unable to read English, drove his wagon over the bridge
several days later. The bridge collapsed, and the plaintiff’s horses and
wagon fell into the stream below. He sued the county to recover for the loss
of the animals and the damage to the wagon. The trial court instructed the
jury as follows:
[I]f you find from the evidence that the signboards were placed in a
conspicuous place at each end of the bridge, and were of such
construction as would give warning to a person of ordinary care,
about to enter upon the bridge, of its unsafe condition, and if you find
from the evidence that such signboards were so maintained up to and
at the time plaintiff entered upon the bridge, then the fact that
plaintiff was unable to read the English language, if you shall so find,
would be no excuse for him[.]
So instructed, the jury brought in a verdict for the county. The plaintiff
appealed, claiming the instruction was erroneous. The Iowa Supreme Court
affirmed:
[T]he fact that [the plaintiff] could not read the English language
should not require that the board of supervisors should put up
impassable and immovable barriers, in order to protect the county
from suits for damages, or to post notices or signboards of danger in
all languages, so that people of every tongue might be warned of the
danger. The laws of this country and the proceedings of the courts are
required to be in the English language. The proceedings of the boards
of supervisors, and notices ordered by them, are in the same
language. The jury found that the precautions taken by the board to
protect travelers were reasonably sufficient to notify persons
exercising ordinary and reasonable care that the bridge was unsafe.
The plaintiff cannot be allowed to claim that some standard of care
shall be applied to him which is not applicable to persons in general.
What is the superficial similarity between Weirs v. Jones County and

Lynch v. Rosenthal? What is the distinction between them?
6. Reasonableness and religion. In Friedman v. State, 54 Misc. 2d 448
(N.Y. Cl. 1967), the plaintiff, Ruth Friedman, was a 16-year-old girl who
went sightseeing with a male friend at a ski resort operated by the state of
New York. Late in the afternoon they got onto the chair lift at the top of the
mountain where they had been hiking and began their descent. A few
minutes later the chair lift stopped moving; it had been shut down for the
night by one of the resort’s attendants, who did not realize that the plaintiff
and her friend were still on their way down. They found themselves
suspended 20 to 25 feet in the air. They called for help, but there was no
response. The plaintiff lowered herself so that she was hanging from the
chair, then let go and fell to the ground. She was able to walk to the base
camp, where she broke in and used the phone to call for help; but in the fall
she had suffered various injuries, including a broken nose, a disfiguring
injury to her left nostril, trauma to her left shoulder, whiplash, and resulting
“anxiety with nightmares.” She brought suit against the state, which moved
to dismiss the claim on the ground that the plaintiff had been contributorily
negligent. The court of claims found for the plaintiff, and awarded her
$35,000. Said the court:
[I]t does not require much imagination or experience to determine

that a lightly dressed 16-year-old city girl might become hysterical at
the prospect of spending a night on a mountainside, suspended in the
air and with no apparent reason to hope for rescue until the next
morning. Secondly, we must add to the fact of expectable hysteria,
the moral compulsion this young lady believed she was under, not to
spend a night alone with a man.
Claimants called Rabbi Herschel Stahl to testify as an expert
witness on the Hebrew Law and the orthodox interpretation and
observance of said Law. The Rabbi knew Miss Friedman and her
family and he knew that she had been reared in an orthodox
observance of her faith. Rabbi Stahl advised the Court that under the
Hebrew Law, the Shulchan Arukh, there is a specific law, the Jichud,
which absolutely forbids a woman to stay with a man in a place
which is not available to third person. To violate this Jichud would be
an overwhelming moral sin which would not only absolutely ruin this
young girl’s reputation but also the reputation of her parents. It was
his opinion that a girl who had been trained in a 100 per cent
orthodox home, as Miss Friedman was, might go even to the lengths
of jumping to her death to avoid violation of the Jichud. . . . Rabbi
Stahl’s testimony established a basis for the moral compulsion that
Miss Friedman believed she was under and which, in our opinion,
increased the hysteria we believe a young girl might well experience
regardless of faith. As stated by Justice Frankfurter in Watts v. State
of Indiana, 338 U.S. 49, 52: “There is torture of mind as well as
body; the will is as much affected by fear as by force.”
The Appellate Division affirmed, 297 N.Y.S.2d 850 (App. Div. 1969),
but reduced the verdict to $20,000; it reserved judgment on the significance
of any moral compulsion the plaintiff may have felt to leap from the chair
lift.
What is the superficial similarity between Friedman v. State (as decided
by the trial court in the excerpt above) and Weirs v. Jones County? How
would you state the distinction between them? Suppose the plaintiff in
Friedman had jumped twice as far, and that the jump therefore would have
been unreasonable without the plaintiff’s religious beliefs but arguably
reasonable with them. What result, and on what reasoning?
7. Contributory negligence. In many cases plaintiffs are partly to blame
for their own injuries. At common law, the doctrine of contributory
negligence generally provided that plaintiffs whose own carelessness
contributed to their injuries could collect nothing from a defendant. The
doctrine was capable of producing harsh results; even if the defendant’s
negligence was clear and the plaintiff was only slightly at fault, the plaintiff
nevertheless had to bear the entire loss. Courts ameliorated these
consequences by limiting the doctrine in various ways. The most important
limitation was the doctrine of last clear chance, which held that a plaintiff
was not barred from recovery by his own negligence if the defendant had
the last good opportunity to avoid the accident through the use of due care
and failed to do so. The details of the doctrine varied from jurisdiction to
jurisdiction, but it generally applied in cases where the plaintiff was
helpless or inattentive and the defendant became aware of the danger but
did not prevent it.
During the later part of the twentieth century these rules were replaced
in most states by doctrines of comparative negligence that reduced
recoveries by negligent plaintiffs in proportion to their fault but did not
prevent them from recovering altogether. The shift from contributory to
comparative negligence was made by judicial decisions in some states and
by legislation in others, and the details of the resulting rules vary. Some
states use “modified” forms of comparative negligence, allowing plaintiffs
to collect only if they are not more than 50 percent responsible for their
injuries; others use a “pure” rule of comparative negligence, allowing
plaintiffs who are 90 percent to blame for their injuries to still bring suit to
collect the remaining 10 percent. The jury may be invited to consider both
how negligent each party was and the causal role that each party’s
negligence played in contributing to the loss. Some states also use rules of
“comparative fault” that allow juries to balance the ordinary negligence of
the plaintiff against the gross negligence of the defendant and to apportion
liability accordingly. These rules also vary in their effect on the related but
distinct defense of assumption of the risk. We consider the details of these
doctrines and the transition between them in Chapter 10 on defenses.
The meaning of the negligence standard generally is the same regardless
of whether the plaintiff’s or defendant’s conduct is being assessed; this
chapter thus uses both types of cases to illustrate the meaning of the term.
But can you think of situations where you would expect negligence by the
plaintiff and the defendant to be judged by different standards, either
formally by a court or informally by a jury? What considerations bearing on
the negligence standard might be present for potential plaintiffs but not for
potential defendants?
8. One degree of care. In Fredericks v. Castora, 360 A.2d 696 (Pa. App.
1976), the plaintiff was riding in a car that was hit by two trucks. The jury
found no negligence on the part of either of the trucks’ drivers. The plaintiff
appealed, contending that the jury should have been instructed to apply a
higher standard to the defendants than it would apply to ordinary drivers;
the plaintiff pointed out that both defendants were professionals who drove
trucks for a living and had done so for over 20 years. The court of appeals
affirmed:
In the present case the trial court in its charge defined negligence as
the want of due care under the circumstances and the failure to act as
a reasonable, prudent person under the circumstances. A requirement
that experienced truck drivers be subject to a higher standard of care
does not impress us as being a useful concept to infuse into the law of
vehicle negligence. An understanding of the ordinary standard of due
care applicable to the average motorist under the multitude of
changing circumstances likely to confront today’s driver is already
difficult to grasp and apply justly. To begin to vary the standard
according to the driver’s experience would render the application of
any reasonably uniform standard impossible. Other jurisdictions have
confronted the problem of varying degrees of care and sought to
control the ceaseless variation of the concept of negligence by
establishing a single standard: “Care does not increase or diminish by
calling it names. We think the abstract concept of reasonable care is
in itself quite difficult enough to grapple with and apply in our law
without our courts gratuitously conferring honorary degrees upon it.
There is only one degree of care in the law, and that is the standard of
care which may reasonably be required or expected under all the
circumstances of a given situation.” We decline this opportunity to
develop a higher standard of care for experienced truck drivers and
find that the trial court did not err in its instruction on the degree of
care in the present case.
9. Supernormal strength, X-ray vision, etc. Restatement (Second) of

Torts, §298, comment d (1965), provides:
Necessity that the actor employ competence available. The actor must
utilize with reasonable attention and caution not only those qualities
and facilities which as a reasonable man he is required to have, but
also those superior qualities and facilities which he himself has. Thus,
a superior vision may enable the actor, if he pays reasonable
attention, to perceive dangers which a man possessing only normal
vision would not perceive, or his supernormal physical strength may
enable him to avoid dangers which a man of normal strength could
not avoid.
Illustration 1. A is driving a pair of well-broken horses. They
become frightened and run away. A is unusually strong and could by
the exercise of reasonable care in using his full muscular power bring
the horses under control. He is negligent toward anyone run down by
the horses if he fails to do so, although a man of ordinary muscular
strength would be unable to control the horses.
From the Second Restatement, §289:
Illustration 12. A is a physician. His child exhibits symptoms which

A, because of his previous training and experience, should recognize
as indicating that the child has scarlet fever. A fails to recognize
them, and permits his child to go to school, where the child
communicates the disease to B, another pupil. A is negligent in not
recognizing the risk, although if he were a layman he might not be
negligent.
Can these provisions be squared with the decision in Fredericks v.

Castora? If so, what is the distinction between them? If not, which
approach seems preferable?
2. Physical Infirmities
1. The reasonably prudent deaf man. In Kerr v. Connecticut Co., 140 A.

751 (Conn. 1928), the plaintiff’s decedent, William Kerr, was a 58-year-old
man with very poor hearing. One evening he walked home from work on
Asylum Avenue in Hartford, alongside which ran the defendant’s trolley
line. A trolley came up behind Kerr at about 15 miles per hour. The driver
saw Kerr and noticed that he was walking close enough to the tracks that he
would be hit if he and the trolley both continued on their paths. The driver
sounded his gong, but Kerr did not hear it and veered still closer to the
tracks. The driver applied his brakes, but it was too late; the trolley knocked
Kerr onto the adjacent road, and soon afterwards he died from his injuries.
Kerr’s administratrix sued the trolley company. The trial court found
negligence on Kerr’s part but no negligence on the part of the trolley driver.
The plaintiff appealed and the Connecticut Supreme Court affirmed,
holding that Kerr was contributorily negligent as a matter of law:
The law required the decedent to exercise that care for his own safety
which a reasonably prudent man would exercise under the same
circumstances. It is true that he had a legal right to walk where he
was walking, just as any traveler has a right to walk in any part of the
public highway. But as a reasonable man he was charged with
knowledge that the place close to the trolley rail where he was
walking was dangerous, and that a passing trolley car would
necessarily strike him, and he also knew that he could not hear the
bell or gong of an approaching car from the rear. It was his duty
therefore to take such care as a reasonably prudent deaf man would
take under those conditions.
There is nothing in the finding of facts to show that he took any
precautions whatever. So far as appears, he took this position of
danger and continued in it, without looking back up the “long stretch”
of straight and unobstructed track from which an overtaking car
would come.
2. Blindness. In Davis v. Feinstein, 88 A.2d 695 (Pa. 1952), the plaintiff,

a blind man, was walking down 60th Street in Philadelphia, using a cane to
touch the walls of abutting buildings and to tap the ground in front of him.
He nevertheless fell through an open cellar door in front of the defendant’s
furniture store. The plaintiff sued the defendant for negligence and won a
jury verdict; the trial court rejected the defendant’s claim that the plaintiff
should be held contributorily negligent as a matter of law. The defendant
appealed, and the Pennsylvania Supreme Court affirmed:
A blind person is not bound to discover everything which a person of
normal vision would. He is bound to use due care under the
circumstances. Due care for a blind man includes a reasonable effort
to compensate for his unfortunate affliction by the use of artificial
aids for discerning obstacles in his path. When an effort in this
direction is made, it will ordinarily be a jury question whether or not
such effort was a reasonable one.
What is the distinction between Davis v. Feinstein and Kerr v.

Connecticut Co. (the case holding a deaf plaintiff contributorily negligent)?
What is the distinction between Davis v. Feinstein and Weirs v. Jones
County?
State as precisely as possible the common issue that all of the cases in
this section are discussing, from Williams v. Hays through Davis v.
Feinstein.
3. Age
Purtle v. Shelton
474 S.W.2d 123 (Ark. 1971)
[The defendant, Kenneth (“Bubba”) Shelton, was a 17-year-old boy

who accidentally shot his 16-year-old hunting companion (the plaintiff).
The jury attributed an equal share of responsibility for the accident to the
plaintiff and defendant. Under the state’s comparative-negligence rule, the
plaintiff therefore recovered nothing. The plaintiff’s primary claim on
appeal was that the trial court erred in instructing the jury that the defendant
should be found negligent only if he failed to use that degree of care which
a reasonably careful minor of his age and intelligence would use in similar
circumstances.]
SMITH, J. — The appellant [] contends that the court should have

instructed the jury that Kenneth, in using a high powered rifle, was required
to use the same degree of care that would be observed by an adult in like
circumstances. In making that argument counsel cite our holding in
Harrelson v. Whitehead, 365 S.W.2d 868 (Ark. 1963), where we adopted
the general rule that a minor operating a motor vehicle must use the same
degree of care as an adult would use. The appellant argues that motor
vehicles and rifles are both dangerous and should therefore be treated alike
as far as their use by a minor is concerned.
We cannot accept that argument. To begin with, the motor vehicle rule
was not adopted, as our opinion in Harrelson reflects, solely because the
driving of an automobile entails danger to others. There are other factors to
be considered. A minor must be at least sixteen to operate a car by himself.
He must pass an examination to demonstrate his ability to operate the
vehicle on the highways. The rules governing the operation of motor
vehicles are largely statutory and make no distinction, express or implied,
between the degree of care to be exercised by a minor and that to be
exercised by an adult. A measure of financial responsibility is required. In
view of all those factors, the cases in other jurisdictions, as we pointed out
in Harrelson, have consistently held minors to the same degree of care as
adults in driving upon the highways.
In the second place, we considered the subject anew in Jackson v.
McCuiston, 247 Ark. 862 (1969). There a farm boy almost fourteen years
old was operating a tractor propelled stalk cutter — a large piece of
machinery having a dangerous cutting blade. In holding that minor to an
adult standard of care we quoted from three authorities. The Restatement of
Torts (2d), Prosser on Torts, and Harper & James on Torts. All three
authorities recognize the identical rule, that if a minor is to be held to an
adult standard of care he must be engaging in an activity that is (a)
dangerous to others and (b) normally engaged in only by adults. In the
course of that opinion we stated that the minor “was performing a job
normally expected to be done by adults.”
We are unable to find any authority holding that a minor should be held
to an adult standard of care merely because he engages in a dangerous
activity. There is always the parallel requirement that the activity be one
that is normally engaged in only by adults. So formulated, the rule is logical
and sound, for when a youth is old enough to engage in adult activity there
are strong policy reasons for holding him to an adult standard of care. In
that situation there should be no magic in the attainment of the twenty first
birthday.
We have no doubt that deer hunting is a dangerous sport. We cannot say,
however, either on the basis of the record before us or on the basis of
common knowledge, that deer hunting is an activity normally engaged in by
adults only. To the contrary, all the indications are the other way. A child
may lawfully hunt without a hunting license at any age under sixteen. We
know, from common knowledge, that youngsters only six or eight years old
frequently use .22 caliber rifles and other lethal firearms to hunt rabbits,
birds, and other small game. We cannot conscientiously declare, without
proof and on the basis of mere judicial notice, that only adults normally go
deer hunting.
In refusing to apply an adult standard of care to a minor engaged in
hunting deer, we do not imply that a statute to that effect would be unwise.
Indeed, we express no opinion upon that question. As judges, we cannot lay
down a rule with the precision and inflexibility of a statute drafted by the
legislature. If we should declare that a minor hunting deer with a high
powered rifle must in all instances be held to an adult standard of care, we
must be prepared to explain why the same rule should not apply to a minor
hunting deer with a shotgun, to a minor hunting rabbits with a high powered
rifle, to a twelve year old shooting crows with a .22, and so on down to the
six year old shooting at tin cans with an air rifle. Not to mention other
dangerous activities, such as the swinging of a baseball bat, the explosion of
firecrackers, or the operation of an electric train. All we mean to say in this
case is that we are unwilling to lay down a brand new rule of law, without
precedent and without any logical or practical means of even surmising
where the stopping point of the new rule might ultimately be reached. . . .
Affirmed.
FOGLEMAN, J., dissenting — . . . Bubba Shelton had been instructed in

the skill of deer hunting by his grandfather, Melvin Tucker, a deer hunter
for 30 years. Tucker testified that he had taken his grandson hunting ever
since the boy was big enough to follow him in the woods with a dog, and
before Bubba was big enough to carry a gun. Young Shelton, he said, had
been carrying a gun ever since he was 12 or 13 years old. Tucker said that
he taught the boy the safety rules of handling, shooting, loading and
unloading a gun. He also taught Bubba what he called the most important
thing in hunting in the woods — a certain knowledge of the identity of his
target. Young Shelton, a high school senior, said that he had been deer
hunting for about eight years. He had previously killed a deer. . . .
This court had no qualms about taking judicial notice of the hazards of
automobile traffic, the frequency of accidents, often having catastrophic
results, and the fact that immature individuals are no less prone to
accidents, than adults, in reaching the conclusion that the time had come to
require a minor to observe the same standards of care as an adult when
operating an automobile. I find no logical reason for not doing the same
when the use of a high powered rifle is the implement endangering the lives
of all who now flock to the woods in the limited deer hunting season. Logic
seems to dictate that an even higher standard be required when firearms are
the death dealing instrument than is expected when the potential danger
arises from the negligent use of a motor vehicle. . . .
BYRD, J., dissenting — Because a bullet fired from the gun by a minor is
just as deadly as a bullet fired by an adult, I’m at a loss to understand why
one with “buck fever” because of his minority is entitled to exercise any
less care than any one else deer hunting. One killed by a bullet so fired
would be just as dead in one instance as the other and without any more
warning.
NOTES
1. 7 vs. 77. In Roberts v. Ring, 173 N.W. 437 (Minn. 1919), the
plaintiff’s son, Roberts, was seven years old. As he ran across a street he
was struck by an automobile driven by the defendant, who was 77 years old
and had defective powers of sight and hearing. The defendant was traveling
at a speed of four to five miles per hour, and said that he saw the Roberts
boy when he was still about five feet in front of his car. The defendant was
not able to stop, and drove his car all the way over him. The jury brought in
a verdict for the defendant, and the plaintiff appealed.
Held, for the plaintiff, that the jury was not properly instructed. The
court said that the trial court correctly instructed the jury to make
allowances for the youth of the plaintiff’s son: “Had a mature man acted as
did this boy he might have been chargeable with negligence as a matter of
law. But a boy of seven is not held to the same standard of care in self-
protection. In considering his contributory negligence the standard is the
degree of care commonly exercised by the ordinary boy of his age and
maturity.” But the jury incorrectly had been instructed that in deciding
whether the defendant was negligent it could take into account his age and
whether he suffered from any physical infirmities:
[D]efendant’s infirmities did not tend to relieve him from the charge
of negligence. On the contrary they weighed against him. Such
infirmities, to the extent that they were proper to be considered at all,
presented only a reason why defendant should refrain from operating
an automobile on a crowded street where care was required to avoid
injuring other travelers. When one, by his acts or omissions causes
injury to others, his negligence is to be judged by the standard of care
usually exercised by the ordinarily prudent normal man.
Why hold children to a reduced standard of care but not the elderly?
2. Motorboats vs. velocipedes. In Dellwo v. Pearson, 107 N.W.2d 859
(Minn. 1961), the defendant, a 12-year-old boy, ran across the plaintiff’s
fishing line with his powerboat. This caused the plaintiff’s fishing rod to
break, and a piece of the reel flew into the plaintiff’s eye, causing injuries
for which she sought to recover. The trial court instructed the jury that “[i]n
considering the matter of negligence, the duty to which defendant is held is
modified because he is a child, a child not being held to the same standard
of conduct as an adult and being required to exercise only that degree of
care which ordinarily is exercised by children of like age, mental capacity,
and experience under the same or similar circumstances.” The jury returned
a general verdict for the defendant, and the plaintiffs appealed, claiming the
jury had been improperly instructed. The Minnesota Supreme Court
reversed:
[I]n the circumstances of modern life, where vehicles moved by

powerful motors are readily available and frequently operated by
immature individuals, we should be skeptical of a rule that would
allow motor vehicles to be operated to the hazard of the public with
less than the normal minimum degree of care and competence.
To give legal sanction to the operation of automobiles by
teenagers with less than ordinary care for the safety of others is
impractical today, to say the least. We may take judicial notice of the
hazards of automobile traffic, the frequency of accidents, the often
catastrophic results of accidents, and the fact that immature
individuals are no less prone to accidents than adults. While minors
are entitled to be judged by standards commensurate with age,
experience, and wisdom when engaged in activities appropriate to
their age, experience, and wisdom, it would be unfair to the public to
permit a minor in the operation of a motor vehicle to observe any
other standards of care and conduct than those expected of all others.
A person observing children at play with toys, throwing balls,
operating tricycles or velocipedes, or engaged in other childhood
activities may anticipate conduct that does not reach an adult standard
of care or prudence. However, one cannot know whether the operator
of an approaching automobile, airplane, or powerboat is a minor or an
adult, and usually cannot protect himself against youthful imprudence
even if warned. Accordingly, we hold that in the operation of an
automobile, airplane, or powerboat, a minor is to be held to the same
standard of care as an adult.
What is the distinction between Dellwo v. Pearson and Purtle v. Shelton?

3. Juvenile and adult activities. As the opinion in Dellwo suggests, the
law generally does not hold children to an adult standard of care when they
are riding bicycles. Why? Consider that when behavior is governed by the
rule of negligence, people often must coordinate their precautions; the
precautions each should take often will depend on the precautions others are
required to use. Drivers and pedestrians are required to use reasonable care,
but each ordinarily is entitled to assume that the other will be using
reasonable care as well. Drivers are not required to assume that pedestrians
will walk into the street without looking. But in some situations (when?),
one party may be able to see that the other is not or probably will not be
using reasonable care, and can compensate accordingly. In other situations
one party’s inability to measure up to the standard of the “reasonably
prudent person” may be invisible, and in that case the other party will not
be able to compensate. One might argue that we should be ready to
recognize people’s inability to take due care in the former situations but not
the latter. Indeed, this is one way to understand Holmes’s argument that the
law only will modify the reasonable person standard to account for “distinct
defects.” How helpful is this distinction in explaining the cases that have
defined the reasonable person? Is being a child a “distinct defect” as
Holmes used the term? In what settings is the defendant’s age obvious to
others?
4. The wonder years. In Dunn v. Teti, 421 A.2d 782 (Pa. App. 1979), the
defendant swung a stick negligently, causing injuries to the plaintiff. Both
parties were approximately six years old. The trial court gave summary
judgment to the defendant on the ground that he was too young to be
capable of negligence. The court of appeals affirmed:
The issue with which we are confronted in this case is the minimum
age below which a child is incapable of acting negligently because he
lacks the attention, intelligence and judgment necessary to enable him
to perceive risk and recognize its unreasonable character. The
obligation to use reasonable care extends to both adults and minors,
but the standard against which the acts of a child are measured to
determine if they constitute negligent conduct varies from that
employed for adults. When measuring the conduct of children, courts
depart from the well known objective test of the care of a reasonable
and prudent man, the test generally utilized to judge adult behavior,
and make allowance for immaturity. A child is held to that measure of
care that other minors of like age, experience, capacity and
development would ordinarily exercise under similar circumstances.
The application of this standard is clarified by the use of several
presumptions delineating convenient points to aid in drawing the
uncertain line between capacity to appreciate and guard against
danger and incapacity: (1) minors under the age of seven years are
conclusively presumed incapable of negligence; (2) minors between
the ages of seven and fourteen years are presumed incapable of
negligence, but the presumption is a rebuttable one that weakens as
the fourteenth year is approached; (3) minors over the age of fourteen
years are presumptively capable of negligence, with the burden
placed on the minor to prove incapacity.
Cavanaugh, J., dissented:
When determining whether a child is capable of acting negligently,

the standard to be applied is that of a reasonable person of like age,
intelligence and experience under the circumstances. This standard,
unlike the Majority’s conclusive presumption, adequately takes into
account the differing capacities of children of the same age to
appreciate and cope with the dangers of a given situation.
Why is the presumption “conclusive” that a child under the age of seven
cannot be capable of negligence? What is gained by such a rule that is not
achieved by simply instructing the jury to compare the defendant’s behavior
to the (presumably low) standard set by other children of the same age?
Most courts prefer to take this latter approach (see, e.g., Standard v. Shine,
295 S.E.2d 786 (S.C. 1982)); but most of those courts, while not adhering
to the “rule of sevens” described in Dunn v. Teti, nevertheless still say that
very young children — typically those under the age of five — are
incapable of negligence. For discussion, see Dobbs, The Law of Torts §126;
Restatement Third, Torts: Liability for Physical and Emotional Harm §10.
B. RISKS AND PRECAUTIONS
United States v. Carroll Towing Co.

159 F.2d 169 (2d Cir. 1947)
[The Conners Marine Company brought this action in admiralty against

the Pennsylvania Railroad for the loss of a barge, the Anna C. Conners
owned the Anna C and had chartered her to the Pennsylvania in a package
deal that included the services of a Conners bargee between the hours of 8
A.M. and 4 P.M. On January 2, 1944, the Pennsylvania moved the Anna C to
the end of Pier 52 in New York Harbor. She was loaded with a cargo of
flour belonging to the United States. A little later the Grace Line sent a tug
it had chartered, the Carroll, up to Pier 52 to get another barge. The Grace
Line employees — a harbormaster and his helper — had to adjust the lines
of the Anna C in order to get to the other barge; when they were done, they
improperly retied the Anna C’s lines. As a result, the Anna C later broke
away from the pier and bumped into a tanker whose propeller punched a
hole in the Anna C beneath the waterline. At the time, the Conners
Company’s bargee, who was supposed to be aboard the Anna C, was
elsewhere; thus nobody discovered the leak until it was too late to pump the
water from the barge. The Anna C sank along with her cargo. The parties
affected by the accident brought various claims against one another.
[The court determined that the Grace Line’s harbormaster and deckhand
were negligent in retying the Anna C to the pier, so they were partly
responsible for the ensuing damage. The court then considered whether the
Conners Company also had been negligent because its bargee was not
aboard the Anna C at the critical moment.]
LEARNED HAND, J. — . . . [I]f the bargee had been on board, and had
done his duty to his employer, he would have gone below at once, examined
the injury, and called for help from the “Carroll” and the Grace Line tug.
Moreover, it is clear that these tugs could have kept the barge afloat, until
they had safely beached her, and saved her cargo. This would have avoided
what we shall call the “sinking damages.” Thus, if it was a failure in the
Conners Company’s proper care of its own barge, for the bargee to be
absent, the company can recover only one third of the “sinking” damages
from the Carroll Company [the owner of the tugboat] and one third from the
Grace Line. For this reason the question arises whether a barge owner is
slack in the care of his barge if the bargee is absent.
[The court then considered whether it was negligent for the Conners
Company to have an absent bargee. After reviewing cases on the subject, it
continued:] It appears from the foregoing review that there is no general
rule to determine when the absence of a bargee or other attendant will make
the owner of the barge liable for injuries to other vessels if she breaks away
from her moorings. However, in any cases where he would be so liable for
injuries to others, obviously he must reduce his damages proportionately, if
the injury is to his own barge. It becomes apparent why there can be no
such general rule, when we consider the grounds for such a liability.
Since there are occasions when every vessel will break from her
moorings, and since, if she does, she becomes a menace to those about her;
the owner’s duty, as in other similar situations, to provide against resulting
injuries is a function of three variables: (1) The probability that she will
break away; (2) the gravity of the resulting injury, if she does; (3) the
burden of adequate precautions. Possibly it serves to bring this notion into
relief to state it in algebraic terms: if the probability be called P; the injury,
L; and the burden, B; liability depends upon whether B is less than L
multiplied by P: i.e., whether B < PL.
Applied to the situation at bar, the likelihood that a barge will break
from her fasts and the damage she will do, vary with the place and time; for
example, if a storm threatens, the danger is greater; so it is, if she is in a
crowded harbor where moored barges are constantly being shifted about.
On the other hand, the barge must not be the bargee’s prison, even though
he lives aboard; he must go ashore at times. We need not say whether, even
in such crowded waters as New York Harbor a bargee must be aboard at
night at all[.] We leave that question open; but we hold that it is not in all
cases a sufficient answer to a bargee’s absence without excuse, during
working hours, that he has properly made fast his barge to a pier, when he
leaves her. In the case at bar the bargee left at five o’clock in the afternoon
of January 3rd, and the flotilla broke away at about two o’clock in the
afternoon of the following day, twenty-one hours afterwards. The bargee
had been away all the time, and we hold that his fabricated story was
affirmative evidence that he had no excuse for his absence. At the locus in
quo — especially during the short January days and in the full tide of war
activity — barges were being constantly “drilled” in and out. Certainly it
was not beyond reasonable expectation that, with the inevitable haste and
bustle, the work might not be done with adequate care. In such
circumstances we hold — and it is all that we do hold — that it was a fair
requirement that the Conners Company should have a bargee aboard (unless
he had some excuse for his absence), during the working hours of daylight.
NOTES
1. Introducing the Hand formula. Judge Hand’s style of analysis is

perhaps the best-known and most widely discussed method of analyzing
whether a party took reasonable care to prevent an accident. The Hand
formula presents a number of difficulties in application, however, and is not
without its detractors. One purpose of the cases in this section of the chapter
is to explore how the formula might be applied to various cases involving
claims of negligence. In each case, try to identify the three elements of the
Hand formula: B, the “burden” or cost of the untaken precaution that the
plaintiff claims the defendant should have used; P, the probability of the
accident occurring if the precaution were not taken; and L, the loss that
would result if the accident were to occur. The most usual interpretation of
the Hand formula is economic: the goal is to put dollar values on B and L to
the extent possible. As you read this section, consider whether there are
other ways to think about the formula’s elements.
To illustrate, suppose that if the plaintiff fails to take some precaution,
such as keeping a bargee on its barge, there is a 10 percent chance that
during the coming year an accident will occur; and if it does occur the total
cost of the accident will be $100,000 (the typical cost of a barge). In this
example, P is. 10; L is $100,000; so P × L — the expected cost of the
accident — is $10,000. Another way of looking at this is to say that $10,000
is the average size of the accident costs that will result if this same situation
is played out repeatedly over a long period of time: we would expect one
accident about every ten years if a given barge owner always fails to keep a
bargee on board; the average annual cost of this to a barge owner will be
$10,000 ($100,000 divided by 10 years, or multiplied by .10; if an accident
occurred every 20 years, we would multiply by .05). B in this case is the
cost of having a bargee. If a bargee would cost each barge owner $5,000 per
year, then the Hand formula would suggest that it is negligent to fail to use
one. If hiring a bargee would cost each barge owner $30,000 per year, then
the Hand formula suggests that it is not negligent to do without one: it
would be cheaper (and therefore preferable) to let the accidents occur; it
would be a waste to hire a $30,000 bargee to prevent a $10,000 accident
(recalling that $10,000 is the average cost of the accidents; when the
accidents happen, they will cost more than that, but nine times out of ten
they won’t happen at all).
The illustration just considered is unrealistic because it usually is
impossible to put clear numbers on each element of the Hand formula.
Hand himself said that “[of the factors in the formula] care [or B] is the
only one ever susceptible of quantitative estimate, and often that is not. The
injuries are always a variable within limits, which do not admit of even
approximate ascertainment; and, although probability might theoretically be
estimated, if any statistics were available, they never are; and, besides,
probability varies with the severity of the injuries. It follows that all such
attempts are illusory; if serviceable at all, they are so only to the extent that
they center attention upon which one of the factors may be determinative in
any given situation.” Moisan v. Loftus, 178 F.2d 148 (2d Cir. 1949). Even
so, however, it may be possible to compare the relative relationships
between B, P, and L in different cases, and so to use the formula to shed
light on their outcomes.
Juries deciding negligence claims, meanwhile, are not told to apply the
Hand formula. As noted in the previous section, jury instructions generally
just ask whether the defendant behaved in the way that a reasonably prudent
person would under the same circumstances. This test — the “reasonable
man” or “reasonable person” test — rarely is supplemented with any further
guidance, though occasionally a jury will be invited to compare the risks
and benefits of a defendant’s behavior. The Hand formula sometimes is
used, however, by courts of appeal when they review jury verdicts:
Currently, there seem to be four basic appellate stances toward the

Hand formula: (1) use it routinely, sometimes even sua sponte, (2)
use it if the appeal is couched in cost-benefit terms, (3) ignore it by
disposing even of explicit cost-benefit claims under the reasonable
person standard, and (4) reject it as a matter of law. A few courts
(most clearly those of Louisiana and Michigan) take approach (1). No
court, to my knowledge, takes approach (4). The majority of courts
take either approach (2) or approach (3).
Gilles, The Invisible Hand Formula, 80 Va. L. Rev. 1015 (1994). Yet
regardless of how much or how little the Hand formula is used explicitly by
courts, it may be a useful tool for analysis. Some commentators — most
famously Richard Posner — consider the Hand formula a compelling
description of what judges (and perhaps juries) do, whether or not they say
so explicitly or even realize it consciously. Appellate opinions, both modern
and old, often analyze cases in terms that may resemble the Hand formula;
consider this passage from the old English case of Mackintosh v.
Mackintosh, 2 Macph. 1347 (1864):
[I]t must be observed that in all cases the amount of care which a
prudent man will take must vary infinitely according to
circumstances. No prudent man in carrying a lighted candle through a
powder magazine would fail to take more care than if he was going
through a damp cellar. The amount of care will be proportionate to
the degree of risk run, and to the magnitude of the mischief that may
be occasioned.
Does this statement amount to the same point made by the Hand formula? If
not, how is it different? Soon we will see additional examples of old cases
that may or may not involve the type of balancing Hand describes. As you
read them, consider whether more explicit thought about the Hand formula
and its implications would have led to any difference in the court’s result or
analysis, or whether reflection on the Hand formula now makes the logic of
the cases seem any clearer than the opinions themselves do.
Some commentators have argued that the Hand formula can be justified
in ethical as well as economic terms:
From an economic perspective the Hand formula makes excellent

sense. The formula can be seen as designed to encourage efficient
investments in safety and risk reduction; as such, it has served as a
cornerstone for economic analysis. Yet despite its economic
implications, the Hand formula is also conducive to an ethical
explanation of the negligence liability standard. Typically the burden
of risk prevention is borne in the first instance by the defendant. Take
the defendant whose conduct creates a risk to others that can be
measured as $100 — a risk which the defendant could prevent by
incorporating a $50 precaution. If the defendant fails to adopt this
precaution and hence acts negligently, the defendant’s choice shows
that he attaches a greater weight to his own interests than to the
interests of others. By ranking his own welfare as more important
than the welfare of others, the defendant’s conduct can correctly be
reproached as ethically improper.
Gary Schwartz, Mixed Theories of Tort Law: Affirming Both Deterrence

and Corrective Justice, 75 Tex. L. Rev. 1801, 1819-1820 (1997). Posner
offers a related suggestion. Usually his theory is thought to be that the Hand
formula, or the intuition behind it, is attractive to courts because it gives
people incentives to behave efficiently — i.e., to keep waste of all sorts to a
minimum by either preventing accidents or allowing them to occur,
whichever is cheaper. It is not necessary to his claim, however, that courts
think of efficiency as an important goal; he suggests that perhaps the Hand
formula reflects intuitions about blameworthiness:
Because we do not like to see resources squandered, a judgment of
negligence has inescapable overtones of moral disapproval, for it
implies that there was a cheaper alternative to the accident.
Conversely, there is no moral indignation in the case in which the
cost of prevention would have exceeded the cost of the accident. . . .
If indignation has its roots in inefficiency, we do not have to decide
whether regulation, or compensation, or retribution, or some mixture
of these best describes the dominant purpose of negligence law. In
any case, the judgment of liability depends ultimately on a weighing
of costs and benefits.
Posner, A Theory of Negligence, 1 J. Legal Stud. 29 (1972). Does this imply

that over-investment in safety should provoke just as much indignation as
underinvestment?
These theories suggest a final question to consider as you examine the
cases and problems that follow: does analysis under the Hand formula
produce the same outcomes as would be generated by worrying about
fairness and corrective justice?
2. The area of ordinary prevision. In Adams v. Bullock, 227 N.Y. 208
(1919), the defendant ran a trolley line in the city of Dunkirk. The trolleys
were powered by a system of overhead wires. At one point the trolley line
was crossed by a bridge that carried the tracks of the Nickle Plate and
Pennsylvania railroads. As the court recounted: “Pedestrians often use the
bridge as a short cut between streets, and children play on it. . . . [T]he
plaintiff, a boy of twelve years, came across the bridge, swinging a wire
about eight feet long. In swinging it, he brought it in contact with the
defendant’s trolley wire, which ran beneath the structure. The side of the
bridge was protected by a parapet eighteen inches wide. Four feet seven and
three-fourths inches below the top of the parapet, the trolley wire was
strung. The plaintiff was shocked and burned when the wires came
together.” A jury returned a verdict for the plaintiff. The defendant appealed
on the ground that the evidence was insufficient to support the verdict.
Held, for the defendant, that the trial court erred in entering judgment
on the verdict. Said the court (per Cardozo, J.):
The defendant in using an overhead trolley was in the lawful exercise

of its franchise. Negligence, therefore, cannot be imputed to it
because it used that system and not another. There was, of course, a
duty to adopt all reasonable precautions to minimize the resulting
perils. We think there is no evidence that this duty was ignored. The
trolley wire was so placed that no one standing on the bridge or even
bending over the parapet could reach it. Only some extraordinary
casualty, not fairly within the area of ordinary prevision, could make
it a thing of danger. Reasonable care in the use of a destructive
agency imports a high degree of vigilance. But no vigilance, however
alert, unless fortified by the gift of prophecy, could have predicted the
point upon the route where such an accident would occur. It might
with equal reason have been expected anywhere else. At any point
upon the route, a mischievous or thoughtless boy might touch the
wire with a metal pole, or fling another wire across it. If unable to
reach it from the walk, he might stand upon a wagon or climb upon a
tree. No special danger at this bridge warned the defendant that there
was need of special measures of precaution. No like accident had
occurred before. No custom had been disregarded. We think that
ordinary caution did not involve forethought of this extraordinary
peril. . . .
There is, we may add, a distinction not to be ignored between
electric light and trolley wires. The distinction is that the former may
be insulated. Chance of harm, though remote, may betoken
negligence, if needless. Facility of protection may impose a duty to
protect. With trolley wires, the case is different. Insulation is
impossible. Guards here and there are of little value. To avert the
possibility of this accident and others like it at one point or another on
the route, the defendant must have abandoned the overhead system,
and put the wires underground. Neither its power nor its duty to make
the change is shown.
How might you restate the court’s reasoning using the Hand formula?
How might you argue that the opinion doesn’t amount to an application of
the Hand formula?
3. A social being is not immune from social risks. In Bolton v. Stone,
[1951] A.C. 850, 1 All E.R. 1078 (H.L.), rev’g [1950] 1 K.B. 201, the
plaintiff, Bessie Stone, lived on a residential street adjoining Lord’s Cricket
Ground. The grounds were enclosed on the plaintiff’s side by a seven-foot
fence. One day the plaintiff was standing in front of her garden gate when
she was struck by a ball hit out of the Cricket Ground. There was evidence
that on rare occasions over the previous 30 years balls had been hit over the
fence, though none had caused injury; in any event, all agreed that the hit
was excellent, covering a distance of about 78 yards, which was 20 yards
beyond the fence.
The plaintiff sued the club that owned the grounds, including a
negligence count among her claims. The defendants were awarded
judgment after a bench trial. The Court of Appeal reversed, holding that the
trial court erred in finding no negligence; the House of Lords reversed
again, holding that there must be judgment for the defendants. Said Reid,
L.J.:
My Lords, it was readily foreseeable that an accident such as befell

the respondent might possibly occur during one of the appellants’
cricket matches. Balls had been driven into the public road from time
to time, and it was obvious that if a person happened to be where a
ball fell that person would receive injuries which might or might not
be serious. On the other hand, it was plain that the chance of that
happening was small. . . . It follows that the chance of a person ever
being struck even in a long period of years was very small. . . .
In the crowded conditions of modern life even the most careful
person cannot avoid creating some risks and accepting others. What a
man must not do, and what I think a careful man tries not to do, is to
create a risk which is substantial. . . . In my judgment, the test to be
applied here is whether the risk of damage to a person on the road
was so small that a reasonable man in the position of the appellants,
considering the matter from the point of view of safety, would have
thought it right to refrain from taking steps to prevent the danger. In
considering that matter I think that it would be right to take into
account not only how remote is the chance that a person might be
struck, but also how serious the consequences are likely to be if a
person is struck, but I do not think that it would be right to take into
account the difficulty of remedial measures. If cricket cannot be
played on a ground without creating a substantial risk, then it should
not be played there at all.
Said Radcliffe, L.J.:
My Lords, I agree that this appeal must be allowed. I agree with

regret, because I have much sympathy with the decision that
commended itself to the majority of the members of the Court of
Appeal. I can see nothing unfair in the appellants being required to
compensate the respondent for the serious injury that she has received
as a result of the sport that they have organised on their cricket
ground at Cheetham Hill, but the law of negligence is concerned less
with what is fair than with what is culpable, and I cannot persuade
myself that the appellants have been guilty of any culpable act or
omission in this case. . . .
It seems to me that a reasonable man, taking account of the
chances against an accident happening, would not have felt himself
called on either to abandon the use of the ground for cricket or to
increase the height of his surrounding fences. He would have done
what the appellants did. In other words, he would have done nothing.
Whether, if the unlikely event of an accident did occur and his play
turn to another’s hurt, he would have thought it equally proper to
offer no more consolation to his victim than the reflection that a
social being is not immune from social risks, I do not say, for I do not
think that that is a consideration which is relevant to legal liability.
In what respects do the statements from the House of Lords resemble

the Hand formula? In what respects are they different?
4. Marginal analysis. If the Hand formula is to be used correctly as an
economic matter it has to be applied at the margin. What does this mean? A
typical analysis of whether a defendant was negligent involves picking an
untaken precaution and asking if due care — or, here, the Hand formula —
required it. But the important question is not just whether taking the
precaution would have been better than doing nothing; it is whether the
precaution was cost-justified considering the other precautions that also
were available.
A simplified example will make the point clearer. Imagine a case like
Bolton v. Stone, but one in which we have more precise information about
the costs and effectiveness of various precautions the defendants might have
taken. Suppose that the only risk at issue is the chance that a cricket ball
will hit a pedestrian on the head, inflicting a $50,000 injury. Suppose
further that the defendants can choose between the following precautions:
a. They can build no fence around the cricket ground. In this case
there is a 10 percent chance each year that someone will be hit by a
cricket ball and sustain a $50,000 injury — an “expected” accident
cost of $5,000 per year (50,000 × 0.10).
b. They can build a fence seven feet tall. Assume that the cost of
building and then maintaining the fence would be $2,000 per year,
and that it would reduce the chance of the $50,000 accident each year
to 2 percent — an expected annual cost of $1,000 (50,000 × 0.02).
c. They can build a fence ten feet tall. Assume that the cost of
building and then maintaining this fence would be $2,500 per year,
and that it would reduce the chance of an accident each year to 1.8
percent — an expected cost of $900 (50,000 × 0.018).
Given these assumptions, what does the economic interpretation of due

care require the defendants to do? Spending $2,500 to build a ten-foot fence
would reduce the annual expected cost of accidents from $5,000 to $900; on
this view the precaution clearly seems cost-justified. But there is another
option: building a seven-foot fence. The marginal cost (in other words, the
additional, incremental cost) of moving from a seven-foot fence to a ten-
foot fence is $500 per year. The marginal benefit of doing so is a $100
reduction each year in accident costs. So suppose the defendants build the
seven-foot fence, and the plaintiff is hit by a cricket ball that goes just over
it; the evidence shows that a ten-foot fence would have prevented the
accident. Does the Hand formula suggest that the defendant should be held
liable?
5. Heroic measures. In Eckert v. Long Island R. Co., 43 N.Y. 502
(1871), the plaintiff’s decedent was having a conversation with another
person about 50 feet from the defendant’s railroad tracks in East New York
when a train arrived from Queens at a speed of 12 to 20 miles per hour. The
plaintiff’s witnesses heard no signal from the train’s whistle. The plaintiff
claimed that the defendant was negligent in running its train at that speed
through a thickly populated neighborhood. A child of three or four years of
age was sitting on the defendant’s track as the train approached and would
have been run over if not removed. The plaintiff’s decedent saw the child,
ran to it, seized it, and threw it clear of danger. He did not have time to get
clear himself, however, and was hit by the train. He died later that night.
The plaintiff won a jury verdict and the trial court entered judgment upon it.
The defendant appealed, claiming that the plaintiff’s case should have been
dismissed because he was contributorily negligent. The New York Court of
Appeals affirmed:
The evidence showed that the train was approaching in plain view of
the deceased, and had he for his own purposes attempted to cross the
track, or with a view to save property placed himself voluntarily in a
position where he might have received an injury from a collision with
the train, his conduct would have been grossly negligent, and no
recovery could have been had for such injury. But the evidence
further showed that there was a small child upon the track, who, if not
rescued, must have been inevitably crushed by the rapidly
approaching train. This the deceased saw, and he owed a duty of
important obligation to this child to rescue it from its extreme peril, if
he could do so without incurring great danger to himself. Negligence
implies some act of commission or omission wrongful in itself. Under
the circumstances in which the deceased was placed, it was not
wrongful in him to make every effort in his power to rescue the child,
compatible with a reasonable regard for his own safety. It was his
duty to exercise his judgment as to whether he could probably save
the child without serious injury to himself. If, from the appearances,
he believed that he could, it was not negligence to make an attempt so
to do, although believing that possibly he might fail and receive an
injury himself. He had no time for deliberation. He must act instantly,
if at all, as a moment’s delay would have been fatal to the child. The
law has so high a regard for human life that it will not impute
negligence to an effort to preserve it, unless made under such
circumstances as to constitute rashness in the judgment of prudent
persons. For a person engaged in his ordinary affairs, or in the mere
protection of property, knowingly and voluntarily to place himself in
a position where he is liable to receive a serious injury, is negligence,
which will preclude a recovery for an injury so received; but when
the exposure is for the purpose of saving life, it is not wrongful, and
therefore not negligent unless such as to be regarded as either rash or
reckless. The jury were warranted in finding the deceased free from
negligence under the rule as above stated. The motion for a nonsuit
was, therefore, properly denied. . . .
What was the untaken precaution by Eckert that formed the basis of the
railroad’s argument? What was its cost? How did it compare to the cost of
the actions Eckert did take?
6. The economics of Eckert. At first the dramatic facts of the Eckert case
might seem an unlikely occasion for application of the Hand formula.
Eckert nevertheless has generated some discussion of the role of costs and
benefits in applying the negligence standard. Consider Terry, Negligence,
29 Harv. L. Rev. 40, 42-44 (1915):
The plaintiff’s intestate, seeing a child on a railroad track just in front

of a rapidly approaching train, went upon the track to save him. He
did save him, but was himself killed by the train. The jury were
allowed to find that he had not been guilty of contributory
negligence. The question was of course whether he had exposed
himself to an unreasonably great risk. Here the . . . elements of
reasonableness were as follows:
(a) The magnitude of the risk was the probability that he would be
killed or hurt. That was very great.
(b) The principal object was his own life, which was very valuable.
(c) The collateral object was the child’s life, which was also very
valuable.
(d) The utility of the risk was the probability that he could save the
child. That must have been fairly great, since he in fact
succeeded. Had there been no fair chance of saving the child, the
conduct would have been unreasonable and negligent.
(e) The necessity of the risk was the probability that the child would
not have saved himself by getting off the track in time.
Here, although the magnitude of the risk was very great and the
principal object very valuable, yet the value of the collateral object
and the great utility and necessity of the risk counterbalanced those
considerations, and made the risk reasonable. The same risk would
have been unreasonable, had the creature on the track been a kitten,
because the value of the collateral object would have been small.
Compare Posner’s more recent analysis:
Almost any tort problem can be solved as a contract problem, by

asking what the people involved in an accident would have agreed on
in advance with regard to safety measures if transaction costs had not
been prohibitive. A striking example is provided by the old case of
Eckert v. Long Island Railroad. The defendant’s train was going too
fast and without adequate signals in a densely populated area. A
small child was sitting on the tracks oblivious to the oncoming train.
Eckert ran to rescue the child and managed to throw it clear but was
himself killed. The court held that Eckert had not been contributorily
negligent, and therefore his estate could recover damages for the
railroad’s negligence. For “it was not wrongful in him to make every
effort in his power to rescue the child, compatible with a reasonable
regard for his own safety. It was his duty to exercise his judgment as
to whether he could probably save the child without serious injury to
himself.” If, as implied by this passage, the probability that the child
would be killed if the rescue was not attempted was greater than the
probability that Eckert would get himself killed saving the child, and
if the child’s life was at least as valuable as Eckert’s life, then the
expected benefit of the rescue to the railroad in reducing an expected
liability cost to the child’s parents was greater than the expected cost
of rescue. In that event, but for prohibitive transaction costs, the
railroad would have hired Eckert to attempt the rescue, so it should be
required to compensate him ex post.
Posner, Economic Analysis of Law 272 (5th ed. 1998). What is the
relationship between analysis of Eckert under the Hand formula and the
analysis Posner conducts by imagining a hypothetical contract between the
parties? Is there any difference between the two approaches?
7. Even the claims of humanity must be weighed in a balance. In The
Margharita, 140 F. 820 (5th Cir. 1905), the libelant, Martinez, was a seaman
aboard a cargo ship bound from a Chilean port to Savannah. His libel
alleged that he fell overboard one evening as the vessel was rounding Cape
Horn. By the time he was pulled back onto the boat, a “shark or other
marine monster” had bitten off his leg a few inches below the knee. There
was no surgeon on the ship; the nearest place where one could be found was
Port Stanley in the Falkland Islands, a detour which would have taken the
ship perhaps three weeks to complete. The Margharita did not stop at Port
Stanley or any other port, but continued without interruption on its 7,000
mile voyage to Georgia. It arrived three months later. There Martinez had a
small additional portion of the leg amputated; in the later words of the court
of appeals, “The result obtained was satisfactory, and according to the
surgeon who performed the operation and testified for [Martinez] he now
has a fairly good stump.”
Martinez sued the owners of the ship for negligence in failing to seek
aid for him at Port Stanley or some other port between Cape Horn and
Savannah. The trial court gave judgment to Martinez, and awarded him
$1,500 in damages:
It is not difficult to conceive the unspeakable agony — indeed, torture

— which the libelant must have experienced in his long voyage of
more than 7,000 miles to Savannah with the ragged extremity of his
cruelly wounded leg incased at times in a box of hot tar and at other
times rudely bandaged by the kind, but inexperienced, hands of his
shipmates. According to his own testimony his sufferings were so
great that he often lost consciousness. . . . [It] is the duty of the
courts, not only to compensate the seaman for his unnecessary and
unmerited suffering when the duty of the ship is disregarded, but to
emphasize the importance of humane and correct judgment under the
circumstances on the part of the master.
Before surgical aid could have been obtained by putting into Port
Stanley in the Falkland Islands, the nearest available point, the acute
and dangerous stage resulting from the injury had passed. Before that
port could have been reached the healing processes of nature were
under way and had made progress. . . . No permanent loss or
disability was occasioned by the long delay in securing surgical aid.
The appellee’s leg was gone, and all that a surgeon could do was to
put it in condition to heal properly with the soft parts covering the
ends of the bones. Therefore, the only injury resulting from the delay
was the prolongation of the suffering occasioned by the healing
wound. With these conditions obtaining as to the appellee, was the
master bound to deviate from his course and put into Port Stanley?
The measure of a master’s obligation to a seaman who is severely
injured with the ship at sea is discussed by Mr. Justice Brown in [The
Iroquois, 194 U.S. 240, 243 (1904)]:
. . . “With reference to putting into port, all that can be demanded of the master is the
exercise of reasonable judgment and the ordinary acquaintance of a seaman with the
geography and resources of the country. He is not absolutely bound to put into such port if
the cargo be such as would be seriously injured by the delay. Even the claims of humanity
must be weighed in a balance with the loss that would probably occur to the owners of the
ship and cargo. A seafaring life is a dangerous one, accidents of this kind are peculiarly
liable to occur, and the general principle of law that a person entering a dangerous
employment is regarded as assuming the ordinary risks of such employment is peculiarly
applicable to the case of seamen.” . . .
The accident occurred upon “one of the loneliest and most

tempestuous seas in the world,” and in winter. The making of an
unknown harbor would have been fraught with uncertainty, and
possibly with difficulties of navigation. The delay incident to a
deviation from the course and stoppage would have been of somewhat
indefinite duration. During this time the owners of the bark would
sustain heavy loss in the wages and provisions of the crew and the
demurrage of the bark.
We have examined the cases cited by appellee in support of the
contention the master should have put into some intermediate harbor to
secure surgical aid and relief, and it is worthy of note that in each of
them, where this was held to be the duty of the master, permanent
injuries and disabilities resulted from his failure to pursue this course.
How might the reasoning in this case be expressed using the Hand
formula? Can the $1,500 damage award by the trial court be used as the
measure of “L”? Is it of any use to try to imagine how the parties might
have handled this situation by contract if they had foreseen it?
8. A dissenting view. In his article Hand, Posner, and the Myth of the
“Hand Formula,” 4 Theoretical Inquiries L. 145 (2003), Professor Richard
Wright takes a skeptical view of the Hand formula:
The legal literature generally assumes that an aggregate risk utility
test is employed to determine whether conduct was reasonable or
negligent. However, this test is infrequently mentioned by the courts
and almost never explains their decisions. Instead, they apply,
explicitly or implicitly, various justice based standards that take into
account the rights and relationships among the parties. . . .
Under the aggregate risk utility test, it is proper (indeed required)
for you to put others at even great risk for your solely private benefit
if your expected private gain outweighs the others’ expected losses.
However, such behavior, which treats others solely as a means to
one’s own ends, is condemned by common morality and the
underlying principles of justice as a failure to properly respect the
equal dignity and freedom of others. . . . [T]he reported cases rarely
involve situations in which the sole justification offered for the
defendant’s creation of significant risks to another is some private
(economic or non-economic) benefit to the defendant. The private
benefit issue rather arises indirectly in situations involving
participatory plaintiffs or socially valuable activities, in which . . . the
creation of significant risks to others is deemed reasonable if and only
if the risks are not too serious; they are necessary (unavoidable) in
order for the participatory plaintiffs or everyone in society to obtain
some desired benefit; they have been reduced to the maximum extent
feasible without causing an unacceptable loss in the desired benefit;
and they are significantly outweighed by the desired benefit. While
the private benefits desired by those being put at risk and the equal
freedom enhancing benefits to everyone in society are taken into
account, the purely private benefits to the defendant (or some third
party) are not taken into account.
Wright then discusses many common law cases sometimes said to

illustrate the logic and use of the Hand formula, and argues that none of
them actually do. Here are excerpts from his comments on three of the note
cases just considered.
a. Adams v. Bullock:
Cardozo’s opinion does not engage in any aggregate-risk-utility
balancing, but rather employs, at most, the non balancing, prohibitive
cost test for socially valuable activities. Cardozo stated that the
“[c]hance of harm, though remote, may betoken negligence, if
needless. Facility of protection may impose a duty to protect”
(emphasis added). He did not qualify this statement by any reference
to the cost of precaution. His stated reason for holding that the
defendant had not been negligent is not that the burden of the
precautions was greater than the risk, but rather that the risk was too
remote. While noting, in dicta, that even a remote risk might be
negligent if needless, Cardozo pointed out that the only way to
eliminate the remote risk in this case would be to shut down the
trolley or put the wires underground (which would seem to be
impossible while continuing to operate the trolley, given the need for
the trolley to maintain contact with the electric wires), and requiring
either would be contrary to the grant of the trolley franchise: “The
defendant in using an overhead trolley was in the lawful exercise of
its franchise. Negligence, therefore, cannot be imputed to it because it
used that system and not another.” The inherent risks of the trolley
system with its overhead electric wires were deemed acceptable by
the community since the trolley system provided substantial
transportation benefits to everyone in the community, the risks were
not serious and were reduced to the maximum extent feasible while
still obtaining the desired social benefits, and the social benefits
greatly outweighed the risks.
b. Bolton v. Stone:
[E]ach of the Law Lords explicitly or implicitly assumed that the

defendant cricket club would be liable for negligence if the risk to
non-participants like Miss Stone were foreseeable and of a
sufficiently high level, regardless of the expected utility to the
participants or the burden of eliminating the risk. Each concluded that
the risk was foreseeable, but not of a sufficiently high level to be
deemed unreasonable as a matter of law, given the very low
combined probability of, first, a ball’s being hit into the road and,
second, the ball striking someone on the little used residential side
street. Although several of the Law Lords stated that the risk must be
“likely” or “probable,” they clearly merely meant that the risk must
be significant rather than remote or minimal. The literal (greater than
50%) interpretation of “likely” or “probable” would eliminate almost
all negligence cases, which could hardly have been intended.
Moreover, each of the Law Lords viewed the negligence issue in
Bolton as one that could have been decided either way by the trial
court, despite the minimal risk.
c. Eckert v. Long Island Railroad Co.:
The critical passage in the majority opinion . . . states: “ . . . For a

person engaged in his ordinary affairs, or in the mere protection of
property, knowingly and voluntarily to place himself in a position
where he is liable to receive a serious injury, is negligence, which
will preclude a recovery for an injury so received; but when the
exposure is for the purpose of saving life, it is not wrongful, and
therefore not negligent unless such as to be regarded either rash or
reckless.”
This “rash or reckless” test, rather than the aggregate risk utility
test, is the test that the courts employ to assess the reasonableness of
putting oneself at risk in order to save the life of another. In these
emergency rescue situations, the courts generally hold that, no matter
how much the risk to the would be rescuer may seem to exceed the
expected benefit to the potential rescuee, the would be rescuer’s
conduct is morally praiseworthy, rather than morally blameworthy or
unreasonable, unless it was “foolhardy,” “wanton,” “rash,” or
“reckless.” The facts and holdings of these cases, including Eckert,
indicate that the risk to the plaintiff rescuer is considered foolhardy,
wanton, rash, or reckless only if the plaintiff put his own life at
serious risk merely to save property rather than the life of another
person or if there was no real or fair chance of saving the life of the
person whom the plaintiff was attempting to rescue. In those
circumstances, the plaintiff is failing to show proper respect for his
own life by throwing it away for no good reason. However, if there is
a fair chance of saving another’s life, one’s voluntary attempt to save
the other’s life, even at a great risk to oneself that exceeds the chance
of saving the other, is deemed heroic and morally praiseworthy, both
by ordinary persons and by the law.
How convincing are Wright’s arguments? How do you think he would

interpret the appellate court’s decision in The Margharita?
9. Untaken precautions (problem). In Davis v. Consolidated Rail Corp.,
788 F.2d 1260 (7th Cir. 1986), the plaintiff, Davis, was an inspector for the
Trailer Train Co., a lessor of cars to railroads. He made his inspections in
railroad yards, among them Conrail’s yard in East St. Louis. On the day of
the accident at issue here, Davis, driving an unmarked van that was the
same color as the Conrail vans used in the yard but that lacked the
identifying “C” painted on each Conrail van, arrived at the yard and saw a
train coming in from east to west. He noticed that several of the cars in the
train were Trailer Train cars that he was required to inspect. The train halted
and was decoupled near the front; the locomotive, followed by several cars,
pulled away to the west. The remainder of the train was stretched out for
three-quarters of a mile to the east; and because it lay on a curved section of
the track, its rear end was not visible from the point of decoupling. An
employee of Conrail named Lundy saw Davis sitting in his van, didn’t
know who he was, thought it strange that he was there, but did nothing.
Shortly afterward Davis began to conduct his inspection. This required
him to crawl underneath the cars to look for cracks. He did not hang a metal
blue flag on the train, as longstanding railroad custom and regulation
required him to do. Unbeknownst to Davis, a locomotive had just coupled
with the other (eastern) end of the train. It had a crew of four. Two were in
the cab of the locomotive. The other two, one of whom was designated as
the rear brakeman, were somewhere alongside the train; the record did not
show exactly where they were, but neither was at the western end of the
train, where Davis was. The crew was ordered to move the train several car
lengths to the east because it was blocking a switch. The crew made the
movement, but without blowing the train’s horn or ringing its bell. The only
warning Davis had of the impending movement was the sudden rush of air
as the air brakes were activated. He tried to scramble to safety before the
train started up but his legs were caught beneath the wheels of the car as he
crawled out from under it. One leg was severed just below the knee; most of
the foot on the other leg also was sliced off.
Davis presented three theories of the railroad’s negligence to the jury; as
commonly is the case, each of the three theories consisted of an untaken
precaution by the railroad that might have prevented the accident. His first
claim was that Conrail’s employee Lundy, whose auto was equipped with a
two-way radio, should have notified the crew of the train that an unknown
person was sitting in a van parked near the tracks. His second theory was
that before the train was moved a member of the crew should have walked
its length, looking under the cars. His third theory was that it was negligent
for the crew to move the train without first blowing its horn.
A jury found for Davis, assessed his damages at $3 million, but found
that Davis’s own negligence had been one third responsible for the accident,
and therefore awarded him $2 million. The railroad appealed. In addition to
denying that it was negligent in failing to take the precautions Davis
described, the railroad argued that the rule regarding blue flagging relieved
it from any duty of care to persons who might be injured by a sudden
starting of the train, because all such persons can protect themselves by blue
flagging and are careless if they fail to do so.
What result would you expect on these facts? How might the Hand
formula be used to assess Davis’s theories of negligence and the railroad’s
responses? What analysis of the case is suggested by Professor Wright’s
arguments?
10. The new orthodoxy. From the Restatement Third, Torts: Liability for
Physical and Emotional Harm:
§3. NEGLIGENCE
A person acts with negligence if the person does not exercise

reasonable care under all the circumstances. Primary factors to
consider in ascertaining whether the person’s conduct lacks
reasonable care are the foreseeable likelihood that it will result in
harm, the foreseeable severity of the harm that may ensue, and the
burden of precautions to eliminate or reduce the risk of harm.
How does this language differ from the definition of negligence in the
Second Restatement considered at the start of this chapter? Does this new
formulation amount to an adoption of the Hand formula?
11. Caught using the Hand formula. As we conclude our examination of
the Hand formula, consider a few broad questions. First, do you think the
courts in the cases just considered are applying the Hand formula,
consciously or otherwise? Second, is the Hand formula an appropriate way,
as a normative matter, to decide whether a defendant has been negligent?
What stance should the law take toward defendants who consciously use the
Hand formula to decide what precautions to take? In the 1970s the Ford
Motor Company was accused of deciding not to strengthen the fuel tanks in
its Pinto automobiles because it was cheaper just to pay damages to people
burned or killed in fires caused by the weaker fuel tanks. One group of
plaintiffs making such a claim won several million dollars from Ford in
punitive damages. See Grimshaw v. Ford Motor Co., 174 Cal. Rptr. 348
(Cal. App. 1981) (discussed in Chapter 9 on damages). More recently, a
jury awarded $4.9 billion in punitive damages against General Motors for
placing the gas tank in its Malibu automobiles too close to the rear bumper.
(The trial judge reduced the award to $1.09 billion, and GM settled with the
plaintiffs for an undisclosed amount while its appeal was pending.) The
plaintiffs’ evidence was that GM had calculated that fires resulting from the
fuel tank’s placement were costing the firm only $2.40 per vehicle (in
average payments to people injured in fiery collisions), and that it therefore
would not make sense to spend $8.59 per vehicle to adopt a safer design.
The internal memo on which this analysis was based was written in 1973. It
adopted $200,000 as the value of a human life; the memo’s author added
that “it is really impossible to put a value on human life. This analysis tried
to do so in an objective manner.” After the trial ended, one of the jurors
said, “We’re telling GM that when they know that something . . . is going to
injure people, then it’s more important that they pay the money to make the
car safe than to come to court and have a trial all the time.” Another juror
said, “We wanted to let them know that no matter how large the company
may be, we as jurors, we as people all over the world, will not stand for
companies having disregard for human life.” See Los Angeles Times, July
10, 1999, at 1; Detroit Free Press (July 13, 1999).
Are the decisions in these cases best understood as judgments that the
defendants are underestimating the size of the “L” involved when they
make their Hand formula calculations? Or should the decisions be
understood as condemning the defendant’s decision to engage in such
calculations at all? Do they tend to support the arguments from Professor
Wright considered earlier? In any event, how should an automobile
company decide which safety precautions to install in its vehicles and
which to leave out? (Strictly speaking the plaintiffs in these cases were
claiming not that the defendants were negligent, but that they sold
defectively designed products; as we shall see in a later chapter, however,
the standard for assessing such claims usually amounts to a comparison of
the costs and benefits of the defendant’s design with the costs and benefits
of an alternative design proposed by the plaintiff.)
12. Compliance errors. So far in this section we have been considering
one variety of negligence: claims that someone made a decision that
violated the Hand formula — a decision not to take an injured sailor into
port, or a decision to try to rescue a child sitting on a set of railroad tracks.
But many negligent acts fall into a different category; they involve lapses of
care in which the defendant fails to take some precaution that everyone
agrees is required by reasonable prudence, as when a driver forgets to look
for pedestrians. These sorts of lapses might be called “compliance errors,”
because they are failures to comply with an agreed-upon standard of care.
Another way of viewing this distinction is by noting that most of the cases
in this section so far have involved questions about what durable
precautions the Hand formula requires. A durable precaution generally is
some safety measure that can be implemented with a single decision, such
as installing a fire escape, hiring a bargee, or running wires below the
ground. Compliance errors, on the other hand, typically involve momentary
failures to take repetitive precautions, such as a driver forgetting to look
both ways before entering an intersection, or a railroad’s employee’s failure
— despite company policy — to remember to blow the horn before moving
the train.
Obviously compliance errors occur frequently, and they are responsible
for many accidents. But how should they be treated by the law? Perfect
compliance with the dictates of the Hand formula might be very costly.
Most people violate some rules of the road routinely when they drive; they
fail to look for pedestrians, drive a bit too fast, or forget to check their tire
pressure. To eradicate all of these lapses — to keep one’s eyes fixed on the
road at all times — would be difficult and thus “expensive” in terms of the
Hand formula (high B). Perhaps what the Hand formula really requires is
just the habit of watching the road with only occasional lapses. Yet that
implies that people should be given a break when those lapses occur, since
it’s not worth the effort to eradicate them entirely. Should courts therefore
be forgiving of the occasional lapse of due care?
The law’s usual answer is “no.” In a sense this amounts to a pocket of
strict liability within the negligence rule, since it means that once some
precaution (such as looking both ways) is considered a necessary feature of
reasonable care, any failure to comply with the precaution will result in
liability even if it was one of those rare lapses that even a careful person
would commit. Thus if a surgeon mistakenly leaves a sponge inside a
patient, there is no room for him to argue that in fact he is a very careful
person and that this was a once-in-a-lifetime slipup. But suppose that the
same surgeon were to purchase a machine that mechanically kept count of
the number of sponges used in an operation and the number of them later
removed and thrown away. The machine is more accurate than any human
can be expected to be; but the machine nevertheless makes mistakes once
per every million sponges that it counts. If a patient were injured by that
millionth sponge, could she sue the surgeon? What argument might exist for
treating this case differently from the case where the surgeon himself
commits a one-in-a-million blunder?
C. CUSTOM AND THE PROBLEM OF MEDICAL MALPRACTICE
We next explore the significance of customs in defining negligence. If a

defendant company takes as many precautions in its affairs as most similar
companies take, can it be accused of failing to take “reasonable” care? Or
suppose the defendant failed to take customary precautions: does this
necessarily mean the defendant was negligent? When does it make sense to
assume that the customary level of care in an industry is the appropriate
level? The issue is especially important in the field of medical malpractice,
as we shall see, but we begin by taking a broad view of the question.
The T.J. Hooper

60 F.2d 737 (2d Cir. 1932)
[Several coal barges were lost in a storm while being towed by the
petitioner’s two tugboats, the Montrose and the Hooper, along the New
Jersey coast. The trial court found the tugboats “unseaworthy” —
comparable in admiralty to a finding of negligence in an ordinary tort case
— because they did not carry working radios that would have enabled them
to hear about the coming bad weather and seek shelter. The tugboat
company appealed.]
LEARNED HAND, Circuit Judge — . . . Taking the situation as a whole, it

seems to us that the [masters of the tugboats] would have taken no undue
chances, had they got the broadcasts [predicting foul weather].
They did not, because their private radio receiving sets, which were on
board, were not in working order. These belonged to them personally, and
were partly a toy, partly a part of the equipment, but neither furnished by
the owner, nor supervised by it. It is not fair to say that there was a general
custom among coastwise carriers so to equip their tugs. One line alone did
it; as for the rest, they relied upon their crews, so far as they can be said to
have relied at all. An adequate receiving set suitable for a coastwise tug can
now be got at small cost and is reasonably reliable if kept up; obviously it is
a source of great protection to their tows. Twice every day they can receive
these predictions, based upon the widest possible information, available to
every vessel within two or three hundred miles and more. Such a set is the
ears of the tug to catch the spoken word, just as the master’s binoculars are
her eyes to see a storm signal ashore. Whatever may be said as to other
vessels, tugs towing heavy coal laden barges, strung out for half a mile,
have little power to manoeuvre, and do not, as this case proves, expose
themselves to weather which would not turn back stauncher craft. They can
have at hand protection against dangers of which they can learn in no other
way.
Is it then a final answer that the business had not yet generally adopted
receiving sets? There are, no doubt, cases where courts seem to make the
general practice of the calling the standard of proper diligence; we have
indeed given some currency to the notion ourselves. Indeed in most cases
reasonable prudence is in fact common prudence; but strictly it is never its
measure; a whole calling may have unduly lagged in the adoption of new
and available devices. It never may set its own tests, however persuasive be
its usages. Courts must in the end say what is required; there are
precautions so imperative that even their universal disregard will not excuse
their omission. But here there was no custom at all as to receiving sets;
some had them, some did not; the most that can be urged is that they had
not yet become general. Certainly in such a case we need not pause; when
some have thought a device necessary, at least we may say that they were
right, and the others too slack. . . . We hold the tugs therefore because had
they been properly equipped, they would have got the Arlington reports.
The injury was a direct consequence of this unseaworthiness.
Decree affirmed.
NOTES
1. The sandman. In Ellis v. Louisville & Nashville Ry., 251 S.W.2d 577
(Ky. App. 1952), the plaintiff was responsible for maintaining mechanisms
on the defendant’s trains that released sand onto slippery railroad tracks to
keep the wheels of the engine from spinning. Compressed air forced the
sand through pipes and out onto the tracks. One of the plaintiff’s tasks was
to lean out over the nozzles of the pipes to confirm that the sand was falling
through onto the rails. Clouds of dust would arise from the sand when he
did this, and he could not avoid breathing some of it. He did other similar
work with sand that also caused him to breathe dust. The plaintiff’s
evidence was that breathing so much dust during his 25 years of
employment caused him to contract silicosis. He sued the defendant
railroad, claiming it had been negligent in failing to issue him a mask that
would have prevented him from inhaling the dust. The defendant put in
evidence that the general practice of American railroads was not to supply
masks to employees doing the plaintiff’s sort of work. The trial court gave a
directed verdict to the defendant railroad, and the court of appeals affirmed:
The general rule as to common experience, usage and custom is well

stated in 38 Am. Jur. “Negligence” §34, pages 679-682, from which
we take these excerpts: “The common practices of the people,
however, cannot be ignored in determining whether due care was
exercised by an individual in a particular situation. It is not to be
expected that the law will exact a degree of care in guarding any
article which will make the great majority of the possessors of that
article chargeable with habitual or continuous negligence. . . . Persons
who are charged with a duty in relation to a particular matter or thing
have a right to rely upon the sufficiency of a structure or contrivance
which is in common use for the purpose and has been in fact safely
used under such a variety of conditions as to demonstrate its fitness
for the purpose. . . . Ordinarily, one is not considered negligent in
respect of acts which conform to a common practice that has existed
for years without resulting in an injury, and that has nothing about it
which shows a want of due care. . . . In other words, the test of
negligence with respect to instrumentalities, methods, etc., is the
ordinary usage and custom of mankind.” . . .
Applying this sound rule . . . to the facts in this case, it is manifest
defendant was not guilty of negligence in failing to furnish plaintiff
safe equipment or a safe place in which to work, since the record
plainly shows the practice by railroads generally throughout the
nation was not to furnish masks or respirators to men doing the same
character of work plaintiff had performed for defendant.
Does the holding of Ellis v. Louisville & Nashville Ry. necessarily

represent a different rule than The T.J. Hooper, or are the two cases
distinguishable?
2. Reason does not have to wait on usage. In MacDougall v.
Pennsylvania Power & Light Co., 166 A. 589 (Pa. 1933), the plaintiff, a
plumber, was hired by one Thomas Tiddy to go onto Tiddy’s roof and repair
a rain spout under the eaves. The defendant power company maintained a
fuse box on a pole at the edge of the roof. In wet weather the outside of the
box conducted electricity — and it was raining when the plaintiff went to
perform the work. At one point he raised his head and bumped into the fuse
box. A current entered behind his ear and exited through the base of his
spine. He was knocked unconscious and fell 25 feet from the roof,
sustaining various injuries. A physician testified that when he arrived at the
scene of the accident to render first aid to the plaintiff, he noticed a
perceptible odor of burnt flesh.
The plaintiff sued the power company, charging that it had been
negligent in putting the box so near the roof of the building despite knowing
that it often carried high voltage. The trial court awarded the plaintiff
$10,455. The defendant appealed, arguing that “the unbending test of
negligence in methods, machinery and appliances is the ordinary usage of
the business,” and that “no deviation by the defendant from any standard
observed by those engaged in the same business was shown in this case.
There is absolutely no competent testimony in this case that the equipment
of the defendant or the construction of the equipment was not in accordance
with the ordinary usage in the business.” The Pennsylvania Supreme Court
affirmed the judgment of the trial court:
Usage becomes important only when the conduct in question is not

inherently dangerous. Vigilance must always be commensurate with
danger. A high degree of danger always calls for a high degree of
care. The care to be exercised in a particular case must always be
proportionate to the seriousness of the consequences which are
reasonably to be anticipated as a result of the conduct in question.
Reason does not have to wait on usage; the latter must wait on
reason. Ordinary common sense dictates that if in a harmless looking
box there is something lurking that would kill or injure any one
touching that box, the latter must be so situated, if it is possible or
reasonably practicable to do so, that persons are not likely to come in
contact with it. If the box must be placed where persons are likely to
come in contact with it, there should be adequate warning given of its
dangerous character.
Usage may sometimes be treated as a factor in the measurement
of due care, and “in a few cases the courts have considered that due
care is established by showing that all precautions and safeguards
customarily used in the conduct of a similar business or occupation or
in a similar undertaking have been adopted, although this view cannot
be carried to the extent of justifying a custom which is so obviously
dangerous to life and limb as to be at once recognized as such by all
intelligent persons. . . . Customary methods or conduct do not furnish
a test which is conclusive or controlling on the question of
negligence, or fix a standard by which negligence is to be gauged.
The standard of due care is such care as a prudent person would
exercise under the circumstances of the particular case, and
conformity to customary or usual conduct or methods cannot amount
to more than a circumstance to be considered together with other
circumstances of the case in determining whether due care has been
exercised.”
Is there a satisfactory distinction between MacDougall v. Pennsylvania

Power & Light Co. and Ellis v. Louisville & Nashville Ry. (NL for failing to
provide the plaintiff with a mask, since masks were not customary in the
railroad industry)?
In most jurisdictions today, a defendant’s compliance with custom or
violation of it generally is considered probative evidence that the jury may
consider in a negligence case, but it is not regarded as conclusive either
way. Can you think of situations where it would make sense to give
customary practices decisive weight in setting the standard of care?
3. Undistorted market determinations. In Rodi Yachts, Inc. v. National
Marine, Inc., 984 F.2d 880 (7th Cir. 1993), a company called Transport
Distributors, Inc. (TDI), owned a dock in Chicago. National Marine sent a
barge to TDI’s dock to be unloaded there. A crew supplied by National
Marine lashed the barge to TDI’s dock, then left the scene. Several days
later, before TDI had been able to obtain a crane to unload the barge, the
barge slipped free from its moorings and collided with another dock and
two boats, causing more than $100,000 in damage. The owners of the
damaged property brought suit against National Marine, which then
impleaded TDI. The primary question in the case was the extent to which
National Marine and TDI each had been negligent. TDI claimed that
National Marine negligently tied its barge to the dock; National Marine
claimed that TDI had been negligent in failing for several days to inspect
the ropes used to tie the barge to the dock to see if they were holding up.
The district court found National Marine liable for two thirds of the
plaintiffs’ damages and TDI responsible for the remaining third. The
defendants appealed, each claiming that the other was solely at fault. The
court of appeals (per Posner, J.) reversed and remanded, holding that the
district court had not made sufficient findings to support its conclusions.
Said the court:
One of the best known principles of tort law — a principle that

received its canonical expression in an admiralty decision written by
Learned Hand, T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932) — is that
compliance with custom is no defense to a tort claim. [The principle]
is obviously sound when one is speaking of the duty of care to
persons with whom the industry whose customary standard of care is
at issue has no actual or potential contractual relation. For in that
situation the costs of the injury can be made costs to the industry, and
thus influence its behavior, only through the imposition of tort
liability. R.H. Coase, The Problem of Social Cost, 3 J. Law & Econ. 1
(1960). It is different when the potential victims are the customers of
the potential injurers. For then the latter, even if they are not subject
to any tort liability, will have to ponder the possibility that if they
endanger their customers they may lose them or may have to charge a
lower price in order to compensate them for bearing a risk of injury.
In such a case the market itself fixes a standard of care that reflects
the preferences of potential victims as well as of potential injurers
and then the principal function of tort law, it could be argued, is to
protect customers’ reasonable expectations that the firms with which
they deal are complying with the standard of care customary in the
industry, that is, the standard fixed by the market. This consideration
is made relevant here by National Marine’s argument that by
departing without notice from the industry custom regarding
inspections by dock operators TDI increased the risk of an accident. .
..
Here the custom was for the barge owner (or operator) to moor
the barge to the dock with a sufficient number of sound ropes,
carefully fastened, and for the dock owner (or operator) to inspect the
barge from time to time while it is at the dock, to make sure that the
mooring lines remain securely fastened. We do not know whether
National Marine violated the duty of care that custom places upon it
because we do not know whether the ropes were unsound,
insufficient in number (which seems highly unlikely, as we have
said), or improperly fastened (also unlikely). And we do not know
whether TDI violated the duty that custom imposed upon it to inspect
(or in lieu therefore to notify National Marine that it was not
inspecting, or to expedite the unloading), because there is no finding
about what precisely the duty consists of. Since, however, these
customs appear to reflect an undistorted market determination of the
best way to minimize runaway barge accidents, we think the focus of
the district court’s inquiry should be on the parties’ respective
compliance with and departures from the customs and that the judge
and the parties should not feel compelled to conduct a cost benefit
analysis of barge transportation from the ground up.
Does the analysis in Rodi Yachts imply that The T.J. Hooper was
wrongly decided on its facts? Is there a good distinction between the two
cases? How might the analysis in Rodi Yachts apply to MacDougall v.
Pennsylvania Power & Light Co., or to Ellis v. Louisville & Nashville Ry.?
4. Custom and contract. The court in Rodi Yachts repeats the
proposition that “compliance with custom is no defense to a tort claim,” and
says that principle “is obviously sound when one is speaking of the duty of
care to persons with whom the industry whose customary standard of care
is at issue has no actual or potential contractual relation.” Why? Consider
two scenarios. In the first, a railroad is sued when one of its trains drives
through a crossing without blowing its horn and runs into the plaintiff’s car.
The railroad defends on the ground that it is customary in the railroad
industry for trains to blow their horns only when the engineer sees an
obstruction on the tracks; here, the car entered the crossing just before the
train arrived. In the second scenario, a railroad is sued when one of its
passengers is struck by a piece of luggage that falls out of one of the train’s
overhead racks. The passenger claims that the railroad should have had
enclosed baggage compartments over its seats (similar to the compartments
on airplanes), rather than open racks where suitcases rest. The railroad
again defends by invoking industry custom, pointing out that no railroads
have such enclosed overhead compartments. Should custom be a stronger
defense in one of these scenarios than in the other? Why?
5. Medical malpractice cases. In Brune v. Belinkoff, 354 Mass. 102
(1968), the defendant, a specialist in anesthesiology practicing in New
Bedford, administered a spinal anesthetic containing eight milligrams of
pontocaine to the plaintiff prior to the delivery of her child. This was the
customary dose in New Bedford, but in Boston, 50 miles away, the
customary dose was five milligrams or less. The defendant said that greater
doses of pontocaine were needed in New Bedford because the practice of
obstetricians there is to put pressure directly on the uterus during delivery.
In any event, when the plaintiff attempted to get out of bed 11 hours after
her delivery, she slipped and fell on the floor. She subsequently complained
of numbness and weakness in her left leg and brought suit to recover for her
injuries; she complained that she had been given too much pontocaine. The
trial court instructed the jury to apply the traditional “locality rule” of Small
v. Howard, 131 Mass. 131 (1880):
[The defendant] must measure up to the standard of professional care
and skill ordinarily possessed by others in his profession in the
community, which is New Bedford, and its environs, of course, where
he practices, having regard to the current state of advance of the
profession. If, in a given case, it were determined by a jury that the
ability and skill of the physician in New Bedford were fifty percent
inferior to that which existed in Boston, a defendant in New Bedford
would be required to measure up to the standard of skill and
competence and ability that is ordinarily found by physicians in New
Bedford.
So instructed, the jury returned a verdict for the defendant. The plaintiff
appealed, claiming that the locality rule should be abandoned. The Supreme
Judicial Court agreed, and reversed:
We are of opinion that the “locality” rule of Small v. Howard which

measures a physician’s conduct by the standards of other doctors in
similar communities is unsuited to present day conditions. The time
has come when the medical profession should no longer be
Balkanized by the application of varying geographic standards in
malpractice cases. Accordingly, Small v. Howard is hereby overruled.
The present case affords a good illustration of the inappropriateness
of the “locality” rule to existing conditions. The defendant was a
specialist practicing in New Bedford, a city of 100,000, which is
slightly more than fifty miles from Boston, one of the medical centers
of the nation, if not the world. This is a far cry from the country
doctor in Small v. Howard, who ninety years ago was called upon to
perform difficult surgery. Yet the trial judge told the jury that if the
skill and ability of New Bedford physicians were “fifty percent
inferior” to those obtaining in Boston the defendant should be judged
by New Bedford standards, “having regard to the current state of
advance of the profession.” This may well be carrying the rule of
Small v. Howard to its logical conclusion, but it is, we submit, a
reductio ad absurdum of the rule.
The proper standard is whether the physician, if a general
practitioner, has exercised the degree of care and skill of the average
qualified practitioner, taking into account the advances in the
profession. In applying this standard it is permissible to consider the
medical resources available to the physician as one circumstance in
determining the skill and care required. Under this standard some
allowance is thus made for the type of community in which the
physician carries on his practice.
Notice two features of Brune v. Belinkoff. First, the court takes for
granted that custom plays a decisive role in setting the defendant’s standard
of care: the question is not whether the jury thinks he acted reasonably, but
whether the jury thinks he acted with the skill ordinarily found in some
community of physicians, whether national or local. All courts agree on this
general approach to deciding medical cases; medical malpractice is an
unusual area of tort law where compliance with custom is decisive rather
than just evidentiary. What is it about medical cases that might make it
better to ask whether the defendant used customary care than to ask whether
the defendant acted reasonably? Is the reason related to the contractual
theory discussed in the Rodi Yachts case, or are different considerations in
play?
One consequence of deferring to custom is that a plaintiff in a medical
malpractice case normally must present expert testimony to show how the
plaintiff’s situation customarily would have been handled. This brings us to
the second issue raised by Brune: handled in which community? No court
today adheres to the strict locality rule that once required a plaintiff to show
that the defendant’s conduct did not measure up to the usual standard of
care in the defendant’s own town or city. (What are the strongest objections
to such an approach?) Most courts use a national standard of care, usually
with allowances similar to those noted in Brune if the defendant had below-
average resources available. Some courts continue to use a modified
locality rule, however; consider the following example.
6. Similar localities. In Gambill v. Stroud, 531 S.W.2d 945 (Ark. 1976),
the defendant, Stroud, was a surgeon at a hospital in Jonesboro, Arkansas.
He was to perform an operation on the plaintiff’s wife, Yvonne Gambill, but
the operation was aborted because of complications with her anesthesia; as
a result of the complications, Mrs. Gambill suffered cardiac arrest and brain
damage. The plaintiff alleged that the complications were the product of Dr.
Stroud’s negligence. The jury was given the following instruction:
In diagnosing the condition of and treating of a patient, a physician
must possess and apply with reasonable care the degree of skill and
learning ordinarily possessed and used by members of his profession
in good standing engaged in the same type of service or specialty in
the location in which he practices or in a similar locality. A failure to
meet this standard is negligence.
So instructed, the jury brought in a verdict for the defendant. The plaintiff
appealed, contending that the instruction represented a “locality rule” and
so was erroneous. The Arkansas Supreme Court affirmed:
The thrust of appellants’ argument is that [the locality rule

represented by the instruction] is no longer applicable to modern
medicine, because doctors practicing in small communities now have
the same opportunities and resources as physicians in large cities to
keep abreast of advances in the medical profession, due to availability
of the Journal of the American Medical Association and other
journals, drug company representatives and literature, closed circuit
television, special radio networks, tape recorded digests of medical
literature, medical seminars and opportunities for exchange of views
between doctors from small towns and those from large cities where
there are complexes of medical centers and modern facilities.
However desirable the attainment of this ideal may be, it remains
an ideal. It was not shown in this case, and we are not convinced that
we have reached the time when the same postgraduate medical
education, research and experience is equally available to all
physicians, regardless of the community in which they practice. The
opportunities for doctors in small towns, of which we have many, to
leave a demanding practice to attend seminars and regional medical
meetings cannot be the same as those for doctors practicing in clinics
in larger centers. It goes without saying that the physicians in these
small towns do not and cannot have the clinical and hospital facilities
available in the larger cities where there are large, modern hospitals,
and medical centers or the same advantage of observing others who
have been trained, or have developed expertise, in the use of new
skills, facilities and procedures, or consulting and exchanging views
with specialists, other practitioners and drug experts, of utilizing
closed circuit television, special radio networks or of studying in
extensive medical libraries found in larger centers.
The rule we have established is not a strict locality rule. It
incorporates the similar community into the picture. The standard is
not limited to that of a particular locality. Rather, it is that of persons
engaged in a similar practice in similar localities, giving
consideration to geographical location, size and character of the
community. The similarity of communities should depend not on
population or area in a medical malpractice case, but rather upon their
similarity from the standpoint of medical facilities, practices and
advantages. . . .
It also seems that appellants have overlooked the impact of better
medical education, modern technology, and improved means of travel
and communication upon the law as it now exists. If the impact is as
great as they theorize then no change in the law is necessary. These
factors have already elevated the degree of skill and learning
ordinarily possessed and used by members of the medical profession
in every locality, if that premise is correct.
Which sorts of jurisdictions do you think would be most eager to adopt

a national standard of care, and which most likely to retain a rule keyed to
the type of community involved? The court in Gambill added that “[w]e
certainly are not unaware of the difficulties experienced by small towns and
rural communities in attracting qualified physicians. A complete abolition
of the locality rule would certainly add to these difficulties.” Tennessee
provides for a similar approach by statute: a plaintiff in a medical
malpractice case must establish “[t]he recognized standard of acceptable
professional practice in the profession and the specialty thereof, if any, that
the defendant practices in the community in which the defendant practices
or in a similar community at the time the alleged injury or wrongful action
occurred.” Tenn. Code Ann. §29-26-115. Who benefits from this rule? Who
is made worse off by it?
7. Medical care vs. facilities. In Johnson v. Wills Memorial Hospital &
Nursing Home, 343 S.E.2d 700 (Ga. App. 1986), the plaintiff’s decedent,
one Columbus Johnson, was a patient in the defendant’s hospital. One night
he began behaving strangely, running down a hospital corridor while
swinging a pitcher of water and shouting “help me.” He was forcibly
returned to his room by two sheriff’s deputies and then sedated by a nurse.
A half hour later he still appeared to witnesses to be “very agitated.” An
orderly was stationed outside Johnson’s room to ensure that he stayed there.
About three hours later, the orderly reported that Johnson’s room was
empty; the window to the room was open and the screen had been cut.
Johnson was found about eight hours later in the yard of a nearby residence.
He was returned to the hospital and pronounced dead on arrival. His
treating physician diagnosed the cause of death as overexposure to cold.
The plaintiff’s suit alleged that the hospital, acting through its
personnel, failed to adequately monitor Johnson, failed to inform the
treating physician of Johnson’s condition, and failed to treat him as the
physician directed. The jury was instructed that the standard of care
applicable to the hospital was the standard of care exercised in similar
hospitals in similar communities. So instructed, the jury brought in a verdict
for the defendant. The plaintiff appealed, alleging that the instruction
incorrectly applied a “locality rule” to the case. The Georgia Court of
Appeals affirmed:
The “locality rule” is appropriate in a case in which the adequacy of a

hospital’s facilities or services is questioned. Inroads on the “local”
standard of care rule have been made in cases in which a plaintiff
asserts negligence in the medical care and treatment provided by a
hospital’s professional personnel. In the case at bar, appellant alleged
in her complaint that the nursing care her late husband received was
substandard and that appellee’s facilities were deficient since it had
failed to protect her decedent adequately. The protection of patients is
not a medical function of a hospital; rather, it is a service provided by
a hospital to its patients, and the ability of a small rural hospital to
provide such a service is limited by its location and resources. In light
of the pleadings, a charge on the locality rule was called for, and the
trial court committed no error in so instructing the jury.
What is the basis for the distinction the court draws between medical
care and medical facilities? Why are facilities judged by reference to
custom at all? (The more usual approach would be to judge them without
reference to either national or local custom.)
8. Legal malpractice. In Cook v. Irion, 409 S.W.2d 475 (Tex. App.
1966), the plaintiff tripped and fell on a sidewalk in El Paso. There were
three possible defendants she might have sued: the shopping center that
owned the sidewalk, the organization of tenants occupying the shopping
center, and the television station that owned the cable on which she tripped.
Her lawyer, Irion, sued only the tenants’ organization. She lost. She then
sued Irion for malpractice, claiming that in bringing her tort suit he should
have sued the other possible defendants as well; the statute of limitations on
claims against them had since expired. The plaintiff’s expert was a lawyer
from the town of Alpine, Texas, who testified that Irion “had failed to
exercise the standard of care of the average general practitioner in the State
of Texas in not suing all three of the possible defendants.” The trial court
gave a directed verdict to the defendant, Irion. The court of appeals
affirmed, in part because the plaintiff had not offered adequate expert
testimony:
[A]n attorney practicing in a vastly different locality would not be

qualified to second guess the judgment of an experienced attorney of
the El Paso County Bar as to who should be joined as additional party
defendants. In this case Mr. Allen practiced law in Alpine, which is
220 miles from El Paso, and it is further significant that the
population of Brewster County is 6,434, as compared to 314,070 in
El Paso County. As admitted by Mr. Allen, the probable make up of
the jury panel is an important consideration of whom to sue where
there is an option. The importance of knowledge of the local situation
is fully demonstrated by the well recognized practice among the
lawyers of this State in associating local counsel in the trial of most
important jury cases.
In cases of legal and other professional malpractice, as in cases of

medical malpractice, the standard of care generally is set by reference to the
customary behavior of professionals in the relevant community. Is the
rationale for this approach in suits against lawyers as strong as it is in suits
against doctors? The relevant community usually is said to be the lawyers
practicing in the defendant’s state. Can you think of any reason why the
state, rather than the town or nation, would be the appropriate frame of
reference when considering a claim of legal malpractice? Can the decision
in Cook v. Irion be understood as a sensible exception to that usual rule?
9. Custom and consent. One area of medical practice where custom does
not necessarily set the standard is informed consent. When a patient
complains that a physician failed to disclose a risk of a procedure and that
the risk then materialized, some courts will ask whether such disclosures
were customary among skilled practitioners of good standing; others will
consider whether the physician disclosed all “material” risks. The question
then becomes whether the risk of the harm the patient suffered was neither
so obvious nor so rare that it should not be considered “material.” Evidence
on that question may be supplied by experts — i.e., other physicians — but
the test, strictly speaking, is not just whether the defendant made customary
disclosures; even a customary level of disclosure can be found inadequate.
Why might custom have less force in this context than in assessing a
doctor’s care in operating? The problem of informed consent in medical
malpractice cases is further addressed in Chapter 5 on cause in fact.
D. NEGLIGENCE PER SE: CRIMINAL STATUTES AND JUDGE-

MADE RULES
Tort cases that we characterize as resulting in “liability” usually are cases

where a court of appeals says that a jury is permitted to find the defendant
negligent, not where a jury is required to do so. Some major exceptions to
this pattern arise in cases where a defendant is held to be negligent per se:
the court determines that the defendant has violated some sort of rule, either
statutory or judge-made, and that the violation establishes the defendant’s
negligence as a matter of law. In other instances, however, courts may treat
such violations of rules as mere evidence of negligence for the jury to
consider — or as no evidence of negligence at all.
1. Violations of Criminal Statutes
Martin v. Herzog
126 N.E. 814 (N.Y. 1920)
CARDOZO, J. — The action is one to recover damages for injuries
resulting in death. Plaintiff and her husband, while driving toward
Tarrytown in a buggy on the night of August 21, 1915, were struck by the
defendant’s automobile coming in the opposite direction. They were thrown
to the ground, and the man was killed. At the point of the collision the
highway makes a curve. The car was rounding the curve, when suddenly it
came upon the buggy, emerging, the defendant tells us, from the gloom.
Negligence is charged against the defendant, the driver of the car, in that he
did not keep to the right of the center of the highway. Highway Law, §286,
subd. 3, and section 332. Negligence is charged against the plaintiff’s
intestate, the driver of the wagon, in that he was traveling without lights.
Highway Law, §329a, as amended by Laws 1915, c. 367. There is no
evidence that the defendant was moving at an excessive speed. There is
none of any defect in the equipment of his car. The beam of light from his
lamps pointed to the right as the wheels of his car turned along the curve
toward the left; and, looking in the direction of the plaintiff’s approach, he
was peering into the shadow. The case against him must stand, therefore, if
at all, upon the divergence of his course from the center of the highway. The
jury found him delinquent and his victim blameless. The Appellate Division
reversed, and ordered a new trial.
We agree with the Appellate Division that the charge to the jury was
erroneous and misleading. . . . In the body of the charge the trial judge said
that the jury could consider the absence of light “in determining whether the
plaintiff’s intestate was guilty of contributory negligence in failing to have a
light upon the buggy as provided by law. I do not mean to say that the
absence of light necessarily makes him negligent, but it is a fact for your
consideration.” The defendant requested a ruling that the absence of a light
on the plaintiff’s vehicle was “prima facie evidence of contributory
negligence.” This request was refused, and the jury were again instructed
that they might consider the absence of lights as some evidence of
negligence, but that it was not conclusive evidence. The plaintiff then
requested a charge that “the fact that the plaintiff’s intestate was driving
without a light is not negligence in itself,” and to this the court acceded.
The defendant saved his rights by appropriate exceptions.
We think the unexcused omission of the statutory signals is more than
some evidence of negligence. It is negligence in itself. Lights are intended
for the guidance and protection of other travelers on the highway. Highway
Law, §329a. By the very terms of the hypothesis, to omit, willfully or
heedlessly, the safeguards prescribed by law for the benefit of another that
he may be preserved in life or limb, is to fall short of the standard of
diligence to which those who live in organized society are under a duty to
conform. That, we think, is now the established rule in this state. . . .
In the case at hand, we have an instance of the admitted violation of a
statute intended for the protection of travelers on the highway, of whom the
defendant at the time was one. Yet the jurors were instructed in effect that
they were at liberty in their discretion to treat the omission of lights either
as innocent or as culpable. They were allowed to “consider the default as
lightly or gravely” as they would (Thomas, J., in the court below). . . .
Jurors have no dispensing power, by which they may relax the duty that one
traveler on the highway owes under the statute to another. It is error to tell
them that they have. The omission of these lights was a wrong, and, being
wholly unexcused, was also a negligent wrong. No license should have
been conceded to the triers of the facts to find it anything else.
We must be on our guard, however, against confusing the question of
negligence with that of the causal connection between the negligence and
the injury. A defendant who travels without lights is not to pay damages for
his fault, unless the absence of lights is the cause of the disaster. A plaintiff
who travels without them is not to forfeit the right to damages, unless the
absence of lights is at least a contributing cause of the disaster. . . .
There may, indeed, be times when the lights on a highway are so many
and so bright that lights on a wagon are superfluous. If that is so, it is for the
offender to go forward with the evidence, and prove the illumination as a
kind of substituted performance. The plaintiff asserts that she did so here.
She says that the scene of the accident was illumined by moonlight, by an
electric lamp, and by the lights of the approaching car. Her position is that,
if the defendant did not see the buggy thus illumined, a jury might
reasonably infer that he would not have seen it anyhow. We may doubt
whether there is any evidence of illumination sufficient to sustain the jury in
drawing such an inference; but the decision of the case does not make it
necessary to resolve the doubt, and so we leave it open. It is certain that
they were not required to find that lights on the wagon were superfluous.
They might reasonably have found the contrary. They ought, therefore, to
have been informed what effect they were free to give, in that event, to the
violation of the statute. They should have been told, not only that the
omission of the light was negligence, but that it was “prima facie evidence
of contributory negligence”; i.e., that it was sufficient in itself unless its
probative force was overcome to sustain a verdict that the decedent was at
fault.
Here, on the undisputed facts, lack of vision, whether excusable or not,
was the cause of the disaster. The defendant may have been negligent in
swerving from the center of the road; but he did not run into the buggy
purposely, nor was he driving while intoxicated, nor was he going at such a
reckless speed that warning would of necessity have been futile. Nothing of
the kind is shown. The collision was due to his failure to see at a time when
sight should have been aroused and guided by the statutory warnings. Some
explanation of the effect to be given to the absence of those warnings, if the
plaintiff failed to prove that other lights on the car or the highway took their
place as equivalents, should have been put before the jury. The explanation
was asked for and refused.
Order affirmed.
NOTES
1. Criminal and civil liability. Why treat a provision of the criminal law
as setting the standard of care for civil purposes? Is it because the
reasonable person always complies with whatever statutes and ordinances
are in place? (Can it be that a reasonable person sometimes might not
comply with them?) Or is the doctrine of negligence per se better
understood as a guess at what the legislature wanted when it enacted the
criminal provision? Sometimes such provisions provide explicitly for civil
liability if they are violated, and in that case there generally is no
controversy about their application in tort suits. The difficulties arise when
a statute prohibits conduct without specifying whether a violation gives an
injured party a right to sue for damages.
2. Flexible commands. In Tedla v. Ellman, 19 N.E.2d 987 (N.Y. 1939),
Anna Tedla and her brother, John Bachek, were walking along a road
known as the Sunrise Highway. They were wheeling baby carriages
containing junk and wood which they had collected at a nearby incinerator.
It was about six o’clock on a Sunday evening in December, and it was
already dark; Bachek was carrying a lantern. A car driven by the defendant,
Ellman, struck them, injuring Tedla and killing Bachek. Tedla brought suit
against Ellman to recover for her injuries.
Sunrise Highway was a two-lane road with no footpaths on either side.
State law provided as follows:
Pedestrians walking or remaining on the paved portion, or traveled

part of a roadway shall be subject to, and comply with, the rules
governing vehicles, with respect to meeting and turning out, except
that such pedestrians shall keep to the left of the center line thereof,
and turn to their left instead of right side thereof, so as to permit all
vehicles passing them in either direction to pass on their right. Such
pedestrians shall not be subject to the rules governing vehicles as to
giving signals.
Tedla and Bachek were violating the statute by walking east on the east-
bound or righthand roadway. At trial, however, Tedla put in evidence that
the side of the road they were using was much less trafficked and thus safer
than the side the law said they should use. The trial court entered judgment
on a jury verdict finding that the accident was due solely to Ellman’s
negligence. Ellman appealed on the ground that the trial court should have
held Tedla and her brother negligent as a matter of law. The New York
Court of Appeals affirmed:
[W]here a statutory general rule of conduct fixes no definite standard

of care which would under all circumstances tend to protect life, limb
or property but merely codifies or supplements a common-law rule,
which has always been subject to limitations and exceptions; or
where the statutory rule of conduct regulates conflicting rights and
obligations in a manner calculated to promote public convenience and
safety, then the statute, in the absence of clear language to the
contrary, should not be construed as intended to wipe out the
limitations and exceptions which judicial decisions have attached to
the common-law duty; nor should it be construed as an inflexible
command that the general rule of conduct intended to prevent
accidents must be followed even under conditions when observance
might cause accidents. We may assume reasonably that the
Legislature directed pedestrians to keep to the left of the center of the
road because that would cause them to face traffic approaching in that
lane and would enable them to care for their own safety better than if
the traffic approached them from the rear. We cannot assume
reasonably that the Legislature intended that a statute enacted for the
preservation of the life and limb of pedestrians must be observed
when observance would subject them to more imminent danger. . . .
Even under that construction of the statute, a pedestrian is, of
course, at fault if he fails without good reason to observe the statutory
rule of conduct. The general duty is established by the statute, and
deviation from it without good cause is a wrong and the wrongdoer is
responsible for the damages resulting from his wrong. Here the jury
might find that the pedestrians avoided a greater, indeed an almost
suicidal, risk by proceeding along the east bound roadway; that the
operator of the automobile was entirely heedless of the possibility of
the presence of pedestrians on the highway; and that a pedestrian
could not have avoided the accident even if he had faced oncoming
traffic.
What is the distinction between Tedla v. Ellman and Martin v. Herzog

(where the plaintiff was found negligent per se for driving a buggy without
lights in violation of statute)? Is it fair to conclude from these cases that the
Hand formula trumps statutory commands when the two conflict?
3. Never on Sunday. In Tingle v. Chicago, B. & Q. Ry., 14 N.W. 320
(Iowa 1882), the defendant’s train ran over the plaintiff’s cow on a Sunday.
The plaintiff sued, alleging no specific negligence on the railroad’s part but
pointing out that state law prohibited the operation of trains on Sundays.
The trial court gave judgment to the plaintiff. The Iowa Supreme Court
reversed:
While the injury could not have been inflicted if the defendant’s train
had not been operated, still, as it is not claimed that the train was
operated in a negligent manner, the proximate cause of the injury was
not the operation of the train, but it resulted from an accident for
which the defendant is not responsible.
Cf. Restatement (Second) of Torts §286, Illustration 5:

A statute, which requires railroads to fence their tracks, is construed
as intended solely to prevent injuries to animals straying onto the
right of way who may be hit by trains. In violation of the statute, the
A Railroad fails to fence its track. As a result, two of B’s cows
wander onto the track. One of them is hit by a train; the other is
poisoned by weeds growing beside the track. The statute establishes a
standard of conduct as to the cow hit by the train, but not as to the
other cow.
4. Sunday hat. In White v. Levarn, 108 A. 564 (Vt. 1918), the plaintiff
and defendant went squirrel hunting together on a Sunday, each armed with
a shotgun. The plaintiff was wearing a hat that was the color of a gray
squirrel; the defendant mistook the hat for a squirrel and shot at it, injuring
the plaintiff. The plaintiff sued on the theory that hunting and discharging
firearms on Sunday was forbidden by state law. The trial court gave
judgment to the defendant. The Vermont Supreme Court reversed:
Hunting and shooting wild game or other birds or animals, or

discharging firearms, on Sunday (with some exceptions not material
here), are unlawful by statute. The shooting which injured the
plaintiff was therefore an unlawful act voluntarily done by the
defendant, and he is answerable, in an action of trespass, for the
injury which happened to the plaintiff, either by carelessness or
accident. . . . [C]onsent to an assault is no justification, for, since the
state is wronged by it, the law forbids it on public grounds.
Is there a satisfactory distinction between White v. Levarn and Tingle v.

Chicago, B. & Q. Ry.? Which decision makes more sense? How might you
argue that both cases were wrongly decided?
5. Uses of statutes. From the Restatement (Second) of Torts §288B
(1965):
Illustration 2. A statute, construed as intended only to prevent

misbreeding of animals, provides that hogs shall be confined by
fences of specified strength. In violation of the statute, A fences in his
hogs with a fence of less strength. One of the hogs breaks through the
fence, escapes into the highway, and is struck by B’s car, as a result of
which B is injured. Although the statute does not define a standard of
conduct which will be adopted as a matter of law for B’s action, its
provisions are admissible and relevant evidence as to the necessity of
a fence of the specified strength for the proper confinement of hogs.
What is the difference between the way the Restatement recommends

using the statute in this example and the way it is used in Martin v. Herzog
and White v. Levarn?
6. Controlling the jury. Much of the law of torts is focused on when
questions are decided by judges and when they are left to juries. As the
introduction to the book explains, a plaintiff’s usual goal throughout much
of a tort suit is to get in front of a jury; the defendant’s usual goal is to avoid
that result, obtaining a dismissal of the case as a matter of law. That is why
we speak of cases as involving “liability” if the court says that the
plaintiff’s case was good enough to be sent to a jury (or, equivalently, that
the jury would be permitted to find liability on the plaintiff’s facts), and “no
liability” if the court says that a jury would not be permitted to find liability
given the plaintiff’s allegations or evidence.
But notice that this description leaves out a possibility: the court could
award judgment to the plaintiff as a matter of law. Such rulings are made
relatively rarely. The reason is that in a conventional negligence case, the
plaintiff is assigned the burden of proving all the elements of the case,
including the defendant’s failure to use reasonable care. A court may be
able to say that the plaintiff has failed to discharge this burden — that no
rational jury could conclude from the plaintiff’s evidence that the defendant
was negligent. It is more difficult, however, for a court to declare that a
plaintiff has proven the defendant’s negligence as a matter of law, or (the
same thing) that a rational jury would be required to find the defendant
liable. Even if the plaintiff’s evidence seems very strong, the jury usually is
free to disbelieve or discount it, in which case the plaintiff must lose.
Doctrines of “negligence per se” are exceptions to these general rules.
Where they apply they require a finding that the defendant was negligent
(or that the plaintiff was contributorily negligent). The decision is made as a
matter of law by the judge. As a practical matter this can be considered
precisely the point of the doctrines: a finding of negligence per se is
distinctive and important not just because the defendant ends up being held
negligent, but because this result is reached without resort to a jury.
These points should help you answer the question immediately above
regarding the difference between §288B of the Second Restatement and the
holding of Martin v. Herzog. What is the role of the jury in the two
situations?
7. Man’s best friend. In Selger v. Steven Bros., Inc., 222 Cal. App. 3d
1585 (1990), dog excrement often accumulated on the sidewalk in front of
the defendant’s business, Steven’s Nursery and Hardware. The defendant’s
employees usually used hoses or brooms to clean the sidewalk each
morning. On the morning in question, however, the defendant’s manager
saw excrement on the sidewalk when he opened the store but delayed in
directing an employee to clean it up. Just as the manager was issuing that
instruction, he heard the plaintiff scream. She had slipped and fallen while
observing a flower display outside the store. Her shoe, her clothing, and a
skid mark on the sidewalk left no doubt about the cause of the accident. The
plaintiff previously had undergone a hip implant, and as a result of her fall
required extensive additional surgery. She sued the defendant, basing her
claim of negligence on Los Angeles Municipal Code §41.46. It provided
that “No person shall fail, refuse or neglect to keep the sidewalk in front of
his house, place of business or premises in a clean and wholesome
condition.”
The trial judge instructed the jury that the defendant should be found
negligent per se if it violated the ordinance. The trial court entered
judgment on a jury verdict of $402,050 for the plaintiff. The defendant
appealed on the ground that the trial court erred in instructing the jury on
the doctrine of negligence per se. The court of appeals reversed and held the
evidence against the defendant insufficient as a matter of law:
Applying well-established authority, we hold the ordinances imposed

a duty on defendant which was owed only to the city. The ordinances
did not create a standard of care owed to the traveling public;
therefore the trial court erred in instructing the jury that violation of
the ordinances constituted negligence per se. . . .
[B]ecause the municipality has the primary responsibility for
maintaining the public sidewalks, statutes and ordinances which
require the abutting landowner to maintain the sidewalk in a
condition that will not endanger pedestrians have almost uniformly
been interpreted not to create a standard of care toward pedestrians
but only a liability of the owner to the municipality.
Selger represents the usual result when plaintiffs slip on snow or ice on
public sidewalks and sue nearby property owners for violating similar
statutes. The court in Selger noted, however, that “[t]he dog’s owner is
primarily to blame for . . . this hazard,” and that Los Angeles had a “pooper
scooper” law imposing a $20 fine on dog owners who failed to clean up
behind their animals. The court declined to take a position on whether the
dog’s owner, if found, could have been held negligent per se for violating
that ordinance. What result would you expect in such a case?
8. Ignorance as an excuse. From the Restatement (Second) of Torts
§288A (1965):
Comment f. Knowledge. Where the actor neither knows nor should

know of any occasion or necessity for action in compliance with the
legislation or regulation, his violation of it will ordinarily be excused.
Illustration 3. A statute provides that no vehicle shall be driven
on the public highway at night without front and rear lights. While A
is driving on the highway at night his rear light goes out because of
the failure of an electric bulb. A has used all reasonable diligence and
care in the inspection of his car, and is unaware that the light has gone
out. Before he has had any reasonable opportunity to discover it, the
absence of the light causes a collision with B’s car, approaching from
the rear, in which B is injured. A is not liable to B on the basis of the
violation of the statute.
Is this provision consistent with the analysis and result in Martin v.

Herzog?
9. Confusing laws (problem). In Sparkman v. Maxwell, 519 S.W.2d 852
(Tex. 1975), the plaintiff and the defendant were involved in an automobile
accident. The plaintiff was driving through an intersection with a green light
when the defendant, Sparkman, traveling in the opposite direction,
attempted to make a left turn in front of her. The cars collided, causing each
party various injuries. Sparkman claimed that her behavior was caused by
confusing traffic signals. The court recounted the facts as follows:
Mrs. Sparkman testified that the signal facing her as she approached
and entered the intersection was a red arrow pointing to the north.
She did not realize at the time that it was red, but she did see an arrow
pointing in the direction she wished to go. She saw “something was
wrong with the light” and for that reason stopped to look at the sign.
The sign indicated that she was looking at the proper signal, and she
proceeded into the intersection. Since the arrow was pointing in her
direction, she decided that she should go ahead. She had no thought
of its being red at the time. She had always turned on the arrow, and
in this instance the arrow was pointing in the direction she wished to
go.
The light had recently been installed on a trial basis by one of the city’s
traffic engineers:
As originally constructed the traffic signal consisted of three circular

lens, arranged in a vertical line, a red lens at the top, a yellow lens
immediately below the red, and a green lens immediately below the
yellow. About two weeks before the accident, the Traffic Engineer for
the City of Wichita Falls had caused a metal template to be placed
inside each lens. An opening in the shape of an arrow pointing to the
left was in each template, and the signal thus showed, in sequence,
green, yellow and red arrows, all pointing to the left. Below the
traffic signal was a sign reading “Left Turn to Fairway.” When Mrs.
Sparkman entered the left-turn lane on Southwest Parkway, the traffic
signal showed a red arrow pointing to the left. After stopping and
looking at the sign to be sure she was observing the signal that
controlled the left-turn lane, she drove slowly into the intersection
and collided with Mrs. Maxwell’s automobile, which had entered the
intersection on a green light facing traffic proceeding north on
Fairway. . . .
The signal was removed at the end of eight days and about an
hour after the accident in this case. . . .This was the only time to [the
engineer’s] knowledge that either a red arrow or a yellow arrow had
ever been used in Texas.
A jury found that Sparkman had not been negligent. The plaintiff sought
judgment as a matter of law on the ground that Sparkman had committed
negligence per se. What result?
10. Legislative intent. As noted earlier, the question of legislative intent
usually is critical when attempting to determine whether a provision of a
criminal code creates civil liability. There have been attempts in some states
to settle the question with meta-provisions such as the following from
California:
(a) The failure of a person to exercise due care is presumed if:

(1) He violated a statute, ordinance, or regulation of a public
entity;
(2) The violation proximately caused death or injury to person or
property;
(3) The death or injury resulted from an occurrence of the nature
which the statute, ordinance, or regulation was designed to prevent;
and
(4) The person suffering the death or the injury to his person or
property was one of the class of persons for whose protection the
statute, ordinance, or regulation was adopted.
(b) This presumption may be rebutted by proof that:
(1) The person violating the statute, ordinance, or regulation did
what might reasonably be expected of a person of ordinary
prudence, acting under similar circumstances, who desired to
comply with the law; or
(2) The person violating the statute, ordinance, or regulation was
a child and exercised the degree of care ordinarily exercised by
persons of his maturity, intelligence, and capacity under similar
circumstances, but the presumption may not be rebutted by such
proof if the violation occurred in the course of an activity normally
engaged in only by adults and requiring adult qualifications.
Cal. Evid. Code §669.

11. Legislative intent revisited. In Vesely v. Sager, 486 P.2d 151 (Cal.
1971), the defendant was the owner of the Buckhorn Lodge, a roadhouse
near the top of Mount Baldy. The plaintiff alleged that late one evening the
Lodge served one of its patrons, a man named O’Connell, a series of
alcoholic beverages that intoxicated him. At about 5:00 A.M., O’Connell left
the lodge and proceeded to drive down the steep, narrow, and winding road
that was the only way to descend the mountain. He veered into the wrong
lane and ran into the plaintiff’s car, causing the plaintiff various injuries.
The plaintiff’s suit alleged, among other things, that the defendant should
be held negligent per se for violating Cal. Bus. & Prof. Code §25602. The
statute provided: “Every person who sells, furnishes, gives, or causes to be
sold, furnished, or given away, any alcoholic beverage to any habitual or
common drunkard or to any obviously intoxicated person is guilty of a
misdemeanor.” The plaintiff also cited Cal. Evid. Code §669, described
above. The trial court dismissed the plaintiff’s complaint. The California
From the facts alleged in the complaint it appears that plaintiff is

within the class of persons for whose protection section 25602 was
enacted and that the injuries he suffered resulted from an occurrence
that the statute was designed to prevent. Accordingly, if these two
elements are proved at trial, and if it is established that Sager violated
section 25602 and that the violation proximately caused plaintiff’s
injuries, a presumption will arise that Sager was negligent in
furnishing alcoholic beverages to O’Connell. . . .
In 1978 the legislature responded to Vesely and cases following it with this
provision:
CAL. BUS. & PROF. CODE §25602. SALES TO DRUNKARD OR

INTOXICATED PERSON; OFFENSE; CIVIL LIABILITY.
(a) Every person who sells, furnishes, gives, or causes to be sold,

furnished, or given away, any alcoholic beverage to any habitual or
common drunkard or to any obviously intoxicated person is guilty of a
misdemeanor.
(b) No person who sells, furnishes, gives, or causes to be sold,
furnished, or given away, any alcoholic beverage pursuant to
subdivision (a) of this section shall be civilly liable to any injured
person or the estate of such person for injuries inflicted on that person
as a result of intoxication by the consumer of such alcoholic
beverage.
(c) The Legislature hereby declares that this section shall be
interpreted so that the holdings in cases such as Vesely v. Sager . . . be
abrogated in favor of prior judicial interpretation finding the
consumption of alcoholic beverages rather than the serving of
alcoholic beverages as the proximate cause of injuries inflicted upon
another by an intoxicated person.
The California Supreme Court upheld §25602 against constitutional

challenge:
The Legislature’s decision to abrogate Vesely . . . , and thereby

preclude or substantially limit the liability of a provider of alcoholic
beverages, may have been based upon a premise that it is unfair to
require the provider (and his insurer) to share both the supervisory
responsibility and the legal blame with the consumer, whose
voluntary consumption of alcoholic beverages is perhaps the more
direct and immediate cause of any consequent injuries. We deem such
a determination to be a rational one because for many years prior to
Vesely the courts of this state (including ours) uniformly had followed
such provider-immunity rule.
The Legislature also reasonably might have assumed that the
imposition of sole and exclusive liability upon the consumer of
alcoholic beverages would encourage some heightened sense of
responsibility in the drinker for his acts, thereby ultimately reducing
the frequency of alcohol-caused injuries. For these reasons we
conclude that the general rule of immunity announced in the 1978
amendments is both founded upon a possible rational basis and
reasonably related to a legitimate state purpose.
Cory v. Shierloh, 629 P.2d 8 (Cal. 1981). What do you make of this
dialogue between California’s Supreme Court and its legislature? Is it all a
sign of well-functioning political and judicial institutions? Does it cause
you to prefer one of those organs to the other as an author of solutions to
social problems?
Other states vary considerably in how they interpret the civil
consequences of statutes similar to the one considered in Vesely. The issue
also has generated a great deal of common-law development; for further
discussion, see the entry on liability of social hosts in Chapter 4 on duties
and limitations.
12. Taking license. In Brown v. Shyne, 151 N.E. 197 (N.Y. 1926), the
plaintiff sought treatment from the defendant chiropractor, Shyne, for her
laryngitis. She testified that on her ninth visit, Shyne “took ahold of my
head, both sides of my head, and gave it a very violent turn, twist one way
and then back, which gave a very bad snap,” and that these manipulations
later caused numbness in her arms and, finally, paralysis. The plaintiff
alleged that Shyne’s treatments had been negligent; she also alleged that
Shyne had been negligent per se in practicing medicine without possessing
the license required by the state’s Public Health Law. After instructing the
jury to assess whether Shyne’s treatments measured up to the “standards of
skill and care which prevail among those treating disease,” the trial judge
also gave the following instruction:
This is a little different from the ordinary malpractice case, and I am

going to allow you, if you think proper under the evidence in the
case, to predicate negligence upon another theory. The public health
laws of this state prescribe that no person shall practice medicine
unless he is licensed so to do by the board of regents of this state and
registered pursuant to statute. . . . This statute to which I have referred
is a general police regulation. Its violation, and it has been violated
by the defendant, is some evidence, more or less cogent, of
negligence which you may consider for what it is worth, along with
all the other evidence in the case. If the defendant attempted to treat
the plaintiff and to adjust the vertebrae in her spine when he did not
possess the requisite knowledge and skill as prescribed by the statute
to know what was proper and necessary to do under the
circumstances, or how to do it, even if he did know what to do, you
can find him negligent.
So instructed, the jury returned a verdict for the plaintiff, and the trial court
entered judgment on it. The defendant appealed.
Held, for the defendant, that the jury instruction regarding the licensing
law was error, and that the defendant could be held liable only if the jury
found on retrial that his treatment of the plaintiff was in fact negligently
rendered. Said the court:
Here, injury may have been caused by lack of skill or care; it would
not have been obviated if the defendant had possessed a license yet
failed to exercise the skill and care required of one practicing
medicine. True, if the defendant had not practiced medicine in this
state, he could not have injured the plaintiff, but the protection which
the statute was intended to provide was against risk of injury by the
unskilled or careless practitioner, and, unless the plaintiff’s injury was
caused by carelessness or lack of skill, the defendant’s failure to
obtain a license was not connected with the injury.
Crane, J., dissented:
The prohibition against practicing medicine without a license was for

the very purpose of protecting the public from just what happened in
this case. . . . The law, to insure against ignorance and carelessness,
has laid down a rule to be followed; namely, examinations to test
qualifications and a license to practice. If a man, in violation of this
statute, takes his chances in trying to cure disease, and his acts result
directly in injury, he should not complain if the law, in a suit for
damages, says that his violation of the statute is some evidence of his
incapacity.
Suppose that an airplane crashes and it appears that the pilot was
unlicensed. Or suppose that a driver with an expired driver’s license strikes
a pedestrian. Would these cases be distinguishable from Brown v. Shyne?
13. Sheep overboard (problem). In Gorris v. Scott, 9 L.R. Ex. 125
(1874), the defendant, a shipowner, undertook to carry the plaintiffs’ sheep
from a foreign port to England. The sheep were swept overboard in a storm
and drowned. A statute, the Contagious Diseases (Animals) Act, had
required that animals in these circumstances be kept in pens to prevent the
spread of diseases among them. The defendant had failed to pen the sheep,
however; assume that if he had done so, they would not have been washed
overboard. A case of negligence per se?
14. Keys in the ignition (problem). In Ross v. Hartman, 139 F.2d 14
(D.C. Cir. 1943), the defendant’s driver left a truck unlocked, with an
unlocked gear shift and with the keys in the ignition, near a garage in a
public alley. The driver expected an attendant to move the truck into the
garage, but apparently did not notify anyone of this expectation. An
unknown miscreant drove away in the truck and ran down the plaintiff. The
plaintiff sued the truck driver’s employer, claiming the driver had
committed negligence per se by violating the following traffic ordinance:
Locks on Motor Vehicles. Every motor vehicle shall be equipped

with a lock suitable to lock the starting lever, throttle, or switch, or
gear-shift lever, by which the vehicle is set in motion, and no person
shall allow any motor vehicle operated by him to stand or remain
unattended on any street or in any public place without first having
locked the lever, throttle, or switch by which said motor vehicle may
be set in motion.
What result would you expect in this case? What arguments for each
side might be made from the cases considered above?
2. Judge-Made Rules
Oliver Wendell Holmes, Jr., The Common Law

111-129 (1881)
When a case arises in which the standard of conduct, pure and simple, is
submitted to the jury, the explanation is plain. It is that the court, not
entertaining any clear views of public policy applicable to the matter,
derives the rule to be applied from daily experience, as it has been agreed
that the great body of the law of tort has been derived. But the court further
feels that it is not itself possessed of sufficient practical experience to lay
down the rule intelligently. It conceives that twelve men taken from the
practical part of the community can aid its judgment. Therefore it aids its
conscience by taking the opinion of the jury.
But supposing a state of facts often repeated in practice, is it to be
imagined that the court is to go on leaving the standard to the jury forever?
Is it not manifest, on the contrary, that if the jury is, on the whole, as fair a
tribunal as it is represented to be, the lesson which can be got from that
source will be learned? Either the court will find that the fair teaching of
experience is that the conduct complained of usually is or is not
blameworthy, and therefore, unless explained, is or is not a ground of
liability; or it will find the jury oscillating to and fro, and will see the
necessity of making up its mind for itself. There is no reason why any other
such question should not be settled, as well as that of liability for stairs with
smooth strips of brass upon their edges. The exceptions would mainly be
found where the standard was rapidly changing, as, for instance, in some
questions of medical treatment.
If this be the proper conclusion in plain cases, further consequences
ensue. Facts do not often exactly repeat themselves in practice; but cases
with comparatively small variations from each other do. A judge who has
long sat at nisi prius ought gradually to acquire a fund of experience which
enables him to represent the common sense of the community in ordinary
instances far better than an average jury. He should be able to lead and to
instruct them in detail, even where he thinks it desirable, on the whole, to
take their opinion. Furthermore, the sphere in which he is able to rule
without taking their opinion at all should be continually growing. . . .
If the whole evidence in the case was that a party, in full command of
his senses and intellect, stood on a railway track, looking at an approaching
engine until it ran him down, no judge would leave it to the jury to say
whether the conduct was prudent. If the whole evidence was that he
attempted to cross a level track, which was visible for half a mile each way,
and on which no engine was in sight, no court would allow a jury to find
negligence. Between these extremes are cases which would go to the jury.
But it is obvious that the limit of safety in such cases, supposing no further
elements present, could be determined almost to a foot by mathematical
calculation.
The trouble with many cases of negligence is, that they are of a kind not
frequently recurring, so as to enable any given judge to profit by long
experience with juries to lay down rules, and that the elements are so
complex that courts are glad to leave the whole matter in a lump for the
jury’s determination.
NOTES
1. Stop, look, and listen. In Baltimore & Ohio R.R. v. Goodman, 275
U.S. 66 (1927), Goodman was killed when his truck was hit by a train
coming through a crossing at approximately 60 miles per hour. His
administratrix sued the railroad. The Supreme Court described the facts as
follows: “Goodman was driving an automobile truck in an easterly direction
and was killed by a train running southwesterly across the road at a rate of
not less than 60 miles an hour. The line was straight but it is said by the
respondent that Goodman ‘had no practical view’ beyond a section house
243 feet north of the crossing until he was about 20 feet from the first rail,
or, as the respondent argues, 12 feet from danger, and that then the engine
was still obscured by the section house. He had been driving at the rate of
10 or 12 miles an hour but had cut down his rate to 5 or 6 miles at about 40
feet from the crossing. It is thought that there was an emergency in which,
so far as appears, Goodman did all that he could.” The trial court denied the
defendant’s motion for a directed verdict, and the jury brought in a verdict
for the plaintiff. The defendant appealed.
Held, for the defendant, that the trial court should have directed a
verdict in its favor. Holding that the plaintiff’s failure to “stop, look and
listen” was negligence as a matter of law, Holmes, J., said:
When a man goes upon a railroad track he knows that he goes to a

place where he will be killed if a train comes upon him before he is
clear of the track. He knows that he must stop for the train not the
train stop for him. In such circumstances it seems to us that if a driver
cannot be sure otherwise whether a train is dangerously near he must
stop and get out of his vehicle, although obviously he will not often
be required to do more than to stop and look. It seems to us that if he
relies upon not hearing the train or any signal and takes no further
precaution he does so at his own risk. If at the last moment Goodman
found himself in an emergency it was his own fault that he did not
reduce his speed earlier or come to a stop. It is true, as said in
Flannelly v. Delaware & Hudson Co., that the question of due care
very generally is left to the jury. But we are dealing with a standard of
conduct, and when the standard is clear it should be laid down once
for all by the Courts.
2. The Wabash Cannonball. In Pokora v. Wabash Ry., 292 U.S. 98
(1934), the plaintiff, Pokora, was struck by a train and injured when he
drove his truck across a railway crossing. As Pokora left the northeast
corner of the intersection where his truck had been stopped, he looked to
the north for approaching trains. He did this at a point about 10 or 15 feet
east of a switch that lay ahead of him. A string of box cars standing on the
switch cut off Pokora’s view of the tracks beyond him to the north. At the
same time he listened, but heard neither bell nor whistle. Still listening, he
crossed the switch; as he reached the main track he was struck by a
passenger train coming from the north at a speed of 25 to 30 miles per hour.
The district court held that the plaintiff had committed contributory
negligence as a matter of law and directed a verdict for the defendant. The
Supreme Court reversed. In holding that the plaintiff was not guilty of
contributory negligence as a matter of law, and that the issue should have
been given to the jury, Cardozo, J., wrote for the Court:
The argument is made, however, that our decision in B. & O. R. Co. v.

Goodman is a barrier in the plaintiff’s path, irrespective of the
conclusion that might commend itself if the question were at large. . .
. Here the fact is not disputed that the plaintiff did stop before he
started to cross the tracks. If we assume that by reason of the box
cars, there was a duty to stop again when the obstructions had been
cleared, that duty did not arise unless a stop could be made safely
after the point of clearance had been reached. For reasons already
stated, the testimony permits the inference that the truck was in the
zone of danger by the time the field of vision was enlarged. No stop
would then have helped the plaintiff if he remained seated on his
truck, or so the triers of the facts might find. His case was for the
jury, unless as a matter of law he was subject to a duty to get out of
the vehicle before it crossed the switch, walk forward to the front,
and then, afoot, survey the scene. We must say whether his failure to
do this was negligence so obvious and certain that one conclusion and
one only is permissible for rational and candid minds. Standards of
prudent conduct are declared at times by courts, but they are taken
over from the facts of life. To get out of a vehicle and reconnoiter is
an uncommon precaution, as everyday experience informs us.
Besides being uncommon, it is very likely to be futile, and sometimes
even dangerous. If the driver leaves his vehicle when he nears a cut
or curve, he will learn nothing by getting out about the perils that lurk
beyond. By the time he regains his seat and sets his car in motion, the
hidden train may be upon him. . . .
Illustrations such as these bear witness to the need for caution in
framing standards of behavior that amount to rules of law. The need
is the more urgent when there is no background of experience out of
which the standards have emerged. They are then, not the natural
flowerings of behavior in its customary forms, but rules artificially
developed, and imposed from without. Extraordinary situations may
not wisely or fairly be subjected to tests or regulations that are fitting
for the commonplace or normal. In default of the guide of customary
conduct, what is suitable for the traveler caught in a mesh where the
ordinary safeguards fail him is for the judgment of a jury. The
opinion in Goodman’s case has been a source of confusion in the
federal courts to the extent that it imposes a standard for application
by the judge, and has had only wavering support in the courts of the
states. We limit it accordingly.
3. Wake up, Louis! In Theisen v. Milwaukee Automobile Mutual

Insurance Co., 118 N.W.2d 140 (Wis. 1963), the plaintiff, Sharon Theisen,
and the defendant, Louis Shepherd, were high school students who attended
a cast party after their senior class play. At about 3:00 A.M. the party broke
up and five girls, including the plaintiff, got into Shepherd’s car to be driven
home. After traveling about four miles, the car gradually veered from the
right lane to the left and then onto the shoulder of the road. Shepherd had
fallen asleep at the wheel. One of the girls in the front seat shouted, “Louis,
lookout,” but there was no reaction; another girl hollered “Louie,” but
Shepherd did not move. The car proceeded 270 feet and then hit a large tree
stump, causing injuries for which the plaintiff sought to recover. The
Wisconsin Supreme Court held that the driver was negligent as a matter of
law:
[W]e find no justification in the common experience of mankind for

one’s falling asleep with his foot on the accelerator, his hands on the
wheel and his auto transformed into an instrument of destruction. The
process of falling asleep — normal and healthy sleep — is a matter of
common experience and usually attended by premonitory warnings or
is to be expected. Such warnings or reasonable expectations of sleep
are especially accentuated when one is conscious of his duty to stay
awake while driving and the failure to heed such warnings and
permitting oneself to fall asleep while driving an automobile must be
deemed negligence as a matter of law. If while driving a car one is in
such a state of exhaustion that he falls asleep without any
premonitory warning, he is chargeable with the knowledge of any
ordinarily prudent man that such exhaustion is reasonably likely to
cause sleep while driving. . . .
We exclude from this holding those exceptional cases of loss of
consciousness resulting from injury inflicted by an outside force or
fainting or heart attack, epileptic seizure, or other illness which
suddenly incapacitates the driver of an automobile and when the
occurrence of such disability is not attended with sufficient warning
or should not have been reasonably foreseen. When, however, such
occurrence should have been reasonably foreseen, we have held the
driver of a motor vehicle negligent as a matter of law, as in the sleep
cases.
Why might Theisen v. Milwaukee Automobile Mutual Insurance Co. be

a better candidate for a judge-made rule than Pokora v. Wabash Ry.?
4. Dust storm. In Blaak v. Davidson, 529 P.2d 1048 (Wash. 1975), the
defendant was driving an 18,000-pound gasoline truck on the Pasco
Kahlotus highway. Farmlands adjoining the highway had recently been
plowed, leaving the soil dusty. As the defendant was proceeding towards
Kahlotus, a dust cloud engulfed his truck and completely obscured his
visibility. He reduced his speed to five to ten miles per hour. As he was
proceeding through the dust cloud, his truck struck the rear of the plaintiff’s
car, which had slowed to two to three miles per hour. No traffic citations
were issued to either driver. The jury brought in a verdict for the defendant;
the trial court entered judgment n.o.v. (judgment notwithstanding the
verdict) for the plaintiff. The defendant appealed.
The Washington Supreme Court defined the issue in the case as follows:
“When the visibility of a driver of a vehicle is completely obscured by
atmospheric conditions, e.g., a dust storm, is the driver (a) negligent as a
matter of law for failure to stop the vehicle, or (b) should the question of
negligence ordinarily be submitted to the jury for consideration in view of
the facts and surrounding circumstances?” The court adopted the latter
position:
A consideration of whether an absolute rule should be formulated

must focus upon the subject matter involved and the potential
variables as to facts and circumstances. In these respects, the
automobile and its use in our mobile society is particularly unique.
Seldom, if ever, are the facts and circumstances surrounding a
collision the same. Thus, particularly with respect to automobiles, the
propriety of solidifying the law into mechanistic rules for universal
application is dubious, and this legal reasoning or philosophy is
clearly on the wane. . . .
The excessive rigidity of an absolute duty to stop is underscored
by the facts of the instant case. Since it is the very nature of dust
clouds — as well as of fog — that their density and the corresponding
lack of visibility may vary considerably within a few yards, the
defendant herein could not assume that all vehicles behind him would
necessarily be stopped. Moreover, the defendant’s truck was loaded
with gasoline; there was no place to immediately pull off the
highway; and the defendant feared being rear ended on this heavily
traveled road. That the defendant’s fears were not solely the figment
of an overactive imagination is well illustrated by the fact that a car
which had stopped close to the place of the accident herein was
struck by a tanker traveling in the opposite direction. In any event, it
is at least debatable whether stopping on the highway for an
indeterminate period of time would be safer, with respect to other
users of the highway, than slowly proceeding to a known, safe, pull
out a short distance ahead.
On the basis of the foregoing analysis, we reject the rule holding a
driver of a vehicle negligent as a matter of law for failure to stop
when his vision is completely obscured, because such a rule would be
too rigid to cope with the numerous situations presenting new or
additional factors and variables. . . . When vision is partially or
completely obscured, the jury should determine whether the
defendant’s failure to stop constitutes negligence under the general
test of whether defendant acted as a reasonable man in view of all the
facts and circumstances. Only in the most unusual and exceptional
circumstances indicating clear fault and liability should the court hold
defendant negligent as a matter of law.
What distinctions might you draw between Blaak v. Davidson and

Theisen v. Milwaukee Automobile Mutual Insurance Co. (negligence per se
when a driver falls asleep)? What analogy might be drawn between Blaak v.
Davidson and Tedla v. Ellman (holding the plaintiff not negligent as a
matter of law when she walked on the wrong side of the road in violation of
statute)?
5. Seat belts. Suppose a plaintiff injured in an automobile accident
concedes that he was not wearing his seat belt. Assuming there is no
statutory requirement that seat belts be worn in the jurisdiction, should the
court instruct the jury that this is a case of negligence per se? (What result if
there is such a statute?) Might there be an argument for instructing the jury
that as a matter of law a failure to wear a seat belt is not negligent? That
was indeed a popular position in many jurisdictions during the era when a
plaintiff’s contributory negligence prevented him from recovering anything
from a negligent defendant, and it remains the law in some jurisdictions
today. See Swajian v. General Motors Corp., 559 A.2d 1041 (R.I. 1989).
What are the strongest arguments for or against treating the failure to wear a
seat belt as a case of negligence as a matter of law?
E. RES IPSA LOQUITUR
The negligence cases considered so far in this chapter generally have

involved claims that the defendant failed to take some specific precaution
that would have prevented an accident. But it is not always easy or even
possible for a plaintiff to determine how an accident happened, much less to
identify a specific untaken precaution that would have prevented it. At the
same time, sometimes an accident seems obviously to be the result of a
defendant’s negligence: it probably would not have occurred unless
someone had been negligent, and the defendant had control over the thing
that caused the harm. Courts in such cases thus may allow a plaintiff to
invoke the doctrine of res ipsa loquitur (“the thing speaks for itself”) to
establish the defendant’s negligence. This section considers the elements of
res ipsa loquitur and the different circumstances in which the doctrine can
be used.
Byrne v. Boadle
159 Eng. Rep. 299, 2 H. & C. 722 (Exch. 1863)
[Action for negligence. The plaintiff’s declaration stated that he was

passing on the road in front of the defendant’s premises when a barrel of
flour fell on him from a window above. The defendant had a jigger-hoist
and other machinery over that window for the purpose of lowering barrels.
Several witnesses testified that they had seen the barrel fall on the plaintiff,
but there was no other evidence of how the accident occurred. The trial
court nonsuited the plaintiff on the ground that there was no evidence that
the defendant was negligent for a jury to consider. At the argument that
followed in the Court of Exchequer, the defendant’s counsel contended,
first, that no evidence connected the defendant with the occurrence, and that
a complete stranger may have been supervising the lowering of flour barrels
when the barrel fell on the plaintiff. Pollock, C.B., replied: “The
presumption is that the defendant’s servants were engaged in removing the
defendant’s flour. If they were not it was competent to the defendant to
prove it.” . . .
The defendant’s attorney argued, further, that “[t]he plaintiff was bound
to give affirmative proof of negligence. But there was not a scintilla of
evidence, unless the occurrence is of itself evidence of negligence.” Said
Pollock, C.B.: “There are certain cases of which it may be said res ipsa
loquitur, and this seems one of them. In some cases the Courts have held
that the mere fact of the accident having occurred is evidence of negligence,
as, for instance, in the case of railway collisions.” Said Bramwell, B.:
“Looking at the matter in a reasonable way it comes to this — an injury is
done to the plaintiff, who has no means of knowing whether it was the
result of negligence; the defendant, who knows how it was caused, does not
think fit to tell the jury.” The subsequent decision of the Court of Exchequer
was as follows.]
Pollock, C.B. — We are all of opinion that the rule must be absolute to
enter the verdict for the plaintiff. The learned counsel was quite right in
saying that there are many accidents from which no presumption of
negligence can arise, but I think it would be wrong to lay down as a rule
that in no case can presumption of negligence arise from the fact of an
accident. Suppose in this case the barrel had rolled out of the warehouse
and fallen on the plaintiff, how could he possibly ascertain from what cause
it occurred? It is the duty of persons who keep barrels in a warehouse to
take care that they do not roll out, and I think that such a case would,
beyond all doubt, afford prima facie evidence of negligence. A barrel could
not roll out of a warehouse without some negligence, and to say that a
plaintiff who is injured by it must call witnesses from the warehouse to
prove negligence seems to me preposterous. So in the building or repairing
a house, or putting pots on the chimneys, if a person passing along the road
is injured by something falling upon him, I think that those whose duty it
was to put it in the right place are prima facie responsible, and if there is
any state of facts to rebut the presumption of negligence, they must prove
them. The present case upon the evidence comes to this, a man is passing in
front of the premises of a dealer in flour, and there falls down upon him a
barrel of flour. I think it apparent that the barrel was in the custody of the
defendant who occupied the premises, and who is responsible for the acts of
his servants who had the control of it; and in my opinion the fact of its
falling is prima facie evidence of negligence, and the plaintiff who was
injured by it is not bound to show that it could not fall without negligence,
but if there are any facts inconsistent with negligence it is for the defendant
to prove them.
NOTES
1. The defendant does not think fit to tell the jury. Note that in the
comments the judges made during the argument of the case, two kinds of
theories emerged to support a presumption that the defendant was negligent:
the accident very likely resulted from negligence (Pollock’s point); and the
parties did not have the same access to evidence bearing on how the
accident occurred (Bramwell’s point). As you read the cases in this section,
consider the presence or absence of those two rationales for the doctrine.
2. The falling of the wedge. In Combustion Engineering Co. v.
Hunsberger, 187 A. 825 (Md. 1936), the plaintiff, one Hunsberger, was a
workman on a project that involved rebuilding a boiler room. Hunsberger
worked on the floor; the defendant’s workmen were building a nearby shaft
that was 30 feet tall. At one point one of the defendant’s workers, a man
called Durdella, was lying on a platform at the top of the shaft and
attempting to hammer a metal wedge between two plates. The wedge was
about ten inches long. It slipped out of place and fell down the shaft onto
Hunsberger, causing injuries for which he sought to recover. The jury
brought in a verdict for Hunsberger, and the trial court entered judgment
upon it. The Maryland Court of Appeals reversed, holding the evidence of
Durdella’s negligence insufficient to support the verdict:
The plaintiff’s case was rested on an assumption that the mere fact of
the falling of the wedge afforded evidence of negligence, and the trial
court, on a prayer of the plaintiff’s instructed the jury that this was
true. But this court does not agree in that view. There must be
evidence from which the jury might reasonably and properly
conclude that there was negligence. And apart from any question of
the effect on a prima facie presumption, if there should be one, of
evidence of the facts produced by a defendant (Byrne v. Boadle, 2
H.C. 722), the court is of opinion that the mere fall of a tool being
used within the building, in work of construction, cannot be
presumed to result from negligence, because it cannot be supposed
that such a thing is probably the result of negligence every time it
occurs. On the contrary, it would seem likely that with workmen
handling loose tools continually, the falling of some of them at times
must be expected despite all precautions. To presume otherwise
would be to presume a perfection in men’s work which we know does
not exist. Precautions that will ordinarily keep falling objects from an
adjacent highway are required, for the work should not invade the
highway. And temporary covered walks built below construction
work are common sights. When objects have dropped on highways it
has been presumed, prima facie, that the dropping resulted from lack
of the requisite precautions to keep them off. . . . But as stated, it
seems to the court plain that there must be some falling of small tools
and other objects handled with ordinary care in the course of the
work, and that therefore a particular fall cannot, of itself and without
more, afford proof of negligence. . . .
The facts given in Durdella’s evidence leave it open to
speculation whether despite his belief that the wedge was held fast he
had driven it in more lightly than usual, or whether the plates offered
unusual and unexpected resistance. That the wedge jumped out when
struck would seem to indicate unexpected resistance. If there was a
miscalculation on Durdella’s part as to the resistance, or otherwise,
that fact alone would not indicate negligence unless it could be said
that every such miscalculation on the part of a workman is probably
due to lack of ordinary care. And plainly, we think, it cannot.
What is the distinction between Combustion Engineering Co. v.

Hunsberger and Byrne v. Boadle? Might the cases be distinguished using
the Hand formula?
3. Falling armchairs. In Larson v. St. Francis Hotel, 188 P.2d 513 (Cal.
App. 1948), the plaintiff was walking on a sidewalk in San Francisco on V-J
Day, August 14, 1945, when a heavy, overstuffed armchair fell onto her
head, knocking her unconscious and causing her various injuries. None of
the people in the vicinity of the accident saw where the chair came from;
nobody saw the chair at all until it was within a few feet of the plaintiff’s
head. The chair bore no identifying marks. The court nevertheless found it
reasonable to infer that the chair had fallen from one of the windows of the
St. Francis Hotel, the marquee of which the plaintiff had just passed; it
appeared that the ejection of the chair from one of the hotel’s windows was
a result of “the effervescence and ebullition of San Franciscans in their
exuberance of joy on V-J Day.” At trial the plaintiff, after proving the
foregoing facts and the extent of her injuries, rested, relying on the doctrine
of res ipsa loquitur. The court granted the defendant’s motion for a nonsuit;
the court of appeals affirmed:
In Gerhart v. Southern California Gas Co., 56 Cal. App. 2d 425, cited

by plaintiff, the court sets forth the test for the applicability of the
doctrine. “ . . . for a plaintiff to make out a case entitling him to the
benefit of the doctrine, he must prove (1) that there was an accident;
(2) that the thing or instrumentality which caused the accident was at
the time of and prior thereto under the exclusive control and
management of the defendant; (3) that the accident was such that in
the ordinary course of events, the defendant using ordinary care, the
accident would not have happened. . . . The doctrine of res ipsa
loquitur applies only where the cause of the injury is shown to be
under the exclusive control and management of the defendant and can
have no application . . . to a case having a divided responsibility
where an unexplained accident may have been attributable to one of
several causes, for some of which the defendant is not responsible,
and when it appears that the injury was caused by one of two causes
for one of which defendant is responsible but not for the other,
plaintiff must fail, if the evidence does not show that the injury was
the result of the former cause, or leaves it as probable that it was
caused by one or the other.”
Applying the rule to the facts of this case, it is obvious that the
doctrine does not apply. While, as pointed out by plaintiff, the rule of
exclusive control “is not limited to the actual physical control but
applies to the right of control of the instrumentality which causes the
injury” it is not clear how this helps plaintiff’s case. A hotel does not
have exclusive control, either actual or potential, of its furniture.
Guests have, at least, partial control. Moreover, it cannot be said that
with the hotel using ordinary care “the accident was such that in the
ordinary course of events would not have happened.” On the
contrary, the mishap would quite as likely be due to the fault of a
guest or other person as to that of defendants. The most logical
inference from the circumstances shown is that the chair was thrown
by some such person from a window. It thus appears that this
occurrence is not such as ordinarily does not happen without the
negligence of the party charged, but, rather, one in which the accident
ordinarily might happen despite the fact that the defendants used
reasonable care and were totally free from negligence. To keep guests
and visitors from throwing furniture out windows would require a
guard to be placed in every room in the hotel, and no one would
contend that there is any rule of law requiring a hotel to do that.
What is the distinction between Larson v. St. Francis Hotel and Byrne v.
Boadle?
4. Here’s mud in your eye! In Connolly v. Nicollet Hotel, 95 N.W.2d
657 (Minn. 1959), the plaintiff was walking along the sidewalk next to the
defendant’s hotel when she was suddenly struck in the eye with “a mud-like
substance.” The only place from which the falling substance could have
come was the hotel. At the time the hotel was serving as headquarters for
the 1953 convention of the National Junior Chamber of Commerce. The
convention was lively. During its course, liquor was sold and dispensed free
of charge at hospitality centers throughout the hotel. A mule was stabled in
the hotel’s lobby, and a small alligator was kept on the fourth floor. Bottles,
ice cubes, and bags of water were thrown from the building’s windows.
Guns were fired in the lobby. An inspection made after the convention
found that there were missing window screens, mirrors pulled off the walls
in bathrooms, light fixtures and signs broken, hall lights and exit lights
broken, and holes drilled through door panels; the bowl in the men’s
washroom was torn off the wall, and 150 face towels had to be removed
from service. The day before the accident, the hotel’s general manager
issued a memorandum to his staff reading in part as follows:
WE HAVE ALMOST ARRIVED AT THE END OF THE MOST

HARROWING EXPERIENCE WE HAVE HAD IN THE WAY OF
CONVENTIONS, AT LEAST IN MY EXPERIENCE! WHEN WE
BECAME INVOLVED AND SAW WHAT THE SITUATION WAS,
WE HAD NO ALTERNATIVE BUT TO PROCEED AND “TURN
THE OTHER CHEEK.” HOWEVER, IT INVOLVES CERTAIN
EXPENSES THAT I DO NOT PROPOSE TO FOREGO WITHOUT
AT LEAST AN ARGUMENT — AND MAYBE LEGAL SUIT.
The jury brought in a verdict for the plaintiff; the trial court gave judgment
notwithstanding the verdict to the defendant hotel, finding that the plaintiff
failed to prove negligence on the hotel’s part. The Minnesota Supreme
Court reversed:
We have said many times that the law does not require every fact and
circumstance which make up a case of negligence to be proved by
direct and positive evidence or by the testimony of eye-witnesses, and
the circumstantial evidence alone may authorize a finding of
negligence. Negligence may be inferred from all the facts and
surrounding circumstances, and where the evidence of such facts and
circumstances is such as to take the case out of the realm of
conjecture and into the field of legitimate inference from established
facts, a prima facie case is made.
Gallagher, J., dissented:

It is difficult to speculate as to what further precautions should
reasonably have been required of defendant without making it an
absolute insurer. Obviously, it could not direct its employees to enter
guest rooms at random or to remain therein to prevent possible
misconduct when it lacked evidence that any misconduct was
occurring or was contemplated by room occupants. Not only would
such procedure deprive guests of room privileges for which they had
paid, but, if carried to its logical conclusion, it would require that
defendant, to be exonerated from any claim of negligence, employ
and station a guard in every convention guest room of the hotel
during the entire convention.
In what way, if any, was the hotel negligent? What is the distinction
between Connolly v. Nicollet Hotel and Larson v. St. Francis Hotel (res ipsa
loquitur inapplicable when armchair falls from hotel window)?
5. Black Angus. In Brauner v. Peterson, 557 P.2d 359 (Wash. 1976), the
plaintiff drove his car into the defendant’s Black Angus cow, which had
strayed onto the highway. In the plaintiff’s subsequent lawsuit to recover for
his damages, he produced no evidence as to how the cow escaped from the
defendants’ property, and there was no evidence that the defendant’s fence
or gate was in disrepair. The trial court found for the defendants and
dismissed the plaintiff’s action; the Washington Supreme Court affirmed the
trial judge’s finding that the plaintiff’s evidence was insufficient to support
a verdict in his favor:
With regard to res ipsa loquitur, the presence of an animal at large on

the highway is not sufficient to warrant application of the rule, i.e.,
the event must be of a kind not ordinarily occurring in the absence of
someone’s negligence. A cow can readily escape from perfectly
adequate confines.
6. Incident at the county fair. In Guthrie v. Powell, 290 P.2d 834 (Kan.
1955), the defendants bought and sold livestock and other merchandise at
the Cowley County Fair. Their main premises consisted of a two-story
building, with inanimate objects for sale on the first floor and a livestock
pavilion on the second floor. One day the plaintiff came onto the
defendants’ premises, took a seat on the first floor, and engaged in
conversation with her friends. Suddenly there was a loud commotion and
noise overhead, and bits of plaster and debris began to fall from the ceiling
onto the plaintiff and others near her. This was immediately followed by a
600-pound steer falling through the ceiling immediately over the plaintiff’s
position; the beast landed on the plaintiff, knocking her unconscious,
flattening her chair, and causing her various injuries. She sued the
defendants. They responded that the bare facts just recited provided no
basis for holding them liable, because “reasonable conclusions other than
the negligence of the defendants can be drawn to explain the occurrence.”
The trial court overruled the defendants’ demurrer, and the Kansas Supreme
Court affirmed, holding that the plaintiff was entitled to a trial and that this
was an appropriate case for res ipsa loquitur.
What is the distinction between Brauner v. Peterson (res ipsa
inapplicable when cow strays onto highway) and Guthrie v. Powell (res ipsa
applicable when cow strays through ceiling)?
7. Unusual occurrences. In Wilson v. Stillwill, 309 N.W.2d 898 (Mich.
1981), the defendant, Stillwill, was an orthopedic surgeon. The plaintiff,
Wilson, complained to him of trouble with his right arm. Stillwill
performed an operation on the arm, and afterwards the arm became
infected; as a result the arm eventually became paralyzed altogether. Wilson
brought suit against Stillwill and the hospital, attempting to rely on res ipsa
loquitur. The trial court gave a directed verdict to the hospital, and a jury
found in favor of Stillwill. Wilson argued on appeal that his case against the
hospital should have been sent to the jury under the doctrine of res ipsa
loquitur; he suggested that his infection might well have been caused by the
negligence of the hospital employees, such as by their not properly washing
their hands, or not properly sterilizing equipment. The Michigan Supreme
Court affirmed:
The testimony showed that the defendant hospital had a post-

operative infection rate well below the national average. . . . The
plaintiffs suggest that the low incidence of infection at the defendant
hospital means that infection does not ordinarily occur. From this
statement they seek to apply res ipsa loquitur. Although it is true that
statistically infections did not ordinarily occur at the defendant
hospital, this fact does not suggest that when an infection does occur,
it is the result of negligence. . . . The mere occurrence of a post-
operative infection is not a situation which gives rise to an inference
of negligence when no more has been shown than the facts that an
infection has occurred and that an infection is rare.
Why not? What is the distinction between Wilson v. Stillwill and Guthrie
v. Powell (the case of the cow that fell through the ceiling)?
8. The likelihood of negligence. What does it mean when a court says
that an accident is of a sort that ordinarily would not occur without
negligence? Consider some possible interpretations:
a. If due care had been used, the accident would have been unlikely to
occur.
b. The type of accident that occurred becomes much more likely when
someone is negligent than it is when due care is used.
c. When accidents of this sort occur, they are, more probably than not,
due to negligence.
What are the differences between these formulations? Consider Guthrie,

Rachlinski, & Wistrich, Inside the Judicial Mind, 86 Cornell L. Rev. 777
(2001):
The inverse fallacy refers to the tendency to treat the probability of a

hypothesis given the evidence (for example, the probability that a
defendant was negligent given that a plaintiff was injured) as the
same as, or close to, the probability of the evidence given the
hypothesis (for example, the probability that the plaintiff would be
injured if the defendant were negligent). . . .
To test whether judges would commit the inverse fallacy, we gave
the judges in our study a res ipsa loquitur problem. In an item labeled
“Evaluation of Probative Value of Evidence in a Torts Case,” we
presented all of the judges with a paragraph-long description of a case
based loosely on the classic English case, Byrne v. Boadle:
The plaintiff was passing by a warehouse owned by the defendant
when he was struck by a barrel, resulting in severe injuries. At the
time, the barrel was in the final stages of being hoisted from the
ground and loaded into the warehouse. The defendant’s employees
are not sure how the barrel broke loose and fell, but they agree that
either the barrel was negligently secured or the rope was faulty.
Government safety inspectors conducted an investigation of the
warehouse and determined that in this warehouse: (1) when barrels
are negligently secured, there is a 90% chance that they will break
loose; (2) when barrels are safely secured, they break loose only 1%
of the time; (3) workers negligently secure barrels only 1 in 1,000
times.
The materials then asked: “Given these facts, how likely is it that
the barrel that hit the plaintiff fell due to the negligence of one of the
workers”? The materials provided the judges with one of four
probability ranges to select: 0-25%, 26-50%, 51-75%, or 76-100%.
When presented with a problem like this one, most people
commit the inverse fallacy and assume the likelihood that the
defendant was negligent is 90%, or at least a high percentage. . . . In
fact, however, the actual probability that the defendant was negligent
is only 8.3%. . . . Because the defendant is negligent .1% of the time
and is 90% likely to cause an injury under these circumstances, the
probability that a victim would be injured by the defendant’s
negligence is .09% (and the probability that the defendant is negligent
but causes no injury is .01%). Because the defendant is not negligent
99.9% of the time and is 1% likely to cause an injury under these
circumstances, the probability that on any given occasion a victim
would be injured even though the defendant took reasonable care is
0.999% (and the probability that the defendant is not negligent and
causes no injury is 98.901%). As a result, the conditional probability
that the defendant is negligent given that the plaintiff is injured equals
.090% divided by 1.089%, or 8.3%.
Of the 159 judges who responded to the question, 40.9% selected
the right answer by choosing 0-25%; 8.8% indicated 26-50%; 10.1%
indicated 51-75%; and 40.3% indicated 76-100%. Overall, the judges
did well; more than 40% of them got the correct answer to a difficult
question in a short period of time. Those judges who did not get the
correct answer, however, exhibited a significant tendency to choose
the highest range. Although we did not inquire into the reasoning
process that led these judges to their answers, the number of judges
who chose the highest range suggests that many committed the
inverse fallacy. . . .
As Professor Kaye has noted, the doctrine of res ipsa loquitur
(upon which the problem in our questionnaire is based) historically
includes a radical misunderstanding of probability theory. According
to the Restatement (Second) of Torts, a jury can infer that the
defendant is negligent from the occurrence of an event that is “of a
kind which ordinarily does not occur in the absence of negligence.”
[But e]ven if an event does not ordinarily occur when negligence is
absent, the event still may be more likely to be the product of non-
negligence than negligence. In the problem that we used in this study,
for example, the accident was unlikely to occur when the defendant
was not negligent. Nevertheless, because negligence was rare, the
event was still unlikely to have been caused by negligence.
9. Procedural consequences. Where it applies, res ipsa loquitur typically

permits (but does not require) a jury to find the defendant negligent on the
basis of nothing more than the accident and its circumstances; the plaintiff
need not put in particular evidence that the defendant should have done
anything differently. Indeed, in some jurisdictions a plaintiff must choose
between trying to prove “specific negligence” (particular things the
defendant should have done differently) or relying on res ipsa loquitur.
If a plaintiff does rely on “res ipsa,” the defendant is free to submit
evidence to rebut the presumption created by the doctrine. Again, the
procedural details then vary by jurisdiction. Usually the presumption
created by res ipsa loquitur is treated simply as evidence for the jury to
consider, so that as a practical matter the doctrine is a way for plaintiffs to
avoid summary judgment despite having uncovered no untaken precaution
that the defendant should have used to avoid the accident. In some
jurisdictions, however, the res ipsa presumption may require judgment for
the plaintiff if the defendant fails to respond with some evidence to rebut it;
and occasionally courts have found the circumstantial evidence of
negligence in a case so strong as to require a directed verdict for the
plaintiff. Res ipsa loquitur also can form the basis of a jury instruction that
allows negligence to be found by the trier of fact when the elements of the
doctrine are satisfied.
Judson v. Giant Powder Co.

107 Cal. 549, 40 P. 1020 (1895)
GAROUTTE, J. — Respondents recovered judgment for the sum of
$41,164.75, as damages for acts of negligence. This appeal is prosecuted
from such judgment, and from an order denying a motion for a new trial.
The damages to respondents’ property were occasioned by an explosion of
nitroglycerine in process of manufacture into dynamite, in appellant’s
powder factory, situated upon the shore of the Bay of San Francisco.
Appellant’s factory buildings were arranged around the slope of a hill
facing the bay. Nearest to respondents’ property was the nitroglycerine
house; next was the washing house; next were the mixing houses; then
came the packing houses; and finally the two magazines used for storing
dynamite. These various buildings were situated from 50 to 150 feet apart,
and a tramway ran in front of them. The explosion occurred in the morning
during working hours, and originated in the nitroglycerine house. There
followed, within a few moments of time, in regular order, the explosion of
the other buildings, the two magazines coming last; but, though last, they
were not least, for their explosion caused the entire downfall and
destruction of respondents’ factory, residences, and stock on hand. There is
no question but what the cause of this series of explosions following the
first is directly traceable, by reason of fire or concussion, to the
nitroglycerine explosion. Of the many employees of appellant engaged in
and about the nitroglycerine factory at the time of the disaster, none were
left to tell the tale. Hence any positive testimony as to the direct cause of
the explosion is not to be had. The witnesses who saw and knew, like all
things else around, save the earth itself, were scattered to the four winds. . .
.
[The defendants-appellants argued first that the plaintiffs-respondents
had assumed the risk of an explosion by selling to the defendant the land on
which it built its factory. The court rejected the argument:] In making the
grant, respondents had a right to assume that due care would be exercised in
the conduct of the business, and certainly they have a right to demand that
such care be exercised. It is argued that the explosion of all powder works is
a mere matter of time; that such explosions are necessarily contemplated by
every one who builds beside such works, or who brings dynamite into his
dooryard. It is further contended that appellant gave to respondents actual
notice of the dangerous character of its business by a previous explosion,
which damaged respondents’ property, and that respondents, by still
continuing in business after such notice, in a degree assumed and ratified
the risk, and cannot now be heard to complain. The only element of strength
in this line of argument is its originality. The contention that, in the ordinary
course of events, all powder factories explode, conceding such to be the
fact, presents an element foreign to the case. The doctrine of fatalism is not
here involved. In the ordinary course of events the time for this explosion
had not arrived, and appellant had not legal right to hasten that event by its
negligent acts. . . .
It is contended that respondents offered no evidence tending to show
that the explosion of the nitroglycerine factory was occasioned by the
negligence of appellant, and this contention brings us to the consideration
of a most important principle of law. . . . Does the proof of the explosion
draw with it a presumption of negligence sufficient to establish a prima
facie case for a recovery? . . . Presumptions arise from the doctrine of
probabilities. The future is measured and weighed by the past, and
presumptions are created from the experience of the past. What has
happened in the past, under the same conditions will probably happen in the
future, and ordinary and probable results will be presumed to take place
until the contrary is shown. Based upon the foregoing principles, a rule of
law has been formulated, bearing upon a certain class of cases, where
damages either to person or property form the foundation of the action. This
rule is well declared in Shearman and Red-field on Negligence: “When a
thing which causes injury is shown to be under the management of the
defendant, and the accident is such as in the ordinary course of things does
not happen if those who have the management use proper care, it affords
reasonable evidence, in the absence of explanation by the defendant, that
the accident arose from the want of care.” . . .
In the case at bar, . . . respondents placed before the court expert
evidence to the effect that, if the correct process of manufacturing and
handling dynamite was carefully carried out, an explosion would not occur.
This evidence is stronger than in the smokestack cases, for here it declares
as a certainty what there is only stated to be the probable or ordinary result;
but, be that as it may, if this character of evidence was relevant and material
in the smokestack cases, it is equally relevant and material here. If it was
sufficient there to complete and perfect a prima facie case of negligence, it
is ample here to do the same. Again, if appellant had the right, under the
laws of the state, to manufacture dynamite (which is conceded), and, if by
reason of the existence of such right, courts may assume that, if dynamite is
properly handled in the process of manufacture, explosions will not
probably occur, then respondents’ case is doubly proven, for here we have,
not only the presumption of the existence of certain conditions, but the
evidence of witnesses as to the existence of them. . . .
Appellant was engaged in the manufacture of dynamite. In the ordinary
course of things, an explosion does not occur in such manufacture if proper
care is exercised. An explosion did occur, ergo, the real cause of the
explosion being unexplained, it is probable that it was occasioned by a lack
of proper care. The logic is unassailable, and the principle of law of
presumptions of fact erected thereon is as sound as the logic upon which it
is based.
For the foregoing reasons, the judgment and order are affirmed.
NOTES
1. Double bind. If you have studied strict liability, consider the

relationship between that doctrine and res ipsa loquitur. If the plaintiffs in a
case like Judson were to argue that the defendants should be held strictly
liable for damage caused by their gunpowder factory, what response might
the defendants make? Might that response then become a part of the
plaintiff’s argument that res ipsa loquitur should apply?
If the plaintiff obtains the benefit of the res ipsa loquitur presumption in
a case like Judson, how — if at all — can the defendant respond? What
rationale for the res ipsa doctrine is suggested by its use in cases like
Judson? What would be the consequences of not applying res ipsa in such
cases?
2. Without a trace. In Haasman v. Pacific Alaska Air Express, 100 F.
Supp. 1 (D. Alaska 1951), the plaintiffs’ decedents were passengers on an
airplane headed to Seattle from Yakutat, Alaska. The plane vanished during
the trip. No icing or storm conditions were in effect along the plane’s route,
and no trace of the plane, its cargo, or its passengers was ever found. The
plaintiffs sued the airline, basing their allegations of negligence on the
doctrine of res ipsa loquitur. The defendants moved to dismiss the claims;
the trial court denied the motion and gave judgment to the plaintiffs:
The defendant’s contention that [res ipsa loquitur] is not applicable to
a case such as this is based primarily on the ground that since the
plane disappeared without a trace, the defendant can have no
knowledge of the cause of the loss of the plane superior to that
possessed by the plaintiffs.
The rule precluding the application of the doctrine where the
plaintiff’s knowledge is equal to that of the defendant . . . is applied
to cases where the plaintiff has equal knowledge or where knowledge
of the cause is equally accessible to the plaintiff — not to cases in
which there is an equality of ignorance as in the instant case. Since
inability, because of a lack of knowledge, to show specific acts of
negligence is a prerequisite to the application of the doctrine itself, it
follows that equality of knowledge precludes its application. But
from this it does not follow that conversely equality of ignorance will
likewise preclude applicability, for the function of the doctrine is to
supply a fact, i.e. defendant’s negligence, which must have existed in
the causal chain stretching from the act or omission by the defendant
to the injury suffered by the plaintiff, but which the plaintiff because
of circumstances surrounding the causal chain, cannot know and
cannot prove to have actually existed. I conclude, therefore, that the
rule barring the application of the doctrine where there is equality of
knowledge is not applicable to the case at bar.
What is the meaning of the court’s distinction between equality of

knowledge and equality of ignorance? What is the analogy between
Haasman v. Pacific Alaska Air Express and Judson v. Giant Powder Co.?
3. The sea itself contains many hazards. In Walston v. Lambertsen, 349
F.2d 660 (9th Cir. 1965), the plaintiff’s decedent was a member of the crew
on a crab fishing boat. The boat sank, and its master and crew were
drowned. The cause of the boat’s disappearance was unknown. It occurred
off the coast of Washington on a day when a light breeze was blowing and
when the seas were calm, the weather was clear, and the visibility was about
six miles. The plaintiff sued the boat’s owners, claiming that the boat was
unseaworthy because it was equipped with a large live crab tank that may
have impaired its stability; she also based her allegations of negligence on
the doctrine of res ipsa loquitur. There was a trial, and judgment was
entered for the defendants. The trial judge found that “The adding of the
‘live tank’ to the vessel was at the instance of a competent and long
experienced skipper, accomplished by a construction firm of good repute,
and there is not the slightest indication that it was improper or negligently
done in any particular.” The trial judge also refused to apply res ipsa
loquitur to the case. The court of appeals affirmed, holding that the
evidence of negligence was insufficient to support a verdict for the plaintiff:
The appellant contends that the district court erroneously failed to apply
the doctrine of res ipsa loquitur to her advantage. Our court has held that if
a claimant establishes that a vessel is unseaworthy, the trial court may
presume that the unseaworthiness was the proximate cause of the sinking,
otherwise unexplained, of a vessel in calm seas. . . . The presumption which
appellant would apply has been indulged only when the claimant has been
able to establish to the satisfaction of the trial court that the vessel was
unseaworthy at the time it departed on its last voyage. The sea itself
contains many hazards, and an inference of liability of the shipowner for the
mysterious loss of his vessel should not be lightly drawn. The court below
obviously and properly believed that there could be no foundation for the
inference absent satisfactory proof of an unseaworthy condition which
might reasonably be expected to relate directly to the sinking of the vessel.
What is the distinction between Walston v. Lambertsen and Haasman v.

Pacific Alaska Air Express (L when defendant’s plane disappeared without
a trace)?
4. The sleeping hitchhiker (problem). In Archibeque v. Homrich, 543
P.2d 820 (N.M. 1975), a man named Perkins was driving from Idaho to
Texas. When he reached Utah he telephoned ahead to his destination to say
that he might arrive early; he said he had picked up a hitchhiker who had
offered to help with the driving and would enable them to drive “straight
through.” Three days later Perkins’s car was discovered at the bottom of a
gully next to a state highway in New Mexico. Perkins and the hitchhiker
were found dead inside the car; the hitchhiker was in the drivers’ seat, and
Perkins was on the passenger side. There were no witnesses to the crash.
Perkins’s estate sued the hitchhiker’s estate for negligence, relying on
res ipsa loquitur. An investigation of the marks the car left behind on the
road suggested that it had traveled for a while on the right hand shoulder of
the highway, then veered across the road and over the left shoulder into the
gully. The highway was straight, level, and dry at the point of the accident.
The investigating officer suggested that the driver may have fallen asleep at
the wheel, allowing the car to drift off the road to the right; the sound of the
wheels hitting gravel awoke him, and he overcorrected to the left, plunging
into the gully. The hitchhiker’s estate countered that “in accidents such as
this one an insect could have been in the car; cigarette ashes could have
blown into the eyes of the driver; an animal could have run out in front of
the driver; the driver could have been ill; or another vehicle could have run
this vehicle off the road.”
What result?
5. Res ipsa loquitur and types of precautions. How is it possible to say
whether an accident probably was caused by negligence without knowing
the details of how it occurred? Consider the amount of care and the type of
care needed to safely conduct some activity — hoisting barrels, fencing in a
cow, or flying an airplane. For which of these activities does reasonableness
require the most care to be used? What differences exist between the kinds
of precautions needed in each situation? In which case is it easiest to
conclude that if there is an accident, somebody made a mistake — perhaps
a “compliance error” in failing to carry out some repetitive precaution?
Consider Mark F. Grady, Res Ipsa Loquitur and Compliance Error, 142 U.
Pa. L. Rev. 887 (1994):
The possibilities for compliance error on a Cessna are fewer than on a

commercial airliner because there are not as many gauges to watch.
At the birth of aviation, when a plane disappeared without a trace —
Amelia Earhart’s plane for instance — compliance error was much
less likely to have been the cause of the disaster than in the Haasman
crash. The reason is almost tautological: by virtue of the greater
safety equipment aboard, the Haasman pilots had many more
opportunities for compliance error than Amelia Earhart did. This
theory suggests a paradox that we will see confirmed in the cases. In
most instances where technology has made an activity unusually safe,
that same technology has multiplied the possibilities for compliance
error relative to those for unavoidable accidents. Hence, the paradox:
accidents in areas with the most safety equipment are the strongest
res ipsa cases. When a modern commercial airliner goes down, it is a
much better res ipsa case than when a DC-3 disappears. If a nuclear
reactor were to melt down, it would be an exceptionally strong res
ipsa case.
Crab boats are almost the opposite of commercial aircraft. The
required rate of precaution is lower because the danger rate is lower.
The boat travels more slowly into harm’s way and fewer people are
on board. Since crab boat technology is so primitive, there are many
hazards that will lead to its destruction without anyone having been
negligent. Indeed, the cruder safety technology leads to a higher rate
of unavoidable accident than there is in the air. Also, with more
rudimentary technology, the required rate of precaution is lower than
on a commercial aircraft. Hence, the possibilities for compliance
error are lower at sea. A strong res ipsa case is one in which the
expected rate of compliance error is high relative to the normal rate
of unavoidable accident. The Haasman air crash was that case, but
the Walston sinking was not. . . .
In recent debates about the tort system, some commentators have
argued that something must be seriously wrong when negligence
claims are rising at the same time as objective measures of safety
(fatalities per passenger mile) are improving. Far from indicating
flaws in the system, this is a normal and usual relationship when
technology progresses. The invention of the dialysis machine saves
hundreds of lives each year, but it also adds a number of negligence
claims (from compliance error) that did not exist before. The
paramount purpose of the negligence system is to regulate
compliance error in the use of technology. It is therefore natural that
advances in technology tend to increase the number of claims.
We need to distinguish the number of claims from the claims’
magnitude. The development of antiseptic techniques generally
decreases the magnitude of tort claims. Consider someone
accidentally injured in a hunting accident before and after Lister
conducted his research on the modern antiseptic. Once good
antiseptic techniques exist, negligent hunters will generally pay lower
damages. Although a technology may reduce the magnitude of
claims, it can still increase the number of claims. After the
development of antiseptic techniques, when someone forgets to use
them, there is a new negligence claim — against a doctor — which
could not have existed before.
Ybarra v. Spangard
154 P.2d 687 (Cal. 1944)
GIBSON, C.J. — This is an action for damages for personal injuries

alleged to have been inflicted on plaintiff by defendants during the course
of a surgical operation. The trial court entered judgments of nonsuit as to all
defendants and plaintiff appealed.
[The plaintiff had his appendix removed in an operation performed by
the defendant doctors and nurses. He was not conscious during the
procedure. When he awoke, he had a pain between his neck and right
shoulder that he had never felt before. He became unable to rotate or lift his
arm. The problem was diagnosed as resulting from trauma caused by
pressure or strain applied at the point where the pain occurred. The plaintiff
was not able to identify how the injury occurred, so he sued all those
involved in the operation.]
Plaintiff’s theory is that the foregoing evidence presents a proper case
for the application of the doctrine of res ipsa loquitur, and that the inference
of negligence arising therefrom makes the granting of a nonsuit improper.
Defendants take the position that, assuming that plaintiff’s condition was in
fact the result of an injury, there is no showing that the act of any particular
defendant, nor any particular instrumentality, was the cause thereof. They
attack plaintiff’s action as an attempt to fix liability “en masse” on various
defendants, some of whom were not responsible for the acts of others; and
they further point to the failure to show which defendants had control of the
instrumentalities that may have been involved. Their main defense may be
briefly stated in two propositions: (1) that where there are several
defendants, and there is a division of responsibility in the use of an
instrumentality causing the injury, and the injury might have resulted from
the separate act of either one of two or more persons, the rule of res ipsa
loquitur cannot be invoked against any one of them; and (2) that where
there are several instrumentalities, and no showing is made as to which
caused the injury or as to the particular defendant in control of it, the
doctrine cannot apply. We are satisfied, however, that these objections are
not well taken in the circumstances of this case.
The doctrine of res ipsa loquitur has three conditions: “(1) the accident
must be of a kind which ordinarily does not occur in the absence of
someone’s negligence; (2) it must be caused by an agency or
instrumentality within the exclusive control of the defendant; (3) it must not
have been due to any voluntary action or contribution on the part of the
plaintiff.” Prosser, Torts, p. 295.
There is, however, some uncertainty as to the extent to which res ipsa
loquitur may be invoked in cases of injury from medical treatment. This is
in part due to the tendency, in some decisions, to lay undue emphasis on the
limitations of the doctrine, and to give too little attention to its basic
underlying purpose. The result has been that a simple, understandable rule
of circumstantial evidence, with a sound background of common sense and
human experience, has occasionally been transformed into a rigid legal
formula, which arbitrarily precludes its application in many cases where it
is most important that it should be applied. If the doctrine is to continue to
serve a useful purpose, we should not forget that “the particular force and
justice of the rule, regarded as a presumption throwing upon the party
charged the duty of producing evidence, consists in the circumstance that
the chief evidence of the true cause, whether culpable or innocent, is
practically accessible to him but inaccessible to the injured person.” 9
Wigmore, Evidence, 3d Ed., §2509, p. 382.
The present case is of a type which comes within the reason and spirit
of the doctrine more fully perhaps than any other. The passenger sitting
awake in a railroad car at the time of a collision, the pedestrian walking
along the street and struck by a falling object or the debris of an explosion,
are surely not more entitled to an explanation than the unconscious patient
on the operating table. Viewed from this aspect, it is difficult to see how the
doctrine can, with any justification, be so restricted in its statement as to
become inapplicable to a patient who submits himself to the care and
custody of doctors and nurses, is rendered unconscious, and receives some
injury from instrumentalities used in his treatment. Without the aid of the
doctrine a patient who received permanent injuries of a serious character,
obviously the result of some one’s negligence, would be entirely unable to
recover unless the doctors and nurses in attendance voluntarily chose to
disclose the identity of the negligent person and the facts establishing
liability. If this were the state of the law of negligence, the courts, to avoid
gross injustice, would be forced to invoke the principles of absolute
liability, irrespective of negligence, in actions by persons suffering injuries
during the course of treatment under anesthesia. But we think this juncture
has not yet been reached, and that the doctrine of res ipsa loquitur is
properly applicable to the case before us. . . .
The argument of defendants is simply that plaintiff has not shown an
injury caused by an instrumentality under a defendant’s control, because he
has not shown which of the several instrumentalities that he came in contact
with while in the hospital caused the injury; and he has not shown that any
one defendant or his servants had exclusive control over any particular
instrumentality. Defendants assert that some of them were not the
employees of other defendants, that some did not stand in any permanent
relationship from which liability in tort would follow, and that in view of
the nature of the injury, the number of defendants and the different
functions performed by each, they could not all be liable for the wrong, if
any.
We have no doubt that in a modern hospital a patient is quite likely to
come under the care of a number of persons in different types of contractual
and other relationships with each other. For example, in the present case it
appears that Drs. Smith, Spangard and Tilley were physicians or surgeons
commonly placed in the legal category of independent contractors; and Dr.
Reser, the anesthetist, and defendant Thompson, the special nurse, were
employees of Dr. Swift and not of the other doctors. But we do not believe
that either the number or relationship of the defendants alone determines
whether the doctrine of res ipsa loquitur applies. Every defendant in whose
custody the plaintiff was placed for any period was bound to exercise
ordinary care to see that no unnecessary harm came to him and each would
be liable for failure in this regard. Any defendant who negligently injured
him, and any defendant charged with his care who so neglected him as to
allow injury to occur, would be liable. The defendant employers would be
liable for the neglect of their employees; and the doctor in charge of the
operation would be liable for the negligence of those who became his
temporary servants for the purpose of assisting in the operation.
It may appear at the trial that, consistent with the principles outlined
above, one or more defendants will be found liable and others absolved, but
this should not preclude the application of the rule of res ipsa loquitur. The
control at one time or another, of one or more of the various agencies or
instrumentalities which might have harmed the plaintiff was in the hands of
every defendant or of his employees or temporary servants. This, we think,
places upon them the burden of initial explanation. Plaintiff was rendered
unconscious for the purpose of undergoing surgical treatment by the
defendants; it is manifestly unreasonable for them to insist that he identify
any one of them as the person who did the alleged negligent act. . . .
[I]f we accept the contention of defendants herein, there will rarely be
any compensation for patients injured while unconscious. A hospital today
conducts a highly integrated system of activities, with many persons
contributing their efforts. There may be, e.g., preparation for surgery by
nurses and interns who are employees of the hospital; administering of an
anesthetic by a doctor who may be an employee of the hospital, an
employee of the operating surgeon, or an independent contractor;
performance of an operation by a surgeon and assistants who may be his
employees, employees of the hospital, or independent contractors; and post
surgical care by the surgeon, a hospital physician, and nurses. The number
of those in whose care the patient is placed is not a good reason for denying
him all reasonable opportunity to recover for negligent harm. It is rather a
good reason for re-examination of the statement of legal theories which
supposedly compel such a shocking result. . . .
The judgment is reversed.
NOTES
1. Something they did not appreciate. On remand, Ybarra v. Spangard

was retried without a jury. All of the defendants (except the hospital’s
owner, who was not present in the operating room) testified, and all said
they had seen nothing occur which could have produced the plaintiff’s
injuries. The trial judge said that he thought the defendants’ explanations
were “honest,” but that “something they did not appreciate happened in the
course of the operation, in the course of handling the patient.” He gave
judgment to the plaintiff, held the defendants jointly and severally liable,
and the court of appeals affirmed. Is the trial court’s handling of the case on
remand consistent with the Ybarra opinion? If the res ipsa presumption
successfully induced the defendants to testify honestly, and they said that
they knew nothing, then why should the presumption continue to allow the
plaintiff to obtain judgments against them?
2. Substance and procedure. Are there uses of res ipsa loquitur that
might be considered obsolete in view of the aggressive pretrial discovery
now permitted to plaintiffs in tort cases? What is the difference between
those two ways of forcing defendants to reveal what they know?
3. Common knowledge. Apart from the problem of identifying who
caused the plaintiff’s injury, the Ybarra case also raises questions about the
application of res ipsa loquitur to cases of medical malpractice. How are
jurors untutored in medicine to decide whether an untoward result of a
complicated medical procedure “speaks for itself” and suggests that the
defendant was negligent? Some states give the plaintiff in such cases the
option of deciding whether to present expert witnesses; others require
expert testimony in certain instances, but then struggle to distinguish
between those claims of medical negligence so egregious that an inference
of negligence can be drawn by lay jurors as a matter of “common
knowledge” and those where any such inference must be supported by
testimony from an expert. Consider this attempt by the Nevada legislature
to settle the distinction by statute:
Nev. Rev. Stat. 41A.100. EXPERT TESTIMONY REQUIRED; EXCEPTIONS;

REBUTTABLE PRESUMPTION OF NEGLIGENCE
1. Liability for personal injury or death is not imposed upon any

provider of medical care based on alleged negligence in the
performance of that care unless evidence consisting of expert medical
testimony, material from recognized medical texts or treatises or the
regulations of the licensed medical facility wherein the alleged
negligence occurred is presented to demonstrate the alleged deviation
from the accepted standard of care in the specific circumstances of
the case and to prove causation of the alleged personal injury or
death, except that such evidence is not required and a rebuttable
presumption that the personal injury or death was caused by
negligence arises where evidence is presented that the personal injury
or death occurred in any one or more of the following circumstances:
(a) A foreign substance other than medication or a prosthetic
device was unintentionally left within the body of a patient
following surgery;
(b) An explosion or fire originating in a substance used in
treatment occurred in the course of treatment;
(c) An unintended burn caused by heat, radiation or chemicals
was suffered in the course of medical care;
(d) An injury was suffered during the course of treatment to a
part of the body not directly involved in the treatment or proximate
thereto; or
(e) A surgical procedure was performed on the wrong patient or
the wrong organ, limb or part of a patient’s body.
4. The author of the wrong. In Wolf v. American Tract Society, 58 N.E.
31 (N.Y. 1900), the defendants were among 19 independent contractors
working on the construction of a 23-story building in New York City. One
day when work was progressing on the ninth story of the building, the
plaintiff, Wolf, was on the street outside delivering pipe. A brick fell on his
head. There was no evidence to suggest where the brick came from or who
dropped it. Wolf sued two of the contractors at work on the building. The
trial court dismissed the complaint and the New York Court of Appeals
affirmed:
In a case like this, where the building in process of construction is in

charge of numerous contractors and their workmen, each independent
of the other, and none of them subject to the control or direction of
the other, some proof must be given to enable the jury to point out or
identify the author of the wrong. There is no principle that I am aware
of that would make all of the contractors or all the workmen engaged
in erecting this building liable in solido. And yet there is just as much
reason for that as there is for holding two of these contractors for no
other reason than that one of them had charge of the carpenter work
and the other of the mason work. The plaintiff, we must assume,
suffered injury from the negligence of some one; but I am not aware
of any ground, in reason or law, for imputing the wrong to the two
contractors who are defendants, or for selecting them from all the
others as responsible to the plaintiff, unless they can conclusively
show that they are not.
Cases must occasionally happen where the person really
responsible for a personal injury cannot be identified or pointed out
by proof, as in this case; and then it is far better and more consistent
with reason and law that the injury should go without redress, than
that innocent persons should be held responsible, upon some strained
construction of the law developed for the occasion. The idea
suggested in this case, that all or any of the 19 contractors may be
held, since the plaintiff is unable by proof to identify the real author
of the wrong, is born of necessity, but embodies a principle so
farreaching and dangerous that it cannot receive the sanction of the
courts.
Haight, J., dissented:
Injuries of this character are not uncommon, but it is seldom that the
injured party is able to show who the negligent person was; and if the
principle contended for is to be sustained in its entirety, without
limitation, the public has little protection from the dangers liable to
occur from the construction of high buildings upon the lines of streets
in our large and populous cities. A person walking along a street, who
is suddenly crushed to the earth by a brick falling from a high
building filled with workmen, has but slight opportunity to ascertain
who the person was who caused the brick to fall, and such person
seldom confesses to his misconduct. It was owing to this difficulty
that the rule of presumption of negligence to which we have alluded
was established. It was a rule founded upon necessity, designed for
the protection of the public, and, in my judgment, should not be
abrogated because the owner sees fit to contract with two or more
persons to construct his building.
What is the distinction between Wolf v. American Tract Society and

Byrne v. Boadle (the L case of the falling barrel)? What is the distinction
between Wolf v. American Tract Society and Ybarra v. Spangard?
5. Free fall. In Bond v. Otis Elevator Co., 388 S.W.2d 681 (Tex. 1965),
the plaintiff entered an elevator on the ninth floor of the Adolphus Tower
Building in Dallas. The elevator went into “free fall”; after plummeting to
the fifth or sixth floor it stopped and bounced violently on its cord. The
plaintiff was thrown to the floor and injured her ankle. She sued Adolphus
(the owner of the building) and the Otis Elevator Company. She did not
attempt to prove that either defendant committed any specific act of
negligence, but relied entirely on the doctrine of res ipsa loquitur. Otis
installed the elevator and had a contract with the building to maintain it. In
the contract, Otis provided in part that “we do not assume possession or
management of any part of the equipment but such remains yours
exclusively as the owner (or lessee) thereof.” Neither defendant offered any
explanation for the elevator’s fall. The trial court found the defendants
jointly and severally liable to the plaintiff. The Supreme Court of Texas
held that the trial court did not err in allowing the plaintiff to rely on res
ipsa loquitur:
It appears from the contract between Adolphus and Otis with

reference to the maintenance of the elevators that the mechanism
controlling the movement of the elevators is quite complicated and
from the very nature of things the facts which would reveal how this
“free fall” happened were peculiarly within the knowledge of
respondents. If there is any explanation of this unusual occurrence of
the elevator going into a “free fall,” then the respondents are in a far
better position to come forward with it than is the petitioner.
We think that the evidence conclusively shows that the elevator
was under the joint control of Adolphus Tower and Otis Elevator. A
mere reading of that part of the contract quoted above shows this.
Otis Elevator says that the contract places the exclusive control in
Adolphus Tower. . . . It is true that the Adolphus Tower retained
possession and management of the elevators by that contract, but with
the understanding that Otis was to examine, lubricate, adjust and if in
its judgment conditions warrant, it was to repair or replace all
necessary equipment. In other words, what maintenance was required
depended upon the judgment of Otis, not that of Adolphus Tower. It
would be difficult to imagine a relationship between two parties with
reference to certain equipment where joint control is more
conclusively shown. The petitioner pleaded joint control and under
this evidence we think the trial court was correct in its necessary
holding, in support of its judgment, that both parties were in joint
control of the elevator in question.
We know of no case which holds that in order for the doctrine of
res ipsa loquitur to apply that the instrumentality causing the injury
must be under the exclusive control of a single entity. . . .
What is the distinction between Bond v. Otis Elevator Co. and Wolf v.
American Tract Society (the NL case of the falling brick)?
6. A mystery that cannot be accounted for. In Actiesselskabet Ingrid v.
Central R. Co. of New Jersey, 216 F. 72 (2d Cir. 1914), DuPont made a
contract to have dynamite shipped by railway from its plant in Kenville,
New Jersey, to a port in Jersey City. DuPont also hired a crew managed by
one Healing to move the dynamite from the railroad car onto a ship Healing
owned called the Katherine W., which in turn was to carry it to Uruguay.
One of the railroad’s cars, which contained about 40,000 pounds of
dynamite, exploded while the dynamite was being transferred from the train
to the boat. The Katherine W. was demolished by the explosion, which was
felt as far away as lower Manhattan; among the other ships damaged was
the plaintiff’s vessel, the Ingrid, which recently had arrived from Buenos
Aires with a cargo of bones meant to be unloaded into the cars of the same
railroad that was handling the dynamite. The Ingrid could not be salvaged
and was auctioned off as scrap iron. The owners of the Ingrid sued DuPont,
the railroad, and Healing, basing one theory of recovery on the doctrine of
res ipsa loquitur. The district court dismissed the libel, and the court of
appeals affirmed:
According to the libelant’s own theory as presented upon the

argument, the accident might have been caused by the negligence of
either the railroad company, the powder company, or Healing. It is
also true that the explosion may have been caused by the act of
outsiders entirely unconnected with any of the respondents. If the
explosion itself is evidence of negligence, such negligence may have
been that of the powder company in the manufacture of the dynamite
or the packing of it in the boxes; or it may have been the negligence
of the railroad company in improperly handling the car; or it may
have been the negligence of Healing in carelessly transferring the
boxes from the car into the lighter; or it may have been the
negligence of unauthorized persons who may have interfered with
some of these operations. And any one of these theories is almost as
probable as another. The cause of the explosion is a mystery and
cannot be accounted for.
Is there a satisfactory distinction between this case and Bond v. Otis

Elevator Co.? Between this case and Judson v. Giant Powder Co.?
7. Turkey salad (problem). In Samson v. Riesing, 215 N.W.2d 662 (Wis.
1974), the plaintiff attended a luncheon at the Wauwatosa Trinity Episcopal
Church. The luncheon was hosted by 11 members of the Wauwatosa High
School Band Mothers Association. The plaintiff ate turkey salad and
dessert. She subsequently experienced salmonella poisoning and suffered
permanent digestive injuries as a result. The plaintiff’s evidence was that
the turkey salad had been contaminated with salmonella bacteria. Nine
members of the Band Mothers Association had participated in the
preparation of the turkey salad. Each of the nine cooked a turkey in her own
kitchen before the event; the ladies then brought the turkeys to the church
kitchen where the salad was prepared. It was impossible to determine
whose turkey had contaminated the batch. The plaintiff brought an action
for negligence against all of the women who had cooked the turkeys and
prepared the salad, attempting to rely on the doctrine of res ipsa loquitur.
What result?
Chapter 4
Duties and Limitations
“Negligence” is the general term for the tort claim usually brought by
victims of unintentional harm, whether their damages result from
automobile collisions, from medical malpractice, or from other accidents of
various varieties. A plaintiff bringing suit against a defendant for
negligence traditionally must prove the existence of five elements: (1) duty;
(2) breach of duty; (3) cause in fact; (4) proximate cause; and (5) damages.
If you already have studied Chapter 3 on the negligence standard, then the
present chapter can be understood as addressing situations of a somewhat
exceptional character where a plaintiff is injured by a careless defendant but
is denied recovery because the defendant is said to have owed the plaintiff
no duty of care. Alternatively, if this chapter provides your first exposure to
the negligence tort, it can be viewed as laying groundwork by considering
when and why people are obliged to behave carefully at all.
A. DUTIES ARISING FROM AFFIRMATIVE ACTS
It is natural to imagine that in a lawsuit seeking to recover damages for

negligence, the defendant is being sued simply for being careless. The
structure of the negligence tort is a bit more complicated than that,
however; the precise claim in a negligence case is that the defendant had a
duty to the plaintiff — a duty to use reasonable care — and that the
defendant breached the duty. This way of thinking about negligence is
important because in some situations a careless defendant may be found to
have no duty at all toward a plaintiff, and so not be held liable even if the
defendant’s lack of care caused the plaintiff great harm. A simple example
is a case where the plaintiff sues a neighbor because the neighbor saw that
the plaintiff’s house was on fire and did nothing about it. The neighbor
might be condemned as behaving unreasonably; and on account of the
neighbor’s inaction, the plaintiff suffered great harm. But the neighbor had
no duty of care to the plaintiff; the failure to make the call for help therefore
cannot be a breach of duty, and no liability can result from it. This can be
understood as the background rule of our system of tort liability for
unintentional harm: people do not start out with duties to one another; a
duty must be established, then a breach of the duty, before liability can
arise.
So when does a defendant have a duty to be careful? First and most
importantly, the law generally imposes duties of care on people when they
engage in affirmative acts — the sorts of acts that can create risks for
others. This is the most common sort of duty; indeed, it is so common that
cases fitting this pattern often do not mention the existence of a duty at all:
it just goes without saying that when you take an action — driving a car, for
example, or performing a medical operation — you owe a duty of
reasonable care to those whom your actions may injure. If you drive the car
or perform the operation negligently, you breach that duty and become
liable for whatever damage you cause. Most lawsuits to recover damages
caused by accidents fall into this category. Duties arising from acts are so
pervasive that some analysts consider it more useful to regard this as the
background rule of torts: people have duties to act with reasonable care
unless some exception applies — a “no duty” rule carved out for reasons of
policy. Thus we find the following in Restatement Third, Torts, Liability for
Physical and Emotional Harm (2005):
§7. DUTY.
(a) An actor ordinarily has a duty to exercise reasonable care

when the actor’s conduct creates a risk of physical harm.
(b) In exceptional cases, when an articulated countervailing
principle or policy warrants denying or limiting liability in a
particular class of cases, a court may decide that the defendant has no
duty or that the ordinary duty of reasonable care requires
modification.
Functionally it may not matter much whether you regard the existence
of duties between people as the exception to a general “no duty” rule or as a
rule to which there are “no duty” exceptions. The important point is to
grasp when duties of care exist and when they don’t.
An important consequence of the duties that arise from affirmative acts
is the other side of the proposition: a defendant ordinarily cannot be held
liable for simply doing nothing, even if that failure to act causes harm to the
plaintiff. This was the point of the illustration involving the burning house:
subject to various exceptions we will consider, a defendant who does
nothing has no duty of care to others; doing nothing sometimes is called
“nonfeasance,” for which the law imposes no liability — as opposed to
“misfeasance,” or affirmative acts done carelessly, for which defendants
may be held liable. Alas, the distinction between action and inaction
sometimes turns out to be difficult to draw and defend. This chapter thus
begins by examining where the law draws the line between doing nothing,
and thus having no duty, and doing something, and thus having a duty to do
it carefully.
Yania v. Bigan
155 A.2d 343 (Pa. 1959)
JONES, J. — A bizarre and most unusual circumstance provides the

background of this appeal.
On September 25, 1957 John E. Bigan was engaged in a coal strip-
mining operation in Shade Township, Somerset County. On the property
being stripped were large cuts or trenches created by Bigan when he
removed the earthen overburden for the purpose of removing the coal
underneath. One cut contained water 8 to 10 feet in depth with side walls or
embankments 16 to 18 feet in height; at this cut Bigan had installed a pump
to remove the water.
At approximately 4 P.M. on that date, Joseph F. Yania, the operator of
another coal strip-mining operation, and one Boyd M. Ross went upon
Bigan’s property for the purpose of discussing a business matter with
Bigan, and, while there, were asked by Bigan to aid him in starting the
pump. Ross and Bigan entered the cut and stood at the point where the
pump was located. Yania stood at the top of one of the cut’s side walls and
then jumped from the side wall — a height of 16 to 18 feet — into the water
and was drowned.
Yania’s widow, in her own right and on behalf of her three children,
instituted wrongful death and survival actions against Bigan contending
Bigan was responsible for Yania’s death. Preliminary objections, in the
nature of demurrers, to the complaint were filed on behalf of Bigan. The
court below sustained the preliminary objections; from the entry of that
order this appeal was taken.
Since Bigan has chosen to file preliminary objections, in the nature of
demurrers, every material and relevant fact well pleaded in the complaint
and every inference fairly deducible therefrom are to be taken as true . . .
Bigan stands charged with three-fold negligence: (1) by urging, enticing,
taunting and inveigling Yania to jump into the water; (2) by failing to warn
Yania of a dangerous condition on the land, i.e. the cut wherein lay 8 to 10
feet of water; (3) by failing to go to Yania’s rescue after he had jumped into
the water. . . .
Appellant initially contends that Yania’s descent from the high
embankment into the water and the resulting death were caused “entirely”
by the spoken words and blandishments of Bigan delivered at a distance
from Yania. The complaint does not allege that Yania slipped or that he was
pushed or that Bigan made any physical impact upon Yania. On the
contrary, the only inference deducible from the facts alleged in the
complaint is that Bigan, by the employment of cajolery and inveiglement,
caused such a mental impact on Yania that the latter was deprived of his
volition and freedom of choice and placed under a compulsion to jump into
the water. Had Yania been a child of tender years or a person mentally
deficient then it is conceivable that taunting and enticement could constitute
actionable negligence if it resulted in harm. However, to contend that such
conduct directed to an adult in full possession of all his mental faculties
constitutes actionable negligence is not only without precedent but
completely without merit.
[I]t is urged that Bigan failed to take the necessary steps to rescue Yania
from the water. The mere fact that Bigan saw Yania in a position of peril in
the water imposed upon him no legal, although a moral, obligation or duty
to go to his rescue unless Bigan was legally responsible, in whole or in part,
for placing Yania in the perilous position. Restatement, Torts, §314. Cf.
Restatement, Torts, §322. The language of this Court in Brown v. French,
104 Pa. 604, 607, 608, is apt: “If it appeared that the deceased, by his own
carelessness, contributed in any degree to the accident which caused the
loss of his life, the defendants ought not to have been held to answer for the
consequences resulting from that accident. . . . He voluntarily placed
himself in the way of danger, and his death was the result of his own act. . .
. That his undertaking was an exceedingly reckless and dangerous one, the
event proves, but there was no one to blame for it but himself. He had the
right to try the experiment, obviously dangerous as it was, but then also
upon him rested the consequences of that experiment, and upon no one else;
he may have been, and probably was, ignorant of the risk which he was
taking upon himself, or knowing it, and trusting to his own skill, he may
have regarded it as easily superable. But in either case, the result of his
ignorance, or of his mistake, must rest with himself — and cannot be
charged to the defendants.” The complaint does not aver any facts which
impose upon Bigan legal responsibility for placing Yania in the dangerous
position in the water and, absent such legal responsibility, the law imposes
on Bigan no duty of rescue.
Recognizing that the deceased Yania is entitled to the benefit of the
presumption that he was exercising due care and extending to appellant the
benefit of every well pleaded fact in this complaint and the fair inferences
arising therefrom, yet we can reach but one conclusion: that Yania, a
reasonable and prudent adult in full possession of all his mental faculties,
undertook to perform an act which he knew or should have known was
attended with more or less peril and it was the performance of that act and
not any conduct upon Bigan’s part which caused his unfortunate death.
Order affirmed.
NOTES
1. Failures to rescue. The decision in Yania v. Bigan contains several

noteworthy threads. The first involves Bigan’s non-duty to rescue Yania.
Did the reason for not recognizing the duty involve the dangers to Bigan of
undertaking such a rescue? Did it involve considerations of autonomy?
Would the case have come out differently if Bigan had a life preserver on
the ground next to him and could have tossed it to Yania without any risk to
himself? Restatement (Second) of Torts §314 provides: “The fact that the
actor realizes or should realize that action on his part is necessary for
another’s aid or protection does not of itself impose upon him a duty to take
such action.” Illustration 4 reads as follows:
A, a strong swimmer, sees B, against whom he entertains an

unreasonable hatred, floundering in deep water and obviously unable
to swim. Knowing B’s identity, he turns away. A is not liable to B.
Is this illustration a fair interpretation of Yania v. Bigan?

Compare this statutory response from the Vermont legislature to the
type of problem presented by the Yania case and treated in §314 of the
Second Restatement:
(a) A person who knows that another is exposed to grave physical

harm shall, to the extent that the same can be rendered without danger
or peril to himself or without interference with important duties owed
to others, give reasonable assistance to the exposed person unless that
assistance or care is being provided by others.
(b) A person who provides reasonable assistance in compliance
with subsection (a) of this section shall not be liable in civil damages
unless his acts constitute gross negligence or unless he will receive or
expects to receive remuneration. Nothing contained in this subsection
shall alter existing law with respect to tort liability of a practitioner of
the healing arts for acts committed in the ordinary course of his
practice.
(c) A person who willfully violates subsection (a) of this section
shall be fined not more than $100.00.
12 Vt. Stat. Ann. §519 (1967). Why do you suppose the fine for violation of
the statute was set at $100? What considerations might that figure
represent?
2. Liability for goading. A second issue raised by Yania v. Bigan
involves Bigan’s non-liability for the role he played in goading Yania to
jump into the water. Notice that this issue may be connected to his non-duty
to rescue. Would it be possible to impose liability on Bigan for failing to
rescue Yania without creating a general duty on the part of bystanders to
rescue people in peril? How might you argue for a narrower duty on these
facts? Consider Restatement (Second) of Torts (1965):
§321. DUTY TO ACT WHEN PRIOR CONDUCT IS FOUND TO BE DANGEROUS
(1) If the actor does an act, and subsequently realizes or should

realize that it has created an unreasonable risk of causing physical
harm to another, he is under a duty to exercise reasonable care to
prevent the risk from taking effect.
(2) The rule stated in Subsection (1) applies even though at the
time of the act the actor has no reason to believe that it will involve
such a risk.
Illustration 3. A, carefully driving his truck, skids on an icy road,
and his truck comes to rest in a position across the highway where he
is unable to move it. A fails to take any steps to warn approaching
vehicles of the blocked highway. B, driving his automobile with
reasonable care, does not see the truck, skids on the ice and collides
with it, and is injured. A is subject to liability to B.
§322. DUTY TO AID ANOTHER HARMED BY ACTOR’S CONDUCT
If the actor knows or has reason to know that by his conduct,

whether tortious or innocent, he has caused such bodily harm to
another as to make him helpless and in danger of further harm, the
actor is under a duty to exercise reasonable care to prevent such
further harm.
Comment a. The rule stated in this Section applies not only where
the actor’s original conduct is tortious, but also where it is entirely
innocent. If his act, or an instrumentality within his control, has
inflicted upon another such harm that the other is helpless and in
danger, and a reasonable man would recognize the necessity of aiding
or protecting him to avert further harm, the actor is under a duty to
take such action even though he may not have been originally at fault.
This is true even though the contributory negligence of the person
injured would disable him from maintaining any action for the
original harm resulting from the actor’s original conduct.
Illustration 2. A, a “hit and run driver,” negligently or innocently
runs over B, inflicting serious wounds. Although A knows B’s
condition, he drives away and leaves B lying in the road. The weather
is exceedingly cold, and B, unable to move, contracts pneumonia
from the exposure. A is subject to liability to B for the illness,
whether or not he would have been liable for the original wounds.
Can these provisions be squared with Yania v. Bigan?

3. Overzealous contestants. In Weirum v. RKO Radio General, Inc., 539
P.2d 36 (Cal. 1975), the defendant was the owner of KHJ, a Los Angeles
radio station. KHJ sponsored a contest in which one of its disc jockeys, “the
Real Don Steele,” traveled in a conspicuous red automobile to a number of
locations in the metropolitan area. Steele’s location was announced on the
air, and the first person to locate him and answer a simple question or
possess a certain item of clothing received a cash prize. Two teenagers
trying to follow Steele from one location to the next raced each other along
the freeway at 80 miles per hour; they forced another car off the road,
causing it to overturn and killing its driver. The driver’s family sued KHJ
(as well as the teenage drivers, one of whom had gone on to catch Steele
and collect a prize). The jury brought in a verdict for the plaintiffs, and KHJ
appealed from an order denying its motion for judgment notwithstanding
the verdict. The California Supreme Court affirmed:
Defendant, relying upon the rule stated in section 315 of the

Restatement Second of Torts, urges that it owed no duty of care to
decedent. The section provides that, absent a special relationship, an
actor is under no duty to control the conduct of third parties. As
explained hereinafter, this rule has no application if the plaintiff’s
complaint, as here, is grounded upon an affirmative act of defendant
which created an undue risk of harm.
The rule stated in section 315 is merely a refinement of the
general principle embodied in section 314 that one is not obligated to
act as a “good samaritan.” This doctrine is rooted in the common law
distinction between action and inaction, or misfeasance and
nonfeasance.
Misfeasance exists when the defendant is responsible for making
the plaintiff’s position worse, i.e., defendant has created a risk.
Conversely, nonfeasance is found when the defendant has failed to
aid plaintiff through beneficial intervention. As section 315
illustrates, liability for nonfeasance is largely limited to those
circumstances in which some special relationship can be established.
If, on the other hand, the act complained of is one of misfeasance, the
question of duty is governed by the standards of ordinary care
discussed above.
Here, there can be little doubt that we review an act of
misfeasance to which section 315 is inapplicable. Liability is not
predicated upon defendant’s failure to intervene for the benefit of
decedent but rather upon its creation of an unreasonable risk of harm
to him.
What is the superficial similarity between Weirum v. RKO General, Inc.

and Yania v. Bigan? What is the distinction between them?
4. The obstinate engineer. In Globe Malleable Iron & Steel Co. v. New
York Central & H.R. R. Co., 124 N.E. 109 (N.Y. 1919), a fire broke out in
the plaintiff’s factory in Syracuse. The defendant’s freight train, 54 cars and
2,160 feet in length, was slowly approaching from the west; the railroad
tracks ran past the plaintiff’s plant. The engineer saw the fire from a mile
away but continued forward at a rate of two to six miles per hour.
Meanwhile the Syracuse fire department was trying to reach the fire; a hose
cart was on its way with its gong clanging loudly. Just as the cart reached
the railroad crossing en route to the plaintiff’s plant, the defendant’s train
came through and blocked the way. The hose cart turned east and headed
for the next crossing, but again the train arrived just before the cart — as
the engineer was able to observe from the train. A second hose cart tried to
cross the tracks still further to the east, but once more the train made it to
the intersection just before the cart. The captain of the hose cart called to
someone on the engine asking why they did not stop and let the hose cart
through. That person’s lips were seen to move in apparent reply, but what
he said was not heard.
The plaintiff’s evidence was that the train would have needed only 30 or
40 feet to stop. Alternatively, the train could have stopped anyplace and in
two minutes a separation could have been created to allow the hose carts to
pass. Instead 15 minutes passed before the train cleared the intersections
leading to the plaintiff’s plant, during which time the plant suffered
extensive damage. The plaintiff sued the railroad for negligence and won a
jury verdict. The Appellate Division reversed, dismissing the plaintiff’s
complaint; the New York Court of Appeals again reversed, reinstating the
verdict. Said the court:
Steam railways with tracks on or across streets in the city of Syracuse

owe some duty to the public. The street is still a street and is still
devoted to street uses. Its legitimate function may not be
unreasonably impaired. As to travelers upon it the railway necessarily
has the right of way. But an emergency may arise which requires the
temporary reversal of this rule. Knowing of such a condition the
railway should yield what otherwise would be its rights. It should so
manage its trains as not to increase the public hazard. A fair use of its
tracks in view of its own interests and those of the public is what it is
entitled to. Nothing more.
What is the distinction between the Globe Malleable Iron & Steel Co.
case and Yania v. Bigan?
5. A Clockwork Orange. In Soldano v. O’Daniels, 141 Cal. App. 3d 443
(1983), the defendant, O’Daniels, owned Happy Jack’s Saloon; he also
owned the Circle Inn, a restaurant across the street. One day a patron of
Happy Jack’s entered the Circle Inn and informed the bartender that a man
had been threatened at the saloon. He requested that the bartender either call
the police or allow him to use the Circle Inn phone to do so himself. The
phone was in a position where the patron could have used it without
inconvenience to anyone, but the bartender refused both requests. The man
being threatened at the saloon, Darrell Soldano, was soon shot and killed.
Soldano’s son brought suit against the owner of the two establishments. The
trial court dismissed his complaint; the court of appeals reversed:
The distinction between malfeasance and nonfeasance, between

active misconduct working positive injury and failure to act to
prevent mischief not brought on by the defendant, is founded on “that
attitude of extreme individualism so typical of anglo-saxon legal
thought.” Bohlen, The Moral Duty to Aid Others as a Basis of Tort
Liability, part I, (1908) 56 U. Pa. L. Rev. 217, 219-220. . . .
Here there was no special relationship between the defendant and
the deceased. It would be stretching the concept beyond recognition
to assert there was a relationship between the defendant and the
patron from Happy Jack’s Saloon who wished to summon aid. But
this does not end the matter. It is time to re-examine the common law
rule of nonliability for nonfeasance in the special circumstances of
the instant case. . . .
[The court reviewed evidence of the public policy in favor of
encouraging people to report crimes.] No rule should be adopted
which would require a citizen to open up his or her house to a
stranger so that the latter may use the telephone to call for emergency
assistance. As Mrs. Alexander in Anthony Burgess’ A Clockwork
Orange learned to her horror, such an action may be fraught with
danger. It does not follow, however, that use of a telephone in a
public portion of a business should be refused for a legitimate
emergency call. Imposing liability for such a refusal would not
subject innocent citizens to possible attack by the “good samaritan,”
for it would be limited to an establishment open to the public during
times when it is open to business, and to places within the
establishment ordinarily accessible to the public. Nor would a
stranger’s mere assertion that an “emergency” situation is occurring
create the duty to utilize an accessible telephone because the duty
would arise if and only if it were clearly conveyed that there exists an
imminent danger of physical harm. Such a holding would not involve
difficulties in proof, overburden the courts or unduly hamper self-
determination or enterprise.
What is the distinction between Soldano v. O’Daniels and Yania v.

Bigan? What is the analogy between Soldano v. O’Daniels and Globe
Malleable Iron & Steel Co. v. New York Central & H.R. R. Co. (the L case
of the train that slowly drove past the plaintiff’s plant as it burned)?
6. The Sting. In Stangle v. Fireman’s Fund Insurance Co., 198 Cal. App.
3d 971 (1988), the plaintiff purchased a diamond ring in Honolulu in
exchange for a $30,000 promissory note that was due in six months. The
plaintiff testified that he bought the ring “to hold it for a short period of
time and sell it for a profit.” He asked one Barnabas Britt, a former
girlfriend, to attempt to sell the ring in San Francisco, and told her that she
would be entitled to any sale proceeds in excess of $45,000. Britt placed an
advertisement offering to sell the ring for $60,000. She was contacted by a
man who identified himself as Barry Richards; she met with him and agreed
to sell the ring to his principal for $50,000. At Richards’s direction, the sale
was to take place the next day in the defendant’s office building at One
Market Plaza in San Francisco. Richards explained to Britt that “the person
that he represented wanted the ring photographed and insured before he left
the premises with it.”
On the next day Britt retrieved the ring from a safe deposit box and met
Richards on the fourteenth floor of the defendant’s building. While Britt
wrote out a bill of sale, Richards asked for the ring to have it photographed.
Richards then disappeared, and neither he nor the ring ever was seen again.
Britt testified that a friend of hers “was right behind” Richards when Britt
went to the building’s receptionist to call for assistance. Britt explained to
the receptionist that the ring had been stolen, but the receptionist put her
hand down on the phone and said, “I’m sorry. This is for building use only.”
Britt reported the theft to a security attendant and the police soon were
called; but by then it was too late to apprehend the thief. The plaintiff
(Britt’s ex-boyfriend, who had asked her to sell the ring) sued the defendant
on the theory that it had a duty, after being informed of the theft in progress,
to make its telephone available to Britt. At the close of trial the defendant
was granted a directed verdict. The court of appeals affirmed.
What is the distinction between Stangle v. Fireman’s Fund Insurance
Co. and Soldano v. O’Daniels (the L case where the bartender would not
allow the phone to be used to report an assault)? What rule emerges from
Stangle and Soldano? How might you explain the relationship between that
rule and the principles underlying Globe Malleable Iron & Steel Co. v. New
York Central & H.R. R. Co.?
7. Theoretical perspectives. The question of whether the law ought to
impose duties on strangers to rescue one another in some circumstances has
generated a great deal of scholarly commentary. Here are some examples.
a. Ames, Law and Morals, 22 Harv. L. Rev. 97 (1908):
It remains to consider whether the law should ever go so far as to

give compensation or to inflict punishment for damage which would
not have happened but for the wilful inaction of another. I exclude
rare cases in which, by reason of some relation between the parties
like that of father and child, nurse and invalid, master and servant and
others, there is a recognized legal duty to act. In the case supposed
the only relation between the parties is that both are human beings.
As I am walking over a bridge a man falls into the water. He cannot
swim and calls for help. I am strong and a good swimmer, or, if you
please, there is a rope on the bridge, and I might easily throw him an
end and pull him ashore. I neither jump in nor throw him the rope,
but see him drown. Or, again, I see a child on the railroad track too
young to appreciate the danger of the approaching train. I might
easily save the child, but do nothing, and the child, though it lives,
loses both legs. Am I guilty of a crime, and must I make
compensation to the widow and children of the man drowned and to
the wounded child? Macaulay, in commenting upon his Indian
Criminal Code, puts the case of a surgeon refusing to go from
Calcutta to Meerut to perform an operation, although it should be
absolutely certain that this surgeon was the only person in India who
could perform it, and that, if it were not performed, the person who
required it would die. . . .
In the first three illustrations, however revolting the conduct of
the man who declined to interfere, he was in no way responsible for
the perilous situation, he did not increase the peril, he took away
nothing from the person in jeopardy, he simply failed to confer a
benefit upon a stranger. As the law stands today there would be no
legal liability, either civilly or criminally, in any of these cases. The
law does not compel active benevolence between man and man. It is
left to one’s conscience whether he shall be the good Samaritan or
not.
But ought the law to remain in this condition? Of course any
statutory duty to be benevolent would have to be exceptional. The
practical difficulty in such legislation would be in drawing the line.
But that difficulty has continually to be faced in the law. We should
all be better satisfied if the man who refuses to throw a rope to a
drowning man or to save a helpless child on the railroad track could
be punished and be made to compensate the widow of the man
drowned and the wounded child. We should not think it advisable to
penalize the surgeon who refused to make the journey. These
illustrations suggest a possible working rule. One who fails to
interfere to save another from impending death or great bodily harm,
when he might do so with little or no inconvenience to himself, and
the death or great bodily harm follows as a consequence of his
inaction, shall be punished criminally and shall make compensation
to the party injured or to his widow and children in case of death.
b. William M. Landes & Richard A. Posner, Economics of Rescue

Law:1
Given that legal intervention and altruism are substitute methods of
encouraging the internalization of the external benefits of rescues in
emergency situations, the question naturally arises whether studying
the pattern of legal intervention in rescues might provide a clue to
variations over time or across societies in the level of altruism. Many
foreign countries . . . impose liability for failure to rescue. It may be
significant that no law imposing liability for nonrescue has been
found prior to 1867. This may reflect the fact that in a pre-urban
society reciprocal altruism may provide an adequate substitute for
legal coercion to rescue. Another suggestive feature is the

predominance of fascist and communist states among the early
adopters of liability for nonrescue. Liability for failure to rescue is a
form of conscription for social service which would seem congenial
to a state that already regards its citizens’ time as public rather than
private property. It may not be accidental that the first . . . state to
impose liability for nonrescue is Vermont, which has the third highest
tax rate (after Alaska and New York) in the United States.
c. Bender, A Lawyer’s Primer on Feminist Theory and Tort, 38 J.

Legal Educ. 34-35 (1988):
How would [the] drowning-stranger hypothetical look from a new
legal perspective informed by a feminist ethic based upon notions of
caring, responsibility, interconnectedness, and cooperation? . . . When
our legal system trains us to understand the drowning-stranger story
as a limited event between two people, both of whom have interests
at least equally worth protecting, and when the social ramifications
we credit most are the impositions on personal liberty of action, we
take a human situation and translate it into a cold, dehumanized
algebraic equation. We forget that we are talking about human death
or grave physical harms and their reverberating consequences when
we equate the consequences with such things as one person’s
momentary freedom not to act. People are decontextualized for the
analysis, yet no one really lives an acontextual life. What gives us the
authority to take contextual, actual problems and encode them in a
language of numbers, letters, and symbols that represents no reality in
any actual person’s life? . . . Why should our autonomy or freedom
not to rescue weigh more heavily in law than a stranger’s harms and
the consequent harms to people with whom she is interconnected?
B. DUTIES ARISING FROM UNDERTAKINGS
Sometimes a defendant who had no duty to a stranger may acquire a duty

by undertaking to provide assistance or otherwise voluntarily assuming
responsibilities. This section considers the contours of the principle: When
is an “undertaking” sufficiently extensive to create a duty of care?
Hurley v. Eddingfield
59 N.E. 1058 (Ind. 1901)
[The plaintiff sued the defendant, a physician, seeking $10,000 for the
wrongful death of his intestate. The trial court sustained the defendant’s
demurrer to the complaint, and the Indiana Supreme Court affirmed:]
Baker, J. — The material facts alleged may be summarized thus: At and
for years before decedent’s death appellee was a practicing physician at
Mace, in Montgomery county, duly licensed under the laws of the state. He
held himself out to the public as a general practitioner of medicine. He had
been decedent’s family physician. Decedent became dangerously ill, and
sent for appellee. The messenger informed appellee of decedent’s violent
sickness, tendered him his fee for his services, and stated to him that no
other physician was procurable in time, and that decedent relied on him for
attention. No other physician was procurable in time to be of any use, and
decedent did rely on appellee for medical assistance. Without any reason
whatever, appellee refused to render aid to decedent. No other patients were
requiring appellee’s immediate service, and he could have gone to the relief
of decedent if he had been willing to do so. Death ensued, without
decedent’s fault, and wholly from appellee’s wrongful act. The alleged
wrongful act was appellee’s refusal to enter into a contract of employment.
Counsel do not contend that, before the enactment of the law regulating the
practice of medicine, physicians were bound to render professional service
to every one who applied. The act regulating the practice of medicine
provides for a board of examiners, standards of qualification, examinations,
licenses to those found qualified, and penalties for practicing without
license. The act is a preventive, not a compulsive, measure. In obtaining the
state’s license (permission) to practice medicine, the state does not require,
and the licensee does not engage, that he will practice at all or on other
terms than he may choose to accept. Counsel’s analogies, drawn from the
obligations to the public on the part of innkeepers, common carriers, and
the like, are beside the mark.
NOTES
1. Villains of the common law. What is the analogy between Hurley v.

Eddingfield and Yania v. Bigan (the NL case where the defendant talked the
plaintiff’s decedent into jumping into a pool of water and then watched him
drown)? Which is the more difficult case? What facts might you use in the
Hurley case to argue that it is a stronger case for liability than Yania?
2. Medical misfeasance. In O’Neill v. Montefiore Hospital, 11 A.D.2d
132 (N.Y. App. Div. 1960), the plaintiff awoke at about 5:00 A.M. and saw
her husband, John O’Neill, suffering from symptoms of a heart attack. She
slowly walked him to a hospital three blocks away. When they arrived at
the emergency room, the nurse on duty said that the hospital did not accept
patients with their insurance plan. The nurse telephoned a doctor — Dr.
Craig — who was affiliated with the O’Neills’ insurance plan and passed
the phone to Mr. O’Neill. The plaintiff’s evidence was that after discussing
his symptoms, Craig advised O’Neill to go home and return to the hospital
at 8:00, when a doctor who was affiliated with O’Neill’s insurance plan
would be available. O’Neill’s wife pressed the nurse to get immediate help
for her husband, but the nurse refused and likewise advised the O’Neills to
come back at 8:00. Mr. O’Neill responded that “I could be dead by 8:00.”
The O’Neills nevertheless headed home. When they arrived there, Mr.
O’Neill collapsed to the floor and died. Mrs. O’Neill sued Craig and the
hospital. The trial court dismissed the plaintiff’s claims at the close of the
evidence, and she appealed.
Held, for the plaintiff, that her claims should not have been dismissed
and that there must be a new trial. Said the court: “The law is settled that a
physician who undertakes to examine or treat a patient and then abandons
him, may be held liable for malpractice.” The court said it was for a jury to
decide whether the nurse undertook to help Mr. O’Neill.
What is the distinction between O’Neill v. Montefiore Hospital and
Hurley v. Eddingfield (the NL case of the doctor who refused to aid the
plaintiff’s decedent)? What is the distinction between O’Neill v. Montefiore
Hospital and Yania v. Bigan?
3. Botched rescue. In United States v. Lawter, 219 F.2d 559 (5th Cir.
1955), the plaintiff (Lawter), his wife, and two other relatives were aboard a
16-foot skiff in Biscayne Bay, Florida, when a wave drowned out their
motor and further waves swamped their boat. The four passengers were cast
into the water about 500 yards from shore; the depth of the bay was about
four feet, but the wind was strong and the waves were rough. A U.S. Coast
Guard helicopter saw the Lawters during a routine patrol flight, noted that
there were no boats or vessels nearby to help them, and attempted a rescue.
A cable, operated by a man named Antle, was dropped to the plaintiff’s
wife. Antle began to draw the cable back up to the helicopter before Mrs.
Lawter could get herself into the sling attached to the end of it; she was
holding on with just her hands. She was raised until her head and shoulders
were above the bottom of the door of the helicopter, at which point Antle
stopped the cable. Mrs. Lawter had not been raised high enough to be
brought into the cabin, however, and before the cable could be raised
further she lost her grip and fell into the sea, suffering fatal injuries.
Mrs. Lawter’s husband sued the United States, claiming that his wife’s
death was caused by the Coast Guard’s negligence in allowing Antle — the
most inexperienced member of the crew — to operate the cable. The district
court brought in a verdict for the plaintiff. The defendant appealed, arguing
that the plaintiff’s complaint did not state a good cause of action and that
the evidence was insufficient to support the verdict. The court of appeals
affirmed, stating that the Coast Guard
not only placed the deceased in a worse position than when it took
charge, but negligently brought about her death, and it is hornbook
law that under such circumstances the law imposes an obligation
upon everyone who attempts to do anything, even gratuitously, for
another not to injure him by the negligent performance of that which
he has undertaken.
What is the analogy between United States v. Lawter and O’Neill v.

Montefiore Hospital (the L case where the doctor told the plaintiff’s
decedent to come back to the hospital in a few hours)?
4. The Sea Captain. In Frank v. United States, 250 F.2d 178 (3d Cir.
1957), the plaintiff’s decedent, Daniel Frank, was a passenger aboard a 30-
foot cabin cruiser, the Sea Captain, engaged in a fishing expedition off the
New Jersey coast. The cruiser became disabled because of engine failure
and anchored about 400 yards off Sandy Hook. The weather was clear but
windy, and a strong tidal rip running toward the shore created breaking
waves four feet or more in height. All but one of the Coast Guard boats
suitable for towing the disabled cruiser were out assisting other craft in the
rough seas. The only available boat, a heavy motor lifeboat, was dispatched
to assist the disabled cruiser and took it in tow.
During the tow Frank attempted to walk along the deck of his own boat,
holding a handrail as he proceeded. The boat heeled sharply, the handrail
broke, and Frank fell into the sea. The Coast Guard crew immediately cut
the tow line and tried to rescue Frank, but he drowned before they could
reach him. Frank’s administratrix sued the United States, claiming that
Frank drowned because the Coast Guard’s boat had a defective reverse gear
which delayed it in reaching Frank after he fell into the sea; because the life
rings in the lifeboat were so secured that they could not immediately be
thrown overboard; and because the crew of the lifeboat was less than the
customary Coast Guard complement. (She did not claim that the Coast
Guard was responsible for Frank’s fall overboard.) The district court found
for the defendant, and the court of appeals affirmed:
If the United States is liable at all for negligence of the Coast Guard
in connection with an attempted rescue operation, the responsibility
of this public agency rises no higher than that of a private salvor. . . .
An obligation to render aid may grow out of a relationship such as
master and servant or ship and crewman. But there is no such
relational basis for a duty here. . . . We have only a diligent rescue
effort which proved ineffectual for lack of adequate equipment,
preparation or personnel. For such ineffectual effort a private salvor
is not liable.
What is the distinction between Frank v. United States and United

States v. Lawter (the L case of the bungled helicopter rescue by the Coast
Guard)?
5. The good Samaritan doctrine. In Ocotillo West Joint Venture v.
Superior Court, 844 P.2d 653 (Ariz. 1993), two men named Zylka and
Easley spent an afternoon golfing and drinking at the Ocotillo Golf Course.
Two Ocotillo employees took away Zylka’s car keys because he appeared to
be intoxicated. Easley then stepped forward and offered to drive Zylka
home. With that assurance, and observing Easley’s apparent lack of
impairment, the employees gave Zylka’s keys to Easley. When the two men
reached the parking lot, Easley gave the keys back to Zylka. Zylka left the
golf course in his own automobile, then suffered fatal injuries in a one-car
accident. Zylka’s family brought a lawsuit against Ocotillo; Ocotillo
attempted to bring Easley into the case, alleging that he was at least
partially at fault because he volunteered to drive Zylka home and then gave
the car keys back to him. The state district court dismissed Ocotillo’s
attempt to add Easley. The Arizona Supreme Court reversed, relying on the
“good Samaritan” doctrine laid out in §§323 and 324 of the Restatement
(Second) of Torts:
§323. NEGLIGENT PERFORMANCE OF UNDERTAKING TO RENDER SERVICES
One who undertakes, gratuitously or for consideration, to render

services to another which he should recognize as necessary for the
protection of the other’s person or things, is subject to liability to the
other for physical harm resulting from his failure to exercise
reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such
harm, or
(b) the harm is suffered because of the other’s reliance upon the
undertaking.
§324. DUTY OF ONE WHO TAKES CHARGE OF ANOTHER WHO IS HELPLESS

One who, being under no duty to do so, takes charge of another
who is helpless adequately to aid or protect himself is subject to
liability to the other for any bodily harm caused to him by (a) the
failure of the actor to exercise reasonable care to secure the safety of
the other while within the actor’s charge, or (b) the actor’s
discontinuing his aid or protection, if by so doing he leaves the other in
a worse position than when the actor took charge of him.
Said the court:
When Easley took charge of Zylka for reasons of safety he thereby

assumed a duty to use reasonable care. Zylka was too drunk to drive.
Under one version of the facts Ocotillo’s employees had taken charge
of Zylka and effectively stopped him from driving. Easley’s offer
deterred the employees from their efforts to keep Zylka out of his
automobile. Rather than use reasonable care to drive Zylka home or
make alternative arrangements, Easley discontinued his assistance
and put Zylka in a worse position than he was in when Ocotillo’s
employees had possession of his keys. A reasonable fact finder could
conclude that Easley’s actions contributed to Zylka’s death, rendering
Easley wholly or partially at fault.
Which of the Restatement provisions the court cited seems most

applicable to Easley? What is the analogy between Ocotillo West Joint
Venture v. Superior Court and United States v. Lawter (the L case of the
bungled helicopter rescue by the Coast Guard)?
6. Following the leader. In Cuppy v. Bunch, 214 N.W.2d 786 (S.D.
1974), the defendants, Bunch and White, spent an afternoon fishing and
drinking together. At the end of the day, White drove the two of them from
the pond back to the town of Belle Fourche (where Bunch’s car was
parked); Bunch slept in White’s car. When they arrived in Belle Fourche,
White awakened Bunch with some difficulty. When questioned by White
about his condition, Bunch said that although he did not feel well, he did
not want to leave his vehicle in Belle Fourche. White advised Bunch to
“follow me” or “just stay behind me.” White and Bunch then left Belle
Fourche, each in his own car, with White in front. Witnesses later testified
that Bunch was swerving dangerously as he followed White. At one point
Bunch swerved across the center line and into the path of the plaintiffs’
oncoming car, causing damages for which the plaintiffs sued both Bunch
and White. After a trial the court gave judgment to the plaintiffs against
both defendants. The South Dakota Supreme Court reversed the judgment
against White, holding that the evidence was insufficient to support a
finding that White owed a duty to the plaintiffs to control Bunch. The court
quoted the Restatement (Second) of Torts, §315:
There is no duty so to control the conduct of a third person as to

prevent him from causing physical harm to another unless (a) a
special relation exists between the actor and the third person which
imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which
gives to the other a right to protection.
Said the court:
The language in Comment b. of [Restatement] sec. 315 is

appropriate: “In the absence of either one of the kinds of special
relations described in this Section, the actor is not subject to liability
if he fails, either intentionally or through inadvertence, to exercise his
ability so to control the actions of third persons as to protect another
from even the most serious harm. This is true although the actor
realizes that he has the ability to control the conduct of a third person,
and could do so with only the most trivial of efforts and without any
inconvenience to himself. Thus if the actor is riding in a third
person’s car merely as a guest, he is not subject to liability to another
run over by the car even though he knows of the other’s danger and
knows that the driver is not aware of it, and knows that by a mere
word, recalling the driver’s attention to the road, he would give the
driver an opportunity to stop the car before the other is run over.”
The facts do not, in our opinion, indicate that White did exercise
or ever was capable of exercising any control over Bunch at any time
relevant to this case. Nor do the facts show that White undertook to
assist Bunch which, therefore, makes sec. 324A [of the Second
Restatement] inapplicable.
Is there a satisfactory distinction between Cuppy v. Bunch and Ocotillo
West Joint Venture v. Superior Court (the L case where the defendant gave
his drunken friend his car keys)? What is the superficial similarity between
Cuppy v. Bunch and Weirum v. RKO Radio General (the L case involving
the “Real Don Steele”)? What is the distinction between them?
7. Cat scratch fever (problem). In Marsalis v. La Salle, 94 So. 2d 120
(La. App. 1957), the plaintiffs, a couple named Marsalis, were shopping in
the defendant’s store when Mrs. Marsalis was scratched by the defendant’s
Siamese cat. Mr. Marsalis asked the defendant to keep the cat under
observation for 14 days until it could be determined whether the animal was
rabid. The defendant agreed, but took no special precautions to keep the cat
confined. Four days later the cat escaped and did not return for about a
month. Two days after she had sustained the injuries, Mrs. Marsalis sought
advice from a doctor; when he later learned that the cat was away without
leave, he administered the Pasteur treatment to Mrs. Marsalis. She turned
out to be extremely allergic to the serum and suffered ill effects. (It was
later determined that the cat was not rabid.) Mr. and Mrs. Marsalis sued the
defendant, who in turn argued that he owed no duty to them. What result?
8. Promises to send help (problem). In Bloomberg v. Interinsurance
Exchange of the Automobile Club of Southern California, 207 Cal. Rptr.
853 (Cal. App. 1984), the plaintiffs’ 16-year-old son was a passenger in a
friend’s automobile that developed engine trouble on the freeway one night.
At about 1:30 A.M., the driver pulled over to a highway callbox. The
California Highway Patrol put his call through to the defendant Auto Club,
which said it would send a tow truck. The boys returned to the car to wait.
The defendant dispatched a truck, but it was unable to find the boys’ car. At
about 2:25, a drunk driver crashed into the boys’ car, causing fatal injuries
to the plaintiffs’ son. The plaintiffs sued the Auto Club. The Club moved to
have the complaint dismissed on the ground that it owed the plaintiffs’
decedent no duty. What result would you expect? How would you use the
cases considered in this section to support arguments for and against the
existence of a duty on these facts?
C. SPECIAL RELATIONSHIPS
In cases where the defendant escapes liability for “nonfeasance,” the
plaintiff and defendant typically are strangers or nearly so. A different result
may obtain if the parties have a “special relationship” such as innkeeper and
guest or captain and crew; doing nothing against the backdrop of such a
relationship may cause the defendant to be held liable if the plaintiff is
injured as a result. You may recall that some of the cases already
considered, such as Weirum v. RKO Radio General and Soldano v.
O’Daniels, have made passing reference to this doctrine. As we shall see, it
occasionally overlaps with the rules on undertakings considered in the
previous part of the chapter; sometimes the creation of a special relationship
resembles an undertaking, and in those instances courts may invoke either
principle to support the same result.
1. Duties to Rescue or Assist Others
1. Ordeal at sea. In Petition of Trans-Pacific Fishing & Packing Co.,

152 F. Supp. 44 (W.D. Wash. 1957), three crewmen on a tuna fishing boat
were washed overboard by a wave off the coast of Nicaragua. The court
found that “[t]he seas were rough, the vessel was undergoing considerable
labor, some shorting out of electrical ignition and lighting circuits resulting
in small but difficult-to-control fires were being experienced in the engine
room due to water leaking through a broken port and also through the
deck.” The captain said he did not search for the three men because it was
dangerous, the vessel was hard to steer in the heavy seas, the weather was
bad, and the engineer advised against it. He did send out a “May Day” call
for assistance, but to no effect.
The three men swept overboard stayed briefly within sight of each
other, then separated. One of them was rescued by a passing steamship after
14 hours, during which time, the court found, he experienced the “nerve-
racking ordeal” of defending himself against “the savage threats of a large
ocean going turtle which he finally overcame by thrusting his fingers in the
turtle’s eyes, — and then ‘she go away’, as he piteously testified.” A second
man was rescued by fishermen after he had spent 56 hours at sea drifting
and treading water; he was hospitalized for shock and for “numerous bites
of small fishes which caused much of his skin to be lost and damaged.” The
third man never was found. The trial court awarded damages to the two
surviving men and to the mother of the third:
It is the duty of every shipowner and ship operator to use every

possible available means to rescue from the sea any and all persons
and members of its crew who may be unfortunately washed
overboard. In this instance the skipper and all those aboard at the time
and the owner failed and neglected to do that, failed to use due care
or to make any effort by turning the vessel about to attempt rescue
other than to inquire of the chief engineer as to why it could not be
done, failed to keep the vessel in condition so that she could be
maneuvered and turned around and search for those who had been
washed overboard, failed to throw out any sort of a lifeline or any
kind of a floating object, failed to cast into the water any skiff or
debris or life rings or other lifesaving equipment, all of which
constituted negligence on the part of the owner of the vessel and the
vessel’s skipper[.]
What is the distinction between this case and Yania v. Bigan (the NL
case where the defendant stood and watched as the plaintiff’s decedent
drowned)? Be precise about why the factual differences between the cases
lead to different legal results. If you have read The Margharita (in Chapter
3 on the negligence standard and breach of duty), what is the distinction
between that case and this one?
2. Common carriers. In Brosnahan v. Western Air Lines, 892 F.2d 730
(8th Cir. 1989), the plaintiff, Fred Brosnahan, took his seat in row 16 on one
of the defendant’s flights from Las Vegas to Rapid City. Another passenger
approached and made several attempts to fit his leather garment bag in the
overhead compartment above Brosnahan’s seat. During one last attempt, the
passenger dropped the bag on Brosnahan’s head, causing him various
injuries. Brosnahan sued the airline, claiming that a flight attendant should
have been stationed in the coach cabin to assist passengers with carry-on
items; he argued that such an attendant would have noticed the passenger
struggling with his garment bag and would have intervened to prevent the
accident. The jury brought in a verdict for Brosnahan, awarding him
$74,600. The trial court gave judgment notwithstanding the verdict to the
defendant. The court of appeals reversed and reinstated the jury’s verdict:
An airline’s duty to supervise the boarding process for the protection
of its passengers continues until boarding is completed, and the
danger created by an airline’s breach of that duty does not abate until
all passengers are seated with their carry-on luggage properly stowed.
Brosnahan was injured when the forces created by the airline’s
negligence were still in continuous operation.
3. Duties at airports. In Boyette v. Trans World Airlines, 954 S.W.2d

350 (Mo. App. 1997), the plaintiff’s decedent, one Rutherford, booked a
trip from Memphis to Sioux City on TWA. The trip involved a change of
planes in St. Louis. Rutherford drank a half-dozen alcoholic beverages
during the first leg of the trip. On his way through the terminal in St. Louis
to reach his connecting flight, Rutherford stole an electric golf cart and
began driving around the gate area. A TWA gate agent, Callier, chased
Rutherford on foot until he was cornered in a nearby alcove. Callier could
not pinpoint Rutherford’s location and called for help. One of Rutherford’s
friends found him and helped him hide in a trash chute; Rutherford climbed
in too far, however, and fell into a trash compactor ten feet below on the
tarmac. Rutherford’s friend told this to Callier, who by then had been joined
by a TWA flight attendant and a police officer. They observed Rutherford in
the trash compactor. He was unresponsive and appeared to be injured.
Callier headed for the tarmac to get him. Soon, however, Rutherford’s
presence in the compactor activated the machine’s electric eye, and he was
compacted before Callier or his companions could locate the deactivation
switch.
The administrator of Rutherford’s estate brought suit against the airline,
among others, claiming that his death was attributable to the defendants’
negligence in chasing him into the alcove, in failing to take effective steps
to protect him once he was found in the compactor, and in failing to post
warnings that the chute led to the compactor. The airline defended in part
on the ground that they owed no duty to Rutherford. The trial court gave
summary judgment to the airline, and the court of appeals affirmed:
Missouri has long recognized a special relationship exists between a

common carrier, like [the defendant airline], and its passengers. “A
common carrier has a duty to exercise the highest degree of care to
safely transport its passengers and protect them while in transit.” But
this duty exists only so long as the special relationship of passenger
and carrier exists. The carrier discharges its duty once the passenger
reaches a reasonably safe place. In the instant case it is without
dispute Rutherford safely reached the airport. Thus, [the defendant]
fulfilled the duty it owed Rutherford as a common carrier once he
reached the airport terminal. At that point [the defendant’s] duty as a
common carrier was discharged.
What is the distinction between Boyette v. Trans World Airlines and

Brosnahan v. Western Air Lines? Boyette may seem an easy case because
you may doubt that TWA should be held responsible for Rutherford’s
imprudent behavior. Focus, therefore, on the ground the court used to
dispose of the case: the absence of a duty. What does this mean? What
assumptions are you entitled to make about the facts of the case given its
procedural posture? What would the legal result have been if Callier, on the
way out the door as he headed for the tarmac, accidentally had bumped into
the switch that turned on the compactor? What result if he had seen the
compactor’s deactivation switch but decided not to use it?
4. Social hosts. In Charles v. Seigfried, 651 N.E.2d 154 (Ill. 1995), the
plaintiff alleged that Seigfried, an adult, hosted a party where Lynn Sue
Charles, 16 years old, was served alcoholic beverages. Seigfried knowingly
permitted Charles to become intoxicated (her blood alcohol level later was
found to be .299) and knowingly permitted her to drive herself home. She
was killed in an auto accident. Her administrator sued Seigfried. The trial
court dismissed the plaintiff’s complaint; the Illinois Supreme Court
affirmed:
The historic common law rule, adhered to in this State, is that there is
no cause of action for injuries arising out of the sale or gift of
alcoholic beverages. The rationale underlying the rule is that the
drinking of the intoxicant, not the furnishing of it, is the proximate
cause of the intoxication and the resulting injury. . . .
[If a duty were imposed here] [w]e are realistic enough to know
that in virtually every instance where an underage driver is involved
in an alcohol-related car accident, a clever plaintiff’s attorney would
drag into court any and all adults who may qualify as a social host.
The focus at trial would then shift from the drunk driver to the
alleged social hosts. Accidents following a wedding, for example,
would include the typical targets of the bride, the groom, the parents
of the bride and groom, the servers, and anyone else who may have
handed the underage person a drink. Ironically, these “social hosts”
could be held responsible for the underage person’s drinking even if
that person’s parents were also in attendance. Courts and jurors would
then be faced with evaluating the social host’s conduct. For example:
Did the social host do enough to stop the underage drinker from his
or her own illegal actions? Did the host check identification to
determine the guests’ ages? Should the host have allowed the guests
to serve themselves? Should the host have allowed underage persons
to be present? Could the host have done more to prevent a guest’s
departure? Did the host know that the guest was visibly or obviously
intoxicated? We are unwilling to open up this “Pandora’s Box” of
unlimited liability through judicial decision. If civil liability is to be
imposed in these situations, the legislature should carefully delineate
the standards of conduct expected of social hosts.
What is the distinction between Charles v. Seigfried and Ocotillo West

Joint Venture v. Superior Court (the L case from the section on undertakings
where the drunken decedent was given his car keys by a friend)?
5. The upheaval of prior norms. Many states (including Illinois) have
Dram Shop Acts that forbid the sale of alcohol to already intoxicated
customers; most of them impose civil liability on a negligent seller when
such a customer goes on to injure a third party. As for social hosts, since the
mid-1980s some courts — though still a minority — have been departing
from the common law rule described in Charles v. Seigfried. One of the
landmark decisions was Kelly v. Gwinnell, 476 A.2d 1219 (N.J. 1984),
where the Supreme Court of New Jersey imposed liability on a social host
whose drunken guest caused the death of a third party in an auto accident.
Said the court:
The dissent’s emphasis on the financial impact of an insurance

premium increase on the homeowner or the tenant should be
measured against the monumental financial losses suffered by society
as a result of drunken driving. By our decision we not only spread
some of that loss so that it need not be borne completely by the
victims of this widespread affliction, but, to some extent, reduce the
likelihood that the loss will occur in the first place. Even if the
dissent’s view of the scope of our decision were correct, the
adjustments in social behavior at parties, the burden put on the host to
reasonably oversee the serving of liquor, the burden on the guests to
make sure if one is drinking that another is driving, and the burden on
all to take those reasonable steps even if, on some occasion, some
guest may become belligerent: those social dislocations, their
importance, must be measured against the misery, death, and
destruction caused by the drunken driver. Does our society morally
approve of the decision to continue to allow the charm of
unrestrained social drinking when the cost is the lives of others,
sometimes of the guests themselves?
If we but step back and observe ourselves objectively, we will see
a phenomenon not of merriment but of cruelty, causing misery to
innocent people, tolerated for years despite our knowledge that
without fail, out of our extraordinarily high number of deaths caused
by automobiles, nearly half have regularly been attributable to
drunken driving. Should we be so concerned about disturbing the
customs of those who knowingly supply that which causes the
offense, so worried about their costs, so worried about their
inconvenience, as if they were the victims rather than the cause of the
carnage? And while the dissent is certainly correct that we could
learn more through an investigation, to characterize our knowledge as
“scant” or insufficient is to ignore what is obvious, and that is that
drunken drivers are causing substantial personal and financial
destruction in this state and that a goodly number of them have been
drinking in homes as well as taverns. Does a court really need to
know more? Is our rule vulnerable because we do not know — nor
will the Legislature — how much injury will be avoided or how
many lives saved by this rule? Or because we do not know how many
times the victim will require compensation from the host in order to
be made whole?
This Court senses that there may be a substantial change
occurring in social attitudes and customs concerning drinking,
whether at home or in taverns. We believe that this change may be
taking place right now in New Jersey and perhaps elsewhere. It is the
upheaval of prior norms by a society that has finally recognized that
it must change its habits and do whatever is required, whether it
means but a small change or a significant one, in order to stop the
senseless loss inflicted by drunken drivers. We did not cause that
movement, but we believe this decision is in step with it.
Some courts are willing to impose liability on hosts when their guests
become intoxicated, drive, and injure third parties — but not when the
guests injure themselves. Why? The liability of social hosts for injuries
sustained or inflicted by an intoxicated guest is framed by some courts as an
inquiry into whether the host and driver had a special relationship, by others
as a question of whether a duty arose as a result of the host’s undertaking,
and by still others as a matter of whether a duty arose from the guest’s
presence on the host’s property (a set of issues treated in a later part of this
chapter). Given the policy considerations at stake in this area, does it matter
which theory of duty a court uses to arrive at its results?
6. Institutional considerations. What are the trade-offs involved in
having the duties of social hosts settled by legislatures rather than courts?
For an example of a legislative response to the issue, see Colo. Rev. Stat.
Ann. §12-47-801(4):
(a) No social host who furnishes any alcohol beverage is civilly

liable to any injured individual or his or her estate for any injury to
such individual or damage to any property suffered, including any
action for wrongful death, because of the intoxication of any person
due to the consumption of such alcohol beverages, except when:
(I) It is proven that the social host willfully and knowingly
served any alcohol beverage to such person who was under the age
of twenty-one years[.]
(b) No civil action may be brought pursuant to this subsection (4)
by the person to whom such alcohol beverage was served or by his or
her estate, legal guardian, or dependent.
(c) The total liability in any such action shall not exceed one
hundred fifty thousand dollars.
2. Duties to Protect Others from Third Parties

The cases in this section generally have involved a defendant’s duty to
rescue or assist the plaintiff because of a special relationship between them.
The last case, Kelly v. Gwinnell, introduced a variation on that pattern to
which we now turn our full attention: cases involving a defendant’s duty to
protect the plaintiff from harm inflicted by a third party — a duty
sometimes based on the relationship not between the plaintiff and defendant
but between the defendant and the party causing the harm.

§315. GENERAL PRINCIPLE
There is no duty so to control the conduct of a third person as to

prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third
person which imposes a duty upon the actor to control the third
person’s conduct, or
(b) a special relation exists between the actor and the other
which gives to the other a right to protection.
Tarasoff v. Regents of the University of California

551 P.2d 334 (Cal. 1976)
[This action was brought against the Regents of the University of

California, psychotherapists employed by the university hospital, and
campus police to recover for the murder of the plaintiffs’ daughter by a
psychiatric patient. The trial court dismissed the plaintiffs’ complaint; the
plaintiffs appealed.]
TOBRINER, J. — On October 27, 1969, Prosenjit Poddar killed Tatiana

Tarasoff. Plaintiffs, Tatiana’s parents, allege that two months earlier Poddar
confided his intention to kill Tatiana to Dr. Lawrence Moore, a psychologist
employed by the Cowell Memorial Hospital at the University of California
at Berkeley. They allege that on Moore’s request, the campus police briefly
detained Poddar, but released him when he appeared rational. They further
claim that Dr. Harvey Powelson, Moore’s superior, then directed that no
further action be taken to detain Poddar. No one warned plaintiffs of
Tatiana’s peril.
Concluding that these facts set forth causes of action against neither
therapists and policemen involved, nor against the Regents of the
University of California as their employer, the superior court sustained
defendants’ demurrers to plaintiffs’ second amended complaints without
leave to amend. This appeal ensued. . . .
Plaintiffs’ first cause of action, entitled “Failure to Detain a Dangerous
Patient,” alleges that on August 20, 1969, Poddar was a voluntary
outpatient receiving therapy at Cowell Memorial Hospital. Poddar informed
Moore, his therapist, that he was going to kill an unnamed girl, readily
identifiable as Tatiana, when she returned home from spending the summer
in Brazil. Moore, with the concurrence of Dr. Gold, who had initially
examined Poddar, and Dr. Yandell, Assistant to the director of the
department of psychiatry, decided that Poddar should be committed for
observation in a mental hospital. Moore orally notified Officers Atkinson
and Teel of the campus police that he would request commitment. He then
sent a letter to Police Chief William Beall requesting the assistance of the
police department in securing Poddar’s confinement.
Officers Atkinson, Brownrigg, and Halleran took Poddar into custody,
but, satisfied that Poddar was rational, released him on his promise to stay
away from Tatiana. Powelson, director of the department of psychiatry at
Cowell Memorial Hospital, then asked the police to return Moore’s letter,
directed that all copies of the letter and notes that Moore had taken as
therapist be destroyed, and “ordered no action to place Prosenjit Poddar in
72-hour treatment and evaluation facility.”
Plaintiffs’ second cause of action, entitled “Failure to Warn Of a
Dangerous Patient,” incorporates the allegations of the first cause of action,
but adds the assertion that defendants negligently permitted Poddar to be
released from police custody without “notifying the parents of Tatiana
Tarasoff that their daughter was in grave danger from Posenjit Poddar.”
Poddar persuaded Tatiana’s brother to share an apartment with him near
Tatiana’s residence; shortly after her return from Brazil, Poddar went to her
residence and killed her. . . .
The second cause of action can be amended to allege that Tatiana’s
death proximately resulted from defendants’ negligent failure to warn
Tatiana or others likely to apprise her of her danger. Plaintiffs contend that
as amended, such allegations of negligence and proximate causation, with
resulting damages, establish a cause of action. Defendants, however,
contend that in the circumstances of the present case they owed no duty of
care to Tatiana or her parents and that, in the absence of such duty, they
were free to act in careless disregard of Tatiana’s life and safety.
In analyzing this issue, we bear in mind that legal duties are not
discoverable facts of nature, but merely conclusory expressions that, in
cases of a particular type, liability should be imposed for damage done. As
stated in Dillon v. Legg (1968) 68 Cal. 2d 728, 734: “The assertion that
liability must . . . be denied because defendant bears no ‘duty’ to plaintiff
‘begs the essential question — whether the plaintiff’s interests are entitled
to legal protection against the defendant’s conduct. . . . [Duty] is not
sacrosanct in itself, but only an expression of the sum total of those
considerations of policy which lead the law to say that the particular
plaintiff is entitled to protection.’ (Prosser, Law of Torts (3d ed. 1964) at pp.
332-333.)” . . .
Although . . . under the common law, as a general rule, one person owed
no duty to control the conduct of another, nor to warn those endangered by
such conduct, the courts have carved out an exception to this rule in cases in
which the defendant stands in some special relationship to either the person
whose conduct needs to be controlled or in a relationship to the foreseeable
victim of that conduct. Applying this exception to the present case, we note
that a relationship of defendant therapists to either Tatiana or Poddar will
suffice to establish a duty of care; as explained in section 315 of the
Restatement Second of Torts, a duty of care may arise from either “(a) a
special relation . . . between the actor and the third person which imposes a
duty upon the actor to control the third person’s conduct, or (b) a special
relation . . . between the actor and the other which gives to the other a right
of protection.”
Although plaintiffs’ pleadings assert no special relation between Tatiana
and defendant therapists, they establish as between Poddar and defendant
therapists the special relation that arises between a patient and his doctor or
psychotherapist. Such a relationship may support affirmative duties for the
benefit of third persons. Thus, for example, a hospital must exercise
reasonable care to control the behavior of a patient which may endanger
other persons. A doctor must also warn a patient if the patient’s condition or
medication renders certain conduct, such as driving a car, dangerous to
others. . . .
We recognize the difficulty that a therapist encounters in attempting to
forecast whether a patient presents a serious danger of violence. Obviously
we do not require that the therapist, in making that determination, render a
perfect performance; the therapist need only exercise “that reasonable
degree of skill, knowledge, and care ordinarily possessed and exercised by
members of [that professional specialty] under similar circumstances.”
Within the broad range of reasonable practice and treatment in which
professional opinion and judgment may differ, the therapist is free to
exercise his or her own best judgment without liability; proof, aided by
hindsight, that he or she judged wrongly is insufficient to establish
negligence.
In the instant case, however, the pleadings do not raise any question as
to failure of defendant therapists to predict that Poddar presented a serious
danger of violence. On the contrary, the present complaints allege that
defendant therapists did in fact predict that Poddar would kill, but were
negligent in failing to warn. . . .
The risk that unnecessary warnings may be given is a reasonable price
to pay for the lives of possible victims that may be saved. We would
hesitate to hold that the therapist who is aware that his patient expects to
attempt to assassinate the President of the United States would not be
obligated to warn the authorities because the therapist cannot predict with
accuracy that his patient will commit the crime.
Defendants further argue that free and open communication is essential
to psychotherapy; that “Unless a patient . . . is assured that . . . information
[revealed by him] can and will be held in utmost confidence, he will be
reluctant to make the full disclosure upon which diagnosis and treatment . .
. depends.” (Sen. Com. on Judiciary, comment on Evid. Code, §1014.) The
giving of a warning, defendants contend, constitutes a breach of trust which
entails the revelation of confidential communications. . . .
The revelation of a communication under the above circumstances is
not a breach of trust or a violation of professional ethics; as stated in the
Principles of Medical Ethics of the American Medical Association (1957),
section 9: “A physician may not reveal the confidence entrusted to him in
the course of medical attendance . . . unless he is required to do so by law or
unless it becomes necessary in order to protect the welfare of the individual
or of the community.” We conclude that the public policy favoring
protection of the confidential character of patient-psychotherapist
communications must yield to the extent to which disclosure is essential to
avert danger to others. The protective privilege ends where the public peril
begins.
Our current crowded and computerized society compels the
interdependence of its members. In this risk-infested society we can hardly
tolerate the further exposure to danger that would result from a concealed
knowledge of the therapist that his patient was lethal. If the exercise of
reasonable care to protect the threatened victim requires the therapist to
warn the endangered party or those who can reasonably be expected to
notify him, we see no sufficient societal interest that would protect and
justify concealment. The containment of such risks lies in the public
interest. For the foregoing reasons, we find that plaintiffs’ complaints can
be amended to state a cause of action against defendants Moore, Powelson,
Gold, and Yandell and against the Regents as their employer, for breach of a
duty to exercise reasonable care to protect Tatiana. . . .
Turning now to the police defendants, we conclude that they do not
have any such special relationship to either Tatiana or to Poddar sufficient
to impose upon such defendants a duty to warn respecting Poddar’s violent
intentions. Plaintiffs suggest no theory, and plead no facts that give rise to
any duty to warn on the part of the police defendants absent such a special
relationship. They have thus failed to demonstrate that the trial court erred
in denying leave to amend as to the police defendants. . . .
Wright, C.J., and Sullivan and Richardson, JJ., concur.
NOTES
1. Ripple effects. A 1987 survey of 1,800 psychologists and psychiatrists

in California found that 84 percent of them had heard of the Tarasoff
decision; 49 percent were more afraid of lawsuits since Tarasoff was
decided; and 39 percent had warned a potential victim of danger from a
patient on at least one occasion since the decision, and had issued such
warnings an average of 2.61 times. Forty-six percent said that they avoided
counseling dangerous patients, and of those in this category 40 percent said
this was due in part to fear of liability under Tarasoff. The authors also
reported these findings:
Therapists were then asked to determine how well they believe they
can predict potential dangerousness. Few psychotherapists reported
that they could assess dangerousness “very accurately” — 4.3%
overall; 5.3% of psychologists, and only 1.6% of psychiatrists.
Almost 30% of responding practitioners believed that they could
predict potential dangerousness “somewhat accurately.” Meanwhile,
the overwhelming proportion of psychotherapists — 72.5% of the
psychiatrists, 63.7% of the psychologists, and 66.3% of the sample
who answered this question — felt that they could predict
dangerousness “better than chance” or “not at all.”
Rosenhan et al., Warning Third Parties: The Ripple Effects of Tarasoff, 24

Pac. L.J. 1165 (April 1993).
2. New frontiers. How might the logic of Tarasoff apply when a
physician determines that a patient is HIV-positive? Judicial decisions on
point are scarce, but some states have chosen to address the issue with
statutes. Consider this example:
MARYLAND CODE ANN., HEALTH GEN. §18-337. POSITIVE TEST RESULTS . . .

(b) Notice to others by health care providers. — If an individual
informed of the individual’s HIV positive status under §18-336 of
this title refuses to notify the individual’s sexual and needle-sharing
partners, the individual’s physician may inform the local health
officer and/or the individual’s sexual and needle-sharing partners of:
(1) The individual’s identity; and
(2) The circumstances giving rise to the notification. . . .
(e) Liability of physician — Disclosure. — A physician acting in
good faith to provide notification in accordance with this section may
not be held liable in any cause of action related to a breach of patient
confidentiality.
(f) Same — Nondisclosure. — A physician acting in good faith
may not be held liable in any cause of action for choosing not to
disclose information related to a positive test result for the presence
of human immunodeficiency virus to an individual’s sexual and
needle-sharing partners.
3. Innovative release program. In Thompson v. County of Alameda, 614
P.2d 728 (Cal. 1980), the plaintiffs and their five-year-old son lived in the
city of Piedmont, a few doors from the mother of James F., a juvenile
offender confined in a county institution. The plaintiffs alleged that the
county knew James had “latent, extremely dangerous and violent
propensities regarding young children and that sexual assaults upon young
children and violence connected therewith were a likely result of releasing
[him] into the community.” The county also knew that James had “indicated
that he would, if released, take the life of a young child residing in the
neighborhood.” He had given no indication of which, if any, child he
intended as his victim. The county nevertheless released James on
temporary leave into his mother’s custody; and “(a)t no time did [the
County] advise and/or warn [the plaintiffs], the local police and/or parents
of young children within the immediate vicinity of [James’s mother’s]
house of the known facts. . . .” Within 24 hours of his release, James
murdered the plaintiffs’ son.
The plaintiffs’ suit against the county alleged, among other things, that
the county breached its duty to warn “parents of young children within the
immediate vicinity” of the residence of James’s mother that James was
being released. The trial court dismissed the plaintiffs’ complaint, and the
California Supreme Court affirmed:
Unlike members of the general public, in [Tarasoff and a case

following it] the potential victims were specifically known and
designated individuals. The warnings which we therein required were
directed at making those individuals aware of the danger to which
they were uniquely exposed. The threatened targets were precise. In
such cases, it is fair to conclude that warnings given discreetly and to
a limited number of persons would have a greater effect because they
would alert those particular targeted individuals of the possibility of a
specific threat pointed at them. In contrast, the warnings sought by
plaintiffs would of necessity have to be made to a broad segment of
the population and would be only general in nature. In addition to the
likelihood that such generalized warnings when frequently repeated
would do little as a practical matter to stimulate increased safety
measures . . . , such extensive warnings would be difficult to give.
The court also said that imposing liability for failing to warn the
neighborhood
might substantially jeopardize rehabilitative efforts both by

stigmatizing released offenders and by inhibiting their release. It is
also possible that, in addition, parole or probation authorities would
be far less likely to authorize release given the substantial drain on
their resources which such warnings might require. A stated public
policy favoring innovative release programs would be thwarted.
How would you summarize the distinctions between Thompson v.

County of Alameda and Tarasoff v. Regents of the University of California?
What rules or guidelines emerge from the two cases?
4. Landlord and tenant. In Kline v. 1500 Massachusetts Avenue Corp.,
439 F.2d 477 (D.C. Cir. 1970), the plaintiff, Sarah Kline, was assaulted and
robbed in the common hallway of a building near Dupont Circle in
Washington where she rented an apartment. Kline sued the corporation that
owned the building. The incident occurred in 1966; the plaintiff had lived in
the building since 1959, proceeding after the first year of her tenancy on a
month-to-month basis. A doorman had been posted around the clock at the
main entrance to the building when the plaintiff first arrived; there was no
longer a doorman in 1966, and other entrances to the building also were
either watched less closely or locked less often. In the meantime, a number
of other tenants had been assaulted or robbed in the hallways of the
building, and the owner had notice of this. After a bench trial the district
court gave judgment as a matter of law to the defendant on the ground that
it had no duty to protect its tenants from third parties. The court of appeals
reversed:
As a general rule, a private person does not have a duty to protect

another from a criminal attack by a third person. . . . Among the
reasons for the [past] application of this rule to landlords are: judicial
reluctance to tamper with the traditional common law concept of the
landlord-tenant relationship; the notion that the act of a third person
in committing an intentional tort or crime is a superseding cause of
the harm to another resulting therefrom; the oftentimes difficult
problem of determining foreseeability of criminal acts; the vagueness
of the standard which the landlord must meet; the economic
consequences of the imposition of the duty; and conflict with the
public policy allocating the duty of protecting citizens from criminal
acts to the government rather than the private sector. . . .
The rationale of the general rule exonerating a third party from
any duty to protect another from a criminal attack has no applicability
to the landlord-tenant relationship in multiple dwelling houses. The
landlord is no insurer of his tenants’ safety, but he certainly is no
bystander. And where, as here, the landlord has notice of repeated
criminal assaults and robberies, has notice that these crimes occurred
in the portion of the premises exclusively within his control, has
every reason to expect like crimes to happen again, and has the
exclusive power to take preventive action, it does not seem unfair to
place upon the landlord a duty to take those steps which are within
his power to minimize the predictable risk to his tenants. . . .
Having said this, it would be well to state what is not said by this
decision. We do not hold that the landlord is by any means an insurer
of the safety of his tenants. . . . We do not say that every multiple unit
apartment house in the District of Columbia should have those same
measures of protection which 1500 Massachusetts Avenue enjoyed in
1959, nor do we say that 1500 Massachusetts Avenue should have
precisely those same measures in effect at the present time.
Alternative and more up-to-date methods may be equally or even
more effective.
Granted, the discharge of this duty of protection by landlords will
cause, in many instances, the expenditure of large sums for additional
equipment and services, and granted the cost will be ultimately
passed on to the tenant in the form of increased rents. This prospect,
in itself, however, is no deterrent to our acknowledging and giving
force to the duty, since without protection the tenant already pays in
losses from theft, physical assault and increased insurance premiums.
What is the distinction between Kline v. 1500 Massachusetts Avenue

Corp. (L for landlord when tenant is attacked by third party) and Thompson
v. County of Alameda (NL for county when it releases murderous child into
plaintiff’s neighborhood)? In Kline, unlike in Thompson, the plaintiff and
defendant had a contract; how might this fact be used to argue that both
decisions were incorrect?
5. Spotted fever. In Bradshaw v. Daniel, 854 S.W.2d 865 (Tenn. 1993),
one Elmer Johns was admitted to a hospital complaining of headaches,
muscle aches, fever, and chills. The defendant, Dr. Daniel, correctly
diagnosed him as suffering from the latter stages of Rocky Mountain
Spotted Fever. Johns died the next day. A week later, Johns’s wife was
admitted to a different hospital with similar symptoms. She died of Rocky
Mountain Spotted Fever a few days later. Her son sued Daniel for failing to
warn her of the risk that she might have the disease. The plaintiff’s evidence
was that if treated promptly, the disease has a mortality rate of only 4
percent. Rocky Mountain Spotted Fever is transmitted by ticks, not by
people, so Mrs. Johns could not have caught it from her husband; the
plaintiff’s theory, rather, was that Daniel should have warned Mrs. Johns
that if her husband had contracted the disease, a member of the same cluster
of ticks might have infected her as well. Daniel argued in response that he
owed his patient’s wife no legal duty because there was no physician-
patient relationship between them, and because Rocky Mountain Spotted
Fever is not a contagious disease. The trial court disagreed and denied
Daniel’s motion for summary judgment; on an interlocutory appeal the
Tennessee Supreme Court affirmed:
[T]his case is analogous to the Tarasoff line of cases adopting a duty

to warn of danger and the contagious disease cases adopting a
comparable duty to warn. Here, as in those cases, there was a
foreseeable risk of harm to an identifiable third party, and the reasons
supporting the recognition of the duty to warn are equally compelling
here.
Do you agree that the reasons supporting recognition of a duty in Tarasoff

are “equally compelling” in this case?
6. Upon further review. In Hawkins v. Pizarro, 713 So. 2d 1036 (Fla.
App. 1998), the defendant, Dr. Pizarro, incorrectly advised a woman named
Shaw that her blood test for Hepatitis-C had come back negative. Several
months later Shaw met the plaintiff, Hawkins, and they soon married. In
May 1995 — a year after the first test — Shaw took another test for
Hepatitis-C from a different doctor. The test was positive. Shaw contacted
Pizarro and asked him to re-examine her earlier test results. Upon further
review, Pizarro discovered that in fact she had tested positive a year earlier.
Shortly thereafter, Shaw’s new husband, Hawkins, also tested positive for
Hepatitis-C. Hawkins sued Pizarro; he claimed that if Shaw had been
correctly informed of her first test results, she could have taken precautions,
such as safe-sex measures, to avoid infecting him. Pizarro moved for
summary judgment on the ground that Hawkins was unknown to him at the
time that he misread her test results, and so was not an identified third party
to whom he could owe a duty of care. The trial court agreed and granted the
motion, and the court of appeals affirmed.
In which of the last two cases does the doctor’s behavior seem more
objectionable: Hawkins v. Pizarro or Bradshaw v. Daniel? Is there a
distinction between the two cases that makes sense? For a case reaching the
opposite result as Hawkins on similar facts, see Reisner v. Regents of the
University of California, 37 Cal. Rptr. 2d 518 (Cal. App. 1995).
7. The problem of multiple nonrescuers. From Saul Levmore, Waiting
for Rescue: An Essay on the Evolution and Incentive Structure of the Law of
Affirmative Obligations, 72 Va. L. Rev. 879 (1986):
When a victim’s call for help goes unanswered, there may be more
than one potential rescuer within hearing range. Indeed, it must often
be the case that when B could have rescued A, B’s presence at the
scene only comes to the attention of the law because other potential
(and often unhelpful) rescuers, C and D, were also at the scene of A’s
trouble. Such multiple potential rescuers pose a doctrinal problem; if
no rescue is attempted, it will be unclear whether B, C, or D “caused”
A’s injury — and misbehavior without causation of an injury is
traditionally an insufficient basis for liability. . . .
[C]ourts have discovered a surprising number of special
relationships as bases for the imposition of duties to rescue. Most
significantly, these special relationships have one thing in common:
when there is a special relationship there is no multiple nonrescuer
problem, for such a relationship is pronounced only in circumstances
in which there is one identifiable or best-situated non-rescuer. . . .
Liability has been found appropriate for an innkeeper who could have
protected a stranger from injury by one of the innkeeper’s guests, a
safety engineer who could have prevented an injury to a laborer he
did not employ, a psychologist who might have warned an
identifiable stranger his patient was intent on harming, and, similarly,
a parole board, acting as a single entity, that might have warned
someone who was the target of a released convict. In these cases,
there is of course no “relationship” at all. Instead, these cases contain
three elements.
First, there is a single nonrescuer. Second, this nonrescuer could
with little effort have prevented a serious loss. Third, this nonrescuer
had no reason to think that someone else would save the day. . . .
How well does Levmore’s theory explain the cases considered in this
section?
3. The Public Duty Doctrine
Some of the most difficult problems in the realm of “special relationships”

arise when a plaintiff complains of failures by police, fire, or other public
rescue services. Such a plaintiff may encounter a number of different
obstacles. One of them is sovereign immunity, a common law doctrine that
forbids lawsuits against the government without its consent. The federal
government and most states have waived this immunity for various
purposes, allowing tort suits to be brought against themselves under certain
circumstances. Even when such suits are permitted, however, establishing
the existence of a duty often is difficult. It might seem obvious that police
have a duty to come to the aid of people in distress; courts, however, have
interpreted this as a duty that runs to the public at large, rather than to any
particular individual. A plaintiff thus can only bring a lawsuit of this sort by
demonstrating the existence of a special relationship with the defendant.
1. Protection from stalkers. In Riss v. City of New York, 240 N.E.2d
860 (N.Y. 1968), the plaintiff, Linda Riss, was dating a lawyer in the Bronx
named Burton Pugach. She attempted to end their relationship when she
discovered that he was married. Pugach threatened to kill or maim Riss if
she left him (“If I can’t have you, no one else will have you, and when I get
through with you, no one else will want you”). Riss repeatedly went to the
police, pleading for protection; none was provided. When Riss was at a
party thrown many months later to celebrate her engagement to another
man, Pugach called her on the phone and warned her that this was her “last
chance.” Riss again went to the police and begged for protection. Nothing
was done. The next morning, thugs hired by Pugach threw lye in Riss’s
face, leaving her legally blind and causing permanent scarring. (She was
then given around-the-clock police protection.) Riss sued the city. The trial
court gave a directed verdict to the defendant; the New York Court of
Appeals affirmed:
[T]his case involves the provision of a governmental service to

protect the public generally from external hazards and particularly to
control the activities of criminal wrongdoers. . . . The amount of
protection that may be provided is limited by the resources of the
community and by a considered legislative-executive decision as to
how those resources may be deployed. For the courts to proclaim a
new and general duty of protection in the law of tort, even to those
who may be the particular seekers of protection based on specific
hazards, could and would inevitably determine how the limited police
resources of the community should be allocated and without
predictable limits. This is quite different from the predictable
allocation of resources and liabilities when public hospitals, rapid
transit systems, or even highways are provided. . . .
When one considers the greatly increased amount of crime
committed throughout the cities, but especially in certain portions of
them, with a repetitive and predictable pattern, it is easy to see the
consequences of fixing municipal liability upon a showing of
probable need for and request for protection. . . . To foist a presumed
cure for these problems by judicial innovation of a new kind of
liability in tort would be foolhardy indeed and an assumption of
judicial wisdom and power not possessed by the courts.
Keating, J., dissented:
What makes the city’s position particularly difficult to understand is

that, in conformity to the dictates of the law, Linda did not carry any
weapon for self-defense. Thus, by a rather bitter irony she was
required to rely for protection on the City of New York which now
denies all responsibility to her. . . .
2. The Stockholm syndrome. Burton Pugach was apprehended and

prosecuted and served 14 years in prison. He continued to court Linda Riss
during and after his prison term. A newspaper account in 1990 provided
these details:
[Linda] had never answered his letters from prison, sentimental

pleadings full of Keats and Byron. “I’m not a sentimentalist,” she
says, “Besides, I’m blind. Who could read it?” . . . When he got out,
Pugach proposed to Riss on the evening news. She and her girlfriends
watched him. “He had worked out a lot. He looked like After in the
Before and After ads.” Her girlfriends said marry him, the woman
who did her horoscope said marry him, her mother’s fortune teller
broke down crying and told her it was in the cards. “You don’t listen
to anyone,” the fortune teller sobbed, pounding her chest, “You listen
to me, you marry this man.”
Riss married Pugach. City Legend: What They Did for Love, New York
Newsday, April 26, 1990, at 4. In 1997 Pugach was prosecuted for
threatening to kill another woman when she ended an affair they were
conducting. Pugach’s wife, Linda, appeared at his trial as a character
witness in his favor. He was acquitted of most of the charges. See Pugach v.
Borja, 670 N.Y.S.2d 718 (Sup. Ct. 1998).
3. America’s most wanted. In Schuster v. City of New York, 154 N.E.2d
534 (N.Y. 1958), the plaintiff’s intestate, Schuster, supplied information to
the New York Police Department leading to the arrest of Willie Sutton, a
criminal of national reputation. Schuster’s part in Sutton’s capture was
widely publicized; Schuster was described by the court as a “public spirited
young man who had studied Sutton’s picture on an FBI flyer that had been
posted in his father’s dry-goods store.” After Sutton’s arrest Schuster
immediately received communications threatening his life. He notified the
police, but they provided no protection. One evening three weeks later,
Schuster was shot and killed while approaching his home.
The plaintiff’s complaint alleged that the city had a duty to protect
people who had thus cooperated in law enforcement; that the city failed to
exercise reasonable care in supplying Schuster with police protection upon
demand; and that Schuster’s death was due to negligence of the city in
recklessly exposing him to danger, in advising him that the threats upon his
life were not seriously made, in failing to supply him with a bodyguard, and
in heedlessly imparting to him a false impression of safety and lack of
danger. The trial court dismissed the complaint. The New York Court of
Appeals reversed, despite the fact that “[p]redictions of dire financial
consequences to municipalities are waved in our faces if Schuster’s estate is
allowed to recover for his death”:
In our view the public (acting in this instance through the City of
New York) owes a special duty to use reasonable care for the
protection of persons who have collaborated with it in the arrest or
prosecution of criminals, once it reasonably appears that they are in
danger due to their collaboration. If it were otherwise, it might well
become difficult to convince the citizen to aid and co-operate with the
law enforcement officers.
What is the distinction between Schuster v. City of New York and Riss v.
City of New York? What is the analogy between Schuster v. City of New
York and the holding of Tarasoff v. Regents of University of California
regarding the psychotherapist’s duty to warn? What is the distinction
between Schuster v. City of New York and the part of Tarasoff holding that
the police had no duty to warn?
4. Take two aspirin and call me in the morning (problem). In Wanzer v.
District of Columbia, 580 A.2d 127 (D.C. 1990), the plaintiff’s decedent,
James Lee, dialed 911 one evening. The following dialogue occurred:
Dispatcher: What is the problem now?

Caller: I have terrific headaches. I never had headaches in my
life.
Dispatcher: Have you taken anything for them?
Caller: No.
Dispatcher: How long have you had these headaches?
Caller: About an hour.
Dispatcher: Then you need an ambulance and you haven’t tried to
take an aspirin?
Caller: No, I haven’t.
Dispatcher: Don’t you think you should go take — you know,
wouldn’t that be logical?
Caller: Okay, all right. [End of call.]
Nine hours later, Lee’s neighbor called for an ambulance, saying that
Lee was having trouble breathing and that his headaches remained terrible.
An ambulance came and took Lee to a hospital. He was diagnosed as
having had a stroke. He died two days later. Lee’s daughter sued the District
of Columbia, claiming it breached its duty to provide ambulance service to
her father by negligently failing to train or supervise the dispatcher who
talked to him on the night he called 911. The defendant invoked the public
duty doctrine as a defense. What result?
D. DUTIES ARISING FROM THE OCCUPATION OF LAND
1. Duties to Trespassers
The law imposes affirmative obligations on landowners to use care toward

those who come onto their property. “Doing nothing” when one is a
landowner thus may result in liability if a guest is injured by a hazard on the
premises as a result. As we shall see, in many jurisdictions the details of
landowners’ duties can vary in complex ways depending on whether the
plaintiff is a trespasser, a social guest, or a business guest; in other
jurisdictions those categories have been abandoned in favor of more general
standards of care.
1. The woodchuck hunt. In Haskins v. Grybko, 17 N.E.2d 146 (Mass.
1938), the defendant raised squash. One night he went onto his lot to hunt
woodchucks that had been ravaging his crop. He heard a rustling noise in
the brush about 50 feet away and saw a moving object about 18 inches high.
Thinking it was a woodchuck, he shot at it. A few minutes later he left the
area. Rather than shooting a woodchuck, however, he had shot the
plaintiff’s intestate, whose body he discovered the next morning. The
plaintiff brought a suit against the defendant for negligence and won in the
trial court, which found “on all of the evidence that the defendant was
negligent and that the degree of negligence was ordinary negligence.” The
Supreme Judicial Court of Massachusetts reversed:
If the intestate was a trespasser upon the defendant’s land, the latter
was not liable for mere negligence. He was, however, under an
obligation to refrain from intentional injury and from willful, wanton
and reckless conduct. As the plaintiff failed to show that his intestate
was not a trespasser upon the defendant’s land when the shooting
occurred, he was not entitled to recover by proving that the defendant
was guilty of mere negligence, and the ruling in favor of the plaintiff
was erroneous.
What result if facts similar to those in Haskins had arisen in public

woods rather than on the defendant’s private property? Suppose two
trespassers are hunting on someone else’s property. One of the trespassers
negligently shoots the other. Liability?
2. Trespasser at the circus. In Herrick v. Wixom, 80 N.W. 117 (Mich.
1899), the plaintiff managed to sneak into the defendant’s circus without
buying a ticket. He took a seat in the audience. A clown in one of the show
rings set off a large firecracker; a stray piece of the firecracker struck the
eye of the plaintiff, who was about 30 feet away. The plaintiff sued the
circus for negligence. The jury brought in a verdict for the circus after being
instructed that “If [the plaintiff] was a mere trespasser, who forced his way
in, then the defendant owed him no duty that would enable him to recover
under the declaration and proofs in this case.” The plaintiff appealed,
claiming that the jury was not properly instructed; the Michigan Supreme
Court reversed and remanded for a new trial:
It is true that a trespasser who suffers an injury because of a

dangerous condition of premises is without remedy. But, where a
trespasser is discovered upon the premises by the owner or occupant,
he is not beyond the pale of the law, and any negligence resulting in
injury will render the person guilty of negligence liable to respond in
damages. In this case the negligent act of the defendant’s servant was
committed after the audience was made up. The presence of plaintiff
was known, and the danger to him from a negligent act was also
known. The question of whether a dangerous experiment should be
attempted in his presence, or whether an experiment should be
conducted with due care and regard to his safety, cannot be made to
depend upon whether he had forced himself into the tent. Every
instinct of humanity revolts at such a suggestion.
What is the distinction between Herrick v. Wixom and Haskins v.

Grybko (the NL case of the woodchuck hunt)?
3. Exploding outhouse. In Cleveland Electric Illuminating Co. v. Van
Benshoten, 166 N.E. 374 (Ohio 1929), the defendant was laying an
underground conduit in Cleveland. During working hours its employees set
up a small building over a manhole for use by its workmen as a toilet; the
hole led to a sewer 20 feet below. The plaintiff was a real estate salesman
who saw the building and attempted to use it without permission (the
workmen were about a block away). The plaintiff’s recollection of
subsequent events was vague, but it appeared that while inside the structure
he attempted to light a cigarette and in doing so ignited gas from the sewer,
causing an explosion that deposited him on the street outside. The plaintiff
sued the defendant for negligence in constructing the building and in failing
to warn of its dangers. The trial court directed a verdict for the defendant,
and the Ohio Supreme Court affirmed:
The defendant did not know that the plaintiff was in its vicinity[;]
consequently the plaintiff was neither an invitee nor a licensee, but a
trespasser, upon the defendant’s property. But even so, had the
defendant known that the plaintiff intended to use the building under
circumstances where ordinary care and prudence required that he
should have been warned, a common-law duty or obligation might
arise whereby the defendant would be required to give him warning if
the defendant had reasonable cause to believe that injury might result
to the plaintiff if he were not warned. . . .
There is nothing in this record disclosing a state of facts whereby
an ordinarily prudent person could reasonably have anticipated or
foreseen that plaintiff would use the building for a viatic purpose, that
he might ignite the gas by a lighted match, or that an injury would
probably result from defendant’s own act.
4. Inadvertent asphyxiation of trespassers. In Ehret v. Village of
Scarsdale, 199 N.E. 56 (N.Y. 1935), the Westchester County Small Estates
Corporation laid a pipe under the surface of a street to drain water from
houses it recently had built in Scarsdale. The Corporation encased part of an
existing gas main inside the drain pipe. Several months later a leak opened
in the gas main; the gas entered the drain pipe, worked its way into one of
the Corporation’s still-vacant houses, and asphyxiated a trespasser who had
entered the house and was sleeping there. The gas had been turned off the
night before, but it was too late. (The gas also asphyxiated a watchman at
the same house, and caused a damaging explosion at another house in the
neighborhood.) The trespasser’s administratrix won a judgment against the
Corporation for negligence in laying its pipe. The New York Court of
Appeals affirmed:
If without permission or exclusion a stranger unlawfully intrudes

upon the land, he voluntarily exposes himself to the risk of unsafe
conditions existing thereon or of dangerous activities conducted
there. In the present case the death of the plaintiff’s intestate was due
to a wrongful act of the owner of the land performed in a public street
many months before the decedent trespassed upon the land. The rule
that an owner of land is not liable to a trespasser upon his land for
failure to exercise ordinary care should not be extended so far as to
confer immunity upon the defendant for damages caused by his
wrong under the circumstances shown here. . . .
What is the superficial similarity between Ehret v. Village of Scarsdale

and Cleveland Electric Illuminating Co. v. Van Benshoten (the NL case of
the exploding outhouse)? What is the distinction between them? Did the
plaintiff in the Cleveland Electric case assume any more risks than the
plaintiff in Ehret? What is the distinction between Ehret v. Village of
Scarsdale and Haskins v. Grybko (the NL case of the woodchuck hunt)?
5. Obligations to trespassers. From the Restatement (Second) of Torts:
§333. GENERAL RULE
Except as stated in §§ 334-339, a possessor of land is not liable to

trespassers for physical harm caused by his failure to exercise
reasonable care (a) to put the land in a condition reasonably safe for
their reception, or (b) to carry on his activities so as not to endanger
them.
§334. ACTIVITIES HIGHLY DANGEROUS TO CONSTANT TRESPASSERS ON

LIMITED AREA
A possessor of land who knows, or from facts within his

knowledge should know, that trespassers constantly intrude upon a
limited area thereof, is subject to liability for bodily harm there
caused to them by his failure to carry on an activity involving a risk
of death or serious bodily harm with reasonable care for their safety.
§337. ARTIFICIAL CONDITIONS HIGHLY DANGEROUS TO KNOWN

TRESPASSERS
A possessor of land who maintains on the land an artificial

condition which involves a risk of death or serious bodily harm to
persons coming in contact with it, is subject to liability for bodily
harm caused to trespassers by his failure to exercise reasonable care
to warn them of the condition if (a) the possessor knows or has reason
to know of their presence in dangerous proximity to the condition,
and (b) the condition is of such a nature that he has reason to believe
that the trespasser will not discover it or realize the risk involved.
The Third Restatement offers a different approach. It recognizes (as many

courts do) a duty of reasonableness toward all entrants onto land, whether
with respect to conditions or with respect to actions. There is an exception
for “flagrant trespassers,” toward whom a landowner generally must only
avoid acting “in an intentional, willful, or wanton manner to cause physical
harm.” If such trespassers appear to be imperiled and helpless (or unable to
protect themselves), the owner owes them ordinary due care. See
Restatement Third, Torts: Liability for Physical and Emotional Harm §52.
6. Attractive nuisance. In Keffe v. Milwaukee & St. Paul R. Co., 21
Minn. 207 (1875), the plaintiff, who was seven years old, caught his leg in
the defendant’s railroad turntable. The leg later had to be amputated. The
turntable revolved easily, was unfenced, and was located near the
defendant’s passenger depot and within 120 feet of the plaintiff’s home. The
trial court gave the defendant judgment on the pleadings on the ground that
the plaintiff was a trespasser. The plaintiff appealed, and the Minnesota
It is true that the defendant did not leave the turn-table unfastened, for
the purpose of injuring young children; and if the defendant had no
reason to believe that the unfastened turn-table was likely to attract
and to injure young children, then the defendant would not be bound
to use care to protect from injury the children that it had no good
reason to suppose were in any danger. But the complaint states that
the defendant knew that the turn-table, when left unfastened, was
easily revolved; that, when left unfastened, it was very attractive, and
when put in motion by them, dangerous to young children: and knew
also that many children were in the habit of going upon it to play. The
defendant therefore knew that by leaving this turn-table unfastened
and unguarded, it was not merely inviting young children to come
upon the turn-table, but was holding out an allurement, which, acting
upon the natural instincts by which such children are controlled, drew
them by those instincts into a hidden danger; and having thus
knowingly allured them into a place of danger, without their fault,
(for it cannot blame them for not resisting the temptation it has set
before them,) it was bound to use care to protect them from the
danger into which they were thus led, and from which they could not
be expected to protect themselves.
7. A roaring farce. In Ryan v. Towar, 87 N.W. 644 (Mich. 1901), the
Bice Manufacturing Company, which had gone out of business, still owned
a small pump house with a water wheel inside in the town of Marquette.
One day some children entered the pump house through a hole in its wall
(the evidence suggested that they created the hole themselves), and began to
play on the wheel; one of the children was injured when she became caught
between the wheel and the pit in which it turned. She sued the corporation.
The trial court ordered a directed verdict for the defendants; the Michigan
The pedestrians who insist upon risking their lives by making a

footpath of a railroad track, and others who habitually shorten
distances by making footpaths across the corners of village lots, are
none the less trespassers because the owners do not choose to resent
such intrusion, and go to the expense and trouble of taking effective
measures to prevent it. There is no more lawless class than children,
and none more annoyingly resent an attempt to prevent their
trespasses. The average citizen has learned that the surest way to be
overrun by children is to give them to understand that their presence
is distasteful. The consequence is that they roam at will over private
premises, and as a rule this is tolerated so long as no damage is done.
The remedy which the law affords for the trifling trespasses of
children is inadequate. No one ever thinks of suing them, and to
attempt to remove a crowd of boys from private premises by gently
laying on of hands, and using no more force than necessary to put
them off, would be a roaring farce, with all honors to the juveniles.
For a corporation with an empty treasury, and overwhelmed with
debt, to be required to [bear] the expense of preventing children from
going across its lots to school, lest it be said that it invited and
licensed them to do so, is to our minds an unreasonable proposition.
Notwithstanding the court’s views in Ryan v. Towar, the opinion in

Keffe v. Milwaukee & St. Paul R. Co. proved more influential, and later was
extended to cover cases in which children were not lured onto the
defendant’s property by any hazard there. (The term “attractive nuisance,”
which still is in widespread use, thus is now a misnomer.) The prevailing
doctrine is set out in the Restatement (Second) of Torts:
§339. ARTIFICIAL CONDITIONS HIGHLY DANGEROUS TO TRESPASSING

CHILDREN
A possessor of land is subject to liability for physical harm to

children trespassing thereon caused by an artificial condition upon the
land if
(a) the place where the condition exists is one upon which the
possessor knows or has reason to know that children are likely to
trespass, and
(b) the condition is one of which the possessor knows or has
reason to know and which he realizes or should realize will involve
an unreasonable risk of death or serious bodily harm to such
children, and
(c) the children because of their youth do not discover the
condition or realize the risk involved in intermeddling with it or in
coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and
the burden of eliminating the danger are slight as compared with the
risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate
the danger or otherwise to protect the children.
If you have studied the Hand formula (in Chapter 3 on the negligence
standard), what is the relationship between that analytical idea and the test
for duty laid out above?
2. Duties to Licensees
1. Inadvertent asphyxiation of licensees. In Davies v. McDowell

National Bank, 180 A.2d 21 (Pa. 1962), the plaintiffs’ evidence was that
Carl Davies and his wife, Mary, paid a visit one afternoon to the business
office of one J. Fred Thomas. Thomas, 71 years old and in failing health,
was Mrs. Davies’s stepfather, and she had been helping to care for him. Mr.
and Mrs. Davies found Thomas unconscious. They summoned a doctor,
who succeeded in reviving Thomas; they told the doctor they would stay
with Thomas until he had recovered sufficiently to be taken to their home
for further care. Shortly after ten o’clock that night, a police officer visited
the Thomas office and found Thomas and Mrs. Davies dead. Mr. Davies
was unconscious. The cause of the deaths was carbon monoxide poisoning.
Thomas’s premises were heated by a gas furnace, and the damper on the
heater’s chimney had become rusted shut. Mrs. Davies’s estate sued
Thomas’s estate, claiming that her death was caused by Thomas’s
negligence in maintaining his premises. The trial court said it would
“assume that a jury could have found Thomas negligent in allowing this
condition to exist” (Thomas’s doctor earlier had advised him to have his
furnace checked as a routine precaution to guard against harmful fumes),
but the court nonetheless nonsuited the plaintiffs because there was
“absolutely no testimony from which the jury could have inferred that
Thomas knew of this unsafe condition.” The plaintiffs appealed, and the
Pennsylvania Supreme Court affirmed:
It is asserted that under the evidence the jury could conclude that Mr.
and Mrs. Davies were “business visitors” in the Thomas office on the
occasion involved, and that the court below erred in concluding that
they were merely social guests. If they were “business visitors” the
duty of the owner would be to exercise reasonable care in
maintaining the premises in a safe condition.
There is no specific evidence in the record as to why they visited
the Thomas office on the occasion involved. The proof does show
that when the physician left they remained there in order to take
Thomas to their home when he was physically able. From the
relationship existing between the parties and their past close
association, the only reasonable conclusion is that they were social
guests. Their mere presence upon the premises raises no presumption
that they were “business visitors.” That they were such may not be
conjectured. Nor does the fact that a social guest performs some
minor or incidental service for his host during his stay convert the
status to that of “business visitor.”
Social guests are gratuitous licensees. To this class, the owner of a
premises is liable for bodily harm caused by a latent dangerous
condition existing thereon only if he has knowledge of the condition
and fails to give warning thereof, realizing that it involves an
unreasonable risk to his guests and that they are not likely to discover
its existence. There is not a scintilla of evidence herein to establish
that the deceased, Thomas, had any previous knowledge of the
existence of the latent dangerous condition upon which the cause of
action is based.
What is the superficial similarity between Davies v. McDowell National

Bank and Ehret v. Village of Scarsdale (the L case where the trespasser was
asphyxiated by gases in the defendant’s house)? What is the distinction
between them?
2. Active negligence. In Lordi v. Spiotta, 45 A.2d 491 (N.J. 1946), the
defendant invited the plaintiff and his son to come to his summer bungalow.
The hot water boiler in the bungalow was heated by natural gas. One
afternoon the defendant’s son lit the gas heater to get water for a bath. On
his way out of the house later in the day, the son asked the defendant to turn
off the heater. The defendant went into the cellar and turned off the heater
— or “thought he had.” In fact he had not, and gas accumulated in the
defendant’s basement for the next several hours. That evening the defendant
instructed the plaintiff to go to the basement and light the heater to provide
hot water for another bath. When the plaintiff attempted to do this by
striking a match, a large explosion resulted that killed the plaintiff’s son.
The plaintiff sued and won a jury verdict; the defendant appealed from an
order denying its motion for a directed verdict. The New Jersey Supreme
Court affirmed:
Assuming that the plaintiff was a guest and as such had to take the
place as he found it, so to speak — yet the so called guest rule cannot
hold the proprietor of the establishment immune from answering in
damages where the guest is injured by an unknown danger created by
the proprietor’s negligence. The dangerous condition surrounding this
gas heater is analogous to creating a trap for the plaintiff. The
defendant, on asking the plaintiff to go into the cellar to light the
heater, certainly held out the place, for the performance of the service
requested, to be free from concealed peril. We conclude that the
defendant’s act in regard to closing the valve controlling the gas flow,
and doing it so imperfectly as to permit a gas leakage which was
bound to make an accumulation of this dangerous agency, amounted
to active negligence.
What is the distinction between Lordi v. Spiotta and Davies v. McDowell

National Bank (the NL case where the plaintiff’s decedent was asphyxiated
by gas from the defendant’s heater)? What if a trespasser had entered the
basement of the defendant’s bungalow, struck a match so that he could see,
and thus ignited the gas? Could he recover from the defendant for his
injuries?
3. Obligations to licensees. From the Restatement (Second) of Torts:
§330. LICENSEE DEFINED
A licensee is a person who is privileged to enter or remain on land

only by virtue of the possessor’s consent.
§341. ACTIVITIES DANGEROUS TO LICENSEES

A possessor of land is subject to liability to his licensees for
physical harm caused to them by his failure to carry on his activities
with reasonable care for their safety if, but only if, (a) he should
expect that they will not discover or realize the danger, and (b) they
do not know or have reason to know of the possessor’s activities and
of the risk involved.
§342. DANGEROUS CONDITIONS KNOWN TO POSSESSOR
A possessor of land is subject to liability for physical harm caused

to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the
condition and should realize that it involves an unreasonable risk
of harm to such licensees, and should expect that they will not
discover or realize the danger, and (b) he fails to exercise
reasonable care to make the condition safe, or to warn the
licensees of the condition and the risk involved, and (c) the
licensees do not know or have reason to know of the condition
and the risk involved.
Illustration 1. A invites his friend B to dinner. A knows that his
private road has been dangerously undermined at a point where it
runs along an embankment and that this is not observable to a person
driving along the road. A, when giving the invitation, forgets to warn
B of this. While B is driving along the road it collapses, causing
serious harm to B. A is subject to liability to B.
Illustration 2. Under facts similar to those in Illustration 2, except
that A does not know that the road has been undermined but could
have discovered it had he paid attention to the condition of his road,
A is not liable to B.
3. Duties to Invitees
1. Invitees vs. volunteers. In City of Boca Raton v. Mattef, 91 So. 2d

644 (Fla. 1956), Mr. Mattef, the plaintiff’s decedent, was a sign painter. At
a meeting of the Boca Raton Town Council, Mattef offered to paint the
town’s name on the side of a water tower for $80. The Council unanimously
adopted a motion awarding the job to Mattef and providing that “the Town
Attorney be requested to draw the necessary contract to protect the Town’s
interest.” The Town Attorney later advised Mattef that the contract had not
been written because he did not have sufficient specifications for the job; he
told Mattef to discuss them with the Town Engineer, and said that after
obtaining the necessary information he would prepare the contract. Instead
of doing these things, however, Mattef took his paint and equipment to the
water tower and proceeded to paint the name of the town on the water tank
at the top of it. When Mattef went to the tower he spoke to the
superintendent of the water plant (who did not have charge of the tower)
and advised him that he was going to proceed to do the painting. The
superintendent made no comment on Mattef’s expressed intention but did
pass some of Mattef’s equipment up to him. In the course of Mattef’s work,
a rung of a steel ladder attached to the tower broke loose. Mattef fell to the
ground and was killed.
Mattef’s widow brought a wrongful death suit against Boca Raton,
claiming that the city breached its duty to provide Mattef with a reasonably
safe place to work. The trial court instructed the jury that Mattef was an
employee of the city and thus was an invitee to whom the city owed a duty
of reasonable care. The jury awarded the plaintiff $25,000. The defendant
appealed, claiming that the jury had been misinstructed. The Florida
Supreme Court reversed and remanded for a new trial:
Under the circumstances revealed by this record, the deceased was a

volunteer. He had not yet reached the status of an invitee for the
simple reason that he had not yet been invited by the appellant to
enter upon the undertaking. An invitee is normally considered to be
one who enters upon the premises of another for purposes connected
with the business of the owner or occupant of the premises. In the
matter before us, while to some extent the deceased entered the
premises of the appellant in connection with the business which he
had theretofore discussed with the appellant, his voluntary
undertaking was certainly not pursuant to the arrangement previously
made and still in its formative stages.
We cannot consider the deceased to be a trespasser for the reason
that he at least had implied permission to do what he did in that the
head of one of the departments of the City was present and did not
stop him from climbing the water tower, but on the contrary, at Mr.
Mattef’s request, assisted him in getting some of his brushes and
equipment to the top of the tower. By a process of elimination,
therefore, we come to the conclusion that when the deceased of his
own volition in the fulfillment of an undertaking related to his own
business of sign painting entered upon the premises of the appellant,
climbed the water tower and undertook the work, he was at most a
licensee. . . .
The licensee by permission occupies a status only slightly better
than that of a trespasser insofar as the liability of the owner of the
premises is concerned. Such a licensee takes the premises as he finds
them and the duty of the owner of the premises is to refrain from
wanton negligence or willful misconduct that would injure the
licensee. If the owner has knowledge of pitfalls, booby traps, latent
hazards or similar dangers, then a failure to warn such a licensee
could under proper circumstances amount to wanton negligence; but
there must be knowledge of the danger by the owner combined with
knowledge that the licensee is about to be confronted with the danger.
Beyond that, he is not obligated to make provision for the safety of
the one who enters his premises under such circumstances.
Was Mattef best understood as having been a volunteer? Suppose he

had lived; do you think he would have had a good claim for any sort of
recovery against the city for the value of the work he had performed? If so,
why wasn’t he an invitee?
2. Stop thief! In Jacobsma v. Goldberg’s Fashion Forum, 303 N.E.2d

226 (Ill. App. 1973), the plaintiff and his wife entered the defendant’s store
in the Ford City shopping mall. The plaintiff soon saw a man, later
identified as the store’s manager, standing at the end of an aisle about 75
feet away, pointing in the direction of the plaintiff and shouting “Stop
thief!” The plaintiff saw another man, who turned out to be a shoplifter,
running from the manager toward him. The plaintiff pushed his wife aside
and grabbed the running man. They fell to the floor. In the struggle some
ladies’ garments fell from under the shoplifter’s coat. He then got up and
ran out of the store. He was pursued unsuccessfully by the manager.
Meanwhile the plaintiff had dislocated his shoulder when he fell, and he
sued the defendant to recover for his injuries. He won a jury verdict. The
It is conceded that the plaintiff was a business invitee upon entering

the clothing store. Thus, the defendant owed him a duty to exercise
ordinary care for his safety. But his injury occurred because of his
attempt to restrain the shoplifter, an activity outside the normal
business invitation. The defendant contends that the plaintiff was at
that point a volunteer to whom the defendant owed only the duty not
to willfully or wantonly cause him injury.
In refusing to instruct the jury on the issue of whether the plaintiff
was a volunteer, the trial court determined that he was not a volunteer
as a matter of law. Whether an invitee has lost that status is generally
a question of fact for the jury. But where all the facts and inferences
therefrom lead to only one conclusion, the matter may be decided
without recourse to a jury. The plaintiff’s agent, the manager who
called for help, testified that he had the authority to do so. Even if he
did not have the express authority, this would be the kind of
emergency in which such authority would be implied. That the call
for help was an invitation to the plaintiff is also borne out by the
record. The manager called “Stop thief,” and his testimony indicates
that this was a general call for assistance. . . .
The physical positions of the three, the plaintiff, the shoplifter and
the manager, who was pointing in the direction of the plaintiff,
justified the plaintiff’s conclusion that he was requested to assist in
stopping the thief. This conclusion is further buttressed by the facts
that the plaintiff was physically larger than the shoplifter and that the
plaintiff was the only man other than the shoplifter and the manager
in the store, which had few customers at the time. Finally, the
plaintiff’s purpose in attempting to restrain the shoplifter was to
benefit the defendant, a purpose which has been found to be sufficient
to sustain invitee status. The court did not err, therefore, in refusing
the instructions on volunteer status.
The court concluded that the jury reasonably could have found that the
defendant breached its duty of care to the plaintiff because it “had actual
knowledge through its sales staff that the shoplifter who caused the injury
had three days previously attempted to steal clothing from the defendant.
With the knowledge of this man’s prior crime, the defendant became
charged with the responsibility to protect its invitees from other illegal acts
by him.”
What is the superficial similarity between Jacobsma v. Goldberg’s
Fashion Forum and City of Boca Raton v. Mattef (the NL case of the painter
who “volunteered” to paint the water tower)? What is the distinction
between them?
3. Obligations to invitees. From the Restatement (Second) of Torts:
§332. INVITEE DEFINED
(1) An invitee is either a public invitee or a business visitor.

(2) A public invitee is a person who is invited to enter or remain
on land as a member of the public for a purpose for which the land is
held open to the public.
(3) A business visitor is a person who is invited to enter or remain
on land for a purpose directly or indirectly connected with business
dealings with the possessor of the land.
Illustration 1. A hires a hall and gives a free public lecture on a
religious topic. B, as a member of the public, attends the lecture. B is
an invitee.
Illustration 2. The city of X maintains a free public library, for the
use of anyone in the community. A comes to the library to read a
book. A is an invitee. But if A enters to meet a friend, or merely to
get out of the rain, he is not an invitee.
Comment l. If the invitee goes outside of the area of his invitation,
he becomes a trespasser or a licensee, depending upon whether he
goes there without the consent of the possessor, or with such consent.
Thus one who goes into a shop which occupies part of a building, the
rest of which is used as the possessor’s residence, is a trespasser if he
goes into the residential part of the premises without the shopkeeper’s
consent; but he is a licensee if the shopkeeper permits him to go to
the bathroom, or invites him to pay a social call.
§341A. ACTIVITIES DANGEROUS TO INVITEES

A possessor of land is subject to liability to his invitees for
physical harm caused to them by his failure to carry on his activities
with reasonable care for their safety if, but only if, he should expect
that they will not discover or realize the danger, or will fail to protect
themselves against it.
§343. DANGEROUS CONDITIONS KNOWN TO OR DISCOVERABLE BY

POSSESSOR
A possessor of land is subject to liability for physical harm caused

to his invitees by a condition on the land if, but only if, he (a) knows
or by the exercise of reasonable care would discover the condition,
and should realize that it involves an unreasonable risk of harm to
such invitees, and (b) should expect that they will not discover or
realize the danger, or will fail to protect themselves against it, and (c)
fails to exercise reasonable care to protect them against the danger.
4. Household guests in uniform. Suppose smoke begins to pour from the

windows of a house. A firefighter enters. For reasons unrelated to the
apparent fire, the railing on the basement staircase gives way, causing the
firefighter to fall and suffer various injuries. The homeowner was unaware
of the weak railing because he negligently had failed to inspect it. Liability
for the homeowner? Is a firefighter a licensee or an invitee? What purposes
do those categories serve that might bear on how firefighters are classified?
Should the result be any different if the plaintiff is a meter reader arriving at
the house by appointment?
5. Challenges to the distinctions. In Rowland v. Christian, 443 P.2d 561
(Cal. 1968), the plaintiff, Rowland, cut his hand on a cold water faucet in
Christian’s bathroom while he was a guest in her leased apartment.
Christian had asked her landlord to fix the faucet a month earlier. The
parties disputed whether the crack in the faucet was “obvious”; Christian
alleged that it was, and that the plaintiff knew of it (he had used the
bathroom on a prior occasion). The trial court gave summary judgment to
Christian on the ground that Rowland was a licensee. The California
Supreme Court reversed, rendering a landmark decision that the traditional
distinctions between duties owed to trespassers, licensees, and invitees had
become obsolete:
Without attempting to labor all of the rules relating to the possessor’s
liability, it is apparent that the classifications of trespasser, licensee,
and invitee, the immunities from liability predicated upon those
classifications, and the exceptions to those immunities, often do not
reflect the major factors which should determine whether immunity
should be conferred upon the possessor of land. Some of those
factors, including the closeness of the connection between the injury
and the defendant’s conduct, the moral blame attached to the
defendant’s conduct, the policy of preventing future harm, and the
prevalence and availability of insurance, bear little, if any,
relationship to the classifications of trespasser, licensee and invitee
and the existing rules conferring immunity. . . .
Although in general there may be a relationship between the
remaining factors and the classifications of trespasser, licensee, and
invitee, there are many cases in which no such relationship may exist.
Thus, although the foreseeability of harm to an invitee would
ordinarily seem greater than the foreseeability of harm to a trespasser,
in a particular case the opposite may be true. The same may be said
of the issue of certainty of injury. The burden to the defendant and
consequences to the community of imposing a duty to exercise care
with resulting liability for breach may often be greater with respect to
trespassers than with respect to invitees, but it by no means follows
that this is true in every case. In many situations, the burden will be
the same, i.e., the conduct necessary upon the defendant’s part to
meet the burden of exercising due care as to invitees will also meet
his burden with respect to licensees and trespassers. The last of the
major factors, the cost of insurance, will, of course, vary depending
upon the rules of liability adopted, but there is no persuasive evidence
that applying ordinary principles of negligence law to the land
occupier’s liability will materially reduce the prevalence of insurance
due to increased cost or even substantially increase the cost.
A man’s life or limb does not become less worthy of protection
by the law nor a loss less worthy of compensation under the law
because he has come upon the land of another without permission or
with permission but without a business purpose. Reasonable people
do not ordinarily vary their conduct depending upon such matters,
and to focus upon the status of the injured party as a trespasser,
licensee, or invitee in order to determine the question whether the
landowner has a duty of care, is contrary to our modern social mores
and humanitarian values. The common law rules obscure rather than
illuminate the proper considerations which should govern
determination of the question of duty.
Once the ancient concepts as to the liability of the occupier of
land are stripped away, the status of the plaintiff relegated to its
proper place in determining such liability, and ordinary principles of
negligence applied, the result in the instant case presents no
substantial difficulties. As we have seen, when we view the matters
presented on the motion for summary judgment as we must, we must
assume defendant Miss Christian was aware that the faucet handle
was defective and dangerous, that the defect was not obvious, and
that plaintiff was about to come in contact with the defective
condition, and under the undisputed facts she neither remedied the
condition nor warned plaintiff of it. Where the occupier of land is
aware of a concealed condition involving in the absence of
precautions an unreasonable risk of harm to those coming in contact
with it and is aware that a person on the premises is about to come in
contact with it, the trier of fact can reasonably conclude that a failure
to warn or to repair the condition constitutes negligence. Whether or
not a guest has a right to expect that his host will remedy dangerous
conditions on his account, he should reasonably be entitled to rely
upon a warning of the dangerous condition so that he, like the host,
will be in a position to take special precautions when he comes in
contact with it. . . .
6. Healthy skeptics. In Carter v. Kinney, 896 S.W.2d 926 (Mo. 1995),

the plaintiff, Carter, was a member of a Bible study group that met at the
home of the Kinneys. Carter slipped on a patch of ice on the Kinneys’
driveway and broke his leg. He sued the Kinneys to recover for his injuries.
The trial court gave summary judgment to the defendants, finding that
Carter was not an invitee (“the record shows beyond cavil that Mr. Carter
did not enter the Kinneys’ land to afford the Kinneys any material benefit”)
and that the Kinneys therefore had no duty to protect him from unknown
dangerous conditions. On appeal, Carter invited the Missouri Supreme
Court to abandon the distinction between licensees and invitees; the court
declined, and affirmed the summary judgment for the Kinneys:
[The Carters] argue that the current system that recognizes a lower
standard of care for licensees than invitees is arbitrary and denies
deserving plaintiffs compensation for their injuries. The Carters note
that twenty states have abolished the distinction since 1968 and
encourage Missouri to join this “trend.” [The court noted that nine of
those states had abolished only the distinction between licensees and
invitees, while retaining separate treatment for trespassers; the other
eleven, following Rowland v. Christian, had abandoned all of the
distinctions.]
The Kinneys claim that the trend is little more than a fad. They
note that twelve states have expressly rejected the abolition of the
distinction since the “trend” began in 1968 and that the remaining
eighteen states, including Missouri, have not directly addressed the
issue and maintain the common law distinctions.
We are not persuaded that the licensee/invitee distinction no
longer serves. The possessor’s intentions in issuing the invitation
determine not only the status of the entrant but the possessor’s duty of
care to that entrant. The contours of the legal relationship that results
from the possessor’s invitation reflect a careful and patient effort by
courts over time to balance the interests of persons injured by
conditions of land against the interests of possessors of land to enjoy
and employ their land for the purposes they wish. Moreover, and
despite the exceptions courts have developed to the general rules, the
maintenance of the distinction between licensee and invitee creates
fairly predictable rules within which entrants and possessors can
determine appropriate conduct and juries can assess liability. To
abandon the careful work of generations for an amorphous
“reasonable care under the circumstances” standard seems — to put it
kindly — improvident.
Though six states have abolished the distinction between licensee
and invitee since Professor Keeton penned his words, he speculates
that the failure of more states to join the “trend”
may reflect a more fundamental dissatisfaction with certain
developments in accident law that accelerated during the 1960’s
— reduction of whole systems of legal principles to a single,
perhaps simplistic, standard of reasonable care, the sometimes
blind subordination of other legitimate social objectives to the
goals of accident prevention and compensation, and the
commensurate shifting of the balance of power to the jury from
the judge. At least it appears that the courts are . . . acquiring a
more healthy skepticism toward invitations to jettison years of
developed jurisprudence in favor of beguiling legal panacea.
W.P. Keeton, Prosser and Keeton on the Law of Torts, §62 (1984).
We remain among the healthy skeptics. The experience of the
states that have abolished the distinction between licensee and invitee
does not convince us that their idea is a better one. Indeed, we are
convinced that they have chosen wrongly.
7. What difference does it make? Would Rowland v. Christian have

come out differently if the traditional common law approach had been used
in that case? More generally, how much does it matter whether courts use
the traditional approach of Carter v. Kinney or the newer approach of
Rowland v. Christian? If (as Rowland suggests) a plaintiff’s status as a
trespasser, social guest, or business guest still should be considered a factor
in determining the level of care owed by the defendant, then Rowland v.
Christian might seem to represent only a small change in the law; it might
appear just to make the application of the traditional categories a bit less
rigid by turning them into factors rather than hard rules. But one way to
think about “duty” doctrines is that they serve as ways of controlling juries,
since a ruling that defendant has no duty or a limited duty — unlike
decisions about whether the defendant used reasonable care, for example —
usually is considered a determination of law to be made by a judge.
Decisions about the extent of a defendant’s duty under the traditional rubric
thus can prevent cases from going to juries at all. How does the decision in
Rowland v. Christian affect that distribution of labor between judge and
jury?
8. Morning train (problem). In Rhodes v. Illinois Central Gulf R.R., 665
N.E.2d 1260 (Ill. 1996), one of the defendant’s commuter trains stopped to
pick up passengers at 75th Street and Exchange Avenue in Chicago; the
hour was 5:00 A.M. A passenger boarding the train told the conductor,
Raymond Deany, that someone was lying in the warming house where
passengers waited for the train. Deany and a colleague named Ziolkowski
stepped into the doorway of the warming house and saw a man, later
identified as the plaintiff’s decedent, Carl Rhodes, lying face down on the
floor. Deany saw a “minute amount” of blood smeared on the floor around
the man’s head, but no blood on the man himself. Deany and Ziolkowski
returned to the train. Deany radioed his supervisor that he had seen a
bleeding man lying in the warming house and that the man needed
assistance (the railroad did not permit sleeping in its warming houses). The
train continued on its way. Deany’s supervisor passed the report to a
company police dispatcher, who in turn called the Chicago police
department.
Deany’s train arrived back at the same station 45 minutes later.
Ziolkowski saw the man still lying in the warming house. The train returned
again about an hour later, at 6:40. Deany radioed his supervisor to report
that the man was still there; the supervisor told Deany he had taken care of
the situation. At 7:56 a conductor from another train radioed to report that a
man was sleeping in the warming house. A new supervisor was on duty and
relayed the information afresh to the dispatcher, who again passed it to the
Chicago police. Two Chicago police officers arrived at the station at about
8:00. They thought one of the railroad’s own police units was going to meet
them there; finding no such unit, they left without entering the station.
At 9:00, Deany’s train again stopped at the station. A passenger told
Deany that a man was in the warming house who appeared to be sleeping.
Deany did not report this to the supervisor because he had already reported
the man twice. Ziolkowski, whose shift had ended, went to the supervisor’s
office and asked if anything had been done about the man in the warming
house. At this point an engineer from a commuter train also reported to the
supervisor that the man and the floor were covered with blood. The
supervisor called the dispatcher, who again called the Chicago police. A
patrolman named Bilek arrived at the station at 10:11. Rhodes sat up with
Bilek’s assistance. Bilek saw bruising and cuts on Rhodes’s face, but no
blood; he concluded that Rhodes was intoxicated because of the smell of
alcohol on his breath and clothing. Bilek asked Rhodes if he had been
beaten up or had fallen. Rhodes responded slowly, nodding and speaking in
a groggy voice. Two more officers arrived and took Rhodes to a hospital.
When he arrived there at 11:25 he was unresponsive and was snoring with
gurgling respirations. Soon he stopped breathing. Tests showed he had
suffered a massive subdural hematoma (a collection of blood under the dura
matter covering the brain). He died the next day. A neurosurgeon later
testified for the plaintiff that if Rhodes had undergone surgery to relieve the
hematoma while he still was communicating, he would more probably than
not have had a good recovery.
The administrator of Rhodes’s estate sued the railroad. The railroad
claimed it had no duty to Rhodes. What result? How might you use any of
the cases considered so far in this chapter to argue for or against liability?
9. Your money or his life (problem). In Boyd v. Racine Currency
Exchange, 306 N.E.2d 39 (Ill. 1973), the plaintiff’s decedent, Boyd, was a
customer in the defendant’s currency exchange. A thief entered the
establishment, put a gun to the head of Boyd, and threatened to kill him if
the defendant’s teller, one Blanche Murphy, did not hand over the money in
her drawer or open the door to the cage in which she worked. Murphy, who
was standing behind bulletproof glass, did not comply, but instead dove to
the floor. The robber shot Boyd in the head, killing him, and then left the
premises. Boyd’s administratrix sued the currency exchange, claiming it
was negligent in failing to give the robber the money. The currency
exchange moved to have the complaint dismissed on the ground that it had
no duty to accede to the robber’s demands. What result?
E. THE PRIVITY LIMITATION
Suppose A and B enter into a contract, and B performs it negligently. C is

injured as a result. Clearly A has rights against B; but does C? Courts
sometimes have said no, imposing limits on the duty that a defendant owes
to a third party injured when the defendant breaches a contract. The limit is
said to be based on the fact that C has no contract (or is not “in privity”)
with B. Why might such limitations on duty seem necessary?
H. R. Moch Co. v. Rensselaer Water Co.

159 N.E. 896 (N.Y. 1928)
CARDOZO, C.J. — The defendant, a water works company under the
laws of this State, made a contract with the city of Rensselaer for the supply
of water during a term of years. Water was to be furnished to the city for
sewer flushing and street sprinkling; for service to schools and public
buildings; and for service at fire hydrants, the latter service at the rate of
$42.50 a year for each hydrant. Water was to be furnished to private takers
within the city at their homes and factories and other industries at
reasonable rates, not exceeding a stated schedule. While this contract was in
force, a building caught fire. The flames, spreading to the plaintiff’s
warehouse near by, destroyed it and its contents. The defendant according
to the complaint was promptly notified of the fire, “but omitted and
neglected after such notice, to supply or furnish sufficient or adequate
quantity of water, with adequate pressure to stay, suppress or extinguish the
fire before it reached the warehouse of the plaintiff, although the pressure
and supply which the defendant was equipped to supply and furnish, and
had agreed by said contract to supply and furnish, was adequate and
sufficient to prevent the spread of the fire to and the destruction of the
plaintiff’s warehouse and its contents.” By reason of the failure of the
defendant to “fulfill the provisions of the contract between it and the city of
Rensselaer,” the plaintiff is said to have suffered damage, for which
judgment is demanded. A motion, in the nature of a demurrer, to dismiss the
complaint, was denied at Special Term. The Appellate Division reversed by
a divided court.
Liability in the plaintiff’s argument is placed on one or other of three
grounds. The complaint, we are told, is to be viewed as [including]: (1) A
cause of action for breach of contract within Lawrence v. Fox (20 N.Y. 268);
[and] (2) a cause of action for a common-law tort, within MacPherson v.
Buick Motor Company (217 N.Y. 382). . . .
(1) We think the action is not maintainable as one for breach of contract.
No legal duty rests upon a city to supply its inhabitants with protection
against fire. That being so, a member of the public may not maintain an
action under Lawrence v. Fox against one contracting with the city to
furnish water at the hydrants, unless an intention appears that the promisor
is to be answerable to individual members of the public as well as to the
city for any loss ensuing from the failure to fulfill the promise. No such
intention is discernible here. On the contrary, the contract is significantly
divided into two branches: one a promise to the city for the benefit of the
city in its corporate capacity, in which branch is included the service at the
hydrants; and the other a promise to the city for the benefit of private takers,
in which branch is included the service at their homes and factories. In a
broad sense it is true that every city contract, not improvident or wasteful, is
for the benefit of the public. More than this, however, must be shown to
give a right of action to a member of the public not formally a party. The
benefit, as it is sometimes said, must be one that is not merely incidental
and secondary. It must be primary and immediate in such a sense and to
such a degree as to bespeak the assumption of a duty to make reparation
directly to the individual members of the public if the benefit is lost. The
field of obligation would be expanded beyond reasonable limits if less than
this were to be demanded as a condition of liability. A promisor undertakes
to supply fuel for heating a public building. He is not liable for breach of
contract to a visitor who finds the building without fuel, and thus contracts
a cold. The list of illustrations can be indefinitely extended. The carrier of
the mails under contract with the government is not answerable to the
merchant who has lost the benefit of a bargain through negligent delay. The
householder is without a remedy against manufacturers of hose and engines,
though prompt performance of their contracts would have stayed the
ravages of fire. “The law does not spread its protection so far.” (Robins Dry
Dock & Repair Co. v. Flint, 275 U.S. 303).
So with the case at hand. By the vast preponderance of authority, a
contract between a city and a water company to furnish water at the city
hydrants has in view a benefit to the public that is incidental rather than
immediate, an assumption of duty to the city and not to its inhabitants. . . .
An intention to assume an obligation of indefinite extension to every
member of the public is seen to be the more improbable when we recall the
crushing burden that the obligation would impose. The consequences
invited would bear no reasonable proportion to those attached by law to
defaults not greatly different. A wrongdoer who by negligence sets fire to a
building is liable in damages to the owner where the fire has its origin, but
not to other owners who are injured when it spreads. If the plaintiff is to
prevail, one who negligently omits to supply sufficient pressure to
extinguish a fire started by another, assumes an obligation to pay the
ensuing damage, though the whole city is laid low. A promisor will not be
deemed to have had in mind the assumption of a risk so overwhelming for
any trivial reward.
(2) We think the action is not maintainable as one for a common-law tort.
“It is ancient learning that one who assumes to act, even though
gratuitously, may thereby become subject to the duty of acting carefully, if
he acts at all.” (Glanzer v. Shepard, 233 N.Y. 236, 239). The plaintiff would
bring its case within the orbit of that principle. The hand once set to a task
may not always be withdrawn with impunity though liability would fail if it
had never been applied at all. A time-honored formula often phrases the
distinction as one between misfeasance and non-feasance. Incomplete the
formula is, and so at times misleading. Given a relation involving in its
existence a duty of care irrespective of a contract, a tort may result as well
from acts of omission as of commission in the fulfillment of the duty thus
recognized by law. . . .
The plaintiff would have us hold that the defendant, when once it
entered upon the performance of its contract with the city, was brought into
such a relation with every one who might potentially be benefited through
the supply of water at the hydrants as to give to negligent performance,
without reasonable notice of a refusal to continue, the quality of a tort. . . .
We are satisfied that liability would be unduly and indeed indefinitely
extended by this enlargement of the zone of duty. The dealer in coal who is
to supply fuel for a shop must then answer to the customers if fuel is
lacking. The manufacturer of goods, who enters upon the performance of
his contract, must answer, in that view, not only to the buyer, but to those
who to his knowledge are looking to the buyer for their own sources of
supply. Every one making a promise having the quality of a contract will be
under a duty to the promisee by virtue of the promise, but under another
duty, apart from contract, to an indefinite number of potential beneficiaries
when performance has begun. The assumption of one relation will mean the
involuntary assumption of a series of new relations, inescapably hooked
together. Again we may say in the words of the Supreme Court of the
United States, “The law does not spread its protection so far.” . . .
The judgment should be affirmed with costs.
NOTES
1. Misweighed beans. In Glanzer v. Shepard, 135 N.E. 275 (N.Y. 1922),
a seller of beans hired the defendants, who were professional weighers, to
certify the weight of 905 bags of beans being sold to the plaintiffs. The
plaintiffs paid the seller according to the weight of the beans certified by the
defendants. Upon attempting to resell the beans, the plaintiffs found that
their actual weight was less than the weight the defendants had certified.
The plaintiffs sued the defendants to recover the amount they originally had
overpaid to the bean seller. The trial judge gave a directed verdict to the
plaintiffs. The New York Court of Appeals, per Cardozo, J., held that the
trial court did not err:
We think the law imposes a duty toward buyer as well as seller in the
situation here disclosed. The plaintiffs’ use of the certificates was not
an indirect or collateral consequence of the action of the weighers. It
was a consequence which, to the weighers’ knowledge, was the end
and aim of the transaction.
What is the distinction between Glanzer v. Shepard and H. R. Moch Co.

v. Rensselaer Water Co. (the NL case of the company that failed to provide
water to a fire hydrant near the plaintiff’s burning warehouse)?
2. Summer of Sam. On July 13, 1977, a massive power outage
terminated electrical service to more than three million Consolidated Edison
(Con Ed) customers in New York City for approximately 25 hours. The
blackout led to many lawsuits. In Food Pageant v. Consolidated Edison, 429
N.E.2d 738 (N.Y. 1981), Con Ed was found to have been grossly negligent
in permitting the blackout, and was held liable to the plaintiff grocery store
for damages resulting from spoiled food and lost business caused by the
blackout. In Lilpan Food Corp. v. Consolidated Edison, 493 N.Y.S.2d 740
(Sup. Ct. 1985), the plaintiff supermarket sued Con Ed to recover damages
for the looting of its store during the same blackout. The court dismissed
the plaintiff’s complaint:
True, it may be argued that there was indeed a contractual

relationship between plaintiff and Con Ed in that plaintiff was a
customer for the supply of electricity to the plaintiff’s market.
However, the thrust of the plaintiff’s case was directed, not to the
failure to supply electricity to the market, but rather to the failure to
supply electricity to the city, in general, including street lights and
traffic lights — all of which led to the looting and vandalism of
plaintiff’s premises.
What is the distinction between the Food Pageant and Lilpan Food
Corp. cases? What is the analogy between Lilpan Food Corp. v.
Consolidated Edison and H. R. Moch Co. v. Rensselaer Water Co. (the NL
case where the defendant failed to provide water to a fire hydrant near the
defendant’s warehouse)?
3. Liability for blackouts. In Conboy v. Mogeloff, 567 N.Y.S.2d 960
(App. Div. 1991), the plaintiff sought treatment from the defendant doctor
for migraine headaches and episodes of unconsciousness. The defendant
prescribed Fiorinal, a drug that has the side effect of causing drowsiness in
some patients; the defendant advised the plaintiff that she nevertheless
could drive a car. After taking Fiorinal a few days later, the plaintiff fell
unconscious behind the wheel of her car and drove into a bridge abutment.
The plaintiff’s children were passengers in the car, and she brought suit on
their behalf to recover for their injuries. The Appellate Division held that
the plaintiff’s complaint should be dismissed because the doctor owed no
duty to the plaintiff’s children. The court said that to establish a duty owed
by a physician to a third party,
“we have further required actual privity, or something approaching

privity, such as conduct on the part of the defendant linking defendant
to plaintiff which evinces defendant’s understanding of plaintiff’s
reliance.” Eiseman v. State of New York, 511 N.E.2d 1128 (N.Y.
1987). In this case, there are no allegations in the complaint or the bill
of particulars of the children’s reliance on defendant’s conduct or of
knowledge by defendant of any such reliance.
What is the analogy between Conboy v. Mogeloff and Hawkins v.

Pizarro (the NL case from earlier in the chapter where the defendant
mistakenly told his patient that she did not have Hepatitis-C, and she went
on to transmit the disease to a man she later met and married)? The two
cases taken together are another example of the overlap between two
doctrines in the law of tort duties: here, “special relationships” and
“privity.” The courts use different theories to explain their decisions, but the
underlying considerations sometimes may be similar.
Suppose the physician in Conboy v. Mogeloff had been held liable for
the children’s injuries. How would this affect the way that he practiced
medicine or purchased insurance?
4. Amateur hour. In Biakanja v. Irving, 320 P.2d 16 (Cal. 1958), a man
named Maroevich died. His will bequeathed all of his property to his sister.
The will was prepared by the defendant, who was a notary public and not a
lawyer. He neglected to have witnesses present at Maroevich’s signing of
the will. (According to an attorney who represented Maroevich’s stepson
during the subsequent probate hearing, the defendant “admonished me to
the effect that I was a young lawyer, I’d better go back and study my law
books some more, that anybody knew a will which bore a notarial seal was
a valid will, didn’t have to be witnessed by any witnesses.”) As a result the
will was held invalid. Maroevich’s sister thus received, by intestate
succession, only one-eighth of her brother’s estate. She sued the defendant
and recovered a judgment for the difference between the amount she would
have received had the will been valid and the amount actually distributed to
her. The defendant appealed, and the California Supreme Court affirmed:
The principal question is whether defendant was under a duty to

exercise due care to protect plaintiff from injury and was liable for
damage caused plaintiff by his negligence even though they were not
in privity of contract. . . .
The determination whether in a specific case the defendant will
be held liable to a third person not in privity is a matter of policy and
involves the balancing of various factors, among which are the extent
to which the transaction was intended to affect the plaintiff, the
foreseeability of harm to him, the degree of certainty that the plaintiff
suffered injury, the closeness of the connection between the
defendant’s conduct and the injury suffered, the moral blame attached
to the defendant’s conduct, and the policy of preventing future harm.
Here, the “end and aim” of the transaction was to provide for the
passing of Maroevich’s estate to plaintiff. See Glanzer v. Shepard,
135 N.E. 275. Defendant must have been aware from the terms of the
will itself that, if faulty solemnization caused the will to be invalid,
plaintiff would suffer the very loss which occurred. As Maroevich
died without revoking his will, plaintiff, but for defendant’s
negligence, would have received all of the Maroevich estate, and the
fact that she received only one-eighth of the estate was directly
caused by defendant’s conduct.
What is the distinction between Biakanja v. Irving and Conboy v.

Mogeloff? What is the analogy between Biakanja v. Irving and Glanzer v.
Shepard (the L case of the misweighed beans)?
5. Accountants. In Ultramares Corp. v. Touche, 174 N.E. 441 (N.Y.
1931), Fred Stern & Co. hired the defendants, an accounting firm, to
prepare and certify a balance sheet showing the condition of Stern’s
business as of December 31, 1923. The defendants’ audit showed Stern to
have a net worth of $1,070,715.26. Stern required extensive credit and
borrowed large sums of money from banks and other lenders to finance its
operations, and the defendants knew this; they also knew that Stern would
use the certified balance sheet as the basis of financial dealings with banks,
creditors, stockholders, and others, though the defendants did not know the
specific identities of any of these parties. In reliance on the audit and
balance sheet prepared by the defendants, the plaintiff made loans to Stern.
In fact Stern was insolvent and could not pay back the loans; the defendants
negligently had failed to discover that Stern had doctored its books. A jury
returned a verdict for the plaintiff, and the defendants appealed.
Held, that the trial court should have dismissed the negligence count in
the plaintiff’s complaint. Said the New York Court of Appeals (per
Cardozo, J.):
If liability for negligence exists, a thoughtless slip or blunder, the

failure to detect a theft or forgery beneath the cover of deceptive
entries, may expose accountants to a liability in an indeterminate
amount for an indeterminate time to an indeterminate class. The
hazards of a business conducted on these terms are so extreme as to
enkindle doubt whether a flaw may not exist in the implication of a
duty that exposes to these consequences. . . .
A force or instrument of harm having been launched with
potentialities of danger manifest to the eye of prudence, the one who
launches it is under a duty to keep it within bounds. Even so, the
question is still open whether the potentialities of danger that will
charge with liability are confined to harm to the person, or include
injury to property. In either view, however, what is released or set in
motion is a physical force. We are now asked to say that a like
liability attaches to the circulation of a thought or a release of the
explosive power resident in words.
The court distinguished this case from Glanzer v. Shepard:
No one would be likely to urge that there was a contractual relation,

or even one approaching it, at the root of any duty that was owing
from the defendants now before us to the indeterminate class of
persons who, presently or in the future, might deal with the Stern
Company in reliance on the audit. In a word, the service rendered by
the defendant in Glanzer v. Shepard was primarily for the information
of a third person, in effect, if not in name, a party to the contract, and
only incidentally for that of the formal promisee. In the case at hand,
the service was primarily for the benefit of the Stern Company, a
convenient instrumentality for use in the development of the
business, and only incidentally or collaterally for the use of those to
whom Stern and his associates might exhibit it hereafter. Foresight of
these possibilities may charge with liability for fraud. The conclusion
does not follow that it will charge with liability for negligence.
The court summarized its conclusion as follows:
[I]f there has been neither reckless misstatement nor insincere

profession of an opinion, but only honest blunder, the ensuing
liability for negligence is one that is bounded by the contract, and is
to be enforced between the parties by whom the contract has been
made.
What is the distinction between Ultramares Corp. v. Touche and

Biakanja v. Irving (the L case of the notary responsible for the invalid will)?
In which of these cases is the defendant better able to predict the extent of
its liability if it acts negligently? Why might such predictability be
considered important?
Subsequent New York cases have refined the principle of Ultramares by
adopting a three-part test for accountants’ liability: “(1) the accountants
must have been aware that the financial reports were to be used for a
particular purpose or purposes; (2) in the furtherance of which a known
party or parties was intended to rely; and (3) there must have been some
conduct on the part of the accountants linking them to that party or parties,
which evinces the accountants’ understanding of that party or parties’
reliance.” Credit Alliance Corp. v. Arthur Andersen & Co., 483 N.E.2d 110
(N.Y. 1985) (NL for negligent audit by accountant leading to bad loans).
6. Liability of artisans (problem). In Einhorn v. Seeley, 136 A.D.2d 122
(N.Y. App. Div. 1988), the plaintiff, Einhorn, was raped by an unknown
attacker while visiting the apartment building where her fiancé lived.
Einhorn alleged that her assailant was able to enter the building because the
lock on its front door was improperly installed or repaired by the defendant
locksmith, who had been hired to perform the work by the building’s owner.
The locksmith moved to have the case dismissed on the ground that he
owed no duty to the plaintiff because they were not in privity; his contract
was with the owner of the building. Would you expect this argument to
succeed? Assume the locksmith did perform the work negligently and that
the attack on the plaintiff could not otherwise have occurred; the only
question is whether the locksmith owed the plaintiff a duty of care.
F. PURE ECONOMIC LOSSES
Robins Dry Dock & Repair Co. v. Flint

275 U.S. 303 (1927)
[The plaintiffs chartered a steamboat, the Bjornefjord. Their agreement

with the boat’s owners provided that the boat would be withdrawn from
service every six months for cleaning. During one of these cleanings a crack
was found in the boat’s propeller. The owners of the boat hired the Robins
Company to install a replacement. One of Robins’s employees negligently
dropped the new propeller; a new one therefore had to be cast, causing a
delay of two more weeks before the boat could be used by the plaintiffs.
The plaintiffs paid nothing to the owners of the boat for the time the boat
spent in dry dock, but they suffered losses when they were unable to use it
during the two weeks needed to cast a new propeller. The plaintiffs sued
Robins to collect for those losses. The district court gave judgment to the
plaintiffs, and the court of appeals affirmed. This appeal followed.]
HOLMES, J. — . . . The District Court allowed recovery on the ground

that the respondents had a “property right” in the vessel, although it is not
argued that there was a demise, and the owners remained in possession.
This notion [was] repudiated by the Circuit Court of Appeals and rightly.
The question is whether the respondents have an interest protected by the
law against unintended injuries inflicted upon the vessel by third persons
who know nothing of the charter. If they have, it must be worked out
through their contract relations with the owners, not on the postulate that
they have a right in rem against the ship.
Of course the contract of the petitioner with the owners imposed no
immediate obligation upon the petitioner to third persons as we already
have said, and whether the petitioner performed it promptly or with
negligent delay was the business of the owners and of nobody else. But as
there was a tortious damage to a chattel it is sought to connect the claim of
the respondents with that in some way. The damage was material to them
only as it caused the delay in making the repairs, and that delay would be a
wrong to no one except for the petitioner’s contract with the owners. The
injury to the propeller was no wrong to the respondents but only to those to
whom it belonged. But suppose that the respondent’s loss flowed directly
from that source. Their loss arose only through their contract with the
owners — and while intentionally to bring about a breach of contract may
give rise to a cause of action, no authority need be cited to show that, as a
general rule, at least, a tort to the person or property of one man does not
make the tort-feasor liable to another merely because the injured person was
under a contract with that other unknown to the doer of the wrong. The law
does not spread its protection so far. . . .
The decision of the Circuit Court of Appeals seems to have been
influenced by the consideration that if the whole loss occasioned by keeping
a vessel out of use were recovered and divided a part would go to the
respondents. It seems to have been thought that perhaps the whole might
have been recovered by the owners, that in that event the owners would
have been trustees for the respondents to the extent of the respondents’
share, and that no injustice would be done to allow the respondents to
recover their share by direct suit. But justice does not permit that the
petitioner be charged with the full value of the loss of use unless there is
some one who has a claim to it as against the petitioner. The respondents
have no claim either in contract or in tort, and they cannot get a standing by
the suggestion that if some one else had recovered it he would have been
bound to pay over a part by reason of his personal relations with the
respondents. . . .
Decree reversed.
NOTES
1. Harm to others. The Robins case bears some resemblance to Moch

and the other privity cases just considered (you may recall that Cardozo
quoted Robins in the Moch case). Robins has come to stand, however, for
the notion that a plaintiff generally cannot recover for pure economic loss
caused by negligent injury to the person or property of someone else. The
Robins rule thus extends to cases arising from freestanding acts of
negligence not committed in the course of performing a contract. (To make
the point clearer, imagine that the propeller in Robins had been broken by
an unrelated passerby who jostled the employee who was holding it; under
the holding of Robins, the plaintiffs would have been unable to recover
against the passerby.) Robins was a decision made by the Supreme Court
under its admiralty jurisdiction, and it thus bound other federal courts
hearing maritime cases. It also has become a significant common law
authority more generally, but the courts have struggled to define the limits
of the principle and exceptions to it.
2. Favorites of admiralty. In Carbone v. Ursich, 209 F.2d 178 (9th Cir.
1953), the plaintiffs were fishermen on the Western Pride, a sardine fishing
boat. They had no property interest in the boat or nets, but had a “lay”
agreement entitling them to 61 percent of the proceeds from sale of
whatever sardines they caught. During their voyage, and while the plaintiffs
were pulling in a catch, the nets on their boat were fouled by the negligence
of another boat, the Del Rio. The Western Pride had to be taken out of
commission for four days to repair the nets. The plaintiffs sued the owners
of the Del Rio to collect for their losses during that period. The district court
gave judgment to the defendants; the court of appeals reversed, holding the
plaintiffs entitled to collect their damages:
[A] reexamination of what was said in Robins Dry Dock convinces us
that the court was there dealing with decidedly different principles
than those which should attach to the situation of these fishermen. . . .
It is quite evident that the court, although dealing with a well
established rule of law of torts, was not thinking of the special
situation of the fishermen who . . . had long been recognized as
beneficiaries under a special rule which made the wrongdoer liable
not only for the damage done to the fishing vessel, but liable for the
losses of the fishermen as well. This long recognized rule is no doubt
a manifestation of the familiar principle that seamen are the favorites
of admiralty and their economic interests entitled to the fullest
possible legal protection.
What is the distinction between Carbone v. Ursich and Robins Dry

Dock & Repair Co. v. Flint?
3. Villains of admiralty. In Henderson v. Arundel Corp., 262 F. Supp.
152 (D. Md. 1966), the plaintiffs were crew members aboard the Dredge
Lyon, a boat equipped with scooping machinery to deepen waterways. The
vessel was dredging the channel of Baltimore Harbor when it collided with
another boat, the Prahsu; the crew of the dredge was laid off for about six
weeks while repairs were performed. The crew members sued the company
that owned the Prahsu, claiming that it was responsible for the collision and
thus for their lost wages. The trial court gave judgment to the defendants,
relying on Robins and citing with approval the following passage from
Casado v. Schooner Pilgrim, Inc., 171 F. Supp. 78 (D. Mass. 1959):
The only way to permit recovery here would be to say frankly, as has
been done by the Ninth Circuit, that a “special rule” obtains for
fishermen. Carbone v. Ursich, 209 F.2d 178 (9th Cir. 1953). With all
respect to that learned court, I do not believe that to say “seamen are
the favorites of admiralty” should be to create a corresponding class
of villains on whom to impose a new type of liability. In Carbone v.
Ursich there was only a four day interruption of fishing. But suppose
a fishing vessel were sunk outright. Would all members of the crew
be entitled to compensation until they obtain new employment, or if
that employment were on a less profitable ship, for the difference? I
believe the fundamental principles of liability should be the same,
whether employees are fishermen, or factorymen.
The court of appeals affirmed without opinion. 384 F.2d 998 (4th Cir.
1967).
4. Refined distinctions. In Yarmouth Sea Products Ltd. v. Scully, 131
F.3d 389 (4th Cir. 1997), the defendant’s racing boat, the Coyote, collided
with the plaintiff’s fishing boat, the Lady Olive Marie, and punctured its
hull. The collision took the Marie out of commission and ended its fishing
voyage. The captain and crew of the Marie sued the pilot of the Coyote to
recover for their lost wages; they had been working under a lay agreement
in which their wages consisted of a share of the catch they obtained. The
trial court gave judgment to the plaintiffs. The court of appeals affirmed; it
started by denying that Henderson, which had been affirmed by the Fourth
Circuit 30 years earlier, controlled the outcome:
[D]redge workers are not fishermen, as are the crew members of the
Lady Olive Marie in the case sub judice. Furthermore, dredge
workers do not, as Yarmouth correctly argues, invest in a voyage as
do fishermen on a lay, nor are they typically paid a percentage of the
profits. Rather, they are compensated on the basis of a fixed wage
scale. Thus, we are persuaded that Henderson is distinguishable from
and not controlling in the instant case. Accordingly, we regard the
issue of whether fishermen on lay shares can recover lost profit from
a fishing voyage prematurely ended by the tortious conduct of a third
party as an open issue in this circuit. . . .
The situation of the fishermen in the instant case differs not only
from that of dredge workers, but also from that of the time charterers
in Robins Dry Dock. Unlike the purely contractual relationship
between the time charterers and the vessel owners in Robins Dry
Dock, Yarmouth and the crew of the Lady Olive Marie were engaged
in a kind of joint venture. Both parties were entitled to a percentage
of revenues from the voyage — revenues that for fishermen
constituted their very livelihood, a critical fact recognized [in
Carbone and in Miller Industries v. Caterpillar Tractor Co., 733 F.2d
813, 822 (11th Cir. 1984)]. The Miller Industries court also noted that
where the fishermen’s wages are dependent on the vessel’s catch and
that vessel is tortiously incapacitated, their losses are as foreseeable
and direct a consequence of the tortfeasor’s actions as the
shipowner’s loss of use. Hence, they are unlike the time charterer in
Robins Dry Dock [sic] whose contract with the shipowner is impaired
“unknown to the doer of the wrong[.]”
Does Yarmouth succeed in harmonizing the cases? In any event, it

represents the majority rule: fishermen can collect lost income when the
boats on which they served are negligently disabled.
5. Urban applications. In 532 Madison Avenue Gourmet Foods, Inc. v.
Finlandia Center, Inc., 750 N.E.2d 1097 (N.Y. 2001), the defendant owned a
39-story office building in Manhattan; the plaintiff owned a 24-hour
delicatessen half a block away. The south wall of the defendant’s building
collapsed while renovations were being performed on it. City officials
ordered Madison Avenue and the nearby side streets closed to automobile
and foot traffic for two weeks and the area immediately around the
defendant’s building closed for a longer period. The plaintiff had to shut
down the delicatessen for more than a month. The plaintiff brought suit
alleging that the defendant’s negligence caused the collapse and seeking to
collect lost profits from the resulting five weeks during which he was
forced to close his business. The trial court dismissed the complaint. The
Appellate Division reversed:
A deviation from the “economic loss rule” is appropriate on the facts

of this case because of defendants’ alleged knowledge and reckless
disregard of the risk of creating approximately 90 new windows
throughout the south wall of a skyscraper, and conducting other
renovation to the base of this building, which already had major pre-
existing structural defects. Under such alleged scenario, defendants
should have anticipated that those pre-existing problems would
negatively affect the planned renovation, and could foreseeably result
in injury to others. That the injuries were not catastrophic to the
thousands of people who generally frequent this area was fortuitous,
because the collapse took place on a Sunday, shortly after noon.
Allowing the negligence cause of action here to proceed properly
allocates the risk of loss and the costs of engaging in dangerous
activities such as defendants are alleged to have done. Holding
defendants liable for their tortious acts creates an incentive for others
not to follow suit but to act reasonably with regard for the safety of
others. . . . In this case of alleged egregious negligence, denying
recovery simply because there was no incidental property damage to
plaintiff’s store would foreclose redress based upon a meaningless
technicality. . . . We reject the dissent’s conclusion that a neighboring
plaintiff who does not suffer injury or property damage is not entitled
to legal protection against the willful, grossly irresponsible behavior
of defendants who cause the collapse of a wall of a skyscraper.
The New York Court of Appeals then consolidated this case with others
arising from the same incident where the Appellate Division likewise had
found liability, and ordered the complaints dismissed in all of them:
A landowner who engages in activities that may cause injury to

persons on adjoining premises surely owes those persons a duty to
take reasonable precautions to avoid injuring them. We have never
held, however, that a landowner owes a duty to protect an entire
urban neighborhood against purely economic losses. . . .
Policy-driven line-drawing is to an extent arbitrary because,
wherever the line is drawn, invariably it cuts off liability to persons
who foreseeably might be plaintiffs. . . . While the Appellate Division
attempted to draw a careful boundary at storefront merchant-
neighbors who suffered lost income, that line excludes others
similarly affected by the closures — such as the law firm, public
relations firm, clothing manufacturer and other displaced plaintiffs in
[a related case], the thousands of professional, commercial and
residential tenants situated in the towers surrounding the named
plaintiffs, and suppliers and service providers unable to reach the
densely populated New York City blocks at issue in each case.
As is readily apparent, an indeterminate group in the affected
areas thus may have provable financial losses directly traceable to the
two construction-related collapses, with no satisfactory way
geographically to distinguish among those who have suffered purely
economic losses. In such circumstances, limiting the scope of
defendants’ duty to those who have, as a result of these events,
suffered personal injury or property damage — as historically courts
have done — affords a principled basis for reasonably apportioning
liability.
What is the distinction between 532 Madison Avenue Gourmet Foods,

Inc. v. Finlandia Center, Inc. and Glanzer v. Shepard (or for that matter
Biakanja v. Irving) from the earlier part of this chapter covering the privity
limitation?
6. Loss of power. In Newlin v. New England Telephone & Telegraph

Co., 54 N.E.2d 929 (Mass. 1944), the plaintiff grew mushrooms in an
indoor factory. The defendant company owned a telephone pole nearby. The
telephone pole fell over, and in the process it took down an adjacent power
line belonging to an unrelated electric company. This interrupted the flow
of electrical current to the plaintiff’s mushroom farm, and without it the
plaintiff was unable to keep the mushrooms at a sufficiently cool
temperature; the heat rose and eventually the mushrooms were ruined. The
plaintiff sued the defendant to recover for his losses, claiming the telephone
pole had been negligently maintained. The defendant moved to dismiss the
complaint.
Held, for the plaintiff, that the complaint stated a good cause of action.
What is the distinction between Newlin v. New England Telephone &
Telegraph Co. and 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia
Center, Inc.?
7. Loss of goalie. In Phoenix Professional Hockey Club, Inc. v. Hirmer,
502 P.2d 164 (Ariz. 1972), the plaintiff owned a professional hockey team.
Its goalie, one Caley, was injured in an automobile accident that the plaintiff
alleged was caused by the negligence of the defendant, Hirmer.
Consequently the plaintiff had to hire a substitute goalie for the remainder
of the season. The plaintiff sued Hirmer to recover the cost of hiring the
substitute. The defendant moved to dismiss the complaint.
Held, for the defendant, that the complaint failed to state a good cause
of action.
What is the distinction between Phoenix Professional Hockey Club, Inc.
v. Hirmer and Newlin v. New England Telephone & Telegraph Co.?
8. Stop the presses (problem). In Byrd v. English, 117 Ga. 191 (1903),
Byrd owned a publishing firm in Atlanta. The defendant, English, was
building a house nearby. In the course of the excavations to create a
basement for the house, the defendant’s agents removed earth from under
an adjacent sidewalk in violation of a city ordinance. In the process they
negligently severed power lines running from the Georgia Electric Light
Company to Byrd’s printing plant. The plant was deprived of electrical
current and unable to operate for several hours until the wires were
repaired. Byrd sued English to recover the profits lost while the power was
out. The defendant moved to dismiss the complaint. What result?
9. Attacking the rule. In People Express Airlines, Inc. v. Consolidated
Rail Corp., 495 A.2d 107 (N.J. 1985), a fire started at the defendant’s rail
yard, creating a risk that a nearby tank car full of ethylene oxide, a volatile
chemical, would explode. The City of Newark ordered the evacuation of the
area within a one-mile radius. The evacuated area included the north
terminal at Newark International Airport, where the plaintiff’s business
operations were based. The feared explosion never occurred, but the
plaintiff’s employees were unable to work for 12 hours and many of its
flights were canceled as a result. The plaintiff brought suit claiming that the
fire was caused by the defendant’s negligence and seeking to recover for its
losses. The trial court gave summary judgment to the defendants, finding
recovery barred by the economic loss doctrine. The New Jersey Supreme
Court disagreed:
Judicial discomfiture with the rule of nonrecovery for purely

economic loss throughout the last several decades has led to
numerous exceptions in the general rule. Although the
rationalizations for these exceptions differ among courts and cases,
two common threads run throughout the exceptions. The first is that
the element of foreseeability emerges as a more appropriate analytical
standard to determine the question of liability than a per se
prohibitory rule. The second is that the extent to which the defendant
knew or should have known the particular consequences of his
negligence, including the economic loss of a particularly foreseeable
plaintiff, is dispositive of the issues of duty and fault.
One group of exceptions is based on the “special relationship”
between the tortfeasor and the individual or business deprived of
economic expectations. [The court cited a number of cases, including
Glanzer v. Shepard and Biakanja v. Irving.] . . . A related exception in
which courts have allowed recovery for purely economic losses has
been extended to plaintiffs belonging to a particularly foreseeable
group, such as sailors and seamen, for whom the law has traditionally
shown great solicitude. See Carbone v. Ursich, 209 F.2d 178 (9th Cir.
1953). . . .
These exceptions expose the hopeless artificiality of the per se
rule against recovery for purely economic losses. When the plaintiffs
are reasonably foreseeable, the injury is directly and proximately
caused by defendant’s negligence, and liability can be limited fairly,
courts have endeavored to create exceptions to allow recovery. The
scope and number of exceptions, while independently justified on
various grounds, have nonetheless created lasting doubt as to the
wisdom of the per se rule of nonrecovery for purely economic losses.
Indeed, it has been fashionable for commentators to state that the rule
has been giving way for nearly fifty years, although the cases have
not always kept pace with the hypothesis. . . .
We hold therefore that a defendant owes a duty of care to take
reasonable measures to avoid the risk of causing economic damages,
aside from physical injury, to particular plaintiffs or plaintiffs
comprising an identifiable class with respect to whom defendant
knows or has reason to know are likely to suffer such damages from
its conduct. A defendant failing to adhere to this duty of care may be
found liable for such economic damages proximately caused by its
breach of duty. . . .
Among the facts that persuade us that a cause of action has been
established [here] is the close proximity of the North Terminal and
People Express Airlines to the Conrail freight yard; the obvious
nature of the plaintiff’s operations and particular foreseeability of
economic losses resulting from an accident and evacuation; the
defendants’ actual or constructive knowledge of the volatile
properties of ethylene oxide; and the existence of an emergency
response plan prepared by some of the defendants (alluded to in the
course of oral argument), which apparently called for the nearby area
to be evacuated to avoid the risk of harm in case of an explosion. We
do not mean to suggest by our recitation of these facts that actual
knowledge of the eventual economic losses is necessary to the cause
of action; rather, particular foreseeability will suffice.
The People Express case represents a break from the traditional rule; its
holding remains a minority position. Can the case nevertheless be
distinguished from 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia
Center, Inc.? (The New York Court of Appeals thought so, suggesting in its
opinion in the latter case that its decision was not inconsistent with the New
Jersey Supreme Court’s decision in People Express.)
10. Defending the rule. In Barber Lines A/S v. M/V Donau Maru, 764
F.2d 50 (1st Cir. 1985), the defendants’ ship, the Donau Maru, spilled oil
into Boston Harbor. The spill prevented the plaintiff’s ship, the Tamara,
from docking at a nearby berth; the vessel was required to unload its cargo
at a different pier, incurring extra docking and labor costs. The plaintiffs
sued the owners of the Donau Maru, claiming the oil spill was caused by
their negligence and seeking to recover the additional expenses to which
they were put as a result. The trial court dismissed the complaint, and the
court of appeals, per Breyer, J., affirmed, offering the following analysis in
support of its decision to adhere to the economic loss doctrine:
[C]ases and commentators point to pragmatic or practical

administrative considerations which, when taken together, offer
support for a rule limiting recovery for negligently caused pure
financial harm. The number of persons suffering foreseeable financial
harm in a typical accident is likely to be far greater than those who
suffer traditional (recoverable) physical harm. The typical downtown
auto accident, that harms a few persons physically and physically
damages the property of several others, may well cause financial
harm (e.g., through delay) to a vast number of potential plaintiffs.
The less usual, negligently caused, oil spill foreseeably harms not
only ships, docks, piers, beaches, wildlife, and the like, that are
covered with oil, but also harms blockaded ships, marina merchants,
suppliers of those firms, the employees of marina businesses and
suppliers, the suppliers’ suppliers, and so forth. To use the notion of
“foreseeability” that courts use in physical injury cases to separate the
financially injured allowed to sue from the financially injured not
allowed to sue would draw vast numbers of injured persons within
the class of potential plaintiffs in even the most simple accident cases
(unless it leads courts, unwarrantedly, to narrow the scope of
“foreseeability” as applied to persons suffering physical harm). That
possibility — a large number of different plaintiffs each with
somewhat different claims — in turn threatens to raise significantly
the cost of even relatively simple tort actions. Yet the tort action is
already a very expensive administrative device for compensating
victims of accidents. Indeed, the legal time, the legal resources, the
delay appurtenant to the tort action apparently mean that on average
the victim recovers only between 28 and 44 cents of every dollar paid
by actual or potential defendants, while victims who insure
themselves directly recover at least between 55 and 66 cents of each
premium dollar earned by insurance companies and between 85 and
90 cents of every dollar actually paid out to investigate and satisfy
claims. The added cost of the increased complexity, while
unknowable with precision, seems likely significant.
At the same time many of the “financially injured” will find it
easier than the “physically injured” to arrange for cheaper, alternative
compensation. The typical “financial” plaintiff is likely to be a
business firm that, in any event, buys insurance, and which may well
be able to arrange for “first party” loss compensation for foreseeable
financial harm. Other such victims will be able to sue under tort
principles, for they will suffer at least some physical harm to their
property. Still others may have contracts with, or be able to contract
with, persons who can themselves recover from the negligent
defendant. . . .
A second set of considerations focuses on the “disproportionality”
between liability and fault. . . . [L]iability for pure financial harm,
insofar as it proved vast, cumulative and inherently unknowable in
amount, could create incentives that are perverse. Might not
unbounded liability for foreseeable financial damage, for example,
make auto insurance premiums too expensive for the average driver?
Is such a result desirable? After all, the high premiums would reflect
not only the costs of the harm inflicted; they would also reflect
administrative costs of law suits, jury verdicts in uncertain amounts,
some percentage of unbounded or inflated economic claims, and
lessened incentive for financial victims to avoid harm or to mitigate
damage. . . .
It does not surprise us then that, under these circumstances, courts
have neither enforced one clear rule nor considered the matter case by
case. Rather, they have spoken of a general principle against liability
for negligently caused financial harm, while creating many
exceptions. . . . These exceptions seem designed to pick out broad
categories of cases where the “administrative” and
“disproportionality” problems intuitively seem insignificant or where
some strong countervailing consideration militates in favor of
liability. . . . We need not explore the exceptions in detail. Rather, we
here simply point to the existence of plausible reasons underlying the
judicial hesitance to award damages in a case like this one, and the
need to consider exceptions by class rather than case by case. The
existence of these factors, together with our comparative inability to
evaluate their empirical significance, cautions us against departing
from prior law.
G. THE NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
Sometimes a defendant’s negligence causes the plaintiff no physical injuries

but considerable fear or grief. Courts have struggled to find ways to
compensate for such reactions without creating a flood of litigation from
plaintiffs seeking to recover for their unhappiness. We consider the problem
here because courts most often address these problems — and frame their
limitations on recovery — as questions of duty.
Before considering the unsettled aspects of the law governing liability
for emotional distress, recall those features of the law that are settled and
will not be our concern here. All jurisdictions generally agree that there is
liability for the intentional infliction of emotional distress. They also agree
that if a defendant’s negligence causes the plaintiff a physical injury, the
defendant can be held liable not only for resulting medical expenses and
lost wages but also for emotional distress of various sorts that the injury
may cause. The difficult and more controversial problems involve cases
where the defendant’s negligence causes distress for the plaintiff without
any physical harm (except, perhaps, for physical ailments caused by the
distress itself). Though there are many different types of cases that can raise
these questions, there are two general types of fact patterns that tend to be
most common and important:
a. The first arises where the plaintiff is a direct victim of the defendant’s
negligence: “near miss” cases, for example, where a defendant acts
negligently toward the plaintiff, narrowly avoids causing physical
harm, yet puts the plaintiff in great fear; or cases where the defendant
commits some negligent act that involves no physical contact, such as
telling the plaintiff a terrible but mistaken piece of news.
b. The second family of cases involves the plaintiff who is not the direct
victim of negligence but who is a bystander — i.e., the horrified
witness of harm negligently inflicted upon another.
Cases in these two categories have provoked a range of judicial

responses in the second half of the twentieth century, sometimes
overlapping and sometimes distinct; most courts today allow recovery at
least some of the time in both situations, but they vary in the rules they use
to structure and limit the plaintiff’s cause of action.
Robb v. Pennsylvania Railroad Co.

210 A.2d 709 (Del. 1965)
[The defendant railroad negligently allowed a rut to form at one of its

crossings. The rear wheels of the plaintiff’s car got lodged in the rut,
leaving the rest of the car stuck on the tracks. After trying for several
minutes to move the car, the plaintiff saw one of the defendant’s trains
bearing down on her. She jumped from the stalled car with seconds to
spare; she had cleared the tracks by a few feet when the train hit her car,
demolishing it and hurling it into the air. The plaintiff suffered no physical
injuries but claimed to have suffered great fright and nervous shock that
physically interfered with her ability to nurse her child and perform her
work as a breeder of horses. The trial judge gave summary judgment to the
defendant on the ground that the plaintiff sustained no physical impact (the
“impact rule”). The plaintiff appealed.]
HERRMANN, J. — The question before us for decision is this: May the

plaintiff recover for the physical consequences of fright caused by the
negligence of the defendant, the plaintiff being within the immediate zone
of physical danger created by such negligence, although there was no
contemporaneous bodily impact?
The question is still an open one in this State. Two reported Delaware
cases and one unreported case border upon the field of inquiry, but none
really enter it. . . . Two facets of the question are herewith eliminated from
further consideration: First, it is accepted as settled that there can be no
recovery for fright alone, not leading to bodily injury or sickness, arising
from the negligence of another. The plaintiff here concedes that proposition,
stating however that she does not seek to recover for fright alone but for the
physical consequences thereof. Secondly, we are not here concerned with
the situation wherein fright arose from the peril of another and the plaintiff
was not in the path of the danger created by the negligence asserted. . . .
The two schools of thought in the matter at hand evolved from [cases]
originating about the turn of the century. . . . The impact rule is based,
generally speaking, upon three propositions expounded in [Mitchell v.
Rochester R. Co., 45 N.E. 354 (1896), and Spade v. Lynn & Boston R. Co.,
47 N.E. 88 (Mass. 1897)]:
1) It is stated that since fright alone does not give rise to a cause of
action, the consequences of fright will not give rise to a cause of
action. This is now generally recognized to be a non-sequitur, want
of damage being recognized as the reason that negligence causing
mere fright is not actionable. It is now generally agreed, even in
jurisdictions which have adopted the impact rule, that the gist of the
action is the injury flowing from the negligence, whether operating
through the medium of physical impact or nervous shock.
2) It is stated that the physical consequences of fright are too remote
and that the requisite causal connection is unprovable. The fallacies
of this ground of the impact rule, viewed in the light of growing
medical knowledge, were well stated by Chief Justice Maltbie in
Orlo v. Connecticut Co., 21 A.2d 402 (Conn. 1941). It was there
pointed out that the early difficulty in tracing a resulting injury back
through fright or nervous shock has been minimized by the advance
of medical science; and that the line of cases permitting recovery for
serious injuries resulting from fright, where there has been but a
trivial impact in itself causing little or no injury, demonstrate that
there is no insuperable difficulty in tracing causal connection
between the wrongdoing and the injury via the fright.
3) It is stated that public policy and expediency demand that there be no
recovery for the physical consequences of fright in the absence of a
contemporaneous physical injury. In recent years, this has become
the principal reason for denying recovery on the basis of the impact
rule. In support of this argument, it is said that fright is a subjective
state of mind, difficult to evaluate, and of such nature that proof by
the claimant is too easy and disproof by the party charged too
difficult, thus making it unsafe as a practical matter for the law to
deal with such claims. This school of thought concludes that to
permit recovery in such cases would open a “Pandora’s box” of
fictitious and fraudulent claims involving speculative and conjectural
damages with which the law and medical science cannot justly cope.
...
In considering the expediency ground, the Supreme Court of

Connecticut said in the Orlo case, supra:
. . . There is hardly more risk to the accomplishment of justice because

of disparity in possibilities of proof in such situations than in those
where mental suffering is allowed as an element of damage following
a physical injury or recovery is permitted for the results of nervous
shock provided there be some contemporaneous slight battery or
physical injury. Certainly it is a very questionable position for a court
to take, that because of the possibility of encouraging fictitious claims
compensation should be denied those who have actually suffered
serious injury through the negligence of another.
. . . It is our opinion that the reasons for rejecting the impact rule far
outweigh the reasons which have been advanced in its support.
The cause of action and proximate cause grounds for the rule have been
discredited in the very jurisdictions which first gave them credence. . . . If
more were needed to warrant a declination to follow the cause of action and
the proximate cause arguments, reference to the fictional and mechanical
ends to which the impact rule has been carried would suffice for the
purpose. The most trivial bodily contact, itself causing little or no injury,
has been considered sufficient to take a case out of the rule and permit
recovery for serious physical injuries resulting from the accompanying
fright. . . .
This leaves the public policy or expediency ground to support the
impact rule. We think that ground untenable.
It is the duty of the courts to afford a remedy and redress for every
substantial wrong. Part of our basic law is the mandate that “every man for
an injury done him in his . . . person . . . shall have remedy by the due
course of law . . .” Del. Const. Art. 1, §9, Del. C. Ann. Neither volume of
cases, nor danger of fraudulent claims, nor difficulty of proof, will relieve
the courts of their obligation in this regard. None of these problems are
insuperable. Statistics fail to show that there has been a “flood” of such
cases in those jurisdictions in which recovery is allowed; but if there be
increased litigation, the courts must willingly cope with the task. As to the
danger of illusory and fictional claims, this is not a new problem; our courts
deal constantly with claims for pain and suffering based upon subjective
symptoms only; and the courts and the medical profession have been found
equal to the danger. Fraudulent claims may be feigned in a slight-impact
case as well as in a no-impact case. Likewise, the problems of adequacy of
proof, for the avoidance of speculative and conjectural damages, are
common to personal injury cases generally and are surmountable, being
satisfactorily solved by our courts in case after case. . . . We recognize that
“[e]xpediency may tip the scales when arguments are nicely balanced,”
Woolford Realty Co. v. Rose, 286 U.S. 319, 330; but, in our view, such nice
balance no longer exists as to the subject matter. . . .
We hold, therefore, that where negligence proximately caused fright, in
one within the immediate area of physical danger from that negligence,
which in turn produced physical consequences such as would be elements
of damage if a bodily injury had been suffered, the injured party is entitled
to recover under an application of the prevailing principles of law as to
negligence and proximate causation. Otherwise stated, where results, which
are regarded as proper elements of recovery as a consequence of physical
injury, are proximately caused by fright due to negligence, recovery by one
in the immediate zone of physical risk should be permitted. . . .
We conclude, therefore, that the Superior Court erred in the instant case
in holding that the plaintiff’s right to recover is barred by the impact rule.
The plaintiff claims physical injuries resulting from fright proximately
caused by the negligence of the defendant. She should have the opportunity
to prove such injuries and to recover therefor if she succeeds. The summary
judgment granted in favor of the defendant must be reversed and the cause
remanded for further proceedings.
NOTES
1. The near miss. The Robb case illustrates competing judicial impulses
at work in cases involving recovery for emotional distress: the desire to
provide compensation where the plaintiff’s suffering is clear and
understandable, and the worry that doing so will open the floodgates to
claims less compelling. The traditional common law rule balanced these
considerations by allowing plaintiffs to recover for emotional distress only
as an element of damages arising from traditional personal injuries caused
by physical contact. That requirement often was stretched, as noted in the
Robb opinion; in cases where the only real harm a plaintiff suffered was
emotional, courts were prepared to strain to find a personal injury to which
the claim for emotional distress could be attached as “parasitic.” Thus in the
celebrated case of Christy Bros. Circus v. Turnage, 144 S.E. 680 (Ga. App.
1928), a dancing horse at the plaintiff’s circus evacuated its bowels into the
lap of a woman sitting in the front row, causing much merriment among the
spectators. She sought recovery for emotional distress; the recovery was
allowed, but only because it was framed as damages for the physical injury
the defendant was said to have inflicted on her. Meanwhile, in Mitchell v.
Rochester Ry. Co., 45 N.E. 354 (N.Y. 1896), the defendant’s car, pulled by a
team of horses, turned toward the plaintiff in the street and did not stop until
the horses’ heads were on either side of her. The plaintiff collapsed from
fright and suffered a miscarriage. Recovery was denied because she had not
been touched, the court holding that there could be no recovery for fright
alone.
A few courts continue to require physical contact before awarding
damages for emotional distress, but most now employ different tests. Thus
we see the court in Robb limit recovery to a plaintiff whose emotional
distress caused her physical problems and who was in the “immediate zone
of physical risk” created by the defendant’s negligence. A number of courts
have adopted similar requirements in place of the impact rule. They can
produce seemingly arbitrary results of their own, as illustrated by
Richardson v. J. C. Penney, 649 P.2d 565 (Okla. App. 1982). The plaintiffs
were a husband and wife whose brakes gave out while they were driving a
24-foot trailer down a winding mountain road. Although they managed to
stop the vehicle without injury, the incident caused them great emotional
distress. The wife was unable to recover because her distress resulted in no
physical symptoms; the husband was held to have a good claim, however,
because he alleged that the incident had given him an ulcer.
Other courts have gone farther than Robb in permitting liability,
requiring neither that plaintiffs be in any zone of actual danger nor that their
emotional distress cause physical injury. Instead they merely require that
the emotional distress be the foreseeable result of the defendant’s conduct
and that the plaintiff satisfy the jury that the distress suffered was serious.
The implications of such a broad position are unclear but potentially vast,
causing still other courts to join in dropping the requirement that the
plaintiff suffer physical injury or be within a zone of danger — but then
often to permit recovery only where the negligent act breaches a pre-
existing duty owed by the defendant to the plaintiff. The next cases examine
the operation of some of these approaches. This corner of tort law is newer
and less settled than most others in the book; as noted a moment ago, the
case law from different jurisdictions is more likely here than elsewhere to
be based on somewhat different tests. Here is the effort at clarity made by
Restatement Third, Torts: Liability for Physical and Emotional Harm:
§46. NEGLIGENT CONDUCT DIRECTLY INFLICTING EMOTIONAL

DISTURBANCE ON ANOTHER
An actor whose negligent conduct causes serious emotional

disturbance to another is subject to liability to the other if the
conduct:
(a) places the other in immediate danger of bodily harm and the
emotional disturbance results from the danger; or
(b) occurs in the course of specified categories of activities,
undertakings, or relationships in which negligent conduct is
especially likely to cause serious emotional disturbance.
To gain a more particular understanding of this area of law and its

difficulties, it naturally will help to consider more examples of facts that
have come before the courts, how they have been handled, and whether
they can be explained by reference to common principles and policies.
2. Frightened car salesmen. In Lawson v. Management Activities, Inc.,
81 Cal. Rptr. 2d 745 (Cal. App. 1999), one of the defendant’s jet aircraft
crashed in Santa Ana near a Honda dealership. The employees at the
dealership saw the plane go into its dive and feared that it was going to
crash into them. They sued to recover for their emotional distress. The trial
court dismissed the complaint. The court of appeals affirmed.
Can Lawson v. Management Activities, Inc. be distinguished from Robb
v. Pennsylvania Railroad Co.?
3. Tailspin. In Quill v. Trans World Airlines, 361 N.W.2d 438 (Minn.
1985), the plaintiff was a passenger on a TWA flight from New York to
Minneapolis. The plane was cruising at 39,000 feet when it suddenly went
into an uncontrolled tailspin. It plummeted for about 40 seconds; the pilots
regained control of the aircraft five seconds before it would have crashed
into the ground. The plane then landed in Detroit. Neither the plaintiff nor
the other passengers suffered any physical injuries. The plaintiff alleged,
however, that during the plane’s descent he was certain that he was about to
die. His business required him to take about 60 flights each year, and on
account of his experience on the defendant’s plane his air travels now were
accompanied by anxiety, adrenaline surges, sweaty hands, and an elevated
pulse and blood pressure. The trial court allowed the case to go to a jury on
the plaintiff’s claim for negligent infliction of emotional distress; the jury
awarded him $50,000. The Minnesota Supreme Court affirmed.
What is the distinction between Quill v. Trans World Airlines and
Lawson v. Management Activities, Inc.? The court in the Quill case used a
“zone of danger” rule similar to the one in Robb. How might you
nevertheless argue that Quill would come out the same way under the
analysis performed in Lawson?
4. A confession of incompetence? In Johnson v. Jamaica Hospital, 467
N.E.2d 502 (N.Y. 1984), the plaintiffs were parents of a girl, Kawana, who
was born in the defendant’s hospital in Queens. Kawana was abducted from
the hospital’s nursery by a stranger. She was recovered by the police four
months later. The plaintiffs sued the hospital to recover for the emotional
distress they suffered in the interim, alleging that the incident was the result
of the hospital’s negligence. The trial court held that the complaint stated a
good cause of action, and the Appellate Division affirmed. The New York
Court of Appeals reversed:
Plaintiffs contend, and the courts below concluded, that their

complaint states a cause of action because the defendant hospital
owed a duty directly to them, as parents, to care properly for their
child, and that it was or should have been foreseeable to defendant
that any injury to Kawana, such as abduction, would cause them
mental distress. There is no basis for establishing such a direct duty. .
. . The direct injury allegedly caused by defendant’s negligence —
abduction — was sustained by the infant, and plaintiffs’ grief and
mental torment which resulted from her disappearance are not
actionable. The foreseeability that such psychic injuries would result
from the injury to Kawana does not serve to establish a duty running
from defendant to plaintiffs, and in the absence of such a duty, as a
matter of law there can be no liability. That sound policy reasons
support these decisions is evident here, for to permit recovery by the
infant’s parents for emotional distress would be to invite open-ended
liability for indirect emotional injury suffered by families in every
instance where the very young, or very elderly, or incapacitated
persons experience negligent care or treatment.
There is, similarly, no basis for establishing such a duty in the
contractual relationship between plaintiffs and defendant[.] . . . The
general rule in contract cases is that absent a duty upon which
liability can be based, there is no right of recovery for mental distress
resulting from the breach of a contract-related duty.
Nor can a duty to refrain from causing plaintiffs emotional
distress be predicated on any notion that defendant stood in loco
parentis while caring for the infant. First, there is no basis for a
finding that defendant stood in loco parentis. That status requires
more than mere temporary care and custody; an intent to support and
care for the child on a permanent basis must be shown. A finding that
one stands in loco parentis cannot be based solely upon a relationship
where, as here, one is compensated for providing services to a child. .
..
Meyer, J., dissented:

We have recently recognized in relation to mental distress “that the
drawing of any line necessarily differentiates between close cases,”
Kennedy v. McKesson Co., 448 N.E.2d 1332 (N.Y. 1983). But the line
should not be arbitrarily or artificially drawn. Where, as here, parents
have been subjected by the hospital’s failure to protect their right to
custody of their child to the anguish of not knowing for a period of
four months where the child was, or whether she was alive or dead,
there is a sufficient guarantee of genuineness and seriousness of their
claim to warrant its submission to a trier of fact. To hold under such
circumstances that there is no duty “is a pitiful confession of
incompetence on the part of courts of justice.” Simone v. Rhode Is.
Co., 66 A. 202 (R.I. 1907).
Would the plaintiffs have been able to recover under any of the other
tests considered so far in this section?
5. Guarantees of genuineness. In Perry-Rogers v. Obasaju, 723
N.Y.S.2d 28 (App. Div. 2001), the plaintiffs were a couple who underwent
in vitro fertilization at the defendant’s clinic. The clinic mistakenly
implanted an embryo created by the plaintiffs into the uterus of another
patient, a woman named Fasano. Once the child was born, Fasano at first
refused to relinquish him; it took the plaintiffs four months to obtain and
enforce a court order awarding them the child. The plaintiffs sued the clinic
to recover for their emotional distress arising from these events. The trial
court held that the complaint stated a good cause of action, and the
Appellate Division affirmed:
We reject defendants’ argument that plaintiffs’ malpractice claim

must be dismissed since it seeks to recover only for emotional harm
caused by the creation of human life. Plaintiffs do not seek damages
for the emotional harm caused by the birth of a sick or unplanned
healthy child, and would not otherwise have the court calculate the
difference between existence and nonexistence. Rather, plaintiffs seek
damages for the emotional harm caused by their having been
deprived of the opportunity of experiencing pregnancy, prenatal
bonding and the birth of their child, and by their separation from the
child for more than four months after his birth. Damages for
emotional harm can be recovered even in the absence of physical
injury “when there is a duty owed by defendant to plaintiff, [and a]
breach of that duty result[s] directly in emotional harm.” Kennedy v.
McKesson Co., 448 N.E.2d 1332 (1983). There is no requirement that
the plaintiff must be in fear of his or her own physical safety.
However, “a plaintiff must produce evidence sufficient to guarantee
the genuineness of the claim,” Kaufman v. Physical Measurements,
615 N.Y.S.2d 508 (App. Div. 1994), such as “contemporaneous or
consequential physical harm,” which is “thought to provide an index
of reliability otherwise absent in a claim for psychological trauma
with only psychological consequences,” Johnson v. State of New
York, 334 N.E.2d 590 (N.Y. 1975). Here, it was foreseeable that the
information that defendants had mistakenly implanted plaintiffs’
embryos in a person whom they would not identify, which
information was not conveyed until after such person had become
pregnant, would cause plaintiffs emotional distress over the
possibility that the child that they wanted so desperately, as evidenced
by their undertaking the rigors of in vitro fertilization, might be born
to someone else and that they might never know his or her fate. These
circumstances, together with plaintiffs’ medical affidavits attesting to
objective manifestations of their emotional trauma, create a
“guarantee of genuineness” that makes plaintiffs’ claim for emotional
distress viable. Johnson v. Jamaica Hosp., 467 N.E.2d 502 (N.Y.
1984), is distinguishable in that it turned on the absence of a direct
duty owing to the parents of a newborn who was abducted from the
hospital. . . .
What is the distinction between Perry-Rogers v. Obasaju and Johnson v.

Jamaica Hospital? Is the court’s explanation satisfactory?
6. Fear of cancer. In Potter v. Firestone Tire & Rubber Co., 863 P.2d
795 (Cal. 1993), the plaintiffs lived next to the Crazy Horse landfill in
Salinas. The defendant, Firestone, dumped toxic industrial waste in the
landfill despite being told not to do so by the company managing it. The
chemicals, many of which were carcinogens, seeped into the plaintiffs’
wells and contaminated their water. The plaintiffs could not prove that they
had suffered any physical injury as a result, but they sued Firestone to
recover for their fear that their ingestion of the water eventually would
cause them to develop cancer. The trial court found in favor of the four
plaintiffs, concluding that their fears were reasonable; it awarded them a
total of $800,000. The California Supreme Court reversed. It did agree that
Firestone breached a duty to the plaintiffs and therefore might be held
liable:
[U]nless the defendant has assumed a duty to plaintiff in which the

emotional condition of the plaintiff is an object, recovery is available
only if the emotional distress arises out of the defendant’s breach of
some other legal duty and the emotional distress is proximately
caused by that breach of duty. . . . Those limits on recovery for
emotional distress caused by the negligent conduct of another do not
aid Firestone here, however. Firestone did violate a duty imposed on
it by law and regulation to dispose of toxic waste only in a class I
landfill and to avoid contamination of underground water. The
violation led directly to plaintiffs’ ingestion of various known and
suspected carcinogens, and thus to their fear of suffering the very
harm which the Legislature sought by statute to avoid. . . .
The court held, however, that the plaintiffs’ claims had to be measured
against a more demanding standard than the trial judge had used:
We cannot say that it would never be reasonable for a person who has
ingested toxic substances to harbor a genuine and serious fear of
cancer where reliable medical or scientific opinion indicates that such
ingestion has significantly increased his or her risk of cancer, but not
to a probable likelihood. Indeed, we would be very hard pressed to
find that, as a matter of law, a plaintiff faced with a 20 percent or 30
percent chance of developing cancer cannot genuinely, seriously and
reasonably fear the prospect of cancer. Nonetheless, we conclude, for
the public policy reasons identified below, that emotional distress
caused by the fear of a cancer that is not probable should generally
not be compensable in a negligence action.
As a starting point in our analysis, we recognize the indisputable
fact that all of us are exposed to carcinogens every day. . . . With this
consideration in mind, we believe the tremendous societal cost of
otherwise allowing emotional distress compensation to a potentially
unrestricted plaintiff class demonstrates the necessity of imposing
some limit on the class. Proliferation of fear of cancer claims in
California in the absence of meaningful restrictions might
compromise the availability and affordability of liability insurance for
toxic liability risks. . . . In the end, the burden of payment of awards
for fear of cancer in the absence of a more likely than not restriction
will inevitably be borne by the public generally in substantially
increased insurance premiums or, alternatively, in the enhanced
danger that accrues from the greater number of residents and
businesses that may choose to go without any insurance.
A second policy concern that weighs in favor of a more likely
than not threshold is the unduly detrimental impact that unrestricted
fear liability would have in the health care field. . . . Unless
meaningful restrictions are placed on this potential plaintiff class, the
threat of numerous large, adverse monetary awards, coupled with the
added cost of insuring against such liability (assuming insurance
would be available), could diminish the availability of new, beneficial
prescription drugs or increase their price beyond the reach of those
who need them most. . . .
A third policy concern to consider is that . . . to allow
compensation to all plaintiffs with objectively reasonable cancer
fears, even where the threatened cancer is not probable, raises the
very significant concern that defendants and their insurers will be
unable to ensure adequate compensation for those victims who
actually develop cancer or other physical injuries.
7. Fear of AIDS (problem). In Lombardo v. New York University

Medical Center, 648 N.Y.S.2d 658 (App. Div. 1996), the plaintiff was an
undertaker. While preparing the corpse of a person who died of AIDS he
pricked his finger on a syringe that was concealed in the folds of the shroud
that cloaked the body. He sued the hospital where the patient had died,
alleging that it negligently had allowed the syringe to remain in the shroud.
Tests several months after the incident showed that the plaintiff had not
contracted the HIV virus that causes AIDS; he nevertheless sought to
recover for the emotional distress he experienced during the window of
time between when he pricked his finger and when the tests came back
negative. What result?
8. The problem of bystanders. The common law traditionally allowed no
recovery by the bystander who watched an accident injure someone else.
The rule requiring that the plaintiff suffer physical impact barred these
claims just as it barred other claims for pure distress. But as we saw in the
Robb case, courts gradually began to allow recovery when the distressed
plaintiff was in the zone of danger caused by the defendant’s negligence,
even where no impact occurred. This logic has been used as well to open
the door to recovery by bystanders. Thus some courts hold that a plaintiff
put in reasonable fear of injury can sue to recover for the distress caused by
seeing the injury befall someone else close by. A greater number of
jurisdictions — indeed, a majority — have followed the lead taken by the
California Supreme Court in Dillon v. Legg, 441 P.2d 912 (1968). Dillon
involved the most common and perhaps inviting case for relief: a mother
who saw her child get hit by a car. The mother was herself in no danger, but
the court nevertheless allowed her to recover for her emotional distress,
offering a set of factors for courts to use in deciding whether to permit
claims by a bystander: how close the bystander was to the accident; whether
the bystander actually saw it occur; and how closely related the bystander
was to the victim.
The states to follow Dillon have adjusted its holding in various ways;
they are united, however, in declining to hold that plaintiffs who observe
the infliction of an injury can recover only if they were in the zone of
danger themselves. The California court itself later made the elements of
recovery more definite and demanding in Thing v. La Chusa, 771 P.2d 814
(Cal. 1989), where recovery was limited to the plaintiff who “(1) is closely
related to the injury victim; (2) is present at the scene of the injury-
producing event at the time it occurs and is then aware that it is causing
injury to the victim; and (3) as a result suffers serious emotional distress —
a reaction beyond that which would be anticipated in a disinterested witness
and which is not an abnormal response to the circumstances.” Not all courts
agree. Again the Third Restatement has made an effort at summary:
§47. NEGLIGENT INFLICTION OF EMOTIONAL DISTURBANCE RESULTING

FROM BODILY HARM TO A THIRD PERSON.
An actor who negligently causes serious bodily injury to a third

person is subject to liability for serious emotional disturbance thereby
caused to a person who:
(a) perceives the event contemporaneously, and
(b) is a close family member of the person suffering the bodily
injury.
Some courts reject this approach, and some of those that accept its outlines
nevertheless differ on the details. Consider whether the following cases can
be reconciled.
9. Temporal proximity. In Marzolf v. Stone, 960 P.2d 424 (Wash. 1998),
Jeremy Marzolf was killed when his motorcycle collided with a bus. Ten
minutes later his father, Barton Marzolf, happened upon the scene of the
accident; emergency crews had not yet arrived. Jeremy was still alive but
was badly injured, and he died soon afterwards. Barton Marzolf sued the
driver of the bus and other parties for negligent infliction of emotional
distress. The trial court dismissed that count of the plaintiff’s complaint.
The Washington Supreme Court reversed:
A bright line rule that limits recovery for emotional distress to those
who witnessed the accident is attractive in its simplicity. However, it
draws an arbitrary line that serves to exclude plaintiffs without
meaningful distinction. The emotional trauma caused by seeing a
loved one injured at an accident scene stems not merely from
witnessing the transition from health to injury, but also from
witnessing the aftermath of an accident in all its alarming detail. . . .
Allowing recovery only to those who were present at the time of the
injury-causing event creates an arbitrary distinction.
10. Spatial proximity. In Gain v. Carroll Mill Co., 787 P.2d 553 (Wash.
1990), James Gain, a Washington State trooper, was killed when a truck hit
his squad car. His father saw live footage from the accident scene on the 11
o’clock news; he was able to read the license plate number of the police car
and thus realized that his son had died in the incident. He sued the driver of
the truck and other parties for negligent infliction of emotional distress. The
trial court gave summary judgment to the defendants on the ground that
recovery could not be had unless the plaintiff was present at the scene of the
accident. The Washington Supreme Court affirmed: “We conclude that
mental suffering by a relative who is not present at the scene of the injury-
causing event is unforeseeable as a matter of law. We reach this conclusion
after balancing the interest of the injured party to compensation against the
view that a negligent act should have some end to its legal consequences.”
What is the distinction between Gain v. Carroll Mill Co. and Marzolf v.
Stone?
11. The protective son. In Barnhill v. Davis, 300 N.W.2d 104 (Iowa
1981), the plaintiff was driving his car in West Des Moines and was being
followed by his mother, a woman named Maring. Her car was hit by
another driver. The plaintiff’s mother was slightly bruised in the accident,
but six weeks later she was found to have no physical ill-effects. The
plaintiff brought suit against the other driver to collect for the emotional
distress he had suffered in worrying about his mother; he claimed that the
distress had caused him dizziness, difficulty sleeping, and pain in his back
and legs. The trial court gave summary judgment to the defendant. The
Iowa Supreme Court reversed and remanded for trial: “It is reasonably
foreseeable that a son, who witnesses serious injury to his mother, may
suffer mental distress. . . . [W]e conclude Barnhill has at least minimally
generated a genuine issue of material fact on whether a reasonable person
would believe, and Barnhill did believe, that Maring, the direct victim,
would be seriously injured or killed by the accident.”
12. Mistakes. In Barnes v. Geiger, 446 N.E.2d 78 (Mass. App. 1983),
one Frances Barnes saw a car hit a pedestrian and hurl him 60 feet into the
air. The accident occurred near a place where she knew that her son was
playing. She ran to the scene of the accident, fearing that he had been the
victim. It turned out that the pedestrian hit by the car was an unrelated
party. The next day Mrs. Barnes died of a cerebral vascular hemorrhage.
Her husband sued the driver of the car, claiming that the hemorrhage had
been triggered by the elevation of Mrs. Barnes’ blood pressure caused by
witnessing the accident. The trial court gave summary judgment to the
defendant, and the court of appeals affirmed:
Whether the mistake be as to the identity of the victim, as here, or the

gravity of the injury, the anxiety, perforce, is transitory, and “a
fleeting instance of fear or excitement” does not present a set of
circumstances against which a tortfeasor can fairly be asked to
defend. Daily life is too full of momentary perturbation. Injury to a
child and the protracted anguish placed upon the witnessing parent is,
on the scale of human experience, tangible and predictable. Distress
based on mistake as to the circumstances is ephemeral and will vary
with the disposition of a person to imagine that the worst has
happened. We are unwilling to expand the circle of liability . . . to
such an additional dimension, because to do so expands unreasonably
the class of persons to whom a tortfeasor may be liable.
What is the distinction between Barnes v. Geiger and Barnhill v. Davis?

13. Dog day afternoon (problem). In Johnson v. Douglas, 723 N.Y.S.2d
627 (Sup. Ct. 2001), the plaintiffs, a couple named Johnson, were walking
their dog on a road in Lake Success when the defendant came down the
street in his car at a high rate of speed. Mrs. Johnson leapt out of the car’s
path, narrowly escaping serious injury; the dog, Coco, was crushed by the
automobile. The Johnsons sued the driver to recover for their emotional
distress. What result is suggested by the cases considered in this section?
1. Adapted from Landes & Posner, Altruism in Law and Economics, 68 Am. Econ. Rev. Papers &
Proceedings 417, 420 (1978), in Posner, Tort Law: Cases and Economic Analysis 412 (1982).
Chapter 5
Cause in Fact
Once a plaintiff has established that the defendant acted negligently, he

next must show that the negligence was the cause of his injuries. The law of
torts traditionally divides this question into two parts. The first issue, and
the subject of this chapter, is the requirement that the plaintiff show that the
defendant’s negligence was the “cause in fact” of the injuries. This typically
means demonstrating that the injuries would not have occurred if the
defendant had used due care; “but for” the defendant’s negligence, in other
words, the plaintiff would not have been hurt — though as we shall see, the
question sometimes becomes a bit more complicated than that. The second
issue, and the subject of Chapter 6, is whether the defendant’s negligence
was the “proximate cause” of the plaintiff’s injuries, which essentially
amounts to asking whether the injuries were too remote a result of the
negligence to permit recovery.
In many cases the cause in fact element is straightforward. Suppose
some steel doors on the sidewalk outside the defendant’s store are
mistakenly left open, and a pedestrian falls through them while walking in
the dark. Factual causation will not be an issue in the case: whether or not it
was negligent to leave the doors open, it’s at least clear that the plaintiff
would not have fallen into the cellar if they had been closed. In other
situations, however, it may be less clear whether the defendant’s untaken
precautions would have made a difference. Suppose the plaintiff’s decedent
dies in a hotel fire. The hotel negligently had failed to install fire escapes,
but the decedent was found still in his bed. Should the failure to provide fire
escapes be considered a cause of his death?
A. BUT-FOR CAUSATION
New York Central Railroad v. Grimstad

264 F. 334 (2d Cir. 1920)
[Angell Grimstad was captain of a barge that was moored in Brooklyn

harbor, loaded with sugar in transit from Havana to New Brunswick. A
tugboat bumped the barge. Grimstad’s wife, Elfrieda, felt the resulting
shock and came out from the cabin. She looked over one side of the barge
and saw nothing; she crossed the deck and looked over the other side, and
there saw her husband in the water about ten feet from the barge, holding up
his hands. He did not know how to swim. She ran back into the cabin for a
small line, but when she returned with it he had disappeared. Elfrieda
Grimstad sued the owner of the barge, claiming it negligently had failed to
provide lifesaving equipment on the vessel. The jury found for the plaintiff,
and the trial court entered judgment on the verdict. This appeal followed.]
WARD, J. — [After stating the facts:] Obviously the proximate cause of

the decedent’s death was his falling into the water, and in the absence of any
testimony whatever on the point, we will assume that this happened without
negligence on his part or on the part of the defendant. On the second
question, whether a life buoy would have saved the decedent from
drowning, we think the jury were left to pure conjecture and speculation. A
jury might well conclude that a light near an open hatch or a rail on the side
of a vessel’s deck would have prevented a person’s falling into the hatch or
into the water, in the dark. But there is nothing whatever to show that the
decedent was not drowned because he did not know how to swim, nor
anything to show that, if there had been a life buoy on board, the decedent’s
wife would have got it in time, that is, sooner than she got the small line, or,
if she had, that she would have thrown it so that her husband could have
seized it, or, if she did, that he would have seized it, or that, if he did, it
would have prevented him from drowning.
The court erred in denying the defendant’s motion to dismiss the
complaint at the end of the case.
Judgment reversed.
NOTES
1. Fairly and conclusively. In Gardner v. National Bulk Carriers, Inc.,

310 F.2d 284 (4th Cir. 1962), the plaintiff’s decedent, Gardner, was a
seaman aboard the defendant’s vessel, the S.S. Bulkcrude, en route from
New York to Corpus Christi. At around midnight one evening when the
boat was traveling near the Florida Keys, Gardner was found to be missing
from the ship. He had last been seen six hours earlier. The ship did not alter
its speed or course, and continued on its way to Corpus Christi, where it
arrived several days later. Gardner never was seen again.
Gardner’s administratrix sued the defendant under the Jones Act, a
federal statute allowing seamen to recover for injuries caused by the
negligence of a ship’s owner or master. The trial court found the conclusion
“inescapable” that Gardner had gone overboard between 6:30 P.M. and 11:40
P.M., and had died sometime thereafter, concluding that “whether he met his
death by drowning, by becoming involved with the ship’s propeller, or by
falling victim to a shark, barracuda, or other marine life, is immaterial.” The
court then exonerated the ship’s owners, finding that the ship’s master acted
reasonably: the ship had traveled over 100 miles since Gardner had last
been seen; it was unknown where he had gone overboard; it was a moonless
night; and as noted Gardner might already have fallen prey to marine life in
the area. Citing New York Central Ry. v. Grimstad, the court announced its
holding that “the master of the Bulkcrude was not negligent in failing to
reverse his course for the purpose of conducting a search, and that, in any
event, there was no reasonable possibility of success and, hence, there was
no causal relation between the negligence, if any, and the death[.]”
The court of appeals reversed, giving judgment as a matter of law to the
libelant (the maritime plaintiff):
It can indeed be speculated, as the respondents suggest, that the

seaman slipped, fainted or otherwise involuntarily went overboard, or
that he entered the water bent on self-destruction. Likewise, it is
conceivable that he was killed in the fall, cut to pieces by the
propeller or drowned immediately; also, there may be speculation as
to the precise point in time when these events occurred. But only one
thing is known with certainty: often seamen who fall overboard
survive for many hours in the water.
The decisive question is, what was the master’s duty in the
present circumstances? The court found as a fact that turning back
would have entailed no risk. The only thing that would have been lost
in attempting rescue was time; the Bulkcrude might have reached its
destination a half-day late, at the most. . . .
In the circumstances of this case, the inaction of the master
established a neglect of the duty of rescue — a neglect from which a
contributing cause of the seaman’s death is fairly and conclusively
drawn by law.
What is the distinction between Gardner v. National Bulk Carriers and

New York Central R.R. v. Grimstad?
2. Ice capades. In Stacy v. Knickerbocker Ice Co., 54 N.W. 1091 (Wis.

1893), the defendant ice company was in the business of cutting ice that
formed in Fowler Lake, in Oconomowoc, and removing it to ice houses.
The defendant hired horses from the plaintiff to help scrape snow off the
surface of the ice. As one of the defendant’s employees, Clifford, was
hitching the horses to a scraper, two of the horses became frightened,
perhaps by the sound of other scrapers. The horses reared and ran across the
ice despite efforts by the defendant’s employees to restrain them. After
running about 100 feet the horses reached an area where the ice was thin
because it recently had been harvested; a fresh snowfall made the thin ice
indistinguishable from the thick, and no other signals had been erected to
mark or block the area. The horses fell through the thin ice and drowned.
The plaintiff brought this action to recover the value of the horses,
charging that the defendant had been negligent in three ways: by failing to
erect a fence around the thin ice, as required by statute; by failing to notify
its employees of the location of the thin ice; and by failing to keep ropes
and other equipment near the lake that could have been used to pull the
horses out of the water before they drowned. The trial court directed a
verdict for the defendant, and the Wisconsin Supreme Court affirmed:
The testimony has been examined, and we think it demonstrates that,

had all these precautions been taken, they would not have saved the
horses.
I. They were uncontrollable, were rearing and plunging, and
getting away from the place where they became frightened as rapidly
as they could. The fence of the statute (which is a single fence board
nailed on 2 by 4 inch posts, 3½ feet from the surface upon which the
posts stand) would have been but gossamer before those powerful
horses, frantic with fright, upon whom two strong men could make no
impression. . . .
II. Exact knowledge by Clifford of the location of the thin ice is
not a possible factor in the loss of the horses, for, had he been fully
advised where the thin ice commenced, he was powerless to prevent
the horses going upon it. He went into the water with them, and was
rescued. Were he suing the plaintiff for negligence, we would have a
case where the fact that he had not such knowledge might be
material, but we do not regard it material here.
III. We are aware of no rule of law which required the ice
company to have, at the place and time of the accident, ropes and
appliances suitable for use in hauling the horses out of the water.
Moreover, had such ropes and appliances been there at the time, the
proof is quite conclusive that they would have been of no avail. The
horses fell into deep water and went under the ice, and were
undoubtedly dead when the bystanders had succeeded in rescuing
Clifford, who came near being drowned.
What is the superficial similarity between Stacy v. Knickerbocker Ice

Co. and Gardner v. National Bulk Carriers, Inc.? What is the distinction
between them?
3. The missing sign. In Haft v. Lone Palm Hotel, 478 P.2d 465 (Cal.
1970), the plaintiff sued the defendant motel for the wrongful death of her
husband and five-year-old son, who drowned while swimming in the
motel’s pool. The plaintiff’s family was vacationing in Palm Springs. Mr.
Haft and his son were poor swimmers who could not put their faces under
the water; Mrs. Haft warned them not to swim. No one witnessed the
drowning of the Hafts. A guest observed them in the morning, splashing
and playing on floats; about half an hour later, the same guest found their
bodies submerged in the deep end.
The plaintiff established that the motel had failed to provide any of the
safety measures required by statute. Specifically, the motel had failed to
obey Cal. Health & Safety Code §24101.4, which required the motel to
provide lifeguard services or to post a sign warning that no lifeguard was
present. The plaintiff requested jury instructions that the defendant’s failure
to provide lifeguard service was a cause of the Hafts’ deaths as a matter of
law. “Plaintiffs argued that since defendant had failed to comply with the
alternative of erecting a sign, they were under a mandatory obligation to
provide lifeguard service; given this duty, plaintiffs urged that any
reasonable jury would be compelled to conclude from the facts disclosed at
trial that the presence of a reasonably attentive lifeguard would have
averted the tragedies.” The trial judge refused to instruct the jury
accordingly, and the jury found for the defendant. The plaintiff appealed.
Held, for the plaintiff, that the jury was misinstructed and that there
must be a new trial. Said the court:
Defendants suggest that since their pool falls into the category of
pools in which the statutory obligation would be satisfied by the
posting of an adequate sign, the consequences of their failure to meet
the statutory demands ought to be limited to harm caused by the non-
erection of the warning notice. The language of the section makes
clear, however, that the underlying requirement of this statute, for
pools of either category, is the provision of “lifeguard service,” and
we believe that the legislative intent would be nullified if a pool
owner were permitted to avoid this important requirement by pointing
to the fact that he failed to comply with the statutory substitute as
well. Defendants’ factual argument in this case duly illustrates the
manner in which the protection afforded by section 24101.4 would be
undermined by an adoption of their interpretation of this requirement.
Although they failed to fulfill either statutory alternative, defendants
attempt to avoid liability by contending that since the decedents were
the only people in the pool area, the absence of a lifeguard must have
been obvious; if the absence of a lifeguard was obvious, the argument
continues, defendants’ failure to post a sign notifying decedents of
this absence could be of no significance. Defendants thus conclude
that this negligence was not a “proximate cause” of the resulting
injury. We have no doubt that this is an argument which would
commonly be made by noncomplying pool owners in such cases. . . .
A pool owner . . . can facilely assert that a given individual would
have gone in swimming even if there had been a “no lifeguard” sign
posted; it is quite difficult, in contrast, for a plaintiff, especially in a
wrongful death action, to prove that a warning sign would have had
the intended cautionary effect. We do not believe that the Legislature,
in giving some pool owners the option of fulfilling the lifeguard
requirement by posting an adequate sign, intended, in effect, to
withdraw the protection of section 24101.4 in a significant percentage
of all cases. . . .
Upon defendants’ failure to provide lifeguard services, the burden
shifted to them to prove that their violation was not a proximate cause
of the deaths; in the absence of such proof, defendants’ causation of
such death is established as a matter of law.
What is the superficial similarity between Haft v. Lone Palm Hotel and
Stacy v. Knickerbocker Ice Co. (NL where the plaintiff’s horses fell through
ice and drowned, despite defendant’s failure to mark the dangerous area or
take other precautions)? What is the distinction between them? What is the
analogy between Haft v. Lone Palm Hotel and Gardner v. National Bulk
Carriers, Inc.?
4. Informed consent. In Bernard v. Char, 903 P.2d 667 (Haw. 1995), the
plaintiff, Bernard, complained to his dentist, the defendant Char, of an
excruciating toothache. Char examined Bernard and told him that tooth
number 15 — an upper left molar — was badly decayed and might be fused
to the bone behind it. Bernard was advised that he could address the
problem either by having the tooth extracted or with root canal surgery.
Bernard could not afford root canal surgery; he was unemployed and lacked
dental insurance. He therefore opted for the extraction. It became clear
during the extraction procedure that the tooth was indeed fused to the bone.
Char felt something “crack,” and Bernard said he was “shocked” to see
Char remove from his mouth “two teeth with the bone, and some meat and
stuff hanging off of it.” The procedure left Bernard with a dime-sized hole
leading from his mouth to his sinus cavity. Char advised Bernard not to
smoke cigarettes or blow his nose and told him to pack the wound with tea
bags to promote clotting, but Bernard continued to bleed; he also testified
that when he looked in the mirror the day after the extraction, his face was
swollen to such an extent that he “looked like the elephant man.” Bernard
recovered after several days of bleeding episodes and a visit to the hospital.
Bernard sued Char, claiming among other things that Char negligently
failed to inform him of the risks of having the tooth extracted. The jury
brought in a verdict for Bernard, and after a remittitur he was awarded
$35,000. Char appealed, claiming that he was entitled to a directed verdict
because Bernard failed to testify that he would not have had the procedure
if he had been fully informed of the risks. The Hawaii Supreme Court
affirmed, holding that causation in an informed consent suit “is to be judged
by an objective standard, that is, whether a reasonable person in the
plaintiff-patient’s position would have consented to the treatment that led to
his or her injuries had the plaintiff-patient been properly informed of the
risk of the injury that befell him or her.” In rejecting the “subjective”
approach of asking whether the plaintiff in fact would have declined the
procedure, the court cited this passage from Canterbury v. Spence, 464 F.2d
772, 790-791 (D.C. Cir. 1972):
[The subjective] method of dealing with the issue of causation comes

in second-best. It places the physician in jeopardy of the patient’s
hindsight and bitterness. It places the factfinder in the position of
deciding whether a speculative answer to a hypothetical question is to
be credited. It calls for a subjective determination solely on testimony
of a patient-witness shadowed by the occurrence of the undisclosed
risk.
The court in Bernard added that
[t]he practical benefits gained by application of the objective standard

[include] uniformity and ease of application. [V]iewing the question
from a core of reasonableness establishes an initially uniform
standard among cases from which adjustments for idiosyncracies may
be made. Under this rationale, the analytical exercise is grounded in
objective reasonableness, but the standard may still flexibly
accommodate the individual characteristics of each patient.
5. The rights of the unreasonable. While the objective standard used in
Bernard v. Char and Canterbury v. Spence is used in a majority of
jurisdictions, it has its detractors. See, e.g., Scott v. Bradford, 606 P.2d 554
(Okla. 1979), a leading case favoring a subjective inquiry:
The Canterbury view certainly severely limits the protection granted

an injured patient. To the extent the plaintiff, given an adequate
disclosure, would have declined the proposed treatment, and a
reasonable person in similar circumstances would have consented, a
patient’s right of self-determination is irrevocably lost. This basic
right to know and decide is the reason for the full-disclosure rule.
Accordingly, we decline to jeopardize this right by the imposition of
the “reasonable man” standard.
Id. at 559 (emphasis in original). Can you imagine a case in which the
distinction between the two approaches would make a difference?
6. Esthetic procedures. In Zalazar v. Vercimak, 633 N.E.2d 1223 (Ill.
App. 1993), the plaintiff, Zalazar, went to Vercimak, a plastic surgeon in the
town of Mendota, seeking to reduce the size of bags under her eyes. Her
evidence was that Vercimak said he could make her look 20 years younger,
and offered to perform the procedure for $318, the amount of Zalazar’s
weekly take-home pay from the factory where she worked. After the
surgery was complete, however, Zalazar suffered from bruising, numbness,
and lumps on her face; she resorted to wearing sunglasses all the time. After
four months most of the lumps had disappeared, but her eyes looked
droopy, with the lower lid hanging away from the eyeball on each side. She
ultimately received repair surgery from a hospital in Iowa City. She was
satisfied with the result but continued to suffer from some droopiness,
numbness, soreness, and excessive tearing in her eyes. Zalazar sued
Vercimak, claiming among other things that she never had been informed of
these risks of the procedure. The trial court gave a directed verdict to
Vercimak on the ground that Zalazar had failed to present objective
evidence that a reasonably prudent person in her position, informed of the
risks, would have refused the surgery. The trial judge said that “what I have
is the subjective standard. I have [plaintiff] saying that she’d not have done
it. I need something more than just that.”

[C]ases involving esthetic cosmetic surgery differ qualitatively from
procedures to address patients’ medical well being. Unlike
chiropractic, cobalt and X-ray treatments, and even tubal ligation, the
procedure in this case involves no medically significant benefits to
the patient and the alternative is simply to forego the procedure. What
kind of expert can objectively weigh the benefits and risks of such a
procedure in determining what a so-called “reasonable person” would
have decided? We do not believe that such an expert can be found.
Where no expert can objectively evaluate whether the failure to warn
was the proximate cause of the patient’s injury, no expert can be
required.
The underlying reason why courts have adopted the objective
standard and required the testimony of an expert witness is not
applicable in cases such as these. The objective standard and expert
witness requirement within informed consent cases arose from the
recognition that many medical procedures are not matters of common
knowledge or within the experience of laymen. Yet, unlike most
surgical procedures, the alternative to esthetic cosmetic surgery is
readily apparent to the laymen on the jury.
What is the distinction between Zalazar v. Vercimak and Bernard v.

Char? In Zalazar the doctor was arguing for an objective standard of
causation; in Bernard the doctor was arguing for a subjective standard.
Which standard is more likely to favor doctors in the long run?
Herskovits v. Group Health Cooperative of Puget Sound

664 P.2d 474 (Wash. 1983)
[The plaintiff’s decedent brought an action under Washington’s

wrongful death statute after the defendant failed to make an early diagnosis
of his lung cancer. Mr. Herskovits had been a patient of the Group Health
Cooperative for over 20 years. In December 1974, he came to the Group
Health Hospital with complaints of chronic coughing and chest pain. The
physician prescribed cough medicine. Herskovits’s health failed to improve.
Early in the summer of 1975, Herskovits consulted a physician outside
Group Health, Dr. Jonathan Ostrow, and was diagnosed with cancer in the
bronchus of his left lung. In July 1975, the lung was removed. Herskovits
died of cancer in March 1977. His estate continued the litigation.
[The plaintiff was unable to find an expert witness who would testify
that Group Health’s failure to make an earlier diagnosis had “probably” or
“more likely than not” caused her husband’s death. Dr. Ostrow testified that
there was no way of knowing how far the tumor in Herskovits’s lung had
developed by December 1974. He testified that, if the tumor had been
diagnosed at “Stage 1” in December, Herskovits’s chance of surviving for
five years was 39 percent. When the tumor was diagnosed in June 1975, it
was at “Stage 2.” A patient’s chance of surviving for five years after
diagnosis with a Stage 2 tumor is 25 percent. Ostrow concluded that Group
Health had probably reduced Herskovits’s chance of surviving for five
years from 39 percent to 25 percent.
[The defendant moved for summary judgment on the ground that the
plaintiff probably would have died from lung cancer even if Group Health
had diagnosed it correctly in December 1974. The trial court granted the
motion and dismissed the action, holding that “under Washington law the
loss of a possibility of survival is not compensable.” The plaintiff
appealed.]
DORE, J. — This appeal raises the issue of whether an estate can

maintain an action for professional negligence as a result of failure to
timely diagnose lung cancer, where the estate can show probable reduction
in statistical chance for survival but cannot show and/or prove that with
timely diagnosis and treatment, decedent probably would have lived to
normal life expectancy. . . .
The main issue we will address in this opinion is whether a patient, with
less than a 50% chance of survival, has a cause of action against the
hospital and its employees if they are negligent in diagnosing a lung cancer
which reduces his chances of survival by 14 percent. . . . Plaintiff contends
that medical testimony of a reduction of chance of survival from 39% to
25% is sufficient evidence to allow the proximate cause issue to go to the
jury. Defendant Group Health argues conversely that Washington law does
not permit such testimony on the issue of medical causation and requires
that medical testimony must be at least sufficiently definite to establish that
the act complained of “probably” or “more likely than not” caused the
subsequent disability. It is Group Health’s contention that plaintiff must
prove that Herskovits “probably” would have survived had the defendant
not been allegedly negligent; that is, the plaintiff must prove there was at
least a 51% chance of survival.
This court heretofore has not faced the issue of whether . . . proof that
the defendant’s conduct increased the risk of death by decreasing the
chances of survival is sufficient to take the issue of proximate cause to the
jury. Some courts in other jurisdictions have allowed the proximate cause
issue to go to the jury on this type of proof. These courts emphasized the
fact that defendants’ conduct deprived the decedents of a “significant”
chance to survive or recover, rather than requiring proof that with absolute
certainty the defendants’ conduct caused the physical injury. The underlying
reason is that it is not for the wrongdoer, who put the possibility of recovery
beyond realization, to say afterward that the result was inevitable.
Other jurisdictions have rejected this approach, generally holding that
unless the plaintiff is able to show that it was more likely than not that the
harm was caused by the defendant’s negligence, proof of a decreased
chance of survival is not enough to take the proximate cause question to the
jury. These courts have concluded that the defendant should not be liable
where the decedent more than likely would have died anyway.
The ultimate question raised here is whether the relationship between
the increased risk of harm and Herskovits’ death is sufficient to hold Group
Health responsible. Is a 36% (from 39 percent to 25%) reduction in the
decedent’s chance for survival sufficient evidence of causation to allow the
jury to consider the possibility that the physician’s failure to timely
diagnose the illness was the proximate cause of his death? We answer in the
affirmative. To decide otherwise would be a blanket release from liability
for doctors and hospitals any time there was less than a 50 percent chance
of survival, regardless of how flagrant the negligence. . . .
Where percentage probabilities and decreased probabilities are
submitted into evidence, there is simply no danger of speculation on the
part of the jury. More speculation is involved in requiring the medical
expert to testify as to what would have happened had the defendant not
been negligent. . . .
We reject Group Health’s argument that plaintiffs must show that
Herskovits “probably” would have had a 51% chance of survival if the
hospital had not been negligent. We hold that medical testimony of a
reduction of chance of survival from 39% to 25% is sufficient evidence to
allow the proximate cause issue to go to the jury.
Causing reduction of the opportunity to recover (loss of chance) by
one’s negligence, however, does not necessitate a total recovery against the
negligent party for all damages caused by the victim’s death. Damages
should be awarded to the injured party or his family based only on damages
caused directly by premature death, such as lost earnings and additional
medical expenses, etc.
We reverse the trial court and reinstate the cause of action.
PEARSON, J., concurring — . . . [A]lthough the issue before us is

primarily one of causation, resolution of that issue requires us to identify
the nature of the injury to the decedent. Our conception of the injury will
substantially affect our analysis. If the injury is determined to be the death
of Mr. Herskovits, then under the established principles of proximate cause
plaintiff has failed to make a prima facie case. Dr. Ostrow was unable to
state that probably, or more likely than not, Mr. Herskovits’ death was
caused by defendant’s negligence. On the contrary, it is clear from Dr.
Ostrow’s testimony that Mr. Herskovits would have probably died from
cancer even with the exercise of reasonable care by defendant. Accordingly,
if we perceive the death of Mr. Herskovits as the injury in this case, we
must affirm the trial court, unless we determine that it is proper to depart
substantially from the traditional requirements of establishing proximate
cause in this type of case.
If, on the other hand, we view the injury to be the reduction of Mr.
Herskovits’ chance of survival, our analysis might well be different. Dr.
Ostrow testified that the failure to diagnose cancer in December 1974
probably caused a substantial reduction in Mr. Herskovits’ chance of
survival. [The opinion reviewed the cases and concluded that the latter way
of conceptualizing the plaintiff’s injury was preferable. It relied in part on
King, Causation, Valuation, and Chance in Personal Injury Torts Involving
Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353
(1981).]
King’s basic thesis is explained in the following passage, which is
particularly pertinent to the case before us.
[C]onsider the case in which a doctor negligently fails to diagnose a
patient’s cancerous condition until it has become inoperable. Assume
further that even with a timely diagnosis the patient would have had
only a 30% chance of recovering from the disease and surviving over
the long term. There are two ways of handling such a case. Under the
traditional approach, this loss of a not-better-than-even chance of
recovering from the cancer would not be compensable because it did
not appear more likely [than] not that the patient would have survived
with proper care. Recoverable damages, if any, would depend on the
extent to which it appeared that cancer killed the patient sooner than
it would have with timely diagnosis and treatment, and on the extent
to which the delay in diagnosis aggravated the patient’s condition,
such as by causing additional pain. A more rational approach,
however, would allow recovery for the loss of the chance of cure
even though the chance was not better than even. The probability of
long-term survival would be reflected in the amount of damages
awarded for the loss of the chance. While the plaintiff here could not
prove by a preponderance of the evidence that he was denied a cure
by the defendant’s negligence, he could show by a preponderance that
he was deprived of a 30% chance of a cure.
. . . Under the all or nothing approach, typified by Cooper v. Sisters of

Charity of Cincinnati, Inc., 272 N.E.2d 97 (Ohio 1971), a plaintiff who
establishes that but for the defendant’s negligence the decedent had a 51%
chance of survival may maintain an action for that death. The defendant
will be liable for all damages arising from the death, even though there was
a 49% chance it would have occurred despite his negligence. On the other
hand, a plaintiff who establishes that but for the defendant’s negligence the
decedent had a 49% chance of survival recovers nothing.
This all or nothing approach to recovery is criticized by King on several
grounds, 90 Yale L.J. at 1376-78. First, the all or nothing approach is
arbitrary. Second, it
subverts the deterrence objectives of tort law by denying recovery for

the effects of conduct that causes statistically demonstrable losses. . .
. A failure to allocate the cost of these losses to their tortious sources .
. . strikes at the integrity of the torts system of loss allocation.
Third, the all or nothing approach creates pressure to manipulate and distort
other rules affecting causation and damages in an attempt to mitigate
perceived injustices. Fourth, the all or nothing approach gives certain
defendants the benefit of an uncertainty which, were it not for their tortious
conduct, would not exist. Finally, King argues that the loss of a less than
even chance is a loss worthy of redress.
These reasons persuade me that the best resolution of the issue before us
is to recognize the loss of a less than even chance as an actionable injury.
Therefore, I would hold that plaintiff has established a prima facie issue of
proximate cause by producing testimony that defendant probably caused a
substantial reduction in Mr. Herskovits’ chance of survival. . . .
Finally, it is necessary to consider the amount of damages recoverable
in the event that a loss of a chance of recovery is established. Once again,
King’s discussion provides a useful illustration of the principles which
should be applied.
[C]onsider a patient who suffers a heart attack and dies as a result.

Assume that the defendant-physician negligently misdiagnosed the
patient’s condition, but that the patient would have had only a 40%
chance of survival even with a timely diagnosis and proper care.
Regardless of whether it could be said that the defendant caused the
decedent’s death, he caused the loss of a chance, and that chance-
interest should be completely redressed in its own right. Under the
proposed rule, the plaintiff’s compensation for the loss of the victim’s
chance of surviving the heart attack would be 40% of the
compensable value of the victim’s life had he survived (including
what his earning capacity would otherwise have been in the years
following death). The value placed on the patient’s life would reflect
such factors as his age, health, and earning potential, including the
fact that he had suffered the heart attack and the assumption that he
had survived it. The 40% computation would be applied to that base
figure.
...
NOTES
1. Loss of a chance. The traditional view of “cause in fact,” reflected in
cases like New York Central R.R. v. Grimstad and Stacy v. Knickerbocker
Ice Co., is that a plaintiff has to show that some untaken precaution by the
defendant more likely than not would have (i.e., would have been more than
50 percent likely to have) prevented the plaintiff’s injuries. As noted in the
introduction to this chapter, this point is straightforward enough in a case
where a plaintiff definitely would not have been harmed without the
defendant’s negligence. Suppose the defendant negligently bumps into a
barrel in a warehouse; the barrel rolls out of a window and falls onto the
plaintiff’s head. The defendant’s negligence was a cause in fact of the
plaintiff’s harm: but for the defendant’s act, the barrel definitely would not
have fallen on the plaintiff. That is an easy case of causation in fact. An
easy case of no causation in fact, as suggested earlier, would be one where a
defendant negligently fails to install a fire escape but it’s clear that the
plaintiff’s decedent would have been killed by the fire even if that
precaution had been taken. Perhaps he was smoking in bed and died there.
Harder cases arise when the defendant’s negligence may have caused
the plaintiff’s injuries, but the plaintiff might have sustained the same
injuries even without the negligence. Here are two examples drawn from
cases just considered:
1. A man falls over the side of a ship and drowns. The defendant did
not have any buoys on board, and this was negligence. There is no
guarantee that if there had been a buoy the man would have been
saved (indeed, we will never know whether he would have lived);
the buoy just would have made it more likely that he would have
been saved. How much of an improvement in the man’s odds of
survival must a buoy create before we are ready to say that the
failure to provide a buoy more likely than not caused his death?
2. A doctor negligently fails to diagnose a disease until it is far
advanced, and the patient dies. The negligence worsened the
patient’s odds of surviving, but he might have died from the disease
even if the doctor had diagnosed it promptly. Can we say the doctor’s
negligence caused the plaintiff’s death? Again, the doctor’s
negligence did cause a greater likelihood that the plaintiff would die;
but how much greater must that likelihood be before we can say for
legal purposes that but for the doctor’s negligence, the patient would
have lived?
To clarify how the law works in these situations, consider first a case where
we can imagine being able to place clear numbers on the probabilities
involved. Suppose the defendant is a doctor performing a risky but
important procedure. There is a 5 percent chance that the plaintiff will die
even if the doctor is careful in every respect. But the doctor is negligent in
some way and this raises the plaintiff’s risk of death to 25 percent. The
plaintiff dies. We have no way of knowing whether the death resulted from
the doctor’s negligence or from the original (or “background”) 5 percent
risk that existed anyway. (That’s important; if we knew, the case would be
easy.) Should the doctor be held liable?
The answer is “yes” under traditional tort principles. At first this might
seem an odd case for liability because the doctor’s negligence did not make
it more likely than not that the plaintiff would die; the negligence only
created a 25 percent chance of death, and obviously 25 percent is less than
the seemingly magic 50 percent figure. But that is not the question. The
question is: given that the plaintiff did die, how likely is it that the doctor
caused the death? Very likely: the doctor’s negligence caused the plaintiff’s
chance of death to go from 5 percent to 25 percent; chances are very good
that the plaintiff’s death was caused by that extra degree of risk that the
doctor added, rather than by the original risk that already existed. Though
the total risk of death was relatively small, most of the risk that did exist
(four-fifths of it) was due to the doctor’s negligence. The thing that was
risked came to pass. There is an 80 percent chance that the doctor was to
blame.
It may help you to translate the percentages into people. Saying there
was a 25 percent chance that the plaintiff would die if the doctor was
negligent is like saying that if this situation were repeated 100 times, 25
people would be expected to die; 20 of the deaths would be due to the
doctor’s negligence, and 5 of the deaths would have happened regardless of
the doctor’s negligence. The plaintiff’s decedent, in effect, is in the
imaginary group of 25 who died. There is a 4 out of 5 (80 percent) chance
that the doctor’s negligence caused his death. Eighty percent is greater than
50 percent, so the doctor should be held liable. This is a traditional analysis
that any court would accept.
Now compare the facts of Herskovits. Mr. Herskovits was diagnosed
with cancer late, causing his chance of survival to drop from 39 percent to
25 percent. The question was whether his doctor’s negligence “caused” his
death. Under the traditional analysis just described, the answer would be no.
Herskovits’s chance of dying went from 61 percent to 75 percent (we have
reversed the likelihood-of-survival figures to create likelihood-of-death
figures), and there is no reason to assume that his death was caused by that
relatively small dollop of added risk that his doctor’s negligence created,
rather than by the large pre-existing risk. It would be different if his chance
of dying had more than doubled — say, from 40 percent to 90 percent. Then
we would be able to say it was more probable than not that his death was
caused by the large chunk of risk that the doctor’s negligence added, rather
than by the somewhat smaller (40 percent) risk that already existed anyway.
Here, however, Herskovits probably would have died when he did
regardless of whether the defendant was negligent.
Under a traditional approach to causation, then, we ask how large a
share of the risk of whatever happened was created by the defendant. In
effect the plaintiff has to show that the defendant’s negligence at least
doubled the background likelihood of whatever injury occurred. So if a
doctor’s negligence causes the likelihood of death to go from 10 percent to
30 percent, then if death occurs we can say it’s more likely than not that it
was because of the doctor’s negligence. The same goes if the doctor’s
negligence causes the likelihood of death to rise from 30 percent to 70
percent, or (less obviously) from 1 percent to 3 percent. The plaintiff
probably won’t die in the latter situation, but if he does, it’s more likely than
not that the death resulted from the extra risk the doctor created by being
negligent. But if the doctor’s negligence causes the plaintiff’s risk of death
to go from 30 percent to 50 percent, or even from 66 percent to 99 percent,
and the plaintiff dies, we cannot say the negligence “more likely than not”
was the cause of death. In the 66 percent/99 percent case, there is a one-
third chance that the plaintiff died only because the doctor was negligent,
and a two-thirds chance that he died for other reasons — i.e., that he would
have died no matter what the doctor did.
Importantly, this means that if a patient has less than a 50 percent
chance of survival to begin with (even if the doctor uses due care), then on
a traditional view of causation the doctor’s negligence never can be
considered the cause in fact of the patient’s death: it always will be more
likely than not that the plaintiff would have died anyway. Put differently, it
is impossible for a doctor to double a plaintiff’s chance of death if the
plaintiff already is more than 50 percent likely to die in any event.
Obviously all these figures are somewhat conjectural, but as Herskovits
illustrates, courts often are prepared to use whatever rough numbers an
expert can supply.
This analysis suggests a pair of questions. First, why did the Herskovits
court reject these traditional rules of causation? Second, can you see how
the Herskovits reasoning might be used in a case like Grimstad? Suppose
Grimstad (in the opinion of the plaintiff’s expert) would have had a 60
percent chance of being saved if the boat had a buoy; the absence of a buoy
dropped his chances to 45 percent. Liability? It might seem so: he probably
would have lived if there had been a buoy. But again that is the wrong
question. The lack of a buoy merely increased his likelihood of drowning
from 40 percent to 55 percent. Most of the risk that he would drown was
“background risk” that existed regardless of the buoy. Should the logic of
Herskovits allow plaintiffs with facts like these to nonetheless recover a bit
for their lost chances of survival, even if the defendant’s negligence only
nibbled away a little at those chances?
2. Lotteries. In Dumas v. Cooney, 1 Cal. Rptr. 2d 584 (Cal. App. 1991),
the plaintiff sued his doctors for failing to diagnose his lung cancer earlier.
The plaintiff went to his doctors for treatment of a separate illness in
September 1984. A chest X-ray revealed something on his lung, but the
defendants did not investigate further. An X-ray performed in 1986 led to a
diagnosis of lung cancer. The plaintiff’s expert witness testified that the
plaintiff’s tumor was “Stage 3A” in 1986, but was probably Stage 1 in
1984. The witness claimed that a patient in whom a Stage 1 tumor is
discovered has a 67 percent chance of being free of disease five years later,
while a patient in whom a Stage 2 tumor is found has a 33 percent chance
of being alive and free of disease in five years. He estimated that the
plaintiff’s actual chance of being alive and free from disease five years later
was 15 to 20 percent.
The trial court instructed the jury on the doctrine of lost chance, over
the defendants’ objections:
Damages for negligence in providing medical care may be based on

evidence that it is a reasonable medical probability that the plaintiff
would have benefited by possible cure, possible lengthening of his
life, and/or improved personal comfort from more prompt diagnosis
and treatment.
The jury returned a verdict for the plaintiff and the trial court entered
judgment on it. (The plaintiff died six days after the verdict was rendered.)
The defendants appealed on the ground that the trial court had misinstructed
the jury; they argued that the use of the word “possible” in the instruction
permitted the jury to hold the defendants liable without finding that their
negligence probably shortened the plaintiff’s life. The plaintiff argued,
among other things, that California should follow Herskovits in recognizing
a right to collect for loss of a chance.
Held, for the defendants, that the trial court erred by instructing the jury
on the theory of lost chance. Said the court:
[T]he lost chance theory produces more statistical errors than a

traditional analysis.
Because loss of chance recovery is based on statistical
probabilities, it might be appropriate to examine the statistical
probabilities of achieving a “just” result with loss of chance damages.
. . . To compare the two rules, assume a hypothetical group of 99
cancer patients, each of whom would have had a 331/3% chance of
survival. Each received negligent medical care, and all 99 died.
Traditional tort law would deny recovery in all 99 cases because each
patient had less than a 5[1]% chance of recovery and the probable
cause of death was the pre-existing cancer not the negligence.
Statistically, had all 99 received proper treatment, 33 would have
lived and 66 would have died; so the traditional rule would have
statistically produced 33 errors by denying recovery to all 99. The
loss of chance rule would allow all 99 patients to recover, but each
would recover 31/3% of the normal value of the case. Again, with
proper care 33 patients would have survived. Thus, the 33 patients
who statistically would have survived with proper care would receive
only one-third of the appropriate recovery, while the 66 patients who
died as a result of the pre-existing condition, not the negligence,
would be overcompensated by one-third. The loss of chance rule
would have produced errors in all 99 cases. . . .
Imperfect as it may be, our legal system attempts to ascertain
facts to arrive at the truth. To protect the integrity of that goal, there
must be some degree of certainty regarding causation before a jury
may determine as fact that a medical defendant did cause the
plaintiff’s injury and should therefore compensate the plaintiff in
damages. To dispense with this requirement is to abandon the truth-
seeking function of the law. Professor King is willing to do so in his
attempt to compensate for the precise magnitude of any lost chance.
Professor King’s criticism of the more likely than not standard for
causation, like the lost chance theory itself, is based on the erroneous
premise that it is the purpose of tort law to compensate for lost
chances. But tort law should not operate by the same principles that
govern lotteries and insurance policies. If the acts of the defendants
did not actually cause plaintiff’s injury, then there is no rational
justification for requiring defendants to bear the cost of plaintiff’s
damages.
3. Sauce for the gander. An additional ground of objection to recovery

for lost chances was offered in Fennell v. Southern Maryland Hospital
Center, Inc., 580 A.2d 206 (Md. 1990):
If loss of chance damages are to be recognized, amendments to the

wrongful death statute should also be considered. As a class, medical
malpractice plaintiffs benefit from the fact that they are entitled to
recover 100% of their damages from a defendant whose negligence
caused only 51% of their loss because it is more probable than not
that the defendant’s negligence caused the loss. Reciprocally, a
defendant whose negligence caused less than 50% of a plaintiff’s loss
pays nothing because it is probable that the negligence did not cause
the loss. If a plaintiff whose decedent had a 49% chance of survival,
which was lost through negligent treatment, is permitted to recover
49% of the value of the decedent’s life, then a plaintiff whose
decedent had a 51 percent chance of survival, which was lost through
negligent treatment, perhaps ought to have recovery limited to 51%
of the value of the life lost. The latter result would require a change in
our current wrongful death statute.
A majority of the jurisdictions to consider the issue have permitted
recovery for loss of a chance, though some have not; in Michigan the
doctrine was recognized by the courts, then eliminated by statute:
In an action alleging medical malpractice, the plaintiff has the burden

of proving that he or she suffered an injury that more probably than
not was proximately caused by the negligence of the defendant or
defendants. In an action alleging medical malpractice, the plaintiff
cannot recover for loss of an opportunity to survive or an opportunity
to achieve a better result unless the opportunity was greater than
50%.
Mich. Comp. Laws Ann. §600.2912a(2). Are there reasons to prefer

resolution of this issue by legislatures to resolution of it by courts?
4. Failure to resuscitate. In Wendland v. Sparks, 574 N.W.2d 327 (Iowa
1998), a woman named Callie was suffering from cancer, though it was in
remission. She was admitted to the defendant’s hospital to regain her
strength. According to her expert, Callie “seemed to be doing reasonably
well and be fairly healthy in the context of a woman who obviously had a
chronic illness and symptoms that were unexplained.” Early one morning
Callie experienced cardiac arrest. A nurse obtained a “crash” cart, which
was equipped to perform electrocardiogenic shock. Another nurse contacted
the defendant, Dr. Sparks. Sparks arrived at Callie’s room at about the time
she was drawing her last breath. He assessed the patient by feeling for a
pulse, listening for heartbeats, looking for a respiratory effort, and checking
her eyes. The doctor decided not to attempt CPR, and the crash cart was
never used, although there was evidence in the summary judgment record
that resuscitative efforts might have been successful. One nurse testified in
her deposition that Dr. Sparks said, “I just can’t do it to her”; the nurse
characterized his decision as “an act of mercy” because Callie’s prospects
for quality of life if she were revived were not good.
Callie’s husband sued Sparks and the hospital for negligence, relying on
a lost chance theory of causation. The trial court gave summary judgment to
the defendant. The Iowa Supreme Court reversed, identifying two types of
probabilistic losses Callie had suffered — the lost chance that efforts at
resuscitation would have been successful, and the lost chance that if she had
been resuscitated she might later have been cured of her disease:
Under the lost-chance theory, a victim who suffers from a preexisting
adverse condition (in this case the patient’s cancer and other diseases)
and is then subjected to another source of injury (here, the failure to
resuscitate) may have a claim for the second event. The rationale is
that, if it were not for the second event, the victim might have
survived the first. This loss of chance is to be treated and evaluated
independently from the preexisting condition.
How should a jury be instructed to think about the issues of causation

and damages in this case?
5. Judge and jury. How are juries supposed to make sense out of the
statistics in cases like Herskovits? The answer is that all of the medical
cases we have been considering in this section depend heavily on expert
testimony. This is a common feature of litigation involving complex
questions of causation — whether earlier medical intervention would have
extended a plaintiff’s life, for example, or how a plaintiff came to contract a
disease, or whether a change in the design of a defendant’s product would
have prevented an accident. These issues do not generally lend themselves
to resolution by jurors applying unvarnished common sense to the story told
by the fact witnesses to a case. It therefore is standard practice for the
parties to employ experts to serve as opinion witnesses, entitled (as ordinary
witnesses are not) to offer their conclusions to the jury along with an
explanation of the analysis that supports them. Naturally this practice
produces fresh difficulties of its own, as the jurors remain charged with
another task that may strain their competence: deciding which expert is
right.
The trial judge mitigates these problems a bit by performing a screening
function: it is up to the judge to decide whether to admit an expert’s
testimony at all or exclude it as too unreliable to form the basis of a verdict.
For much of the twentieth century the dominant standard for admissibility
was provided by Frye v. United States, 293 F. 1013 (D.C. Cir. 1923): expert
testimony was admissible only if based on principles found by the trial
judge to be generally accepted in the scientific community. In Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), however, the
United States Supreme Court concluded that the Frye test had been
displaced by the Federal Rules of Evidence. The Court concluded that
under the Federal Rules,
the trial judge must determine at the outset . . . whether the expert is
proposing to testify to (1) scientific knowledge that (2) will assist the
trier of fact to understand or determine a fact in issue. This entails a
preliminary assessment of whether the reasoning or methodology
underlying the testimony is scientifically valid and of whether that
reasoning or methodology properly can be applied to the facts in
issue. . . . Many factors will bear on the inquiry, and we do not
presume to set out a definitive checklist or test.
The Court thus left open the possibility that expert testimony might be
admitted despite depending on novel theories not yet generally accepted in
the relevant scientific community. On the other hand, the Court also
charged trial judges with making their own assessments of whether an
expert is offering “scientific knowledge”; in other words, federal trial
judges have to decide for themselves whether an expert’s methods seem
reliable. For this purpose judges can continue to consider whether the
expert’s methods are generally accepted, but they also may ask whether the
methods have been subjected to peer review and publication, whether they
have been tested in various ways, and what rate of error is associated with
them; the Court emphasized that the overall standard for admissibility of
such testimony is “flexible.” Daubert itself involved testimony about
whether drugs defendant sold caused birth defects, but the Supreme Court
later extended these principles to cover all sorts of technical testimony, not
just the medical variety. See Kumho Tire Co. v. Carmichael, 526 U.S. 137
(1999) (applying Daubert to the testimony of an expert offering to testify
about a defective tire).
Since Daubert was an interpretation of the Federal Rules of Evidence it
does not bind state courts, some of which have continued to adhere to Frye.
In what sorts of cases would you expect it to make a difference which
standard the trial judge uses? What are the costs and benefits of calling
upon trial judges to make the assessments required by Daubert?
6. Probable futures. In Dillon v. Twin State Gas & Electric Co., 163 A.
111 (N.H. 1932), the defendant maintained electric wires over a public
bridge that crossed a river. The plaintiff’s decedent, a boy of 14, was sitting
on one of the bridge’s horizontal beams. He leaned over the side, lost his
balance, threw out his arm, and grabbed one of the defendant’s wires to
save himself from falling. The wire carried a high voltage current, and the
boy was electrocuted and thrown back onto the girder. The defendant
moved for a directed verdict; the motion was denied, and the defendant
appealed.
Held, that the defendant’s exception must be overruled. The court
observed that the extent of the defendant’s liability nonetheless depended
on whether the jury found that the boy would have died or been maimed
from the fall if the wire had not been present. Said the court:
In leaning over from the girder and losing his balance [the decedent]
was entitled to no protection from the defendant to keep from falling.
Its only liability was in exposing him to the danger of charged wires.
If but for the current in the wires he would have fallen down on the
floor of the bridge or into the river, he would without doubt have
been either killed or seriously injured. Although he died from
electrocution, yet, if by reason of his preceding loss of balance he
was bound to fall except for the intervention of the current, he either
did not have long to live or was to be maimed. In such an outcome of
his loss of balance, the defendant deprived him, not of a life of
normal expectancy, but of one too short to be given pecuniary
allowance, in one alternative, and not of normal, but of limited,
earning capacity, in the other.
If it were found that he would have thus fallen with death
probably resulting, the defendant would not be liable, unless for
conscious suffering found to have been sustained from the shock. In
that situation his life or earning capacity had no value. To constitute
actionable negligence there must be damage, and damage is limited to
those elements the [wrongful death] statute prescribes.
If it should be found that but for the current he would have fallen
with serious injury, then the loss of life or earning capacity resulting
from the electrocution would be measured by its value in such injured
condition. Evidence that he would be crippled would be taken into
account in the same manner as though he had already been crippled.
His probable future but for the current thus bears on liability as
well as damages. Whether the shock from the current threw him back
on the girder or whether he would have recovered his balance, with or
without the aid of the wire he took hold of, if it had not been charged,
are issues of fact, as to which the evidence as it stands may lead to
different conclusions.
Though at times the Dillon opinion sounds as if it is setting the stage for
a jury determination still to come, the court appears to be affirming the
denial of a directed verdict after a trial that already occurred. In any event,
how might you stylize the facts and holding of Dillon as a case of no
liability? As so stylized, what is the distinction between Dillon and
Herskovits?
7. Loss of a chance of legal victory (problem). In Daugert v. Pappas, 704
P.2d 600 (Wash. 1985), the plaintiff brought a legal malpractice action
against his lawyer for failing to file a timely petition for review of a court of
appeals decision. The defendant, Pappas, had represented the plaintiff in a
contract dispute. The trial court found for Pappas’s client in that action, but
the court of appeals reversed, finding for the other party. The plaintiff
instructed Pappas to petition the Washington Supreme Court for review of
the decision the court of appeals had made. Pappas filed the petition a day
late and then failed to follow the proper procedure to request an extension
of time. The petition for review was therefore denied. The plaintiff then
brought this action against Pappas for malpractice. At trial, both parties
presented expert testimony on the likelihood that the state supreme court
would have reviewed and reversed the decision in the contract case if the
petition had been timely filed. Following Herskovits, the trial judge
instructed the jury that the defendant was liable if his negligence was a
“substantial factor” in causing damage to the plaintiff. The jury found that
there was a 20 percent chance that the supreme court would have reviewed
the decision and reversed it, and so awarded the plaintiff $71,341 — 20
percent of the damages the plaintiff incurred in losing the original contract
case. Pappas appealed (via a timely petition this time) to the Washington
Supreme Court.
What result? Can Daugert v. Pappas effectively be distinguished from
Herskovits v. Group Health Cooperative? Are there any reasons why
liability for loss of a chance might make more sense in Herskovits than it
does here — or vice versa?
B. ALTERNATIVE LIABILITY
Summers v. Tice
199 P.2d 1 (Cal. 1948)
[The plaintiff and the two defendants went quail hunting together. Each
of the defendants was armed with a 12-gauge shotgun. The three parties
positioned themselves in a triangle, 75 feet apart. Defendant Tice flushed a
quail into the air; the bird flew between the plaintiff and the defendants, and
both defendants shot at it. The plaintiff was struck in the face by bird shot,
and brought suit against the defendants for negligence. The trial court found
that the defendants had been negligent in firing in the plaintiff’s direction
and entered judgment against both of them. The defendants appealed on the
ground that the plaintiff failed to prove which of them fired the shot that hit
him.]
CARTER, J. — [After stating the facts:] When we consider the relative

position of the parties and the results that would flow if plaintiff was
required to pin the injury on one of the defendants only, a requirement that
the burden of proof on that subject be shifted to defendants becomes
manifest. They are both wrongdoers both negligent toward plaintiff. They
brought about a situation where the negligence of one of them injured the
plaintiff, hence it should rest with them each to absolve himself if he can.
The injured party has been placed by defendants in the unfair position of
pointing to which defendant caused the harm. If one can escape the other
may also and plaintiff is remediless. Ordinarily defendants are in a far better
position to offer evidence to determine which one caused the injury. This
reasoning has recently found favor in this Court. In a quite analogous
situation this Court held that a patient injured while unconscious on an
operating table in a hospital could hold all or any of the persons who had
any connection with the operation even though he could not select the
particular acts by the particular person which led to his disability. Ybarra v.
Spangard, 25 Cal. 2d 486. There the Court was considering whether the
patient could avail himself of res ipsa loquitur, rather than where the
burden of proof lay, yet the effect of the decision is that plaintiff has made
out a case when he has produced evidence which gives rise to an inference
of negligence which was the proximate cause of the injury. It is up to
defendants to explain the cause of the injury. . . .
It is urged that plaintiff now has changed the theory of his case in
claiming a concert of action; that he did not plead or prove such concert.
From what has been said it is clear that there has been no change in theory.
The joint liability, as well as the lack of knowledge as to which defendant
was liable, was pleaded and the proof developed the case under either
theory. We have seen that for the reasons of policy discussed herein, the
case is based upon the legal proposition that, under the circumstances here
presented, each defendant is liable for the whole damage whether they are
deemed to be acting in concert or independently.
The judgment is affirmed.
NOTES
1. Alternative liability vs. res ipsa loquitur. The opinion in Summers v.

Tice cites Ybarra v. Spangard (considered in Chapter 3 on the negligence
standard and breach of duty) as support for its decision. What is the
relationship between the two cases? What are the differences between
them?
2. The silence of the lambs. From the Restatement (Second) of Torts
(1965):
§433A. APPORTIONMENT OF HARM TO CAUSES
Illustration 3. Five dogs owned by A and B enter C’s farm and

kill ten of C’s sheep. There is evidence that three of the dogs are
owned by A and two by B, and that all of the dogs are of the same
general size and ferocity. On the basis of this evidence, A may be
held liable for the death of six of the sheep, and B liable for the death
of four.
§433B. BURDEN OF PROOF
Illustration 10. Over a period of three years A successively stores

his furniture in warehouses operated by B, C, and D. At the end of
that time A finds that his piano has been damaged by a large dent in
one corner. The nature of the dent indicates that it was caused by
careless handling on a single occasion. A has the burden of proving
whether the dent was caused by the negligence of B, C, or D.
Illustration 11. While A’s automobile is stopped at an intersection,
it is struck in the rear by B’s negligently driven car. Immediately
afterward C’s negligently driven car strikes the rear of B’s car,
causing a second impact upon A’s car. In one collision or the other, A
sustains an injury to his neck and shoulder. In A’s action against B
and C, each defendant has the burden of proving that his conduct did
not cause the injury.
Are these illustrations consistent?

3. E pluribus unum. In Kingston v. Chicago & N.W. Ry. Co., 211 N.W.
913 (Wis. 1927), the plaintiff sued the defendant to obtain compensation for
damage to his lumber yard. A forest fire had been burning to the northwest
of the plaintiff’s yard. At the same time, another fire was burning to the
northeast. The two fires united about 940 feet north of the plaintiff’s
property, bore down upon it, and destroyed his lumber. The northeast fire
had been ignited by sparks emitted from the defendant’s train. The origin of
the northwest fire was unknown, but the court found that it was not the
product of the defendant’s negligence. The fires were of equal size before
they united, and either would have destroyed the plaintiff’s property on its
own. The jury brought in a verdict for the plaintiff, and the defendant
appealed.
Held, for the plaintiff, that the judgment must be affirmed. Said the
court:
[T]he question is whether the railroad company, which is found to

have been responsible for the origin of the northeast fire, escapes
liability, because the origin of the northwest fire is not identified,
although there is no reason to believe that it had any other than
human origin. An affirmative answer to that question would certainly
make a wrongdoer a favorite of the law at the expense of an innocent
sufferer. The injustice of such a doctrine sufficiently impeaches the
logic upon which it is founded. Where one who has suffered damage
by fire proves the origin of a fire and the course of that fire up to the
point of the destruction of his property, one has certainly established
liability on the part of the originator of the fire. Granting that the
union of that fire with another of natural origin, or with another of
much greater proportions, is available as a defense the burden is on
the defendant to show that, by reason of such union with a fire of
such character, the fire set by him was not the proximate cause of the
damage. No principle of justice requires that the plaintiff be placed
under the burden of specifically identifying the origin of both fires in
order to recover the damages for which either or both fires are
responsible.
What is the analogy between Kingston v. Chicago & N.W. Ry. Co. and
Summers v. Tice? What is the distinction between Kingston and Dillon v.
Twin State Gas & Electric Co.?
Notice the court’s concession in Kingston that if the defendant could
prove that the northwest fire had been of “natural” origin, he could not be
held liable for starting the northeast fire that combined with it and destroyed
the plaintiff’s property. Why? What would be the distinction between such a
case and Summers v. Tice? Restatement Third, Torts: Liability for Physical
and Emotional Harm (§27, comment d) would allow liability for a fire set
negligently even if it merged with a fire of natural origin, but leaves open
the question of how damages should be calculated in such a case.
4. Concurrent vs. subsequent. Kingston involves the problem of
multiple sufficient causation: roughly speaking, cases in which cause A was
enough to produce the harm without help from cause B — but where cause
B also was enough to produce the harm without help from cause A. Notice
that such problems can arise in two forms. First, the two causes can be
concurrent: they have their effects at the same time. Kingston was a case of
that kind. Second, the second cause might have arrived subsequent to the
first, and it may nevertheless be clear that either of the causes would have
produced the same damage. (Think of a case like Kingston, for example, but
in which one fire bears down on a piece of property soon after another fire
has passed through.) In this last circumstance, should it matter whether both
causes originated in someone’s negligent or intentional wrongdoing? If a
court decides that the first cause produced the harm and disregards the
second, should the damages awarded to the plaintiff reflect the fact that the
same harm would have been produced by another cause soon thereafter
anyway?
5. It did not belong to both (problem). In Litzman v. Humboldt County,
273 P.2d 82 (Cal. App. 1954), the plaintiff, age nine, came upon an object
he thought was a “flare” lying on the ground at the Humboldt County Fair.
He touched a match to it and it exploded, destroying his left hand. The
plaintiff’s evidence was that the object in fact was an aerial bomb of the sort
used in fireworks displays. Such aerial bombs had been brought onto the
fair grounds by two parties: the Golden State Fireworks Manufacturing
Company, which had been hired to put on a fireworks display at the fair;
and one Monte Brooks, who arranged other forms of entertainment at the
fair — acrobats and the like — and used aerial bombs to signify the start of
the evening’s show. Golden State and its aerial bombs had no connection to
Brooks and his aerial bombs. The plaintiff sued both Golden State and
Brooks. The trial court instructed the jury that if they were unable from the
evidence to determine which of the two defendants was responsible for
leaving the aerial bomb on the ground, they should exonerate both. So
instructed, the jury brought in a verdict for the defendants. The plaintiff
appealed, claiming that the trial court should have instructed the jury that it
could find in his favor on the negligence issue under the doctrine of res ipsa
loquitur set out in Ybarra v. Spangard, and that it could find in his favor on
the causation issue under the doctrine of alternative liability set out in
Summers v. Tice.
The defendants said in their appellate brief that “[i]n the present case
[the plaintiff] admit[s] that one of the two defendants who previously had
exploded fireworks probably is blameless. It could not be otherwise. Only
one bomb blew off Ralph Litzman’s left hand. That bomb belonged to one
or the other of the defendants, Golden State or Brooks. It did not belong to
both.” Said the court: “We think there is no mere ‘probability’ about the
blamelessness of one or the other of said two defendants and that the
situation is as we have above stated it, that is, if one is found guilty, that
finding, under the evidence in this case, exonerates the other.” The court
then went on to discuss whether Ybarra and Summers applied here.
What arguments might you make for and against liability on these facts?
If you have studied strict liability, then it also will be of interest to note
that the plaintiff requested an instruction allowing the defendants to be held
strictly liable for the plaintiff’s injuries because the defendants were
engaged in “ultrahazardous” activities. What arguments might you make
either way on this issue?
Sindell v. Abbott Laboratories
607 P.2d 924 (Cal. 1980)
MOSK, J. — This case involves a complex problem both timely and

significant: may a plaintiff, injured as the result of a drug administered to
her mother during pregnancy, who knows the type of drug involved but
cannot identify the manufacturer of the precise product, hold liable for her
injuries a maker of a drug produced from an identical formula?
Plaintiff Judith Sindell brought an action against eleven drug companies
and Does 1 through 100, on behalf of herself and other women similarly
situated. The complaint alleges as follows:
Between 1941 and 1971, defendants were engaged in the business of
manufacturing, promoting, and marketing diethylstilbesterol (DES), a drug
which is a synthetic compound of the female hormone estrogen. The drug
was administered to the plaintiff’s mother and the mothers of the class she
represents, for the purpose of preventing miscarriage. In 1947, the Food and
Drug Administration authorized the marketing of DES as a miscarriage
preventative, but only on an experimental basis, with a requirement that the
drug contain a warning label to that effect.
DES may cause cancerous vaginal and cervical growths in the daughters
exposed to it before birth, because their mothers took the drug during
pregnancy. The form of cancer from which these daughters suffer is known
as adenocarcinoma, and it manifests itself after a minimum latent period of
10 or 12 years. It is a fast-spreading and deadly disease, and radical surgery
is required to prevent it from spreading. . . . Thousands of women whose
mothers received DES during pregnancy are unaware of the effects of the
drug.
In 1971, the Food and Drug Administration ordered defendants to cease
marketing and promoting DES for the purpose of preventing miscarriages,
and to warn physicians and the public that the drug should not be used by
pregnant women because of the danger to their unborn children.
During the period defendants marketed DES, they knew or should have
known that it was a carcinogenic substance, that there was a grave danger
after varying periods of latency it would cause cancerous and precancerous
growths in the daughters of the mothers who took it, and that it was
ineffective to prevent miscarriage. Nevertheless, defendants continued to
advertise and market the drug as a miscarriage preventative. . . . As a result
of the DES ingested by her mother, plaintiff developed a malignant bladder
tumor which was removed by surgery. She suffers from adenosis and must
constantly be monitored by biopsy or colposcopy to insure early warning of
further malignancy. . . .
[T]he trial court sustained the demurrers of these defendants without
leave to amend on the ground that plaintiff did not and stated she could not
identify which defendant had manufactured the drug responsible for her
injuries. Thereupon, the court dismissed the action. This appeal involves
only five of ten defendants named in the complaint. [One of the eleven
original defendants had been dropped from the case when it was able to
show that it had not manufactured DES during the period when the
plaintiff’s mother took the drug.]
If we were confined to the theories of Summers v. Tice . . . we would be
constrained to hold that the judgment must be sustained. Should we require
that plaintiff identify the manufacturer which supplied the DES used by her
mother or that all DES manufacturers be joined in the action, she would
effectively be precluded from any recovery. As defendants candidly admit,
there is little likelihood that all the manufacturers who made DES at the
time in question are still in business or that they are subject to the
jurisdiction of the California courts. There are, however, forceful arguments
in favor of holding that plaintiff has a cause of action.
In our contemporary complex industrialized society, advances in science
and technology create fungible goods which may harm consumers and
which cannot be traced to any specific producer. The response of the courts
can be either to adhere rigidly to prior doctrine, denying recovery to those
injured by such products, or to fashion remedies to meet these changing
needs. . . .
Where, as here, all defendants produced a drug from an identical
formula and the manufacturer of the DES which caused plaintiff’s injuries
cannot be identified through no fault of plaintiff, a modification of the rule
of Summers is warranted. As we have seen, an undiluted Summers rationale
is inappropriate to shift the burden of proof of causation to defendants
because if we measure the chance that any particular manufacturer supplied
the injury-causing product by the number of producers of DES, there is a
possibility that none of the five defendants in this case produced the
offending substance and that the responsible manufacturer, not named in the
action, will escape liability.
But we approach the issue of causation from a different perspective: we
hold it to be reasonable in the present context to measure the likelihood that
any of the defendants supplied the product which allegedly injured plaintiff
by the percentage which the DES sold by each of them for the purpose of
preventing miscarriage bears to the entire production of the drug sold by all
for that purpose. Plaintiff asserts in her briefs that Eli Lilly and Company
and 5 or 6 other companies produced 90% of the DES marketed. If at trial
this is established to be the fact, then there is a corresponding likelihood
that this comparative handful of producers manufactured the DES which
caused plaintiff’s injuries, and only a 10% likelihood that the offending
producer would escape liability.
If plaintiff joins in the action the manufacturers of a substantial share of
the DES which her mother might have taken, the injustice of shifting the
burden of proof to defendants to demonstrate that they could not have made
the substance which injured plaintiff is significantly diminished. . . .
The presence in the action of a substantial share of the appropriate
market also provides a ready means to apportion damages among the
defendants. Each defendant will be held liable for the proportion of the
judgment represented by its share of that market unless it demonstrates that
it could not have made the product which caused plaintiff’s injuries. In the
present case, as we have seen, one DES manufacturer was dismissed from
the action upon filing a declaration that it had not manufactured DES until
after plaintiff was born. Once plaintiff has met her burden of joining the
required defendants, they in turn may cross-complaint against other DES
manufacturers, not joined in the action, which they can allege might have
supplied the injury-causing product.
Under this approach, each manufacturer’s liability would approximate
its responsibility for the injuries caused by its own products. Some minor
discrepancy in the correlation between market share and liability is
inevitable; therefore, a defendant may be held liable for a somewhat
different percentage of the damage than its share of the appropriate market
would justify. It is probably impossible, with the passage of time, to
determine market share with mathematical exactitude. But just as a jury
cannot be expected to determine the precise relationship between fault and
liability in applying the doctrine of comparative fault or partial indemnity,
the difficulty of apportioning damages among the defendant producers in
exact relation to their market share does not seriously militate against the
rule we adopt. As we said in Summers with regard to the liability of
independent tortfeasors, where a correct division of liability cannot be made
“the trier of fact may make it the best it can.”
We are not unmindful of the practical problems involved in defining the
market and determining market share, but these are largely matters of proof
which properly cannot be determined at the pleading stage of these
proceedings. Defendants urge that it would be both unfair and contrary to
public policy to hold them liable for plaintiff’s injuries in the absence of
proof that one of them supplied the drug responsible for the damage. Most
of their arguments, however, are based upon the assumption that one
manufacturer would be held responsible for the products of another or for
those of all other manufacturers if plaintiff ultimately prevails. But under
the rule we adopt, each manufacturer’s liability for an injury would be
approximately equivalent to the damages caused by the DES it
manufactured.
The judgments are reversed.
RICHARDSON, J., dissenting — . . . The injustice inherent in the

majority’s new theory of liability is compounded by the fact that plaintiffs
who use it are treated far more favorably than are the plaintiffs in routine
tort actions. In most tort cases plaintiff knows the identity of the person who
has caused his injuries. In such a case, plaintiff, of course, has no option to
seek recovery from an entire industry or a “substantial” segment thereof,
but in the usual instance can recover, if at all, only from the particular
defendant causing injury. Such a defendant may or may not be either
solvent or amenable to process. Plaintiff in the ordinary tort case must take
a chance that defendant can be reached and can respond financially. On
what principle should those plaintiffs who wholly fail to prove any
causation, an essential element of the traditional tort cause of action, be
rewarded by being offered both a wider selection of potential defendants
and a greater opportunity for recovery?
The majority attempts to justify its new liability on the ground that
defendants herein are “better able to bear the cost of injury resulting from
the manufacture of a defective product.” This “deep pocket” theory of
liability, fastening liability on defendants presumably because they are rich,
has understandable popular appeal and might be tolerable in a case
disclosing substantially stronger evidence of causation than herein appears.
But as a general proposition, a defendant’s wealth is an unreliable indicator
of fault, and should play no part, at least consciously, in the legal analysis of
the problem. In the absence of proof that a particular defendant caused or at
least probably caused plaintiff’s injuries, a defendant’s ability to bear the
cost thereof is no more pertinent to the underlying issue of liability than its
“substantial” share of the relevant market. A system priding itself on “equal
justice under law” does not flower when the liability as well as the damage
aspect of a tort action is determined by a defendant’s wealth. The inevitable
consequence of such a result is to create and perpetuate two rules of law
one applicable to wealthy defendants, and another standard pertaining to
defendants who are poor or who have modest means. Moreover,
considerable doubts have been expressed regarding the ability of the drug
industry, and especially its smaller members, to bear the substantial
economic costs (from both damage awards and high insurance premiums)
inherent in imposing an industry-wide liability. . . .
I would affirm the judgments of dismissal.
NOTES
1. Choice of weapons. What is the difference between market-share

liability under Sindell and alternative liability under Summers v. Tice? If you
were a defendant, which theory would you prefer to see used against you?
2. Market-share liability. Sindell proved to be an influential decision in
cases that involved similar facts. Many other states (not all) have followed
suit in allowing market-share liability in DES cases, though rarely
elsewhere; the approach has been rejected in claims involving injuries
caused by asbestos and lead paint. The details of the regimes that do allow
market-share liability vary in how they respond to various problems;
consider how they should best be resolved:
a. Should the relevant market be the national or local one? Suppose that
the plaintiff now lives in California, but that her mother took DES
years earlier while living in New York. If a court is to use market-
share liability, should it assign liability to the defendant companies
based on the size of the shares they held of the New York market, the
California market, the national market, or by some other measure?
b. Should defendants be able to exonerate themselves in individual
cases? Suppose, for example, that in one of the “market share” cases
brought after Sindell, the plaintiff’s mother remembers only that she
took red pills; and suppose that one of the defendants, the Squibb
firm, can show that it never made pills of that color. Should Squibb
be dismissed from the case or should it still be required to contribute
to a share of the plaintiff’s damage award in proportion to its share of
the market?
c. How large a total share of the market must all the defendants
represent before they can be held liable on a market share theory?
Suppose that after Sindell a plaintiff sues just one manufacturer — Eli
Lilly, let us imagine. As usual, the plaintiff does not know whether
Lilly made the DES that her mother ingested; all she can show is that
Lilly had a 10 percent share of the relevant market. Should the
plaintiff be able to proceed with her case and collect some of her
damages from Lilly? What if the plaintiff sues four defendants who,
taken together, had a 60 percent share of the market?
For discussion and one state’s resolution of some of these questions, see
Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069 (N.Y. 1989).
3. Legislatures vs. courts. Courts rejecting market-share liability often
describe its adoption as a question for the state legislature. Thus in Mulcahy
v. Eli Lilly & Co., 386 N.W.2d 67 (Iowa 1987), the court called market-
share liability “social engineering more appropriately within the legislative
domain.” And in Goldman v. Johns-Manville Sales Corp., 514 N.E.2d 691
(Ohio 1987), the court said:
The imposition of liability upon a manufacturer for harm that it may

not have caused is the very legal legerdemain, at least by our long
held traditional standards, that we believe the courts should avoid
unless prior warnings remain unheeded. It is an act more closely
identified as a function assigned to the legislature under its power to
enact laws.
What is the difference between legal innovations suitable for adoption

by courts and those better left to legislatures?
4. The seven fragrances. In Sanderson v. International Flavors &
Fragrances, Inc., 950 F. Supp. 981 (C.D. Cal. 1996), a woman brought a
products liability action against manufacturers of perfumes and colognes for
injuries allegedly caused by her exposure to various perfumes: Boss,
Drakkar Noir, Joop! Homme, Stetson, Freesia, and Calvin Klein’s
Obsession (“the seven fragrances”). The plaintiff alleged that her exposure
to the aldehydes in the fragrance products on over 16,000 occasions
contributed to injuries including encephalopathy (brain damage) and
dysosmia (deranged sense of smell). Because Sanderson was unable to
identify which of the seven fragrances caused her injuries, she asked the
court to extend the market share theory of causation to her case. The court
gave summary judgment to the defendants, finding that “plaintiff cannot
shift the causation burden to defendants under Sindell, because plaintiff was
not injured by a fungible product made by many different manufacturers
and because plaintiff has in any event not joined a substantial share of the
market for the products that she alleges injured her.”
In deciding whether to apply market-share liability, why is it important
that the defendants’ products be “fungible”? Why might it be important that
the defendants represent a substantial share of the market? The plaintiff also
attempted to rely on Summers v. Tice; the attempt failed. Why?
5. Blood products (problem). In Smith v. Cutter Biological, Inc., 823
P.2d 717 (Haw. 1991), the plaintiff was a hemophiliac. He alleged that he
contracted the HIV virus, and then AIDS, from contaminated blood
products supplied to him at an army hospital. The hospital dispensed blood
provided by four manufacturers; the plaintiff was not able to identify which
of them was the source of the contaminated batch. He sued all four,
claiming that market-share liability should be used to resolve the problem
of causation. His argument was that during the time period when the blood
products at issue were being manufactured, the defendants committed
similar failures to screen donors and warn recipients. What result, and why?
6. Managing uncertainty. What do Ybarra v. Spangard, Herskovits v.
Group Health Cooperative, Summers v. Tice, and Sindell v. Abbott
Laboratories have in common? Compare what we know and what we don’t
know in each case, and consider how each might be understood as a
response to a slightly different problem of uncertainty.
7. Extending the principle. Interesting problems of causation were
raised by lawsuits against Merck, the manufacturer of the painkilling drug
Vioxx, when evidence emerged that the drug could sometimes produce
heart attacks. Merck removed the drug from the market in 2004; some
industry analysts argued that it should have been removed earlier. More
than 10,000 lawsuits were filed against Merck. As recounted in Issacharoff,
Private Claims, Aggregate Rights, 2008 S. Ct. Rev. 183:
The critical issue — basically not disputed — was that Vioxx

exposure over a prolonged period resulted in some increased number
of heart attacks and strokes among the exposed population. The
problem is that neither cardiac event is a signature injury, one that can
be traced with any certainty to Vioxx consumption as opposed to a
host of other genetic or environmental causes. Put another way, the
only proof of harm from Vioxx was epidemiological, which meant
that even a threshold determination of liability in any individual case
could only be established probabilistically by reference to the entire
exposed population. Moreover, because of the extensive reliance on
contested expert testimony, these cases were likely to be expensive to
prosecute.
Under the customary working of our tort system, these cases
should have been tried on a one-at-a-time basis and one would have
expected discordant results. In theory, all plaintiffs could have lost
their claims because even the elevated levels of cardiac risk following
Vioxx exposure could not make causation more likely than not,
presumably the standard necessary to survive summary judgment. In
reality, however, an otherwise healthy athlete who has an unexplained
heart attack after taking Vioxx is likely to get to the jury in many if
not most jurisdictions. As cases began to trickle through the litigation
pipeline, a total of 18 were tried to judgment prior to the national
settlement. Of these, Merck won 13 and plaintiffs won 5, though
some were later reversed on appeal. In those cases that Merck lost,
juries awarded large compensatory damages and sweeping punitive
damages. The most salient result was that despite relying on common
epidemiological evidence, some plaintiffs received nothing, while
others were awarded millions.
Would market-share liability have been a reasonable response to this
situation? How about liability for loss of a chance, or some other departure
from the traditional causation requirements? If no good solution were
possible in court, can you imagine a sensible way for Merck and the
plaintiffs to reach terms on a settlement?
C. A NOTE ON APPORTIONMENT
The parts of the chapter just considered have involved lawsuits brought
against multiple defendants, all of whom may sometimes have been held
liable. What rules should govern the plaintiff’s ability to collect damages
from each of them? These commonly are labeled problems of
apportionment. Suppose one automobile knocks the plaintiff down and
another car then runs him over. He sues the two drivers for negligence. Both
are found liable and the plaintiff’s compensatory damages are set at $1
million. If it is possible to distinguish between the injuries caused by each
of the two drivers, then the defendants’ respective liabilities will be limited
to the harm for which each is to blame. But if the plaintiff’s injury is
“indivisible” — in other words, if it is impossible to tell which defendant
caused which part of the injury — the defendants are considered “joint
tortfeasors”; and the common law doctrine of joint and several liability then
provides that the plaintiff can collect the entire $1 million from either
defendant. Moreover, at common law a defendant from whom the $1
million was collected would have no right to seek reimbursement from
other defendants. An attempt to obtain such reimbursement is called a suit
for “contribution,” and the common law did not allow suits for contribution
between joint tortfeasors. At least in part, however, both of these traditional
rules have been modified by legislatures in every state. Courts today are
more likely to hold defendants responsible only for a portion of the
damages that reflects their share of responsibility for an accident, and
defendants also are often able to ensure that outcome through suits for
contribution. Here is a sketch of the details.
1. The Decline of Joint and Several Liability

Joint and several liability means that each defendant is liable for all of the
plaintiff’s damages. The rule takes on obvious importance in a regime
where contribution between tortfeasors is not possible, because in that case
one defendant may get stuck paying all the damages while any others pay
nothing. But even in a regime where contribution is available, the same
result can occur if one of the parties is insolvent: the plaintiff simply
collects the entire award from the solvent defendant, who has no recourse as
a practical matter even if his share of blame for the plaintiff’s injuries was
only, say, 10 percent. Such a result may seem inequitable; then again, if the
plaintiff cannot collect all the damages from the solvent tortfeasor, it is the
innocent plaintiff who will end up bearing 90 percent of the costs of the
accident without compensation — and this may seem inequitable as well.
One way to look at joint and several liability is that it allocates the risk of
an insolvent defendant to other defendants rather than to the plaintiff, who
is guaranteed to be able to collect full compensation if any defendant can
pay it.
Joint and several liability has an all-or-nothing spirit that allies it with
contributory negligence, the common law rule that denied recovery to
plaintiffs whose own negligence contributed at all to their own injuries. The
decline of joint and several liability likewise has been connected with the
rise of comparative negligence, which calls for juries to compare and
apportion responsibility for an accident between plaintiff and defendant.
Comparative negligence has come by many to be seen as inconsistent with
a rule requiring any one defendant to pay all of the plaintiff’s damages
regardless of his degree of responsibility. The result was that most states,
typically in the 1980s, abolished joint and several liability entirely or with
respect to particular types of cases, replacing it with several liability — i.e.,
liability limited to a defendant’s share of responsibility for the plaintiff’s
injuries.
The resulting legal landscape does not lend itself to generalizations.
Perhaps a dozen states have abolished joint and several liability outright in
favor of several liability; about the same number have abolished the
doctrine for defendants less than 50 percent responsible for the plaintiff’s
damages. Some other states provide for joint and several liability only if the
plaintiff is not at all at fault, or have retained the doctrine only with respect
to certain torts, or only with respect to “economic” damages, or only with
respect to certain types of defendants (as where injurers and their employers
may both be held jointly and severally liable). According to the Third
Restatement, 16 states have retained pure joint and several liability.
As an example of the consequences of these rules, consider Gehres v.
City of Phoenix, 753 P.2d 174 (Ariz. App. 1987). A man named Speck
drank heavily at a nightclub and then drove off in his car. When a Phoenix
police officer attempted to pull him over, Speck fled; a chase ensued in
which Speck drove at speeds of over 90 miles per hour. At last Speck drove
into a car occupied by the plaintiff’s decedent, Violet Gehres. Speck and
Gehres both died in the collision. Gehres’s husband sued Speck’s estate, the
nightclub, and the City of Phoenix, claiming that each defendant had
negligently contributed to the accident. A jury found Speck 95 percent
responsible, the nightclub 3 percent responsible, and the city 2 percent
responsible; and it set the plaintiff’s damages at $577,600. Speck’s estate
was insolvent, however, so the plaintiff collected the entire award from the
nightclub and the city. The Arizona Court of Appeals held this the correct
result under common law principles of joint and several liability.
Partly in response to this outcome, the Arizona legislature later
amended its laws to eliminate joint liability. Instead, the fault of all
tortfeasors — whether or not they are parties to the case — now is
compared and each defendant is severally liable for damages allocated “in
direct proportion to that defendant’s percentage of fault.” Ariz. Rev. Stat.
§12-2506(A); Larsen v. Nissan Motor Corp., 978 P.2d 119 (Ariz. App.
1999). In Larsen the plaintiff was injured when the car in which she was a
passenger rolled over. She sued the car’s manufacturer but not the driver,
because he was her employer and so was immune from suit under Arizona
law. The jury found Nissan 8 percent responsible and the driver 92 percent
responsible. The plaintiff thus was able to collect 8 percent of her damages
from the defendant. Which result — Gehres or Larsen — seems preferable?
2. Contribution
The rule forbidding contribution between joint tortfeasors evidently was

developed in cases where defendants acted in concert to commit intentional
torts (see, e.g., Merryweather v. Nixan, 101 Eng. Rep. 1337 (1799)); the
courts in such cases did not want to aid wrongdoers in working out a more
equitable distribution of their losses between them. In most jurisdictions the
rule nevertheless came to be applied to joint tortfeasors of all types until the
second half of the twentieth century. All states then abandoned the rule by
statute, initially favoring rules that held all defendants equally responsible
for a plaintiff’s injuries. Thus if a plaintiff collected an entire damage award
from the first of three defendants, the first could then sue the other two for
contribution and obtain reimbursement from each of them for a third of the
amount paid. Again, however, the advent of comparative negligence has
had its influence; now in most jurisdictions defendants can be sued for
contribution in proportion to their share of responsibility for an accident, so
that a defendant held to be 10 percent at fault can be required to pay 10
percent of the damages to a fellow defendant in a suit for contribution.
3. Complications
The greatest current difficulties in the law of apportionment involve cases

with multiple defendants who are not on the same legal footing. For
example, where one defendant has committed an intentional act while the
other has committed negligence, the courts have not yet settled on a formula
for apportioning damages between them; nor is there a uniform answer
when one defendant is before the court while another is absent because it
has immunity or cannot be found. Suppose, for example, that a worker is
injured in an accident for which two parties are equally to blame: the
plaintiff’s employer and a visitor to the plaintiff’s workplace. The employer
is immune from suit under the prevailing workers’ compensation statute;
the plaintiff therefore sues only the visitor. Should the visitor’s liability be
capped at half the plaintiff’s damages, or should the visitor be held liable
for all the damages because there is no other defendant in the picture?
While courts are divided in their handling of this problem, the trend in such
circumstances is to instruct the jurors to determine the share of blame
attributable to the defendant in front of them, and to take into account the
responsibility of other tortfeasors even if they have not been joined as
parties. Thus it becomes in the defendant’s interest to argue that the absent
parties are to blame for the plaintiff’s injuries, while the plaintiff tends to
argue the contrary.
Another family of complications arises in cases where one defendant
settles with the plaintiff out of court while another defendant goes forward
with litigation. Joint and several liability made this situation problematic,
since the plaintiff still would seem able to collect the whole judgment from
the defendant who went to court, and that defendant still would seem able
to pursue contribution (once contribution was allowed) from the joint
tortfeasor who settled. The traditional rule in many jurisdictions was that
settlement earlier did not protect a defendant from having to pay
contribution later. This rule was much criticized as discouraging
settlements; an alternative since adopted by many states takes the contrary
approach, providing that defendants who settle are immune from claims for
contribution (the “settlement bar” rule). What effect would you expect this
rule to have on the rate of settlement?
The rise of comparative negligence and apportionment among
tortfeasors has brought with it an alternative to both of the rules just
described: the settling defendant cannot be sued for contribution by a
defendant who stays in the case, but the defendant who stays in is entitled to
a credit to reflect the plaintiff’s recovery from the settler. One approach — a
“pro tanto” credit — simply reduces the damages the plaintiff is entitled to
collect in court by whatever amount the settling defendant already paid. A
second approach — a “pro rata” credit, also known as a “comparative
share” credit — subtracts from the damages awarded to the plaintiff the
fraction for which the jury determines the settling defendant was
responsible. So suppose Defendant A settles with the plaintiff while
Defendant B goes to trial. The jury finds Defendants A 60 percent
responsible for the plaintiff’s injuries, finds Defendant B 40 percent
responsible, and sets the plaintiff’s damages at $100,000. Under the pro rata
approach, the plaintiff thus can collect $40,000 from Defendant B — not
the $100,000 normally permitted in a regime of joint and several liability.
Defendant A is unaffected: if he already settled for $20,000, the plaintiff
made an unfortunate bargain and is stuck with it; if Defendant A settled for
$200,000, then naturally he will have regrets but again they count for
nothing. Defendant B still pays his $40,000.
Again, these complications all are a function of joint and several
liability along with the contribution rules that states devised to go with that
regime. When jurisdictions use several liability, as is increasingly common,
the problems we have been considering generally go away. The court
simply uses the last approach just described: the jury determines the share
of responsibility of every tortfeasor, whether or not each is a party to the
case; those defendants who are parties to the case pay a share of the
plaintiff’s damages commensurate with their responsibility for the
plaintiff’s injuries. Parties who settled are unaffected. There is no need for
suits for contribution where several liability applies, as each party who goes
to court pays no more than the share for which it is responsible in the first
place.
Chapter 6
Proximate Causation (Scope of Liability)
A. REMOTENESS AND FORESEEABILITY
In re Polemis
3 K.B. 560 (1921)
[Polemis was owner of the Greek steamship Thrasyvoulos. He and his

partner chartered the ship to the defendants. In the summer of 1917, while
the ship was in the defendants’ care, it arrived in Casablanca with a cargo of
gasoline. Some of the gasoline had leaked, creating flammable vapors in the
ship’s hold. The defendants’ agents spread planks over the opening of a
hatch on the ship, using them as a platform on which to lower the cargo
after it was lifted out of the hold with a winch. One of the ropes used to
operate the winch came into contact with one of the planks and caused the
plank to fall into the hold; an explosion and fire immediately followed, and
the ship was completely destroyed.
[A panel of arbitrators found that the ship was destroyed by a fire,
which in turn had been caused by a spark that ignited vapors in the ship’s
hold. They found that the spark was caused by the falling board coming into
contact with some substance in the hold, and that the fall of the board was
caused by the negligence of the defendants. And they found “that the
causing of the spark could not reasonably have been anticipated from the
falling of the board, though some damage to the ship might reasonably have
been anticipated.” The legal question of the defendants’ responsibility on
these facts then came to the House of Lords, which affirmed a full award of
damages to the plaintiffs.]
Bankes, L.J.— According to the one view [in the case law], the
consequences which may reasonably be expected to result from a particular
act are material only in reference to the question of whether the act is or is
not a negligent act; according to the other view, those consequences are the
test of whether the damages resulting from the act (assuming it to be
negligent) are or are not too remote to be recoverable. . . . In the present
case the Arbitrators have found as a fact that the falling of the plank was
due to the negligence of the defendants’ servants. The fire appears to me to
have been directly caused by the falling of the plank. Under these
circumstances I consider that it is immaterial that the causing of the spark
by the falling of the plank could not have been reasonably anticipated. The
appellants’ junior Counsel sought to draw a distinction between the
anticipation of the extent of damage resulting from a negligent act, and the
anticipation of the type of damage resulting from such an act. He admitted
that it could not lie in the mouth of a person whose negligent act had caused
damage to say that he could not reasonably have foreseen the extent of the
damage, but he contended that the negligent person was entitled to rely
upon the fact that he could not have reasonably anticipated the type of
damage which resulted from his negligent act. I do not think that the
distinction can be admitted. Given the breach of duty which constitutes the
negligence, and given the damage as a direct result of that negligence, the
anticipations of the person whose negligent act has produced the damage
appear to me to be irrelevant. I consider that the damages claimed are not
too remote.
SCRUTTON, L.J.— To determine whether an act is negligent, it is relevant

to determine whether any reasonable person would foresee that the act
would cause damage; if he would not, the act is not negligent. But if the act
would or might probably cause damage, the fact that the damage it in fact
causes is not the exact kind of damage one would expect is immaterial, so
long as the damage is in fact caused sufficiently directly by the negligent
act, and not by the operation of independent causes having no connection
with the negligent act, except that they could not avoid its results. Once the
act is negligent, the fact that its exact operation was not foreseen is
immaterial. . . . In the present case it was negligent in discharging cargo to
knock down the planks of the temporary staging, for they might easily
cause some damage either to workmen or cargo in the ship. The fact that
they did directly produce an unexpected result, a spark in an atmosphere of
petrol vapour which caused a fire, does not relieve the person who was
negligent from the damage which his negligent act directly caused.
Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co.,

Ltd. [The Wagon Mound (No. 1)]
[1961] A.C. 388 (Privy Council)
[The defendants were owners of the S.S. Wagon Mound. Oil being
pumped into the ship in Sydney harbor spilled into the bay; the Wagon
Mound then headed to sea without making any effort to disperse the oil,
which was carried to the plaintiffs’ wharf and at first caused only minor
damage there. The plaintiffs, who had been repairing another ship at the
time, suspended their operations until they satisfied themselves that the oil
in the water was not flammable. Two days later, however, the oil did catch
fire, and the fire severely damaged the wharf and two boats docked
alongside it. The trial judge found that the fire started when molten metal
fell from the plaintiff’s wharf onto a rag or other piece of oily cotton refuse
floating in the water, which in turn acted as a wick to ignite the oil. The trial
judge also made this critical finding: “The raison d’etre of furnace oil is, of
course, that it shall burn, but I find that the defendant did not know, and
could not reasonably be expected to have known, that it was capable of
being set on fire when spread on water.”]
VISCOUNT SIMONDS. — There can be no doubt that the decision of the

Court of Appeal in Polemis plainly asserts that, if the defendant is guilty of
negligence, he is responsible for all the consequences whether reasonably
foreseeable or not. The generality of the proposition is perhaps qualified by
the fact that each of the Lords Justices refers to the outbreak of fire as the
direct result of the negligent act. There is thus introduced the conception
that the negligent actor is not responsible for consequences which are not
“direct”, whatever that may mean.
[The Privy Council then reviewed a series of other cases that had
preceded In re Polemis and said that “[t]he impression that may well be left
on the reader of the scores of cases in which liability for negligence has
been discussed is that the courts were feeling their way to a coherent body
of doctrine and were at times in grave danger of being led astray by
scholastic theories of causation and their ugly and barely intelligible
jargon.” The case law following Polemis likewise was reviewed, and the
following conclusions reached.]
Enough has been said to show that the authority of Polemis has been
severely shaken though lip-service has from time to time been paid to it. In
their Lordships’ opinion it should no longer be regarded as good law. It is
not probable that many cases will for that reason have a different result,
though it is hoped that the law will be thereby simplified, and that in some
cases, at least, palpable injustice will be avoided. For it does not seem
consonant with current ideas of justice or morality that for an act of
negligence, however slight or venial, which results in some trivial
foreseeable damage the actor should be liable for all consequences however
unforeseeable and however grave, so long as they can be said to be “direct.”
It is a principle of civil liability, subject only to qualifications which have
no present relevance, that a man must be considered to be responsible for
the probable consequences of his act. To demand more of him is too harsh a
rule, to demand less is to ignore that civilised order requires the observance
of a minimum standard of behaviour.
This concept applied to the slowly developing law of negligence has led
to a great variety of expressions which can, as it appears to their Lordships,
be harmonised with little difficulty with the single exception of the so-
called rule in Polemis. For, if it is asked why a man should be responsible
for the natural or necessary or probable consequences of his act (or any
other similar description of them) the answer is that it is not because they
are natural or necessary or probable, but because, since they have this
quality, it is judged by the standard of the reasonable man that he ought to
have foreseen them. Thus it is that over and over again it has happened that
in different judgments in the same case, and sometimes in a single
judgment, liability for a consequence has been imposed on the ground that
it was reasonably foreseeable or, alternatively, on the ground that it was
natural or necessary or probable. The two grounds have been treated as
coterminous, and so they largely are. But, where they are not, the question
arises to which the wrong answer was given in Polemis. For, if some
limitation must be imposed upon the consequences for which the negligent
actor is to be held responsible — and all are agreed that some limitation
there must be — why should that test (reasonable foreseeability) be rejected
which, since he is judged by what the reasonable man ought to foresee,
corresponds with the common conscience of mankind, and a test (the
“direct” consequence) be substituted which leads to no-where but the never-
ending and insoluble problems of causation. “The lawyer,” said Sir
Frederick Pollock, “cannot afford to adventure himself with philosophers in
the logical and metaphysical controversies that beset the idea of cause.” Yet
this is just what he has most unfortunately done and must continue to do if
the rule in Polemis is to prevail. . . .
In the same connection may be mentioned the conclusion to which the
Full Court finally came in the present case. Applying the rule in Polemis
and holding therefore that the unforeseeability of the damage by fire
afforded no defence, they went on to consider the remaining question. Was
it a “direct” consequence? Upon this Manning J. said: “Notwithstanding
that, if regard is had separately to each individual occurrence in the chain of
events that led to this fire, each occurrence was improbable and, in one
sense, improbability was heaped upon improbability, I cannot escape from
the conclusion that if the ordinary man in the street had been asked, as a
matter of common sense, without any detailed analysis of the
circumstances, to state the cause of the fire at Mort’s Dock, he would
unhesitatingly have assigned such cause to spillage of oil by the appellant’s
employees.” Perhaps he would, and probably he would have added: “I
never should have thought it possible.” But with great respect to the Full
Court this is surely irrelevant, or, if it is relevant, only serves to show that
the Polemis rule works in a very strange way. After the event even a fool is
wise. But it is not the hindsight of a fool; it is the foresight of the reasonable
man which alone can determine responsibility. The Polemis rule by
substituting “direct” for “reasonably foreseeable” consequence leads to a
conclusion equally illogical and unjust.
Their Lordships conclude this part of the case with some general
observations. They have been concerned primarily to displace the
proposition that unforeseeability is irrelevant if damage is “direct.” In doing
so they have inevitably insisted that the essential factor in determining
liability is whether the damage is of such a kind as the reasonable man
should have foreseen. This accords with the general view thus stated by
Lord Atkin in Donoghue v. Stevenson: “The liability for negligence,
whether you style it such or treat it as in other systems as a species of
‘culpa,’ is no doubt based upon a general public sentiment of moral
wrongdoing for which the offender must pay.” It is a departure from this
sovereign principle if liability is made to depend solely on the damage
being the “direct” or “natural” consequence of the precedent act. Who
knows or can be assumed to know all the processes of nature? But if it
would be wrong that a man should be held liable for damage unpredictable
by a reasonable man because it was “direct” or “natural,” equally it would
be wrong that he should escape liability, however “indirect” the damage, if
he foresaw or could reasonably foresee the intervening events which led to
its being done. Thus foreseeability becomes the effective test.
Their Lordships will humbly advise Her Majesty that this appeal should
be allowed, and the respondents’ action so far as it related to damage
caused by the negligence of the appellants be dismissed with costs.
NOTES
1. The sequel. In Overseas Tankship (U.K.) Ltd. v. The Miller

Steamship Co. [The Wagon Mound (No. 2)] [1967] 1 A.C. 617, the owners
of the Wagon Mound were sued again, this time by the owners of one of the
ships destroyed in the fire. This sequel to the first The Wagon Mound case
illustrates the role of lawyers and litigation strategy play in framing the
issues that courts decide. Recall that the trial judge in the first The Wagon
Mound case had found that the defendants “did not know and could not
reasonably be expected to have known that [the oil] was capable of being
set afire when spread on water.” In the second case, however, the findings
of the trial court were a bit milder; the court found that the defendants
would have regarded the oil as “very difficult to ignite on water,” but not
impossible, and that they probably would have considered such a fire “rare”
but not unheard of.
It may seem odd that the same conduct by the same defendants
produced these different findings in the two trials, but Reid, J., stressed that
this did not imply any failing on the part of the plaintiffs in the first case.
Those plaintiffs had to worry that if the possibility of a fire had been held
foreseeable, they themselves might have been found negligent in continuing
the repairs at their wharf once they saw the oil there — and their
contributory negligence would have been a complete bar to any recovery
from the owners of the Wagon Mound. The plaintiffs in this second case did
not have that problem, as they had no role in starting the fire and had
committed no acts that could be considered negligent. They therefore had a
stronger incentive to prove that the danger of fire from the spilled oil was in
fact foreseeable, which they succeeded in doing to the small extent
described above — and this small proof of foreseeability turned out to be
enough to change the result in the case. The trial court gave judgment to the
defendants, but the Privy Council reversed:
In the present case the evidence shows that the discharge of so much
oil on to the water must have taken a considerable time, and a vigilant
ship’s engineer would have noticed the discharge at an early stage.
The findings show that he ought to have known that it is possible to
ignite this kind of oil on water, and that the ship’s engineer probably
ought to have known that this had in fact happened before. The most
that can be said to justify inaction is that he would have known that
this could only happen in very exceptional circumstances; but that
does not mean that a reasonable man would dismiss such risk from
his mind and do nothing when it was so easy to prevent it. If it is
clear that the reasonable man would have realised or foreseen and
prevented the risk, then it must follow that the appellants are liable in
damages.
2. An American entry into the fray. In Petition of Kinsman Transit Co.,

338 F.2d 708 (2d Cir. 1964), a steamboat, the Shiras, was moored to a dock
on the Buffalo River owned by the Continental Grain Company. A thaw
caused large chunks of ice to come loose in one of the river’s tributaries,
and some of the ice drifted toward Continental’s dock and piled up between
the Shiras and the shore. The resulting pressure created by the ice caused
the boat to come loose from Continental’s “deadman” (the post in the
ground to which the boat had been anchored). The Shiras floated
downstream and collided with another anchored ship, the Tewksbury,
causing it to become unmoored as well. Half an hour later the Tewksbury
drifted into a drawbridge in downtown Buffalo, bringing down one of the
bridge’s towers. The Shiras entered the wreckage shortly thereafter, and the
two ships wedged together to create a dam; together they were nearly 1,000
feet long. Soon the bridge’s other tower fell down as well, and the banks of
the river flooded for several miles.
The resulting claims of liability ran in several directions. One of them
was that Continental negligently had maintained its deadman, which in turn
had caused the Shiras to come loose and led to all the resulting damage.
The trial court agreed that the deadman was inadequately secured and as a
result held Continental liable for a share of the flood damage claimed by
some 20 different plaintiffs. The court of appeals affirmed on this point.
Said Friendly, J.:
It was indeed foreseeable that the improper construction and lack of

inspection of the “deadman” might cause a ship to break loose and
damage persons and property on or near the river — that was what
made Continental’s conduct negligent. With the aid of hindsight one
can also say that a prudent man, carefully pondering the problem,
would have realized that the danger of this would be greatest under
such water conditions as developed during the night of January 21,
1959, and that if a vessel should break loose under those
circumstances, events might transpire as they did. But such post hoc
step by step analysis would render “foreseeable” almost anything that
has in fact occurred; if the argument relied upon has legal validity, it
ought not be circumvented by characterizing as foreseeable what
almost no one would in fact have foreseen at the time.
The effect of unforeseeability of damage upon liability for
negligence has recently been considered by the Judicial Committee of
the Privy Council, Overseas Tankship (U.K.) Ltd. v. Morts Dock &
Engineering Co. (The Wagon Mound), (1961) 1 All E.R. 404. The
Committee there disapproved the proposition, thought to be
supported by Polemis and Furness, Withy & Co. Ltd., (1921) 3 K.B.
560 (C.A.), “that unforeseeability is irrelevant if damage is ‘direct.’”
We have no difficulty with the result of The Wagon Mound, in view
of the finding, 1 All E.R. at 407, that the appellant had no reason to
believe that the floating furnace oil would burn. On that view the
decision simply applies the principle which excludes liability where
the injury sprang from a hazard different from that which was
improperly risked. . . . Foreseeability of danger is necessary to render
conduct negligent; where as here the damage was caused by just
those forces whose existence required the exercise of greater care
than was taken — the current, the ice, and the physical mass of the
Shiras — the incurring of consequences other and greater than
foreseen does not make the conduct less culpable or provide a
reasoned basis for insulation. The oft encountered argument that
failure to limit liability to foreseeable consequences may subject the
defendant to a loss wholly out of proportion to his fault seems
scarcely consistent with the universally accepted rule that the
defendant takes the plaintiff as he finds him and will be responsible
for the full extent of the injury even though a latent susceptibility of
the plaintiff renders this far more serious than could reasonably have
been anticipated.
The weight of authority in this country rejects the limitation of
damages to consequences foreseeable at the time of the negligent
conduct when the consequences are “direct,” and the damage,
although other and greater than expectable, is of the same general sort
that was risked. . . . Other American courts, purporting to apply a test
of foreseeability to damages, extend that concept to such unforeseen
lengths as to raise serious doubt whether the concept is meaningful;
indeed, we wonder whether the British courts are not finding it
necessary to limit the language of The Wagon Mound as we have
indicated.
We see no reason why an actor engaging in conduct which entails
a large risk of small damage and a small risk of other and greater
damage, of the same general sort, from the same forces, and to the
same class of persons, should be relieved of responsibility for the
latter simply because the chance of its occurrence, if viewed alone,
may not have been large enough to require the exercise of care. By
hypothesis, the risk of the lesser harm was sufficient to render his
disregard of it actionable; the existence of a less likely additional risk
that the very forces against whose action he was required to guard
would produce other and greater damage than could have been
reasonably anticipated should inculpate him further rather than limit
his liability. This does not mean that the careless actor will always be
held for all damages for which the forces that he risked were a cause
in fact. Somewhere a point will be reached when courts will agree
that the link has become too tenuous — that what is claimed to be
consequence is only fortuity. Thus, if the destruction of the Michigan
Avenue Bridge had delayed the arrival of a doctor, with consequent
loss of a patient’s life, few judges would impose liability on any of
the parties here, although the agreement in result might not be
paralleled by similar unanimity in reasoning. . . . We go only so far as
to hold that where, as here, the damages resulted from the same
physical forces whose existence required the exercise of greater care
than was displayed and were of the same general sort that was
expectable, unforeseeability of the exact developments and of the
extent of the loss will not limit liability. Other fact situations can be
dealt with when they arise.
Is the position taken in Petition of Kinsman more similar to the approach in

the Polemis case or to the approach taken in The Wagon Mound? In what
respects might it be distinct from both of them?
Consider this excerpt from the Restatement Third, Torts: Liability for
Physical and Emotional Harm (2005), which uses the expression “scope of
liability” to refer to the issue more traditionally described as “proximate
cause”:
§29. LIMITATIONS ON LIABILITY FOR TORTIOUS CONDUCT
An actor’s liability is limited to those physical harms that result

from the risks that made the actor’s conduct tortious.
. . . Comment j. Connection with reasonable foreseeability as a
limit on liability. Many jurisdictions employ a “foreseeability” test
for proximate case, and in negligence actions such a rule is
essentially consistent with the standard set forth in this Section.
Properly understood, both the risk standard and a foreseeability test
exclude liability for harms that were sufficiently unforeseeable at the
time of the actor’s tortious conduct that they were not among the risks
— potential harms — that made the actor negligent. Negligence
limits the requirement of reasonable care to those risks that are
foreseeable. Thus, when scope of liability arises in a negligence case,
the risks that make an actor negligent are limited to foreseeable ones,
and the factfinder must determine whether the type of harm that
occurred is among those reasonably foreseeable potential harms that
made the actor’s conduct negligent.
How does the Restatement’s approach compare to the case law seen so far?
3. Problems of foreseeability. Both The Wagon Mound and Kinsman
cases emphasize the importance of foreseeability. But foreseeability of
what? Notice that in advance of an accident there are many different
features of it that may or may not have been foreseeable: whether any harm
would occur at all, or whether any harm that might occur would be of the
particular type or magnitude that did occur, or whether harm would occur in
the manner (in other words, through the particular chain of events) in which
it actually came to pass. Sometimes an accident may be easy to foresee in
some of these senses but not others. The following cases explore the
common law’s treatment of them.
4. No room for mystique. In Doughty v. Turner, 1 Q.B. 518 (1964), the
plaintiff worked in the defendants’ factory. The factory contained cauldrons
of molten cyanide kept at a temperature of 800 degrees centigrade, eight
times the heat of boiling water; the workers hardened metal objects by
dipping them into the cauldrons. Cement covers were kept on top of the
cauldrons to conserve the heat within them. A worker in the factory
knocked one of the covers into the cauldron it was supposed to be covering.
Two workmen peered over the cauldron’s edge and saw the cover slide out
of view beneath the molten liquid. About two minutes later the cauldron
unexpectedly erupted, throwing out a hot liquid that set fires where it
landed and caused various injuries to the plaintiff, who was standing
nearby. The trial court found that the defendants had not known that the
immersion of the cover into the cauldron could give rise to a chemical
reaction that would cause such an explosion, but the court nevertheless held
that the defendants’ workman was negligent in bumping the cover into the
cauldron and therefore gave judgment to the plaintiff. The House of Lords
reversed. Said Harman, L.J.:
The plaintiff’s argument most persuasively urged . . . rested, as I

understood it, on admissions made that, if this lid had been dropped
into the cauldron with sufficient force to cause the molten material to
splash over the edge, that would have been an act of negligence or
carelessness for which the defendants might be vicariously
responsible. . . . So it is said here that a splash causing burns was
foreseeable and that this explosion was really only a magnified splash
which also caused burns[.] I cannot accept this. In my opinion, the
damage here was of an entirely different kind from the foreseeable
splash. Indeed, the evidence showed that any disturbance of the
material resulting from the immersion of the [cover] was past an
appreciable time before the explosion happened. This latter was
caused by the disintegration of the hard-board under the great heat to
which it was subjected and the consequent release of the moisture
enclosed within it. This had nothing to do with the agitation caused
by the dropping of the board into the cyanide. I am of opinion that it
would be wrong on these facts to make another inroad on the doctrine
of foreseeability which seems to me to be a satisfactory solvent of
this type of difficulty.
Said Diplock, L.J.:
There is no room today for mystique in the law of negligence. It is the

application of common morality and common sense to the activities
of the common man. He must take reasonable care to avoid acts or
omissions which he can reasonably foresee would be likely to injure
his neighbour; but he need do no more than this. If the act which he
does is not one which he could, if he thought about it, reasonably
foresee would injure his neighbour, it matters not whether he does it
intentionally or inadvertently. The judge’s finding, uncontested on
appeal, that in the state of knowledge as it was at the time of the
accident the defendants could not reasonably have foreseen that the
immersion of the asbestos cement cover in the liquid would be likely
to injure anyone must lead to the conclusion that they would have
been under no liability to the plaintiff if they had intentionally
immersed the cover in the liquid. The fact that it was done
inadvertently cannot create any liability, for the immersion of the
cover was not an act which they were under any duty to take any care
to avoid.
What is the analogy between Doughty v. Turner and The Wagon

Mound? What is the distinction between Doughty v. Turner and Petition of
Kinsman?
5. Sensitive buildings. In Colonial Inn Motor Lodge v. Gay, 680 N.E.2d
407 (Ill. App. 1997), the defendant was backing his car up in the parking lot
of the plaintiff’s hotel at a rate of approximately two miles per hour when
he bumped into a heating unit protruding from the side of the building. A
witness in the parking lot heard a “bang” — “it wasn’t very loud, but it was
loud enough that we heard it good” — and later testified that she saw that
the heating unit had been dented. The defendant, however, thought his car
had run into a brick wall and had done no damage, so he drove away. In fact
he had severed a gas line running through the heater. The gas from the line
collected in the hotel and then was ignited; the plaintiffs’ expert concluded
that the ignition source was a pilot light in the hotel’s laundry room. The
resulting explosion and fire caused extensive damage and forced the hotel
to close. Its owners sued the driver to recover their damages. The trial court
gave summary judgment to the defendant; the court of appeals reversed and
remanded for trial. Said the court:
The plaintiff argues that proximate cause is a jury question because

there is a genuine issue of whether the damage to the building was the
natural and probable consequence of the defendant’s careless driving.
The plaintiff maintains that there is at least some evidence that the
defendant’s car struck the air-conditioning or heating unit with great
force. Thus, the plaintiff asserts, the explosion was not inherently
unforeseeable and proximate cause should not be decided as a matter
of law. The defendant responds that the explosion was too bizarre to
be a natural and probable consequence of slowly backing a car into
the building. We conclude that the evidence on the issue is not so
one-sided that it entitles the defendant to summary judgment.
We cannot say as a matter of law that it was not reasonably
foreseeable that a collision between an automobile and the side of a
building could cause the sort of injury here. Construing the evidence
liberally in favor of the plaintiff, we see some basis to conclude that
the impact was substantial. The sound made a person some distance
off shift her attention toward the defendant. Moreover, even a slow-
moving car is a large instrumentality capable of causing significant
harm. The possibility that colliding with a building will disrupt a gas
line or create a fire hazard is not so inherently farfetched as to merit
the label “freakish” or “fantastic.” Gas lines and ignition sources such
as appliances are common features of buildings, including large
buildings used for residential purposes. Importantly, this case does
not involve the intervention of an unforeseeable third party as an
intervening or additional cause. It is at least fairly arguable that, once
the defendant’s car hit the plaintiff’s building, the sequence of events
that caused the explosion was set in motion with no further action
needed to bring about the injury. . . .
If the defendant’s conduct is a substantial factor in bringing about
the injury, it is not necessary that the extent of the harm or the exact
manner in which it occurred could reasonably have been foreseen. A
negligence defendant must take the plaintiff as he finds him, even if
the plaintiff’s “eggshell skull” results in his suffering an injury that
ordinarily would not be reasonably foreseeable. Here, the evidence
suggests that a building rather than a person may have had an
“eggshell skull.” That possibility alone does not foreclose liability for
the injury.
What is the distinction between Colonial Inn Motor Lodge v. Gay and
Doughty v. Turner?
6. Turn off engine before fueling. In DiPonzio v. Riordan, 679 N.E.2d

616 (N.Y. 1997), the plaintiff was a customer at the defendant’s self-service
gas station. As he was filling his car, another automobile rolled into him
and broke his leg. The other car — the one that rolled — was unoccupied;
its driver had left its motor running while he filled it with gas and went to
pay the attendant, and evidently the car somehow slipped out of the parking
gear while he was away. The gas station’s policy was that its patrons were
to turn off their engines while fueling, but the plaintiff’s evidence was that
the defendant failed to enforce the policy, and that if it had done so, he
would not have been injured. The New York Court of Appeals held that the
defendant nevertheless was entitled to summary judgment:
When a vehicle’s engine is left running in an area where gasoline is

being pumped, there is a natural and foreseeable risk of fire or
explosion because of the highly flammable properties of the fuel. . . .
It is this class of foreseeable hazards that defines the scope of the
[defendant’s] purported duty.
The occurrence that led to plaintiff’s injury was clearly outside of
this limited class of hazards. Plaintiff was injured because the parking
gear of another customer’s car inexplicably failed and the unattended
vehicle, which had rested stationary on a level surface for more than
five minutes, suddenly began to move backwards, pinning plaintiff
between its rear bumper and the bumper of his own car. Because this
type of accident was not among the hazards that are naturally
associated with leaving a car engine running during the operation of a
gas pump, the alleged misconduct of [defendant’s] employees does
not give rise to liability in tort.
What is the distinction between DiPonzio v. Riordan and Colonial Inn

Motor Lodge v. Gay?
7. Rat flambé (problem). In United Novelty Co. v. Daniels, 42 So. 2d
395 (Miss. 1949), the plaintiffs’ evidence was that the defendant employer
instructed its employee, Daniels, to clean its coin-operated machines with
gasoline. The room where the machines were located contained a lighted
gas heater. While Daniels was working, a rat ran out from beneath the
machine that he was cleaning and sought sanctuary beneath the heater. The
heater ignited the rat’s gasoline-soaked fur. The rat ran back beneath the
machine that the employee was cleaning. The flames emanating from the
rat apparently ignited the fumes created by Daniels’ work with the gasoline.
The machine exploded, killing Daniels. Daniels’ family sued his employer,
claiming it had been negligent in instructing Daniels to use gasoline to
clean machines in a room containing a lit gas heater. The trial court entered
judgment on a jury verdict for the plaintiffs. The defendant appealed on the
ground that the evidence was insufficient to support the verdict. What
result? Can the case be distinguished from Doughty v. Turner?
8. Psychotic reaction (problem). In Steinhauser v. Hertz Corp., 421 F.2d
1169 (2d Cir. 1970), the plaintiffs and defendants were in an automobile
accident in New Jersey. The defendants’ car crossed a double yellow line on
the road and struck the plaintiffs’ car. The occupants of the cars did not
suffer any bodily injuries, but one of the passengers in the plaintiffs’ car,
Cynthia Steinhauser, began exhibiting unusual behavior a few minutes after
the accident. She was observed to be glassy-eyed, agitated, and disturbed,
and she made menacing gestures toward the defendant as he came toward
the plaintiffs’ car. In the following days her condition declined. She became
convinced that she was under attack, and that bullets were coming through
the windows of her house; she attacked her parents; she attempted suicide.
She soon was institutionalized and diagnosed as schizophrenic. At the time
of trial her prognosis for recovery was poor. She and her parents sued the
defendants to recover for damages associated with her condition. The
plaintiffs’ psychiatrist testified at trial to his conclusion that before the
accident Cynthia must have had a “prepsychotic” personality and thus a
predisposition to schizophrenia, and that the accident had served as the
“precipitating cause” of her psychosis. What result? How might you use the
prior cases in this chapter to argue for or against liability?
9. Montezuma’s revenge. In Central of Georgia Ry. v. Price, 32 S.E. 77
(Ga. 1898), the plaintiff’s evidence was that she was a passenger on the
defendant’s train, bound for Winchester, Georgia. Through the conductor’s
negligence, she was not let off at Winchester, but was carried on to
Montezuma. When the train arrived there, the conductor suggested that the
plaintiff spend the night at a hotel and take the morning train back to
Winchester. He escorted her to a hotel and arranged to pay her expenses
there. The plaintiff was taken to her room and furnished with a kerosene
lamp, which she left burning after she had gone to bed. During the night the
lamp exploded, setting fire to the mosquito net that covered the plaintiff’s
bed. She burned her hands in an attempt to extinguish the flames. She sued
the railway company for her injuries and the jury returned a verdict in her
favor for $400. The trial judge overruled the defendant’s motion for a new
trial, and the defendant appealed. The Georgia Supreme Court reversed:
The negligence of the company consisted in passing the station where

the passenger desired to alight, without giving her an opportunity to
get off. Taking her version of the manner in which she was injured,
the injury was occasioned by the negligence of the proprietor of the
hotel or his servants in giving her a defective lamp. The negligence of
the company in passing her station was therefore not the natural and
proximate cause of her injury. There was the interposition of a
separate, independent agency, — the negligence of the proprietor of
the hotel, over whom, as we have shown, the railway company
neither had nor exercised any control. The injuries to the plaintiff
were not the natural and proximate consequences of carrying her
beyond her station, but were unusual, and could not have been
foreseen or provided against by the highest practicable care.
10. Ambulance driver. In Pridham v. Cash & Carry Building Center,

Inc., 359 A.2d 193 (N.H. 1976), a clerk at the defendant’s showroom
negligently untied a rope securing some vinyl panels, causing a large pile of
them to fall onto the plaintiff’s decedent, Herbert Pridham. Pridham was
knocked onto his back. A doctor soon arrived and found that Pridham was
unable to move his legs, so he was put onto a stretcher and carried into an
ambulance. On the way to the hospital, the driver of the ambulance had a
heart attack and drove into a tree. Pridham was killed in the crash.
Pridham’s administrator brought a wrongful death action against the
defendant, claiming that Pridham’s death was attributable to its clerk’s
negligence in handling the vinyl panels. The plaintiff won a jury verdict,
and the trial court entered judgment upon it. The defendant appealed,
contending that the jury had been instructed improperly. The contested
instruction was as follows:
The law provides that if the defendant is liable to the plaintiff-

decedent in this case, he is also liable for any additional bodily harm
resulting from normal efforts of third persons in rendering aid . . .
which the other’s injury reasonably requires irrespective of whether
such acts are done in a proper or in a negligent manner. . . . If you
find the defendant Cash and Carry Building Center is liable to the
plaintiff, the damages awarded to the plaintiff would include all
injuries suffered by the decedent Pridham at Cash and Carry; and if
you also find the injuries suffered in the ambulance crash were as a
result of the normal effort of third persons in rendering aid which the
decedent Pridham required, then the defendant would be liable to the
plaintiff for those also.
The New Hampshire Supreme Court affirmed.

Is there a satisfactory distinction between Pridham v. Cash & Carry
Building Center and Central of Georgia Ry. v. Price?
11. Injuries at the hospital. From the Restatement (Second) of Torts
(1965):
§457. ADDITIONAL HARM RESULTING FROM EFFORTS TO MITIGATE HARM
CAUSED BY NEGLIGENCE
If the negligent actor is liable for another’s bodily injury, he is

also subject to liability for any additional bodily harm resulting from
normal efforts of third persons in rendering aid which the other’s
injury reasonably requires, irrespective of whether such acts are done
in a proper or a negligent manner.
Illustration 1. A’s negligence causes B serious harm. B is taken to
a hospital. The surgeon improperly diagnoses his case and performs
an unnecessary operation, or, after proper diagnosis, performs a
necessary operation carelessly. A’s negligence is a legal cause of the
additional harm which B sustains.
Comment d. Under the rule stated in this Section, the actor is
answerable only for injuries which result from the risks normally
recognized as inherent in the necessity of submitting to medical,
surgical, or hospital treatment. He is not answerable for harm caused
by misconduct which is extraordinary and therefore outside of such
risks.
Illustration 4. A negligently inflicts serious harm on B. While B
is in a hospital under treatment, his nurse, unable to bear the sight of
his intense suffering, gives him a hypodermic injection of morphine
in disobedience of the surgeon’s instructions and so excessive that she
knows it may be lethal. B dies as a result of the injection. A’s
negligence is not a legal cause of B’s death.
12. Injuries upon returning from the hospital. From the Restatement
(Second) of Torts (1965):
§460. SUBSEQUENT ACCIDENTS DUE TO IMPAIRED PHYSICAL CONDITION

CAUSED BY NEGLIGENCE
If the negligent actor is liable for an injury which impairs the

physical condition of another’s body, the actor is also liable for harm
sustained in a subsequent accident which would not have occurred
had the other’s condition not been impaired, and which is a normal
consequence of such impairment.
Illustration 1. Through the negligence of A, a collision occurs in
which B’s right leg is fractured. B is confined to a hospital for two
months. At the end of that time, he is permitted by his surgeon to
walk on crutches, and while he is doing so, with all reasonable care,
he falls and suffers a fracture of his left arm. A’s negligence is a legal
cause of the second injury.
Illustration 2. The same facts as in Illustration 1, except that B
attempts to descend on crutches a steep ladder into his basement. A’s
negligence is not a legal cause of the second injury.
13. The speeding trolley (problem). In Berry v. Borough of Sugar Notch,

43 A. 240 (Pa. 1899), the plaintiff was the motorman of a trolley car that
traveled through the defendant’s borough. One day high winds caused a
large chestnut tree to fall onto the plaintiff’s trolley, crushing it and causing
him various injuries. The plaintiff claimed that the tree was in poor
condition and that the borough therefore was negligent in allowing it to
remain there. The borough countered with evidence that the plaintiff was
traveling considerably in excess of the statutory speed limits for trolley
cars. Did the borough thus make out a good claim of contributory
negligence on the plaintiff’s part?
B. INTERVENING CAUSES
The cases and problems thus far have focused on one consideration
prominent in the proximate cause inquiry: foreseeability. This section
examines the related but distinct problem of intervening causes. Sometimes
a defendant commits an act of negligence that produces harm when
combined with a subsequent act of wrongdoing (negligence or worse) by
some third party. The question then arises whether the intervening act by
the third party is a “superseding cause” that cuts off the defendant’s
liability.
Brauer v. New York Central & H.R.R. Co.

103 A. 166 (N.J. Errors & App. 1918)
[One of the defendant’s trains collided with the plaintiff’s wagon at a

grade crossing. The plaintiff’s horse was killed, his wagon was destroyed,
and the wagon’s contents — a keg of cider, some empty barrels, and a
blanket — were stolen by unknown parties at the scene of the accident. The
trial court entered judgment on a jury verdict in favor of the plaintiff, and
this appeal followed.]
SWAYZE, J. — This is a case of a grade crossing collision. We are clear

that the questions of negligence and contributory negligence were for the
jury. If there were nothing else, the testimony of the plaintiff as to signals of
the flagman would carry the case to the jury. The only question that has
caused us difficulty is that of the extent of the defendant’s liability. . . .
What happened was that as a result of the collision, aside from the death of
the horse and the destruction of the wagon, the contents of the wagon,
consisting of empty barrels and a keg of cider, were scattered, and probably
stolen by people at the scene of the accident. The driver, who was alone in
charge for the plaintiff, was so stunned that one of the railroad detectives
found him immediately after the collision in a fit. There were two railroad
detectives on the freight train to protect the property it was carrying against
thieves, but they did nothing to protect the plaintiff’s property. The
controversy on the question of damages is as to the right of the plaintiff to
recover the value of the barrels, cider, and blanket. . . .
It is now argued that the defendant’s negligence was not in any event
the proximate cause of the loss of this property, since the act of the thieves
intervened. The rule of law exempting the one guilty of the original
negligence from damage due to an intervening cause is well settled. The
difficulty lies in the application. Like the question of proximate cause, this
is ordinarily a jury question. Del. Lack, & West. R. R. Co. v. Salmon, 39 N.J.
Law, 299. In his opinion in the last-named case Justice Depue, speaking for
this court, says that the cases in which the responsibility is laid on the
original wrongdoer, though intervening agencies without his fault have
interposed, are quite numerous, and he adds that they are only instances of
the application of the principle of Scott v. Shepherd, 2 W. Bl. 892. . . .
We think these authorities justified the trial judge in his rulings as to the
recovery of the value of the barrels, cider, and blanket. The negligence
which caused the collision resulted immediately in such a condition of the
driver of the wagon that he was no longer able to protect his employer’s
property; the natural and probable result of his enforced abandonment of it
in the street of a large city was its disappearance; and the wrongdoer cannot
escape making reparation for the loss caused by depriving the plaintiff of
the protection which the presence of the driver in his right senses would
have afforded.
“The act of a third person” said the Supreme Court of Massachusetts,
“intervening and contributing a condition necessary to the injurious effect
of the original negligence, will not excuse the first wrongdoer, if such act
ought to have been foreseen.” Lane v. Atlantic Works, 111 Mass. 136. [] A
railroad company which found it necessary or desirable to have its freight
train guarded by two detectives against thieves is surely chargeable with
knowledge that portable property left without a guard was likely to be made
off with. . . . An illustration will perhaps clarify the case. Suppose a fruit
vendor at his stand along the street is rendered unconscious by the
negligence of the defendant, who disappears, and boys in the street
appropriate the unfortunate vendor’s stock in trade; could the defendant
escape liability for their value? We can hardly imagine a court answering in
the affirmative. Yet the case is but little more extreme than the jury might
have found the present case.
The judgment is affirmed, with costs.
GARRISON, J., dissenting — The collision afforded an opportunity for

theft of which a thief took advantage, but I cannot agree that the collision
was therefore the proximate cause of loss of the stolen articles. Proximate
cause imports unbroken continuity between cause and effect, which, both in
law and in logic, is broken by the active intervention of an independent
criminal actor. This established rule of law is defeated if proximate cause is
confounded with mere opportunity for crime. A maladjusted switch may be
the proximate cause of the death of a passenger who was killed by the
derailment of the train or by the fire or collision that ensued, but it is not the
proximate cause of the death of a passenger who was murdered by a bandit
who boarded the train because of the opportunity afforded by its derailment.
This clear distinction is not met by saying that criminal intervention should
be foreseen, for this implies that crime is to be presumed, and the law is
directly otherwise.
NOTES
1. Arson. In Watson v. Kentucky & Indiana Bridge & R.R., 126 S.W.
146 (Ky. 1910), the plaintiff’s evidence was that one of the defendant’s
railroad cars negligently was derailed, causing its cargo of gasoline to spill
out into the streets of Louisville. The gas was ignited by a match lit by a
man named Duerr. An explosion resulted that threw the plaintiff from his
bed and demolished much of his house. He sued the railroad to recover for
his injuries. There was a conflict in the evidence regarding how Duerr
started the fire. He claimed that he had used the match to light a cigar and
had started the explosion inadvertently. The railroad’s witnesses, however,
said that 20 minutes before the explosion they heard Duerr say to a
companion, “Let us go and set the damn thing on fire.” The trial court gave
a directed verdict to the defendant railroad. The court of appeals reversed
and remanded for a new trial, holding that the railroad’s liability depended
on how Duerr came to start the fire and that this was a question for the jury.
Said the court:
If the presence on Madison street in the city of Louisville of the great

volume of loose gas that arose from the escaping gasoline was caused
by the negligence of the appellee Bridge & Railroad Company, it
seems to us that the probable consequences of its coming in contact
with fire and causing an explosion was too plain a proposition to
admit of doubt. Indeed, it was most probable that some one would
strike a match to light a cigar or for other purposes in the midst of the
gas. In our opinion, therefore, the act of one lighting and throwing a
match under such circumstances cannot be said to be the efficient
cause of the explosion. It did not of itself produce the explosion, nor
could it have done so without the assistance and contribution
resulting from the primary negligence, if there was such negligence,
on the part of the appellee Bridge & Railroad Company in furnishing
the presence of the gas in the street. This conclusion, however, rests
upon the theory that Duerr inadvertently or negligently lighted and
threw the match in the gas. . . .
If, however, the act of Duerr in lighting the match and throwing it
into the vapor or gas arising from the gasoline was malicious, and
done for the purpose of causing the explosion, we do not think
appellees would be responsible, for while the appellee Bridge &
Railroad Company’s negligence may have been the efficient cause of
the presence of the gas in the street, and it should have understood
enough of the consequences thereof to have foreseen that an
explosion was likely to result from the inadvertent or negligent
lighting of a match by some person who was ignorant of the presence
of the gas or of the effect of lighting or throwing a match in it, it
could not have foreseen or deemed it probable that one would
maliciously or wantonly do such an act for the evil purpose of
producing the explosion.
What is the distinction between Watson v. Kentucky & Indiana Bridge &
R.R. and Brauer v. New York Central & H.R.R.?
2. Intervening jostler. In Village of Carterville v. Cook, 22 N.E. 14 (Ill.
1889), the defendant village maintained a sidewalk that in one area was
elevated about six feet above the ground and had no railings. The plaintiff
was walking along the sidewalk and using all due care when he was
inadvertently jostled by another pedestrian, causing him to fall off the
sidewalk and suffer various injuries. The plaintiff sued the village, claiming
that its negligent failure to provide railings was a proximate cause of his
damages. The jury returned a verdict in his favor. The defendant appealed.
Held, for the plaintiff, that the trial court did not err in finding the
evidence sufficient to support the verdict.
3. Heavenridge’s revenge. In Alexander v. Town of New Castle, 17 N.E.
200 (Ind. 1888), one Harvey Alexander sued the town of New Castle for
negligently failing to enclose a pit that had been dug in one of its streets. A
gambler named Heavenridge had been in town. Alexander engaged in a
game of chance with Heavenridge in order to procure evidence for his
arrest, then persuaded the town justice to appoint him special constable so
that he could arrest Heavenridge personally. He did arrest Heavenridge, and
the justice tried and convicted him of gaming. As Alexander was leading
Heavenridge off to jail, Heavenridge seized him, threw him into the pit in
the sidewalk that the defendant had left open, and made his escape.
Alexander then brought this suit against the town. The trial court found for
the defendant, and Alexander appealed, claiming that the evidence could
not support the verdict. The Indiana Supreme Court affirmed, finding that
“Heavenridge was clearly an intervening as well as an independent human
agency in the infliction of the injuries of which the plaintiff complained.”
What is the distinction between Alexander v. Town of New Castle and
Village of Carterville v. Cook?
4. Intentional intervening acts. From the Restatement (Second) of Torts:
§448. INTENTIONALLY TORTIOUS OR CRIMINAL ACTS DONE UNDER

OPPORTUNITY AFFORDED BY ACTOR’S NEGLIGENCE
The act of a third person in committing an intentional tort or

crime is a superseding cause of harm to another resulting therefore,
although the actor’s negligent conduct created a situation which
afforded an opportunity to the third person to commit such a tort or
crime, unless the actor at the time of his negligent conduct realized or
should have realized the likelihood that such a situation might be
created, and that a third person might avail himself of the opportunity
to commit such a tort or crime.
§449. TORTIOUS OR CRIMINAL ACTS THE PROBABILITY OF WHICH MAKES

ACTOR’S CONDUCT NEGLIGENT
If the likelihood that a third person may act in a particular manner

is the hazard or one of the hazards which makes the actor negligent,
such an act whether innocent, negligent, intentionally tortious, or
criminal does not prevent the actor from being liable for harm caused
thereby.
5. The squib case. The opinion in Brauer makes reference to Scott v.

Shepherd, 2 Wm. B; 892, 96 Eng. Rep. 525 (K.B. 1773). In that case the
defendant, Shepherd, tossed a lighted firecracker (a “squib,” as it was
called) into a crowded market. It landed next to a man named Willis, who
immediately flung it away to protect himself; it then landed next to one
Ryal, who also hurled it away. The squib finally landed in the face of the
plaintiff, Scott, where it exploded and put out one of his eyes. Scott sued
Shepherd. The important question in the case was whether Scott had stated
a good claim against Shepherd for trespass, the form of action used to
complain of directly inflicted injuries, or whether the suit should have been
brought as an action for trespass “on the case,” the form of action used to
bring claims for injuries inflicted indirectly. A divided court held that
Shepherd had a good trespass claim. Said DeGrey, C.J.:
I look upon all that was done subsequent to the original throwing as a
continuation of the first force and first act, which will continue till the
squib was spent by bursting. And I think that any innocent person
removing the danger from himself to another is justifiable; the blame
lights upon the first thrower. The new direction and new force flow
out of the first force, and are not a new trespass. . . . It has been
urged, that the intervention of a free agent will make a difference: but
I do not consider Willis and Ryal as free agents in the present case,
but acting under a compulsive necessity for their own safety and self-
preservation.
The distinction between “trespass” and “case” has evaporated, but Scott v.
Shepherd — commonly known as the “squib case” — has retained vitality
as a precedent on the question of proximate causation.
6. She who hesitated lost. In The Roman Prince, 275 F. 712 (S.D.N.Y.
1921), the plaintiff was in the cabin of a barge, the C.W. Crane. when the
barge negligently was struck by the defendant’s steamship (The Roman
Prince). The plaintiff soon noticed that the barge had started to leak, but she
did not think it was sinking and so declined to board another barge that was
alongside hers. Half an hour later the Crane had sunk far enough that water
was coming onto its deck. The plaintiff then tried to escape from the Crane
onto the adjacent barge, and in doing so she stumbled and injured her knee.
She brought a lawsuit claiming that the defendant was responsible for her
injuries because of the negligent piloting of its ship that originally caused
the collision. The trial court gave judgment to the defendant, finding that
the collision was not the proximate cause of the plaintiff’s injuries:
I think the collision of the Roman Prince with the Crane cannot be
regarded in a legal sense as the cause of the injuries to Mrs. Keenan.
She had 15 to 25 minutes to get off the boat when she knew it was
settling. She chose, because of a somewhat natural desire to stay by
the vessel, to take the risk for a time of the sinking, and finally, from
20 to 30 minutes after the collision, suffered injuries because she
stumbled between the two boats. If she would have avoided
stumbling by leaving the C.W. Crane before it had settled, so that
there was a long climb to the deck of the Jersey Central lighter, I
think she should have left earlier; but, at any rate, I can see no reason
why stumbling on her part can be reasonably attributed to the
collision. If there had not been time to deliberate, and take care in
leaving the C.W. Crane — in other words, if the facts had come
within the “squib” case — we would have a different situation. Scott
v. Shepherd, 2 W.Bl. 892. Here I think the collision was not a
proximate cause of the injuries to the libelant, and the libel is
accordingly dismissed, but without costs.
7. A question of agency. In Thompson v. White, 149 So. 2d 797 (Ala.

1963), the plaintiff was injured when the car in which she was riding was
struck in the rear by a car driven by one of the defendants, Lawson White.
A Gulf gasoline station recently had been opened near the point where the
accident occurred. Gulf had hired clowns to perform at the side of the road.
The plaintiff’s evidence was that “the clowns had on clown suits and were
waving something; they were facing the road and were close enough to
have touched the plaintiff car; that the clowns distracted the driver of the
plaintiff car to a certain extent but not enough to interfere with her driving;
that she had passed the clowns before she stopped; that the clowns were on
a portion (of the highway) used by cars[.]” The plaintiff sued Gulf as well
as White, claiming that Gulf’s clowns distracted White and thus contributed
to the accident. The trial court sustained Gulf’s demurrer to the plaintiff’s
complaint; a jury brought in a verdict against White. The Alabama Supreme
Court reversed the portion of the judgment in favor of Gulf and remanded
for trial:
We are of opinion that, from the evidence favorable to plaintiff, the

jury could reasonably infer that the clowns were on the traveled
portion of the highway, that the activities of the clowns were such as
would naturally and probably distract the attention of motorists on the
highway, and that the activity of the clowns did distract White and
cause him to drive his car into the car in which plaintiff was riding.
We are of opinion that determination of the question whether the Gulf
defendants were, under the doctrine of respondeat superior, guilty of
negligence was for the jury. . . . We are of opinion that the evidence
reasonably supports an inference that since White’s car was
immediately behind the plaintiff car, the driver of which was
distracted by the clowns, White was also distracted by the clowns. In
that event, White was not a free agent but was acting under the
influence of the clowns. DeGrey, C. J., in Scott v. Shepherd, 2
Blackstone 892, 900. His negligence, if any, was thus a concurring
cause and not an independent, intervening cause which would
insulate the Gulf defendants from liability.
As these subsequent courts have understood the “squib case,” what

principle does it stand for?
8. Exercises. Now consider the following cases, all involving “freak”
accidents; in which would you expect the plaintiff’s case to satisfy the
proximate cause requirement?
a. Lightning strike. In Johnson v. Kosmos Portland Cement Co., 64 F.2d
193 (6th Cir. 1933), the defendant owned a barge that was moored on the
Ohio River near the town of Kosmosdale. The barge recently had been used
to haul oil, and as a result inflammable gases had accumulated in the
barge’s hold. The defendant negligently failed to remove the gases before
summoning the plaintiffs’ decedents to perform work on the barge using an
acetylene torch. The gases were ignited, causing an explosion that killed
everyone on board; but the ignition of the gases was caused not by the torch
but by a bolt of lightning that struck the barge. The administrators of two of
the men who died brought suits claiming that the defendant’s negligent
failure to rid the barge of the inflammable gases was the proximate cause of
their deaths. The trial court found that the defendant’s negligence was not
the proximate cause of the fatal injuries suffered by the plaintiffs’
decedents, and so gave judgment to the defendants. The plaintiffs appealed.
What result?
b. Fire in the hole! In Henry v. Houston Lighting & Power Co., 934
S.W.2d 748 (Tex. App. 1996), the defendants’ employees were drilling a
hole for a utility pole when they negligently severed an underground gas
line. The plaintiff, Edwin Henry, was summoned to fix the broken line.
Unbeknownst to Henry, while he was doing this some other workers began
to operate a mosquito fogger in a manhole on the other side of a nearby
fence. Fog from the fogger drifted into the hole where Henry was working.
A fellow employee, thinking the fog was smoke, shouted “Fire!” Fearing
the fire would cause the leaking gas to explode, Henry sprang from the
hole, rushed through the fog, and ran into a utility pole, injuring his
shoulder.
Henry brought a lawsuit against the power company, claiming that his
shoulder injury was attributable to its employees’ negligence in originally
severing the gas line. The trial court gave summary judgment to the
defendants. The plaintiff appealed. What result?
c. Delayed reaction. In Clark v. E. I. DuPont de Nemours Powder Co.,
146 P. 320 (Kan. 1915), defendant DuPont was hired to assist in the drilling
of an oil well on the farm of a man named McDowell. After performing the
work, one of DuPont’s agents inadvertently left behind a pail of explosive,
solidified glycerin. Joe McDowell, a son of the farm’s owner and himself an
oil well worker, discovered the pail and took it home to keep it out of
harm’s way. His mother protested against keeping so dangerous an article at
the house, however, so McDowell moved the pail to a nearby graveyard and
hid it there in a crevice in a stone wall. The pail remained there for over two
years until it was found by the sons of the plaintiff, Clark. On the day they
discovered the pail, the Clark boys did not know what it contained and left
it at the graveyard. That evening, however, one of the boys described the
pail to his uncle, who ventured the opinion that the substance it contained
probably was some sort of animal fat. The next morning the boys returned
to the graveyard. One of them picked up the pail and hit it on a rock in
order to break off a piece of the substance inside to take home. This caused
an explosion that injured both Clark sons. The plaintiff brought a suit
claiming that his sons’ injuries were attributable to the negligence of
DuPont’s agent in leaving the pail behind two years earlier when he was at
the McDowell farm. The jury found for the plaintiff and the defendant
appealed, claiming the evidence was insufficient to support the verdict.
What result would you predict on these facts? What analogies might
you draw to previous cases we have considered?
d. Raging bulldozer. In Richardson v. Ham, 285 P.2d 269 (Cal. 1955),
employees of the defendants’ construction company were using a 26-ton
bulldozer to perform work on top of a mesa. One night they negligently left
the bulldozer unlocked and unattended at the work site. A pair of young
men who had been drinking discovered the bulldozer, started it, drove it
around the mesa for a while, and caused various sorts of damage. When
they could not figure out how to stop the bulldozer, they headed it toward
the eastern edge of the mesa and abandoned it. The bulldozer went over the
edge of the mesa, down a hill, across a freeway, through a house, and into
an automobile before at last being stopped by a retaining wall and utility
pole. The plaintiffs were among the people whose property was damaged.
They brought a suit claiming that their damages were attributable to the
negligent failure of the defendants’ employees to lock the bulldozer. The
jury brought in verdicts for the defendants. The trial judge granted the
plaintiffs’ motions for a new trial. The defendants appealed. Construct
arguments for and against liability.
e. Local cuisine. In Farmilant v. Singapore Airlines, Ltd., 561 F. Supp
1148 (N.D. Ill. 1983), the plaintiff, Farmilant, bought an airline ticket from
the defendant’s agent that would, with several stopovers, carry him to
Madras and back: Los Angeles to Tokyo, Tokyo to Singapore, Singapore to
Madras, Madras to Singapore, Singapore to Honolulu, and Honolulu to Los
Angeles. He attempted to make some changes to his itinerary during the
trip, however, and when he arrived in Singapore he was informed that all
the flights to Madras were booked for the next three weeks. He therefore
flew instead to Bombay and took a train to Madras. During a stop on the
train trip Farmilant ate some local cuisine and became ill; as a result he
ended up being able to spend only a few days at his final destination of
Mahabalipuram. He tried to book an immediate flight back to the United
States, telling the defendant’s agents that he was ill and feared for his life.
He was told that for the next available seat he would have to wait over a
month. He booked a flight home on another carrier, and upon his return was
hospitalized for 12 days. Farmilant sued the airline to recover his medical
expenses, alleging that his injuries were attributable to the airline’s
negligence in failing to have a seat available for him on one of their flights
from Singapore to Madras. Assuming that the airline was negligent, what
result on the causation issue?
f. Foreseeability. In Bell v. Campbell, 434 S.W.2d 117 (Tex. 1968), the
defendant, Addie Campbell, pulled onto Highway 67 near Texarkana
without keeping a proper lookout or yielding the right of way. A vehicle
driven by one Marshall struck Campbell’s pickup truck from behind,
knocking the truck off the road and causing a trailer attached to Marshall’s
vehicle to overturn on the highway. A crowd soon gathered. Someone
began warning oncoming cars with a flashlight, and several people started
removing the overturned trailer from the highway. A man named W.W.
Fore, in whose car several bottles of whiskey later were found, either
ignored or failed to see the warning signals. Fore struck the trailer, killing
two of the people who had been trying to move it. In addition to suing Fore,
the decedents’ administrators also sued Campbell and Marshall, claiming
that the negligence of either or both of them in causing the original accident
also was the proximate cause of the decedents’ deaths. What result on the
latter claims?
9. An attempt at clarification. Professor Grady believes that problems of
intervening conduct generally can be sorted into five categories, each with a
handy acronym and predictable outcome:
Paradigm NIT (“no intervening tort”): The defendant was negligent,

and no subsequent tortious act intervened between the defendant’s
negligence and the plaintiff’s harm. Liability. Paradigm NIT is the
most obvious situation in which the original wrongdoer’s liability is
preserved. The harm to the plaintiff was directly caused by the
defendant because no tort by anyone else intervened between the
defendant’s negligence and the plaintiff’s harm. This pattern results in
liability so long as the other requirements of causation are satisfied:
“but-for” causation, and causation in the sense that the defendant’s
negligence made the harm that occurred more likely to happen.
Paradigm DCE (“dependent compliance error”): The defendant
negligently made the plaintiff specially vulnerable to someone else’s
ordinary negligence (i.e., compliance errors) or emergency response.
Liability. The general idea here is that if the defendant’s negligence
puts the plaintiff at a higher risk of being the victim of negligence, the
defendant should not be off the hook when that negligence occurs.
Perhaps the very reason why the defendant is considered negligent —
the risk that the defendant is creating that is bothersome — is that the
defendant’s conduct puts others at greater risk of being hurt by
someone else’s negligence. This also is the paradigm that applies
when the plaintiff is hurt while trying to rescue a third party injured
by the defendant’s original act of negligence.
Paradigm EFR (“encouraged free radicals”): The defendant
negligently created an unusually tempting opportunity for
irresponsible third parties to do harm. Liability. These are cases
where the defendant, a responsible person with enough assets and
good judgment to be deterred by tort liability, somehow has
encouraged irresponsible people (“free radicals”) to wreak havoc —
perhaps even to wreak havoc deliberately. This paradigm is especially
appropriate when the defendant — the original wrongdoer — acted in
a way that was deliberate or knowing, rather than utterly inadvertent.
Ask: did the defendant really create new incentives or opportunities
that made mischief by others more likely? If the defendant did
encourage the free radicals, did their behavior nonetheless go beyond
the defendant’s encouragement?
Paradigm NCP (“no corrective precaution”): A third party
willfully failed to take a corrective precaution to prevent the
defendant’s negligence from causing harm. No liability. The
defendant avoids liability if, after the defendant commits a negligent
act, some third party recognizes the risk but fails to take a precaution
that would have prevented the resulting harm. The usual pattern: a
defendant negligently has created a dangerous situation. A
responsible person (not a free radical) appears on the scene and
recognizes the danger. This intervening person for some reason,
usually because of a special relationship, also has a duty of care
toward the plaintiff; or the intervenor is the plaintiff. But the
intervenor unaccountably does nothing to address the risk. Sometimes
these also can be understood as cases where the intervenor’s act
amounts to gross negligence rather than ordinary negligence.
Paradigm IIT (“independent intervening tort”): A third party
committed an intervening wrong that was independent of the
defendant’s negligence. No liability. These are cases where the
relationship between the defendant’s negligence and the third party’s
subsequent negligence was coincidental. Central of Georgia Ry. v.
Price is an example. The defendant’s railroad negligently took the
plaintiff to the wrong stop. She stayed the night in a hotel there, and
was injured in a fire. The railroad’s negligence did not make it any
more likely that the plaintiff would spend the night in a building that
caught fire; the intervening tort (the negligence that caused the fire)
thus was “independent” of the original negligence (taking the plaintiff
to the wrong stop). As discussed earlier, these cases usually can be
explained equally well, and more simply, by just saying there was no
reasonable foreseeability: that is, the defendant’s negligence did not
make it any more likely that the plaintiff would become a victim of a
third party’s negligence.
How well do Grady’s paradigms explain the cases? To the extent that the
rules work, what is the sense of them? For elaboration, see Mark F. Grady,
Proximate Cause Decoded, 50 UCLA L. Rev. 293 (2002).
C. LIMITATION OF DUTY: AN ALTERNATIVE APPROACH?
Palsgraf v. Long Island Railroad Co.

162 N.E. 99 (N.Y. 1928)
CARDOZO, C.J. — Plaintiff was standing on a platform of defendant’s

railroad after buying a ticket to go to Rockaway Beach. A train stopped at
the station, bound for another place. Two men ran forward to catch it. One
of the men reached the platform of the car without mishap, though the train
was already moving. The other man, carrying a package, jumped aboard the
car, but seemed unsteady as if about to fall. A guard on the car, who had
held the door open, reached forward to help him in, and another guard on
the platform pushed him from behind. In this act, the package was
dislodged, and fell upon the rails. It was a package of small size, about
fifteen inches long, and was covered by a newspaper. In fact it contained
fireworks, but there was nothing in its appearance to give notice of its
contents. The fireworks when they fell exploded. The shock of the
explosion threw down some scales at the other end of the platform many
feet away. The scales struck the plaintiff, causing injuries for which she
sues.
The conduct of the defendant’s guard, if a wrong in its relation to the
holder of the package, was not a wrong in its relation to the plaintiff,
standing far away. Relatively to her it was not negligence at all. Nothing in
the situation gave notice that the falling package had in it the potency of
peril to persons thus removed. Negligence is not actionable unless it
involves the invasion of a legally protected interest, the violation of a right.
“Proof of negligence in the air, so to speak, will not do.” Pollock, Torts
(11th Ed.) p. 455. . . . The plaintiff, as she stood upon the platform of the
station, might claim to be protected against intentional invasion of her
bodily security. Such invasion is not charged. She might claim to be
protected against unintentional invasion by conduct involving in the thought
of reasonable men an unreasonable hazard that such invasion would ensue.
These, from the point of view of the law, were the bounds of her immunity,
with perhaps some rare exceptions, survivals for the most part of ancient
forms of liability, where conduct is held to be at the peril of the actor. If no
hazard was apparent to the eye of ordinary vigilance, an act innocent and
harmless, at least to outward seeming, with reference to her, did not take to
itself the quality of a tort because it happened to be a wrong, though
apparently not one involving the risk of bodily insecurity, with reference to
some one else. “In every instance, before negligence can be predicated of a
given act, back of the act must be sought and found a duty to the individual
complaining, the observance of which would have averted or avoided the
injury.” McSherry, C.J., in West Virginia Central & P.R. Co. v. State, 96 Md.
652, 666, 54 A. 669, 671. . . . “The ideas of negligence and duty are strictly
correlative.” Bowen, L. J., in Thomas v. Quartermaine, 18 Q. B. D. 685,
694. The plaintiff sues in her own right for a wrong personal to her, and not
as the vicarious beneficiary of a breach of duty to another.
A different conclusion will involve us, and swiftly too, in a maze of
contradictions. A guard stumbles over a package which has been left upon a
platform. It seems to be a bundle of newspapers. It turns out to be a can of
dynamite. To the eye of ordinary vigilance, the bundle is abandoned waste,
which may be kicked or trod on with impunity. Is a passenger at the other
end of the platform protected by the law against the unsuspected hazard
concealed beneath the waste? If not, is the result to be any different, so far
as the distant passenger is concerned, when the guard stumbles over a valise
which a truckman or a porter has left upon the walk? The passenger far
away, if the victim of a wrong at all, has a cause of action, not derivative,
but original and primary. His claim to be protected against invasion of his
bodily security is neither greater nor less because the act resulting in the
invasion is a wrong to another far removed. In this case, the rights that are
said to have been violated, are not even of the same order. The man was not
injured in his person nor even put in danger. The purpose of the act, as well
as its effect, was to make his person safe. If there was a wrong to him at all,
which may very well be doubted it was a wrong to a property interest only,
the safety of his package. Out of this wrong to property, which threatened
injury to nothing else, there has passed, we are told, to the plaintiff by
derivation or succession a right of action for the invasion of an interest of
another order, the right to bodily security. The diversity of interests
emphasizes the futility of the effort to build the plaintiff’s right upon the
basis of a wrong to some one else. The gain is one of emphasis, for a like
result would follow if the interests were the same. Even then, the orbit of
the danger as disclosed to the eye of reasonable vigilance would be the orbit
of the duty. One who jostles one’s neighbor in a crowd does not invade the
rights of others standing at the outer fringe when the unintended contact
casts a bomb upon the ground. The wrongdoer as to them is the man who
carries the bomb, not the one who explodes it without suspicion of the
danger. Life will have to be made over, and human nature transformed,
before prevision so extravagant can be accepted as the norm of conduct, the
customary standard to which behavior must conform.
The argument for the plaintiff is built upon the shifting meanings of
such words as “wrong” and “wrongful,” and shares their instability. What
the plaintiff must show is “a wrong” to herself; i.e., a violation of her own
right, and not merely a wrong to some one else, nor conduct “wrongful”
because unsocial, but not “a wrong” to any one. We are told that one who
drives at reckless speed through a crowded city street is guilty of a
negligent act and therefore of a wrongful one, irrespective of the
consequences. Negligent the act is, and wrongful in the sense that it is
unsocial, but wrongful and unsocial in relation to other travelers, only
because the eye of vigilance perceives the risk of damage. If the same act
were to be committed on a speedway or a race course, it would lose its
wrongful quality. The risk reasonably to be perceived defines the duty to be
obeyed, and risk imports relation; it is risk to another or to others within the
range of apprehension. This does not mean, of course, that one who
launches a destructive force is always relieved of liability, if the force,
though known to be destructive, pursues an unexpected path. “It was not
necessary that the defendant should have had notice of the particular
method in which an accident would occur, if the possibility of an accident
was clear to the ordinarily prudent eye.” Munsey v. Webb, 231 U.S. 150,
156. Some acts, such as shooting, are so imminently dangerous to any one
who may come within reach of the missile however unexpectedly, as to
impose a duty of prevision not far from that of an insurer. Even today, and
much oftener in earlier stages of the law, one acts sometimes at one’s peril.
Under this head, it may be, fall certain cases of what is known as
transferred intent, an act willfully dangerous to A resulting by misadventure
in injury to B. These cases aside, wrong is defined in terms of the natural or
probable, at least when unintentional. The range of reasonable apprehension
is at times a question for the court, and at times, if varying inferences are
possible, a question for the jury. Here, by concession, there was nothing in
the situation to suggest to the most cautious mind that the parcel wrapped in
newspaper would spread wreckage through the station. If the guard had
thrown it down knowingly and willfully, he would not have threatened the
plaintiff’s safety, so far as appearances could warn him. His conduct would
not have involved, even then, an unreasonable probability of invasion of her
bodily security. Liability can be no greater where the act is inadvertent.
Negligence, like risk, is thus a term of relation. Negligence in the
abstract, apart from things related, is surely not a tort, if indeed it is
understandable at all. Negligence is not a tort unless it results in the
commission of a wrong, and the commission of a wrong imports the
violation of a right, in this case, we are told, the right to be protected against
interference with one’s bodily security. But bodily security is protected, not
against all forms of interference or aggression, but only against some. One
who seeks redress at law does not make out a cause of action by showing
without more that there has been damage to his person. If the harm was not
willful, he must show that the act as to him had possibilities of danger so
many and apparent as to entitle him to be protected against the doing of it
though the harm was unintended. Affront to personality is still the keynote
of the wrong. Confirmation of this view will be found in the history and
development of the action on the case. Negligence as a basis of civil
liability was unknown to mediaeval law. For damage to the person, the sole
remedy was trespass, and trespass did not lie in the absence of aggression,
and that direct and personal. Liability for other damage, as where a servant
without orders from the master does or omits something to the damage of
another, is a plant of later growth. When it emerged out of the legal soil, it
was thought of as a variant of trespass, an offshoot of the parent stock. This
appears in the form of action, which was known as trespass on the case. The
victim does not sue derivatively, or by right of subrogation, to vindicate an
interest invaded in the person of another. Thus to view his cause of action is
to ignore the fundamental difference between tort and crime. He sues for
breach of a duty owing to himself.
The law of causation, remote or proximate, is thus foreign to the case
before us. The question of liability is always anterior to the question of the
measure of the consequences that go with liability. If there is no tort to be
redressed, there is no occasion to consider what damage might be recovered
if there were a finding of a tort. We may assume, without deciding, that
negligence, not at large or in the abstract, but in relation to the plaintiff,
would entail liability for any and all consequences, however novel or
extraordinary. There is room for argument that a distinction is to be drawn
according to the diversity of interests invaded by the act, as where conduct
negligent in that it threatens an insignificant invasion of an interest in
property results in an unforeseeable invasion of an interest of another order,
as, e.g., one of bodily security. Perhaps other distinctions may be necessary.
We do not go into the question now. The consequences to be followed must
first be rooted in a wrong.
The judgment of the Appellate Division and that of the Trial Term
should be reversed, and the complaint dismissed, with costs in all courts.
ANDREWS, J., dissenting — Assisting a passenger to board a train, the

defendant’s servant negligently knocked a package from his arms. It fell
between the platform and the cars. Of its contents the servant knew and
could know nothing. A violent explosion followed. The concussion broke
some scales standing a considerable distance away. In falling, they injured
the plaintiff, an intending passenger.
Upon these facts, may she recover the damages she has suffered in an
action brought against the master? The result we shall reach depends upon
our theory as to the nature of negligence. Is it a relative concept — the
breach of some duty owing to a particular person or to particular persons?
Or, where there is an act which unreasonably threatens the safety of others,
is the doer liable for all its proximate consequences, even where they result
in injury to one who would generally be thought to be outside the radius of
danger? This is not a mere dispute as to words. We might not believe that to
the average mind the dropping of the bundle would seem to involve the
probability of harm to the plaintiff standing many feet away whatever might
be the case as to the owner or to one so near as to be likely to be struck by
its fall. If, however, we adopt the second hypothesis, we have to inquire
only as to the relation between cause and effect. We deal in terms of
proximate cause, not of negligence. . . .
But we are told that “there is no negligence unless there is in the
particular case a legal duty to take care, and this duty must be not which is
owed to the plaintiff himself and not merely to others.” Salmond Torts (6th
Ed.) 24. This I think too narrow a conception. Where there is the
unreasonable act, and some right that may be affected there is negligence
whether damage does or does not result. That is immaterial. Should we
drive down Broadway at a reckless speed, we are negligent whether we
strike an approaching car or miss it by an inch. The act itself is wrongful. It
is a wrong not only to those who happen to be within the radius of danger,
but to all who might have been there — a wrong to the public at large. Such
is the language of the street. Such the language of the courts when speaking
of contributory negligence. . . .
It may well be that there is no such thing as negligence in the abstract.
“Proof of negligence in the air, so to speak, will not do.” In an empty world
negligence would not exist. It does involve a relationship between man and
his fellows, but not merely a relationship between man and those whom he
might reasonably expect his act would injure; rather, a relationship between
him and those whom he does in fact injure. If his act has a tendency to harm
some one, it harms him a mile away as surely as it does those on the scene.
We now permit children to recover for the negligent killing of the father. It
was never prevented on the theory that no duty was owing to them. A
husband may be compensated for the loss of his wife’s services. To say that
the wrongdoer was negligent as to the husband as well as to the wife is
merely an attempt to fit facts to theory. An insurance company paying a fire
loss recovers its payment of the negligent incendiary. We speak of
subrogation — of suing in the right of the insured. Behind the cloud of
words is the fact they hide, that the act, wrongful as to the insured, has also
injured the company. Even if it be true that the fault of father, wife, or
insured will prevent recovery, it is because we consider the original
negligence, not the proximate cause of the injury. Pollock, Torts (12th Ed.)
463.
In the well-known Polemis Case, Scrutton, L.J., said that the dropping
of a plank was negligent, for it might injure “workman or cargo or ship.”
Because of either possibility, the owner of the vessel was to be made good
for his loss. The act being wrongful, the doer was liable for its proximate
results. Criticized and explained as this statement may have been, I think it
states the law as it should be and as it is.
The proposition is this: Every one owes to the world at large the duty of
refraining from those acts that may unreasonably threaten the safety of
others. Such an act occurs. Not only is he wronged to whom harm, might
reasonably be expected to result, but he also who is in fact injured, even if
he be outside what would generally be thought the danger zone. There
needs be duty due the one complaining, but this is not a duty to a particular
individual because as to him harm might be expected. Harm to some one
being the natural result of the act, not only that one alone, but all those in
fact injured may complain. We have never, I think, held otherwise. . . .
If this be so, we do not have a plaintiff suing by “derivation or
succession.” Her action is original and primary. Her claim is for a breach of
duty to herself — not that she is subrogated to any right of action of the
owner of the parcel or of a passenger standing at the scene of the explosion.
The right to recover damages rests on additional considerations. The
plaintiff’s rights must be injured, and this injury must be caused by the
negligence. We build a dam, but are negligent as to its foundations.
Breaking, it injures property down stream. We are not liable if all this
happened because of some reason other than the insecure foundation. But,
when injuries do result from our unlawful act, we are liable for the
consequences. It does not matter that they are unusual, unexpected,
unforeseen, and unforeseeable. But there is one limitation. The damages
must be so connected with the negligence that the latter may be said to be
the proximate cause of the former.
These two words have never been given an inclusive definition. What is
a cause in a legal sense, still more what is a proximate cause, depend in
each case upon many considerations, as does the existence of negligence
itself. Any philosophical doctrine of causation does not help us. A boy
throws a stone into a pond. The ripples spread. The water level rises. The
history of that pond is altered to all eternity. It will be altered by other
causes also. Yet it will be forever the resultant of all causes combined. Each
one will have an influence. How great only omniscience can say. You may
speak of a chain, or, if you please, a net. An analogy is of little aid. Each
cause brings about future events. Without each the future would not be the
same. Each is proximate in the sense it is essential. But that is not what we
mean by the word. Nor on the other hand do we mean sole cause. There is
no such thing.
Should analogy be thought helpful, however, I prefer that of a stream.
The spring, starting on its journey, is joined by tributary after tributary. The
river, reaching the ocean, comes from a hundred sources. No man may say
whence any drop of water is derived. Yet for a time distinction may be
possible. Into the clear creek, brown swamp water flows from the left.
Later, from the right comes water stained by its clay bed. The three may
remain for a space, sharply divided. But at last inevitably no trace of
separation remains. They are so commingled that all distinction is lost.
As we have said, we cannot trace the effect of an act to the end, if end
there is. Again, however, we may trace it part of the way. A murder at
Sarajevo may be the necessary antecedent to an assassination in London
twenty years hence. An overturned lantern may burn all Chicago. We may
follow the fire from the shed to the last building. We rightly say the fire
started by the lantern caused its destruction.
A cause, but not the proximate cause. What we do mean by the word
“proximate” is that, because of convenience, of public policy, of a rough
sense of justice, the law arbitrarily declines to trace a series of events
beyond a certain point. This is not logic. It is practical politics. Take our
rule as to fires. Sparks from my burning haystack set on fire my house and
my neighbor’s. I may recover from a negligent railroad. He may not. Yet
the wrongful act has directly harmed the one as the other. We may regret
that the line was drawn just where it was, but drawn somewhere it had to
be. We said the act of the railroad was not the proximate cause of our
neighbor’s fire. Cause it surely was. The words we used were simply
indicative of our notions of public policy. Other courts think differently. But
somewhere they reach the point where they cannot say the stream comes
from any one source.
Take the illustration given in an unpublished manuscript by a
distinguished and helpful writer on the law of torts. A chauffeur negligently
collides with another car which is filled with dynamite, although he could
not know it. An explosion follows. A, walking on the sidewalk nearby, is
killed. B, sitting in a window of a building opposite, is cut by flying glass.
C, likewise sitting in a window a block away, is similarly injured. And a
further illustration: A nursemaid, ten blocks away, startled by the noise,
involuntarily drops a baby from her arms to the walk. We are told that C
may not recover while A may. As to B it is a question for court or jury. We
will all agree that the baby might not. Because, we are again told, the
chauffeur had no reason to believe his conduct involved any risk of injuring
either C or the baby. As to them he was not negligent.
But the chauffeur, being negligent in risking the collision, his belief that
the scope of the harm he might do would be limited is immaterial. His act
unreasonably jeopardized the safety of any one who might be affected by it.
C’s injury and that of the baby were directly traceable to the collision.
Without that, the injury would not have happened. C had the right to sit in
his office, secure from such dangers. The baby was entitled to use the
sidewalk with reasonable safety.
The true theory is, it seems to me, that the injury to C, if in truth he is to
be denied recovery, and the injury to the baby, is that their several injuries
were not the proximate result of the negligence. And here not what the
chauffeur had reason to believe would be the result of his conduct, but what
the prudent would foresee, may have a bearing — may have some bearing,
for the problem of proximate cause is not to be solved by any one
consideration. It is all a question of expediency. There are no fixed rules to
govern our judgment. There are simply matters of which we may take
account. We have in a somewhat different connection spoken of “the stream
of events.” We have asked whether that stream was deflected — whether it
was forced into new and unexpected channels. This is rather rhetoric than
law. There is in truth little to guide us other than common sense.
There are some hints that may help us. The proximate cause, involved
as it may be with many other causes, must be, at the least, something
without which the event would not happen. The court must ask itself
whether there was a natural and continuous sequence between cause and
effect. Was the one a substantial factor in producing the other? Was there a
direct connection between them, without too many intervening causes? Is
the effect of cause on result not too attenuated? Is the cause likely, in the
usual judgment of mankind, to produce the result? Or, by the exercise of
prudent foresight, could the result be foreseen? Is the result too remote from
the cause, and here we consider remoteness in time and space. . . . Clearly
we must so consider, for the greater the distance either in time or space, the
more surely do other causes intervene to affect the result. When a lantern is
overturned, the firing of a shed is a fairly direct consequence. Many things
contribute to the spread of the conflagration — the force of the wind, the
direction and width of streets, the character of intervening structures, other
factors. We draw an uncertain and wavering line, but draw it we must as
best we can.
Once again, it is all a question of fair judgment, always keeping in mind
the fact that we endeavor to make a rule in each case that will be practical
and in keeping with the general understanding of mankind.
Here another question must be answered. In the case supposed, it is
said, and said correctly, that the chauffeur is liable for the direct effect of
the explosion, although he had no reason to suppose it would follow a
collision. “The fact that the injury occurred in a different manner than that
which might have been expected does not prevent the chauffeur’s
negligence from being in law the cause of the injury.” But the natural
results of a negligent act — the results which a prudent man would or
should foresee — do have a bearing upon the decision as to proximate
cause. We have said so repeatedly. What should be foreseen? No human
foresight would suggest that a collision itself might injure one a block away.
On the contrary, given an explosion, such a possibility might be reasonably
expected. I think the direct connection, the foresight of which the courts
speak, assumes prevision of the explosion, for the immediate results of
which, at least, the chauffeur is responsible.
It may be said this is unjust. Why? In fairness he should make good
every injury flowing from his negligence. Not because of tenderness toward
him we say he need not answer for all that follows his wrong. We look back
to the catastrophe, the fire kindled by the spark, or the explosion. We trace
the consequences, not indefinitely, but to a certain point. And to aid us in
fixing that point we ask what might ordinarily be expected to follow the fire
or the explosion.
This last suggestion is the factor which must determine the case before
us. The act upon which defendant’s liability rests is knocking an apparently
harmless package onto the platform. The act was negligent. For its
proximate consequences the defendant is liable. If its contents were broken,
to the owner; if it fell upon and crushed a passenger’s foot, then to him; if it
exploded and injured one in the immediate vicinity, to him also as to A in
the illustration. Mrs. Palsgraf was standing some distance away. How far
cannot be told from the record — apparently 25 or 30 feet, perhaps less.
Except for the explosion, she would not have been injured. We are told by
the appellant in his brief, “It cannot be denied that the explosion was the
direct cause of the plaintiff’s injuries.” So it was a substantial factor in
producing the result — there was here a natural and continuous sequence —
direct connection. The only intervening cause was that, instead of blowing
her to the ground, the concussion smashed the weighing machine which in
turn fell upon her. There was no remoteness in time, little in space. And
surely, given such an explosion as here, it needed no great foresight to
predict that the natural result would be to injure one on the platform at no
greater distance from its scene than was the plaintiff. Just how no one might
be able to predict. Whether by flying fragments, by broken glass, by
wreckage of machines or structures no one could say. But injury in some
form was most probable.
Under these circumstances I cannot say as a matter of law that the
plaintiff’s injuries were not the proximate result of the negligence. That is
all we have before us. The court refused to so charge. No request was made
to submit the matter to the jury as a question of fact, even would that have
been proper upon the record before us.
The judgment appealed from should be affirmed, with costs.
NOTES
1. Poetic license. The facts of the Palsgraf case have been extensively
studied, with some investigators concluding that Cardozo subtracted and
perhaps added details to his account to contribute to its rhetorical impact
and support his analysis. Other details that have been unearthed about the
background and aftermath of the case are interesting in their own right. At
the time of the accident Helen Palsgraf was 40 years old and working as a
janitor in Brooklyn. The injury for which she sued was a stammer said to be
caused by the incident, and her daughter later reported that after losing the
case Mrs. Palsgraf went mute. The explosion at the center of the case in fact
was large; it was heard blocks away, injured more than a dozen people, and
was reported on the front page of the New York Times. It caused a stampede,
and Palsgraf’s complaint said that she was knocked down either by the
scale or the crowd, or both. The jury awarded her $6,000, which was the
equivalent of about $50,000 in the year 2000. In reversing, the court of
appeals awarded the railroad its costs, which amounted to about a year’s
pay for Palsgraf; it is not known whether the railroad ever attempted to
collect from her. See Noonan, Persons and Masks of the Law (1976);
Posner, Cardozo: A Study in Reputation (1990).
2. The so-what test. Cardozo introduces the idea that a case brought by
an unforeseeable plaintiff should fail for want of a duty rather than for want
of proximate cause. What possible value might there be in adding this
analytical wrinkle to the inquiry into liability? What practical difference
does it make whether remoteness and foreseeability are addressed as
matters of “duty” or “causation”? What is the relationship between the
approaches taken by Cardozo and Andrews here and the positions taken in
the Polemis and Wagon Mound cases?
3. Approaching the centennial. Nearly a hundred years after the
decision, Palsgraf remains one of the most famous tort cases in American
law and has been the subject of much scholarly discussion and debate. It is
not possible to survey all that has been said about it here, but a brief
sampling of some recent commentary may be of interest.
a. From Gary Schwartz, Cardozo as Tort Lawmaker, 49 DePaul L.

Rev. 305 (1999):
By introducing a duty concept that is supposedly quite separate from

a proximate cause concept, the Cardozo opinion prompts a long
dissent by Andrews that discusses duty before it turns to proximate
cause. Andrews’ broad definition of duty makes it seem as though he
is very strongly pro-liability. But when (and if) attention is finally
focused on Andrews’ treatment of proximate cause, his version of
proximate cause turns out to be much less pro-liability than one might
have assumed. . . . If, as Andrews states, proximate cause depends not
on “logic” but rather on “expediency,” “practical politics,”
“convenience,” and “a rough sense of justice,” then how in the world
does a trial judge instruct the jury? Likewise, how does an appellate
court determine whether a trial judge has ruled correctly? In any
event, the analytic deficiencies and the anti-liability implications in
Andrews’ account of proximate cause are obscured by his more
dramatic and unambiguous pro-liability pronouncements on the duty
issue. These are pronouncements that could have been avoided
altogether had Cardozo defined the issue properly as one of
proximate cause rather than of duty — and had the case been fully
debated in proximate cause terms. In fact, the two opinions join issue
on the duty issue, a question which I regard as an irrelevancy. Worse
yet, given Cardozo’s emphasis on duty, there is simply no joinder on
the issue of proximate cause.
To make a bad situation worse, the Cardozo opinion is replete
with grandiloquent quasi-philosophical rhetoric that captures but also
confounds the reader. There is not a word in the opinion that counts
as genuine legal philosophy — that deals with the purpose or
functions of the tort system. In his review of the Kaufman biography
[of Cardozo], Professor Goldberg calls Cardozo “conceptual,” and
applies this evaluation to the Palsgraf opinion. I think he is right in
this. But Goldberg is wrong in referring to a “pragmatic
conceptualism.” Rather, the Cardozo conceptualism is pretentious and
essentially arid.
b. From Zipursky, Rights, Wrongs, and Recourse in the Law of Torts,

51 Vand. L. Rev. 1 (1998):
Palsgraf suggests the following question: . . . Why is it not sufficient

that the plaintiff has been foreseeably tortiously harmed by the
defendant? . . . In short, she may not recover unless the defendant
breached a tort duty to her or wronged her (relative to the set of
wrongs designated under the tort law). If the defendant wronged a
third party, but not the plaintiff, then that plaintiff has no right to
recover. Why should this be so? The answer is that entitlement to
recourse does not spring from the need precipitated by injury. It
springs from the affront of being wronged by another. Because one
should not have to suffer that affront passively, without response,
fairness requires that one have recourse against the wrongdoer.
Substantive standing cases are ones in which the plaintiff is injured,
but she has not suffered the affront of being wronged by defendant.
Thus, while she may have the need for compensation, she does not
have a right to act against the defendant.
Cardozo’s mention of the distinction between tort and crime
provides another clue as to why his opinion often seems odd to
modern scholars. In his insistence that Mrs. Palsgraf lacks standing to
sue for a wrong to another, Cardozo appears to display a rejection of
torts as an arena of public law, and this apparent rejection seems
especially counterintuitive on the facts of Palsgraf: If the trainman
acted wrongly, why not sanction him? And if Mrs. Palsgraf needed
compensation, why not compensate her? When we picture tort law as
a form of social insurance funded by sanctions imposed upon
wrongdoers, or when we picture it as a form of regulation whose
proceeds are used to compensate the injured, the case seems wrongly
decided. . . . Cardozo seems to be rejecting one of the most widely
accepted of Holmes’s insights; he seems to be denying that tort law is
really a form of public law. . . .
[O]ur scholarly tradition’s treatment of Palsgraf is profoundly
ironic. It has accepted the dissent’s characterization of the issue in the
case as one of proximate cause, and then it has read that issue back
into the opinion of the court and understood the court to have
resolved the issue in the opposite way from the dissent. In other
words, scholars accept that Palsgraf is a proximate cause case, as
Andrews said, but plaintiff loses, so Cardozo must be merely denying
the existence of proximate cause in this particular instance. This is an
odd way to read any case, especially a central case of our torts canon.
While the traditional “proximate cause” reading of Palsgraf may be
consistent with the outcome of the case, it is the reasoning of the case
that imbues it with general importance in torts, not its outcome. The
standard interpretation completely misses this reasoning. Cardozo
had nothing to say about proximate cause; for him, this was crucially
not a proximate cause case, and he was willing to assume arguendo
that Andrews was correct about proximate cause. Thus, neither of the
famous opinions in the case agrees with — or even presents — the
argument most commonly attributed to it.
4. The weakened floor. In Edwards v. Honeywell, 50 F.3d 484 (7th Cir.

1995), a fire broke out in a house in Lawrence, a suburb of Indianapolis.
The owner of the house, Baker, pushed a button on a fire alarm box that had
been installed by Honeywell. This caused a signal to be sent to Honeywell’s
central station, where an operator in turn called the fire department. She
dialed the wrong number, however, calling the Indianapolis fire department
rather than the department that serviced Lawrence; she then called another
wrong number before at last being transferred to the correct department.
The firefighters arrived a few minutes later. One of them entered the house.
The floor collapsed beneath him and he plunged to his death. His widow
sued Honeywell, claiming the company was negligent in failing to keep
accurate information about which fire department to call, and that as a result
the fire department arrived at the scene of the blaze three minutes later than
they otherwise would have — by which time the floor of the house had
been critically weakened. The district court gave summary judgment to
Honeywell, and the court of appeals, per Posner, C.J., affirmed. The court
said that the facts lay at the intersection of the Palsgraf case and H.R. Moch
v. Rensselaer Water Co. (discussed in Chapter 4 on duties and limitations),
and that the doctrines of those cases barred recovery here:
The basic criticism of both the Palsgraf and [Moch] lines of

decisions, articulated with characteristic force by Judge Friendly in
Petition of Kinsman Transit Co., is that since by assumption the
defendant was careless (for the concept of duty would have no
liability-limiting function otherwise), why should its carelessness be
excused merely because either the particular harm that occurred as a
consequence, or the person harmed as a consequence, was
unforeseeable? If the Long Island Railroad’s employees had avoided
jostling the passenger carrying the bundle of fireworks, as due care
required them to do, Mrs. Palsgraf would not have been injured. If the
water company [in Moch] had kept up the pressure, as it was
contractually obligated to do, the fire would not have raged out of
control. And if Honeywell had used due care in identifying the fire
department with jurisdiction over a fire in the Bakers’ house,
Edwards (we are assuming for purposes of this appeal) would not
have been killed. In none of these cases would the defendant, in order
to prevent the injury of which the plaintiff was complaining, have had
to exercise more care than it was required by law to exercise anyway.
[The argument on the other side] arises from the fact that a
corporation or other enterprise does not have complete control over
its employees, yet it is strictly liable under the principle of respondeat
superior for the consequences of their negligent acts committed in the
scope of their employment. It is not enough to say to the enterprise be
careful and you have nothing to fear. The carelessness of its
employees may result in the imposition of a crushing liability upon it.
In order to know how many resources (in screening new hires and in
supervising and disciplining workers after they are hired) to invest in
preventing its employees from being careless, the employer must
have some idea, some foresight, of the harms the employees are
likely to inflict. Imposing liability for unforeseeable types of harm is
unlikely, therefore, to evoke greater efforts at preventing accidents; it
is likely merely to constitute the employer an insurer. The railroad in
Palsgraf did not know that conductors who jostle boarding
passengers pose a threat of injury by explosion to people standing
elsewhere on the platform, and the water company in Moch did not
know the likelihood of fires or the value of the property that might be
damaged by them. . . .
The death of a fireman in fighting a residential fire appears to be a
rare occurrence. And we have not been referred to a single case in
which such a death was blamed on a malfunction, human or
mechanical, in an alarm system. The problem of proving causation in
such a case is . . . a formidable one, and the plethora of potential
defendants makes it difficult (we should think) for an alarm company
to estimate its likely liability even if it does foresee the kind of
accident that occurred here. If “unforeseeable” is given the practical
meaning of too unusual, too uncertain, too unreckonable to make it
feasible or worthwhile to take precautions against, then this accident
was unforeseeable. Honeywell would have difficulty figuring out
how careful it must be in order to satisfy its legal obligations or how
much more it ought to charge its subscribers in order to cover its
contingent liability to firemen and to any others who might be injured
in a fire of which the alarm company failed to give prompt notice.
Similar problems of debilitating legal uncertainty would arise if the
person injured were a police officer or a paramedic rather than a
firefighter.
Is there any reason why the policy goals the court describes in Edwards
would be better advanced by holding that the defendant had no duty to the
plaintiff than by saying that the defendant’s conduct was not the proximate
cause of the plaintiff’s injuries?
5. Delirium. In Widlowski v. Durkee Foods, 562 N.E.2d 967 (Ill. 1990),
one of Durkee’s employees, a man named Wells, attempted to clean an
industrial tank containing nitrogen gas. Wells entered the tank without
wearing protective gear and soon was overcome by the gas; he became
incoherent and delirious, and was taken to a hospital. While still delirious,
he bit off part of a finger belonging to a nurse there. The nurse sued Durkee,
alleging that her injuries were attributable to its negligence in failing to
clean the tank and properly equip Wells before he entered it. The trial court
dismissed her complaint. The court of appeals reversed:
We believe that under the alleged facts it was reasonably foreseeable

that if Wells and Durkee breached a duty of ordinary care in the
manner in which the tank was being cleaned, Wells would be
overcome by inhaling the nitrogen gas and a deprivation of oxygen.
We also believe that it was reasonably foreseeable that Wells would
thereby become delirious, agitated, reflexive and incoherent, and a
danger to himself and others with whom he made direct contact. In
determining whether an injury was reasonably foreseeable to warrant
a duty to the injured party, it is not essential that the defendant should
have foreseen the precise hazard or exact consequences and injury
resulting from the defendant’s action or inaction.
The Illinois Supreme Court reversed, ordering the complaint dismissed:
[T]he burden sought to be imposed on Durkee Foods is a heavy one.

Durkee Foods was not in a position to control plaintiff or any other
medical personnel in the care and treatment of Wells. Furthermore,
accepting plaintiff’s argument at face value, liability would extend to
the world at large, because it was conceivable, though highly
unlikely, that Wells could have harmed anyone with whom he came
into contact while in a state of delirium. However, whether a duty
exists depends, in part, on the relationship between the parties.
The question whether one party owes another a duty of ordinary
care is “very involved, complex and indeed nebulous.” The scope and
boundaries of a duty are so ambiguous and indistinct that one
commentator has observed: “There is a duty if the court says there is
a duty.” (Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15 (1953))
The court has thus far been unwilling to “say there is a duty” unless
the parties stood in such a relationship where one party is obliged to
conform to a certain standard of conduct for the benefit of the other.
After all, “[p]roof of negligence in the air, so to speak, will not do.”
(Palsgraf v. Long Island R.R. Co. (1928), 162 N.E. 99). For these
reasons, there is no duty to guard against the “tragically bizarre”
(Cunis v. Brennan (1974), 56 Ill. 2d 372, 377), and “liability must
stop somewhere short of the freakish and the fantastic” (Prosser,
Palsgraf Revisited, 52 Mich. L. Rev. 1, 27 (1953)). Under the
circumstances of this case, public policy does not support the
imposition of a duty. We hold that Durkee Foods did not owe plaintiff
a duty of ordinary care.
Which approach in Palsgraf does the court’s more closely resemble:

that of Cardozo or of Andrews?
6. Danger invites rescue. In Wagner v. International Ry. Co., 133 N.E.
437 (N.Y. 1921), the plaintiff and his cousin Herbert were riding one night
on one of the defendant’s trains. Herbert was thrown from the train as it
took a steep turn onto a bridge; the plaintiff’s evidence was that the train’s
doors negligently had been left open. The train stopped once it had gotten
over the bridge. The plaintiff left the train along with the conductor to
search for Herbert. When they reached the bridge, the plaintiff found only
his cousin’s hat. The plaintiff then lost his footing, slipped, and fell off the
bridge onto the ground below. (Herbert’s body already was there as well.)
The plaintiff brought suit against the railroad, claiming his injuries were
attributable to the same original act of negligence that caused Herbert to fall
off of the train. The jury brought in a verdict for the defendant railroad after
being instructed that the plaintiff could win only if he had been invited by
the conductor to go onto the bridge, and only if the conductor had followed
him with a light. The plaintiff appealed, arguing that the jury had been
improperly instructed. The New York Court of Appeals (per Cardozo, J.)
reversed:
Danger invites rescue. The cry of distress is the summons to relief.

The law does not ignore these reactions of the mind in tracing
conduct to its consequences. It recognizes them as normal. It places
their effects within the range of the natural and probable. The wrong
that imperils life is a wrong to the imperiled victim; it is a wrong also
to his rescuer. The state that leaves an opening in a bridge is liable to
the child that falls into the stream, but liable also to the parent who
plunges to its aid. The railroad company whose train approaches
without signal is a wrongdoer toward the traveler surprised between
the rails, but a wrongdoer also to the bystander who drags him from
the path. . . . The risk of rescue, if only it be not wanton, is born of
the occasion. The emergency begets the man. The wrongdoer may not
have foreseen the coming of a deliverer. He is accountable as if he
had.
The defendant says that we must stop, in following the chain of
causes, when action ceases to be “instinctive.” By this is meant, it
seems, that rescue is at the peril of the rescuer, unless spontaneous
and immediate. If there has been time to deliberate, if impulse has
given way to judgment, one cause, it is said, has spent its force, and
another has intervened. In this case the plaintiff walked more than
400 feet in going to Herbert’s aid. He had time to reflect and weigh;
impulse had been followed by choice; and choice, in the defendant’s
view, intercepts and breaks the sequence. We find no warrant for thus
shortening the chain of jural causes. . . . The law does not
discriminate between the rescuer oblivious of peril and the one who
counts the cost. It is enough that the act, whether impulsive or
deliberate, is the child of the occasion.
The defendant finds another obstacle, however, in the futility of
the plaintiff’s sacrifice. He should have gone, it is said, below the
trestle with the others; he should have known, in view of the
overhang of the cars, that the body would not be found above; his
conduct was not responsive to the call of the emergency; it was a
wanton exposure to a danger that was useless. We think the quality of
his acts in the situation that confronted him was to be determined by
the jury. . . . The plaintiff had to choose at once, in agitation and with
imperfect knowledge. He had seen his kinsman and companion
thrown out into the darkness. Rescue could not charge the company
with liability if rescue was condemned by reason. “Errors of
judgment,” however, would not count against him if they resulted
“from the excitement and confusion of the moment.” The reason that
was exacted of him was not the reason of the morrow. It was reason
fitted and proportioned to the time and the event.
Is Cardozo’s decision here consistent with his opinion in Palsgraf?

What is the distinction between Wagner v. International Ry. Co. and
Edwards v. Honeywell, Inc.?
Chapter 7
Strict Liability
One of the great thematic divides in the law of torts lies between
liability for negligence and strict liability. Negligence provides the default
rule governing liability for unintentional harm: defendants can be held
liable only if their conduct is in some sense blameworthy. To this general
rule there are many exceptions, however: areas where the law imposes
liability without fault. Some of these are modern creations, such as the strict
liability imposed on the makers of defective products or the workers’
compensation statutes that govern injuries to employees. This chapter is
devoted to a set of related areas in which strict liability might be considered
traditional: liability for harm done by animals, liability under the English
case of Rylands v. Fletcher, and liability for abnormally dangerous
activities. We also will have a look at the doctrine of respondeat superior,
which governs employers’ liability for torts committed by their employees.
The “traditional” designation does not fit all of these categories in the
same way. While the rules governing liability for animals are very old,
Rylands v. Fletcher is a nineteenth-century case, and the formal notion of
“abnormally dangerous activities” did not emerge until the twentieth
century. But all three areas of the law share certain general features in
common and can be viewed as linked in their rationales. As we shall see,
the law governing liability for animals influenced the Rylands decision, and
the Rylands decision has in turn influenced the emergence of liability for
activities considered abnormally dangerous. Studying these areas of law
together also creates a useful occasion on which to consider the merits of
strict liability and negligence generally. As you read, ask whether and why
fault shouldn’t always be considered necessary for liability. Or ask the
opposite question: why should fault ever be considered necessary to justify
liability when the defendant is causally responsible for a plaintiff’s injuries?
A. LIABILITY FOR ANIMALS
Owners of ferocious beasts are strictly liable for damage their animals cause
to others; the owners are liable, in other words, regardless of what measures
they took to prevent the harm from occurring. This principle has an ancient
pedigree, but general statements of it hide many complications, and the
rationale for the doctrine has not always been consistent — as the cases in
this section illustrate.
Behrens v. Bertram Mills Circus, Ltd.

2 QB 1, 1 All ER 583, 2 WLR 404 (1957)
[The plaintiffs, Mr. and Mrs. J. H. W. Behrens, were dwarves and circus
performers; Mr. Behrens claimed to be the smallest man on earth. In 1953
they went on tour with their manager, a man named Whitehead, exhibiting
themselves in booths for a fee. The defendants granted Whitehead a license
to occupy a booth at a fun fair adjacent to their circus in London. The booth
occupied by the plaintiffs was in a corridor that led into the circus; the
defendants’ elephants passed along the corridor on their journeys between
the menagerie and the circus ring. Whitehead sat in a paybox beside the
plaintiffs’ booth.
[On the day of the accident at issue here, Whitehead’s small Pomeranian
dog, Simba, was tied to a leg of Whitehead’s chair, despite the defendants’
rule forbidding the presence of dogs. The elephants passed along the
corridor in a single file, as usual, with the trainer walking beside the leading
elephant and a groom walking beside each of the remaining elephants. As
the third elephant in the procession, Bullu, passed the plaintiffs’ booth,
Simba ran out snapping and barking. Bullu trumpeted with fright, Simba
turned back towards the booth, and Bullu went after her, followed by
another elephant. As a result, the front of the booth and other parts of it
were knocked down and Mrs. Behrens, who was inside the booth with her
husband, was injured. The dog was killed. The trainer got the elephants
back into line a few moments later. Mr. and Mrs. Behrens sued the circus,
claiming it was strictly liable for damage done by its elephants.]
DEVLIN, J. — [After stating the facts:] A person who keeps an animal

with knowledge (scienter retinuit) of its tendency to do harm is strictly
liable for damage that it does if it escapes; he is under an absolute duty to
confine or control it so that it shall not do injury to others. All animals ferae
naturae, that is, all animals which are not by nature harmless, such as a
rabbit, or have not been tamed by man and domesticated, such as a horse,
are conclusively presumed to have such a tendency, so that the scienter need
not in their case be proved. All animals in the second class, mansuetae
naturae, are conclusively presumed to be harmless until they have
manifested a savage or vicious propensity; proof of such a manifestation is
proof of scienter and serves to transfer the animal, so to speak, out of its
natural class and into the class ferae naturae. . . .
The particular rigidity in the scienter action which is involved in this
case — there are many others which are not — is the rule which requires
the harmfulness of the offending animal to be judged, not by reference to its
particular training and habits, but by reference to the general habits of the
species to which it belongs. The law ignores the world of difference
between the wild elephant in the jungle and the trained elephant in the
circus. The elephant Bullu is, in fact, no more dangerous than a cow; she
reacted the same way as a cow would do to the irritation of a small dog; if
perhaps her bulk made her capable of doing more damage, her higher
training enabled her to be more swiftly checked. I am, however, compelled
to assess the defendants’ liability in this case in just the same way as I
would assess it if they had loosed a wild elephant into the fun fair. This is a
branch of the law which, as Lord Goddard said recently, has been settled by
authority rather than reason. . . .
The defendants submit five answers to the scienter action. They
[include] (1) that the elephants are not ferae naturae within the meaning of
the rule; [and] (2) that the rule does not impose liability for every act that an
animal does if it escapes control, but only for those acts which are vicious
and savage, which the action of Bullu was not[.] The first submission is, in
my judgment, concluded so far as this court is concerned, by the decision of
the Court of Appeal in Filburn v. People’s Palace & Aquarium Co., Ltd,
which held that, as a matter of law, an elephant is an animal ferae naturae.
Counsel for the defendants sought to distinguish this case on the ground
that the elephants belonging to the defendants are Burmese elephants and he
submits that it is open to me to hold that, while elephants generally are ferae
naturae, Burmese elephants are not. In my judgment, it is not open to me to
consider this submission. It is not stated in Filburn v. People’s Palace &
Aquarium Co., Ltd. what the nationality of the elephant was with which the
court was there dealing, and the case must be regarded as an authority for
the legal proposition that all elephants are dangerous. The reason why this
is a question of law and not a question of fact is because it is a matter of
which judicial notice has to be taken. The doctrine has from its formulation
proceeded on the supposition that the knowledge of what kinds of animals
are tame and what are savage is common knowledge. . . . Common
knowledge about the ordinary course of nature will extend to knowledge of
the propensities of animals according to their different genera, but cannot be
supposed to extend to the manner of behavior of animals of the same genus
in different parts of the world. Nor can one begin a process of inquiry which
might lead in many directions (for example, I am told that female elephants
are more docile than male, and that that is why circus elephants are usually
female) and be productive of minute subdivisions which would destroy the
generality of the rule.
The defendants’ second contention raises a point of doubt and difficulty.
It may be approached in this way. The reason for imposing a specially
stringent degree of liability on the keeper of a savage animal is that such an
animal has a propensity to attack mankind and, if left unrestrained, would
be likely to do so. The keeper has, therefore, “an absolute duty to confine or
control it so that it shall not do injury. . . .” If, however, it escapes from his
control, is he liable (subject, of course, to the rules on remoteness of
damage) for any injury which it causes, or only for such injury as flows
naturally from its vicious and savage propensity? Counsel for the
defendants submits that it is the latter part of this question which suggests
the correct answer and that the rule of absolute liability applies only when
an animal is acting savagely and attacking human beings. On the facts of
this case, he submits that Bullu was acting, not viciously, but out of fright;
she was seeking to drive off the small dog rather than to attack it; it may be
that she or another elephant trampled on the dog (there is no conclusive
evidence of that, and it might have been crushed by falling timber) but there
is nothing to show that she trampled on it deliberately. Certainly she never
attacked the wife, who was injured only indirectly. In short, if Bullu could
be treated as a human being, her conduct would be described, not as
vicious, but as quite excusable.
It does not, to my mind, necessarily follow that the scope of the rule is
coextensive with the reason for making it. It may equally well be argued
that, once the rule is made, the reason for making it is dissolved and all that
then matters are the terms of the rule. That would certainly be the right
approach in the case of any statutory rule of absolute liability. Is it so in the
case of this rule of common law? There appears to be no authority directly
on point. Counsel for the defendants derives the chief support for his
contention from an argument which may be summarized as follows. If an
animal mansuetae naturae manifests a vicious tendency, the scienter rule
applies to it as if it were ferae naturae. . . . How is the principle applied?
Suppose that a large dog collides with a child and knocks him down, that is
an accident and not a manifestation of a vicious propensity and the scienter
rule does not apply at all: if the dog bites a child, it becomes ferae naturae
and the strict rule thereafter applies. It would, however, seem to be
unreasonable that the strict rule should require the dog to be kept under
complete restraint. Suppose that its keeper muzzles it and that while
muzzled the dog playfully or accidentally knocks a child down, ought the
keeper to be liable? There is a good deal of authority . . . to show that the
keeper is not liable. . . .
This is an impressive argument. It does not seem to me, however, that
the logic of the matter necessarily requires that an animal which is savage
by disposition should be put on exactly the same footing as one which is
savage by nature. Certainly, practical considerations would seem to demand
that they be treated differently. It may be unreasonable to hold the owner of
a biting dog responsible thereafter for everything that it does; but it may
also be unreasonable to limit the liability for a tiger. If a person wakes up in
the middle of the night and finds an escaping tiger on top of his bed and
suffers a heart attack, it would be nothing to the point that the intentions of
the tiger were quite amiable. If a tiger is let loose in a fun fair, it seems to
me to be irrelevant whether a person is injured as the result of a direct
attack, or because, on seeing it, he runs away and falls over. The feature of
this present case which is constantly arising to blur the reasoning is the fact
that this particular elephant, Bullu, was tame; but that, as I have said, is a
fact which must be ignored. She is to be treated as if she were a wild
elephant, and, if a wild elephant were let loose in the fun fair and were
stampeding around, I do not think that there would be much difficulty in
holding that a person who was injured by falling timber had a right of
redress. It is not, in my judgment, practicable to introduce conceptions of
mens rea and malevolence in the case of animals.
The distinction between those animals which are ferae naturae by virtue
of their genus and those which become so by the exhibition of a particular
habit seems to me to be this: that in the case of the former it is assumed
(and the assumption is true of a really dangerous animal such as a tiger) that
whenever they get out of control they are practically bound to do injury,
while in the case of the latter the assumption is that they will do injury only
to the extent of the propensity which they have peculiarly manifested.
It follows that, subject to any special defense, the defendants are liable
for any injury done while the elephant was out of control. It does not follow
(I say this because of a point that was raised in the argument) that, if an
elephant slips or stumbles, its keeper is responsible for the consequences.
There must be a failure of control. Here, however, there was such a failure,
albeit a very temporary one. . . .
NOTES
1. Badly in need of simplification? As Lord Devlin’s opinion explains,

the common law of liability for animals hinges on the distinction between
those types of animals considered to be wild, or “ferae naturae,” and those
presumed to be tame, whether because they are “domitae naturae” (a
species domesticated by man) or “mansuetae naturae” (a species tame by
nature). The distinction between these latter two types of tameness is not
generally treated as important, but much does depend on the broad
distinction between species regarded as tame and wild. If the animal is of a
type considered wild, its owner generally will be held strictly liable for the
damage the animal causes (with exceptions we shall consider in a moment).
The determination of “wildness” in this sense is made with a broad brush,
as Behrens illustrates: all elephants are considered ferae naturae, regardless
of whether the particular elephant that caused the damage has been
thoroughly tamed. If the animal is of a domesticated type — e.g., a dog, cat,
horse, or cow — it is presumed tame, and the owner is held strictly liable
only if he is aware that the particular animal in question already had shown
a propensity to cause the sort of harm it inflicted on the plaintiff.
In another part of his opinion in Behrens, Devlin noted the
recommendation of some commentators that the rules governing liability
for animals be replaced with a single negligence standard. Said he, “I wish
to express the hope that Parliament may find time to consider this
recommendation, for this branch of the law is badly in need of
simplification.”
2. Liability for bees. In Earl v. Van Alstine, 8 Barb. 630 (N.Y. 1850), the
defendant kept 15 beehives in his yard, which was bordered by a public
highway. The plaintiff was driving his horses past the place where the bees
were kept when the bees attacked the horses; one horse died, and another
was injured. The trial court found for the plaintiff and awarded him $70.25.
The New York Court of Appeals reversed:
Peake, in his work on evidence, under the head of “Actions founded

in negligence,” has the following: “If one man keep a lion, bear, or
any other wild and ferocious animal, and such animal escape from his
confinement and do mischief to another, the owner is liable to make
satisfaction for the mischief so done without further evidence of
negligence in him; for every person who keeps such noxious and
useless animals must keep them at his peril. On the contrary, if a man
has a dog, a bull, or any other domestic animal such as are usually
kept and are indeed necessary to the existence of man, no action is
maintainable without proof of knowledge[.]” . . .
[I]t remains to be considered whether bees are animals of so
ferocious a disposition, that every one who keeps them, under any
circumstances, does so at his peril. If it is necessary for the plaintiff to
aver and prove the mischievous nature of the animal, nothing of the
kind was done in this case; but if courts are to take judicial notice of
the nature of things so familiar to man as bees, which I suppose they
would be justified in doing, then I would observe that however it may
have been anciently, in modern days the bee has become almost as
completely domesticated as the ox or the cow. Its habits and its
instincts have been studied, and through the knowledge thus acquired
it can be controlled and managed with nearly as much certainty as
any of the domestic animals; and although it may be proper still to
class it among those ferae naturae, it must nevertheless be regarded as
coming very near the dividing line, and in regard to its propensity to
mischief, I apprehend that such a thing as a serious injury to persons
or property from its attacks is very rare, not occurring in a ration
more frequent certainly than injuries arising from the kick of a horse,
or the bite of a dog. . . .
The utility of bees no one will question, and hence there is
nothing to call for the application of a very stringent rule to the case.
Upon the whole, therefore, I am clearly of the opinion that the owner
of bees is not liable at all events for any accidental injury they may
do. The question is still left whether the keeping of these bees so near
the highway subjects the defendant to a responsibility which would
not otherwise rest upon him. I consider this question as substantially
disposed of by the evidence in the case. It appears that bees had been
kept in the same situation for some eight or nine years, and no proof
was offered of the slightest injury ever having been done by them. On
the contrary, some of the witnesses testified that they had lived in the
neighborhood and had been in the habit of passing and repassing
frequently, with teams and otherwise, without ever having been
molested. . . .
What is the distinction between Earl v. Van Alstine and Behrens v.

Bertram Mills Circus?
The net result of the Earl case is that Van Alstine’s bees stung a horse to
death, yet Van Alstine owes nothing to the horse’s owner. Why? If bees of
the defendant attacked other horses after the opinion in Earl was issued,
would Van Alstine then be bound to compensate their owners? What
general theory does the Earl case implicitly suggest should be used to
explain the distinction between strict liability and negligence?
3. Liability for baboons. In Candler v. Smith, 179 S.E. 395 (Ga. App.
1935), the plaintiff’s car would not start, so she went into her house to call a
mechanic. When she returned, she found her car occupied by a large baboon
that had escaped from the defendant’s zoo. The animal advanced toward the
plaintiff in what she later described as a menacing manner. She turned back
into her house but tripped over the doormat and only was able to save
herself from being overtaken by the animal by slamming the door in his
face. The baboon returned to the automobile, seized the plaintiff’s pocket-
book, and destroyed its contents, including currency and other valuables.
The plaintiff sued to collect damages for the nervous fright and shock
caused to her by the encounter. The jury awarded her $10,000, and the
defendant appealed.
Held, for the plaintiff, that the defendant’s motion for a new trial
properly was overruled; the defendant was strictly liable for the plaintiff’s
injuries. (The plaintiff needlessly had alleged negligence, and the trial court
incorrectly had instructed the jury that it had to find negligence to hold the
defendant liable; but the jury had so found, so the errors were harmless.)
Said the court:
[W]here it is alleged that a monkey or baboon (being classed as an

animal ferae naturae) had escaped from its place of confinement and
come upon the plaintiff’s premises and there committed the injury
complained of, this is sufficient to withstand a demurrer, even though
it is not stated in the petition how the escape was effected. It is not
necessary to allege that the owner was negligent in allowing the
animal to be at large, for he is bound to keep it secure at his peril.
What is the distinction between Candler v. Smith and Earl v. Van

Alstine, which declined to hold beekeepers strictly liable for injuries caused
by their bees?
4. Light work for the hangman. In Smith v. Pelah, 93 Eng. Rep. 1171
(1766), “The Chief Justice (Lord Alverstone) ruled that if a dog has once bit
a man and the owner having notice thereof keeps the dog and lets him go
about or lie at his door, an action will lie against him at the suit of a person
who is bit though it happened by such person’s treading on the dog’s toes,
for it was owing to his not hanging the dog on the first notice. And the
safety of the King’s subjects ought not afterwards to be endangered. The
scienter is the gist of the action.”
The point of Smith v. Pelah is that the defendant was strictly liable for
his dog’s second bite. Why? What rationale for strict liability is implied by
the case?
As noted earlier, if a species of animal is held to be mansuetae naturae
or domitae naturae — i.e., tame — that decision does not necessarily relieve
the owner of liability for damage the animals cause. Instead the focus of the
inquiry becomes the extent of the owner’s knowledge that the animal had a
propensity for the sort of mischief it created. If the owner had such
knowledge, he is held liable for it; and the most common way for such
knowledge to be shown is by demonstrating that the animal had behaved
the same way in the past. Hence the apocryphal “one bite rule” of tort law
— the maxim that every dog is entitled to one free bite. That is a crude
approximation of the common law position; no jurisdiction quite adheres to
it. An owner may be found to have had notice of a dog’s viciousness even if
the dog has not bitten before, and an owner may be found to have had no
notice of viciousness even if the dog has bitten before.
Many states have replaced the common law approach with animal
control statutes that a hold a dog owner strictly liable for any bites a dog
inflicts, regardless of the dog’s past record or reputation. See, e.g., Docherty
v. Sadler, 689 N.E.2d 332 (Ill. App. 1997).
5. The animate menace. In Vaughan v. Miller Bros. “101” Ranch Wild
West Show, 153 S.E. 289 (W. Va. 1930), an ape on exhibit at the
defendant’s circus bit off the plaintiff’s finger. The plaintiff sued to recover
for his injuries, alleging no negligence but asserting that the defendant was
strictly liable for damage done by the animal. The West Virginia Supreme
Court disagreed:
If, at common law, the ownership of wild animals was recognized and
protected as lawful, how could judges consistently presume such
ownership wrongful and negligent? An anomaly indeed! It is true that
animals ferae naturae constantly seek to escape confinement, and, if
successful, become a menace to mankind. But the tiger, unrestrained,
is no more dangerous than fire, water, electricity, or gas uncontrolled.
The liability of the owner of these has never been declared absolute,
nor his negligence presumed from mere ownership. Why discriminate
against the owner of the animate menace? . . .
In this country the right to exhibit wild animals is judicially
recognized. “The conducting of shows for the exhibition of wild . . .
animals is a lawful business.” Bostock-Ferari Amusement Co. v.
Brocksmith, 73 N. E. 281 (Ind.). Such exhibitions are licensed
everywhere. Municipalities frequently maintain zoos for the benefit
of the public. The idea is no longer indulged that it is prima facie
negligent to keep or exhibit wild animals. . . . Hence the gist of
modern actions against exhibitors cannot be the mere keeping of
savage animals, but must be neglect to restrain them. “Latterly,
however, there seems to be a disposition upon the part of the
authorities to hold the more reasonable rule, that all that should be
required of the keeper of such animals is that he should take that
superior caution to prevent their doing mischief which their
propensities in that direction justly demand of him.” 1 Thompson,
Comm. Neg. §841.
There is a division of authority on the question addressed by Vaughan.

From Restatement Third, Torts: Liability for Physical and Emotional Harm:
§24. SCOPE OF STRICT LIABILITY.
Strict liability under §§20-23 does not apply

(a) if the person suffers physical harm as a result of making
contact with or coming into proximity to the defendant’s animal or
abnormally dangerous activity for the purpose of securing some
benefit from that contact or that proximity; or
(b) if the defendant maintains ownership or possession of the
animal or carries on the abnormally dangerous activity in pursuance
of an obligation imposed by law.
Should the victim of an animal bite at a zoo be denied recovery under part
(a)?
6. Homely brutes. In Bostock-Ferari Amusements v. Brocksmith, 73
N.E. 281 (Ind. App. 1905), the plaintiff’s evidence was that he was driving
a horse-drawn buggy through the town of Vincennes when his horse spotted
a large brown bear walking down the street. The bear was wearing a
muzzle, and its owner and keeper was leading it, by chains attached to the
animal’s collar and to a ring in its nose, from the railroad station to the
defendant’s show where the animal was to be exhibited. The plaintiff’s
horse nonetheless was badly frightened by the bear, which fright resulted in
various damages to the plaintiff. The jury brought in a verdict for the
plaintiff for $750, and the defendant appealed.
Held, for the defendant, that the judgment must be reversed, and that
there must be a new trial. Said the court:
When a person is injured by an attack by an animal ferae naturae, the
negligence of the owner is presumed, because the dangerous
propensity of such an animal is known, and the law recognizes that
safety lies only in keeping it secure. In the case before us the injury
did not result from any vicious propensity of the bear. He did nothing
but walk in the charge of his owner and keeper, Peter Degeleih. He
was being moved quietly upon a public thoroughfare for a lawful
purpose. . . .
King David said, “An horse is a vain thing for safety.” Modern
observation has fully justified the statement. A large dog, a great bull,
a baby wagon, may each frighten some horses, but their owners are
not barred from using them upon the streets on that account. Nor,
under the decisions, would the courts be warranted in holding that the
owner of a bear, subjugated, gentle, docile, chained, would not, under
the facts shown in the case at bar, be permitted to conduct the homely
brute along the public streets, because of his previous condition of
freedom.
What is the distinction between Bostock-Ferari Amusements and

Candler v. Smith (the L case of the escaped baboon)? What is the distinction
between Bostock-Ferari Amusements v. Brocksmith and Behrens v. Bertram
Mills Circus?
7. Go it, Bob. In Baker v. Snell, 2 K.B. 825 (1908), the plaintiff was a
maid employed by the defendant, an innkeeper. The defendant kept a dog
he knew to be savage. The defendant’s potman — an employee responsible
for various chores at the inn — would let the dog out in the morning and
then chain it up again before the plaintiff and the barmaids came
downstairs. On the day in question, the potman brought the dog into a
kitchen where the maids were at breakfast and said, “I will bet the dog will
not bite any one in the room.” The potman then let the dog go and said, “Go
it, Bob.” The dog flew at the plaintiff and bit her. The plaintiff sued the
dog’s owner for damages. The trial court held the defendant liable despite
the potman’s intervening act, saying the owner of an animal known to be
savage is strictly liable for any damage it causes. The House of Lords
affirmed:
If it is true, as I think it is, that it is a wrongful act for a person to
keep an animal which he knows to be dangerous, that is an authority .
. . that the person so keeping it is liable for the consequences of his
wrongful act, even though the immediate cause of damage is the act
of a third party.
What is the analogy between Baker v. Snell and Behrens v. Bertram

Mills Circus? Which is the more difficult case?
8. Leopard scratch. In Opelt v. Al G. Barnes Co., 183 P. 241 (Cal. App.
1919), a boy sued a circus for injuries he received from one of its leopards.
The leopard was in a cage alongside an array of other caged animals; a
series of posts, with guard ropes between them, separated the caged animals
from the spectators by a distance that prevented either from touching the
other. The plaintiff and one of his friends walked underneath one of the
ropes to get a better look at the animals. The leopard reached out between
the bars of his cage and scratched the plaintiff, causing the injuries that gave
rise to the suit. The trial court gave judgment to the defendant, finding that
the plaintiff was injured solely because he willfully placed himself within
reach of the wild animal, which he knew to be ferocious. The plaintiff
appealed.
Held, for the defendant, that the evidence was sufficient to support the
verdict.
What is the superficial similarity between Opelt v. Al G. Barnes Co. and
Behrens v. Bertram Mills Circus (the L case of the excitable elephant)?
What is the distinction between them? What is the distinction between
Opelt and Baker v. Snell?
9. The hazards of the game (problem). In Gomes v. Byrne, 333 P.2d 754
(Cal. 1959), the court set out the facts as follows:
Plaintiff, a salesman for the Fuller Brush Company, was canvassing

in the neighborhood of defendant’s home. As he walked along the
sidewalk approaching the gate leading to defendant’s door, the dog in
the enclosed yard followed him along the inside of the fence for
about fifty feet, barking continuously all the way. Plaintiff
nevertheless opened the gate and walked into the yard, whereupon the
dog bit him on the right lower leg, causing a puncture wound and
superficial abrasions. Defendant, having heard the dog barking, went
to the door and met plaintiff as he came up the steps. Plaintiff said
that the dog had bitten him; defendant expressed her sorrow at the
mishap; and plaintiff responded with the statement that it was one of
“the hazards of the game.” Plaintiff gave defendant a catalogue and
left. The next day plaintiff again called at defendant’s home and at
that time defendant bought some merchandise from him.
The plaintiff brought suit under §3342(a) of the California Civil Code:
The owner of any dog is liable for the damages suffered by any
person who is bitten by the dog while in a public place or lawfully in
a private place, including the property of the owner of the dog,
regardless of the former viciousness of the dog or the owner’s
knowledge of such viciousness. A person is lawfully upon the private
property of such owner within the meaning of this section when he is
on such property in the performance of any duty imposed upon him
by the laws of this state or by the laws or postal regulations of the
United States, or when he is on such property upon the invitation,
express or implied, of the owner.
What result?
B. RYLANDS v. FLETCHER
Rylands v. Fletcher
Court of Exchequer, 3 H. & C. 774, 159 Eng. Rep. 737 (1865)
Exchequer Chamber, L.R. 1 Ex. 265 (1866)
House of Lords, L.R. 3 H.L. 330 (1868)
[The defendants hired independent contractors to build a reservoir for

them. One of the defendants, John Rylands, was the owner of the land on
which the reservoir sat, and the other defendant, Jehu Horrocks, owned a
nearby factory that used the water power that the reservoir generated.
During the construction of the reservoir, the defendants’ contractors
discovered some old mining tunnels underneath Rylands’ property but did
not investigate them. It turned out that the shafts were connected to a coal
mine owned by the plaintiff, Thomas Fletcher.
[When the defendants filled the reservoir, the water almost immediately
broke through the bottom of it, flowed into the tunnels, and flooded the
plaintiff’s mine. Nobody was injured, but the plaintiff suffered damage to
his property for which he sought to recover. An arbitrator found that the
defendants’ construction contractors had been negligent but that the
defendants themselves had not been negligent. The plaintiff, however, had
not sued the contractors, apparently because they had gone out of business.
Based on the arbitrator’s findings, the Court of Exchequer held (with
Bramwell, B., dissenting) that the plaintiff was not entitled to recover
against the defendants. The plaintiff appealed to the next highest court, the
Court of Exchequer Chamber.]
BLACKBURN, J. — [After stating the facts:] The plaintiff, though free

from all blame on his part, must bear the loss, unless he can establish that it
was the consequence of some default for which the defendants are
responsible. The question of law therefore arises, which is the obligation
which the law casts on a person who, like the defendants, lawfully brings on
his land something which, though harmless whilst it remains there, will
naturally do mischief if it escape out of his land. It is agreed on all hands
that he must take care to keep in that which he has brought on the land and
keeps there, in order that it may not escape and damage his neighbours, but
the question arises whether the duty which the law casts upon him, under
such circumstances, is an absolute duty to keep it in at his peril, or is, as the
majority of the Court of Exchequer have thought, merely a duty to take all
reasonable and prudent precautions, in order to keep it in, but no more. If
the first be the law, the person who has brought on his land and kept there
something dangerous, and failed to keep it in, is responsible for all the
natural consequences of its escape. If the second be the limit of his duty, he
would not be answerable except on proof of negligence, and consequently
would not be answerable for escape arising from any latent defect which
ordinary prudence and skill could not detect. . . .
We think that the true rule of law is, that the person who for his own
purposes brings on his lands and collects and keeps there anything likely to
do mischief if it escapes, must keep it in at his peril, and, if he does not do
so, is prima facie answerable for all the damage which is the natural
consequence of its escape. He can excuse himself by shewing that the
escape was owing to the plaintiff’s default; or perhaps that the escape was
the consequence of vis major, or the act of God; but as nothing of this sort
exists here, it is unnecessary to inquire what excuse would be sufficient.
The general rule, as above stated, seems on principle just. The person
whose grass or corn is eaten down by the escaping cattle of his neighbour,
or whose mine is flooded by the water from his neighbour’s reservoir, or
whose cellar is invaded by the filth of his neighbour’s privy, or whose
habitation is made unhealthy by the fumes and noisome vapours of his
neighbour’s alkali works, is damnified without any fault of his own; and it
seems but reasonable and just that the neighbour, who has brought
something on his own property which was not naturally there, harmless to
others so long as it is confined to his own property, but which he knows to
be mischievous if it gets on his neighbour’s, should be obliged to make
good the damage which ensues if he does not succeed in confining it to his
own property. But for his act in bringing it there no mischief could have
accrued, and it seems but just that he should at his peril keep it there so that
no mischief may accrue, or answer for the natural and anticipated
consequences. And upon authority, this we think is established to be the law
whether the things so brought be beasts, or water, or filth, or stenches.
The case that has most commonly occurred, and which is most
frequently to be found in the books, is as to the obligation of the owner of
cattle which he brought on his land, to prevent their escape and doing
mischief. The law as to them seems to be perfectly settled from early times;
the owner must keep them in at his peril, or he will be answerable for the
natural consequences of their escape; that is with regard to tame beasts, for
the grass they eat and trample upon, though not for any injury to the person
of others, for our ancestors have settled that it is not the general nature of
horses to kick, or bulls to gore; but if the owner knows that the beast has a
vicious propensity to attack man, he will be answerable for that too. . . .
[T]here is no ground for saying that the plaintiff here took upon himself
any risk arising from the uses to which the defendants should choose to
apply their land. He neither knew what these might be, nor could he in any
way control the defendants, or hinder their building what reservoirs they
liked, and storing up in them what water they pleased, so long as the
defendants succeeded in preventing the water which they there brought
from interfering with the plaintiff’s property. . . .
Judgment for the plaintiff.
[The House of Lords affirmed the decision of the Court of Exchequer

Chamber:]
CAIRNS, L.J. — My Lords, the principles on which this case must be

determined appear to me to be extremely simple. The Defendants, treating
them as the owners or occupiers of the close on which the reservoir was
constructed, might lawfully have used that close for any purpose for which
it might in the ordinary course of the enjoyment of the land be used; and if,
in what I may term the natural use of that land, there had been any
accumulation of water, either on the surface or underground, and if, by
operation of the laws of nature, that accumulation of water had passed off
into the close occupied by the Plaintiff, the Plaintiff could not have
complained that that result had taken place . . . .
On the other hand if the Defendants, not stopping at the natural use of
their close, had desired to use it for any purpose which I may term a non-
natural use, for the purpose of introducing into the close that which in its
natural condition was not in or upon it, for the purpose of introducing water
either above or below ground in quantities and in a manner not the result of
any operation on or under the land, and if in consequence of their doing so,
the water came to escape and to pass off into the close of the Plaintiff, then
it appears to me that that which the Defendants were doing they were doing
at their own peril; and, if in the course of their doing it, the evil arose to
which I have referred, the evil, namely, of the escape of the water and its
passing away to the close of the Plaintiff and injuring the Plaintiff, then for
the consequence of that, in my opinion, the Defendants would be liable . . . .
NOTES
1. The true rule of law. What was the holding of the Court of Exchequer
Chamber? What was the holding of the House of Lords? What are the
differences between them? How would you state the “rule” of Rylands v.
Fletcher?
2. Facts vs. language. Rylands v. Fletcher is one of most influential and
discussed tort cases ever decided not because cases involving leaky
reservoirs have been especially common, but because the case stands for a
principle that is practically important but has unclear dimensions and an
uncertain rationale. Consider two ways of thinking about the significance of
Rylands. The first involves its language: Blackburn’s statement that “the
person who for his own purposes brings on his lands and collects and keeps
there anything likely to do mischief if it escapes, must keep it in at his peril,
and, if he does not do so, is prima facie answerable for all the damage
which is the natural consequence of its escape”; and consider also the
statement of Cairns, L.J., in the House of Lords that the principle applies
only to non-natural uses of property. If you were to focus just on this
language without reference to the facts of Rylands, how broadly would the
holding sweep?
Another way to think about Rylands is to focus on its result — strict
liability on the facts the case presented — and then to ask when other cases
arise whether their facts are similar to the facts of Rylands. This sort of
analysis, of course, requires decisions about which sorts of factual
similarities matter. If the next case involves an exploding sewer pipe, is it
similar to Rylands? Suppose the next case involves an explosion not of
water but of propane gas. Does Rylands mean that the owner of the gas is
strictly liable? Whether these cases are analogous to Rylands depends on
which features of Rylands seem important to the result the court reached in
that case: the water, the way it was contained, the relationship between the
reservoir and its surroundings, and so forth. And in the meantime there are
other precedents that would compete with Rylands to govern the result in
those new cases. Is an explosion of propane gas more like a bursting
reservoir or more like a fire started by sparks from a train? Or is the
propane case not usefully similar to either of those cases? The common law
process often involves such decisions, made one case at a time, about which
factual similarities matter and which do not.
We now proceed by examining some of the English cases interpreting
Rylands v. Fletcher. Then we will consider how American courts responded
to the case.
3. The poisonous yew. In Crowhurst v. The Burial Board of the Parish of
Amersham, Exchequer Div. Vol. IV (1878), the defendants planted a yew
tree about four feet from the iron railings that enclosed their cemetery. The
yew grew over and through the railings until its branches were within reach
of the plaintiff’s horse, which was pastured in a meadow beside the
cemetery. The horse ate from branches of the yew and later was found dead
in the meadow. The plaintiff had not been aware of the yew. The county
court awarded the plaintiff damages, the defendant appealed, and the
judgment was affirmed. Said the court, “The principle by which such a case
is to be governed is carefully expressed in the judgment of the Exchequer
Chamber in Fletcher v. Rylands.”
In what senses (if any) is a poisonous yew tree analogous to a bursting
reservoir?
4. Impromptu reservoir. In Rickards v. Lothian, [1913] A.C. 263 (P.C.
Austl.), the defendant was the owner of a commercial building. The plaintiff
was one of his tenants. One night a trespasser entered the building, clogged
the sinks in the fourth-floor lavatory, turned the water on, and left. Water
accumulated and leaked into the plaintiff’s rooms, damaging his stock. The
Privy Council (the highest court of appeal for claims arising from British
commonwealth countries), holding for the defendant, said that the case did
not come within the rule of Rylands v. Fletcher because
[i]t is not every use to which land is put that brings into play that
principle. It must be some special use bringing with it increased
danger to others, and must not merely be the ordinary use of the land
or such a use as is proper for the general benefit of the community. . .
.
[T]he provision of a proper supply of water to the various parts of
a house is not only reasonable, but has become, in accordance with
modern sanitary views, an almost necessary feature of town life . . . .
It would be unreasonable for the law to regard those who install and
maintain such a system of supply as doing so at their own peril.
What is the distinction between Rickards v. Lothian and Rylands v.

Fletcher? How would you rewrite the facts of Rylands to make them more
like the facts of Rickards and thus to make Rylands a case of no liability on
the same reasoning?
5. Blowtorches. In Balfour v. Barty-King, [Q.B. 1956] 2 All E.R. 555,
Balfour sued the Barty-Kings for damages arising from a fire. The parties
lived in separate dwellings that previously had been part of the same
mansion. The Barty-Kings hired a contractor to unfreeze frozen pipes in
their attic. He sought to accomplish this by using a blowtorch. The torch set
fire to some felt that covered rafters near the pipes, and the fire spread to
Balfour’s part of the house. The court held the Barty-Kings strictly liable
for the damage under Rylands v. Fletcher:
It appears that although the use of a blow-lamp for the purpose of

thawing out a pipe is a recognised method of thawing out a pipe in an
appropriate place and appropriate circumstances, yet in other places it
is not only not a recognised practice but also an extremely dangerous
practice, and one which no prudent workman or contractor would
have adopted. I have to have regard to all the circumstances of time
and place and the practice of the trade, and, applying that test, I feel
constrained to come to the conclusion that the user of the blow-lamp
in these particular circumstances in this loft, so close to all this
combustible material, did constitute the blow-lamp an object of the
class to which the rule in Rylands v. Fletcher applies.
6. Early American interpretations of Rylands v. Fletcher. In Losee v.

Buchanan, 51 N.Y. 476 (1873), a steam boiler used by the defendant
Saratoga Paper Company in its Schuylerville mill exploded. Pieces of the
boiler flew onto the plaintiff’s premises and caused damage. The trial court
rejected the plaintiff’s assertion that the defendants should be held strictly
liable, and the New York Court of Appeals affirmed:
By becoming a member of civilized society, I am compelled to give

up many of my natural rights, but I receive more than a compensation
from the surrender by every other man of the same rights, and the
security, advantage and protection which the laws give me. So, too,
the general rules that I may have the exclusive and undisturbed use
and possession of my real estate, and that I must so use my real estate
as not to injure my neighbor, are much modified by the exigencies of
the social state. We must have factories, machinery, dams, canals and
railroads. They are demanded by the manifold wants of mankind, and
lay at the basis of all our civilization. If I have any of these upon my
lands, and they are not a nuisance and are not so managed as to
become such, I am not responsible for any damage they accidentally
and unavoidably do my neighbor. He receives his compensation for
such damage by the general good, in which he shares, and the right
which he has to place the same things upon his lands. I may not place
or keep a nuisance upon my land to the damage of my neighbor, and I
have my compensation for the surrender of this right to use my own
as I will by the similar restriction imposed upon my neighbor for my
benefit. I hold my property subject to the risk that it may be
unavoidably or accidentally injured by those who live near me; and as
I move about upon the public highways and in all places where other
persons may lawfully be, I take the risk of being accidentally injured
in my person by them without fault on their part. Most of the rights of
property, as well as of person, in the social state, are not absolute but
relative, and they must be so arranged and modified, not
unnecessarily infringing upon natural rights, as upon the whole to
promote the general welfare.
But our attention is called to a recent English case, decided in the
Exchequer Chamber [Rylands v. Fletcher], which seems to uphold the
claim made. . . . It is sufficient, however, to say that the law, as laid
down in [that] case, is in direct conflict with the law as settled in this
country. Here, if one builds a dam upon his own premises and thus
holds back and accumulates the water for his benefit, or if he brings
water upon his premises into a reservoir, in case the dam or the banks
of the reservoir give away and the lands of a neighbor are thus
flooded, he is not liable for the damage without proof of some fault or
negligence on his part. . . .
[T]he rule is, at least in this country, a universal one, which, so far
as I can discern, has no exceptions or limitations, that no one can be
made liable for injuries to the person or property of another without
some fault or negligence on his part.
In this case the defendants had the right to place the steam boiler
upon their premises. It was in no sense a nuisance, and the jury have
found that they were not guilty of any negligence. The judgment in
their favor should, therefore, have been affirmed at the General Term
....
As Losee v. Buchanan illustrates, the initial reaction of American courts

to Rylands v. Fletcher was hostile. Did the court in Losee understand
Rylands correctly?
7. England vs. Texas. In Turner v. Big Lake Oil Co., 96 S.W.2d 221
(Tex. 1936), salt water overflowed from an artificial pond the defendants
used in operating oil wells, causing damage to the plaintiff’s pasture. The
court declined to hold the defendant strictly liable:
[A] rule with reference to the adoption of the English common law is
that in adopting it as the rule of decision we have done so only in so
far as consistent with the conditions which obtain in this state. . . .
In Rylands v. Fletcher the court predicated the absolute liability of
the defendants on the proposition that the use of land for the artificial
storage of water was not a natural use, and that, therefore, the
landowner was bound at his peril to keep the waters on his own land.
This basis of the English rule is to be found in the meteorological
conditions which obtain there. England is a pluvial country, where
constant streams and abundant rains make the storage of water
unnecessary for ordinary or general purposes. When the court said in
Rylands v. Fletcher that the use of land for storage of water was an
unnatural use, it meant such use was not a general or an ordinary one;
not one within the contemplation of the parties to the original grant of
the land involved, nor of the grantor and grantees of adjacent lands,
but was a special or extraordinary use, and for that reason applied the
rule of absolute liability. . . .
In Texas we have conditions very different from those which
obtain in England. A large portion of Texas is an arid or semi-arid
region. West of the 98th meridian of longitude, where the rainfall is
approximately 30 inches, the rainfall decreases until finally, in the
extreme western part of the state, it is only about 10 inches. This land
of decreasing rainfall is the great ranch or livestock region of the
state, water for which is stored in thousands of ponds, tanks, and
lakes on the surface of the ground. The country is almost without
streams; and without the storage of water from rainfall in basins
constructed for the purpose, or to hold waters pumped from the earth,
the great livestock industry of West Texas must perish. No such
condition obtains in England. With us the storage of water is a natural
or necessary and common use of the land, necessarily within the
contemplation of the state and its grantees when grants were made,
and obviously the rule announced in Rylands v. Fletcher, predicated
upon different conditions, can have no application here.
Again, in England there are no oil wells, no necessity for using
surface storage facilities for impounding and evaporating salt waters
therefrom. In Texas the situation is different. Texas has many great oil
fields, tens of thousands of wells in almost every part of the state.
Producing oil is one of our major industries. One of the by-products
of oil production is salt water, which must be disposed of without
injury to property or the pollution of streams. The construction of
basins or ponds to hold this salt water is a necessary part of the oil
business. In Texas much of our land was granted without mineral
reservation to the state, and where minerals were reserved, provision
has usually been made for leasing and operating. It follows, therefore,
that as to these grants and leases the right to mine in the usual and
appropriate way, as, for example, by the construction and
maintenance of salt water pools such as here involved, incident to the
production of oil, was contemplated by the state and all its grantees
and mineral lessees, that being a use of the surface incident and
necessary to the right to produce oil.
8. Bursting pipes. In Lubin v. Iowa City, 131 N.W.2d 765 (Iowa 1964),
the defendant city followed the practice of leaving its underground water
pipes in place until they broke, even as each pipe approached the end of its
estimated life. The Iowa Supreme Court held the city strictly liable for the
resulting damage:
While [the rule of Rylands v. Fletcher] was readily followed in

England, it is generally thought that it has not been widely accepted
in the United States. However, Prosser in 1955 found 20 jurisdictions,
including Iowa, which have accepted it in name or principle. [Prosser,
Law of Torts, pp. 332-333.] In many other jurisdictions strict liability
has been imposed on other theories for damages sustained when an
escaping substance or force has invaded the real estate of another. . . .
It is neither just nor reasonable that the city engaged in a
proprietary activity can deliberately and intentionally plan to leave a
watermain underground beyond inspection and maintenance until a
break occurs and escape liability. A city or corporation so operating
knows that eventually a break will occur, water will escape and in all
probability flow onto the premises of another with resulting damage.
We do not ordinarily think of watermains as being extra-hazardous
but when such a practice is followed, they become “inherently
dangerous and likely to damage the neighbor’s property[.]” . . . The
risks from such a method of operation should be borne by the water
supplier who is in a position to spread the cost among the consumers
who are in fact the true beneficiaries of this practice and of the
resulting savings in inspection and maintenance costs. When the
expected and inevitable occurs, they should bear the loss and not the
unfortunate individual whose property is damaged without fault of his
own. . . .
The result reached here seems to be in line with modern trends.
Legal scholars, with justification, accuse the courts of tending to fix
tort liability, not by determining which party is at fault but by
deciding which party can best stand the loss. While we cannot accept
such a basis for determining liability in most tort cases, it seems to be
appropriate here. Most jurisdictions which rejected Rylands v.
Fletcher did so during that period of time when our country was still
young and expanding. “Dangerous enterprises, involving a high
degree of risk to others, were clearly indispensable to the industrial
and commercial development of a new country and it was considered
that the interests of those in the vicinity of such enterprises must give
way to them, and that too great a burden must not be placed upon
them. With the disappearance of the frontier, and the development of
the country’s resources, it was to be expected that the force of this
objection would be weakened, and that it would be replaced in time
by the view that the hazardous enterprise, even though it be socially
valuable, must pay its way, and make good the damage inflicted.
After a long period during which Rylands v. Fletcher was rejected by
the large majority of the American courts which considered it, the
pendulum has swung to acceptance of the case and its doctrine in the
United States.” Prosser, Law of Torts, p. 332.
What is the distinction between Lubin v. Iowa City and Turner v. Big
Lake Oil Co.?
9. Escaped oil (problem). In Walker Shoe Store v. Howard’s Hobby
Shop, 327 N.W.2d 725 (Iowa 1982), the plaintiff owned a shoe store; the
defendant owned a hobby shop next door. The defendant heated his
property with oil, which was stored in his basement in two tanks having a
capacity of 550 gallons. A leak developed in one or both of the tanks,
allowing oil to escape into the defendant’s basement; eventually the oil was
ignited by the pilot light of a hot water heater. The ensuing fire caused
substantial smoke and fire damage to the plaintiff’s adjacent property. The
defendant produced affidavits stating that the heater had been checked
regularly; the plaintiff did not respond, relying on a claim of strict liability
rather than negligence. The trial court granted the plaintiff’s motion for
summary judgment. The defendant appealed to the Supreme Court of Iowa
— the same court that decided Lubin v. Iowa City. What result would you
expect on these facts: strict liability or liability only for negligence? Can
this case be distinguished from Lubin?
10. Misstated, and as misstated rejected. In his treatise on the law of
torts, William Prosser argued that when early American courts rejected
Rylands v. Fletcher, the case “was treated as holding that the defendant is
absolutely liable in all cases whenever anything under his control escapes
and does damage. In other words, the law of the case was misstated, and as
misstated rejected, on facts to which it had no proper application in the first
place.” Is this an apt criticism?
C. ABNORMALLY DANGEROUS ACTIVITIES
We now consider the most important modern branch of strict liability: its
general application to “abnormally dangerous activities.” Strict liability in
this setting may be understood as descending from an interpretation of
Rylands v. Fletcher, particularly if that case is given a broad reading that
emphasizes the “non-natural” mismatch between the risks created by the
defendant’s activity and the place where the activity is carried out; indeed,
some courts now speak almost interchangeably of strict liability under
Rylands and more general strict liability for abnormally dangerous
activities. But some of the criteria for applying strict liability to abnormally
dangerous activities have developed independently of Rylands, and while
state courts may disagree about the meaning of Rylands and whether it
should be followed, every state recognizes general principles of strict
liability for certain dangerous undertakings. Here the Restatements
produced by the American Law Institute have been highly influential. The
Institute’s first Restatement of the law of torts laid out criteria for imposing
strict liability on defendants engaged in “ultrahazardous” activities; the
Restatement (Second) continued in the same vein, but with a shift in jargon
to “abnormally dangerous” activities. As you read the Restatement’s
provisions and the cases that follow, consider the extent to which they
overlap with the doctrines associated with Rylands v. Fletcher.
§519. GENERAL PRINCIPLE
(1) One who carries on an abnormally dangerous activity is

subject to liability for harm to the person, land or chattels of another
resulting from the activity, although he has exercised the utmost care
to prevent the harm.
(2) This strict liability is limited to the kind of harm, the
possibility of which makes the activity abnormally dangerous.
§520. ABNORMALLY DANGEROUS ACTIVITIES
In determining whether an activity is abnormally dangerous, the

following factors are to be considered:
(a) existence of a high degree of risk of some harm to the
person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable
care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is
carried on; and
(f) extent to which its value to the community is outweighed by
its dangerous attributes.
Comments. . . .
f. “Abnormally dangerous.” For an activity to be abnormally dangerous,
not only must it create a danger of physical harm to others but the danger
must be an abnormal one. In general, abnormal dangers arise from activities
that are in themselves unusual, or from unusual risks created by more usual
activities under particular circumstances. In determining whether the danger
is abnormal, the factors listed in Clauses (a) to (f) of this Section are all to
be considered, and are all of importance. Any one of them is not necessarily
sufficient of itself in a particular case, and ordinarily several of them will be
required for strict liability. On the other hand, it is not necessary that each
of them be present, especially if others weigh heavily. Because of the
interplay of these various factors, it is not possible to reduce abnormally
dangerous activities to any definition. The essential question is whether the
risk created is so unusual, either because of its magnitude or because of the
circumstances surrounding it, as to justify the imposition of strict liability
for the harm that results from it, even though it is carried on with all
reasonable care. In other words, are its dangers and inappropriateness for
the locality so great that, despite any usefulness it may have for the
community, it should be required as a matter of law to pay for any harm it
causes, without the need of a finding of negligence. . . .
i. Common usage. An activity is a matter of common usage if it is
customarily carried on by the great mass of mankind or by many people in
the community. It does not cease to be so because it is carried on for a
purpose peculiar to the individual who engages in it. Certain activities,
notwithstanding their recognizable danger, are so generally carried on as to
be regarded as customary. Thus automobiles have come into such general
use that their operation is a matter of common usage. This, notwithstanding
the residue of unavoidable risk of serious harm that may result even from
their careful operation, is sufficient to prevent their use from being regarded
as an abnormally dangerous activity. On the other hand, the operation of a
tank or any other motor vehicle of such size and weight as to be unusually
difficult to control safely, or to be likely to damage the ground over which it
is driven, is not yet a usual activity for many people, and therefore the
operation of such a vehicle may be abnormally dangerous.
Although blasting is recognized as a proper means of excavation for
building purposes or clearing woodland for cultivation, it is not carried on
by any large percentage of the population, and therefore it is not a matter of
common usage. Likewise the manufacture, storage, transportation and use
of high explosives, although necessary to the construction of many public
and private works, are carried on by only a comparatively small number of
persons and therefore are not matters of common usage. So likewise, the
very nature of oil lands and the essential interest of the public in the
production of oil require that oil wells be drilled, but the dangers incident to
the operation are characteristic of oil lands and not of lands in general, and
relatively few persons are engaged in the activity.
The usual dangers resulting from an activity that is one of common
usage are not regarded as abnormal, even though a serious risk of harm
cannot be eliminated by all reasonable care. The difference is sometimes
not so much one of the activity itself as of the manner in which it is carried
on. Water collected in large quantity in a hillside reservoir in the midst of a
city or in coal mining country is not the activity of any considerable portion
of the population, and may therefore be regarded as abnormally dangerous;
while water in a cistern or in household pipes or in a barnyard tank
supplying cattle, although it may involve much the same danger of escape,
differing only in degree if at all, still is a matter of common usage and
therefore not abnormal. The same is true of gas and electricity in household
pipes and wires, as contrasted with large storage tanks or high tension
power lines. Fire in a fireplace or in an ordinary railway engine is a matter
of common usage, while a traction engine shooting out sparks in its passage
along the public highway is an abnormal danger.
Indiana Harbor Belt Railroad Co. v. American Cyanamid Co.

916 F.2d 1174 (7th Cir. 1990)
POSNER, Circuit Judge. American Cyanamid Company, the defendant in

this diversity tort suit governed by Illinois law, is a major manufacturer of
chemicals, including acrylonitrile, a chemical used in large quantities in
making acrylic fibers, plastics, dyes, pharmaceutical chemicals, and other
intermediate and final goods. On January 2, 1979, at its manufacturing plant
in Louisiana, Cyanamid loaded 20,000 gallons of liquid acrylonitrile into a
railroad tank car that it had leased from the North American Car
Corporation. The next day, a train of the Missouri Pacific Railroad picked
up the car at Cyanamid’s siding. The car’s ultimate destination was a
Cyanamid plant in New Jersey served by Conrail rather than by Missouri
Pacific. The Missouri Pacific train carried the car north to the Blue Island
railroad yard of Indiana Harbor Belt Railroad, the plaintiff in this case, a
small switching line that has a contract with Conrail to switch cars from
other lines to Conrail, in this case for travel east. The Blue Island yard is in
the Village of Riverdale, which is just south of Chicago and part of the
Chicago metropolitan area.
The car arrived in the Blue Island yard on the morning of January 9,
1979. Several hours after it arrived, employees of the switching line noticed
fluid gushing from the bottom outlet of the car. The lid on the outlet was
broken. After two hours, the line’s supervisor of equipment was able to stop
the leak by closing a shut-off valve controlled from the top of the car. No
one was sure at the time just how much of the contents of the car had
leaked, but it was feared that all 20,000 gallons had, and since acrylonitrile
is flammable at a temperature of 30 degrees Fahrenheit or above, highly
toxic, and possibly carcinogenic, the local authorities ordered the homes
near the yard evacuated. The evacuation lasted only a few hours, until the
car was moved to a remote part of the yard and it was discovered that only
about a quarter of the acrylonitrile had leaked. Concerned nevertheless that
there had been some contamination of soil and water, the Illinois
Department of Environmental Protection ordered the switching line to take
decontamination measures that cost the line $981,022.75, which it sought to
recover by this suit.
One count of the two-count complaint charges Cyanamid with having
maintained the leased tank car negligently. The other count asserts that the
transportation of acrylonitrile in bulk through the Chicago metropolitan area
is an abnormally dangerous activity, for the consequences of which the
shipper (Cyanamid) is strictly liable to the switching line, which bore the
financial brunt of those consequences because of the decontamination
measures that it was forced to take. [The district court gave summary
judgment to the plaintiff on the ground that the defendant was strictly liable
for the spill, and the defendant brought this appeal.]
The parties agree that the question whether placing acrylonitrile in a rail
shipment that will pass through a metropolitan area subjects the shipper to
strict liability is, as recommended in Restatement (Second) of Torts §520,
comment 1 (1977), a question of law, so that we owe no particular
deference to the conclusion of the district court. They also agree (and for
this proposition, at least, there is substantial support) that the Supreme
Court of Illinois would treat as authoritative the provisions of the
Restatement governing abnormally dangerous activities. The key provision
is section 520, which sets forth six factors to be considered in deciding
whether an activity is abnormally dangerous and the actor therefore strictly
liable. . . .
The largest class of cases in which strict liability has been imposed
under the standard codified in the Second Restatement of Torts involves the
use of dynamite and other explosives for demolition in residential or urban
areas. . . . Explosives are dangerous even when handled carefully, and we
therefore want blasters to choose the location of the activity with care and
also to explore the feasibility of using safer substitutes (such as a wrecking
ball), as well as to be careful in the blasting itself. Blasting is not a
commonplace activity like driving a car, or so superior to substitute
methods of demolition that the imposition of liability is unlikely to have
any effect except to raise the activity’s costs.
[W]e can get little help from precedent, and might as well apply section
520 to the acrylonitrile problem from the ground up. To begin with, we
have been given no reason . . . for believing that a negligence regime is not
perfectly adequate to remedy and deter, at reasonable cost, the accidental
spillage of acrylonitrile from rail cars. Acrylonitrile could explode and
destroy evidence, but of course did not here, making imposition of strict
liability on [that theory] premature. More important, although acrylonitrile
is flammable even at relatively low temperatures, and toxic, it is not so
corrosive or otherwise destructive that it will eat through or otherwise
damage or weaken a tank car’s valves although they are maintained with
due (which essentially means, with average) care. No one suggests,
therefore, that the leak in this case was caused by the inherent properties of
acrylonitrile. It was caused by carelessness — whether that of the North
American Car Corporation in failing to maintain or inspect the car properly,
or that of Cyanamid in failing to maintain or inspect it, or that of the
Missouri Pacific when it had custody of the car, or that of the switching line
itself in failing to notice the ruptured lid, or some combination of these
possible failures of care. Accidents that are due to a lack of care can be
prevented by taking care; and when a lack of care can . . . be shown in
court, such accidents are adequately deterred by the threat of liability for
negligence.
It is true that the district court purported to find as a fact that there is an
inevitable risk of derailment or other calamity in transporting “large
quantities of anything.” 662 F. Supp. at 642. This is not a finding of fact,
but a truism: anything can happen. The question is, how likely is this type
of accident if the actor uses due care? For all that appears from the record of
the case or any other sources of information that we have found, if a tank
car is carefully maintained the danger of a spill of acrylonitrile is negligible.
If this is right, there is no compelling reason to move to a regime of strict
liability, especially one that might embrace all other hazardous materials
shipped by rail as well. This also means, however, that the amici curiae who
have filed briefs in support of Cyanamid cry wolf in predicting
“devastating” effects on the chemical industry if the district court’s decision
is affirmed. If the vast majority of chemical spills by railroads are
preventable by due care, the imposition of strict liability should cause only
a slight, not as they argue a substantial, rise in liability insurance rates,
because the incremental liability should be slight. The amici have
momentarily lost sight of the fact that the feasibility of avoiding accidents
simply by being careful is an argument against strict liability.
The district judge and the plaintiff’s lawyer make much of the fact that
the spill occurred in a densely inhabited metropolitan area. Only 4,000
gallons spilled; what if all 20,000 had done so? Isn’t the risk that this might
happen even if everybody were careful sufficient to warrant giving the
shipper an incentive to explore alternative routes? Strict liability would
supply that incentive. But this argument overlooks the fact that, like other
transportation networks, the railroad network is a hub-and-spoke system.
And the hubs are in metropolitan areas. Chicago is one of the nation’s
largest railroad hubs. In 1983, the latest year for which we have figures,
Chicago’s railroad yards handled the third highest volume of hazardous-
material shipments in the nation. East St. Louis, which is also in Illinois,
handled the second highest volume. . . . With most hazardous chemicals (by
volume of shipments) being at least as hazardous as acrylonitrile, it is
unlikely — and certainly not demonstrated by the plaintiff — that they can
be rerouted around all the metropolitan areas in the country, except at
prohibitive cost. Even if it were feasible to reroute them one would hardly
expect shippers, as distinct from carriers, to be the firms best situated to do
the rerouting. Granted, the usual view is that common carriers are not
subject to strict liability for the carriage of materials that make the
transportation of them abnormally dangerous, because a common carrier
cannot refuse service to a shipper of a lawful commodity. Two courts,
however, have rejected the common carrier exception. If it were rejected in
Illinois, this would weaken still further the case for imposing strict liability
on shippers whose goods pass through the densely inhabited portions of the
state. . . .
It is easy to see how the accident in this case might have been prevented
at reasonable cost by greater care on the part of those who handled the tank
car of acrylonitrile. It is difficult to see how it might have been prevented at
reasonable cost by a change in the activity of transporting the chemical.
This is therefore not an apt case for strict liability. . . .
In emphasizing the flammability and toxicity of acrylonitrile rather than
the hazards of transporting it, as in failing to distinguish between the active
and the passive shipper, the plaintiff overlooks the fact that
ultrahazardousness or abnormal dangerousness is, in the contemplation of
the law at least, a property not of substances, but of activities: not of
acrylonitrile, but of the transportation of acrylonitrile by rail through
populated areas. . . . Whatever the situation under products liability law
(section 402A of the Restatement), the manufacturer of a product is not
considered to be engaged in an abnormally dangerous activity merely
because the product becomes dangerous when it is handled or used in some
way after it leaves his premises, even if the danger is foreseeable. . . . The
plaintiff does not suggest that Cyanamid should switch to making some less
hazardous chemical that would substitute for acrylonitrile in the textiles and
other goods in which acrylonitrile is used. Were this a feasible method of
accident avoidance, there would be an argument for making manufacturers
strictly liable for accidents that occur during the shipment of their products
(how strong an argument we need not decide). Apparently it is not a
feasible method.
The relevant activity is transportation, not manufacturing and shipping.
This essential distinction the plaintiff ignores. But even if the defendant is
treated as a transporter and not merely a shipper, it has not shown that the
transportation of acrylonitrile in bulk by rail through populated areas is so
hazardous an activity, even when due care is exercised, that the law should
seek to create — perhaps quixotically — incentives to relocate the activity
to nonpopulated areas, or to reduce the scale of the activity, or to switch to
transporting acrylonitrile by road rather than by rail . . . . It is no more
realistic to propose to reroute the shipment of all hazardous materials
around Chicago than it is to propose the relocation of homes adjacent to the
Blue Island switching yard to more distant suburbs. It may be less realistic.
Brutal though it may seem to say it, the inappropriate use to which land is
being put in the Blue Island yard and neighborhood may be, not the
transportation of hazardous chemicals, but residential living. The analogy is
to building your home between the runways at O’Hare. . . .
The judgment is reversed (with no award of costs in this court) and the
case remanded for further proceedings, consistent with this opinion, on the
plaintiff’s claim for negligence.
Reversed and remanded, with directions.
NOTES
1. Activity levels. One economic rationale for strict liability is that it

puts pressure on parties to consider whether they ought to be engaging in
some other activity altogether; a negligence standard, by contrast, considers
only whether the activity the actor chose to engage in was undertaken
carefully. In the context of the Indiana Harbor Belt R.R. case, the argument
would be that applying a negligence standard amounts just to asking
whether the defendant, having chosen to ship the acrylonitrile by rail near
metropolitan areas, did so with reasonable care. Since strict liability would
force the defendant to pay for any damage the chemical caused regardless
of whether it was careful, the company will be moved to wonder whether
there is some better way to ship acrylonitrile altogether. Between these
poles, however, might seem to lie an intermediate possibility: a court could
ask whether the defendant’s decision about activity levels — here, its
decision to ship the chemical by rail through Blue Island — was itself
negligent, regardless of how carefully it was carried out. The economic
argument for strict liability sketched above is premised on the idea that
courts cannot fruitfully inquire into whether such general decisions by
defendants are negligent. It has been argued, however, that Judge Posner’s
opinion does just that:
On the record before the court, Posner’s conclusion seems perfectly

sound. But surely his ability to arrive at that conclusion undercuts the
premise on which he undertook the inquiry in the first place. To
conclude that spills of acrylonitrile probably could not “have been
prevented at reasonable cost by a change in the activity of
transporting the chemical” is, in substance, to determine that, as a
rule, it is not negligent to transport acrylonitrile by rail rather than by
other means or by rail through metropolitan areas rather than
rerouting to avoid them. That is a rule-based determination of the
very same activity-level negligence claims that Posner assumed the
negligence standard could not handle.
Stephen Gilles, Risk-Based Negligence and the Regulation of Activity

Levels, 21 J. Legal Stud. 319 (1992). Courts could, in principle, more
regularly undertake the sort of analysis Gilles describes, asking not only
whether defendants are reasonable in carrying on their activities but
whether they are reasonable in deciding what activities to conduct. Indeed,
comment b to Restatement §520 recognizes such a possibility:
The rule stated in §519 is applicable to an activity that is carried on

with all reasonable care, and that is of such utility that the risk which
is involved in it cannot be regarded as so great or so unreasonable as
to make it negligence merely to carry on the activity at all. If the
utility of the activity does not justify the risk it creates, it may be
negligence merely to carry it on, and the rule stated in this Section is
not then necessary to subject the defendant to liability for harm
resulting from it. . . .
It nevertheless is rare for courts to hold a defendant liable for

negligently choosing to engage in an activity. Why?
2. Flammable cargo. In Siegler v. Kuhlman, 502 P.2d 1181 (Wash.
1973), the defendant’s driver was scheduled to drive a truck and trailer
loaded with more than 8,600 gallons of gasoline from Tumwater to Port
Angeles, Washington. He performed the necessary safety checks. As he
pulled onto a ramp to enter Highway 101, the trailer jerked loose from his
truck, crashed through a chain-link highway fence, and came to rest upside
down on a street below. Seventeen-year-old Carol House, returning home
from her after-school job, drove over the puddle of gasoline created by the
trailer’s fall. The gasoline ignited, and the flames engulfed her car and
killed her. The Washington Supreme Court held that strict liability applied:
The basic principles supporting the Fletcher doctrine, we think,
control the transportation of gasoline as freight along the public
highways the same as it does the impounding of waters and for
largely the same reasons. . . . Gasoline is always dangerous whether
kept in large or small quantities because of its volatility,
inflammability and explosiveness. But when several thousand gallons
of it are allowed to spill across a public highway — that is, if, while
in transit as freight, it is not kept impounded — the hazards to third
persons are so great as to be almost beyond calculation. . . .
Transporting gasoline as freight by truck along the public
highways and streets is obviously an activity involving a high degree
of risk; it is a risk of great harm and injury; it creates dangers that
cannot be eliminated by the exercise of reasonable care. That gasoline
cannot be practicably transported except upon the public highways
does not decrease the abnormally high risk arising from its
transportation. Nor will the exercise of due and reasonable care
assure protection to the public from the disastrous consequences of
concealed or latent mechanical or metallurgical defects in the
carrier’s equipment, from the negligence of third parties, from latent
defects in the highways and streets, and from all of the other hazards
not generally disclosed or guarded against by reasonable care,
prudence and foresight. Hauling gasoline in great quantities as
freight, we think, is an activity that calls for the application of
principles of strict liability.
What is the distinction between Siegler v. Kuhlman and Indiana Harbor

Belt R.R. Co. v. American Cyanamid Co.?
3. Fireworks. In Klein v. Pyrodyne Corp., 810 P.2d 917 (Wash. 1991),
defendant Pyrodyne was a general contractor hired to provide aerial
fireworks one Fourth of July. During its fireworks display a mortar was
knocked into a horizontal position and a rocket inside was discharged. The
rocket flew 500 feet and exploded near a crowd of onlookers, causing them
various injuries. They sued Pyrodyne. The trial court gave summary
judgment to the plaintiffs on the ground that Pyrodyne was strictly liable for
damage caused by its fireworks. The Washington Supreme Court affirmed:
Any time a person ignites rockets with the intention of sending them
aloft to explode in the presence of large crowds of people, a high risk
of serious personal injury or property damage is created. That risk
arises because of the possibility that a rocket will malfunction or be
misdirected. Furthermore, no matter how much care pyrotechnicians
exercise, they cannot entirely eliminate the high risk inherent in
setting off powerful explosives such as fireworks near crowds.
What rationale for strict liability lies behind the court’s decision? Is it a
matter of fairness, efficiency, or both? Some jurisdictions have rejected
strict liability for fireworks displays gone awry, finding them a matter of
common usage on appropriate occasions; see Restatement Third, Torts:
Products Liability (1997). How widespread should an activity be before it is
regarded as “common” for these purposes?
4. Firearms. In Miller v. Civil Constructors, Inc., 651 N.E.2d 239 (Ill.
App. 1995), the defendants operated a firing range located in a rural area;
its main users were police offers seeking to improve their marksmanship.
The plaintiff was riding on the back of a truck on a nearby road when he
was struck by a bullet that ricocheted away from the range. One count of
the plaintiff’s resulting complaint alleged that “discharging firearms is an
ultrahazardous, highly dangerous activity” and that the defendants therefore
were strictly liable for the plaintiff’s injuries. The trial court dismissed the
plaintiff’s strict liability count, and the court of appeals affirmed:
The use of guns or firearms, even though frequently classified as

dangerous or even highly dangerous, is not the type of activity that
must be deemed ultra-hazardous when the [Restatement] criteria are
taken into consideration. First, the risk of harm to persons or
property, even though great, can be virtually eliminated by the
exercise of reasonable or even “utmost” care under the
circumstances. The doctrine of strict or absolute liability is ordinarily
reserved for abnormally dangerous activities for which no degree of
care can truly provide safety. There is a clear distinction between
requiring a defendant to exercise a high degree of care when involved
in a potentially dangerous activity and requiring a defendant to insure
absolutely the safety of others when engaging in ultrahazardous
activity.
Second, the use of firearms is a matter of common usage and the
harm posed comes from their misuse rather than from their inherent
nature alone. Third, the activity in this case was carried on at a firing
range in a quarry located somewhere near the City of Freeport. We
assume that the location was appropriate for such activity in the
absence of further factual allegations in the complaint particularly
describing the area as inappropriate for the target practice. Finally, the
target practice is of some social utility to the community; this weighs
against declaring it ultrahazardous where the activity was alleged to
have been performed by law enforcement officers apparently to
improve their skills in the handling of weapons.
What is the distinction between Miller v. Civil Constructors, Inc., and

Klein v. Pyrodyne Corp. (applying strict liability to users of fireworks)?
5. Blasting. In Sullivan v. Dunham, 55 N.E. 923 (N.Y. 1900), two of the
defendants were engaged to remove trees from land owned by a third. They
used dynamite to remove a 60-foot elm tree on the south side of the
property. The blast shattered the tree and threw a section of the stump over
a nearby forest and onto a highway more than 400 feet away; there the
stump struck the plaintiff’s intestate and killed her. The trial court instructed
the jury that the plaintiff did not have to show negligence on the
defendants’ part in order to recover from them. The jury returned a verdict
for the plaintiff, and the court of appeals held the evidence sufficient to
support the outcome.
6. Excitable minks. In Madsen v. East Jordan Irrigation Co., 125 P.2d
794 (Utah 1942), the plaintiff was the owner of the Madsen Mink Farm.
The farm was 100 yards from the defendant’s irrigation canal. The
defendant used explosives in performing repairs on it. The resulting
vibrations and noises caused the plaintiff’s mother minks to kill 230 of their
kittens; the plaintiff alleged that when minks are attending to their offspring
they are highly excitable, and that when they are disturbed they tend to
become terrified and kill their young. The trial court sustained the
defendant’s demurrer to the complaint. The plaintiff appealed, and the Utah
Had the concussion in the instant case killed the kittens directly,
without the intervention of the mother minks, the majority rule of
liability in concussion cases would have been applicable, but the case
at bar presents the additional element of the mother minks’
independent acts, thereby raising a question of proximate causation.
Query: Did the mother minks’ intervention break the chain of
causation and therefore require an allegation of negligence?
[H]e who fires explosives is not liable for every occurrence
following the explosion which has a semblance of connection to it. . .
. Whether the cases are concussion or nonconcussion, the results
chargeable to the non-negligent user of explosives are those things
ordinarily resulting from an explosion.
What is the distinction between Madsen v. East Jordan Irrigation Co.

and Sullivan v. Dunham (the L case of the dynamited tree)? What is the
analogy between Madsen v. East Jordan Irrigation Co. and Bostock-Ferari
Amusements v. Brocksmith (the NL case from the section on liability for
animals where the defendant’s bear frightened the plaintiff’s horse)?
7. Plummeting aircraft (problem). In Crosby v. Cox Aircraft Co., 746
P.2d 1198 (Wash. 1987), an airplane owned by the defendant ran out of fuel
and crashed into the plaintiff’s garage. The trial court held that the
defendant was strictly liable for the damage to the plaintiff’s property. The
defendant appealed. What rule would you expect to govern liability for
damage on the ground caused by falling airplanes: negligence or strict
liability? (Is there any reason to distinguish between plaintiffs on the
ground and plaintiffs who were passengers on the plane (or their
survivors)?) What arguments might you make each way based on the
materials considered in this chapter?
8. Insecticide (problem). In Luthringer v. Moore, 190 P.2d 1 (Cal. 1948),
the defendant Moore was engaged to exterminate cockroaches and other
vermin in the basement of a restaurant. He made his preparations and
released hydrocyanic acid gas — a deeply penetrating gas dangerous to
humans — at about midnight. The plaintiff, who was employed by a
pharmacy next door, arrived at work the next morning and was overcome
by the gas. She suffered various injuries as a result, and brought suit against
the exterminator.
At trial, the plaintiff’s expert, an exterminator named Bell, offered the
following testimony:
Q. Do you know whether hydrocyanic acid gas is a poisonous gas or a

lethal gas?
A. It definitely is.
Q. Can you tell us what the physical characteristics of hydrocyanic acid
gas are?
A. It is a little lighter-than-air gas; a very highly penetrative gas;
susceptible to moisture quite a bit, it will follow moisture; it is
noninflammable; the flash point is very low so that it can be used
without very much hazard of fire.
Q. What do you mean by [the word “penetrative”]?
A. That is one of the advantages of the gas; why they use it in
fumigation. It will penetrate behind baseboards, cracks and crevices
that we couldn’t get at with any type of liquid insecticide. It will go
through mattresses, chesterfields, furniture, some types of porous
walls.
Q. Is it difficult to keep that gas confined?
A. Yes, because of the fact it will penetrate, you have to be careful to
keep it in a definite area.
Q. In the ordinary operation, if you go in and seal up [a room] so that
you consider it is adequately sealed, you still have some leakage of
gas, or not?
A. You will have some, yes, sir, unless it is a very well built building.
The trial court instructed the jury that fumigating with hydrocyanic gas
was an ultrahazardous activity for which the defendant would be strictly
liable even if he had taken all reasonable precautions. So instructed, the jury
returned a verdict for the plaintiff, and the defendant appealed. What result?
9. The new Restatement. The test for strict liability in the Second
Restatement was highly influential, as we have seen. But some of the
considerations it relied upon tended to receive more weight than others. The
Third Restatement thus offers a simplified test:
§20. STRICT LIABILITY

(a) An actor who carries on an abnormally dangerous activity is
subject to strict liability for physical harm resulting from the activity.
(b) An activity is abnormally dangerous if:
(1) the activity creates a foreseeable and highly significant risk
of physical harm even when reasonable care is exercised by all
actors, and
(2) the activity is not a matter of common usage.
D. RESPONDEAT SUPERIOR
The doctrine of respondeat superior (“let the master answer”) generally

holds employers strictly liable for torts committed by their employees in the
course of their work. It thus is a prominent example of vicarious liability:
liability for one party based on the wrongs of another. It is a doctrine of
great practical importance, and indeed it lurks in the background of a
majority of the cases in this book. When a corporate defendant is sued
because one of its employees committed a tort, the doctrine of respondeat
superior usually is being invoked, often without discussion. We will,
however, be giving respondeat superior and related doctrines only a brief
look here; they can become quite complicated, and constitute a significant
portion of a topic to which whole courses are devoted: the law of agency.
We therefore will just be introducing the main points: the law’s definition of
a servant’s “scope of employment,” and how independent contractors are
defined and with what consequences. The question of punitive damages
against employers for torts of their employees is taken up in Chapter 9,
covering damages.
One natural explanation for the doctrine of respondeat superior is that it
makes it more likely that the injured plaintiff will be able to collect a
judgment from a solvent defendant. But is it fair to hold employers
responsible when by assumption they have done nothing wrong? Bear in
mind that even without respondeat superior, it always remains possible to
assert that a principal should be held liable for choosing or supervising an
agent negligently. The point of respondeat superior is that where the
doctrine applies, no such showing need be made. Fairness to one side, can
the doctrine be defended on the ground that it tends to reduce or optimize
the likely number of accidents caused by an enterprise?
Ira S. Bushey & Sons v. United States
398 F.2d 167 (2d Cir. 1968)
FRIENDLY, Circuit Judge. — While the United States Coast Guard vessel
Tamaroa was being overhauled in a floating drydock located in Brooklyn’s
Gowanus Canal, a seaman returning from shore leave late at night, in the
condition for which seamen are famed, turned some wheels on the drydock
wall. He thus opened valves that controlled the flooding of the tanks on one
side of the drydock. Soon the ship listed, slid off the blocks and fell against
the wall. Parts of the drydock sank, and the ship partially did — fortunately
without loss of life or personal injury. The dry-dock owner sought and was
granted compensation by the District Court for the Eastern District of New
York in an amount to be determined; the United States appeals. . . .
The Government attacks imposition of liability on the ground that
Lane’s acts were not within the scope of his employment. It relies heavily
on §228(1) of the Restatement of Agency 2d which says that “conduct of a
servant is within the scope of employment if, but only if: . . . (c) it is
actuated, at least in part by a purpose to serve the master.” Courts have gone
to considerable lengths to find such a purpose, as witness a well-known
opinion in which Judge Learned Hand concluded that a drunken boatswain
who routed the plaintiff out of his bunk with a blow, saying “Get up, you
big son of a bitch, and turn to,” and then continued to fight, might have
thought he was acting in the interest of the ship. Nelson v. American-West
African Line, 86 F.2d 730 (2d Cir. 1936). It would be going too far to find
such a purpose here; while Lane’s return to the Tamaroa was to serve his
employer, no one has suggested how he could have thought turning the
wheels to be, even if — which is by no means clear — he was unaware of
the consequences.
In light of the highly artificial way in which the motive test has been
applied, the district judge believed himself obliged to test the doctrine’s
continuing vitality by referring to the larger purposes respondeat superior is
supposed to serve. He concluded that the old formulation failed this test. We
do not find his analysis so compelling, however, as to constitute a sufficient
basis in itself for discarding the old doctrine. It is not at all clear, as the
court below suggested, that expansion of liability in the manner here
suggested will lead to a more efficient allocation of resources. . . . [T]he
suggestion that imposition of liability here will lead to more intensive
screening of employees rests on highly questionable premises. The
unsatisfactory quality of the allocation of resource rationale is especially
striking on the facts of this case. It could well be that application of the
traditional rule might induce drydock owners, prodded by their insurance
companies, to install locks on their valves to avoid similar incidents in the
future, while placing the burden on shipowners is much less likely to lead to
accident prevention. It is true, of course, that in many cases the plaintiff will
not be in a position to insure, and so expansion of liability will, at the very
least, serve respondeat superior’s loss spreading function. But the fact that
the defendant is better able to afford damages is not alone sufficient to
justify legal responsibility, and this overarching principle must be taken into
account in deciding whether to expand the reach of respondeat superior.
A policy analysis thus is not sufficient to justify this proposed
expansion of vicarious liability. This is not surprising since respondeat
superior, even within its traditional limits, rests not so much on policy
grounds consistent with the governing principles of tort law as in a deeply
rooted sentiment that a business enterprise cannot justly disclaim
responsibility for accidents which may fairly be said to be characteristic of
its activities. . . .
Put another way, Lane’s conduct was not so “unforeseeable” as to make
it unfair to charge the Government with responsibility. We agree with a
leading treatise that “what is reasonably foreseeable in this context (of
respondeat superior) . . . is quite a different thing from the foreseeably
unreasonable risk of harm that spells negligence. . . . The foresight that
should impel the prudent man to take precautions is not the same measure
as that by which he should perceive the harm likely to flow from his long-
run activity in spite of all reasonable precautions on his own part. The
proper test here bears far more resemblance to that which limits liability for
workmen’s compensation than to the test for negligence. The employer
should be held to expect risks, to the public also, which arise ‘out of and in
the course of’ his employment of labor.” 2 Harper & James, The Law of
Torts 1377-78 (1956). Here it was foreseeable that crew members crossing
the drydock might do damage, negligently or even intentionally, such as
pushing a Bushey employee or kicking property into the water. Moreover,
the proclivity of seamen to find solace for solitude by copious resort to the
bottle while ashore has been noted in opinions too numerous to warrant
citation. Once all this is granted, it is immaterial that Lane’s precise action
was not to be foreseen. . . .
One can readily think of cases that fall on the other side of the line. If
Lane had set fire to the bar where he had been imbibing or had caused an
accident on the street while returning to the drydock, the Government
would not be liable; the activities of the “enterprise” do not reach into areas
where the servant does not create risks different from those attendant on the
activities of the community in general. We agree with the district judge that
if the seaman “upon returning to the drydock, recognized the Bushey
security guard as his wife’s lover and shot him,” 276 F. Supp. at 530,
vicarious liability would not follow; the incident would have related to the
seaman’s domestic life, not to his seafaring activity, would have been the
most unlikely happenstance that the confrontation with the paramour
occurred on a drydock rather than at the traditional spot. Here Lane had
come within the closed-off area where his ship lay, to occupy a berth to
which the Government insisted he have access, and while his act is not
readily explicable, at least it was not shown to be due entirely to facets of
his personal life. The risk that seamen going and coming from the Tamaroa
might cause damage to the drydock is enough to make it fair that the
enterprise bear the loss. It is not a fatal objection that the rule we lay down
lacks sharp contours; in the end, as Judge Andrews said in a related context,
“it is all a question (of expediency,) . . . of fair judgment, always keeping in
mind the fact that we endeavor to make a rule in each case that will be
practical and in keeping with the general understanding of Mankind.”
Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 104 (N.Y. 1928) (dissenting
opinion).
[Affirmed.]
NOTES
1. Frolic and detour. In Miller v. Reiman-Wuerth Co., 598 P.2d 20

(Wyo. 1979), the defendant employed a man named Grandpre on one of its
construction sites. One afternoon Grandpre asked permission to leave the
site to deposit his paycheck at a local bank; he was concerned that
otherwise certain checks he recently had written would bounce. He was
granted the permission. He drove his own car to the bank, made the deposit,
and then on his way back to the worksite was involved in a collision with
the plaintiffs. They sued Grandpre’s employer. The trial court gave
summary judgment to the defendant, and the Wyoming Supreme Court
affirmed. The court summarized the plaintiffs’ arguments as follows:
(1) that [Grandpre’s] trip was, at least in part, for the benefit of
appellee or was employment related inasmuch as it contributed to
Grandpre’s “happiness” and thus made him a better and more
efficient employee all to appellee’s benefit as evidenced by appellee’s
policy which made the trip possible; (2) that appellee exercised
control over the trip by requiring Grandpre to return to work
immediately after completing his personal activity; and (3) that the
determination of these two things (and thus the determination of
whether or not the trip was in the scope of employment) was a
question of fact for the jury.
The court then rejected them:
To accept appellants’ contention that [the defendant employer was

responsible for Grandpre’s conduct] would also require acceptance of
the contentions that policies for employee “happiness” by allowing
vacations, no Saturday work, or lunch hours, coupled with directions
to return to work immediately after the end of vacation, or after one
hour for lunch, or at 8:00 A.M. each working day, would place the
employees in the scope of employment, without more, while on
vacation, on Saturdays, during lunch hours; in fact, at all times.
Under the legal definition of “scope of employment” a reasonable
mind could not find activities of these types, without more, to be
within the scope of employment.
What is the distinction between Miller v. Reiman-Wuerth Co. and Ira S.

Bushey & Sons v. United States?
The Miller decision might be understood as a rough illustration of the
general rule that an employer is not liable for torts committed by an
employee while on a “frolic” or “detour” of his own. The doctrine finds its
origin in Joel v. Morison, 172 Eng. Rep. 1338 (1834), where Parke, B., said:
The master is only liable where the servant is acting in the course of
his employment. If he was going out of his way, against his master’s
implied commands, when driving on his master’s business, he will
make his master liable; but if he was going on a frolic of his own,
without being at all on his master’s business, the master will not be
liable.
The classic case of frolic and detour thus is not quite Miller; it is the
employee who departs from the route assigned by the employer to pursue
recreational or other private interests. The size of the deviation from an
employer’s instructions needed to prevent respondeat superior from
applying often is a factbound question given to the jury.
2. The unfaithful servant. In Roth v. First National State Bank of New
Jersey, 404 A.2d 1182 (N.J. Super. App. Div. 1979), the plaintiff, Roth, ran
a check-cashing business in South Kearney. Every morning he would go to
the defendant’s bank to deposit his most recent checks and to replenish his
supply of cash. One day as Roth left the bank with a box containing
$72,000, a thief put a knife to his throat while a confederate grabbed the
money and ran. Police later captured the thieves but were unable to recover
the money. During the investigation it came out that one of the bank’s
tellers, Walker, had tipped off her boyfriend, Morse, to Roth’s habit of
carrying away large sums of cash every morning; Morse in turn had
furnished the information to the thieves. Roth sued the bank to recover for
his losses. The trial court gave judgment to the bank on the ground that the
teller had not been acting within the scope of her employment when she
tipped off her boyfriend to Roth’s habits. The court of appeals affirmed:
Our Supreme Court has referred to 1 Restatement, Agency 2d, §228

(1958), as summarizing the conventional rule to the following effect:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of force is not
unexpectable by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in kind
from that authorized, far beyond the authorized time or space limits, or too little actuated
by a purpose to serve the master.
Ordinarily, if the employee deviates from the business of his
employer and, while in the pursuit of his own ends, commits a tort, the
employer is not liable. However, an act may be within the scope of
employment although consciously criminal or tortious, 1 Restatement,
Agency 2d, §231, as where done for the master’s purposes or
reasonably expectable by the latter. . . .
A fair consideration of the rationale of the scope-of-employment
principle will not accommodate defendant’s liability here. Not only
was the employee’s act outrageously criminal, and not in any sense in
the service of the employer’s interests, but she had no apparent
connection with the effectuation of the transactions by which plaintiff
made his withdrawals of cash. Walker’s knowledge was seemingly a
mere matter of observation on her part. Finally, the tort itself, the
“tip” to Morse, was not shown to have occurred within the time-space
ambit of the employment. In short, to use the language of Prosser, the
“unordered and unauthorized acts” of the servant in this case are not
such that it should be found, as between the plaintiff and the
defendant, “expedient (as a matter of justice) to charge the master”
with liability therefor. Prosser, Law of Torts, at 460.
What is the distinction between Roth v. First National State Bank of

New Jersey and Ira S. Bushey & Sons v. United States? What is the
distinction between Roth and Konradi v. United States 919 F.2d 1207 (7th
Cir. 1990) (the L case of the plaintiff hit by a mailman on his way to work)?
3. Ill-tempered Florida bus driver (I). In Forster v. Red Top Sedan
Service, 257 So. 2d 95 (Fla. App. 1972), the two plaintiffs, a couple named
Forster, were driving to the airport when the driver of a Red Top bus began
trying to run them off the highway. The bus then pulled in front of the
plaintiffs’ car and came to an abrupt stop. The bus driver walked back to the
plaintiffs’ car and pulled open the door on the driver’s side. He swore that
no “old bastard” would delay his schedule and “hold him up from getting to
the beach”; he then struck each of the Forsters in the face. The Forsters sued
Red Top to recover for their injuries on a theory of respondeat superior. The
trial court gave a directed verdict to Red Top. The Florida Court of Appeals
reversed, finding that a reasonable jury could bring in a verdict for the
plaintiffs.
4. Ill-tempered Florida bus driver (II). In Reina v. Metropolitan Dade
County, 285 So. 2d 648 (Fla. App. 1973), the plaintiff was a passenger on
one of the defendant’s buses. He entered into a dispute with the driver
regarding the correct fare; the dispute heightened when the driver failed to
stop after the plaintiff pulled the cord to indicate that he wanted to get off.
The driver finally stopped in the middle of the street and allowed the
plaintiff to leave. When the plaintiff reached the sidewalk he made an
obscene gesture at the driver. The driver pulled over, left the bus, chased
down the plaintiff, and beat him. The plaintiff sued the county to recover
for his injuries on a theory of respondeat superior. The trial court gave a
directed verdict to the defendant. The Florida Court of Appeals affirmed,
finding Forster v. Red Top Sedan Service distinguishable. Do you agree?
5. Apparent authority. From the Restatement (Second) of Agency
(1958):
§265. GENERAL RULE
(1) A master or other principal is subject to liability for torts

which result from reliance upon, or belief in, statements or other
conduct within an agent’s apparent authority.
(2) Unless there has been reliance, the principal is not liable in
tort for conduct of a servant or other agent merely because it is within
his apparent authority or apparent scope of employment.
Illustration 1. P discharges A, his foreman, who regularly directs
those under him where to cut timber. Before the employees have been
told of A’s discharge, he tells them to cut trees on B’s land, which
they do. P is liable for the trespass.
Illustration 2. P discharges A, his advertising manager and
spokesman, known to be such by all local newspaper reporters. The
following day, before anyone learns of his discharge, for the purpose
of harming both P and T, A states to the reporter that T has been
defrauding P, causing P great losses. P is liable to T for the
defamatory statement.
Illustration 3. P permits A to appear as his servant and A is
generally known as such. While A is driving upon his own affairs but
ostensibly upon P’s affairs, he negligently runs over T, who believes
A to be P’s servant. P is not thereby liable to T.
What is the distinction between the third illustration and the first two?
6. The paper boy. In Miami Herald Publishing Co. v. Kendall, 88 So. 2d
276 (Fla. 1956), one Molesworth was making home deliveries of the Miami
Herald newspaper one morning when he ran over the plaintiff with his
motorcycle. The plaintiff sued the Herald for damages. The Herald
conceded that Molesworth had been negligent but argued that it could not
be held responsible for his behavior because he was an independent
contractor rather than an employee. The trial court entered judgment on a
jury verdict for the plaintiff. The Florida Supreme Court reversed, holding
as a matter of law that Molesworth was an independent contractor and that
the doctrine of respondeat superior therefore did not apply:
For nearly twenty years newsboys have delivered the Miami Herald
under a contract identical with, or similar to, the one involved in this
litigation which contains the provision, among others, that “the
NEWSDEALER is a separate, independent contractor and not subject
to the exercise of any control by the PUBLISHER over his method of
distributing or otherwise handling the delivery of said newspaper
within his territory other than as expressly set forth in this contract. . .
.” (Italics supplied.)
The contract between the appellant and Molesworth carried the
provisions that the appellant would furnish Molesworth, at a
stipulated price, as many copies of daily and Sunday editions as he
ordered, would supply him with the names and addresses of all
persons wishing the newspaper to be delivered to them in the territory
assigned to Molesworth, would credit the carrier for shortages of
papers, and would credit Molesworth “for subscriptions paid in
advance . . . .” . . .
The appellant reminds us of a familiar criterion by which it may
usually be determined whether one performing services is an
independent contractor or employee, that is, roughly, if the one
securing the services controls the means by which the task is
accomplished, the one performing the service is an employee, if not,
he is an independent contractor. The contract, says the appellant, by
its very terms made the newscarrier an independent contractor, and
any control exercised by appellant was directed to the result — not
the manner of performance. . . .
Our study of the contents of the contract, and particularly the part
we have italicized, leads us to the belief that the instrument was
intended by both parties to make Molesworth an independent
contractor and we frankly say that we have this view not only
because of the express conditions we have abridged but also because
of the specific mention of an element we consider important, if not
essential, that is, the method Molesworth was to employ in carrying
the papers to the subscribers once he had received them from
appellant. Not only in the contract but in the practical operation under
it, the circumstances of which we will presently describe, it was left
entirely to Molesworth to select the conveyance which he would use
to transport the papers from the point of origin to the subscribers’
front porches.
We turn now to see, from the testimony favorable to the
appellee’s contention, the nature of the services actually performed
and the supervision the appellant exercised over the manner in which
its newspapers reached the subscribers through Molesworth or, as
appellee puts it, the supervision of the means by which Molesworth
performed his work. The newsboy began his work at 4:30 in the
morning by getting the papers and folding them. He then started on
his route and at 6:30 he finished. If Molesworth overslept, the
appellant’s manager would go to his home and rout him out of bed.
The newsboy was required to deliver the papers in an “unwrinkled
condition” and to accomplish this could fold the papers “in threes or
fours.” Although nobody described to him the exact way to fold the
papers, he was evidently told that he could not fold them in
“biscuits.” The agent of the appellant apparently “rode herd” on the
newsboys to see that deliveries were made to the subscribers and
“that everything was going all right.” . . .
We do not find that the extra-contractual activities of the
contracting parties neutralized the provisions of the agreement which
to us were obviously intended to make Molesworth an independent
contractor. . . .
What is the distinction between Miami Herald Publishing Co. v.

Kendall and Konradi v. United States (the L case where the mailman ran
over the plaintiff’s decedent while on his way to work)?
7. Independent contractors generally. From the Restatement (Second)
of Agency (1958):
§220. DEFINITION OF SERVANT
(1) A servant is a person employed to perform services in the

affairs of another and who with respect to the physical conduct in the
performance of the services is subject to the other’s control or right to
control.
(2) In determining whether one acting for another is a servant or
an independent contractor, the following matters of fact, among
others, are considered:
(a) the extent of control which, by the agreement, the master
may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct
occupation or business;
(c) the kind of occupation, with reference to whether, in the
locality, the work is usually done under the direction of the
employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the person doing
the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of
the employer;
(i) whether or not the parties believe they are creating the
relation of master and servant; and
(j) whether the principal is or is not in business.
Comment a. Servants not performing manual labor. The word
“servant” does not exclusively connote a person rendering manual
labor, but one who performs continuous service for another and who,
as to his physical movements, is subject to the control or to the right
to control of the other as to the manner of performing the service. The
word indicates the closeness of the relation between the one giving
and the one receiving the service rather than the nature of the service
or the importance of the one giving it. Thus, ship captains and
managers of great corporations are normally superior servants,
differing only in the dignity and importance of their positions from
those working under them. The rules for determining the liability of
the employer for the conduct of both superior servants and the
humblest employees are the same; the application differs with the
extent and nature of their duties.
Comment h. Factors indicating the relation of master and servant.
The relation of master and servant is indicated by the following
factors: an agreement for close supervision or de facto close
supervision of the servant’s work; work which does not require the
services of one highly educated or skilled; the supplying of tools by
the employer; payment by hour or month; employment over a
considerable period of time with regular hours; full time employment
by one employer; employment in a specific area or over a fixed route;
the fact that the work is part of the regular business of the employer;
the fact that the community regards those doing such work as
servants; the belief by the parties that there is a master and servant
relation; an agreement that the work cannot be delegated.
Illustration 5. P employs A to drive him around town in A’s
automobile at $4.00 per hour. The inference is that A is not P’s
servant. If P supplies the automobile, the inference is that A is P’s
servant for whose conduct within the scope of employment P is
responsible.
Illustration 11. A is employed by P as resident cook for his
household under an agreement in which P promises that he will in no
way interfere with A’s conduct in preparing the food. A is P’s servant.
Is Miami Herald Publishing Co. v. Kendall consistent with the

Restatement test offered above?
8. Nondelegable duties. In Yazoo & Mississippi Valley R.R. Co. v.
Gordon, 186 So. 631 (Miss. 1939), a carload of cattle was being shipped by
railway from Texas to Tennessee. The Yazoo Railroad hired an agent to
unload the animals in Vicksburg and hold them there while they awaited a
connecting train. A steer escaped from its pen, ran to a nearby highway and
gored the plaintiff, who in turn sued Yazoo to recover for his injuries. The
Mississippi Supreme Court held that the steer was a domestic rather than a
wild animal, and that the defendant therefore should be held liable if the
steer’s escape was caused by negligence. The court then rejected the Yazoo
firm’s argument that it should avoid liability because the animals were
handled by an independent contractor:
The appellant says that when this steer escaped, the cattle were being
loaded into the car, not by its employes [sic], but by one under
contract with it so to do of such character as to make him an
independent contractor. We will not determine from the evidence
whether this is true, for if true, the fact would not relieve the
appellant from liability. The appellant owed a duty to the public,
under the circumstances hereinbefore set forth, to prevent this steer
from being at large and could not delegate the performance thereof to
another and thereby escape liability for its nonperformance.
What is the distinction between Yazoo & Mississippi Valley R.R. Co. v.
Gordon and Miami Herald Publishing Co. v. Kendall (the NL case of the
paper boy)?
9. Peculiar risks. As a general rule, principals are not liable for the torts
of their independent contractors; this is one of the lessons of Miami Herald
Publishing Co. v. Kendall. But as the Yazoo case illustrates, there is an
exception to the rule for certain duties that the law does not permit to be
delegated. Sometimes the principle is stated in the way the court suggested
in Yazoo, but it can take other forms as well. Thus from the Second
Restatement of Torts:
§416. WORK DANGEROUS IN ABSENCE OF SPECIAL PRECAUTIONS
One who employs an independent contractor to do work which

the employer should recognize as likely to create during its progress a
peculiar risk of physical harm to others unless special precautions are
taken, is subject to liability for physical harm caused to them by the
failure of the contractor to exercise reasonable care to take such
precautions, even though the employer has provided for such
precautions in the contract or otherwise.
Comment d. In order for the rule stated in this Section to apply, it
is not essential that the work which the contractor is employed to do
be in itself an extra-hazardous or abnormally dangerous activity, or
that it involve a very high degree of risk to those in the vicinity. It is
sufficient that it is likely to involve a peculiar risk of physical harm
unless special precautions are taken, even though the risk is not
abnormally great. A “peculiar risk” is a risk differing from the
common risks to which persons in general are commonly subjected
by the ordinary forms of negligence which are usual in the
community. It must involve some special hazard resulting from the
nature of the work done, which calls for special precautions. Thus if a
contractor is employed to transport the employer’s goods by truck
over the public highway, the employer is not liable for the
contractor’s failure to inspect the brakes on his truck, or for his
driving in excess of the speed limit, because the risk is in no way a
peculiar one, and only an ordinary precaution is called for. But if the
contractor is employed to transport giant logs weighing several tons
over the highway, the employer will be subject to liability for the
contractor’s failure to take special precautions to anchor them on his
trucks.
10. Collateral negligence. In Wilton v. City of Spokane, 132 P. 404

(Wash. 1913), the defendant city hired a partnership, Foster & Hindle, to
build a street. The terms of the agreement made Foster & Hindle
independent contractors. The contractors encountered a ledge of rock in the
course of grading the street. They used dynamite to remove it; one piece of
unexploded dynamite was left behind, however, and paved over. Some
months later another firm was permitted to install electrical poles along the
side of the new road. In the course of the drilling required for the purpose,
the dynamite left behind by Foster & Hindle exploded, causing various
injuries to one of the workmen. He sued the city of Spokane to recover for
his injuries, arguing that it was responsible for Foster & Hindle’s negligence
in leaving behind the dynamite. The Washington Supreme Court held for
the city:
It is first said that the work was of such a character that it could not
be let to independent contractors, and that the city could not escape
liability for the negligent performance by endeavoring to so let it. The
particular contention is that the work of blasting rock in an inhabited
portion of a city is so inherently dangerous in itself that public policy
forbids that the city be permitted to let the work to an independent
contractor. But if this be the general rule, we do not think the present
case falls within it. The leaving of an unexploded blast of dynamite in
the rock below the surface of a street is not an incident to the work of
blasting rock to make a grade for a street. Such an action is
negligence and nothing else, and the city is liable for the act only in
the same way, and to the same extent, that it would have been liable
had the contractors left the dynamite on the surface of the street in the
traveled part of the roadway on leaving the work; it is liable for
injuries resulting therefrom only in the case it knew of its being so
left, or by the exercise of reasonable diligence could have known of
it. “But the employer is not liable where the obstruction or defect in
the street causing the injury is wholly collateral to the contract work,
and entirely the result of the negligence or wrongful acts of the
contractor, subcontractor, or his servants. In such a case the
immediate author of the injury is alone liable.” Dillon’s Mun. Corp.
§1030. There is no evidence that the city had knowledge of the
existence of this unexploded blast, and, of course, there was no sort
of diligence that it could have exercised which would have made it
acquainted with the fact.
What is the distinction between Wilton v. City of Spokane and Yazoo &
Mississippi Valley R.R. Co. v. Gordon (the L case of the escaped steer)?
11. Contractors mistakenly thought to be servants. From the
Restatement (Second) of Torts:
§429. NEGLIGENCE IN DOING WORK WHICH IS ACCEPTED IN RELIANCE ON

THE EMPLOYER’S DOING THE WORK HIMSELF
One who employs an independent contractor to perform services

for another which are accepted in the reasonable belief that the
services are being rendered by the employer or by his servants, is
subject to liability for physical harm caused by the negligence of the
contractor in supplying such services, to the same extent as though
the employer were supplying them himself or by his servants.
Illustration 2. A’s wife faints. He hails a taxicab, which is so
labeled as to indicate that it is operated by the B Taxicab Company,
although the arrangement between the taxicab company and the
driver is such as to make the driver an independent contractor. A puts
his wife in the cab and accompanies her home. Through the careless
driving of the taxicab driver a collision occurs in which A and his
wife are hurt, as is also C, the driver of another car. The rule stated in
this Section subjects the B Company to liability to A and his wife but
not to C.
Are these provisions consistent with Miami Herald Publishing Co. v.

Kendall (the NL case of the paper boy)?
Chapter 8
Products Liability
A. HISTORICAL DEVELOPMENT
The law governing liability for defective products changed dramatically

during the course of the twentieth century. We therefore begin with three
landmark decisions in the development of the law in this area, followed by
excerpts from Restatement Third, Torts: Products Liability (1997) that
discuss the general principles on which the law appears to have settled for
now.
MacPherson v. Buick Motor Co.

111 N.E. 1050 (N.Y. 1916)
CARDOZO, J. — The defendant is a manufacturer of automobiles. It sold

an automobile to a retail dealer. The retail dealer resold to the plaintiff.
While the plaintiff was in the car, it suddenly collapsed. He was thrown out
and injured. One of the wheels was made of defective wood, and its spokes
crumbled into fragments. The wheel was not made by the defendant; it was
bought from another manufacturer. There is evidence, however, that its
defects could have been discovered by reasonable inspection, and that
inspection was omitted. There is no claim that the defendant knew of the
defect and willfully concealed it. . . . The charge is one, not of fraud, but of
negligence. The question to be determined is whether the defendant owed a
duty of care and vigilance to any one but the immediate purchaser.
The foundations of this branch of the law, at least in this state, were laid
in Thomas v. Winchester. A poison was falsely labeled. The sale was made
to a druggist, who in turn sold to a customer. The customer recovered
damages from the seller who affixed the label. “The defendant’s
negligence,” it was said, “put human life in imminent danger.” A poison
falsely labeled is likely to injure any one who gets it. Because the danger is
to be foreseen, there is a duty to avoid the injury. Cases were cited by way
of illustration in which manufacturers were not subject to any duty
irrespective of contract. The distinction was said to be that their conduct,
though negligent, was not likely to result in injury to any one except the
purchaser. We are not required to say whether the chance of injury was
always as remote as the distinction assumes. Some of the illustrations might
be rejected today. The principle of the distinction is for present purposes the
important thing.
Thomas v. Winchester became quickly a landmark of the law. In the
application of its principle there may at times have been uncertainty or even
error. There has never in this state been doubt or disavowal of the principle
itself. The chief cases are well known, yet to recall some of them will be
helpful. . . . [E]arly cases suggest a narrow construction of the rule. Later
cases, however, evince a more liberal spirit. First in importance is Devlin v.
Smith (89 N.Y. 470). The defendant, a contractor, built a scaffold for a
painter. The painter’s servants were injured. The contractor was held liable.
He knew that the scaffold, if improperly constructed, was a most dangerous
trap. He knew that it was to be used by the workmen. He was building it for
that very purpose. Building it for their use, he owed them a duty,
irrespective of his contract with their master, to build it with care.
From Devlin v. Smith we pass over intermediate cases and turn to the
latest case in this court in which Thomas v. Winchester was followed. That
case is Statler v. Ray Mfg. Co. The defendant manufactured a large coffee
urn. It was installed in a restaurant. When heated, the urn exploded and
injured the plaintiff. We held that the manufacturer was liable. We said that
the urn “was of such a character inherently that, when applied to the
purposes for which it was designed, it was liable to become a source of
great danger to many people if not carefully and properly constructed.” It
may be that Devlin v. Smith and Statler v. Ray Mfg. Co. have extended the
rule of Thomas v. Winchester. If so, this court is committed to the extension.
The defendant argues that things imminently dangerous to life are poisons,
explosives, deadly weapons — things whose normal function it is to injure
or destroy. But whatever the rule in Thomas v. Winchester may once have
been, it has no longer that restricted meaning. . . .
We hold, then, that the principle of Thomas v. Winchester is not limited
to poisons, explosives, and things of like nature, to things which in their
normal operation are implements of destruction. If the nature of a thing is
such that it is reasonably certain to place life and limb in peril when
negligently made, it is then a thing of danger. Its nature gives warning of
the consequences to be expected. If to the element of danger there is added
knowledge 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 carefully. That is as far as
we are required to go for the decision of this case. There must be
knowledge of a danger, not merely possible, but probable. It is possible to
use almost anything in a way that will make it dangerous if defective. That
is not enough to charge the manufacturer with a duty independent of his
contract. Whether a given thing is dangerous may be sometimes a question
for the court and sometimes a question for the jury. There must also be
knowledge that in the usual course of events the danger will be shared by
others than the buyer. Such knowledge may often be inferred from the
nature of the transaction. But it is possible that even knowledge of the
danger and of the use will not always be enough. The proximity or
remoteness of the relation is a factor to be considered. We are dealing now
with the liability of the manufacturer of the finished product, who puts it on
the market to be used without inspection by his customers. If he is
negligent, where danger is to be foreseen, a liability will follow. We are not
required at this time to say that it is legitimate to go back of the
manufacturer of the finished product and hold the manufacturers of the
component parts. To make their negligence a cause of imminent danger, an
independent cause must often intervene; the manufacturer of the finished
product must also fail in his duty of inspection. It may be that in those
circumstances the negligence of the earlier members of the series as too
remote to constitute, as to the ultimate user, an actionable wrong. We leave
that question open to you. We shall have to deal with it when it arises. The
difficulty which it suggests is not present in this case. There is here no
break in the chain of cause and effect. In such circumstances, the presence
of a known danger, attendant upon a known use, makes vigilance a duty. We
have put aside the notion that the duty to safeguard life and limb, when the
consequences of negligence may be foreseen, grows out of contract and
nothing else. We have put the source of the obligation where it ought to be.
We have put its source in the law.
From this survey of the decisions, there thus emerges a definition of the
duty of a manufacturer which enables us to measure this defendant’s
liability. Beyond all question, the nature of an automobile gives warning of
probable danger if its construction is defective. This automobile was
designed to go fifty miles an hour. Unless its wheels were sound and strong,
injury was almost certain. It was as much a thing of danger as a defective
engine for a railroad. The defendant knew the danger. It knew also that the
care would be used by persons other than the buyer. This was apparent from
its size; there were seats for three persons. It was apparent also from the fact
that the buyer was a dealer in cars, who bought to resell. The maker of this
car supplied it for the use of purchasers from the dealer just as plainly as the
contractor in Devlin v. Smith supplied the scaffold for use by the servants of
the owner. The dealer was indeed the one person of whom it might be said
with some approach to certainly that by him the car would not be used. Yet
the defendant would have us say that he was the one person whom it was
under a legal duty to protect. The law does not lead us to so inconsequent a
conclusion. Precedents drawn from the days of travel by stage coach do not
fit the conditions of travel today. The principle that the danger must be
imminent does not change, but the things subject to the principle do change.
They are whatever the needs of life in a developing civilization require
them to be.
In England the limits of the rule are still unsettled. Winterbottom v.
Wright (10 M. & W. 109) is often cited. The defendant undertook to provide
a mail coach to carry the mail bags. The coach broke down from latent
defects in its construction. The defendant, however, was not the
manufacturer. The court held that he was not liable for injuries to a
passenger. The case was decided on a demurrer to the declaration. . . . [T]he
form of the declaration was subject to criticism. It did not fairly suggest the
existence of a duty aside from the special contract which was the plaintiff’s
main reliance. . . .
There is nothing anomalous in a rule which imposes upon A, who has
contracted with B, a duty to C and D and others according as he knows or
does not know that the subject matter of the contract is intended for their
use. We may find an analogy in the law which measures the liability of
landlords. If A leases to B a tumble-down house he is not liable, in the
absence of fraud, to B’s guests who enter it and are injured. This is because
B is then under the duty to repair it, the lessor has the right to suppose that
he will fulfill that duty, and if he omits to do so, his guests must look to
him. But if A leases a building to be used by the lessee at once as a place of
public entertainment, the rule is different. There is injury to persons other
than the lessee is to be foreseen, and foresight of the consequences involves
the creation of a duty Junkermann v. Tilyou R. Co., 213 N.Y. 404, and cases
there cited). . . .
In this view of the defendant’s liability there is nothing inconsistent with
the theory of liability on which the case was tried. It is true that the court
told the jury that “an automobile is not an inherently dangerous vehicle.”
The meaning, however, is made plain by the context. The meaning is that
danger is not to be expected when the vehicle is well constructed. The court
left it to the jury to say whether the defendant ought to have foreseen that
the car, if negligently constructed, would become “imminently dangerous.”
Subtle distinctions are drawn by the defendant between things inherently
dangerous and things imminently dangerous, but the case does not turn
upon these verbal niceties. If danger was to be expected as reasonably
certain, there was a duty of vigilance, and this whether you call the danger
inherent or imminent. In varying forms that thought was put before the jury.
We do not say that the court would not have been justified in ruling as a
matter of law that the car was a dangerous thing. If there was any error, it
was none of which the defendant can complain.
We think the defendant was not absolved from a duty of inspection
because it bought the wheels from a reputable manufacturer. It was not
merely a dealer in automobiles. It was a manufacturer of automobiles. It
was responsible for the finished product. It was not at liberty to put the
finished product on the market without subjecting the component parts to
ordinary and simple tests. Under the charge of the trial judge nothing more
was required of it. The obligation to inspect must vary with the nature of the
thing to be inspected. The more probable the danger, the greater the need of
caution. There is little analogy between this case and Carlson v. Phoenix
Bridge Co., where the defendant bought a tool for a servant’s use. The
making of tools was not the business on which the master was engaged.
Reliance on the skill of the manufacturer was proper and almost inevitable.
But that is not the defendant’s situation. Both by its relation to the work and
by the nature of its business, it is charged with a stricter duty.
Other rulings complained of have been considered, but no error has
been found on them.
The judgment should be affirmed.
BARTLETT, C.J., dissenting — . . . The theory upon which the case was
submitted to the jury by the learned judge who presided at the trial was that,
although an automobile is not an inherently dangerous vehicle, it may
become such if equipped with a weak wheel; and that if the motor car in
question, when it was put upon the market was in itself inherently
dangerous by reason of its being equipped with a weak wheel, the defendant
was chargeable with a knowledge of the defect so far as it might be
discovered by a reasonable inspection and the application of reasonable
tests. This liability, it was further held, was not limited to the original
vendee, but extended to a subvendee like the plaintiff, who was not a party
to the original contract of sale.
I think that these rulings, which have been approved by the Appellate
Division, extend the liability of the vendor of a manufactured article further
than any case which has yet received the sanction of this court. It has
heretofore been held in this state that the liability of the vendor of a
manufactured article for negligence arising out of the existence of defects
therein does not extend to strangers injured in consequence of such defects
but is confined to the immediate vendee. The exceptions to this general rule
which have thus far been recognized in New York are cases in which the
article sold was of such a character that danger to life or limb was involved
in the ordinary use thereof; in other words, where the article sold was
inherently dangerous. As has already been pointed out, the learned trial
judge instructed the jury that an automobile is not an inherently dangerous
vehicle.
The late Chief Justice Cooley of Michigan, one of the most learned and
accurate of American law writers, states the general rule thus: “The general
rule is that a contractor, manufacturer, vendor, or furnisher of an article is
not liable to third parties who have no contractual relations with him for
negligence in the construction, manufacture, or sale of such article.” (2
Cooley on Torts (3d ed.), 1486.)
The leading English authority in support of this rule, to which all the
later cases on the same subject refer, is Winterbottom v. Wright (10 Meeson
& Welsby, 109), which was an action by the driver of a stage coach against
a contractor who had agreed with the postmaster-general to provide and
keep the vehicle in repair for the purpose of conveying the royal mail over a
prescribed route. The coach broke down and upset, injuring the driver, who
sought to recover against the contractor on account of its defective
construction. The Court of Exchequer denied him any right of recovery on
the ground that there was no privity of contract between the parties, the
agreement having been made with the postmaster-general alone. . . . The
doctrine of that decision was recognized as the law of this state by the
leading New York case of Thomas v. Winchester (6 N.Y. 397, 408), which,
however, involved an exception to the general rule. There the defendant,
who was a dealer in medicines, sold to a druggist a quantity of belladonna,
which is a deadly poison, negligently labeled as extract of dandelion. The
druggist in good faith used the poison in filling a prescription calling for the
harmless dandelion extract and the plaintiff for whom the prescription was
put up was poisoned by the belladonna. This court held that the original
vendor was liable for the injuries suffered by the patient. Chief Judge
Ruggles, who delivered the opinion of the court, distinguished between an
act of negligence imminently dangerous to the lives of others and one that is
not so, saying: “If A. builds a wagon and sells it to B., who sells it to C. and
C. hires it to D., who in consequence of the gross negligence of A. in
building the wagon is overturned and injured, D. cannot recover damages
against A., the builder. A.’s obligation to build the wagon faithfully, arises
solely out of his contract with B. The public have nothing to do with it. . . .
So, for the same reason, if a horse be defectively shod by a smith, and a
person hiring the horse from the owner is thrown and injured in
consequence of the smith’s negligence in shoeing; the smith is not liable for
the injury.” . . .
I do not see how we can uphold the judgment in the present case
without overruling what has been so often said by this court and other
courts of like authority in reference to the absence of any liability for
negligence on the part of the original vendor of an ordinary carriage to any
one except his immediate vendee. The absence of such liability was the
very point actually decided in the English case of Winterbottom v. Wright,
and the illustration quoted from the opinion of Chief Judge Ruggles in
Thomas v. Winchester assumes that the law on the subject was so plain that
the statement would be accepted almost as a matter of course. In the case at
bar the defective wheel on an automobile moving only eight miles an hour
was not any more dangerous to the occupants of the car than a similarly
defective wheel would be to the occupants of a carriage drawn by a horse at
the same speed; and yet unless the courts have been all wrong on this
question up to the present time there would be no liability to strangers to the
original sale in the case of the horse-drawn carriage.
NOTES
1. The old rule. The leading case MacPherson displaced was

Winterbottom v. Wright, 10 M. & W. 109, 152 Eng. Rep. 402 (1842),
mentioned in Cardozo’s opinion and in the dissent. The defendant entered
into a contract with the English Postmaster-General to supply a coach and
keep it in good repair. The Postmaster-General then contracted with another
party, one Atkinson, to deliver mail using the coach; Atkinson in turn hired
the plaintiff as a driver. The coach “gave way and broke down” while the
plaintiff was driving it, allegedly due to latent defects. The plaintiff sued the
supplier of the coach and lost because he was not a party to the contract by
which it had been provided to the Postmaster-General. Said Lord Abinger:
There is no privity of contract between these parties; and if the

plaintiff can sue, every passenger, or even any person passing along
the road, who was injured by the upsetting of the coach, might bring a
similar action. Unless we confine the operation of such contracts as
this to the parties who entered into them, the most absurd and
outrageous consequences, to which I can see no limit, would ensue.
Baron Rolfe took a similar view:
The breach of the defendant’s duty, stated in this declaration, i[s] his
omission to keep the carriage in a safe condition. . . . The duty . . . is
shewn to have arisen solely from the contract; and the fallacy consists
in the use of that word “duty.” If a duty to the Postmaster-General be
meant, that is true; but if a duty to the plaintiff be intended (and in
that sense the word is evidently used), there was none.
As this last excerpt suggests, the result in Winterbottom seems to have

been driven by certain details of the facts and choices the plaintiff made in
arguing the case: he focused on the defendant’s failure to keep the coach in
good repair; but the only place a duty of that sort could be found was in the
contract, to which the plaintiff was not a party. Winterbottom nevertheless
came to be broadly understood as meaning that manufacturers and suppliers
of products could not be held liable to anyone except those with whom they
had contracts. So viewed, Winterbottom became a leading case in the
United States as well as England, though American courts developed
exceptions to its rule for inherently dangerous products — the exception
that provided Cardozo with a toehold for his description of the legal
landscape in MacPherson.
Cardozo’s opinion in MacPherson is a landmark in American law and is
considered by many to be a remarkable example of judicial craft. It
reinterprets old case law to produce a new result thought to be a better fit
with the conditions of its times, yet never describes itself as announcing
anything new. The exception set out in MacPherson, creating general
liability for negligence where a product may be found a “thing of danger,”
proceeded to swallow the rule in all jurisdictions; by the mid-1960s every
state had dropped the requirement that plaintiffs must be in privity with
(i.e., have a contractual relationship with) defendants before bringing suits
against them to recover for injuries caused by defective products.
Escola v. Coca Cola Bottling Co.

150 P.2d 436 (Cal. 1944)
GIBSON, C.J. — Plaintiff, a waitress in a restaurant, was injured when a

bottle of Coca Cola broke in her hand. She alleged that defendant company,
which had bottled and delivered the alleged defective bottle to her
employer, was negligent in selling “bottles containing said beverage which
on account of excessive pressure of gas or by reason of some defect in the
bottle was dangerous . . . and likely to explode.” This appeal is from a
judgment upon a jury verdict in favor of plaintiff.
The bottle was admittedly charged with gas under pressure, and the
charging of the bottle was within the exclusive control of defendant. As it is
a matter of common knowledge that an overcharge would not ordinarily
result without negligence, it follows under the doctrine of res ipsa loquitur
that if the bottle was in fact excessively charged an inference of defendant’s
negligence would arise. If the explosion resulted from a defective bottle
containing a safe pressure, the defendant would be liable if it negligently
failed to discover such flaw. If the defect were visible, an inference of
negligence would arise from the failure of defendant to discover it. Where
defects are discoverable, it may be assumed that they will not ordinarily
escape detection if a reasonable inspection is made, and if such a defect is
overlooked an inference arises that a proper inspection was not made. A
difficult problem is presented where the defect is unknown and
consequently might have been one not discoverable by a reasonable,
practicable inspection. In the Honea case we refused to take judicial notice
of the technical practices and information available to the bottling industry
for finding defects which cannot be seen. In the present case, however, we
are supplied with evidence of the standard methods used for testing bottles.
A chemical engineer for the Owens-Illinois Glass Company and its
Pacific Coast subsidiary, maker of Coca Cola bottles, explained how glass
is manufactured and the methods used in testing and inspecting bottles. He
testified that his company is the largest manufacturer of glass containers in
the United States, and that it uses the standard methods for testing bottles
recommended by the glass containers association. A pressure test is made
by taking a sample from each mold every three hours — approximately one
out of every 600 bottles — and subjecting the sample to an internal pressure
of 450 pounds per square inch, which is sustained for one minute. (The
normal pressure in Coca Cola bottles is less than 50 pounds per square
inch.) The sample bottles are also subjected to the standard thermal shock
test. The witness stated that these tests are “pretty near” infallible.
It thus appears that there is available to the industry a commonly-used
method of testing bottles for defects not apparent to the eye, which is
almost infallible. Since Coca Cola bottles are subjected to these tests by the
manufacturer, it is not likely that they contain defects when delivered to the
bottler which are not discoverable by visual inspection. Both new and used
bottles are filled and distributed by defendant. The used bottles are not
again subjected to the tests referred to above, and it may be inferred that
defects not discoverable by visual inspection do not develop in bottles after
they are manufactured. Obviously, if such defects do occur in used bottles
there is a duty upon the bottler to make appropriate tests before they are
refilled, and if such tests are not commercially practicable the bottles should
not be re-used. This would seem to be particularly true where a charged
liquid is placed in the bottle. It follows that a defect which would make the
bottle unsound could be discovered by reasonable and practicable tests.
Although it is not clear in this case whether the explosion was caused by
an excessive charge or a defect in the glass there is a sufficient showing that
neither cause would ordinarily have been present if due care had been used.
Further, defendant had exclusive control over both the charging and
inspection of the bottles. Accordingly, all the requirements necessary to
entitle plaintiff to rely on the doctrine of res ipsa loquitur to supply an
inference of negligence are present.
TRAYNOR, J., concurring — I concur in the judgment, but I believe the

manufacturer’s negligence should no longer be singled out as the basis of a
plaintiff’s right to recover in cases like the present one. In my opinion it
should now be recognized that a manufacturer incurs an absolute liability
when an article that he has placed on the market, knowing that it is to be
used without inspection, proves to have a defect that causes injury to human
beings. MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916),
established the principle, recognized by this court, that irrespective of
privity of contract, the manufacturer is responsible for an injury caused by
such an article to any person who comes in lawful contact with it. In these
cases the source of the manufacturer’s liability was his negligence in the
manufacturing process or in the inspection of component parts supplied by
others. Even if there is no negligence, however, public policy demands that
responsibility be fixed wherever it will most effectively reduce the hazards
to life and health inherent in defective products that reach the market. It is
evident that the manufacturer can anticipate some hazards and guard against
the recurrence of others, as the public cannot. Those who suffer injury from
defective products are unprepared to meet its consequences. The cost of an
injury and the loss of time or health may be an overwhelming misfortune to
the person injured, and a needless one, for the risk of injury can be insured
by the manufacturer and distributed among the public as a cost of doing
business. It is to the public interest to discourage the marketing of products
having defects that are a menace to the public. If such products nevertheless
find their way into the market it is to the public interest to place the
responsibility for whatever injury they may cause upon the manufacturer,
who, even if he is not negligent in the manufacture of the product, is
responsible for its reaching the market. However intermittently such
injuries may occur and however haphazardly they may strike, the risk of
their occurrence is a constant risk and a general one. Against such a risk
there should be general and constant protection and the manufacturer is best
situated to afford such protection.
The injury from a defective product does not become a matter of
indifference because the defect arises from causes other than the negligence
of the manufacturer, such as negligence of a submanufacturer of a
component part whose defects could not be revealed by inspection, or
unknown causes that even by the device of res ipsa loquitur cannot be
classified as negligence of the manufacturer. The inference of negligence
may be dispelled by an affirmative showing of proper care. If the evidence
against the fact inferred is “clear, positive, uncontradicted, and of such a
nature that it can not rationally be disbelieved, the court must instruct the
jury that the nonexistence of the fact has been established as a matter of
law.” Blank v. Coffin, 126 P.2d 868, 870. An injured person, however, is not
ordinarily in a position to refute such evidence or identify the cause of the
defect, for he can hardly be familiar with the manufacturing process as the
manufacturer himself is. In leaving it to the jury to decide whether the
inference has been dispelled, regardless of the evidence against it, the
negligence rule approaches the rule of strict liability. It is needlessly
circuitous to make negligence the basis of recovery and impose what is in
reality liability without negligence. If public policy demands that a
manufacturer of goods be responsible for their quality regardless of
negligence there is no reason not to fix that responsibility openly.
In the case of foodstuffs, the public policy of the state is formulated in a
criminal statute. Statutes of this kind result in a strict liability of the
manufacturer in tort to the member of the public injured. . . . The statute
may well be applicable to a bottle whose defects cause it to explode. In any
event it is significant that the statute imposes criminal liability without
fault, reflecting the public policy of protecting the public from dangerous
products placed on the market, irrespective of negligence in their
manufacture. While the Legislature imposes criminal liability only with
regard to food products and their containers, there are many other sources
of danger. It is to the public interest to prevent injury to the public from any
defective goods by the imposition of civil liability generally.
The retailer, even though not equipped to test a product, is under an
absolute liability to his customer, for the implied warranties of fitness for
proposed use and merchantable quality include a warranty of safety of the
product. This warranty is not necessarily a contractual one, for public policy
requires that the buyer be insured at the seller’s expense against injury. The
courts recognize, however, that the retailer cannot bear the burden of this
warranty, and allow him to recoup any losses by means of the warranty of
safety attending the wholesaler’s or manufacturer’s sale to him. Such a
procedure, however, is needlessly circuitous and engenders wasteful
litigation. Much would be gained if the injured person could base his action
directly on the manufacturer’s warranty.
As handicrafts have been replaced by mass production with its great
markets and transportation facilities, the close relationship between the
producer and consumer of a product has been altered. Manufacturing
processes, frequently valuable secrets, are ordinarily either inaccessible to
or beyond the ken of the general public. The consumer no longer has means
or skill enough to investigate for himself the soundness of a product, even
when it is not contained in a sealed package, and his erstwhile vigilance has
been lulled by the steady efforts of manufacturers to build up confidence by
advertising and marketing devices such as trade-marks. Consumers no
longer approach products warily but accept them on faith, relying on the
reputation of the manufacturer or the trade-mark. Manufacturers have
sought to justify that faith by increasingly high standards of inspection and
a readiness to make good on defective products by way of replacements and
refunds. The manufacturer’s obligation to the consumer must keep pace
with the changing relationship between them; it cannot be escaped because
the marketing of a product has become so complicated as to require one or
more intermediaries. Certainly there is greater reason to impose liability on
the manufacturer than on the retailer who is but a conduit of a product that
he is not himself able to test.
The manufacturer’s liability should, of course, be defined in terms of
the safety of the product in normal and proper use, and should not extend to
injuries that cannot be traced to the product as it reached the market.
NOTES
1. Multiple rationales. The concurring opinion of Traynor, J., in the

Escola case is the most famous judicial exposition of the arguments
favoring strict liability for defective products. How many distinct rationales
can you identify in his opinion? Which seem strongest today?
Greenman v. Yuba Power Products, Inc.

377 P.2d 897 (Cal. 1963)
TRAYNOR, J. — Plaintiff brought this action for damages against the

retailer and the manufacturer of a Shopsmith, a combination power tool that
could be used as a saw, drill, and wood lathe. He saw a Shopsmith
demonstrated by the retailer and studied a brochure prepared by the
manufacturer. He decided he wanted a Shopsmith for his home workshop,
and his wife bought and gave him one for Christmas in 1955. In 1957 he
bought the necessary attachments to use the Shopsmith as a lathe for
turning a large piece of wood he wished to make into a chalice. After he had
worked on the piece of wood several times without difficulty, it suddenly
flew out of the machine and struck him on the forehead, inflicting serious
injuries. About ten and a half months later, he gave the retailer and the
manufacturer written notice of claimed breaches of warranties and filed a
complaint against them alleging such breaches and negligence.
After a trial before a jury, the court ruled that there was no evidence that
the retailer was negligent or had breached any express warranty and that the
manufacturer was not liable for the breach of any implied warranty.
Accordingly, it submitted to the jury only the cause of action alleging
breach of implied warranties against the retailer and the causes of action
alleging negligence and breach of express warranties against the
manufacturer. The jury returned a verdict for the retailer against plaintiff
and for plaintiff against the manufacturer in the amount of $65,000. The
trial court denied the manufacturer’s motion for a new trial and entered
judgment on the verdict. The manufacturer and plaintiff appeal. Plaintiff
seeks a reversal of the part of the judgment in favor of the retailer, however,
only in the event that the part of the judgment against the manufacturer is
reversed.
Plaintiff introduced substantial evidence that his injuries were caused by
defective design and construction of the Shopsmith. His expert witnesses
testified that inadequate set screws were used to hold parts of the machine
together so that normal vibration caused the tailstock of the lathe to move
away from the piece of wood being turned permitting it to fly out of the
lathe. They also testified that there were other more positive ways of
fastening the parts of the machine together, the use of which would have
prevented the accident. The jury could therefore reasonably have concluded
that the manufacturer negligently constructed the Shopsmith. The jury
could also reasonably have concluded that statements in the manufacturer’s
brochure were untrue, that they constituted express warranties,1 and that
plaintiff’s injuries were caused by their breach.
The manufacturer contends, however, that plaintiff did not give it notice
of breach of warranty within a reasonable time and that therefore his cause
of action for breach of warranty is barred by section 1769 of the Civil Code.
Since it cannot be determined whether the verdict against it was based on
the negligence or warranty cause of action or both, the manufacturer
concludes that the error in presenting the warranty cause of action to the
jury was prejudicial.
Section 1769 of the Civil Code provides: “In the absence of express or
implied agreement of the parties, acceptance of the goods by the buyer shall
not discharge the seller from liability in damages or other legal remedy for
breach of any promise or warranty in the contract to sell or the sale. But, if,
after acceptance of the goods, the buyer fails to give notice to the seller of
the breach of any promise or warranty within a reasonable time after the
buyer knows, or ought to know of such breach, the seller shall not be liable
therefor.”
The notice requirement of section 1769, however, is not an appropriate
one for the court to adopt in actions by injured consumers against
manufacturers with whom they have not dealt. “As between the immediate
parties to the sale (the notice requirement) is a sound commercial rule,
designed to protect the seller against unduly delayed claims for damages.
As applied to personal injuries, and notice to a remote seller, it becomes a
booby-trap for the unwary. The injured consumer is seldom ‘steeped in the
business practice which justifies the rule,’ (James, Product Liability, 34
Texas L. Rev. 44, 192, 197) and at least until he has had legal advice it will
not occur to him to give notice to one with whom he has had no dealings.”
(Prosser, Strict Liability to the Consumer, 69 Yale L.J. 1099, 1130.) . . . We
conclude, therefore, that even if plaintiff did not give timely notice of
breach of warranty to the manufacturer, his cause of action based on the
representations contained in the brochure was not barred.
Moreover, to impose strict liability on the manufacturer under the
circumstances of this case, it was not necessary for plaintiff to establish an
express warranty as defined in section 1732 of the Civil Code. A
manufacturer is strictly liable in tort when an article he places on the
market, knowing that it is to be used without inspection for defects, proves
to have a defect that causes injury to a human being. Recognized first in the
case of unwholesome food products, such liability has now been extended
to a variety of other products that create as great or greater hazards if
defective. Although in these cases strict liability has usually been based on
the theory of an express or implied warranty running from the manufacturer
to the plaintiff, the abandonment of the requirement of a contract between
them, the recognition that the liability is not assumed by agreement but
imposed by law, and the refusal to permit the manufacturer to define the
scope of its own responsibility for defective products make clear that the
liability is not one governed by the law of contract warranties but by the
law of strict liability in tort. Accordingly, rules defining and governing
warranties that were developed to meet the needs of commercial
transactions cannot properly be invoked to govern the manufacturer’s
liability to those injured by their defective products unless those rules also
serve the purposes for which such liability is imposed.
We need not recanvass the reasons for imposing strict liability on the
manufacturer. They have been fully articulated in [prior cases]. The purpose
of such liability is to insure that the costs of injuries resulting from
defective products are borne by the manufacturers that put such products on
the market rather than by the injured persons who are powerless to protect
themselves. Sales warranties serve this purpose fitfully at best. In the
present case, for example, plaintiff was able to plead and prove an express
warranty only because he read and relied on the representations of the
Shopsmith’s ruggedness contained in the manufacturer’s brochure. Implicit
in the machine’s presence on the market, however, was a representation that
it would safely do the jobs for which it was built. Under these
circumstances, it should not be controlling whether plaintiff selected the
machine because of the statements in the brochure, or because of the
machine’s own appearance of excellence that belied the defect lurking
beneath the surface, or because he merely assumed that it would safely do
the jobs it was built to do. It should not be controlling whether the details of
the sales from manufacturer to retailer and from retailer to plaintiff’s wife
were such that one or more of the implied warranties of the sales act arose.
(Civ. Code, §1735.) “The remedies of injured consumers ought not to be
made to depend upon the intricacies of the law of sales.” (Ketterer v.
Armour & Co., 200 F. 322, 323.) To establish the manufacturer’s liability it
was sufficient that plaintiff proved that he was injured while using the
Shopsmith in a way it was intended to be used as a result of a defect in
design and manufacture of which plaintiff was not aware that made the
Shopsmith unsafe for its intended use.
NOTES
1. Liability on the warranty vs. liability in tort. The movement toward

expanded products liability found outlets in both the law of torts and the
law of warranty. Some jurisdictions reached results resembling strict
liability through broad readings of the implied warranty thought to
accompany a product when it was put into the stream of commerce; see,
e.g., Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69 (N.J. 1960). The
Greenman case is a milestone in the modern development of products
liability law in part because it established strict liability in tort, rather than
breach of warranty, as the primary theory of recovery for defective
products. This pattern has been followed in most jurisdictions, though in
some states counts for breach of implied warranty still sometimes are
alleged along with tort theories of recovery, and from time to time may lead
to recovery where the tort theory does not.
2. The Restatements. Two years after Greenman was decided, the
American Law Institute’s Restatement (Second) of Torts offered this
formulation of the law of products liability:
§402A. SPECIAL LIABILITY OF SELLER OF PRODUCT FOR PHYSICAL HARM

TO USER OR CONSUMER
(1) One who sells any product in a defective condition
unreasonably dangerous to the user or consumer or to his property is
subject to liability for physical harm thereby caused to the ultimate
user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product,
and
(b) it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation
and sale of his product, and
(b) the user or consumer has not bought the product from or
entered into any contractual relation with the seller.
Section 402A proved enormously influential; it has been the most

heavily cited provision of the Second Restatement and was the foundation
upon which many state courts developed their law of products liability. We
will examine additional provisions of the section later in this chapter.
The case law on products liability continued to grow over the next 30
years, and in 1997 the American Law Institute’s Restatement Third of Torts
offered this reformulation:
§1. LIABILITY OF COMMERCIAL SELLER OR DISTRIBUTOR FOR HARM

CAUSED BY DEFECTIVE PRODUCTS
One engaged in the business of selling or otherwise distributing

products who sells or distributes a defective product is subject to
liability for harm to persons or property caused by the defect.
§2. CATEGORIES OF PRODUCT DEFECT
A product is defective when, at the time of sale or distribution, it

contains a manufacturing defect, is defective in design, or is defective
because of inadequate instructions or warnings. A product:
(a) contains a manufacturing defect when the product departs
from its intended design even though all possible care was
exercised in the preparation and marketing of the product;
(b) is defective in design when the foreseeable risks of harm
posed by the product could have been reduced or avoided by the
adoption of a reasonable alternative design by the seller or other
distributor, or a predecessor in the commercial chain of
distribution, and the omission of the alternative design renders the
product not reasonably safe;
(c) is defective because of inadequate instructions or warnings
when the foreseeable risks of harm posed by the product could
have been reduced or avoided by the provision of reasonable
instructions or warnings by the seller or other distributor, or a
predecessor in the commercial chain of distribution, and the
omission of the instructions or warnings renders the product not
reasonably safe.
Comment a. History. . . . The liability established in this Section
draws on both warranty law and tort law. Historically, the focus of
products liability law was on manufacturing defects. A manufacturing
defect is a physical departure from a product’s intended design. See
§2(a). Typically, manufacturing defects occur in only a small
percentage of units in a product line. Courts early began imposing
liability without fault on product sellers for harm caused by such
defects, holding a seller liable for harm caused by manufacturing
defects even though all possible care had been exercised by the seller
in the preparation and distribution of the product. In doing so, courts
relied on the concept of warranty, in connection with which fault has
never been a prerequisite to liability.
The imposition of liability for manufacturing defects has a long
history in the common law. As early as 1266, criminal statutes
imposed liability upon victualers, vintners, brewers, butchers, cooks,
and other persons who supplied contaminated food and drink. In the
late 1800s, courts in many states began imposing negligence and strict
warranty liability on commercial sellers of defective goods. In the
early 1960s, American courts began to recognize that a commercial
seller of any product having a manufacturing defect should be liable in
tort for harm caused by the defect regardless of the plaintiff’s ability to
maintain a traditional negligence or warranty action. Liability attached
even if the manufacturer’s quality control in producing the defective
product was reasonable. A plaintiff was not required to be in direct
privity with the defendant seller to bring an action. Strict liability in
tort for defectively manufactured products merges the concept of
implied warranty, in which negligence is not required, with the tort
concept of negligence, in which contractual privity is not required. See
§2(a). . . .
Comment c. One engaged in the business of selling or otherwise
distributing. The rule stated in this Section applies only to
manufacturers and other commercial sellers and distributors who are
engaged in the business of selling or otherwise distributing the type of
product that harmed the plaintiff. The rule does not apply to a
noncommercial seller or distributor of such products. Thus, it does not
apply to one who sells foodstuffs to a neighbor, nor does it apply to the
private owner of an automobile who sells it to another. It is not
necessary that a commercial seller or distributor be engaged
exclusively or even primarily in selling or otherwise distributing the
type of product that injured the plaintiff, so long as the sale of the
product is other than occasional, or casual. Thus, the rule applies to a
motion picture theater’s routine sales of popcorn or ice cream, either
for consumption on the premises or in packages to be taken home.
Similarly, a service station that does mechanical repair work on cars
may also sell tires and automobile equipment as part of its regular
business. Such sales are subject to the rule in this Section. However,
the rule does not cover occasional sales (frequently referred to as
“casual sales”) outside the regular course of the seller’s business. . . .
Comment e. Nonmanufacturing sellers or other distributors of
products. The rule stated in this Section provides that all commercial
sellers and distributors of products, including nonmanufacturing sellers
and distributors such as wholesalers and retailers, are subject to
liability for selling products that are defective. Liability attaches even
when such nonmanufacturing sellers or distributors do not themselves
render the products defective and regardless of whether they are in a
position to prevent defects from occurring. Legislation has been
enacted in many jurisdictions that, to some extent, immunizes
nonmanufacturing sellers or distributors from strict liability. The
legislation is premised on the belief that bringing nonmanufacturing
sellers or distributors into products liability litigation generates
wasteful legal costs. Although liability in most cases is ultimately
passed on to the manufacturer who is responsible for creating the
product defect, nonmanufacturing sellers or distributors must devote
resources to protect their interests. In most situations, therefore,
immunizing nonmanufacturers saves those resources without
jeopardizing the plaintiff’s interests. To assure plaintiffs access to a
responsible and solvent product seller or distributor, the statutes
generally provide that the nonmanufacturing seller or distributor is
immunized from strict liability only if: (1) the manufacturer is subject
to the jurisdiction of the court of plaintiff’s domicile; (2) the
manufacturer is not, nor is likely to become, insolvent; and (3) a court
determines that it is highly probable that the plaintiff will be able to
enforce a judgment against the manufacturer.
B. MANUFACTURING DEFECTS
We turn now to the details of the law currently governing products liability.
As explained in the Restatement excerpts above, the subject conveniently
can be divided into three general areas: liability for manufacturing defects,
liability for design defects, and liability for failure to warn. We begin with
manufacturing defects.

§2, comment a. Rationale. . . . The rule for manufacturing defects stated
in Subsection (a) imposes liability whether or not the manufacturer’s quality
control efforts satisfy standards of reasonableness. Strict liability without
fault in this context is generally believed to foster several objectives. On the
premise that tort law serves the instrumental function of creating safety
incentives, imposing strict liability on manufacturers for harm caused by
manufacturing defects encourages greater investment in product safety than
does a regime of fault-based liability under which, as a practical matter,
sellers may escape their appropriate share of responsibility. Some courts
and commentators also have said that strict liability discourages the
consumption of defective products by causing the purchase price of
products to reflect, more than would a rule of negligence, the costs of
defects. And by eliminating the issue of manufacturer fault from plaintiff’s
case, strict liability reduces the transaction costs involved in litigating that
issue.
Several important fairness concerns are also believed to support
manufacturers’ liability for manufacturing defects even if the plaintiff is
unable to show that the manufacturer’s quality control fails to meet risk-
utility norms. In many cases manufacturing defects are in fact caused by
manufacturer negligence but plaintiffs have difficulty proving it. Strict
liability therefore performs a function similar to the concept of res ipsa
loquitur, allowing deserving plaintiffs to succeed notwithstanding what
would otherwise be difficult or insuperable problems of proof. Products that
malfunction due to manufacturing defects disappoint reasonable
expectations of product performance. Because manufacturers invest in
quality control at consciously chosen levels, their knowledge that a
predictable number of flawed products will enter the marketplace entails an
element of deliberation about the amount of injury that will result from their
activity. Finally, many believe that consumers who benefit from products
without suffering harm should share, through increases in the prices
charged for those products, the burden of unavoidable injury costs that
result from manufacturing defects.
An often-cited rationale for holding wholesalers and retailers strictly
liable for harm caused by manufacturing defects is that, as between them
and innocent victims who suffer harm because of defective products, the
product sellers as business entities are in a better position than are
individual users and consumers to insure against such losses. In most
instances, wholesalers and retailers will be able to pass liability costs up the
chain of product distribution to the manufacturer. When joining the
manufacturer in the tort action presents the plaintiff with procedural
difficulties, local retailers can pay damages to the victims and then seek
indemnity from manufacturers. Finally, holding retailers and wholesalers
strictly liable creates incentives for them to deal only with reputable,
financially responsible manufacturers and distributors, thereby helping to
protect the interests of users and consumers. . . .
Welge v. Planters Lifesavers Co.

17 F.3d 209 (7th Cir. 1994)
POSNER, Chief Judge. — Richard Welge, forty-something but young in

spirit, loves to sprinkle peanuts on his ice cream sundaes. On January 18,
1991, Karen Godfrey, with whom Welge boards, bought a 24 ounce vacuum
sealed plastic capped jar of Planters peanuts for him at a K-Mart store in
Chicago. To obtain a $2 rebate that the maker of Alka-Seltzer was offering
to anyone who bought a “party” item, such as peanuts, Godfrey needed
proof of her purchase of the jar of peanuts; so, using an Exacto knife
(basically a razor blade with a handle), she removed the part of the label
that contained the bar code. She then placed the jar on top of the
refrigerator, where Welge could get at it without rooting about in her
cupboards. About a week later, Welge removed the plastic seal from the jar,
uncapped it, took some peanuts, replaced the cap, and returned the jar to the
top of the refrigerator, all without incident. A week after that, on February
3, the accident occurred. Welge took down the jar, removed the plastic cap,
spilled some peanuts into his left hand to put on his sundae, and replaced
the cap with his right hand — but as he pushed the cap down on the open
jar the jar shattered. His hand, continuing in its downward motion, was
severely cut, and is now, he claims, permanently impaired.
Welge brought this products liability suit in federal district court under
the diversity jurisdiction; Illinois law governs the substantive issues. Welge
named three defendants (plus the corporate parent of one — why we don’t
know). They are K-Mart, which sold the jar of peanuts to Karen Godfrey;
Planters, which manufactured the product — that is to say, filled the glass
jar with peanuts and sealed and capped it; and Brockway, which
manufactured the glass jar itself and sold it to Planters. After pretrial
discovery was complete the defendants moved for summary judgment. The
district judge granted the motion on the ground that the plaintiff had failed
to exclude possible causes of the accident other than a defect introduced
during the manufacturing process.
No doubt there are men strong enough to shatter a thick glass jar with
one blow. But Welge’s testimony stands uncontradicted that he used no
more than the normal force that one exerts in snapping a plastic lid onto a
jar. So the jar must have been defective. No expert testimony and no fancy
doctrine are required for such a conclusion. A nondefective jar does not
shatter when normal force is used to clamp its plastic lid on. The question is
when the defect was introduced. It could have been at any time from the
manufacture of the glass jar by Brockway (for no one suggests that the
defect might have been caused by something in the raw materials out of
which the jar was made) to moments before the accident. But testimony by
Welge and Karen Godfrey, if believed — and at this stage in the
proceedings we are required to believe it — excludes all reasonable
possibility that the defect was introduced into the jar after Godfrey plucked
it from a shelf in the K-Mart store. From the shelf she put it in her shopping
cart. The checker at the check out counter scanned the bar code without
banging the jar. She then placed the jar in a plastic bag. Godfrey carried the
bag to her car and put it on the floor. She drove directly home, without
incident. After the bar code portion of the label was removed, the jar sat on
top of the refrigerator except for the two times Welge removed it to take
peanuts out of it. Throughout this process it was not, so far as anyone
knows, jostled, dropped, bumped, or otherwise subjected to stress beyond
what is to be expected in the ordinary use of the product. Chicago is not Los
Angeles; there were no earthquakes. Chicago is not Amityville either; no
supernatural interventions are alleged. So the defect must have been
introduced earlier, when the jar was in the hands of the defendants.
But, they argue, this overlooks two things. One is that Karen Godfrey
took a knife to the jar. And no doubt one can weaken a glass jar with a
knife. But nothing is more common or, we should have thought, more
harmless than to use a knife or a razor blade to remove a label from a jar or
bottle. People do this all the time with the price labels on bottles of wine.
Even though mishandling or misuse, by the consumer or by anyone else
(other than the defendant itself), is a defense, though a limited and (subject
to a qualification noted later) partial defense, to a products liability suit in
Illinois as elsewhere, and even if, as we greatly doubt, such normal
mutilation as occurred in this case could be thought a species of
mishandling or misuse, a defendant cannot defend against a products
liability suit on the basis of a misuse that he invited. The Alka-Seltzer
promotion to which Karen Godfrey was responding when she removed a
portion of the label of the jar of Planters peanuts was in the K-Mart store. It
was there, obviously, with K-Mart’s permission. By the promotion K-Mart
invited its peanut customers to remove a part of the label on each peanut jar
bought, in order to be able to furnish the maker of Alka-Seltzer with proof
of purchase. If one just wants to efface a label one can usually do that by
scraping it off with a fingernail, but to remove the label intact requires the
use of a knife or a razor blade. Invited misuse is no defense to a products
liability claim. Invited misuse is not misuse.
The invitation, it is true, was issued by K-Mart, not by the other
defendants; and we do not know their involvement, if any, in the promotion.
As to them, the defense of misuse must fail, at this stage of the proceedings,
for two other reasons. The evidence does not establish with the certitude
required for summary judgment that the use of an Exacto knife to remove a
label from a jar is a misuse of the jar. And in a regime of comparative
negligence misuse is not a defense to liability but merely reduces the
plaintiff’s damages, unless the misuse is the sole cause of the accident.
Even so, the defendants point out, it is always possible that the jar was
damaged while it was sitting unattended on the top of the refrigerator, in
which event they are not responsible. Only if it had been securely under
lock and key when not being used could the plaintiff and Karen Godfrey be
certain that nothing happened to damage it after she brought it home. That
is true — there are no metaphysical certainties — but it leads nowhere.
Elves may have played ninepins with the jar of peanuts while Welge and
Godfrey were sleeping; but elves could remove a jar of peanuts from a
locked cupboard. The plaintiff in a products liability suit is not required to
exclude every possibility, however fantastic or remote, that the defect which
led to the accident was caused by someone other than one of the defendants.
The doctrine of res ipsa loquitur teaches that an accident that is unlikely to
occur unless the defendant was negligent is itself circumstantial evidence
that the defendant was negligent. The doctrine is not strictly applicable to a
products liability case because unlike an ordinary accident case the
defendant in a products case has parted with possession and control of the
harmful object before the accident occurs. But the doctrine merely
instantiates the broader principle, which is as applicable to a products case
as to any other tort case, that an accident can itself be evidence of liability.
If it is the kind of accident that would not have occurred but for a defect in
the product, and if it is reasonably plain that the defect was not introduced
after the product was sold, the accident is evidence that the product was
defective when sold. The second condition (as well as the first) has been
established here, at least to a probability sufficient to defeat a motion for
summary judgment. Normal people do not lock up their jars and cans lest
something happen to damage these containers while no one is looking. The
probability of such damage is too remote. It is not only too remote to make
a rational person take measures to prevent it; it is too remote to defeat a
products liability suit should a container prove dangerously defective.
Of course, unlikely as it may seem that the defect was introduced into
the jar after Karen Godfrey bought it if the plaintiffs’ testimony is believed,
other evidence might make their testimony unworthy of belief — might
even show, contrary to all the probabilities, that the knife or some
mysterious night visitor caused the defect after all. The fragments of glass
into which the jar shattered were preserved and were examined by experts
for both sides. The experts agreed that the jar must have contained a defect
but they could not find the fracture that had precipitated the shattering of
the jar and they could not figure out when the defect that caused the fracture
that caused the collapse of the jar had come into being. The defendants’
experts could neither rule out, nor rule in, the possibility that the defect had
been introduced at some stage of the manufacturing process. The plaintiff’s
expert noticed what he thought was a preexisting crack in one of the
fragments, and he speculated that a similar crack might have caused the
fracture that shattered the jar. This, the district judge ruled, was not enough.
But if the probability that the defect which caused the accident arose
after Karen Godfrey bought the jar of Planters peanuts is very small — and
on the present state of the record we are required to assume that it is — then
the probability that the defect was introduced by one of the defendants is
very high. In principle there is a third possibility — mishandling by a
carrier hired to transport the jar from Brockway to Planters or Planters to K-
Mart — but we do not even know whether a carrier was used for any of
these shipments, rather than the shipper’s own trucks. Apart from that
possibility, which has not been mentioned in the litigation so far and which
in any event, as we are about to see, would not affect K-Mart’s liability, the
jar was in the control of one of the defendants at all times until Karen
Godfrey bought it.
Which one? It does not matter. The strict-liability element in modern
products liability law comes precisely from the fact that a seller subject to
that law is liable for defects in his product even if those defects were
introduced, without the slightest fault of his own for failing to discover
them, at some anterior stage of production. So the fact that K-Mart sold a
defective jar of peanuts to Karen Godfrey would be conclusive of K-Mart’s
liability, and since it is a large and solvent firm there would be no need for
the plaintiff to look further for a tortfeasor. This point seems to have been
more or less conceded by the defendants in the district court — the thrust of
their defense was that the plaintiff had failed to show that the defect had
been caused by any of them — though this leaves us mystified as to why
the plaintiff bothered to name additional defendants.
And even if, as we doubt, the plaintiff took on the unnecessary burden
of proving that it is more likely than not that a given defendant introduced
the defect into the jar, he might be able to avail himself of the rule of
Ybarra v. Spangard, 154 P.2d 687 (Cal. 1944), and force each defendant to
produce some exculpatory evidence. In fact K-Mart put in some evidence
on the precautions it takes to protect containers of food from being
damaged by jarring or bumping. A jury convinced by such evidence,
impressed by the sturdiness of jars of peanuts (familiar to every consumer),
and perhaps perplexed at how the process of filling a jar with peanuts and
vacuum-sealing it could render a normal jar vulnerable to collapsing at a
touch, might decide that the probability that the defect had been introduced
by either K-Mart or Planters was remote. So what? Evidence of K-Mart’s
care in handling peanut jars would be relevant only to whether the defect
was introduced after sale; if it was introduced at any time before sale — if
the jar was defective when K-Mart sold it — the source of the defect would
be irrelevant to K-Mart’s liability. In exactly the same way, Planters’
liability would be unaffected by the fact, if it is a fact, that the defect was
due to Brockway rather than to itself. To repeat an earlier and fundamental
point, a seller who is subject to strict products liability is responsible for the
consequences of selling a defective product even if the defect was
introduced without any fault on his part by his supplier or by his supplier’s
supplier. . . .
Reversed and remanded.
NOTES
1. Recurring themes. As the opinion in Welge suggests, the greatest

difficulties in litigating a manufacturing defect case typically are problems
of proof: why did the jar break? If it was defective, when was the defect
introduced? Claimed manufacturing defects also can raise a number of
interesting and more general legal issues, however, such as what counts as a
“product” or “seller” — questions that are the focus of the cases that follow.
2. Defective books. In Winter v. G.P. Putnam’s Sons, 938 F.2d 1033 (9th
Cir. 1991), the defendant was the publisher of The Encyclopedia of
Mushrooms. The two plaintiffs were mushroom enthusiasts who used the
defendant’s book as a field guide, relying on its descriptions of which wild
mushrooms were safe to eat. They cooked and ate their harvest and soon
became quite ill; both ultimately required liver transplants. They sued the
defendant, alleging that the Encyclopedia contained incorrect information
about how to identify several deadly species of mushrooms. One of the
counts of their complaint alleged that the defendant should be held strictly
liable for selling a defective product — viz., the book. The trial court gave
summary judgment to the defendant, and the court of appeals affirmed:
The language of products liability law reflects its focus on tangible

items. In describing the scope of products liability law, the
Restatement (Second) of Torts lists examples of items that are
covered. All of these are tangible items, such as tires, automobiles,
and insecticides. The American Law Institute clearly was concerned
with including all physical items but gave no indication that the
doctrine should be expanded beyond that area.
The purposes served by products liability law also are focused on
the tangible world and do not take into consideration the unique
characteristics of ideas and expression. Under products liability law,
strict liability is imposed on the theory that “[t]he costs of damaging
events due to defectively dangerous products can best be borne by the
enterprisers who make and sell these products.” Prosser & Keeton on
The Law of Torts, §98. Strict liability principles have been adopted to
further the “cause of accident prevention . . . [by] the elimination of
the necessity of proving negligence.” Id. at 693. Additionally,
because of the difficulty of establishing fault or negligence in
products liability cases, strict liability is the appropriate legal theory
to hold manufacturers liable for defective products. Id. Thus, the
seller is subject to liability “even though he has exercised all possible
care in the preparation and sale of the product.” Restatement §402A
comment a. It is not a question of fault but simply a determination of
how society wishes to assess certain costs that arise from the creation
and distribution of products in a complex technological society in
which the consumer thereof is unable to protect himself against
certain product defects.
Although there is always some appeal to the involuntary
spreading of costs of injuries in any area, the costs in any
comprehensive cost/benefit analysis would be quite different were
strict liability concepts applied to words and ideas. We place a high
priority on the unfettered exchange of ideas. We accept the risk that
words and ideas have wings we cannot clip and which carry them we
know not where. The threat of liability without fault (financial
responsibility for our words and ideas in the absence of fault or a
special undertaking or responsibility) could seriously inhibit those
who wish to share thoughts and theories. As a New York court
commented, with the specter of strict liability, “[w]ould any author
wish to be exposed . . . for writing on a topic which might result in
physical injury? e.g. How to cut trees; How to keep bees?” Walter v.
Bauer, 439 N.Y.S.2d 821, 823 (Sup. Ct. 1981).
3. Maps and legends. In Saloomey v. Jeppesen, 707 F.2d 671 (2d Cir.
1983), the plaintiff’s decedent, Willard Wahlund, was a pilot for Braniff
Airlines; he also owned his own airplane, a Beechcraft Sierra. The
plaintiff’s evidence was that Wahlund was flying the Beechcraft from
Charleston, West Virginia, to Danbury, Connecticut, using a set of
navigational charts produced by the defendant, Jeppesen, that Braniff had
purchased for all of its pilots. Soon after takeoff and for reasons unknown,
Wahlund decided to land the plane at the airport in Martinsburg, West
Virginia. The legend on Wahlund’s navigational chart indicated that the
Martinsburg airport was equipped with a “full instrument landing system.”
The airport was not so equipped, however: it lacked a “glidescope” radio
beam that would have informed Wahlund of the proper altitude to maintain
for an instrument-guided landing. Wahlund proceeded toward the
Martinsburg airport, communicating his intention to use its instrument
landing system to air traffic controllers at Dulles International Airport near
Washington. Evidently the controllers there did not detect Wahlund’s
misunderstanding until later. Wahlund’s aircraft was traveling at a normal
descent angle in line with the Martinsburg runway, apparently attempting to
rely on guidance from the airport that was not being sent, when it flew into
a ridge. The plane was destroyed, and Wahlund and his passengers were
killed.
Wahlund’s estate brought suit against Jeppesen, among others. Included
among its theories of relief was a claim that Jeppesen should be held strictly
liable for selling a defective product. A jury accepted this theory, as well as
others that the plaintiff advanced, and brought in a verdict against Jeppesen
for $1.5 million. Jeppesen moved for judgment as a matter of law on the
ground that its charts were not “products” for purposes of tort law. The trial
court denied the motion:
Whether a transaction involving the sale of a map constitutes the

rendition of a professional service or the sale of a tangible product
poses a difficult question of semantics since there is an element of
service in all “goods” whether maps or consumer durables. All
require some skilled service in initial design as well as in the
transformation of raw materials into finished product. . . .
Given that Jeppesen mass produced and distributed its charts, its
activity comes within the scope of the rationale of §402A and should
not be insulated from a strict standard of liability by virtue of
metaphysical and semantic quibbling.
The court of appeals affirmed:
By publishing and selling the charts, Jeppesen undertook a special

responsibility, as seller, to insure that consumers will not be injured
by the use of the charts; Jeppesen is entitled — and encouraged — to
treat the burden of accidental injury as a cost of production to be
covered by liability insurance. . . .
What is the distinction between Saloomey v. Jeppesen and Winter v. G.P.

Putnam’s Sons (the NL case of the defective field guide to mushrooms)?
Which element of the standard products liability case is in dispute in the
two cases? What are the implications of holding Jeppesen strictly liable for
defects in its maps? Suppose that in drawing its map, Jeppesen had relied
on information supplied by the Martinsburg airport about its capabilities.
Would Jeppesen still be liable? Or suppose that Wahlund chose to land at
Martinsburg because of the misinformation on Jeppesen’s map, but flew
into the ridge because his rudder failed. Would Jeppesen be liable in that
case? Notice that Jeppesen and Winter might be styled as involving alleged
defects in either manufacturing or design; the question of what counts as a
“product” to which strict liability attaches cuts across both of those
categories.
4. This won’t hurt a bit. In Magrine v. Krasnica, 227 A.2d 539 (N.J.
Super. App. Div. 1967), the plaintiff was injured when her dentist tried to
use a hypodermic needle to inject a local anesthetic behind her rear tooth.
The needle broke off in the plaintiff’s gum. She sued the dentist to recover
for her resulting injuries. The parties stipulated that the needle broke as a
result of a latent defect it contained and that the dentist had committed no
acts of negligence; the plaintiff’s theories of liability sounded in strict
products liability, breach of warranty, and breach of contract. The trial court
gave judgment as a matter of law to the dentist:
[I]n all of our recent cases strict liability was imposed (except with
respect to a retail dealer) upon those who were in “a better position”
in the sense that they created the danger (in making the article) or
possessed a better capacity or expertise to control, inspect and
discover the defect than the party injured. In these respects the dentist
here was in no better position than plaintiff. He neither created the
defect nor possessed any better capacity or expertise to discover or
correct it than she. . . .
Plaintiff also invokes the policy consideration of “spreading of
the risks” — the concept which suggests that defendant could cover
his liability by insurance, or he could be held harmless by impleading
his supplier or manufacturer. The “risk distributing theory” is a
relevant consideration. But again, we must appreciate the context in
which it has been applied in our cases. In [prior cases] it was
considered in holding liable the manufacturer or lessor, who put the
goods in the stream of commerce. Such a party may fairly be
assumed to have substantial assets and volume of business, and a
large area of contacts over which the risk can be widely spread. It is
the “large scale” enterprise which should bear the loss. The impact of
liability upon such a defendant is miniscule in comparison with that
of an individual dentist or physician. His means of “spreading the
risk” could be by insurance or impleading his supplier or
manufacturer. “Malpractice” insurance, however, does not cover
implied warranty unless the policy “expressly covers contract
claims.”
So, here, if the dentist or physician were to obtain insurance
covering strict liability for equipment failure, the risk would be
spread upon his patients by way of increased fees. Can anyone
gainsay the fact that medical and dental costs, and insurance therefor,
are already bearing hard there? Witness the constant cry over
increasing medical surgical insurance premiums in New Jersey. As a
matter of principle, the spreading of losses to their patients subverts,
rather than supports, the policy consideration that the loss should be
imposed on those best able to withstand it, i.e., the manufacturer or
other entity which puts the article into the stream of commerce. The
“risk distribution” theory has some weight, but not nearly enough
when laid beside other more basic considerations. . . .
We must consider, also, the consequences if we were to adopt the
rule of strict liability here. The same liability, in principle, should
then apply to any user of a tool, other equipment or any article which,
through no fault of the user, breaks due to a latent defect and injures
another. It would apply to any physician, artisan or mechanic and to
any user of a defective article — even to a driver of a defective
automobile. In our view, no policy consideration positing strict
liability justifies application of the doctrine in such cases. No more
should it here.
The court of appeals affirmed, concluding that “the imposition of

liability on the defendant dentist cannot be justified on the basis of any of
the accepted policies which underlie the doctrine of strict liability as it is
presently understood.” Botter, J., dissented:
As between an innocent patient and a dentist who causes injury by

using a defective instrument the law should require the loss to be
borne by the dentist, even if he is not negligent. . . . The dentist chose
the instrument. The dentist is in a better position to know and prove
the identity of the manufacturer or distributor. If he cannot, the
patient should not be denied recovery on that account. The dentist
should also know the quality of the instrument and the reliability of
his source of supply. This rule may encourage greater caution in
purchasing equipment and examining for defects.
Shifting the loss from A to B may not produce a net gain for
society as a whole, but distribution of the loss does. Liability
insurance is recognized as a means of distributing losses among the
group involved in risk-producing activity. . . . It is pointless to say
that those who purchase goods should not be compelled to pay an
item of cost for insurance to protect others. The protection is for the
whole group. No one knows which consumer will be injured. The
cost paid by each consumer assures his own satisfaction of a
judgment if he gets one. The fact is that through the cost of goods and
services consumers today do pay indirectly for insurance covering
losses caused by the negligent activities of their suppliers. If this is
just, granting consumer protection against defective products cannot
be unjust.
5. Exact and inexact sciences. In Newmark v. Gimbel’s Inc., 258 A.2d

697 (N.J. 1969), the plaintiff was a customer at the defendant’s hair-styling
salon. She requested a “permanent wave.” The defendant’s employee
applied a solution called “Helene Curtis Candle Wave” to the plaintiff’s
hair. The plaintiff soon began to complain of a burning sensation. That
evening her forehead began to turn red and large amounts of her hair fell
out. Several days later a dermatologist diagnosed the plaintiff with
dermatitis of the scalp caused by the permanent wave solution. The plaintiff
brought suit alleging negligence and also claiming that the permanent wave
solution was defective and that the defendant was strictly liable for breach
of implied warranty. The jury found no negligence, and the trial court
dismissed the strict liability claim on the ground that the defendant’s salon
had been providing a service rather than a product to the plaintiff. The New
Jersey Supreme Court reversed and remanded for a new trial:
Having in mind the nature of a permanent wave operation, we find

that the distinction between a sale and the rendition of services is a
highly artificial one. If the permanent wave lotion were sold to Mrs.
Newmark by defendants for home consumption or application or to
enable her to give herself the permanent wave, unquestionably an
implied warranty of fitness for that purpose would have been an
integral incident of the sale. Basically defendants argue that if, in
addition to recommending the use of a lotion or other product and
supplying it for use, they applied it, such fact (the application) would
have the effect of lessening their liability to the patron by eliminating
warranty and by limiting their responsibility to the issue of
negligence. There is no just reason why it should. On the contrary by
taking on the administration of the product in addition to
recommending and supplying it, they might increase the scope of
their liability, if the method of administration were improper (a result
not suggested on this appeal because the jury found no negligence). . .
.
[W]e agree with the Appellate Division that an implied warranty
of fitness of the products used in giving the permanent wave exists
with no less force than it would have in the case of a simple sale.
Obviously in permanent wave operations the product is taken into
consideration in fixing the price of the service. The no-separate-
charge argument puts excessive emphasis on form and downgrades
the overall substance of the transaction. If the beauty parlor operator
bought and applied the permanent wave solution to her own hair and
suffered injury thereby, her action in warranty or strict liability in tort
against the manufacturer-seller of the product clearly would be
maintainable because the basic transaction would have arisen from a
conventional type of sale. It does not accord with logic to deny a
similar right to a patron against the beauty parlor operator or the
manufacturer when the purchase and sale were made in anticipation
of and for the purpose of use of the product on the patron who would
be charged for its use. Common sense demands that such patron be
deemed a consumer as to both manufacturer and beauty parlor
operator.
What is the distinction between Newmark v. Gimbel’s Inc. and Magrine

v. Krasnica (the NL case where the patient sued her dentist when his needle
broke off in her mouth)?
6. Sellers and non-sellers. In each of the following cases, assess
whether the defendant should be considered a “seller” and thus held strictly
liable for defects in the products at issue.
a. In Keen v. Dominick’s Finer Foods, Inc., 364 N.E.2d 502 (Ill. App.
1977), the plaintiff was pushing a shopping cart in a Dominick’s
grocery store when the cart inexplicably tipped over; she was hurt
when she tried to stop it from overturning. She sued Dominick’s on a
theory of strict products liability, claiming that the cart was defective.
b. In Peterson v. Lou Bachrodt Chevrolet Co., 329 N.E.2d 785 (Ill.
1975), the plaintiff’s decedent was killed when she was run over by a
six-year-old automobile that had been purchased from the defendant’s
used-car dealership. The plaintiff brought suit against the dealership
on theories of strict products liability, alleging that the accident
resulted from various defects in the car’s brakes that were present
when the car left the dealer’s control.
c. In Nutting v. Ford Motor Co., 584 N.Y.S.2d 653 (App. Div. 1992),
Hewlett-Packard, the computer maker, annually bought thousands of
cars for its employees to use, then auctioned them off about a year
later. The plaintiff bought one of the HP cars at an auction, then was
injured when it stalled on the highway. She sued Hewlett-Packard on
theories of strict products liability. What result? What result in a
similar claim against the auctioneer?
7. Defective enchilada. In Mexicali Rose v. Superior Court, 822 P.2d

1292 (Cal. 1992), the plaintiff was injured when he swallowed a one-inch
bone contained in a chicken enchilada he was served at the defendant’s
restaurant. He sued on theories of negligence, breach of implied warranty,
and strict liability. The basis of the latter claim was Restatement Second of
Torts §402A, comment i, which calls for strict liability when food is
“dangerous beyond that which would be contemplated by the ordinary
consumer who purchases it, with the ordinary knowledge common to the
community as to its characteristics.” The trial court dismissed the claims,
relying on Mix v. Ingersoll Candy Co., 59 P.2d 144 (Cal. 1936), the leading
California case on liability for injuries caused by food. In that case the court
had held that restaurant owners were strictly liable for damage caused by
“foreign” substances in their food such as insects or glass, but generally
could not be held liable for injuries caused by substances “natural” to food,
such as bones. The plaintiff in Mexicali Rose argued that the Mix rule was
arbitrary and urged that it be replaced by a test asking whether a reasonable
consumer would have expected to find the substance — natural or
otherwise — in the food. The California Supreme Court agreed that the
legal test should be revised to depend on the consumer’s expectations, but
in applying that test the court continued to adhere to the distinction between
foreign and natural substances. It therefore affirmed the dismissal of the
plaintiff’s strict liability claim:
If the injury-producing substance is natural to the preparation of the
food served, it can be said that it was reasonably expected by its very
nature and the food cannot be determined unfit or defective. A
plaintiff in such a case has no cause of action in strict liability or
implied warranty. If, however, the presence of the natural substance is
due to a restauranteur’s failure to exercise due care in food
preparation, the injured patron may sue under a negligence theory.
Mosk, J., submitted an unappetizing dissent:
The issue presented by this case is largely semantic: what exactly do

we mean when we say an object is “foreign to” or “natural to” a dish?
“Natural to” surely cannot include all natural material. Salmonella is
natural and feces are natural, but their presence in food surely makes
the food unfit for consumption. What about a hamburger made out of
chopped rat flesh? Natural food, certainly, but my colleagues would
not find such a meal fit for consumption in warranty terms. So what
does the term “natural to” mean? I suspect it means that any
consumer should anticipate finding the object in the meal. In other
words, the object should reasonably be anticipated. When we add, as
the majority opinion does, that “natural” means natural to the dish as
served, this conclusion becomes inescapable.
The majority offered this reply in a footnote:
Unfortunately, [the dissenters] misrepresent the scope and application

of our holding. The term “natural” refers to bones and other
substances natural to the product served, and does not encompass
substances such as mold, botulinus bacteria or other substances (like
rat flesh or cow eyes) not natural to the preparation of the product
served.
8. Harm caused by food. As noted in the Restatement excerpts earlier in

this chapter, food was the first area where courts traditionally applied the
sort of strict liability now associated generally with products, usually using
a theory of implied warranty. (Why might foreign substances in food be a
natural candidate for strict liability?) A majority of jurisdictions currently
impose strict liability on providers of food for any foreign matter found in
it; if a plaintiff is injured by a substance in the food that might be
considered “natural,” the question typically becomes whether the diner
reasonably should have expected to find the substance in the food.
9. Horribile visu (problem). In Doyle v. Pillsbury Co., 476 So. 2d 1271
(Fla. 1985), the plaintiff’s husband opened a can of Green Giant peas
distributed by the defendant; the plaintiff looked into the can and observed a
large insect floating on the surface of its contents. She recoiled in alarm, fell
over a chair, and suffered various injuries. She sued Pillsbury to recover for
her injuries. What result?
C. DESIGN DEFECTS

§1, comment a. History. Questions of design defects and defects based
on inadequate instructions or warnings arise when the specific product unit
conforms to the intended design but the intended design itself, or its sale
without adequate instructions or warnings, renders the product not
reasonably safe. If these forms of defect are found to exist, then every unit
in the same product line is potentially defective. Imposition of liability for
design defects and for defects based on inadequate instructions or warnings
was relatively infrequent until the late 1960s and early 1970s. A number of
restrictive rules made recovery for such defects, especially design defects,
difficult to obtain. As these rules eroded, courts sought to impose liability
without fault for design defects and defects due to inadequate instructions
or warnings under the general principles of §402A of the Restatement,
Second, of Torts. However, it soon became evident that §402A, created to
deal with liability for manufacturing defects, could not appropriately be
applied to cases of design defects or defects based on inadequate
instructions or warnings. A product unit that fails to meet the
manufacturer’s design specifications thereby fails to perform its intended
function and is, almost by definition, defective. However, when the product
unit meets the manufacturer’s own design specifications it is necessary to
go outside those specifications to determine whether the product is
defective.
Sections 2(b) and 2(c) recognize that the rule developed for
manufacturing defects is inappropriate for the resolution of claims of
defective design and defects based on inadequate instructions or warnings.
These latter categories of cases require determinations that the product
could have reasonably been made safer by a better design or instruction or
warning. Sections 2(b) and 2(c) rely on a reasonableness test traditionally
used in determining whether an actor has been negligent. Nevertheless,
many courts insist on speaking of liability based on the standards described
in §§2(b) and 2(c) as being “strict.”
Several factors help to explain this rhetorical preference. First, in many
design defect cases, if the product causes injury while being put to a
reasonably foreseeable use, the seller is held to have known of the risks that
foreseeably attend such use. Second, some courts have sought to limit the
defense of comparative fault in certain products liability contexts. In
furtherance of this objective, they have avoided characterizing the liability
test as based in negligence, thereby limiting the effect of comparative or
contributory fault. Third, some courts are concerned that a negligence
standard might be too forgiving of a small manufacturer who might be
excused for its ignorance of risk or for failing to take adequate precautions
to avoid risk. . . . The concept of strict liability, which focuses on the
product rather than the conduct of the manufacturer, may help make the
point that a defendant is held to the expert standard of knowledge available
to the relevant manufacturing community at the time the product was
manufactured. Finally, the liability of nonmanufacturing sellers in the
distributive chain is strict. It is no defense that they acted reasonably and
did not discover a defect in the product, be it manufacturing, design, or
failure to warn.
Thus, “strict products liability” is a term of art that reflects the judgment
that products liability is a discrete area of tort law which borrows from both
negligence and warranty. It is not fully congruent with classical tort or
contract law. Rather than perpetuating confusion spawned by existing
doctrinal categories, §§1 and 2 define the liability for each form of defect in
terms directly addressing the various kinds of defects. As long as these
functional criteria are met, courts may utilize the terminology of
negligence, strict liability, or the implied warranty of merchantability, or
simply define liability in the terms set forth in the black letter. . . .
§2, comment a. Rationale. . . . In contrast to manufacturing defects,
design defects and defects based on inadequate instructions or warnings are
predicated on a different concept of responsibility. In the first place, such
defects cannot be determined by reference to the manufacturer’s own design
or marketing standards because those standards are the very ones that
plaintiffs attack as unreasonable. Some sort of independent assessment of
advantages and disadvantages, to which some attach the label “risk-utility
balancing,” is necessary. Products are not generically defective merely
because they are dangerous. Many product-related accident costs can be
eliminated only by excessively sacrificing product features that make
products useful and desirable. Thus, the various trade-offs need to be
considered in determining whether accident costs are more fairly and
efficiently borne by accident victims, on the one hand, or, on the other hand,
by consumers generally through the mechanism of higher product prices
attributable to liability costs imposed by courts on product sellers.
Subsections (b) and (c), which impose liability for products that are
defectively designed or sold without adequate warnings or instructions and
are thus not reasonably safe, achieve the same general objectives as does
liability predicated on negligence. The emphasis is on creating incentives
for manufacturers to achieve optimal levels of safety in designing and
marketing products. Society does not benefit from products that are
excessively safe — for example, automobiles designed with maximum
speeds of 20 miles per hour — any more than it benefits from products that
are too risky. Society benefits most when the right, or optimal, amount of
product safety is achieved. From a fairness perspective, requiring individual
users and consumers to bear appropriate responsibility for proper product
use prevents careless users and consumers from being subsidized by more
careful users and consumers, when the former are paid damages out of
funds to which the latter are forced to contribute through higher product
prices.
In general, the rationale for imposing strict liability on manufacturers
for harm caused by manufacturing defects does not apply in the context of
imposing liability for defective design and defects based on inadequate
instruction or warning. Consumer expectations as to proper product design
or warning are typically more difficult to discern than in the case of a
manufacturing defect. Moreover, the element of deliberation in setting
appropriate levels of design safety is not directly analogous to the setting of
levels of quality control by the manufacturer. When a manufacturer sets its
quality control at a certain level, it is aware that a given number of products
may leave the assembly line in a defective condition and cause injury to
innocent victims who can generally do nothing to avoid injury. The
implications of deliberately drawing lines with respect to product design
safety are different. A reasonably designed product still carries with it
elements of risk that must be protected against by the user or consumer
since some risks cannot be designed out of the product at reasonable cost. . .
.
Dawson v. Chrysler Corp.

630 F.2d 950 (3d Cir. 1980)
ADAMS, Circuit Judge. — This appeal from a jury verdict and entry of
judgment in favor of the plaintiffs arises out of a New Jersey automobile
accident in which a police officer was seriously injured. The legal questions
in this diversity action [governed by New Jersey law] are relatively straight-
forward. The public policy questions, however, which are beyond the
competence of this Court to resolve and with which Congress ultimately
must grapple, are complex and implicate national economic and social
concerns. . . .
On September 7, 1974, Richard F. Dawson, while in the employ of the
Pennsauken Police Department, was seriously injured as a result of an
automobile accident that occurred in Pennsauken, New Jersey. As Dawson
was driving on a rain-soaked highway, responding to a burglar alarm, he
lost control of his patrol car, a 1974 Dodge Monaco. The car slid off the
highway, over a curb, through a small sign, and into an unyielding steel
pole that was fifteen inches in diameter. The car struck the pole in a
backwards direction at a forty-five degree angle on the left side of the
vehicle; the point of impact was the left rear wheel well. As a result of the
force of the collision, the vehicle literally wrapped itself around the pole.
The pole ripped through the body of the car and crushed Dawson between
the seat and the “header” area of the roof, located just above the windshield.
The so-called “secondary collision” of Dawson with the interior of the
automobile dislocated Dawson’s left hip and ruptured his fifth and sixth
cervical vertebrae. As a result of the injuries, Dawson is now a
quadriplegic. He has no control over his body from the neck down, and
requires constant medical attention. . . .
The plaintiffs’ claims were based on theories of strict products liability
and breach of implied warranty of fitness. They alleged that the patrol car
was defective because it did not have a full, continuous steel frame
extending through the door panels, and a cross-member running through the
floor board between the posts located between the front and rear doors of
the vehicle. Had the vehicle been so designed, the Dawsons alleged, it
would have “bounced” off the pole following relatively slight penetration
by the pole into the passenger space.
Expert testimony was introduced by the Dawsons to prove that the
existing frame of the patrol car was unable to withstand side impacts at
relatively low speed, and that the inadequacy of the frame permitted the
pole to enter the passenger area and to injure Dawson. The same experts
testified that the improvements in the design of the frame that the plaintiffs
proposed were feasible and would have prevented Dawson from being
injured as he was. According to plaintiffs’ expert witnesses, a continuous
frame and cross-member would have deflected the patrol car away from the
pole after a minimal intrusion into the passenger area and, they declared,
Dawson likely would have emerged from the accident with only a slight
injury.
In response, Chrysler argued that it had no duty to produce a
“crashproof” vehicle, and that, in any event, the patrol car was not
defective. Expert testimony for Chrysler established that the design and
construction of the 1974 Dodge Monaco complied with all federal vehicle
safety standards, and that deformation of the body of the vehicle is desirable
in most crashes because it absorbs the impact of the crash and decreases the
rate of deceleration on the occupants of the vehicle. Thus, Chrysler’s
experts asserted that, for most types of automobile accidents, the design
offered by the Dawsons would be less safe than the existing design. They
also estimated that the steel parts that would be required in the model
suggested by the Dawsons would have added between 200 and 250 pounds
to the weight, and approximately $300 to the price of the vehicle. It was
also established that the 1974 Dodge Monaco’s unibody construction was
stronger than comparable Ford and Chevrolet vehicles. . . .
The jury awarded Mr. Dawson $2,064,863.19 for his expenses,
disability, and pain and suffering, and granted Mrs. Dawson $60,000.00 for
loss of consortium and loss of services. After the district court entered
judgment, Chrysler moved for judgment notwithstanding the verdict or,
alternatively for a new trial. The court denied both motions. The Dawsons
then requested pre-judgment interest of eight percent per annum of the
damages award, accruing from the time suit was instituted to the date of the
judgment. The trial judge granted the request in the amounts of $388,012.53
for Mr. Dawson and $11,274.72 for Mrs. Dawson. . . .
[T]he controlling issue in the case is whether the jury could be
permitted to find, under the law of New Jersey, that the patrol car was
defective. In Suter v. San Angelo Foundry & Machine Co., 406 A.2d 140,
153 (N.J. 1979), the New Jersey Supreme Court summarized its state’s law
of strict liability as follows:
If at the time the seller distributes a product, it is not reasonably fit,

suitable and safe for its intended or reasonably foreseeable purposes
so that users or others who may be expected to come in contact with
the product are injured as a result thereof, then the seller shall be
responsible for the ensuing damages.
The determination whether a product is “reasonably fit, suitable and

safe for its intended or reasonably foreseeable purposes” is to be informed
by what the New Jersey Supreme Court has termed a “risk/utility analysis.”
Cepeda v. Cumberland Engineering Co., Inc., 386 A.2d 816, 825-29 (N.J.
1978). Under this approach, a product is defective if “a reasonable person
would conclude that the magnitude of the scientifically perceivable danger
as it is proved to be at the time of trial outweighed the benefits of the way
the product was so designed and marketed.” Id. at 826. The court in
Cepeda, relying heavily on the article by Dean John Wade, referred to in
Suter, identified seven factors that might be relevant to this balancing
process:
(1) The usefulness and desirability of the product, its utility to the user,
and to the public as a whole.
(2) The safety aspects of the product, the likelihood that it will cause
injury, and the probable seriousness of the injury.
(3) The availability of a substitute product which would meet the same
need and not be as unsafe.
(4) The manufacturer’s ability to eliminate the unsafe character of the
product without impairing its usefulness or making it too expensive
to maintain its utility.
(5) The user’s ability to avoid danger by the exercise of care in the use
of the product.
(6) The user’s anticipated awareness of the dangers inherent in the
product and their avoidability, because of general public knowledge
of the obvious condition of the product, or of the existence of
suitable warnings or instructions.
(7) The feasibility, on the part of the manufacturer, of spreading the loss
by setting the price of the product or carrying liability insurance.
386 A.2d at 826-27 (quoting Wade, On the Nature of Strict Tort Liability for
Products, 44 Miss. L.J. 825, 837-38 (1973)). The court suggested that the
trial judge first determine whether a balancing of these factors precludes
liability as a matter of law. If it does not, then the judge is to incorporate
into the instructions any factor for which there was presented specific proof
and which might be deemed relevant to the jury’s consideration of the
matter.
Chrysler maintains that, under these standards, the district court erred in
submitting the case to the jury because the Dawsons failed, as a matter of
law, to prove that the patrol car was defective. Specifically, it insists that the
Dawsons did not present sufficient evidence from which the jury reasonably
might infer that the alternative design that they proffered would be safer
than the existing design, or that it would be cost effective, practical, or
marketable. In short, Chrysler urges that the substitute design would be less
socially beneficial than was the actual design of the patrol car. In support of
its argument, Chrysler emphasizes that the design of the 1974 Dodge
Monaco complied with all of the standards authorized by Congress in the
National Traffic and Motor Vehicle Safety Act of 1966.
Compliance with the safety standards promulgated pursuant to the
National Traffic and Motor Vehicle Safety Act, however, does not relieve
Chrysler of liability in this action. For, in authorizing the Secretary of
Transportation to enact these standards, Congress explicitly provided,
“Compliance with any Federal motor vehicle safety standard issued under
this subchapter does not exempt any person from any liability under
common law.” 15 U.S.C. §1397(c) (1976). Thus, consonant with this
congressional directive, we must review Chrysler’s appeal on the question
of the existence of a defect under the common law of New Jersey that is set
forth above.
Our examination of the record persuades us that the district court did
not err in denying Chrysler’s motion for judgment notwithstanding the
verdict. . . . [The Dawsons introduced into evidence] reports of tests
conducted for the United States Department of Transportation, which
indicated that, in side collisions with a fixed pole at twenty-one miles per
hour, frame improvements similar to those proposed by the experts
presented by the Dawsons reduced intrusion into the passenger area by fifty
percent, from sixteen inches to eight inches. The study concluded that the
improvements, “in conjunction with interior alterations, demonstrated a
dramatic increase in occupant protection.” There was no suggestion at trial
that the alternative design recommended by the Dawsons would not comply
with federal safety standards. On cross-examination, Chrysler’s attorney did
get the Dawsons’ expert witnesses to acknowledge that the alternative
design would add between 200 and 250 pounds to the vehicle and would
cost an additional $300 per car. The Dawsons’ experts also conceded that
the heavier and more rigid an automobile, the less able it is to absorb energy
upon impact with a fixed object, and therefore the major force of an
accident might be transmitted to the passengers. . . .
On the basis of the foregoing recitation of the evidence presented
respectively by the Dawsons and by Chrysler, we conclude that the record is
sufficient to sustain the jury’s determination, in response to the
interrogatory, that the design of the 1974 Monaco was defective. The jury
was not required to ascertain that all of the factors enumerated by the New
Jersey Supreme Court in Cepeda weighed in favor of the Dawsons in order
to find the patrol car defective. Rather, it need only to have reasonably
concluded, after balancing these factors, that, at the time Chrysler
distributed the 1974 Monaco, the car was “not reasonably fit, suitable and
safe for its intended or reasonably foreseeable purposes.” Suter, 406 A.2d at
149. . . .
Although we affirm the judgment of the district court, we do so with
uneasiness regarding the consequences of our decision and of the decisions
of other courts throughout the country in cases of this kind.
As we observed earlier, Congress, in enacting the National Traffic and
Motor Vehicle Safety Act, provided that compliance with the Act does not
exempt any person from liability under the common law of the state of
injury. The effect of this provision is that the states are free, not only to
create various standards of liability for automobile manufacturers with
respect to design and structure, but also to delegate to the triers of fact in
civil cases arising out of automobile accidents the power to determine
whether a particular product conforms to such standards. In the present
situation, for example, the New Jersey Supreme Court has instituted a strict
liability standard for cases involving defective products, has defined the
term “defective product” to mean any such item that is not “reasonably fit,
suitable and safe for its intended or reasonably foreseeable purposes,” and
has left to the jury the task of determining whether the product at issue
measures up to this standard.
The result of such arrangement is that while the jury found Chrysler
liable for not producing a rigid enough vehicular frame, a factfinder in
another case might well hold the manufacturer liable for producing a frame
that is too rigid. Yet, as pointed out at trial, in certain types of accidents —
head-on collisions — it is desirable to have a car designed to collapse upon
impact because the deformation would absorb much of the shock of the
collision, and divert the force of deceleration away from the vehicle’s
passengers. In effect, this permits individual juries applying varying laws in
different jurisdictions to set nationwide automobile safety standards and to
impose on automobile manufacturers conflicting requirements. It would be
difficult for members of the industry to alter their design and production
behavior in response to jury verdicts in such cases, because their response
might well be at variance with what some other jury decides is a defective
design. Under these circumstances, the law imposes on the industry the
responsibility of insuring vast numbers of persons involved in automobile
accidents. . . .
[Affirmed.]
NOTES
1. The relevance of regulation. One of the defenses raised and rejected

in Dawson was that the manufacturer had complied with federal regulations
in designing the car. Arguments of this kind are not uncommon in products
liability cases; they require courts to decide whether a plaintiff’s common
law claims have been “preempted” by federal law — a question of statutory
interpretation. For a more recent example, see the Supreme Court’s decision
in Wyeth v. Levine, 555 U.S. 555 (2009). The plaintiff received an
intravenous injection of an anti-nausea drug made by Wyeth. She contracted
gangrene as a result, and her arm was amputated. She claimed that Wyeth
should have warned of this risk. Wyeth pointed out that the drug’s labeling
had been approved the Food and Drug Administration. The Court held that
this was no bar to the plaintiff’s claims; the majority found no conflict
between the warning sought by the plaintiff and the warnings required by
federal law, and no evidence of a Congressional purpose to preempt state
law.
Questions of statutory interpretation to one side, what approach (or mix
of approaches) makes more sense: regulation of product design by tort suits
or by federal agencies?
2. Consumer expectations. In Green v. Smith & Nephew, 629 N.W.2d
727 (Wis. 2001), the plaintiff was a worker at a hospital who developed a
mysterious rash and other symptoms of an allergy. She finally determined
that she had developed an allergy to latex, and concluded that the allergy
had been brought about by powdered latex gloves she wore at work, which
were made by the defendant. (Her claim was not that the gloves triggered a
pre-existing allergy; it was that proteins in the gloves created a new allergy
by their interaction with her immune system.) She brought a suit alleging
that the gloves were defectively designed. The trial court instructed the jury
as follows:
A product is said to be defective when it is in a condition not

contemplated by the ordinary user or consumer which is
unreasonably dangerous to the ordinary user or consumer, and the
defect arose out of design, manufacture or inspection while the article
was in the control of the manufacturer. A defective product is
unreasonably dangerous to the ordinary user or consumer when it is
dangerous to an extent beyond that which would be contemplated by
the ordinary user or consumer possessing the knowledge of the
product’s characteristics which were common to the community. A
product is not defective if it is safe for normal use.
The trial judge added:

Lack of knowledge on the part of [S & N] that proteins in natural
rubber latex may sensitize and cause allergic reactions to some
individuals is not a defense to the claims made by the plaintiff
[Green] in this action. A manufacturer is responsible for harm caused
by a defective and unreasonably dangerous product even if the
manufacturer had no knowledge or could [not] have known of the
risk of harm presented by the condition of the product.
The jury brought in a verdict for the plaintiff and awarded her $1 million.
The Wisconsin Supreme Court affirmed, and made clear its rejection of the
Restatement (Third) of Products Liability:
Comment a to §2 of the Restatement (Third) of Torts explains that

2(b) incorporates an element of foreseeability of risk of harm and a
risk-benefit test. As such, 2(b) departs from the consumer-
contemplation test set forth in the Restatement (Second) of Torts
402A (1965), and blurs the distinction between strict products
liability claims and negligence claims. See Morden v. Continental
AG, 611 N.W.2d 659 (Wis. 2000) (explaining that under Wisconsin
law, foreseeability of the risk of harm is an element of negligence, not
strict products liability); Meyer v. Val Lo Will Farms, Inc., 111
N.W.2d 500 (Wis. 1961) (explaining that negligence claims require a
risk-benefit analysis). In this sense, for the reasons explained above,
2(b) is fundamentally at odds with current Wisconsin products
liability law.
But we are more troubled by the fact that 2(b) sets the bar higher
for recovery in strict products liability design defect cases than in
comparable negligence cases. Section 2(b) does not merely
incorporate a negligence standard into strict products liability law.
Instead, it adds to this standard the additional requirement that an
injured consumer seeking to recover under strict products liability
must prove that there was a “reasonable alternative design” available
to the product’s manufacturer. Thus, rather than serving the policies
underlying strict products liability law by allowing consumers to
recover for injuries caused by a defective and unreasonably
dangerous product without proving negligence on the part of the
product’s manufacturer, 2(b) increases the burden for injured
consumers not only by requiring proof of the manufacturer’s
negligence, but also by adding an additional — and considerable —
element of proof to the negligence standard. This court will not
impose such a burden on injured persons.
3. Reasonable foresight. As the excerpts from Green v. Smith & Nephew

show, there are two competing traditions in the law of liability for design
defects: liability based on a product’s failure to comport with a reasonable
consumer’s expectations, and liability based on a product’s failure to satisfy
a test that balances the risks and utility of a product’s design. Green takes
the former approach; Dawson v. Chrysler Corp. takes the latter. The strong
trend of authority now is toward the sort of risk-utility balancing endorsed
in §2(b) of the Restatement (Third) of Products Liability. Which approach
seems more attractive?
Green v. Smith & Nephew also raises another problem: the importance
of reasonable foresight when holding a defendant liable. Again the trend of
the decisions is contrary to Wisconsin’s position. From the Restatement
(Third) of Products Liability, §2, comment a:
Most courts agree that, for the liability system to be fair and efficient,
the balancing of risks and benefits in judging product design and
marketing must be done in light of the knowledge of risks and risk-
avoidance techniques reasonably attainable at the time of distribution.
To hold a manufacturer liable for a risk that was not foreseeable when
the product was marketed might foster increased manufacturer
investment in safety. But such investment by definition would be a
matter of guesswork. Furthermore, manufacturers may persuasively
ask to be judged by a normative behavior standard to which it is
reasonably possible for manufacturers to conform. For these reasons,
Subsections (b) and (c) speak of products being defective only when
risks are reasonably foreseeable.
4. Design defects: “Strict” liability or negligence? Notice that “strict

liability” for design defects often may be a misleading usage. In
jurisdictions that employ a risk-utility balancing test, the standard for
liability tends to resemble the familiar inquiry into negligence; notice its
resemblance to the Hand formula. As noted in the Restatement excerpts at
the beginning of this section, however, the notion of strict liability for
defective designs does retain bite in some collateral respects. The retail
seller of a product found to have a design defect usually can be held liable
for the damage it causes regardless of whether the retailer had a hand in the
design or was careful in deciding whether to sell it. In many jurisdictions
liability for defective products now is regulated by statute, and the statutory
schemes vary in these and other details. Do the other standards that some
jurisdictions use for assessing claimed design defects — a “consumer
expectations” test, for example — bear a greater resemblance to traditional
strict liability or to liability for negligence?
The law of liability for design defects contains a number of other
distinctions that courts in the past have sometimes regarded as decisive but
that now are usually just considered factors for juries to consider. Whether a
product’s design reflected the “state of the art” when it was made is one
example; this consideration may be relevant both to questions of what is
technically feasible and to what is customary. Another example is whether
the danger created by a product’s design was “open and obvious”: this once
was considered by many courts a reason for denying recovery as a matter of
law, but courts now generally regard it as one factor among many for a jury
to evaluate in deciding whether a product’s design is unreasonably
dangerous.
5. Volkswagens. In Dreisonstok v. Volkswagenwerk A.G., 489 F.2d 1066
(4th Cir. 1974), the plaintiff was a passenger in a Volkswagen “microbus”
that crashed into a telephone pole, causing her various injuries. She brought
a suit against Volkswagen claiming that the bus was negligently designed
and thus not crashworthy. The case was tried before a judge, who found
Volkswagen liable for failing to furnish the vehicle with “sufficient energy-
absorbing materials or devices or ‘crush space,’ if you will, so that at 40
miles an hour the integrity of the passenger compartment would not be
violated.” The court of appeals reversed:
The defendant’s vehicle, described as “a van type multipurpose

vehicle,” was of a special type and particular design. This design was
uniquely developed in order to provide the owner with the maximum
amount of either cargo or passenger space in a vehicle inexpensively
priced and of such dimensions as to make possible easy
maneuverability. To achieve this, it advanced the driver’s seat
forward, bringing such seat in close proximity to the front of the
vehicle, thereby adding to the cargo or passenger space. This, of
course, reduced considerably the space between the exact front of the
vehicle and the driver’s compartment. All of this was readily
discernible to any one using the vehicle; in fact, it was, as we have
said, the unique feature of the vehicle. The usefulness of the design is
vouchsafed by the popularity of the type. It was of special utility as a
van for the transportation of light cargo, as a family camper, as a
station wagon and for use by passenger groups too large for the
average passenger car. . . . There was no evidence in the record that
there was any practical way of improving the “crashability” of the
vehicle that would have been consistent with the peculiar purposes of
its design.
What is the distinction between Dreisonstok v. Volkswagenwerk A.G.

and Dawson v. Chrysler Corp.?
6. Black Talons. In McCarthy v. Olin Corp., 119 F.3d 148 (2d Cir.
1997), a man named Colin Ferguson boarded a Long Island Railroad train
departing from New York City and opened fire on the passengers. Six
people were killed; nineteen more were injured. Ferguson was armed with a
semiautomatic handgun loaded with Winchester “Black Talon” bullets. The
Black Talon is a hollow-point bullet designed to bend upon impact into six
ninety-degree angle razor-sharp petals or “talons” that increase the
wounding power of the bullet by tearing tissue and bone. Olin had pulled
the Black Talon from the public market in late 1993 and restricted its sales
to law enforcement personnel. Ferguson allegedly purchased the
ammunition before that time. Survivors of two of the passengers who were
killed in the attack sued Olin, alleging among other things that the company
should be held strictly liable because the bullets were defectively designed.
The district judge granted Olin’s motion to dismiss the complaint for failing
to state a claim upon which relief can be granted. The court of appeals
affirmed:
To state a cause of action for a design defect, plaintiffs must allege

that the bullet was unreasonably dangerous for its intended use. “[A]
defectively designed product is one which, at the time it leaves the
seller’s hands, is in a condition not reasonably contemplated by the
ultimate consumer.” Robinson v. Reed-Prentice Division of Package
Mach. Co., 403 N.E.2d 440, 443 (N.Y. 1980). “This rule, however, is
tempered by the realization that some products, for example knives,
must by their very nature be dangerous in order to be functional.” Id.
at 443. The very purpose of the Black Talon bullet is to kill or cause
severe wounding. Here, plaintiffs concede that the Black Talons
performed precisely as intended by the manufacturer and Colin
Ferguson. . . .
Appellants next argue that under the risk/utility test analysis
applied by New York courts, appellee should be held strictly liable
because the risk of harm posed by the Black Talons outweighs the
ammunition’s utility. The district court properly held that the
risk/utility test is inapplicable “because the risks arise from the
function of the product, not any defect in the product.” “There must
be ‘something wrong’ with a product before the risk/utility analysis
may be applied in determining whether the product is unreasonably
dangerous or defective.” Addison v. Williams, 546 So.2d 220, 224
(La. Ct. App. 1989).
The purpose of risk/utility analysis is to determine whether the
risk of injury might have been reduced or avoided if the manufacturer
had used a feasible alternative design. However, the risk of injury to
be balanced with the utility is a risk not intended as the primary
function of the product. Here, the primary function of the Black Talon
bullets was to kill or cause serious injury. There is no reason to search
for an alternative safer design where the product’s sole utility is to
kill and maim. Accordingly, we hold that appellants have failed to
state a cause of action under New York strict products liability law.
What is the analogy between Dreisonstok v. Volkswagenwerk A.G. and

McCarthy v. Olin Corp.? Both are cases of no liability; can you nevertheless
articulate some possible distinctions between them?
7. Exploding cigars. The Third Restatement suggests a requirement that
a plaintiff demonstrate the existence of a “reasonable alternative design”
before liability is imposed, but it leaves open the possibility that liability
may be found without an alternative design if a product’s costs so outweigh
its “negligible social utility” that no rational person would choose to use it.
The example offered is an exploding cigar purchased from a novelty shop
that sets the plaintiff’s beard on fire. §2, Illus. 5. Can that case effectively
be distinguished from McCarthy v. Olin Corp.?
8. Causation in design defect cases. In Price v. Blaine Kern Artista, Inc.,
893 P.2d 367 (Nev. 1995), the defendant was a manufacturer of oversized
masks that covered the user’s head and bore caricatures of celebrities. The
plaintiff, Price, was an entertainer at Harrah’s Club in Reno who was
injured while wearing a caricature mask of then-President George H. W.
Bush. The plaintiff’s evidence was that a patron at the club pushed him
down from behind, causing the weight of the mask to strain and injure his
neck as he fell to the ground. His suit alleged that the mask was defectively
designed because it lacked a safety harness to support his head and neck.
The defendant claimed that the push from the unknown assailant was a
superseding cause that insulated it from liability. The trial court gave
summary judgment to the defendant; the Nevada Supreme Court reversed:
[W]hile it is true that criminal or tortious third-party conduct

typically severs the chain of proximate causation between a plaintiff
and a defendant, the chain remains unbroken when the third party’s
intervening intentional act is reasonably foreseeable. Under the
circumstances of this case, the trier of fact could reasonably find that
[the defendant] should have foreseen the possibility or probability of
some sort of violent reaction, such as pushing, by intoxicated or
politically volatile persons, ignited by the sight of an oversized
caricature of a prominent political figure. . . . Indeed, while the
precise force that caused Price’s fall is uncertain, shortly before the
fall, an irate and perhaps somewhat confused patron of Harrah’s took
issue with the bedecked Price over Bush’s policy on abortion rights. .
. . In the final analysis, the initial cause of Price’s fall appears to be of
little consequence, considering the reasonable prospect that among
the quantity of users of BKA’s products, some of them will sooner or
later fall for any number of a variety of reasons.
9. Intervening events. In Rodriguez v. Glock, Inc., 28 F. Supp. 2d 1064

(N.D. Ill. 1998), the plaintiff’s decedent, Jose Rodriguez, was a bouncer at a
nightclub in Chicago. Late one night, Rodriguez got into an altercation at
the club with a man named Bedoya, an off-duty member of the Milwaukee
Police Department who was carrying, in a holster, his service revolver — a
handgun made by the defendant, Glock. Rodriguez grabbed Bedoya from
behind and attempted to remove the revolver from its holster. The two men
struggled over the weapon. When a third person tried to pull Rodriguez
away, the gun discharged, fatally wounding Rodriguez. His estate brought
suit against Glock, claiming the gun was defectively designed because it
lacked a “safety” — an external switch to prevent the gun from being fired
— and because it had an extremely short trigger-pull of half an inch. The
district court gave summary judgment to Glock. It concluded that a jury
might reasonably say that Rodriguez would not have been injured if the
Glock had a safety, but it nevertheless found the events leading to his death
unforeseeable by the defendant:
The facts show that there was a heated struggle between Rodriguez
and Bedoya for control of the weapon. Although it is not clear to
what extent each intended to harm the other, the potential certainly
existed. It is common knowledge that a gun is a dangerous object
with the ability to inflict great bodily harm or death. Much like a
knife, a chainsaw or a car, a gun is a product which can seriously
injure an individual, especially when the product is defective. Yet, the
law declines to hold a manufacturer liable for every injury connected
with its product. To do so would make the manufacturer an insurer of
its product, a position rejected by the Illinois Supreme Court. At
some point, the law relieves the manufacturer that created a condition
of its liability when a third party’s actions exploit the condition in a
manner which the manufacturer could not reasonably foresee. That is
the case here.
Common experience dictates that precautions are necessary to use
a handgun properly. The recklessness involved in pointing the
weapon at another human being under these circumstances, whether
it is defective or not, excuses the manufacturer as the struggle was an
independent superseding cause. The defect, if any, was merely a
condition and could not lead to Glock’s liability for Rodriguez’s
injury. Glock did not point the weapon at Rodriguez or struggle with
him over its control, and could not have reasonably anticipated that
the weapon would be used in this manner. The struggle on this
occasion was so improbable and unforeseeable that it removed any
potential liability from Glock for its own alleged negligence in
design. Accordingly, the court concludes that the fight in the case
was, as a matter of law, an intervening event which cut the causal
chain.
Is there a satisfactory distinction between Rodriguez v. Glock, Inc. and

Price v. Blaine Kern Artista, Inc.?
D. FAILURE TO WARN
American Tobacco Co. v. Grinnell

951 S.W.2d 420 (Tex. 1997)
CORNYN, J. — . . . In 1952, nineteen-year-old Wiley Grinnell began

smoking Lucky Strikes, cigarettes manufactured by the American Tobacco
Company. Almost a year later, Grinnell changed to Pall Malls, also
manufactured by American. After smoking for approximately thirty-three
years, Grinnell was diagnosed with lung cancer in July 1985. Shortly
thereafter, he filed this lawsuit. He died less than a year later. Grinnell’s
family continued this suit after his death, adding wrongful death and
survival claims. The family alleges that American failed to warn of, and
actively concealed, facts that it knew or should have known, including the
facts that Grinnell could quickly become addicted to cigarettes and that his
smoking could result in injury or death from the cancer-causing ingredients
if he used the cigarettes as American intended. They also allege that, even
though American knew or should have known that its cigarettes were
dangerous and could not be used safely, American represented to consumers
that cigarettes were not harmful, dangerous, or capable of causing injury.
[The trial court gave summary judgment to the defendants on all claims.
The court of appeals reversed, and this appeal followed.]
MARKETING DEFECT
A defendant’s failure to warn of a product’s potential dangers when

warnings are required is a type of marketing defect. The existence of a duty
to warn of dangers or instruct as to the proper use of a product is a question
of law. Generally, a manufacturer has a duty to warn if it knows or should
know of the potential harm to a user because of the nature of its product.
Nevertheless, this Court has recognized that there is no duty to warn when
the risks associated with a particular product are matters “within the
ordinary knowledge common to the community.” Joseph E. Seagram &
Sons, Inc. v. McGuire, 814 S.W.2d 385, 388 (Tex. 1991) (holding that no
legal duty exists to warn of the health risks of alcohol consumption because
such risks are common knowledge). American argues that it had no duty to
warn Grinnell of the risks associated with smoking its cigarettes because the
dangers of smoking were common knowledge when Grinnell began
smoking in 1952.
Comments i and j to Restatement section 402A incorporate common
knowledge into the analysis of whether a product is “unreasonably
dangerous” under that section. Comment i, which defines “unreasonably
dangerous,” forecloses liability against manufacturers unless a product is
dangerous to an extent beyond that which would be contemplated by the
ordinary consumer with knowledge common to the community:
Many products cannot possibly be made entirely safe for all

consumption, and any food or drug necessarily involves some risk of
harm, if only from over-consumption. . . . That is not what is meant
by “unreasonably dangerous” in this Section. The article sold must be
dangerous to an extent beyond that which would be contemplated by
the ordinary consumer who purchases it, with the ordinary knowledge
common to the community as to its characteristics. . . . Good tobacco
is not unreasonably dangerous merely because the effects of smoking
may be harmful; but tobacco containing something like marijuana
may be unreasonably dangerous.
Restatement (Second) of Torts §402A cmt. i (1965) (emphasis added).

Comment j excuses a seller from the duty to warn about dangers that are
generally known and recognized:
In order to prevent the product from being unreasonably dangerous,

the seller may be required to give directions or warning, on the
container, as to its use. . . . But a seller is not required to warn with
respect to products, or ingredients in them, which are only dangerous,
or potentially so, when consumed in excess quantity, or over a long
period of time, when the danger, or potentiality of danger, is
generally known and recognized. . . . [T]he dangers of alcoholic
beverages are an example. . . .
Id. §402A cmt. j (1965) (emphasis added).

Common knowledge, in the context of comments i and j, connotes a
general societal understanding of the risks inherent in a specific product or
class of products. Seagram, 814 S.W.2d at 388. In Seagram we also
emphasized that the standard for finding common knowledge as a matter of
law is a strict one. [The court had defined “common knowledge” as
encompassing “those facts that are so well known to the community as to be
beyond dispute.”] Thus, common knowledge is an extraordinary defense
that applies only in limited circumstances. As the court in [Brune v. Brown
Forman Corp., 758 S.W.2d 827, 830-831 (Tex. App. 1988)] noted, common
knowledge encompasses only those things “so patently obvious and so well
known to the community generally, that there can be no question or dispute
concerning their existence.” We will find common knowledge as a matter of
law only when the standard set out in Seagram is met. It is not met in all
respects here. . . .
The party asserting the common-knowledge defense must establish that
the dangers attributable to alcohol, tobacco, or other products were a matter
of common knowledge when the consumer began using the product. Based
on the summary judgment record, we hold that American established that
the general ill-effects of smoking were commonly known when Grinnell
started smoking in 1952. However, we also hold that American did not
establish that the addictive quality of cigarettes was commonly known
when Grinnell began smoking in 1952.
Regarding the general health risks associated with smoking, the
Tennessee Supreme Court held as early as 1898 that these risks were
“generally known.” Austin v. State, 48 S.W. 305, 306 (Tenn. 1898), aff’d as
modified sub nom. Austin v. Tennessee, 179 U.S. 343 (1900). On certiorari,
the United States Supreme Court observed:
[W]e should be shutting our eyes to what is constantly passing before

them were we to affect an ignorance of the fact that a belief in
[cigarettes’] deleterious effects, particularly upon young people, has
become very general, and that communications are constantly finding
their way into the public press denouncing their use as fraught with
great danger. . . .
179 U.S. at 348 (emphasis added). Other early courts also recognized the
harmful effects of smoking cigarettes. . . . Moreover, by 1962, when the
Surgeon General’s advisory committee began examining the health risks
associated with smoking, there were already more than seven thousand
publications of professional and general circulation examining the
relationship between smoking and health. . . .
We conclude that the general health dangers attributable to cigarettes
were commonly known as a matter of law by the community when Grinnell
began smoking. We cannot conclude, however, that the specific danger of
nicotine addiction was common knowledge when Grinnell began smoking.
Addiction is a danger apart from the direct physical dangers of smoking
because the addictive nature of cigarettes multiplies the likelihood of and
contributes to the smoker’s ultimate injury, in Grinnell’s case, lung cancer. .
..
Because the community’s knowledge concerning the danger of nicotine
addiction associated with cigarettes was not beyond dispute in 1952, the
Seagram standard for finding common knowledge as a matter of law has
not been met. . . . [T]he Grinnells may maintain their strict liability
marketing defect claims to the extent they are based on the addictive
qualities of cigarettes, if no other defenses defeat those claims.
The Grinnells assert that American breached its duty to warn users
about its product’s addictive nature because before January 1, 1966, the
product’s packages contained no warnings. A manufacturer is required to
give an adequate warning if it knows or should know that potential harm
may result from use of the product. In the absence of a warning, a
rebuttable presumption arises that the “user would have read and heeded
such warnings and instructions.” Magro v. Ragsdale Bros., Inc., 721 S.W.2d
832, 834 (Tex. 1986). A manufacturer may rebut the presumption with
evidence that the plaintiff did not heed whatever warnings were given, or
would not have heeded any proposed warnings. . . .
At most, the evidence relied on by American establishes that some
people warned Grinnell about the general dangers of smoking. It does not
conclusively establish that had Grinnell been warned that cigarettes were
addictive before he began smoking he would have refused to follow the
warnings. Grinnell testified at his deposition that if he had known of the
dangers associated with smoking, including addiction, he never would have
started smoking. At the very least, this testimony creates a fact issue
regarding whether Grinnell would have heeded warnings had they been
given to him before he began smoking. . . .
[Affirmed in part and reversed in part.]
HECHT, J., concurring in part and dissenting in part — . . .

For several reasons I think the Court’s view is untenable.
First: In Texas, as in most places, the law is that “[g]ood tobacco is not
unreasonably dangerous merely because the effects of smoking may be
harmful”; but tobacco containing something like marijuana may be
unreasonably dangerous.” Restatement (Second) of Torts §402A, cmt. i, at
352 (1965); see Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d
385, 388 (Tex. 1991) (following comment i). Good tobacco contains
nicotine. If plaintiffs are right that nicotine is addictive, then addiction is
merely one of the harmful effects of the tobacco itself and cannot therefore
make otherwise good tobacco unreasonably dangerous. In fact, if the agents
plaintiffs claim are addictive were removed from the tobacco, it would no
longer be “good tobacco.” One might as well smoke a maple leaf.
Second: The distinction between addiction and habituation, important in
scientific contexts, is unimportant for purposes of comment i. The two ideas
mean only one thing to smokers: it’s hard to quit. This is not a new
discovery, suddenly revealed by the Surgeon General in a 1988 report.
Almost anyone who ever smoked for any length of time and tried to stop
has found it hard; many have found it impossible. Few understood why, in
terms of psychological and biochemical body processes, but the difficulty
was surely no less real merely because it could not fully be explained. . . .
Third: The risk of addiction is subsumed in the risk of cancer and
similar health problems. Addiction is a danger at all only if the dependency
is unhealthy. Addiction to smoking is dangerous, not because it is expensive
or offensive to others, but because it increases the risk of lung cancer.
Addiction itself is never fatal, and it can be overcome. People quit smoking.
But smoking, whether because of addiction, habit, or free choice, can cause
cancer that is fatal. It is an odd rule that affords recovery of damages to a
plaintiff who says, “I smoked even though I knew I might get lung cancer,
but I never would have done it had I known I might become addicted.” . . .
Fourth: Even if addiction is a risk of smoking separate and apart from
all the other health risks that are common knowledge and were common
knowledge in 1952, and even if cigarettes are unreasonably dangerous
because of that risk, a product liability claim should be limited to damages
caused by that risk, not the risk of cancer. Yet the Court allows plaintiffs in
this case to recover just as if no one had ever suspected that smoking causes
cancer. If cigarettes are defective only because smoking may be addictive,
plaintiffs’ damages should be limited to those caused by the defect. The
Court places no such limits on plaintiffs’ recovery.
The Court says that “no expectation of safety arises with respect to
cigarettes when they are purchased.” I agree, but I do not understand why
that fact is not fatal to the present litigation. . . . I would affirm the district
court’s summary judgment on all plaintiffs’ claims.
NOTES
1. Skull & Crossbones. In Graves v. Church & Dwight, 631 A.2d 1248
(N.J. App. 1993), the plaintiff, Graves, awoke late one night with heartburn.
Recalling a remedy his grandmother once had offered for his malady, he
went to the kitchen, poured some Arm & Hammer baking soda into a glass,
filled the glass with water, and drank it. An enormous pain immediately
drove him to his hands and knees. He underwent surgery later that day; his
evidence was that the baking soda combined with his stomach acid to create
a large volume of gas that caused a rupture in his stomach. He sued the
manufacturer of the baking soda for, among other things, failure to warn of
this possible consequence of ingesting its product.
Graves’s expert testified that there were probably “twenty ways” to
offer an effective warning on the box:
You can use the English language. You could use a pictograph of
some picture of a stomach rupturing or something along those lines
following somebody ingesting this product from a glass. . . . [A]
circle and a slash through it would do or an X across it would do to
let people know not to do that. Alternatively, you might have to spell
out the hazard in words but you also need to include an instruction to
avoid harm and you might show a cup or a glass with the product in it
and a circle with a circle and a slash through it to indicate that one
shouldn’t take it this way and then back up with the written language.
Graves conceded that he had not read the label on the box of baking
soda before using it and that he had taken about three times the dosage
recommended there. (The recommended dosage was half a teaspoon; he
took a teaspoon and a half.) But he characterized himself as a “compulsive”
reader, especially paying attention to product labels because he had a
potentially fatal allergy to nuts. It also was the case that for at least five
years prior to his accident, Graves had smoked two to three packs of
cigarettes a day. He was aware that cigarettes bore a warning label from the
Surgeon General concerning health hazards. Graves was asked at trial
whether he would have smoked cigarettes on the morning of the accident if
a skull and crossbones had been on the package of cigarettes. Graves said
that he hadn’t thought of that.
The jury found that the baking soda was defective in failing to carry a
warning of the danger of stomach rupture from its use, but it also found that
this failure to warn was not a proximate cause of Graves’s use of the
product. Graves appealed, claiming that he was entitled to a presumption
that he would have heeded a proper warning if it had been provided. The
court of appeals agreed that Graves was entitled to such a presumption, but
held that in this case there was sufficient evidence to rebut it:
The evidence concerning Graves’ smoking, notwithstanding warnings

on cigarette packages, was admitted without objection. Such
evidence, in our view, provided the jury with a basis to make an
analogy between Graves smoking in the face of the health warnings
on cigarettes, and his projected behavior if a warning had been on the
baking soda.
2. The heeding presumption. As Graves and Grinnell illustrate, many

jurisdictions give plaintiffs the benefit of a “heeding presumption” that they
would have obeyed suitable warnings. If the defendant offers no evidence to
rebut the presumption it may be considered conclusive, with the plaintiff
then entitled to a directed verdict on the issue. If the defendant offers
significant evidence that the plaintiff would not have obeyed a warning —
either because he would not have read any warning under the circumstances
or because he was prone to disobeying safety warnings in other walks of
life — then it becomes a question for the jury whether an appropriate
warning would in fact have prevented the plaintiff’s injuries, with the
burden of persuasion on the plaintiff. Here as in other areas of products
liability, the details of the rule and its procedural implementation vary by
jurisdiction.
3. McWarnings. In Brown v. McDonald’s Corp., 655 N.E.2d 440 (Ohio
App. 1995), the plaintiff purchased a “McLean Deluxe” sandwich — a
meatless simulation of a hamburger — from a drive-through window at a
McDonald’s in Ohio. Soon after ingesting the sandwich she developed a
rash, a tight chest, blue lips, and hives; the symptoms required a five-hour
hospital stay for treatment. The plaintiff sued McDonald’s, claiming that
she was allergic to seafood, that the McLean contained an ingredient
(carrageenan) derived from seaweed, and that the restaurant should have
warned its patrons of this. Her claims were based on Ohio Rev. Code Ann.
§2307.73(A)(1)(b), which imposed liability for failing to warn of a risk if
(b) The manufacturer failed to provide the warning or instruction that

a manufacturer exercising reasonable care would have provided
concerning that risk, in light of the likelihood that the product would
cause harm of the type for which the claimant seeks to recover
compensatory damages and in light of the likely seriousness of that
harm.
McDonald’s conceded that it issued no warnings with the McLean

Deluxe, but said that a flier was available to its customers listing the
ingredients in the sandwich. The plaintiff said that she did not receive the
flier and had not known it was available. McDonald’s further argued that
the McLean posed no risk to ordinary consumers and thus that there was no
duty to warn. To this the plaintiff responded with an affidavit from a
medical expert asserting that her reaction may not have been as unusual as
McDonald’s claimed. The trial court gave summary judgment to
McDonald’s. The court of appeals reversed:
[The statute] asks whether a manufacturer exercising reasonable care

would warn of that risk in light of both the likelihood and the
seriousness of the potential harm. Within this framework, whether the
plaintiff’s harm was unusual or not would be a factor in calculating
whether a manufacturer exercised reasonable care in its decision not
to warn. The incidence of the kind of harm at issue in the case is only
one factor a jury would consider in finding a duty to warn.
Comment j to Section 402 [of the Restatement (Second) of Torts]
comments specifically upon the duty to warn in relation to consumers
having allergies. It states:
In order to prevent the product from being unreasonably dangerous, the seller may be
required to give directions or warning, on the container, as to its use. The seller may
reasonably assume that those with common allergies, as for example to eggs or
strawberries, will be aware of them, and he is not required to warn against them. Where,
however, the product contains an ingredient to which a substantial number of the
population are allergic, and the ingredient is one whose danger is not generally known,
or if known is one which the consumer would reasonably not expect to find in the
product, the seller is required to give warning against it, if he has knowledge, or by the
application of reasonable, developed human skill and foresight should have knowledge,
of the presence of the ingredient and the danger.
Though [McDonald’s] offered evidence that it neither knew nor

should have known of the risk of an adverse reaction to carrageenan,
that evidence is only probative, not dispositive. Taken together with
the evidence offered by the Browns, and viewing it in a light most
favorable to them, it is insufficient to merit summary judgment[.]
Note that this case, like some others we have considered, can be stylized
as finding “liability” in only a limited sense. What the plaintiff won here
was not a damage award but rather the right to have a jury decide (a)
whether McDonald’s had an obligation to warn in view of her evidence of
the incidence and severity of her reaction to its product, and (b) whether the
steps the restaurant took to notify its patrons of the ingredients used in the
product — the fliers — were adequate. As Brown illustrates, the issues in
failure to warn cases often raise issues of reasonableness that are difficult to
keep away from juries. What are the pros and cons of making it so easy for
a plaintiff to create a jury question?
Is there any inconsistency between Brown v. McDonald’s Corp. and
Graves v. Church & Dwight? Notice not only the different evidence in the
two cases but also their procedural postures: the court in Graves affirmed a
jury verdict; the court in Brown sent the case to a jury, and of course might
have affirmed a jury verdict in the defendant’s favor if one later had been
produced and appealed, just as the court in Graves did. Similar reasoning
might be used to distinguish Graves from American Tobacco Co. v.
Grinnell; but might the two cases also be distinguished on their facts?
4. The abandonment of comment j. Cases in this section have mentioned
comment j to §402A of the Restatement (Second) of Torts (1965). In
addition to the language quoted in Brown, comment j provided that
“[w]here warning is given, the seller may reasonably assume that it will be
read and heeded; and a product bearing such a warning, which is safe for
use if it is followed, is not in defective condition, nor is it unreasonably
dangerous.” That provision proved to be controversial and has been widely
rejected. In Uloth v. City Tank Corp., 384 N.E.2d 1188, 1192 (Mass. 1978),
the court offered these objections:
An adequate warning may reduce the likelihood of injury to the user

of a product in some cases. We decline, however, to adopt any rule
that permits a manufacturer or designer to discharge its total
responsibility to workers by simply warning of the dangers of a
product. Whether or not adequate warnings are given is a factor to be
considered on the issue of negligence, but warnings cannot absolve
the manufacturer or designer of all responsibility for the safety of the
product. [I]n some circumstances a warning may not reduce the
likelihood of injury. For example, where the danger is obvious, a
warning may be superfluous. A designer may have no duty to warn of
such dangers. . . .
Moreover, a user may not have a real alternative to using a
dangerous product, as where a worker must either work on a
dangerous machine or leave his job. . . . Further, a warning is not
effective in eliminating injuries due to instinctual reactions,
momentary inadvertence, or forgetfulness on the part of a worker.
One of the primary purposes of safety devices is to guard against
such foreseeable situations. . . .
Balanced against the somewhat limited effectiveness of warnings
is the designer’s ability to anticipate and protect against possible
injuries. If a slight change in design would prevent serious, perhaps
fatal, injury, the designer may not avoid liability by simply warning
of the possible injury. We think that in such a case the burden to
prevent needless injury is best placed on the designer or manufacturer
rather than on the individual user of a product.
5. Meat grinders. In Liriano v. Hobart Corp., 170 F.3d 264 (2d Cir.
1999), the plaintiff, Liriano, was using his hand to feed meat into a meat
grinder whose safety guard had been removed. His hand was drawn into the
grinding mechanism and severed from his arm. The grinder had been
manufactured by the defendant, Hobart, in 1961. It came equipped with a
guard, bolted in place, that prevented the user’s hand from coming into
contact with the grinding mechanism. The machine included no warnings of
the dangers of removing the guard or using the grinder without it; in 1962,
however, Hobart began adding such warnings to its grinders after learning
that many purchasers of its machines were taking the safety guards off. In
this case it was undisputed that the Super Associated supermarket where
Liriano was working had removed the guard sometime after acquiring the
machine. Liriano sued both Hobart and the supermarket, claiming that they
should be held liable for failing to warn that the guard was missing and that
his hand could get caught in the grinder. A jury brought in a verdict for
Liriano, holding him one-third responsible for his injury and assigning the
remaining responsibility to the defendants, with the supermarket bearing the
larger share of it. The defendants appealed, claiming the evidence was
insufficient to support a verdict against them as a matter of law. The court
of appeals affirmed:
Liriano was only seventeen years old at the time of his injury and had
only recently immigrated to the United States. He had been on the job
at Super for only one week. He had never been given instructions
about how to use the meat grinder, and he had used the meat grinder
only two or three times. And, as [the trial judge] noted, the
mechanism that injured Liriano would not have been visible to
someone who was operating the grinder. It could be argued that such
a combination of facts was not so unlikely that a court should say, as
a matter of law, that the defendant could not have foreseen them or, if
aware of them, need not have guarded against them by issuing a
warning. Nevertheless, it remains the fact that meat grinders are
widely known to be dangerous. Given that the position of the New
York courts on the specific question before us is anything but
obvious, we might well be of two minds as to whether a failure to
warn that meat grinders are dangerous would be enough to raise a
jury issue.
But to state the issue that way would be to misunderstand the
complex functions of warnings. . . . One who grinds meat, like one
who drives on a steep road, can benefit not only from being told that
his activity is dangerous but from being told of a safer way. As we
have said, one can argue about whether the risk involved in grinding
meat is sufficiently obvious that a responsible person would fail to
warn of that risk, believing reasonably that it would convey no
helpful information. But if it is also the case — as it is — that the risk
posed by meat grinders can feasibly be reduced by attaching a safety
guard, we have a different question. Given that attaching guards is
feasible, does reasonable care require that meat workers be informed
that they need not accept the risks of using unguarded grinders? Even
if most ordinary users may — as a matter of law — know of the risk
of using a guardless meat grinder, it does not follow that a sufficient
number of them will — as a matter of law — also know that
protective guards are available, that using them is a realistic
possibility, and that they may ask that such guards be used. It is
precisely these last pieces of information that a reasonable
manufacturer may have a duty to convey even if the danger of using a
grinder were itself deemed obvious.
Newman, J., concurred:
Those who believe that every decision in human affairs is a rational

one, influenced logically by the incentives and disincentives that
inhere in a given set of circumstances, will think it perverse that a
manufacturer can be liable for failure to warn about the hazard of a
meat-grinder originally equipped with a safety guard that has
subsequently been removed even though liability might not exist had
no such guard been initially installed. Surely, the devout rationalists
will say, a rule of law countenancing such seemingly contradictory
results will create an incentive for meat-grinder manufacturers not to
install safety guards in the first place, thereby obtaining at least the
chance to escape liability that, under today’s decision, is deemed
appropriate for jury consideration. I acknowledge that the
disincentive to install a safety guard might exist, but, as with many
predictions made on the assumption that a disincentive to take action
will result in the action not being taken (or that an incentive to take
action will result in the action being taken), I think it is extremely
doubtful that meat-grinder manufacturers will elect to forgo safety
guards in the hope of avoiding failure-to-warn liability for meat-
grinders from which such guards have been removed. We have been
well advised that the life of the law is not logic but experience, see
Oliver Wendell Holmes, Jr., The Common Law 1 (1891), and it is
often the case that the life of life itself is not logic. Though rationality
guides many human actions, it does not guide them all. Despite the
disincentive arguably created by the imposition of liability in this
case, manufacturers might well elect to install safety guards simply
because they have some concern (humanitarian, not economic) that
hands should not be severed by their machines.
6. Useful but dangerous products. Restatement (Second) of Torts

§402A, comment k:
Unavoidably unsafe products. There are some products which, in the

present state of human knowledge, are quite incapable of being made
safe for their intended and ordinary use. These are especially
common in the field of drugs. An outstanding example is the vaccine
for the Pasteur treatment of rabies, which not uncommonly leads to
very serious and damaging consequences when it is injected. Since
the disease itself invariably leads to a dreadful death, both the
marketing and the use of the vaccine are fully justified,
notwithstanding the unavoidable high degree of risk which they
involve. Such a product, properly prepared, and accompanied by
proper directions and warning, is not defective, nor is it unreasonably
dangerous. The same is true of many other drugs, vaccines, and the
like, many of which for this very reason cannot legally be sold except
to physicians, or under the prescription of a physician. It is also true
in particular of many new or experimental drugs as to which, because
of lack of time and opportunity for sufficient medical experience,
there can be no assurance of safety, or perhaps even of purity of
ingredients, but such experience as there is justifies the marketing and
use of the drug notwithstanding a medically recognizable risk. The
seller of such products, again with the qualification that they are
properly prepared and marketed, and proper warning is given, where
the situation calls for it, is not to be held to strict liability for
unfortunate consequences attending their use, merely because he has
undertaken to supply the public with an apparently useful and
desirable product, attended with a known but apparently reasonable
risk.
A few courts responded to comment k by holding generally that

manufacturers of properly made prescription drugs could not be held liable
for claimed defects in the drugs’ design so long as they were accompanied
by appropriate warnings. The more usual approach has been to apply
comment k on a case-by-case basis. In 1997, §6 of Restatement Third,
Torts: Products Liability offered a different formulation:
(c) A prescription drug or medical device is not reasonably safe due

to defective design if the foreseeable risks of harm posed by the drug
or medical device are sufficiently great in relation to its foreseeable
therapeutic benefits that reasonable health-care providers, knowing of
such foreseeable risks and therapeutic benefits, would not prescribe
the drug or medical device for any class of patients.
It is not yet clear how the courts will respond to this new Restatement
provision. For an early case rejecting it, see Freeman v. Hoffman-LaRoche,
618 N.W.2d 827 (Neb. 2000):
[T]he [Third Restatement’s] test lacks flexibility and treats drugs of

unequal utility equally. For example, a drug used for cosmetic
purposes but which causes serious side effects has less utility than a
drug which treats a deadly disease, yet also has serious side effects. In
each case, the drugs would likely be useful to a class of patients
under the reasonable physician standard for some class of persons.
Consequently, each would be exempted from design defect liability.
But under a standard that considers reasonable alternative design, the
cosmetic drug could be subject to liability if a safer yet equally
effective design was available. As a result, the reasonable physician
standard of §6(c) of the Third Restatement has been described as a
standard that in effect will never allow liability. However, a standard
applying a risk utility test that focuses on the presence or absence of a
reasonable alternative design, although also rarely allowing liability,
at least allows the flexibility for liability to attach in an appropriate
case.
7. The learned intermediary. In Brooks v. Medtronic, Inc., 750 F.2d

1227 (4th Cir. 1984), the plaintiff, Brooks, suffered a heart attack and was
advised by a physician at the hospital to be fitted with a pacemaker made by
Medtronic. Brooks agreed and underwent implant surgery the next day. His
evidence was that later that afternoon he experienced 15 episodes of
ventricular fibrillation when the pacemaker’s lead came loose from his
heart. Each attack required the hospital staff to apply counter electrical
shock treatments to restore his heart to a normal beat. His physician soon
disconnected the pacemaker, and a few days later Brooks received a
different model that did not cause these problems. Brooks brought a suit
against Medtronic claiming that the lead used to attach the first pacemaker
was defective because the prongs at the end of it were too short to remain
lodged in the heart muscle. He also claimed that Medtronic failed to warn
him of the risk that the lead might come loose. It was undisputed at trial that
dislodgment of a lead is a common risk when a pacemaker is implanted;
Medtronic gave all doctors, including the physician treating Brooks, written
warnings of the danger, but neither Medtronic nor the physician provided
any warning of it to Brooks.
The district court instructed the jury that the manufacturer had a duty to
warn physicians of any dangerous characteristics of a product that were not
well known to the medical community. The jury brought in a verdict for
Medtronic. Brooks appealed, arguing that the jury should have been told
that Medtronic also had a duty to directly warn consumers of its products of
known risks associated with implant surgery. The court of appeals affirmed:
Although ordinarily warnings must be given to the ultimate user of a

product, a different approach has been developed for prescription
drugs. It is settled in a substantial majority of jurisdictions that the
duty a manufacturer of ethical drugs “owes to the consumer is to
warn only physicians (or other medical personnel permitted by state
law to prescribe drugs) of any risks or contraindications associated
with that drug.” Stanback v. Parke, Davis and Co., 657 F.2d 642, 644
(4th Cir. 1981). If the prescribing physician has received adequate
notice of possible complications, the manufacturer has no duty to
warn the consumer. In that instance, the physician is called on to act
as a “learned intermediary” between the manufacturer and the
consumer because he is in the best position to understand the patient’s
needs and assess the risks and benefits of a particular course of
treatment.
Brooks contends, nevertheless, that the prescription drug
exception does not apply on the facts of his case. Two principal
reasons are advanced. First, unlike the situation in prescription drug
cases, he argues that all cardiac pacemaker patients face identical
risks and do not rely on doctors to act as learned intermediaries.
Second, Brooks notes that Medtronic, unlike drug manufacturers,
often has an opportunity to contact its users prior to surgery. In
support of these arguments, Brooks places reliance on a series of
cases involving injuries caused by live polio vaccines in which a few
courts have expanded the scope of a drug manufacturer’s duty and
held that the manufacturer is required to warn the public directly of
risks associated with the live vaccine. The courts in those cases have
expanded the duty to warn because the vaccines — part of a special
nationwide immunization program — were dispensed without the
sort of individualized medical balancing at the heart of the
prescription drug exception.
Appellant complains that an affirmance would abrogate the
patient’s right to know. That prediction overstates the case. The issue
raised by the appeal is not whether information should be disclosed at
all; instead, the question turns on who is in a better position to
disclose risks. It is the physician’s duty to remain abreast of product
characteristics and, exercising an informed professional judgment,
decide which facts should be told to the patient. Once adequate
warnings are given to the physician, the choice of treatment and the
duty to disclose properly fall on the doctor. Indeed, we have little
trouble imagining — particularly with cardiac patients — situations
where total disclosure by a manufacturer would not be in the patient’s
best interest. One in a serious medical condition of the sort
experienced by Brooks as a general matter faces unwanted, unsettling
and potentially harmful risks if advice, almost inevitably involved
and longwinded, from non-physicians, contrary to what the doctor of
his choice has decided should be done, must be supplied to him
during the already stressful period shortly before his trip to the
operating room. We therefore hold that the district court’s duty to
warn instruction was proper.
8. Direct marketing. In Perez v. Wyeth Laboratories, 734 A.2d 1245

(N.J. 1999), the plaintiffs were women who used Norplant, a contraceptive
device consisting of capsules implanted under the skin of a woman’s upper
arm; the capsules distributed a low, continuous dosage of a synthetic
hormone into the user’s bloodstream. The plaintiffs alleged that they
suffered from various side effects, including weight gain, headaches,
dizziness, nausea, acne, vision problems, anemia, mood swings and
depression, high blood pressure, and complications from removal of the
implants that resulted in scarring. They sued Wyeth, the maker of Norplant,
claiming that it failed to adequately warn them of these possible side
effects. They alleged that Wyeth began a massive advertising campaign for
Norplant in 1991, which it directed at women rather than at their doctors.
The company advertised on television and in women’s magazines such as
Glamour, Mademoiselle, and Cosmopolitan. None of the advertisements
warned of the side effects.
The trial court dismissed the plaintiffs’ complaint on the ground that the
learned intermediary doctrine shielded Wyeth from liability. The New
Jersey Supreme Court reversed, holding that the doctrine does not apply in
cases where the manufacturer of a drug is alleged to have marketed it
directly to consumers in a misleading fashion:
Our medical-legal jurisprudence is based on images of health care

that no longer exist. At an earlier time, medical advice was received
in the doctor’s office from a physician who most likely made house
calls if needed. . . . Pharmaceutical manufacturers never advertised
their products to patients, but rather directed all sales efforts at
physicians. In this comforting setting, the law created an exception to
the traditional duty of manufacturers to warn consumers directly of
risks associated with the product as long as they warned health-care
providers of those risks.
For good or ill, that has all changed. Medical services are in large
measure provided by managed care organizations. Medicines are
purchased in the pharmacy department of supermarkets and often
paid for by third-party providers. Drug manufacturers now directly
advertise products to consumers on the radio, television, the Internet,
billboards on public transportation, and in magazines. . . .
[T]he dramatic shift in pharmaceutical marketing to consumers is
based in large part on significant changes in the health-care system
from fee-for-service to managed care. Managed care companies
negotiate directly with pharmaceutical companies and then inform
prescribers which medications are covered by the respective plans.
Because managed care has made it more difficult for pharmaceutical
companies to communicate with prescribers, the manufacturers have
developed a different strategy, marketing to consumers.
The direct marketing of drugs to consumers generates a
corresponding duty requiring manufacturers to warn of defects in the
product. The FDA has established a comprehensive regulatory
scheme for direct-to-consumer marketing of pharmaceutical products.
Given the presumptive defense that is afforded to pharmaceutical
manufacturers that comply with FDA requirements, we believe that it
is fair to reinforce the regulatory scheme by allowing, in the case of
direct-to-consumer marketing of drugs, patients deprived of reliable
medical information to establish that the misinformation was a
substantial factor contributing to their use of a defective
pharmaceutical product.
The court summarized what it considered to be the premises of the

“learned intermediary” rule — “(1) reluctance to undermine the doctor
patient-relationship; (2) absence in the era of ‘doctor knows best’ of need
for the patient’s informed consent; (3) inability of drug manufacturer to
communicate with patients; and (4) complexity of the subject”; and it
concluded that those rationales “are all (with the possible exception of the
last) absent in the direct-to-consumer advertising of prescription drugs.”
McMahon v. Bunn-O-Matic Corp.

150 F.3d 651 (7th Cir. 1998)
[The plaintiff was a passenger in a car driven by her husband. He

bought a cup of coffee at a Mobil service station, and while he was driving
she tried to transfer the coffee into a smaller cup that would be easier for
him to handle. In the process she spilled the coffee onto herself and suffered
second- and third-degree burns on her legs and abdomen that caused her
pain for months. She brought suit in Indiana state court against the makers
of the styrofoam cup in which the coffee was served (claiming that it
collapsed), and against Bunn-O-Matic, maker of the machine that she
alleged kept the coffee too hot. She claimed that Bunn failed to warn
consumers about the severity of burns that hot coffee can produce, and that
any coffee served at more than 140 degrees is unfit for human consumption
(and therefore a defective product) because of its power to cause burns
more severe than consumers expect, aggravated by its potential to damage
the cup and thus increase the probability of spills. The defendants removed
the case to federal court on diversity grounds. The maker of the cup settled,
and the district court gave summary judgment to Bunn-O-Matic. This
appeal followed.]
EASTERBROOK, J. — [After stating the facts:] Let us tackle the

contention that Bunn should have warned the McMahons about the dangers
of hot coffee. What would this warning have entailed? A statement that
coffee is served hot? That it can cause burns? They already knew these
things and did not need to be reminded (as both conceded in their
depositions). That this coffee was unusually hot and therefore capable of
causing severe burns? Warning consumers about a surprising feature that is
potentially dangerous yet hard to observe could be useful, but the record
lacks any evidence that 179 degrees is unusually hot for coffee. Neither side
submitted evidence about the range of temperatures used by commercial
coffee makers, or even about the range of temperatures for Bunn’s line of
products. The McMahons essentially ask us to take judicial notice that 179
degrees is abnormal, but this is not the sort of incontestable fact for which
proof is unnecessary. In [previous cases courts have] reported that the
industry-standard serving temperature is between 175 degrees and 185
degrees, and if this is so then the McMahons’ coffee held no surprises.
What is more, most consumers prepare and consume hotter beverages at
home. Angelina McMahon is a tea drinker, and tea is prepared by pouring
boiling water over tea leaves. Until 20 years ago most home coffee was
made in percolators, where the water boiled during the brewing cycle and
took some time to cool below 180 degrees. Apparently the McMahons
believe that home drip brewing machines now in common use are much
cooler, but the record does not support this, and a little digging on our own
part turned up ANSI/AHAM CM-1-1986, which the American National
Standards Institute adopted for home coffee makers. Standard 5.2.1
provides: “On completion of the brewing cycle and within a 2 minute
interval, the beverage temperature in the dispensing vessel of the coffee
maker while stirring should be between the limits of 170 degrees and 205
degrees. The upper finished brew temperature limit assures that the coffee
does not reach the boiling point which can affect the taste and aroma. The
lower temperature limit assures generally acceptable drinking temperature
when pouring into a cold cup, adding cream, sugar and spoon.”
What remains is the argument that Bunn should have provided a
detailed warning about the severity of burns that hot liquids can cause, even
if 179 degrees is a standard serving temperature. The McMahons insist that,
although they knew that coffee can burn, they thought that the sort of burn
involved would be a blister painful for several days (that is, a second degree
burn), not a third degree burn of the sort Angelina experienced. An affidavit
submitted by Kenneth R. Diller, a professor of biomedical and
biomechanical engineering, observed that “full thickness third degree burn
injuries would require 60 seconds of exposure [to a liquid at] 140 degrees,
but only 3 seconds of exposure at 179 degrees.” We may assume that
ordinary consumers do not know this — that, indeed, ordinary consumers
do not know what a “full thickness third degree burn” is. But how,
precisely, is this information to be conveyed by a coffee maker? Bunn can’t
deliver a medical education with each cup of coffee. Any person severely
injured by any product could make a claim, at least as plausible as the
McMahons’, that they did not recognize the risks ex ante as clearly as they
do after the accident.
Insistence on more detail can make any warning, however elaborate,
seem inadequate. Indiana courts have expressed considerable reluctance to
require ever-more detail in warnings. For good reasons, laid out in Todd v.
Societe BIC, S.A., 9 F.3d 1216, 1218-19 (7th Cir. 1993) (en banc) (Illinois
law): “Extended warnings present several difficulties, first among them
that, the more text must be squeezed onto the product, the smaller the type,
and the less likely is the consumer to read or remember any of it. Only pithy
and bold warnings can be effective. Long passages in capital letters are next
to illegible, and long passages in lower case letters are treated as
boilerplate. Plaintiff wants a warning in such detail that a magnifying glass
would be necessary to read it. Many consumers cannot follow simple
instructions (including pictures) describing how to program their video
cassette recorders.” Indiana has the same general understanding. See
Marshall v. Clark Equipment Corp., 680 N.E.2d 1102, 1105 (Ind. App.
1997). To be useful, warnings about burns could not stop with abstract
information about the relation among a liquid’s temperature and volume
(which jointly determine not only the number of calories available to impart
to the skin but also the maximum rate of delivery), contact time (which
determines how many of the available calories are actually delivered), and
the severity of burns. It would have to address the risk of burns in real life,
starting with the number of cups of coffee sold annually, the number of
these that spill (broken down by location, such as home, restaurant, and
car), and the probability that any given spill will produce a severe (as
opposed to a mild or average) burn. Only after understanding these things
could the consumer determine whether the superior taste of hot coffee
justifies the incremental risk. Tradeoffs are complex. Few consumers could
understand the numbers and reach an intelligent decision on the spot at a
checkout counter. Yet such a detailed warning (equivalent to the package
insert that comes with drugs) might obscure the principal point that
precautions should be taken to avoid spills. Indiana does not require
vendors to give warnings in the detail plaintiffs contemplate. It expects
consumers to educate themselves about the hazards of daily life — of
matches, knives, and kitchen ranges, of bones in fish, and of hot beverages
— by general reading and experience, knowledge they can acquire before
they enter a mini mart to buy coffee for a journey. . . .
[The court turned to the plaintiffs’ claim that the coffeemaker was
defective because it kept the coffee too hot.] With warnings out of the way,
the remaining theory of liability comes into focus. Indiana has codified the
principles of product liability at I.C. §33-1-1.5-3. (A new statute, effective
July 1, 1998, appears at I.C. §34-20-2-1 and associated sections. Our
attention is confined to the version in force when Angelina McMahon was
injured.) Under §33-1-1.5-3(a) any person who sells “any product in a
defective condition unreasonably dangerous to any user or consumer . . . is
subject to liability.” If the defect in question is a design defect (as opposed
to a blunder in the manufacture of a well-designed product), then “the party
making the claim must establish that the manufacturer or seller failed to
exercise reasonable care under the circumstances in designing the product.”
In other words, a design-defect claim in Indiana is a negligence claim,
subject to the understanding that negligence means failure to take
precautions that are less expensive than the net costs of accidents. . . .
Coffee at 180 degrees F is considerably more likely to cause severe
burns than is coffee at 135 degrees to 140 degrees, the maximum at which
[the plaintiffs’ expert] believes that coffee should be served. Moreover,
because it is costly to serve coffee hot (it takes electricity to keep the
hotplate on), risks could be reduced for a negative outlay. How can it not be
negligent to spend money for the purpose of making a product more
injurious? But of course people spend money to increase their risks all the
time — they pay steep prices for ski vacations; they go to baseball games
where flying bats and balls abound; they buy BB guns for their children
knowing that the pellets can maim. They do these things because they
perceive benefits from skiing, baseball, and target practice. Moss, the BB
gun case, holds that Indiana does not condemn products as defective just
because they are designed to do things that create serious hazards. To
determine whether a coffee maker is defective because it holds the beverage
at 179 degrees, we must understand the benefits of hot coffee in relation to
its costs. As for costs, the record is silent. We do not know whether severe
burns from coffee are frequent or rare. On the other side of the ledger there
are benefits for all coffee drinkers. Jack McMahon testified that he likes his
coffee hot. Why did the American National Standards Institute set 170
degrees F as the minimum temperature at which coffee should be held ready
to serve? . . .
None of this would matter if it were obvious that consumers derive no
benefits from coffee served hotter than 140 degrees; then the principle of
res ipsa loquitur could do the rest of the work for the McMahons. The ANSI
minimum of 170 degrees F prevents us from treating as obvious the absence
of benefits from temperatures above 140 degrees. What is more, even a
little investigation (albeit unassisted by the parties) shows that there may be
good reasons for selecting a temperature over 170 degrees, as several other
courts have recognized. See Michael Sivetz & H. Elliott Foote, 2 Coffee
Processing Technology ch. 19.2 (1963). The smell (and therefore the taste)
of coffee depends heavily on the oils containing aromatic compounds that
are dissolved out of the beans during the brewing process. Brewing
temperature should be close to 200 degrees to dissolve them effectively, but
without causing the premature breakdown of these delicate molecules.
Coffee smells and tastes best when these aromatic compounds evaporate
from the surface of the coffee as it is being drunk. Compounds vital to
flavor have boiling points in the range of 150 degrees to 160 degrees, and
the beverage therefore tastes best when it is this hot and the aromatics
vaporize as it is being drunk. For coffee to be 150 degrees when imbibed, it
must be hotter in the pot. Pouring a liquid increases its surface area and
cools it; more heat is lost by contact with the cooler container; if the
consumer adds cream and sugar (plus a metal spoon to stir them) the
liquid’s temperature falls again. If the consumer carries the container out for
later consumption, the beverage cools still further. Our point in discussing
these issues is not to endorse Sivetz & Foote; their position may be
scientifically contestable. It is only to demonstrate that without evidence
that a holding temperature of 180 degrees is of little worth to consumers,
plaintiffs cannot show that the choice of a high temperature makes coffee
defective.
It is easy to sympathize with Angelina McMahon, severely injured by a
common household beverage — and, for all we can see, without fault on
her part. Using the legal system to shift the costs of this injury to someone
else may be attractive to the McMahons, but it would have bad
consequences for coffee fanciers who like their beverage hot. First-party
health and accident insurance deals with injuries of the kind Angelina
suffered without the high costs of adjudication, and without potential side
effects such as lukewarm coffee. We do not know whether the McMahons
carried such insurance (directly or through an employer’s health plan), but
we are confident that Indiana law does not make Bunn and similar firms
insurers through the tort system of the harms, even grievous ones, that are
common to the human existence.
Affirmed.
NOTES
1. The McDonald’s coffee case. Perhaps the most famous tort case of
our times is the McDonald’s coffee case — the one where, as the man on
the street knows, “a lady got $3 million for spilling hot coffee on herself.”
The case — Liebeck v. McDonald’s Restaurants, P.T.S., Inc. — has no
significance as a legal precedent; it did not generate a published opinion
(see 1995 WL 360309 (Bernalillo County, N.M. Dist. Ct. 1994)
(unpublished) for a brief recitation of the findings). But the case has great
significance in the mythology of American law, so every lawyer should
know something about its actual details. The following summary is based
on newspaper accounts of the incident and the litigation that followed.
The plaintiff, Stella Liebeck, was a 79-year-old former department store
clerk. On February 27, 1992, when she was riding as a passenger in her
grandson’s car, she bought a cup of coffee for 49 cents from a drive-through
window at a McDonald’s in Albuquerque, New Mexico. Her grandson
parked the car. Liebeck held the cup between her legs so that she could use
the fingers of both hands to pry off the lid. The coffee spilled out. She
immediately began to scream. She was wearing sweatpants, but
nevertheless sustained third-degree burns over 6 percent of her body,
including her thighs and genitals. She spent seven days in the hospital, then
three weeks recuperating at home, then returned to the hospital for skin
grafts that by all accounts were extremely painful. She lost about 20
pounds. Her medical bills were over $20,000.
Liebeck attempted to settle the case without hiring a lawyer; she had
never sued anybody before. She asked McDonald’s for $15,000-$20,000 to
cover her medical costs (the reimbursement of which apparently would
have to have been returned to Medicare) and some of the lost wages
incurred by her daughter, who had stayed home to take care of her.
McDonald’s offered her $800. Some friends put her in touch with a lawyer
who had sued McDonald’s over a coffee spill once before, and with his
assistance she brought a lawsuit in New Mexico state court alleging that the
coffee was a defective product (both because it was too hot and because it
was not accompanied by appropriate warnings) and that McDonald’s had
breached various implied warranties. As trial approached she offered to
settle the case for $300,000. McDonald’s declined. A mediator appointed by
the court predicted that a jury might award her $225,000, and recommended
that McDonald’s settle for that amount. McDonald’s declined.
The trial lasted seven days. Experts for both sides debated the
reasonableness of the temperature at which McDonald’s serves its coffee.
The plaintiff’s evidence was that McDonald’s written policy was to serve its
coffee at 180-190 degrees, which is about 20 degrees hotter than the coffee
served by McDonald’s competitors. It takes less than three seconds to
produce a third-degree burn at 190 degrees; it takes 12-15 seconds at 180
degrees, and about 20 seconds at 160 degrees. Over the previous 10 years
McDonald’s had received more than 700 complaints from people burned by
its coffee, and had settled some of the resulting claims for more than
$500,000. The jurors were shown gruesome photographs of Liebeck’s
injuries.
The expert for McDonald’s, who was paid $15,000 for his participation
in the case, testified that in view of the millions of cups of coffee
McDonald’s sells every year, 700 complaints in a decade is “basically
trivially different from zero.” Some of the jurors later said that this
testimony troubled them. “Each statistic is somebody badly burned,” said
one of the jurors. “That really made me angry.” A quality assurance official
from McDonald’s testified that the company had not made any adjustments
in response to the complaints and had no plans to do so. The lawyer for
McDonald’s argued that Liebeck was to blame for mishandling the coffee.
The jury found McDonald’s liable. It set Liebeck’s compensatory
damages at $200,000, but found that she was 20 percent to blame for the
accident and so reduced her award to $160,000. They also awarded $2.9
million in punitive damages against McDonald’s, which represented two
days of the company’s profits from coffee sales. “It was our way of saying,
‘Hey, open your eyes. People are getting burned,’” one of the jurors said.
The judge reduced the punitive damages award to $480,000 (three times
Liebeck’s compensatory damages), for a total award of $640,000. While the
case was on appeal, McDonald’s settled it for an undisclosed amount.
What is the distinction between Liebeck v. McDonald’s Restaurants and
McMahon v. Bunn-O-Matic Corp.? What sorts of warnings should coffee
cups contain? How should sellers of coffee decide how hot to serve it?
1. In this respect the trial court limited the jury to a consideration of two statements in the
manufacturer’s brochure (1) “WHEN SHOPSMITH IS IN HORIZONTAL POSITION Rugged
construction of frame provides rigid support from end to end. Heavy centerless ground steel tubing
insures perfect alignment of components.” (2) “SHOPSMITH maintains its accuracy because every
component has positive locks that hold adjustments through rough or precision work.”
Chapter 9
Damages
We turn now to the last element of the negligence tort, and a critical
element in any tort case regardless of the theory of liability involved:
damages. It is easy for beginners to regard damages as an afterthought — to
suppose that the hard part in a tort case is deciding whether there is liability,
and that once liability is established the calculation of the plaintiff’s
damages tends to be simple or mechanical. But in fact there often is room
for extensive argument not only about the factual details of the plaintiff’s
losses but about how the losses ought to be measured as a matter of law.
Indeed, in many cases the plaintiff’s liability is clear from the outset, and
the negotiations in the case (and the trial, if there is one) concern nothing
but damages.
There are three principal types of damages that a plaintiff may seek in a
tort suit: nominal damages, which are small amounts — typically a dollar
— just meant to establish that the plaintiff’s rights were invaded;
compensatory damages, which are intended to replace what the plaintiff has
lost; and punitive damages, which are intended to deter the defendant and
other potential tortfeasors from committing such misconduct again. We will
be spending most of our time in this chapter considering how to measure
compensatory damages, which are sought in almost every tort suit. We also
will consider punitive damages a bit more briefly.
A. COMPENSATORY DAMAGES
1. Damage to Property
United States v. Hatahley

257 F.2d 920 (10th Cir. 1958)
[The plaintiffs were members of the Navajo tribe who claimed that
federal agents wrongfully seized their horses and donkeys and sold them to
a horse meat plant and a glue factory. The trial court found for the plaintiffs
and awarded them $186,017.50. The value of each horse or donkey taken
was fixed at $395; each plaintiff was awarded $3,500 for mental pain and
suffering; and damages were given for one-half of the value of the
diminution of the plaintiffs’ herds of sheep, goats, and cattle between the
time the horses and donkeys were taken in 1952 and the date of the last
hearing in 1957. The United States appealed.]
PICKETT, Circuit Judge — [After stating the facts:] The fundamental

principle of damages is to restore the injured party, as nearly as possible, to
the position he would have been in had it not been for the wrong of the
other party. Applying this rule, the plaintiffs were entitled to the market
value, or replacement cost, of their horses and burros as of the time of
taking, plus the use value of the animals during the interim between the
taking and the time they, acting prudently, could have replaced the animals.
The plaintiffs did not prove the replacement cost of the animals, but
relied upon a theory that the animals taken were unique because of their
peculiar nature and training, and could not be replaced. The trial court
accepted this theory, and relying upon some testimony that a horse or a
burro could be traded among Indians for sheep, goats or cattle worth a
stated price, together with the owner’s testimony of the value, arrived at a
market value of $395 per head. No consideration was given to replacement
cost. The court rejected evidence of the availability of like animals in the
immediate vicinity, and their value. This, we think, was error. It is true that
animals of a particular strain and trained for a special purpose are different
from animals of another strain and not so trained, but that does not mean
that they cannot be replaced by animals similarly developed and trained, or
which may be trained after acquisition. Ordinarily every domestic animal is
developed and trained for the purpose to which the owner intends to use it.
This development and training adds to its usefulness and generally
increases the market value of the animal. In arriving at a fair market value
of destroyed animals, the court should have considered evidence of the
availability of like animals, together with all other elements which go to
make up market value. In proper instances, parties and witnesses may be
cross-examined on the subject.
Likewise, we think the court applied an erroneous rule, wholly
unsupported by the evidence, in arriving at the amount of loss of use
damage. There was testimony by the plaintiffs that because of the loss of
their horses and burros they were not able to maintain and look after as
much livestock as they had been able to before the unlawful taking,
consequently the size of their herds was reduced. If the unlawful taking of
the animals was the proximate cause of the herd reductions, the measure of
damages would be the loss of profits occasioned thereby.
Applying the same formula to all plaintiffs, the court, without giving
consideration to the condition, age or sex of the animals, found the value of
the sheep and goats in 1952 to be $15 per head, the cattle to be $150 per
head. The number of sheep, goats and cattle which each plaintiff had in
1952, as well as the number which each had at the date of the last hearing
was established. This difference was multiplied by $15, in the case of sheep
and goats, and by $150, in the case of cattle, and judgment was entered for
one-half of the amount of the result. No consideration was given to the
disposition of the livestock by the plaintiffs in reducing the herds. For
example, the plaintiff Sakezzie had 600 sheep and goats and 101 head of
cattle when his horses and burros were taken in 1952. At the date of the last
hearing in 1957, he had 160 head of sheep and goats and 39 head of cattle.
The dollar value of the difference at $15 per head for the sheep and goats,
and $150 per head for the cattle, amounted to $15,900. The court found
“that approximately fifty percent of this amount represents damages to the
plaintiff proximately caused by deprivation of the use of plaintiff’s horses,
and on this basis plaintiff is entitled to recover $7,950.00 as consequential
damages resulting from such deprivation.” The result, insofar as it related to
use damage, was arbitrary, pure speculation, and clearly erroneous. In
United States v. Huff, 175 F.2d 678 (5th Cir. 1949), a case where the method
of computing damages for loss of sheep and goats was strikingly similar to
that used here, the court said:
Moreover, there has been no sufficient showing of how much of the
damage from the loss of the sheep and goats was proximately caused
by the Government’s failure to maintain and repair the fences under
the lease, and how much of the damage resulted from the various
other causes. There is no testimony whatever as to the specific dates
of loss of any of the sheep and goats, or as to their age, weight,
condition and fair market value at the time of the alleged losses. It
therefore becomes patent that the evidence as to the loss of these
animals in each case fails to rise above mere speculation and guess.
175 F.2d 680.

Plaintiffs’ evidence indicated that the loss of their animals made it
difficult and burdensome for them to obtain and transport needed water,
wood, food, and game, and curtailed their travel for medical care and to
tribal council meetings and ceremonies. Plaintiffs also testified that because
of the loss of their animals they were not able to grow crops and gardens as
extensively as before. These were factors upon which damages for loss of
use could have been based. This does not exclude the right to damages for
loss of profits which may have resulted from reduction of the number of
livestock, or actual loss of the animals, if the unlawful acts of the defendant
agents were the proximate cause of the loss and were proved to a reasonable
degree of certainty. But the right to such damages does not extend forever,
and it is limited to the time in which a prudent person would replace the
destroyed horses and burros. The law requires only that the United States
make full reparation for the pecuniary loss which their agents inflicted.
The District Court awarded each plaintiff the sum of $3,500 for mental
pain and suffering. There is no evidence that any plaintiff was physically
injured when his horses and burros were taken. There was evidence that
because of the seizure of their animals and the continued activity of
government agents and white ranchers to rid the public range of trespassers,
the plaintiffs and their families were frightened, and after the animals were
taken, they were “sick at heart, their dignity suffered, and some of them
cried.” There was considerable evidence that some of the plaintiffs mourned
the loss of their animals for a long period of time. We think it quite clear
that the sum given each plaintiff was wholly conjectural and picked out of
thin air. The District Court seemed to think that because the horses and
burros played such an important part in the Indians’ lives, the grief and
hardships were the same as to each. The equal award to each plaintiff was
based upon the grounds that it was not possible to separately evaluate the
mental pain and suffering as to each individual, and that it was a community
loss and a community sorrow.
Apparently the court found a total amount which should be awarded to
all plaintiffs for pain and suffering, and divided it equally among them.
There was no more justification for such division than there would have
been in using the total value of the seized animals and dividing it equally
among the plaintiffs. Pain and suffering is a personal and individual matter,
not a common injury, and must be so treated. While damages for mental
pain and suffering, where there has been no physical injury, are allowed
only in extreme cases, they may be awarded in some circumstances. Any
award for mental pain and suffering in this case must result from the
wrongful taking of plaintiffs’ animals by agents of the United States, and
nothing else. . . .
Reversed, and remanded for a new trial as to damages only.
NOTES
1. General principles. From the Restatement (Second) of Torts (1965):
§911. VALUE
(1) As used in this Chapter, value means exchange value or the

value to the owner if this is greater than the exchange value.
(2) The exchange value of property or services is the amount of
money for which the subject matter could be exchanged or procured
if there is a market continually resorted to by traders, or if no market
exists, the amount that could be obtained in the usual course of
finding a purchaser or hirer of similar property or services. The rental
value of property is the exchange value of the use of the property.
Comment e. Peculiar value to the owner. The phrase “value to the
owner” denotes the existence of factors apart from those entering into
exchange value that cause the article to be more desirable to the
owner than to others. Some things may have no exchange value but
may be valuable to the owner; other things may have a comparatively
small exchange value but have a special and greater value to the
owner. The absence or inadequacy of the exchange value may result
from the fact that others could not or would not use the thing for any
purpose, or would employ it only in a less useful manner. Thus a
personal record or manuscript, an artificial eye or a dog trained to
obey only one master, will have substantially no value to others than
the owner. The same is true of articles that give enjoyment to the user
but have no substantial value to others, such as family portraits.
Second-hand clothing and furniture have an exchange value, but
frequently the value is far less than its use value to the owner. In these
cases it would be unjust to limit the damages for destroying or
harming the articles to the exchange value.
Real property may also have a value to the owner greater than its
exchange value. Thus a particular location may be valuable to an
occupant because of a business reason, as when he has built up good
will in a particular neighborhood. Even when the subject matter has
its chief value in its value for use by the injured person, if the thing is
replaceable, the damages for its loss are limited to replacement value,
less an amount for depreciation. If the subject matter cannot be
replaced, however, as in the case of a destroyed or lost family
portrait, the owner will be compensated for its special value to him,
as evidenced by the original cost, and the quality and condition at the
time of the loss. Likewise an author who with great labor has
compiled a manuscript, useful to him but with no exchange value, is
entitled, in case of its destruction, to the value of the time spent in
producing it or necessary to spend to reproduce it. In these cases,
however, damages cannot be based on sentimental value.
Compensatory damages are not given for emotional distress caused
merely by the loss of the things, except that in unusual circumstances
damages may be awarded for humiliation caused by deprivation, as
when one is deprived of essential articles of clothing. If the article
was wantonly destroyed, punitive damages can be awarded.
§912. CERTAINTY
One to whom another has tortiously caused harm is entitled to

compensatory damages for the harm if, but only if, he establishes by
proof the extent of the harm and the amount of money representing
adequate compensation with as much certainty as the nature of the
tort and the circumstances permit.
Comment f. Interference with a gift or chance for gain. . . . In
cases in which there has been an interference with property from
which a profit was expected, it may clearly appear at the trial that no
profit would have been made. If so, the injured person is entitled to,
but no more than, the diminution in the value of the property caused
by the interference, or the total value if destroyed. Since, however,
this value will normally be taken as of the time of the tort, damages
will be awarded proportionate to the chance, as the situation appeared
at the time of the tort, that profits would be made. When, however,
there has been an interference with a right that is nontransferable and
it subsequently appears that the exercise of the right would not have
been profitable, the plaintiff is not entitled to substantial damages.
Illustration 16. A is one of the three remaining contestants for a
prize to be awarded in a newspaper popularity contest, all three
remaining contestants having received substantially the same number
of votes. For the purpose of discrediting A, B, a friend of one of the
other contestants, causes A to be arrested, thus destroying A’s chance
of winning the prize, $3000. Assuming that there was more than a
mere possibility that A might have won the prize, A is entitled to
damages from B based on the value of the chance that he would have
received the prize, that is, in the absence of further evidence, $1000.
Illustration 17. A is a tenant for a year who has planted his crop.
B, the landlord, tortiously drives him from the land in May, at which
time the weather and other conditions indicate that the crop will be a
very profitable one. In August an excessively dry spell burns up all
the crops in the immediate neighborhood. A is nevertheless entitled to
recover the value of the crop of which he was dispossessed, the value
being based upon the May prices for the crop.
Illustration 18. A is one of three young women who have been
selected by popular vote to take screen tests for the purpose of
determining which one is to be starred in a picture. B tortiously
prevents A from taking the test and another of the contestants is
selected. Later, however, A is given a screen test, as a result of which
it is admitted that A could not have been successful in the contest. A
is not entitled to substantial damages from B.
§918. AVOIDABLE CONSEQUENCES
(1) Except as stated in Subsection (2), one injured by the tort of

another is not entitled to recover damages for any harm that he could
have avoided by the use of reasonable effort or expenditure after the
commission of the tort.
(2) One is not prevented from recovering damages for a particular
harm resulting from a tort if the tortfeasor intended the harm or was
aware of it and was recklessly disregardful of it, unless the injured
person with knowledge of the danger of the harm intentionally or
heedlessly failed to protect his own interests.
Illustration 2. A, a trespasser upon B’s pasture, negligently leaves
open a gate in the fence. B sees that the gate is open but carelessly
fails to close it, as a result of which B’s cattle escape and are lost. B is
not entitled to damages for the loss of his cattle.
Illustration 5. A destroys a fence on B’s land, intending for B’s
cattle to escape. B sees what is happening but in the belief that A
would be responsible for all harm caused by the destruction of the
fence, intentionally fails to prevent his cattle from escaping as he
easily could do. B is not entitled to recover damages for harm caused
to his cattle by their escape.
Illustration 6. A sets fire to a haystack near B’s barn, not caring
whether B’s barn with its contents will be destroyed. The fire spreads
to the barn. B sees the fire but instead of using an available hose to
put out the comparatively small blaze as a reasonable man would
have done, he runs to the neighboring farm to spread the alarm. On
his return it is too late to save the barn. In an action for trespass to
land, B can recover damages for the loss of the barn.
Comment e. When substantial expense and effort are required. A
person whose body has been hurt or whose things have been damaged
may not be unreasonable in refusing to expend money or effort in
repairing the hurt or preventing further harm. Whether or not he is
unreasonable in refusing the effort or expense depends upon the
amount of harm that may result if he does not do so, the chance that
the harm will result if nothing is done, the amount of money or effort
required as a preventive, his ability to provide it and the likelihood
that the measures will be successful. There must also be considered
the personal situation of the plaintiff. A poor man cannot be expected
to diminish his resources by the expenditure of an amount that might
be expected from a person of greater wealth. So too, whether it is
unreasonable for a slightly injured person not to seek medical advice
may depend on his ability to pay for it without financial
embarrassment. Likewise when a person seeks to recover damages
for loss of profits or because the tortfeasor has prevented him from
taking advantage of a favorable market, his financial ability to
provide a substitute for that of which he has been deprived is
relevant. If he has adequate resources, he must use them to minimize
the loss.
§919. HARM SUFFERED AND EXPENDITURES MADE IN EFFORTS TO AVERT

HARM
(1) One whose legally protected interests have been endangered

by the tortious conduct of another is entitled to recover for
expenditures reasonably made or harm suffered in a reasonable effort
to avert the harm threatened.
(2) One who has already suffered injury by the tort of another is
entitled to recover for expenditures reasonably made or harm suffered
in a reasonable effort to avert further harm.
Illustration 2. A destroys B’s fence and causes B’s pigs worth
approximately $50 to escape. B hunts for the pigs for a period of a
week, expecting daily to find them, which he finally does. It may be
found that B’s efforts in searching for the pigs were reasonable, even
though the value of the total time spent in searching for them exceeds
their value, since it may have been reasonable to continue the search
from day to day.
§920. BENEFIT TO PLAINTIFF RESULTING FROM DEFENDANT’S TORT
When the defendant’s tortious conduct has caused harm to the

plaintiff or to his property and in so doing has conferred a special
benefit to the interest of the plaintiff that was harmed, the value of the
benefit conferred is considered in mitigation of damages, to the extent
that this is equitable.
Comment a. The rule stated in this Section normally requires that
the damages allowable for an interference with a particular interest be
diminished by the amount to which the same interest has been
benefited by the defendant’s tortious conduct. Thus if a surgeon
performs an unprivileged operation resulting in pain and suffering, it
may be shown that the operation averted future suffering. If a surgeon
has destroyed an organ of the body, it may be shown in mitigation
that the operation improved other bodily functions.
Comment b. Limitation to same interest. Damages resulting from
an invasion of one interest are not diminished by showing that
another interest has been benefited. Thus one who has harmed
another’s reputation by defamatory statements cannot show in
mitigation of damages that the other has been financially benefited
from their publication, unless damages are claimed for harm to
pecuniary interests. Damages for pain and suffering are not
diminished by showing that the earning capacity of the plaintiff has
been increased by the defendant’s act. Damages to a husband for loss
of consortium are not diminished by the fact that the husband is no
longer under the expense of supporting the wife.
Illustration 4. A charges B with murder. In an action for
defamation in which B claims no special damages, the defendant
cannot show in mitigation that the business of B, a seller of soft
drinks, has been increased as the result of the charge.
Illustration 5. A charges B with being a member of a secret order.
B brings an action for defamation alleging as special damage the loss
of income by B as a surgeon. A can show in mitigation of damages
that because of the false charge, B has been enabled to attract crowds
to lectures given by him, to his great profit.
Illustration 6. A tortiously imprisons B for two weeks. In an
action brought by B for false imprisonment in which damages are
claimed for pain, humiliation and physical harm, A is not entitled to
mitigate damages by showing that at the end of the imprisonment B
obtained large sums from newspapers for writing an account of the
imprisonment.
Comment d. Causation. Under the rule stated in this Section to
justify a diminution of damages the benefit must result from the
tortious conduct. Thus one who, in boring for oil, fails to control the
well, thereby causing the plaintiff’s land and house to be covered
with petroleum, is not entitled to have the damages reduced by
showing that his success in drilling for oil in his land resulted in an
increase in value of the plaintiff’s land; the increase does not result
from the tortious inundation but from the fact that oil is discovered. . .
.
Illustration 8. A knocks B down, as a result of which B is
prevented from taking a ship that later sinks with all on board. B’s
damages for the battery are not diminished by his escape from death
resulting from A’s act. B, however, cannot recover damages for
failing to receive medical treatment that he would have received if he
had not missed the ship and the ship had not sunk.
Illustration 9. A fraudulently persuades B to purchase Blackacre
for $3000, although its value at that time is $2000. Had Blackacre
been as represented, the value would have been $3500. The following
week changes in the neighborhood cause Blackacre to appreciate in
value to $5000. B’s measure of recovery is not diminished by the
subsequent rise in market value.
2. Compensation for property. Consider the following problems

involving compensatory damages for the tortious destruction of property. It
sometimes may be important to identify details not given in the problems
that would affect your answers.
a. Plaintiff locks her bicycle to a lamppost near a curb. In parking his

car, defendant negligently backs into the bicycle and crushes it. How
should plaintiff’s damages be measured? What are the options?
b. The defendant negligently crashes his car into a telephone pole; the
pole is destroyed. The phone company (the owner of the pole) sues.
The defendant’s liability is clear. How should the plaintiff’s damages
be measured?
c. The plaintiff had 32 reels of film of all of her family’s big events:
weddings, little league games, Christmases, long-lost family
members, etc. She gave them to the defendant’s camera store to splice
together and put onto videotape; as she handed them over, she said,
“don’t lose these; they are my life.” The defendant lost them. How
should the plaintiff’s damages be measured? (Assume no contractual
limitations on the store’s liability.)
d. Defendant negligently burns plaintiff’s house down to its foundation.
Three months later a sinkhole opens and swallows up the foundation;
it is clear that it would have swallowed up the entire house if the
house still had been standing. What are plaintiff’s damages?
e. Plaintiff is fired from her job, and remains unemployed for three
months. Then, to her surprise, she obtains a new job that pays twice
as well as her old one. Meanwhile she has determined that back when
she was fired, she was the victim of the tort of wrongful discharge.
What are her damages?
2. Lost Earnings
The most important elements of compensatory damages in a personal injury

case (as opposed to a case involving property damage) typically are lost
wages, pain and suffering, and medical expenses. We will focus on the first
two of these elements because they present the most difficult and interesting
problems. As we shall see, some of these elements come into play not only
in lawsuits to recover for injuries suffered by the plaintiff but also in suits
for wrongful death. A bit of background will be helpful here. At common
law there was no such thing as a lawsuit for wrongful death. If someone
was killed by another’s negligence, neither the decedent’s estate nor the
decedent’s family could bring a suit to collect damages; the decedent’s
cause of action died with him. It thus generally was cheaper to negligently
kill people than to negligently injure them. This state of affairs was changed
in England in 1846 by Lord Campbell’s Act, and in the United States by
wrongful death statutes subsequently passed in every state. The statutes
differ somewhat in the sorts of suits they allow, but generally they permit
the survivors of someone killed by a tortfeasor to collect for the losses —
chiefly loss of economic support, but usually also “loss of society,” or
companionship — that they have incurred as a result of their decedent’s
death. Some states also allow “survival actions,” in which the decedent’s
estate sues to collect damages in the decedent’s name — i.e., any sums that
such decedents would have been entitled to collect from the defendant if
they had survived (hence the name of the action).
Either sort of statute can raise many difficult problems of valuation, and
the details of the statutory schemes, including the sorts of damages they
permit survivors to collect, often vary widely from one state to the next.
The general point to grasp is that if someone is sued for negligently causing
a death, the basis of the lawsuit will be a statute, not the common law. In
wrongful death cases it therefore becomes important to know precisely
what sort of recovery the governing statute permits. Certain common
problems in assessing damages nevertheless may arise in either a wrongful
death suit or in an ordinary suit at common law to recover for personal
injuries. For example, if a plaintiff is injured in an automobile accident, lost
earnings may be an element of the resulting common law claim for
damages; if a person dies in the accident, then lost earnings are likely to be
an element of the statutory wrongful death suit brought by the decedent’s
spouse.
1. Carpenters. In Landers v. Ghosh, 491 N.E.2d 950 (Ill. App. 1986),
Charles Landers was shot by a stranger at a gas station in Cahokia. He was
taken to the emergency room at a nearby hospital. The plaintiff’s evidence
was that the defendant, Dr. Ghosh, was called, and said he would come
soon; in fact Ghosh was about to perform an operation at another hospital,
and he did not arrive to help Landers until about three hours later. Landers
died during surgery. Landers’s wife sued Ghosh for negligence and won a
jury verdict against him. With respect to damages, the plaintiff’s evidence
was that Charles Landers was 22 years old when he died. He was
unemployed. He had not graduated from high school, but had passed a high
school equivalency exam and had been trained as a carpenter. The
plaintiff’s expert, one Grossman, created an estimate of Landers’s lost
earnings by assuming that he would have remained healthy and been fully
employed as a carpenter until his late sixties; that he would have started out
making between $11 and $12 per hour; and that he would have consumed
30 percent of his income himself. Grossman concluded by estimating that
the total loss to Landers’s family from losing his support would be
$411,349. Grossman also estimated that Landers would have provided
$1,000 in services around the house each year, for a value over his lifetime
of about $40,000-$60,000.
The jury awarded Landers’s wife a total of $400,000 — an amount
meant to cover not only his wife’s damages for loss of support but also her
damages for loss of consortium (or “loss of society”). The verdict did not
indicate how much of the amount was allocated to each of those categories.
The plaintiff appealed, claiming the award was inadequate. The court of
appeals affirmed:
The plaintiff suggests that the amount of the verdict rendered here is
adequate to compensate the decedent’s wife only for her loss of
consortium, “ignoring the other significant elements of damages
discussed herein,” including the absence of the decedent during the
minority of his son, estimated by the plaintiff to be of a value “well in
excess of $100,000.00.” From the instant record, however, it does not
appear either that the jury compensated the decedent’s wife solely for
her loss of consortium, ignoring the other aspects of damages about
which they were instructed, or that the jury awarded damages solely
for the lost wages of the decedent. The jury apparently chose, as it
was free to do, not to adopt the figures provided by Leroy Grossman,
perhaps in part because of the seasonal nature of the occupation the
decedent hoped to pursue, the effect of which the witness Grossman
had not addressed in his calculations. The jury may have rejected his
figures in part because of other considerations explored during cross-
examination of him, in part because the decedent apparently was a
smoker, or in part because the decedent appears to have been
unemployed at the time of his death. Although we cannot know the
reasoning of the jury in this regard, the record here does not support
the conclusion that the award is palpably inadequate, that the jury
ignored a proven element of damages, that the award was erroneous
or the result of passion or prejudice, or that the amount of the verdict
bears no reasonable relationship to the loss incurred.
2. Oil executives. In Pescatore v. Pan American World Airways, Inc.,

887 F. Supp. 71 (E.D.N.Y. 1995), Michael Pescatore was a passenger on
Pan Am flight 103 from London to New York in December 1988. A bomb
exploded on the aircraft, causing the plane to come apart over Lockerbie,
Scotland. The 243 passengers and 16 crew members all were killed.
Survivors of many of the passengers brought wrongful death claims against
Pan Am. A jury made a general finding, applicable to all of the cases, that
Pan Am had committed willful misconduct in failing to determine whether
every bag checked onto the airplane was matched to a passenger on the
flight, and in failing to inspect any bag that was unaccompanied by a
passenger. The case brought by Pescatore’s wife was then submitted to a
jury individually to determine her damages.
Michael Pescatore was 33 years old when he died. He had obtained an
undergraduate degree in physics from Harvard, and an M.B.A. from the
University of Chicago; he then went to work for British Petroleum (BP),
and became the youngest vice president in the company’s history.
Executives from British Petroleum testified that Pescatore was “well
positioned to move up in BP to the very, very high levels,” was “probably
the cream” of BP’s young executives, and was rising through the corporate
ranks “[f]aster than any contemporary.” His total compensation for 1988
was estimated to have been $193,175. The plaintiff’s expert estimated that
her lost support over the course of Pescatore’s lifetime amounted to
between $25,500,000 and $73,980,000 in 1988 dollars. The defendant’s
expert valued the loss of support damages at approximately $2,400,000.
The jury awarded Pescatore’s wife $9 million in compensation for her
husband’s lost earnings, and an additional $5 million for loss of society. Pan
Am moved for a new trial, contending the verdict was excessive; the district
court denied the motion:
Arguments that a rapidly rising executive officer, such as Michael

Pescatore, would not have contributed, with reasonable foreseeability,
$9 million to his wife over the ensuing thirty years border on the
frivolous. Quite apart from the testimony in the case, to find the jury
acted reasonably one need only consider the present compensation for
top corporate officers of major corporations similar to British
Petroleum. For example: (1) the aggregate compensation over the last
three years for the Chief Executive Officer (CEO) of Exxon was
$9,643,000; (2) the aggregate compensation over the last five years
for the CEO of Amoco was $9,518,000; (3) the aggregate
compensation over the last five years for the CEO of Occidental
Petroleum was $22,897,000; and (4) the aggregate compensation over
the last three years for the CEO of Texaco was $7,426,000. . . .
Similarly, the arguments that an award of $5 million for loss of
society, love, caring, comfort, affection and companionship,
measured over a projected period of at least thirty years (circa
$167,000 per year), is excessive are also without merit. The
testimonials to Michael Pescatore’s character, affectionate
relationship with his immediate family and friends, and his deep and
abiding love and affection for his wife were extensive, moving and
uncontradicted. That part of plaintiff’s testimony which recounted her
receipt of the news of her husband’s death was and is unforgettable.
The court of appeals affirmed. 97 F.3d 1 (2d Cir. 1996). Are the
dramatically different recoveries in Landers and Pescatore justifiable?
3. Housewives. In Haddigan v. Harkins, 441 F.2d 844 (3d Cir. 1970), the
plaintiff’s wife was killed in a three-car automobile collision. The plaintiff
sued the drivers of the other cars under Pennsylvania’s wrongful death
statute and won a jury verdict for $64,754.30. The court of appeals reversed
because of various errors in the trial, but it affirmed the plaintiff’s method
of making his case for damages:
[D]efendants urge that it was error to admit expert testimony on the

economic value of services rendered by a wife and mother. Mr.
Haddigan testified on direct examination that the decedent’s services
for her family included services each week as a cook, 17½ hours; as a
dishwasher, 14 hours; as a dietician, 2 hours; as a baker, 3 hours; as a
practical nurse, 1 hour; as a chambermaid, 7 hours; as a manager, 10
hours; as a seamstress, 5 hours; as a hostess, 2 hours; as a
housekeeper, 16 hours; as a governess, 20 hours; as a recreation
worker, 5 hours; as a handyman, 8 hours; as a laundress, 10 hours;
and as a waitress, 5 hours. (This left her 42½ hours a week, or six
hours a day for all her other activities including sleeping.) Plaintiff
then produced a witness, Rosner, an employment agency proprietor
who specializes in placement of domestics, dishwashers, cooks, etc.
Rosner was asked, without objection, to give the hourly rates of pay
commanded by each of the above mentioned employment categories
as of 1963 and as of 1967. Then, totaling the hours and the wages, he
valued decedent’s services in 1963 at $173.25 a week, and in 1967 at
$236.72 a week. . . .
But, say the defendants, assuming there was evidence, properly
admitted, to establish the value of decedent’s services, the plaintiff
offered little or no evidence of the cost which would have been
incurred to maintain her while she performed those services. As one
might expect, the attorney for plaintiff was considerably more
enthusiastic in establishing the extent and value of the lost services
than in establishing the cost of maintenance of decedent. There is,
however, ample proof in the record from which the jury could make a
fair determination.
4. Opportunity cost. Suppose a woman graduates from law school and

takes a job at a law firm at an annual salary of $100,000. After three years
she quits so that she can raise her children. Two years later she is killed by a
negligent automobile driver. Some economists have suggested that in a case
such as this, the appropriate damages due to the decedent’s family for lost
support must be at least $100,000 per year. The logic is that regardless of
what the pecuniary cost would have been of replacing the decedent’s
services around the house, her family must have considered those services
to be worth more than $100,000 — for that is what she gave up in order to
stay at home (setting aside the costs of substitute child care); if her services
had been worth less than $100,000 to the family, then presumably she
would have kept her job. This measure of damages thus involves looking at
what economists call the opportunity cost of the decedent’s services. (Every
decision to allocate resources has opportunity costs as well as costs of the
more direct and familiar variety; what are the opportunity costs of your
decision to attend law school?) No court takes this approach to measuring
tort damages, however. What are its shortcomings?
If you find the “opportunity cost” approach attractive, consider a
variation on it: suppose that Michael Pescatore had quit his job at British
Petroleum a year before he died so that he could pursue his dream of
becoming an oil painter, Zen master, or member of another such profession
unlikely to be remunerative. Should his wife nevertheless have been entitled
to collect $14 million using the “opportunity cost” theory just described?
Should she at least still be able to collect the $5 million for loss of society?
Is this case distinguishable from the case of the housewife?
5. Mitigation of damages. In Benwell v. Dean, 57 Cal. Rptr. 394 (Cal.
App. 1967), the plaintiff brought a wrongful death suit to collect for the loss
of support and loss of society that she alleged had resulted from her
husband’s death. At trial the defendant sought to cross-examine the plaintiff
about whether she had since remarried. The trial court did not allow the
question. The jury awarded damages to the plaintiff, and the defendant
appealed. The court of appeals affirmed:
The majority rule is that the surviving spouse’s remarriage, or the
possibility thereof, does not affect the damages recoverable in an
action for wrongful death of the deceased spouse. The rationale
underlying the majority rule, with which California is in accord, is
that the cause of action arises at the time of decedent’s death and the
damages are determinable as of the same time, and that the rule
providing for mitigation of damages on account of the surviving
spouse’s remarriage is highly speculative, because it involves a
comparison of the prospective earnings, services, and contributions of
the deceased spouse with those of the new spouse. . . .
Although the rule excluding evidence of remarriage may, at first
blush, appear to be unreasonable and unjust, the rationale underlying
the rule is best explained in Reynolds v. Willis, 209 A.2d 760 (Del.
1965), where it was stated that it was more reasonable to say that a
defendant should not be allowed to profit by an actual or possible
remarriage of the widow, just as he may not profit through monies
coming to her from insurance policies purchased by her husband
upon his own life, or from some other collateral source.
For an example of the minority view that a jury may consider a spouse’s
remarriage in calculating damages for lost support, see Jensen v. Heritage
Mutual Insurance Co., 127 N.W.2d 228 (Wis. 1964). Which rule makes
more sense?
6. The next Rockefeller. In Louisville & Nashville Ry. v. Creighton, 50
S.W. 227 (Ky. 1899), the plaintiff’s decedent, a child about four years old,
ran across the defendant’s railroad tracks in pursuit of music being played
by an organ grinder on the other side. One of the defendant’s trains struck
the child and killed him. The incident was found to be the result of
negligence on the part of the train’s engineer (he, too, had been watching
the organ grinder). The jury awarded the administrator of the child’s estate
$10,500 for lost earnings. The defendant appealed, claiming that the award
was excessive. The Kentucky Supreme Court reversed and ordered a new
trial:
The measure of damages is the fair compensation to the estate of the

child for the destruction of his capacity to earn money. The child was
under four years of age. There are many diseases incidental to
childhood, and it was by no means assured that this child would reach
manhood. His earning capacity would be nothing, or comparatively
little, until he reached puberty, or near that time. In the meantime he
would have to be supported, if he survived the dangers incidental to
childhood. What his earning capacity would be after all this is largely
a matter of conjecture. This court has sustained a number of verdicts
for loss of life, where compensation only was allowed, from amounts
ranging from $5,000 to $10,000, for adults who were vigorous and
had actual money-earning capacity; but we do not think that, where
compensation only is allowed, a verdict of $10,500 for the death of a
little child like this ought to stand.
Guffy, J., dissented:
I do not think that this court had any right to assume that this child
would not earn $10,500 over and above his expenses. If he should
have had the good fortune to become the president of a railroad
company, at $25,000 per year, he would in a very few years have
earned more than $100,000; if it should have been his good fortune to
become a judge of the Supreme Court of the United States, in a very
few years he would have earned many thousand dollars; or, if it had
been his good fortune to become a judge of this court, in eight years
he would have earned $40,000, and, allowing $2,000 per annum for
his personal expenses, he would have earned in eight years $24,000,
even if he had not been reelected; and the jury had just as much right
to assume that he would earn a large amount of money as this court
had to assume that he would not do so. It is a well-known fact that
many men earn many million dollars during life, and, if one of them
should be killed by the negligence or wrongful act of any person or
corporation, the recovery, under the doctrine announced in the
majority opinion in this case, would amount to millions. If such a
man as ex-Senator Brice, or a man like Gould, Vanderbilt,
Rockefeller, or many others who might be named, had been killed,
instead of the child Stock, the judgment must have been for millions
of dollars, because the earning capacity could have been established
beyond all question; and that, taken in connection with the probable
duration of life, would have called for a judgment which would
probably bankrupt almost any individual or corporation. . . .
If the doctrine announced in the opinion in this case is the law,
then no recovery can be had, if the decedent could not have earned
more than living expenses, and thus a plain and positive provision of
the constitution would be abrogated or disregarded entirely. It will not
do to say that nominal damages, or one cent, could be recovered in all
cases, under the opinion in the case at bar; for if the power to earn
money does not exceed the cost of living, as announced in the
majority opinion in this case, then not even one cent can be
recovered, and the result will be that persons and corporations may
negligently destroy the lives of a large number of citizens with
perfect impunity, and absolutely escape all pecuniary responsibility
therefor. . . .
7. Economic refinements. In the cases just considered we have seen

courts try to calculate the wages a party would have earned if injury or
death had not intervened. Devising a fully accurate award, however,
requires consideration of some additional economic matters.
a. Present value. Using a case like Pescatore as an example, the first
point to grasp is that the plaintiff is not entitled to a lump sum representing
all the support she ever would have received from the decedent if the
accident had not occurred. If she were given such a lump sum at the end of
the trial, she could then invest it, enjoy the interest on the investment, and
thus end up with more money than she would have received if the decedent
had lived. So the general practice in making damage awards for future
losses is to discount them to their present value: the plaintiff is given an
amount that, if invested safely, will grow into the correct amount once it is
due. Thus if the evidence shows that the plaintiff will miss out on $100,000
in salary ten years from now, the correct damage award today is not
$100,000; it is an amount that will have grown to $100,000 after sitting in
the bank for ten years. The same calculations can be made for every year of
the period at issue — year 11, year 30, and so forth; plaintiffs typically hire
economic experts to perform such calculations and present the resulting
figures to the jury. Naturally the numbers must also take into account
various uncertainties — the life expectancy of the plaintiff or the plaintiff’s
decedent, the amount of time they would have spent in the workforce, what
progress they would have made in their profession, and so forth.
One of the problems that arise in making those calculations involves
inflation. The difficulty is illustrated by O’Shea v. Riverway Towing Co.,
677 F.2d 1194 (7th Cir. 1982). The plaintiff was a 57-year-old cook who
was injured by the defendant’s negligence. Her annual wage at the time of
the accident was about $7,200. The trial court awarded her $86,033 in
future lost wages. The court of appeals affirmed, offering the following
analysis of the figures offered by the plaintiff’s economic expert:
[T]he object of discounting lost future wages to present value is to

give the plaintiff an amount of money which, invested safely, will
grow to a sum equal to those wages. So if we thought that but for the
accident Mrs. O’Shea would have earned $7200 in 1990, and we
were computing in 1980 (when this case was tried) her damages
based on those lost earnings, we would need to determine the sum of
money that, invested safely for a period of 10 years, would grow to
$7200. Suppose that in 1980 the rate of interest on ultra-safe (i.e.,
federal government) bonds or notes maturing in 10 years was 12
percent. Then we would consult a table of present values to see what
sum of money invested at 12 percent for 10 years would at the end of
that time have grown to $7200. The answer is $2318. But a moment’s
reflection will show that to give Mrs. O’Shea $2318 to compensate
her for lost wages in 1990 would grossly undercompensate her.
People demand 12 percent to lend money risklessly for 10 years
because they expect their principal to have much less purchasing
power when they get it back at the end of the time. In other words,
when longterm interest rates are high, they are high in order to
compensate lenders for the fact that they will be repaid in cheaper
dollars. In periods when no inflation is anticipated, the risk-free
interest rate is between one and three percent. Additional percentage
points above that level reflect inflation anticipated over the life of the
loan. But if there is inflation it will affect wages as well as prices.
Therefore to give Mrs. O’Shea $2318 today because that is the
present value of $7200 10 years hence, computed at a discount rate
— 12 percent — that consists mainly of an allowance for anticipated
inflation, is in fact to give her less than she would have been earning
then if she was earning $7200 on the date of the accident, even if the
only wage increases she would have received would have been those
necessary to keep pace with inflation.
There are (at least) two ways to deal with inflation in computing
the present value of lost future wages. One is to take it out of both the
wages and the discount rate — to say to Mrs. O’Shea, “we are going
to calculate your probable wage in 1990 on the assumption,
unrealistic as it is, that there will be zero inflation between now and
then; and, to be consistent, we are going to discount the amount thus
calculated by the interest rate that would be charged under the same
assumption of zero inflation.” Thus, if we thought Mrs. O’Shea’s real
(i.e., inflation-free) wage rate would not rise in the future, we would
fix her lost earnings in 1990 as $7200 and, to be consistent, we would
discount that to present (1980) value using an estimate of the real
interest rate. At two percent, this procedure would yield a present
value of $5906. Of course, she would not invest this money at a mere
two percent. She would invest it at the much higher prevailing
interest rate. But that would not give her a windfall; it would just
enable her to replace her lost 1990 earnings with an amount equal to
what she would in fact have earned in that year if inflation continues,
as most people expect it to do. (If people did not expect continued
inflation, long-term interest rates would be much lower; those rates
impound investors’ inflationary expectations.)
An alternative approach, which yields the same result, is to use a
(higher) discount rate based on the current risk-free 10-year interest
rate, but apply that rate to an estimate of lost future wages that
includes expected inflation. Contrary to Riverway’s argument, this
projection would not require gazing into a crystal ball. The expected
rate of inflation can, as just suggested, be read off from the current
long-term interest rate. If that rate is 12 percent, and if as suggested
earlier the real or inflation-free interest rate is only one to three
percent, this implies that the market is anticipating 9-11 percent
inflation over the next 10 years, for a long-term interest rate is simply
the sum of the real interest rate and the anticipated rate of inflation
during the term.
b. Taxes. The Internal Revenue Code (§104(a)(2)) provides that
compensatory damages, including sums awarded to a plaintiff as
compensation for lost wages, are not subject to federal income tax. Many
states do not tax them, either. Can you think of a rationale for these rules?
Does it follow that in calculating an award for lost wages, a court should
subtract out the taxes that would have had to be paid on them if they were
earned in the market? Many states say so; others disagree, holding that
compensatory damages should be determined without reference to taxes.
What defense can be made of this rule? Unlike compensatory damages,
punitive damages are taxable, see O’Gilvie v. United States, 519 U.S. 79
(1996); also taxed is the interest a plaintiff receives once a damage award is
invested and begins generating interest.
c. Prejudgment interest. Bringing and winning a lawsuit can take many
years; by the time damages are awarded in a wrongful death suit like
Pescatore, the plaintiff already has been deprived of several years of
support. Clearly that lost income is recoverable as part of the award. But
now consider a harder question: should the plaintiff also be able to collect
the interest she has missed because the damage award was paid at the end
of the case rather than immediately upon her husband’s death? To make the
question more concrete, consider that in the actual Pescatore case the
plaintiff’s decedent died in 1988. The court entered judgment in the
plaintiff’s favor in 1995. As we saw, the plaintiff’s basic award in the case
was approximately $14 million. If she had received that award on the day of
her husband’s death, she would have obtained an additional seven years of
interest on it; she would have gained a smaller but still significant sum if
the money had been paid the day the suit was filed rather than at the end of
it. Should she have been able to collect that interest from the defendant?
The traditional answer of the common law was no: prejudgment interest
was permitted only as to “liquidated” amounts — in other words, only if it
was clear from the outset of the suit how much money the plaintiff would
be due if the defendant were found liable. This traditional rule has been
modified or abandoned by judicial decision or statute in many states. See,
e.g., Mass. Gen. Laws ch. 231:
§6B. INTEREST ADDED TO DAMAGES IN TORT ACTIONS

In any action in which a verdict is rendered or a finding made or an
order for judgment made for pecuniary damages for personal injuries
to the plaintiff or for consequential damages, or for damage to
property, there shall be added by the clerk of court to the amount of
damages interest thereon at the rate of twelve per cent per annum
from the date of commencement of the action even though such
interest brings the amount of the verdict or finding beyond the
maximum liability imposed by law.
Consider also Ohio Rev. Code Ann. §1343.03(C):
Interest on a judgment, decree, or order for the payment of money

rendered in a civil action based on tortious conduct and not settled by
agreement of the parties, shall be computed from the date the cause of
action accrued to the date on which the money is paid if, upon motion
of any party to the action, the court determines at a hearing held
subsequent to the verdict or decision in the action that the party
required to pay the money failed to make a good faith effort to settle
the case and that the party to whom the money is to be paid did not
fail to make a good faith effort to settle the case.
Why does this last statute link the payment of prejudgment interest to the
defendant’s participation in settlement talks?
In the Pescatore case, prejudgment interest was authorized by statute
and resulted in an additional award to the plaintiff of $5 million: “There is
no legitimate claim that the jury’s assignment of $5,045,040.00 in interest
on the award from the date of Mr. Pescatore’s death to the date of the
judgment is excessive. Upon examination of the jury’s final figures, it is
apparent that they applied the same 8.5% interest rate that was obtainable
on the purchase of a five year Treasury Bond on the date of death.”
8. Insurance. Insurance coverage provides the backdrop and motivation
for most tort litigation, for the uninsured defendant rarely is worth suing.
Insurance coverage can be broadly divided into two varieties. “First-party”
insurance protects its holder against losses resulting from a particular event.
Coverage of medical expenses or for damage suffered in automobile
accidents is a classic example. “Third-party” insurance protects the insured
against the threat of paying damages to another harmed by the insured’s
conduct. Also known as liability insurance, it is called “third-party”
insurance because it causes the insurance company to pay the injured party,
not the owner of the policy. The insurance policies bought by owners of
homes and automobiles contain both types of coverage, as do the
“comprehensive general liability” (CGL) policies the insurance industry
offers on a more or less uniform basis to commercial enterprises. Liability
insurance policies generally are limited to “accidents,” excluding coverage
for intentional torts, and often will not cover punitive damages; some states
forbid any such coverage by statute. (Why?)
Insurance coverage can affect tort litigation in several ways. Naturally
the existence of insurance coverage that can be used to satisfy a large
damage award provides the plaintiff with an incentive to litigate. But the
more complex consequence arises from the liability insurer’s usual duty to
defend the policyholder against all claims of personal injury or property
damage. The obligation extends to claims that are groundless. The
insurance company’s position can be made delicate by two facts: under the
typical policy it has the right to control the litigation and make decisions
about whether and when to settle a case; meanwhile the company’s
obligation to pay is limited to whatever amount of coverage is provided in
the policy. Conflicts of interest can result. Think of a tort claim for $50,000
against a defendant with a $25,000 insurance policy. The insured would
very much like the company to settle the case for the policy limits or any
lesser sum, thus protecting against any chance that the insured will have to
pay damages. The insurance company’s own interests may be different,
however; it might like to turn down a settlement offer of $25,000 because it
thinks its expected outcome at trial is better than that — and if it isn’t, the
costs of the excess judgment will be borne by someone else (the insured).
Courts have addressed such conflicts of interest in various ways. The
insurer has a general obligation to act in “good faith” — and can be the
subject of an action for “bad faith” if it is found to have placed its interests
ahead of the interests of the insured in weighing settlement offers. As stated
by the California Supreme Court in Crisci v. Security Insurance Co., 426
P.2d 173 (1967), “the test is whether a prudent insurer without policy limits
would have accepted the settlement offer.” Other jurisdictions sometimes
require some further showing of culpability on the insurance company’s
part before imposing liability for bad faith — a finding of
“unreasonableness” or worse. How would you expect these rules to affect
the dynamics of the resulting settlement negotiations between the plaintiff
and the defendant’s insurer?
A separate set of issues raised by the insurance company’s role involves
the collateral source rule. Suppose the plaintiff is hospitalized after being
injured by the defendant’s negligence. The plaintiff’s first-party insurance
carrier covers the resulting medical expenses. Should the plaintiff be able to
recover those expenses from the defendant despite having received payment
for them from a “collateral” source — i.e., the insurer? This question has
generated a great deal of judicial and scholarly discussion. The common
law held that the plaintiff was indeed entitled to collect damages from the
defendant despite having already been made whole by the insurance
company. Does this result in a windfall for the plaintiff, or is the plaintiff’s
contract with the insurance company best understood as a side bet in which
the defendant has no legitimate interest? (If the damages due from the
defendant were reduced because the plaintiff had insurance coverage, then
wouldn’t the plaintiff have been better off not buying insurance? For then
the plaintiff still would have received compensation — this time from the
defendant — but would have avoided paying premiums.)
Some states have changed the collateral source rule by statute,
abolishing or limiting it either across the board or for certain types of claims
such as those involving medical malpractice. But even where this has not
been done, double recoveries by plaintiffs are not common as a practical
matter. Insurance policies typically provide either that the company must be
reimbursed if the insured collects damages from a defendant to cover the
same costs the insurance company already has paid; or the policies provide
that the insurance company is “subrogated” to the rights of the insured,
meaning that the company has the power to bring a suit against the
defendant to recoup the benefits it paid to its insured.
3. Pain and Suffering; Emotional Distress; Hedonic Damages
Damages for pain and suffering commonly are awarded to successful

plaintiffs in personal injury cases. Quantifying this sort of damage is a
vexing problem, however; the jurors generally are invited to fix a sum in an
amount they find reasonable, with the task of helping them define
“reasonableness” largely left to the lawyers. Below are excerpts from some
closing arguments that have been attempted by plaintiffs’ lawyers seeking
compensation for their clients’ pain and suffering in three personal injury
cases; which (if any) do you think are proper, and which improper?
1. The dentist hypothetical. “You go to your dentist. Your dentist
examines your mouth and he sees a bad tooth and he has to extract it. Now,
physically, it is very possible for him to take that tooth out without giving
you any painkiller. There is nothing that says he has to give you an
anesthetic. But how many of us wouldn’t pay the extra few dollars to have a
painkiller to avoid that pain? I say this to you only as an example of how
we do in our lives put a monetary value on pain. There is no question here
that Ruby Cox has suffered with painful injuries. So when you’re in there
thinking about these intangibles, think what it means to suffer on a daily
basis and a daily basis not only up to now but into the future. . . . You are
going to hear Judge Thompson charge you about Ruby’s life expectancy,
which is about 31 years, and if you just multiply that out by the number of
days in a year you will figure out that that comes to about 11,000 days of
life expectancy, and I will say to you, members of the jury, that Ruby is
entitled to fair compensation, not nominal, but fair compensation for each
and every one of those days.” See Cox v. Valley Fair Corp., 416 A.2d 809
(N.J. 1980).
2. The Golden Rule. “How much are you going to give this woman? I
want you, when you go back to the jury room, to figure on what she is
entitled to. Dr. Brindley says she is hurt. Dr. Viers says she has lost 82% of
her hearing. What is your hearing worth? Now think about it that way.
Apply the Golden Rule when you come to answer this question. What’s
your ear worth? What’s 82% loss of hearing in one of your ears worth?
What would you sell your ear for? Either one of them? Now think about it
that way.” See Red Top Cab Co. v. Capps, 270 S.W.2d 273 (Tex. Civ. App.
1954).
3. The job offer. “In considering what is an adequate sum for this young
man, suppose I was to meet one of you ladies on the street and I say to you,
‘I want to offer you a job and I want to tell you a little bit about this job
before you say you are going to accept it; one peculiar thing, if you take it
you have to keep it for the rest of your life, you work seven days a week, no
vacations, work daytime and night. The other thing is, you only get paid
$3.00 a day. Here is your job — your job is to suffer Mr. Faught’s
disability.’ ” See Faught v. Washam, 329 S.W.2d 588 (Mo. 1959).
4. Statutes and arguments. In some jurisdictions, legislatures have
assumed the task of regulating lawyers’ ability to make arguments like
these. See, e.g., this provision from New Jersey:
(b) In civil cases any party may suggest to the trier of fact, with
respect to any element of damages, that unliquidated damages be
calculated on a time-unit basis without reference to a specific sum. In
the event such comments are made to a jury, the judge shall instruct
the jury that they are argumentative only and do not constitute
evidence.
N.J. Court Rules, 1:7-1. Does it make sense to allow lawyers to suggest that
damages be calculated “on a time-unit basis” but “without reference to a
specific sum”?
5. Hang fire. In Olin Corp. v. Smith, 990 S.W.2d 789 (Tex. App. 1999),
the plaintiff, Joshua Smith, went hunting with friends near a ranch in
Mason, Texas. They traveled in a Ford Bronco pickup truck; Smith rode in
the passenger seat. During the drive, Smith spotted a wild pig and opened
fire on it with a .22 caliber revolver out the side window of the truck. They
pursued the pig past a thicket and continued to fire at it until Smith heard a
“click” from his gun. Assuming it was empty, he put it on his thigh and
reached for more ammunition. The gun then discharged into his left leg,
which eventually had to be amputated below the knee. Smith sued Olin, the
maker of the ammunition, claiming that the accident resulted from a “hang
fire” — a delayed firing caused by a defect in the bullet’s ignition system. A
bench trial produced in a verdict for Smith; he was awarded $6,343,444,
including $5,580,000 for “physical pain and mental anguish, disfigurement,
and physical disability.” Olin appealed, arguing among other things that the
award of damages was excessive. The court of appeals affirmed:
[A]t the time of the shooting, Joshua was 16 years of age and had a
reasonable life expectancy of 55.8 years. . . . Extensive testimony
described the months of extreme pain and mental anguish which
Joshua sustained while doctors attempted to save his leg. Because
Joshua’s leg never properly healed, the leg was amputated below the
knee and Joshua was fitted for a prosthesis.
The evidence established that Joshua has undergone extensive
surgical procedures and will continue to require surgery. Joshua’s
prosthesis will wear out from normal use every three to five years.
Volumetric changes in the size of his partially severed leg require
Joshua to utilize wrenches in order to keep the prosthesis properly
fitted. Joshua experiences severe blistering of the skin of his leg and
often complains of “phantom pain,” a sensation that feels like the toes
of his amputated foot are being bent “backwards and forwards, just
crunching them as hard as they can.” . . . [W]e cannot say that the
judgment is supported by evidence so weak as to make it manifestly
unjust.
6. Gangrene. In Williams v. United States, 747 F. Supp. 967 (S.D.N.Y.

1990), the plaintiff, Williams, was a former inmate at the federal
penitentiary in Otisville, New York. He was diabetic, and while he was
imprisoned he contracted a bacterial infection in his right foot related to the
diabetes. His evidence was that the prison’s medical officer misdiagnosed
the problem, originally believing it to be a case of athlete’s foot or other
fungal infection. The condition of the foot worsened until it developed a
“tumor-like” appearance and discharged infectious material through a
fissure on one of his toes. Later it was determined that the foot was infected
with E. Coli bacteria. Williams was transferred to a hospital, but the prison
failed to notify the hospital of the E. Coli diagnosis. The hospital in turn
continued to mistreat Williams’s ailment. At last one of the physicians
noticed that Williams’s foot was gangrenous and that the gangrene was
progressing up his leg. The physician recommended the immediate
amputation of the leg below the knee, and Williams agreed. He then
brought suit against the United States under the Federal Tort Claims Act.
After a bench trial the judge found the government liable for the loss of
Williams’s leg. He then turned to the question of damages:
[When the amputation occurred] Williams was 48 years of age and

had a life expectancy of 24 years. Now at age 53 Williams can be
expected to live for 20.5 more years, that is until the age of 73.5
years. . . .
Following the amputation, Williams suffered “phantom limb
pains,” sharp pains “that would grab at you occasionally” and
“constant throbbing and pain” related to changes in the weather, but
he had no other complaints. When the shrinking process stabilized,
Williams was fitted with a permanent prosthesis, and underwent
physical therapy to learn to walk on it and rebuild the muscle tissue in
his right thigh that had atrophied during his rehabilitation.
When Williams began ambulating on the prosthesis, he
experienced patellar (knee) pain in October and November 1985 due
to the rubbing movement of the prosthesis against his stump and the
shrinkage and expansion of his right thigh causing irritation and
blisters, “which is almost like a piece of sand, pebble within the
shoe.” Williams must remove the prosthesis for periods of time once
a month or every other month and walk with crutches to allow the
sores to heal. . . .
Williams tries to walk without the assistance of a cane or
crutches, but must have such assistance if he walks more than four or
five city blocks. . . . Williams testified that prior to the amputation, he
engaged in bike riding, swimming, roller skating and jogging, which
activities he is now unable to perform. . . .
Williams’ background has been considered for the purpose of
assessing the potential for the amputation to have already affected or
to prospectively affect Williams’ emotional or mental state. Williams,
as we have seen, has spent most of his adult life as a prison inmate;
he has a history of long intravenous drug and alcohol use making him
more susceptible to psychopathology than members of the general
population not so afflicted; he was unable to hold a steady job during
periods of time he was not incarcerated; and he has now suffered
from diabetes for approximately ten years and continues to smoke,
but his diabetes appears to be under control. . . .
In his post-trial brief, plaintiff requests an award of $1,500,000 in
light of the awards for pain and suffering in prior New York cases
involving below-the-knee amputations called to the court’s attention
by plaintiff. These cases have been carefully reviewed, and the court
has taken into account the dates of the decisions and an inflationary
factor. Based on all the facts and circumstances disclosed by the
present record, an award to plaintiff of $500,000 (without any offset
for comparative negligence) is clearly justified for his past and future
pain and suffering and for the loss of his leg.
What is the best way to explain the different outcomes in Williams v.

United States ($500,000 awarded for amputation of leg below the knee) and
Olin Corp. v. Smith ($5 million awarded for amputation of leg below the
knee)?
7. Pre-impact fright. In Beynon v. Montgomery Cablevision Ltd.
Partnership, 718 A.2d 1161 (Md. 1998), the Maryland state police stopped
all traffic on Interstate 495 — the “beltway” around Washington, D.C. — to
permit the defendant’s workers to repair a broken television cable one night
at around 2:00 A.M. Traffic backed up for about a mile in both directions.
The plaintiffs’ decedent, Douglas Beynon, was driving a van toward the
backed up traffic at full speed when he realized that a tractor-trailer was
stopped in his lane less than 200 feet ahead. He slammed on his brakes,
leaving 71 feet of skidmarks on the highway; he nevertheless collided with
the truck at a speed of about 40 miles per hour and died on impact. His
parents sued the cable company, alleging that it failed to provide adequate
notice to oncoming motorists that it was performing work that would cause
traffic to stop. They also brought a suit against the owner of the tractor-
trailer alleging that the truck was not equipped with adequate warning lights
on its rear. A jury brought in a verdict for the plaintiffs and awarded them
over $1 million for economic losses and pain and suffering. They also
awarded $1 million to compensate for Douglas Beynon’s “pre-impact
fright.” The trial judge reduced the latter award to $350,000, the maximum
amount of noneconomic damages permitted by state statute in cases
involving automobile accidents. The defendants appealed, claiming among
other things that the award for Beynon’s pre-impact fright should not have
been allowed. The Maryland Court of Appeals affirmed:
[T]he decedent’s fright is capable of objective determination by the

71½ feet of skid marks that the plaintiffs argued, and the jury
apparently believed, resulted from the decedent’s apprehension of
impending death, and the collision itself. . . . Damages for “pre-
impact fright” are recoverable when the decedent experiences it
during the “legitimate window of mental anxiety.” Faya v. Almaraz,
620 A.2d 327, 338 (Md. 1993), In this case, that window opened
when the decedent became conscious of the fact he was in imminent
danger and it closed with his death. . . .
A rule that does not permit a decedent’s estate to recover pre-
impact fright damages in a survival action would be illogical in view
of the fact that a victim who survives an accident similar to the one in
this case would be entitled to recover damages for the emotional
distress and mental anguish he or she suffered before the accident,
independent of any physical injury that may have been sustained
before, or after, the emotional injury. The purpose of survival statutes
is to permit a decedent’s estate to bring an action that the decedent
could have instituted had he or she lived. Here, there is no question
that, had he lived, the decedent would have been permitted to recover
damages for the “pre-impact fright” he suffered before crashing into
rear of the tractor-trailer.
Wilner, J., dissented:
The Majority is comfortable allowing the jury to infer that, during the
one-and-a-half to two-and-a-half seconds that Mr. Beynon was
desperately trying to stop his vehicle and avoid the collision, he must
have been consumed with conscious fright — anticipating his
imminent death, worrying about the effect of his death on his family,
chagrined at losing the opportunity to experience the pleasures of
continued life, fearful of any pain that he may momentarily suffer,
concerned, perhaps, about what, if any, kind of afterlife he might
face. If there was any substantial evidence that any of those thoughts
were, in fact, consuming Mr. Beynon during that second or two, I
would agree that a recovery would be permissible. But there was no
such evidence. It is rank speculation to conclude that Mr. Beynon was
consciously thinking about anything other than stopping his vehicle,
or, indeed, that his mind and body were engaged in anything but an
instinctive reaction directed entirely at self-preservation, requiring
little or no ideation at all. . . .
In most pre-impact fright cases where an award is made, although
the absolute size of the jury award is ordinarily not great, often
ranging from $5,000 to $15,000, the amount per second of fright is
enormous. Here, the jury’s actual award amounted to at least
$400,000 per second of fright, later reduced to $140,000 per second
of fright. The problem, however, is not simply one of amount.
Whether the award is great or small, when grounded on nothing more
than skid marks or other evasive action, it can only be a sympathy
verdict based not on any substantial evidence of fright but rather on a
desire either to compensate the decedent’s beneficiaries for his or her
death, beyond what is allowed in a wrongful death action, or to
punish the wrongdoer.
Does it follow from Benyon that if the plaintiff’s decedent had been able
to stop his car, he still would have been entitled to $350,000?
8. Recovery for humiliation. From the Restatement (Second) of Torts:
§905. COMPENSATORY DAMAGES FOR NONPECUNIARY HARM
Comment d. Humiliation. One who has a cause of action for a tort

may be entitled to recover as an element of damages for that form of
mental distress known as humiliation, that is, a feeling of degradation
or inferiority or a feeling that other people will regard him with
aversion or dislike. This state of mind may result from a physical
harm, an imprisonment, a defamatory statement, the disruption of the
marital relation, or even the deliberate trespass to land or destruction
or dispossession of chattels.
Illustration 3. A negligently causes B to lose an ear. B is entitled
to damages not only for the pain and suffering, but also for the
humiliation caused by his appearance.
Illustration 4. A seduces B’s wife. B is entitled to damages for his
humiliation.
Illustration 5. A wantonly dispossesses B of household furniture
to the knowledge of B’s neighbors. B is entitled to damages for
humiliation.
In torts involving offense to a sense of dignity, the element of
damages based on the imposition of humiliation on the injured party
may have a supplementary feature in the sense of vindication that
arises from a judgment for “compensatory” damages that declares
publicly that he has been mistreated and that he was justified in
resenting it.
Comment i. Measure of recovery. The length of time during which
pain or other harm to the feelings has been or probably will be
experienced and the intensity of the distress are factors to be
considered in assessing the amount of damages. In determining this,
all relevant circumstances are considered, including sex, age,
condition in life and any other fact indicating the susceptibility of the
injured person to this type of harm. . . .
The extent and duration of emotional distress produced by the
tortious conduct depend upon the sensitiveness of the injured person.
The court, however, will not permit consideration of disturbances
which, conceding full weight to individuality, are wholly abnormal
and unreasonable. Thus, unless a recognizable mental disease results,
there can be no recovery for a long-continued morbid propensity to
fear death from rabies, if there is proof that the dog that bit the
injured person was healthy, nor can there be recovery for the totally
unfounded fear of a woman that an injury has prevented her from
ever being able to have a child.
9. An absurd figure? In Douglass v. Hustler Magazine, Inc., 769 F.2d

1128 (7th Cir. 1985), the plaintiff, Robyn Douglass, was an actress who
posed in the nude for a photographer. She signed a release authorizing the
use of the photos in Playboy magazine, where some of them were
published. Several years later, Hustler magazine also obtained and
published the photographs. Douglass sued Hustler and the photographer for
invasion of privacy. A jury awarded her $500,000 in compensatory
damages, which included $300,000 for emotional distress; it also awarded
her $1.5 million in punitive damages against Hustler, which the trial judge
reduced, via remittitur, to $100,000. The judge declined the defendant’s
request for a new trial, ruling that “[t]he jury’s award of compensatory
damages . . . cannot fairly be described as ‘grossly excessive’ or
‘monstrous’ or with similar pejorative adjectival terms.” The court of
appeals disagreed, and ordered a new trial for that and other reasons:
The $300,000 for emotional distress is an absurd figure. Though

distressed by the Hustler incident, Douglass suffered no severe or
permanent psychiatric harm — nothing more than transitory
emotional distress (some of it from obscene phone calls stimulated by
the publication). The figure is ridiculous in relation to the highest
judgment yet upheld on appeal in a series of cases arising from the
Chicago Police Department’s former practice of “strip searching”
women arrested for minor crimes (mainly traffic offenses): $60,000.
This was in Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1275-76
(7th Cir. 1983), where the plaintiff was strip searched in the presence
of two male police officers and jeering prostitutes. We have
repeatedly emphasized — and take this opportunity to emphasize
again — that we will not allow plaintiffs to throw themselves on the
generosity of the jury; if they want damages they must prove them.
10. The wall of polite skepticism. In Weller v. American Broadcasting

Companies, Inc., 283 Cal. Rptr. 644 (Cal. App. 1991), the plaintiff, Michael
Weller, was an antique dealer who sold a silver candelabra to the DeYoung
museum in San Francisco for $65,000. The museum believed the
candelabra had been made in the early nineteenth century by Paul Storr, a
famous English silversmith; that it may once have belonged to the Duke of
Cumberland; and that for the last century it had been in the custody of a
Texas family that wished to remain anonymous. About a year later, the
assistant news director at the defendant television network’s affiliate, KGO,
received a tip casting doubt on the candelabra’s pedigree and suggesting
that the museum paid too much for it. The station went on to run a series of
seven televised news reports on the candelabra, including one called
“Museum Fraud?” The series suggested that the candelabra might have
been stolen from the home of a well-known San Francisco sculptress who
had died some years earlier, that it might have been improperly altered and
restored, and that the museum may have overpaid Weller for it. Weller
brought suit for defamation. The jury returned a verdict in his favor,
awarding him $1 million for damage to his reputation and another $1
million for mental suffering. The defendant appealed, arguing among other
things that the damages awarded for mental suffering were excessive. The
In support of his claim for damages for emotional distress, Weller

testified that he initially suffered from anger, worry, sleeplessness,
loss of appetite and depression. He said that after several weeks these
feelings “settle[d] into longterm depression.” He further testified that
he had very distressing conversations with the former-owner of the
candelabra and her representative, who were upset that a transaction
they intended to keep quiet was the subject of so much publicity.
Weller also was subjected to jokes from other dealers, and was
constantly embarrassed by having to explain that he was not a thief
and by the “wall of polite skepticism.” Weller further testified
regarding the humiliation he felt in explaining these events to his
family, and the sorrow he experienced because his mother died before
he was vindicated by the jury verdict.
In support of their contention that the damages are excessive,
appellants cite numerous cases in which the courts have concluded
that the damage awards were excessive. This kind of comparative
analysis is simply no substitute for a review of the record in this case
against the “historically honored standard of reversing as excessive
only those judgments which the entire record, when viewed most
favorably to the judgment, indicates were rendered as a result of
passion and prejudice on the part of the jurors.” Bertero v. National
General Corp. 529 P.2d 608 (Cal. 1974). . . . Our review of the
record, when viewed most favorably to the judgment, leads us to the
conclusion that, although the damages awarded were indeed high,
they are not so out of proportion with the evidence that we should
infer that the judgment is the product of passion or prejudice.
What is the best way to explain the different outcomes in Weller v.

American Broadcasting Companies, Inc. ($1 million award for emotional
distress found supported by the evidence) and Douglass v. Hustler
Magazine, Inc. ($300,000 award for emotional distress found “absurd” and
excessive)?
11. The desire for the table. In Daugherty v. Erie Ry. Co., 169 A.2d 549
(Pa. 1961), the plaintiff was a passenger in an automobile that collided with
a railroad train. He suffered disfiguring injuries to his head and face that
required him to undergo extensive surgery and wear a head cast for two
months. An additional consequence of the accident was that his olfactory
nerve was damaged, causing him to lose his sense of taste and smell. He
brought suit against the railroad and the driver of the car. The jury brought
in a verdict in his favor for $5,000. The trial court ordered a new trial on the
ground that the award of damages was “so inadequate as to be patently
unjust.” The Pennsylvania Supreme Court affirmed:
One of the heaviest losses sustained by the plaintiff is that of

disfigurement. . . . [T]he trial judge said that one side of the plaintiff’s
face is “caved in” and the “shape of his whole head is altered.”
People who have known the plaintiff for years now pass him on the
street without recognizing him. Persons who knew him from boyhood
were unable to reconcile the plaintiff’s present appearance with the
way they had known him in the past. . . .
In these days of extensive pictorial reproduction through portraits,
sketches, photographs, motion pictures and television, a photogenic
personality counts for more than can be estimated in dollars and
cents. However, difficulty in computation should not deprive the
victim of a disfiguring accident from an approximate recompense for
what he loses through a crippling of his public personality. . . .
The appellants also fail to comment on another very serious
impairment sustained by the plaintiff, — his loss of the senses of taste
and smell. One does not need to be a gourmand or gourmet to
conclude that the consumption of food and drink represents a not
inconsiderable portion of man’s enjoyment of life. To be deprived of
the capacity to enjoy flavorful dishes and palatable beverages is to be
robbed of much of what goes into a rewarding existence because,
with the “inner man” satisfied, one can work with greater zest in the
accomplishment of his chosen tasks and in making his contribution to
the happiness of those dependent upon him and mankind in general.
The defendant has lost much of the desire for the table because he can
detect no difference in food. Whether it be the rarest delicacies or the
commonest kind of provender which he eats, he tastes only sawdust.
12. Personal enjoyment. In Hogan v. Santa Fe Trail Transportation Co.,

85 P.2d 28 (Kan. 1938), the plaintiff was an accomplished violinist. Her car
was hit by the defendant’s truck; in the accident she broke the fifth
metacarpal bone of her left hand, resulting in a permanent stiffening of her
little finger. The finger was deprived of its strength and its lateral motion,
leaving her unable to play the violin. She won a jury verdict against the
defendant for $5,274, of which $4,000 represented the jury’s estimate of her
“loss of enjoyment from being unable to play the violin.” The defendant
appealed, claiming this was an inappropriate basis for damages; the Kansas
Supreme Court reversed, agreeing with the defendant that the award must
be reduced by $4,000. Said the court, “We hold that loss of enjoyment
resulting from being unable to play the violin is too speculative and
conjectural to form a sound basis for the assessment of damages.” The court
also cited with approval this passage from a similar Indiana case, City of
Columbus v. Strassner, 25 N.E. 65 (Ind. 1890):
The question of damages, like other legal propositions, should rest

upon some substantial basis. The following inquiries therefore
suggest themselves: What is “personal enjoyment?” How are we to
ascertain to what extent it is possessed by a human being? How can
its absence and the cause thereof be demonstrated? If a person for any
cause has been deprived of “personal enjoyment,” how are we to go
about adjusting his loss upon a money basis? These questions seem to
be pertinent, but unanswerable, and suggest an insuperable difficulty
to the measurement of damages because of loss of “personal
enjoyment.”
Wedell, J., dissented:
[T]he enjoyment in the instant case was not an imaginary enjoyment.

It was a fixed and definite enjoyment which existed at the time of the
injury. Nor did it constitute an incidental or merely occasional
enjoyment. It was an enjoyment which grew out of and was a part of
the regular and ordinary pursuits of the plaintiff’s life. It was truly
exactly as she stated: “It was my life work. It was just part of me.” It
constituted the loss of the greatest enjoyment of her life. To say that
the loss of such an enjoyment and the comfort to a human being
resulting from such enjoyment is compensable in no amount does not
appeal to my sense of justice.
The Kansas Supreme Court effectively overruled Hogan in Leiker v.

Gafford, 778 P.2d 823 (Kan. 1989). Was it right to do so? What, if anything,
is wrong with Hogan? The damages at issue in Daugherty and Hogan are
now commonly referred to as hedonic damages: sums meant to compensate
the plaintiff not for pain and suffering but for lost pleasures of life. In what
respects are the difficulties raised by hedonic damages similar to those
raised by recovery for pain and suffering or for emotional distress? In what
respects are the difficulties different?
13. Thinking about hedonics. How should lost pleasures of life be

valued? When injuries prevent people from experiencing things they used
to enjoy, there are no obvious market measures available to use as
benchmarks for valuation of the loss. Many attempts have been made to
find nonobvious measures, but they generally have met with resistance in
the courts. The most prominent of these attempts are known as “willingness
to pay” studies. They try to determine how much people value their lives by
looking at how much they are willing to spend to reduce small risks of
death.
Suppose, for example, that an airbag for an automobile costs $300, and
suppose it is known that every 10,000 purchases of an airbag saves one life.
In effect that means $3 million will be spent (by 10,000 consumers) to save
that one life. Put differently, each purchaser evidently is willing to spend
$300 to obtain the benefit of that 1/10,000 chance that it will save his own
life — and this suggests that each values his life at $3 million. (If airbags
were $1,000 in this example, and people stopped buying them at that price,
the economic inference would be that they value their lives at less than $10
million; they would rather accept a 1/10,000 chance of death than pay
$1,000 to avoid it.) Similar studies examine how much extra payment
various types of workers demand to perform risky work. Assume window
washers who work on top floors of tall buildings have a 1/10,000 greater
chance of death than those who work near the ground; and assume that as a
result window washers are prepared to accept $300 less to be assigned to
low floors. Again, this would suggest that they value their lives at $3
million.
There have been many studies undertaken of these sorts, and then there
have been further attempts to combine their various results to come up with
an average sense of how much people seem to value their lives. Some well-
known past examples generated figures in the $1 to $3 million range. That
is not the end of the inquiry, for remember that the objective is to figure out
how much someone valued the pleasures in life that they have lost. Some
economists propose to do this by starting with a generic value of an
“anonymous” life — say, $2 million. If we imagine a person who values her
life at that amount, the valuation must (as the theory goes) come from two
sources: the money she expected to earn and the pleasures she expected to
enjoy. So if we subtract her expected lifetime earnings from the $2 million,
then whatever is left over must reflect the value of the pleasures the plaintiff
expected to derive from living. If the plaintiff is said (typically by an expert
witness) to have lost 20 percent of the pleasure of living, then the plaintiff
should be entitled to recover 20 percent of the sum designated as the value
assigned to the enjoyment of life.
If any or all of this seems bothersome, note that government agencies
often use valuations not unlike this in making regulatory decisions. The
Federal Aviation Administration, the Nuclear Regulatory Commission, and
other agencies have to make decisions about what precautions to require in
the industries they supervise. Requiring precautions is expensive; somehow
the agency has to decide whether the precautions will save enough lives to
be worth the cost. Agencies sometimes use survey data of the kind just
described to generate the figures they use for this purpose, and in recent
times have typically ended up with numbers in the same $5 to $7 million
range. If this, too, seems troubling, how else might you suggest that
agencies think about whether to impose costly regulations on industries for
the sake of saving a few lives over a period of many years? Are there any
reasons why a procedure of this sort might make more sense for agencies
than for courts? Who would you think would be more likely to want to
introduce this type of “willingness to pay” evidence — plaintiffs or
defendants?
In any event, almost all courts to be confronted with this sort of
testimony by experts have forbidden it. Mercado v. Ahmed, 974 F.2d 863
(7th Cir. 1992), is a leading example. The plaintiff, badly injured when hit
by a taxi, wanted to introduce expert testimony on the sorts of “willingness
to pay” studies just described. The trial court refused to allow it, and the
[W]e have serious doubts about [the expert’s] assertion that the
studies he relies upon actually measure how much Americans value
life. For example, spending on items like air bags and smoke
detectors is probably influenced as much by advertising and
marketing decisions made by profit-seeking manufacturers and by
government-mandated safety requirements as it is by any
consideration by consumers of how much life is worth. Also, many
people may be interested in a whole range of safety devices and
believe they are worthwhile, but are unable to afford them. More
fundamentally, spending on safety items reflects a consumer’s
willingness to pay to reduce risk, perhaps more a measure of how
cautious a person is than how much he or she values life. Few of us,
when confronted with the threat, “Your money or your life!” would,
like Jack Benny, pause and respond, “I’m thinking, I’m thinking.”
Most of us would empty our wallets. Why that decision reflects less
the value we place on life than whether we buy an airbag is not
immediately obvious.
The two other kinds of studies [the expert] relies upon are open to
valid and logical criticism as well. To say that the salary paid to those
who hold risky jobs tells us something significant about how much
we value life ignores the fact that humans are moved by more than
monetary incentives. For example, someone who believes police
officers working in an extremely dangerous city are grossly
undercompensated for the risks they assume might nevertheless take
up the badge out of a sense of civic duty to their hometown. Finally,
government calculations about how much to spend (or force others to
spend) on health and safety regulations are motivated by a host of
considerations other than the value of life: is it an election year? how
large is the budget deficit? on which constituents will the burden of
the regulations fall? what influence and pressure have lobbyists
brought to bear? what is the view of interested constituents? And so
on.
Some further objections are raised in McClurg, It’s a Wonderful Life:

The Case for Hedonic Damages in Wrongful Death Cases, 66 Notre Dame
L. Rev. 57 (1990). But is there a better way to quantify hedonic damages?
14. The 9/11 fund. Congress responded to the terrorist attacks of
September 11, 2001, by capping the liability that airlines and certain other
defendants might face if sued by survivors of the attacks or survivors of
those who died: not more than $6 billion would be collectible ($1.5 billion
for each of the four airplanes involved). But the same legislation also
created a victim compensation fund to which aggrieved parties could apply
for relief if they agreed not to sue the airlines, the World Trade Center, or
other potential defendants. The fund was administered by a special master,
Kenneth Feinberg, who had many decisions to make about how much to
award to each claimant. Payments were made to nearly 5,560 claimants in
all, and totaled more than $7 billion. (Ninety-four lawsuits were filed by
people who opted out of the fund; all but four were settled.)
Feinberg made awards to compensate for lost earnings and also for the
suffering and hedonic damages — or “non-economic losses,” as they were
called — suffered by those who died or were injured or were related to
victims of the attacks. Here are some excerpts concerning those points from
his final report:
Faced with the unfathomable task of placing a dollar amount upon the
pain, emotional suffering, loss of enjoyment of life, and mental
anguish suffered by the thousands of victims of the September 11th
attacks, the Special Master and the Department determined that the
fairest and most rational approach was to establish a uniform figure
for the pain and suffering of deceased victims and their dependents.
(1) Presumed $250,000 Non-Economic Award for Deceased
Victims. To determine an appropriate presumed non-economic loss
figure for deceased victims, the Special Master and the Department
[of Justice] looked to the amount of compensation available under
existing federal programs for public safety officers who are killed
while on duty, or members of the United States military who are
killed in the line of duty while serving our nation. The presumed non-
economic loss award of $250,000 for victims who died as a result of
the aircraft on September 11 is roughly equivalent to the amounts
received by survivors under these other federal programs. The
Regulations allow claimants to attempt to demonstrate in a hearing
any extraordinary circumstances that justify departure from the
presumed non-economic loss award.
(2) Additional $100,000 Non-Economic Award for Spouse and
Dependents of Deceased Victims/Definition of Dependent. The
Regulations also provide for an additional $100,000 for the spouse
and each dependent of the deceased victim. The $100,000 figure for
the spouse and each dependent includes a non-economic component
of “replacement services loss.” . . .
The average total award for a death claim was about $2 million, and the
average payment for a claim of physical injury was about $400,000, though
there was much variation among individual awards.
Does the 9/11 fund provide an appealing paradigm for use in other
situations? Why not a similar fund, with similarly regular awards, for losses
sustained in other disasters, man-made and natural? What would be the pros
and cons of using aspects of such an approach — the public funding, and
the presumptive rate of payment for non-economic damages — for
accidents generally?
15. Fixed schedules. The notion of a fixed rate of compensation is
familiar from workers’ compensation statutes, which require employers to
pay into a fund; the fund then distributes compensatory awards to injured
employees without litigation (and is usually the exclusive remedy for
employees in such cases). Many such statutes resemble the federal
Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§901-950,
the compensation schedule of which provides in part:
(c) Permanent partial disability: In case of disability partial in

character but permanent in quality the compensation shall be 66 2/3
per centum of the average weekly wages, which shall be in addition
to compensation for temporary total disability or temporary partial
disability paid in accordance with subsection (b) or subsection (e) of
this section, respectively, and shall be paid to the employee, as
follows:
(1) Arm lost, three hundred and twelve weeks’ compensation.
(2) Leg lost, two hundred and eighty-eight weeks’
compensation.
(3) Hand lost, two hundred and forty-four weeks’ compensation.
(4) Foot lost, two hundred and five weeks’ compensation.
(5) Eye lost, one hundred and sixty weeks’ compensation.
(6) Thumb lost, seventy-five weeks’ compensation.
(7) First finger lost, forty-six weeks’ compensation.
(8) Great toe lost, thirty-eight weeks’ compensation.
(9) Second finger lost, thirty weeks’ compensation.
(10) Third finger lost, twenty-five weeks’ compensation.
(11) Toe other than great toe lost, sixteen weeks’ compensation.
(12) Fourth finger lost, fifteen weeks’ compensation. . . .
(14) Phalanges: Compensation for loss of more than one
phalange of a digit shall be the same as for loss of the entire digit.
Compensation for loss of the first phalange shall be one-half of the
compensation for loss of the entire digit.
(15) Amputated arm or leg: Compensation for an arm or a leg, if
amputated at or above the elbow or the knee, shall be the same as
for a loss of the arm or leg; but, if amputated between the elbow and
the wrist or the knee and the ankle, shall be the same as for loss of a
hand or foot.
(16) Binocular vision or per centum of vision: Compensation for
loss of binocular vision or for 80 per centum or more of the vision
of an eye shall be the same as for loss of the eye.
(17) Two or more digits: Compensation for loss of two or more
digits, or one or more phalanges of two or more digits, of a hand or
foot may be proportioned to the loss of use of the hand or foot
occasioned thereby, but shall not exceed the compensation for loss
of a hand or foot.
Again, how does the fairness and the efficiency of such schedules
compare to the individualized results that courts and juries would produce?
B. PUNITIVE DAMAGES
The purpose of an award of compensatory damages is to make the plaintiff

“whole” to the extent that can be done with money. The purpose of punitive
damages — also known as “exemplary” damages, or, in occasional times
past, as “vindictive” damages — is different: it is to punish the defendant —
and thus to deter the defendant, and similar parties elsewhere, from
committing similar torts in the future. Punitive damages thus resemble fines
in some respects; unlike a criminal fine payable to the government,
however, the fine here is paid to the plaintiff. Punitive damages usually are
sought in cases where the defendant has committed gross misconduct,
typically with a culpable state of mind. Intentional torts thus present the
most common occasion for them. The first cases in this section examine the
basic justifications for punitive damages; the later cases illustrate the
difficulties courts have had in deciding when they are appropriate and in
what amounts.
Murphy v. Hobbs
5 P. 119 (Colo. 1884)
HELM, J. — This is a civil action, brought to recover damages for

malicious prosecution and false imprisonment. Plaintiff procured a verdict,
and judgment was duly entered thereon. Defendant prosecutes this appeal,
and assigns in support thereof numerous errors. The most important of these
assignments is one which relates to the measure of damages adopted in the
court below. Upon this subject the following instruction was there given:
That the measure of damages in an action for malicious prosecution is

not confined alone to actual pecuniary loss sustained by reason
thereof; but if it is believed, from the evidence, that the arrest and
imprisonment stated in the complaint were without probable cause,
then the jury may award damages to plaintiff to indemnify him for the
peril occasioned to him in regard to personal liberty, feelings, and
reputation, and as a punishment to defendant in such further sense as
they shall deem just.
By the assignment of error and argument challenging the correctness of

this instruction we are called upon to consider the following question, viz.:
Can damages as a punishment be recovered in cases like this? . . . Perhaps
the most impressive objection to allowing damages as a punishment in
cases like the one at bar, is that which relates to dual prosecutions for a
single tort. Our state constitution declares that no one shall be twice put in
jeopardy for the same offense. A second criminal prosecution for the same
act after acquittal, or conviction and punishment therefor, is something
which no English or American lawyer would defend for a moment. But here
is an instance where, practically, this wrong is inflicted. The fine awarded
as a punishment in the civil action does not prevent indictment and
prosecution in a criminal court. On the other hand, it has been held that
evidence of punishment in a criminal suit is not admissible even in
mitigation of exemplary damages in a civil action. Courts attempt to explain
away the apparent conflict with the constitutional inhibition above
mentioned; they say that the language there used refers exclusively to
criminal procedure, and cannot include civil actions. But this position
amounts to a complete surrender of the evident spirit and intent of that
instrument. When the convention framed and when the people adopted the
constitution both understood the purpose of this clause to be the prevention
of double prosecutions for the same offense. Yet, under the rule allowing
exemplary damages, not only may two prosecutions, but also two
convictions and punishments, be had. What difference does it make to the
accused, so far as this question is concerned, that one prosecution takes the
form of a civil action, in which he is called defendant? He is practically
harassed with two prosecutions and subjected to two convictions; while no
hypothesis, however ingenious, can cloud in his mind the palpable fact that
for the same tort he suffers two punishments. . . .
Civil actions are instituted for the purpose of redressing private wrongs;
it is the aim of civil jurisprudence to mete out as nearly exact justice as
possible between contending litigants. There ought to be no disposition to
take from the defendant or give to the plaintiff more than equity and justice
require. Yet under this rule of damages these principles are forgotten, and
judicial machinery is used for the avowed purpose of giving plaintiff that to
which he has no shadow of right. He recovers full compensation for the
injury to his person or property; for all direct and proximate losses
occasioned by the tort; for the physical pain, if any, inflicted; for his mental
agony, lacerated feelings, wounded sensibilities; and then, in addition to the
foregoing, he is allowed damages which are awarded as a punishment of
defendant and example to others. Who will undertake to give a valid reason
why plaintiff, after being fully paid for all the injury inflicted upon his
property, body, reputation, and feelings, should still be compensated, above
and beyond, for a wrong committed against the public at large? The idea is
inconsistent with sound legal principles, and should never have found a
lodgment in the law.
The reflecting lawyer is naturally curious to account for this “heresy” or
“deformity,” as it has been termed. Able and searching investigations made
by both jurist and writer disclose the following facts concerning it, viz.:
That it was entirely unknown to the civil law; that it never obtained a
foothold in Scotland; that it finds no real sanction in the writings of
Blackstone, Hammond, Comyns, or Rutherforth; that it was not recognized
in the earliest English cases; that the Supreme Courts of New Hampshire,
Massachusetts, Indiana, Iowa, Nebraska, Michigan, and Georgia have
rejected it in whole or in part; that of late other states have falteringly
retained it because “committed” so to do; . . . and that the rule is
comparatively modern, resulting in all probability from a misconception of
impassioned language and inaccurate expressions used by judges in some of
the earlier English cases. . . .
Under the rule limiting them to compensatory damages, juries will, with
proper instruction, recognize a broad distinction between a tort
unaccompanied by malice, or circumstances of aggravation or disgrace, and
one producing equal direct pecuniary damage, where either of these
conditions exists. In the former case they consider only the actual injury to
the person or property, including expenses, loss of time, bodily pain, etc.,
occasioned by the wrongful act. In the latter, they allow such additional sum
as, in their judgment, is warranted by the circumstances of contumely,
anguish, or oppression; but in both instances the damages are awarded as
“compensation.” The additional sum is given to the individual as a
recompense for the mental suffering or wounded sensibilities, as the case
may be. It often happens that this constitutes the principal element of the
recovery. If, upon a crowded thoroughfare, one maliciously assaults me
with blows and epithets, five dollars may fully compensate the injury
inflicted to my person and clothing; but $500 may be utterly inadequate to
requite the sense of insult, the personal indignity, the public disgrace and
humiliation. The extra $500 exacted may operate indirectly as a
punishment. It may constitute an example to others, and also deter my
assailant himself from repetitions of the offense in future. In law, however,
it is simply compensation for the private wrong, — a kind of indemnity
which, probably, no court has ever refused to allow when warranted by the
circumstances. But, under the doctrine of exemplary damages, as
announced by the instruction given in this case, the jury are not required to
stop with the five dollars for material injury and $500 for lacerated feelings;
they may turn to the domain of criminal law, and consider the public wrong,
and they may add $1,000 more as a punishment to my assailant. The
arrangement is highly satisfactory to me, since I have the pleasure of
pocketing the additional $1,000 to which I am not entitled; but, as we have
already seen, it hardly comports with correct legal principles.
The case at bar furnishes a good illustration of the doctrine under
discussion. . . . The jury returned a verdict for $2,780. How much of this
sum was given as a punishment? Perhaps $1,000, perhaps more; yet, under
our Criminal Code, $500 would have been the maximum. When defendant
is on trial in the criminal court he cannot plead in bar payment of this
penalty. He must, if convicted, discharge the additional fine assessed, or go
to jail, if such be the sentence. Whatever may be the technical distinctions,
he is, in fact, twice prosecuted, twice convicted, and twice punished for the
same offense. And one of these prosecutions, convictions, and punishments
is had without any regard for the leading principles obtaining in criminal
procedure. . . .
The most difficult cases in which to exclude the rule of damages as a
punishment are those where its application rests upon gross negligence, and
where no criminal prosecution can be sustained. There is often a feeling that
complete justice cannot be done without punitive satisfaction; but those
courts which adhere to the doctrine of exemplary damages in general are by
no means unanimous in applying it to this class of cases, and, when so
applied, the most guarded language is used, and the most careful limitations
are imposed. It is said that the negligence must be “flagrant and culpable;”
so much so that malice may “well be inferred or imputed to defendant.”
Field, Dam. §84, and cases cited.
Why may not even this class of cases be safely limited to the rule of
compensation? Is not this doctrine, as above explained, sufficient to meet
all the reasonable demands of justice? But it is sufficient for us to say that
in the case at bar the objections to double prosecutions and punishments for
the same offense are decisive. . . .
[Reversed.]
Kemezy v. Peters
79 F.3d 33 (7th Cir. 1996)
POSNER, Chief Judge. — Jeffrey Kemezy sued a Muncie, Indiana

policeman named James Peters under 42 U.S.C. sec. 1983, claiming that
Peters had wantonly beaten him with the officer’s nightstick in an
altercation in a bowling alley where Peters was moonlighting as a security
guard. The jury awarded Kemezy $10,000 in compensatory damages and
$20,000 in punitive damages. Peters’ appeal challenges only the award of
punitive damages, and that on the narrowest of grounds: that it was the
plaintiff’s burden to introduce evidence concerning the defendant’s net
worth for purposes of equipping the jury with information essential to a just
measurement of punitive damages.
Two courts have adopted the position that Peters advocates. . . . But we
think the majority rule, which places no burden of production on the
plaintiff, is sound, and we take this opportunity to make clear that it is
indeed the law of this circuit.
The standard judicial formulation of the purpose of punitive damages is
that it is to punish the defendant for reprehensible conduct and to deter him
and others from engaging in similar conduct. This formulation is cryptic,
since deterrence is a purpose of punishment, rather than, as the formulation
implies, a parallel purpose, along with punishment itself, for imposing the
specific form of punishment that is punitive damages. An extensive
academic literature, however, elaborates on the cryptic judicial formula,
offering a number of reasons for awards of punitive damages. A review of
the reasons will point us toward a sound choice between the majority and
minority views [the latter being urged by Peters].
1. Compensatory damages do not always compensate fully. Because

courts insist that an award of compensatory damages have an
objective basis in evidence, such awards are likely to fall short in
some cases, especially when the injury is of an elusive or intangible
character. If you spit upon another person in anger, you inflict a real
injury but one exceedingly difficult to quantify. If the court is
confident that the injurious conduct had no redeeming social value,
so that “overdeterring” such conduct by an “excessive” award of
damages is not a concern, a generous award of punitive damages will
assure full compensation without impeding socially valuable
conduct.
2. By the same token, punitive damages are necessary in such cases in
order to make sure that tortious conduct is not underdeterred, as it
might be if compensatory damages fell short of the actual injury
inflicted by the tort.
These two points bring out the close relation between the
compensatory and deterrent objectives of tort law, or, more precisely
perhaps, its rectificatory and regulatory purposes. Knowing that he
will have to pay compensation for harm inflicted, the potential
injurer will be deterred from inflicting that harm unless the benefits
to him are greater. If we do not want him to balance costs and
benefits in this fashion, we can add a dollop of punitive damages to
make the costs greater.
3. Punitive damages are necessary in some cases to make sure that
people channel transactions through the market when the costs of
voluntary transactions are low. We do not want a person to be able to
take his neighbor’s car and when the neighbor complains tell him to
go sue for its value. We want to make such expropriations valueless
to the expropriator and we can do this by adding a punitive exaction
to the judgment for the market value of what is taken. This function
of punitive damages is particularly important in areas such as
defamation and sexual assault, where the tortfeasor may, if the only
price of the tort is having to compensate his victim, commit the tort
because he derives greater pleasure from the act than the victim
incurs pain.
4. When a tortious act is concealable, a judgment equal to the harm
done by the act will underdeter. Suppose a person who goes around
assaulting other people is caught only half the time. Then in
comparing the costs, in the form of anticipated damages, of the
assaults with the benefits to him, he will discount the costs (but not
the benefits, because they are realized in every assault) by 50
percent, and so in deciding whether to commit the next assault he
will not be confronted by the full social cost of his activity.
5. An award of punitive damages expresses the community’s
abhorrence at the defendant’s act. We understand that otherwise
upright, decent, law-abiding people are sometimes careless and that
their carelessness can result in unintentional injury for which
compensation should be required. We react far more strongly to the
deliberate or reckless wrongdoer, and an award of punitive damages
commutes our indignation into a kind of civil fine, civil punishment.
Some of these functions are also performed by the criminal justice
system. Many legal systems do not permit awards of punitive
damages at all, believing that such awards anomalously intrude the
principles of criminal justice into civil cases. Even our cousins the
English allow punitive damages only in an excruciatingly narrow
category of cases. But whether because the American legal and
political cultures are unique, or because the criminal justice system
in this country is overloaded and some of its functions have devolved
upon the tort system, punitive damages are a regular feature of
American tort cases, though reserved generally for intentional torts,
including the deliberate use of excess force as here. This suggests
additional functions of punitive damages:
6. Punitive damages relieve the pressures on the criminal justice
system. They do this not so much by creating an additional sanction,
which could be done by increasing the fines imposed in criminal
cases, as by giving private individuals — the tort victims themselves
— a monetary incentive to shoulder the costs of enforcement.
7. If we assume realistically that the criminal justice system could not
or would not take up the slack if punitive damages were abolished,
then they have the additional function of heading off breaches of the
peace by giving individuals injured by relatively minor outrages a
judicial remedy in lieu of the violent self-help to which they might
resort if their complaints to the criminal justice authorities were
certain to be ignored and they had no other legal remedy.
What is striking about the purposes that are served by the awarding of
punitive damages is that none of them depends critically on proof that the
defendant’s income or wealth exceeds some specified level. The more
wealth the defendant has, the smaller is the relative bite that an award of
punitive damages not actually geared to that wealth will take out of his
pocketbook, while if he has very little wealth the award of punitive
damages may exceed his ability to pay and perhaps drive him into
bankruptcy. To a very rich person, the pain of having to pay a heavy award
of damages may be a mere pinprick and so not deter him (or people like
him) from continuing to engage in the same type of wrongdoing. What in
economics is called the principle of diminishing marginal utility teaches,
what is anyway obvious, that losing $1 is likely to cause less unhappiness
(disutility) to a rich person than to a poor one. . . . But rich people are not
famous for being indifferent to money, and if they are forced to pay not
merely the cost of the harm to the victims of their torts but also some
multiple of that cost they are likely to think twice before engaging in such
expensive behavior again. Juries, rightly or wrongly, think differently, so
plaintiffs who are seeking punitive damages often present evidence of the
defendant’s wealth. The question is whether they must present such
evidence — whether it is somehow unjust to allow a jury to award punitive
damages without knowing that the defendant really is a wealthy person. The
answer, obviously, is no. A plaintiff is not required to seek punitive
damages in the first place, so he should not be denied an award of punitive
damages merely because he does not present evidence that if believed
would persuade the jury to award him even more than he is asking.
Take the question from the other side: if the defendant is not as wealthy
as the jury might in the absence of any evidence suppose, should the
plaintiff be required to show this? That seems an odd suggestion too. The
reprehensibility of a person’s conduct is not mitigated by his not being a
rich person, and plaintiffs are never required to apologize for seeking
damages that if awarded will precipitate the defendant into bankruptcy. A
plea of poverty is a classic appeal to the mercy of the judge or jury, and why
the plaintiff should be required to make the plea on behalf of his opponent
eludes us. . . .
Affirmed.
NOTES
1. Short-lived victory. The Colorado Supreme Court’s holding in

Murphy v. Hobbs lasted five years; in 1889 the Colorado General Assembly
abrogated the decision, providing by statute that “in all civil actions in
which damages shall be assessed by a jury for a wrong done to the person,
or to personal or real property, and the injury complained of shall have been
attended by circumstances of fraud, malice or insult, or a wanton and
reckless disregard of the injured party’s rights and feelings, such jury may,
in addition to the actual damages sustained by such party, award him
reasonable exemplary damages.” 1889 Colo. Sess. Laws 64-65 (the modern
form of Colorado’s statute is largely similar). Every state now permits
punitive damages to be awarded in civil cases, though the rules governing
the occasions for such awards vary considerably by jurisdiction.
What are the differences between the styles of argument used in Murphy
v. Hobbs and Kemezy v. Peters?
2. Meager percentages. In Kopczick v. Hobart Corp., 721 N.E.2d 769
(Ill. App. 1999), the plaintiff was a journeyman meatcutter. He lost a finger
on his left hand while operating one of the defendant’s machines known as
the Model 5700. The 5700 was unusual in that its blade was set at a 75-
degree angle to the cutting surface, rather than perpendicular to it; Hobart
believed this innovative design feature of the “slant saw” would reduce
operator fatigue by providing a measure of horizontal force that would help
operators more easily push meat through the saw. The plaintiff alleged that
the design of the 5700 caused it to “self-feed,” pulling the meat into the
blade and tending to draw the operator’s hands into the blade as well.
At trial the plaintiff called nine meatcutters to the stand. Each said that
he had seen the 5700 model self-feed occasionally, and several had been
injured by it themselves. The plaintiff offered evidence that Hobart had
notice of 30 prior injuries to meatcutters due to self-feeding by the 5700; he
also put into evidence a letter that had been sent from a representative of the
meatcutters’ union to Hobart. It read in part as follows:
Many butchers with as many as 30 [to] 40 years of service are very

fearful of this slant saw. I’m sure that if you send a Hobart
representative into the [workplace] and he spoke to the people about
the slant saw, that you . . . would probably call back these machines,
as many car dealers call back cars that are unsafe.
A jury awarded the plaintiff $553,644 in compensatory damages and $20

million in punitive damages, finding the company guilty of “willful and
wanton” misconduct. The trial court entered judgment on the verdict. The
court of appeals reversed:
[U]ncontradicted evidence established that defendant sold 5,816

Model 5700 saws from 1982 through 1992, the last calendar year
before plaintiff’s injury. During this same 11-year period, it is a
conservative estimate that meatcutters employed the Model 5700 to
make approximately 4,540,080,000 cuts of meat. [The 30 similar
injuries in the past represent] roughly 0.5% of the total production of
the Model 5700 and 0.0000007% of the estimated total number of
cuts made with the Model 5700. Such meager percentages do not put
a manufacturer of a mass-produced and inherently dangerous product
on notice that its product has an unreasonably dangerous defect. This
is particularly so when, as in this case, the claimed injuries arise from
a risk that inheres in the product’s intended use. . . .
After a thorough review of the record, we hold that the scant
evidence of defendant’s pre-injury knowledge of defect, and whatever
highly speculative inferences the jury might have drawn from such
evidence, were insufficient to have put the question of punitive
damages to the jury. Accordingly, the trial court should have granted
defendant’s motion for JNOV concerning the claim of willful and
wanton conduct. We therefore reverse the award of punitive damages
based on this claim.
3. The Pinto case. In Grimshaw v. Ford Motor Co., 174 Cal. Rptr. 348
(Cal. App. 1981), the plaintiff was severely injured when the Ford Pinto
automobile in which he was riding was rear ended by another car, causing
the Pinto to burst into flames. The collision pushed the Pinto’s gas tank
forward and caused it to be punctured by a flange or bolt, and as a result
fuel sprayed from the punctured tank into the passenger compartment. The
plaintiff alleged that the Pinto was defectively designed. In most
subcompact cars the gas tank was located over the rear axle; the Pinto’s
styling required the tank to be placed behind the rear axle, leaving only nine
or ten inches of “crush space,” which the court concluded was far less than
in any other American automobile. The Pinto also was designed with a less
substantial bumper that any other American car produced then or later.
A jury awarded the plaintiff $2,516,000 in compensatory damages and
$125 million in punitive damages. The trial court evaluated the size of the
punitive damage award by reference to three criteria: “(1) Is the sum so
large as to raise a presumption that the award was the result of passion and
prejudice and therefore excessive as a matter of law; (2) Does the award
bear a reasonable relationship to the net assets of the defendant; and (3)
Does the award bear a reasonable relationship to the compensatory damages
awarded.” The court concluded that the award was excessive, and gave the
plaintiff the choice of a reduced award of $3.5 million or a new trial. The
plaintiff accepted the remittitur. Ford then appealed, arguing that the
evidence was insufficient to support the finding of malice necessary under
California law to support any award of punitive damages. The court of
appeals affirmed:
Ford argues that “malice” . . . requires animus malus or evil motive

— an intention to injure the person harmed — and that the term is
therefore conceptually incompatible with an unintentional tort such as
the manufacture and marketing of a defectively designed product.
This contention runs counter to our decisional law. . . . [N]umerous
California cases . . . have interpreted the term “malice” . . . to include,
not only a malicious intention to injure the specific person harmed,
but conduct evincing “a conscious disregard of the probability that
the actor’s conduct will result in injury to others.”
The interpretation of the word “malice” . . . to encompass conduct
evincing callous and conscious disregard of public safety by those
who manufacture and market mass produced articles is consonant
with and furthers the objectives of punitive damages. The primary
purposes of punitive damages are punishment and deterrence of like
conduct by the wrongdoer and others. In the traditional
noncommercial intentional tort, compensatory damages alone may
serve as an effective deterrent against future wrongful conduct but in
commerce related torts, the manufacturer may find it more profitable
to treat compensatory damages as a part of the cost of doing business
rather than to remedy the defect. Governmental safety standards and
the criminal law have failed to provide adequate consumer protection
against the manufacture and distribution of defective products.
Punitive damages thus remain as the most effective remedy for
consumer protection against defectively designed mass produced
articles. They provide a motive for private individuals to enforce
rules of law and enable them to recoup the expenses of doing so
which can be considerable and not otherwise recoverable. . . .
Through the results of the crash tests Ford knew that the Pinto’s
fuel tank and rear structure would expose consumers to serious injury
or death in a 20 to 30 mile-per-hour collision. There was evidence
that Ford could have corrected the hazardous design defects at
minimal cost but decided to defer correction of the shortcomings by
engaging in a cost-benefit analysis balancing human lives and limbs
against corporate profits. Ford’s institutional mentality was shown to
be one of callous indifference to public safety. There was substantial
evidence that Ford’s conduct constituted “conscious disregard” of the
probability of injury to members of the consuming public. . . .
Ford contends that the phrase “conscious disregard of its possible
results” used in the two instructions [on punitive damages] would
permit a plaintiff to impugn almost every design decision as made in
conscious disregard of some perceivable risk because safer
alternative designs are almost always a possibility. . . . The jury was
instructed that Ford was not required under the law to produce either
the safest possible vehicle or one which was incapable of producing
injury. The instructions on malice manifestly referred to conduct
constituting conscious and callous disregard of a substantial
likelihood of injury to others and not to innocent conduct by the
manufacturer. . . . Plaintiffs did not argue possibility of injury; they
argued that injury was a virtual certainty and that Ford’s management
knew it from the results of the crash tests.
What is the distinction between Grimshaw v. Ford Motor Co. and

Kopczick v. Hobart Corp.?
4. Sending the message. In Moskovitz v. Mt. Sinai Medical Center, 635
N.E.2d 331 (Ohio 1994), the plaintiff alleged that his decedent, Margaret
Moskovitz, was the victim of medical malpractice by one Harry E. Figgie
III. The plaintiff’s evidence was that Figgie had treated Moskovitz for
difficulties with one of her legs during the period 1985-1987, and had failed
to conduct or recommend a biopsy despite symptoms suggesting the
presence of a tumor. Had he done so, the tumor could have been discovered
and removed, leaving Moskovitz with a good chance of long-term survival.
Instead, she died in 1988. The plaintiff also presented evidence that Figgie
had later gone back and tampered with Moskovitz’s records to make it look
as though he had recommended a biopsy. The jury brought in a verdict
against Figgie; in addition to compensatory damages it awarded the plaintiff
$3 million in punitive damages. The Ohio Supreme Court held the award
excessive and ordered a remittitur:
Figgie’s alteration of records exhibited a total disregard for the law

and the rights of Mrs. Moskovitz and her family. An intentional
alteration, falsification or destruction of medical records by a doctor,
to avoid liability for his or her medical negligence, is sufficient to
show actual malice, and punitive damages may be awarded whether
or not the act of altering, falsifying or destroying records directly
causes compensable harm. However, we reiterate that the purpose of
punitive damages is to punish and deter. The jury’s reaction in
awarding $3 million in punitive damages may be understandable,
given its findings of Figgie’s activities, but it is wrong. Punishment
does not mean confiscation. Figgie’s net worth (depending on who is
believed) is somewhere between $2.1 million and $3 million. We find
that a portion of that net worth will send the message. . . . Upon a
review of the record, we find that $1 million in punitive damages is
the appropriate amount to be awarded.
5. Someday he’ll catch the real killer. In Rufo v. Simpson, 103 Cal.
Rptr. 2d 492 (Cal. App. 2001), the plaintiffs were the parents of Ronald
Goldman and Nicole Brown Simpson, both of whom were stabbed to death
in the driveway of Nicole Simpson’s home in Los Angeles. The defendant
was Orenthal James Simpson, the ex-husband of Nicole Brown Simpson
and a well-known sports and entertainment personality. He was prosecuted
for murder and acquitted; this civil suit followed, in which a jury found him
liable for the killings. To support their claims for punitive damages, the
plaintiffs’ experts had estimated that the defendant’s net worth at the time of
trial was $15,703,529, and that he had the potential to earn $2-3 million per
year for the rest of his life by exploiting his name and likeness. The jury
awarded the plaintiffs a total of approximately $12.5 million in
compensatory damages for loss of society, and also awarded them a total of
$25 million in punitive damages. The defendant appealed, claiming the
award was excessive. The court of appeals affirmed:
Simpson’s contention that evidence of his future financial prospects is

legally irrelevant or improper makes no sense. The ultimately proper
level of punitive damages is an amount not so low that the defendant
can absorb it with little or no discomfort, nor so high that it destroys,
annihilates, or cripples the defendant. Whether the defendant’s
financial prospects are bleak or bright is relevant to the ultimate issue
whether the damages will ruin him or be absorbed by him.
In reviewing the [size of the] verdict the appellate court is guided
by three main factors: the reprehensibility of the defendant’s conduct,
the actual harm suffered by the victims, and the wealth of the
defendant. . . . In this case the first two factors, the reprehensibility of
the defendant’s conduct and the severity of harm to the victims, have
the greatest weight legally possible. In effect the jury found that
Simpson committed two deliberate, vicious murders. This is the most
reprehensible conduct that society condemns and is ordinarily
punished under California criminal law by a sentence of death or life
imprisonment without possibility of parole. The harm suffered by the
victims was the maximum possible; they were intentionally killed.
This case cannot be compared to punitive damages involving a
business fraud resulting only in economic harm. Considering the
outrageousness of Simpson’s conduct and the enormity of its
consequences, the amount of $25 million, in the abstract, is not
offensive and does not raise a presumption the verdict resulted from
passion or prejudice. . . .
The evidence here, viewed in the light most favorable to the
judgment, shows that Simpson is a wealthy man, with prospects to
gain more wealth in the future. The enormity of his misconduct
shows that a large amount of punitive damages is necessary to punish
him and deter him. There is no formula based on net worth for
determining what amount is too much. The fundamental underlying
principle is that punitive damages must not be so large they destroy
the defendant. Evidence unique to this case shows this award will not
destroy Simpson economically. He has pension funds worth $4.1
million that are exempt from execution to pay this award. Despite the
award of punitive damages Simpson can continue to enjoy a
comfortable living.
6. The answer to the first question was “yes.” In Kennan v. Checker

Cab Co., 620 N.E.2d 1208 (Ill. App. 1993), the plaintiff, Sean Kennan, was
a blind man. With the help of a passerby he hailed a taxicab operated by one
of the defendant’s drivers in downtown Chicago. When the cab stopped,
Kennan opened the door and his guide dog, Ives, climbed onto the seat
behind the driver; Kennan sat down next to the dog. After he gave the
driver his destination, the driver began screaming over and over, “get out, I
no take bitch.” Kennan heard the rear door open and felt the driver’s hand
touch the back of Ives’s head. He pushed the driver away. Kennan either got
out of the car or was pulled out by the driver; the driver slammed him
against the side of the cab and hit him in the face several times. A woman
waiting at a nearby bus stop observed this and stepped between the men.
She inquired of the driver: “Are you an idiot? Can’t you tell the guy is
blind?” The driver stopped hitting the plaintiff and said, “No, I couldn’t tell
he was blind, but look what the dog did to my car.” The witness testified
that she observed no damage to the taxicab.
Kennan suffered bruises on his face from the incident, but did not seek
medical attention or lose time at work. His psychiatrist testified, however,
that the altercation caused him to suffer from post-traumatic stress disorder,
that he continued to view cab rides as potentially traumatic, humiliating
events, and that he had to alter his commute as a result. The jury returned a
verdict finding Checker liable and awarding Kennan $120,000 in
compensatory damages and $193,000 in punitive damages. Checker
appealed, arguing among other things that it should not be held liable for
punitive damages based on its driver’s conduct. The court of appeals
agreed. It applied the “complicity rule” as set out in §217C of the
Restatement (Second) of Agency (1958):
Punitive damages can properly be awarded against a master or other

principal because of an act by an agent if, but only if:
(a) The principal authorized the doing and the manner of the act,
or
(b) the agent was unfit and principal was reckless in employing
him, or
(c) the agent was employed in a managerial capacity and was
acting in the scope of his employment, or
(d) the principal or a managerial agent of the principal ratified or
approved the act.
The court also endorsed this discussion from a prior case:
The complicity rule . . . seems consistent with the rationale behind the
concept of punitive damages. Either as a basis for punishment or for
deterrence of wrongdoers, some deliberate corporate participation
should be shown before this sanction is applied. The complicity
analysis will allow punitive damages where the institutional
conscience of the corporate master should be aroused while
protecting the corporate master from liability for punitive damages
when a properly supervised employee acts with requisite
circumstances of aggravation.
Said the court:
Plaintiff sought to present evidence which would establish the

following: (1) Checker received a memorandum from the City of
Chicago advising cab companies of their legal duty to transport blind
persons; (2) prior to February 5, 1985, plaintiff was a regular user of
taxis and he had made several complaints to Checker about the
refusal of Checker to pick him up; and (3) other blind persons had
been refused transportation by Checker taxis. When this evidence is
viewed in the light most favorable to the plaintiff, it demonstrates
only that Checker may have been aware of the fact that some cab
drivers refused to transport blind persons. However, plaintiff’s
injuries were not caused by a driver refusing to transport him.
Plaintiff’s injuries were caused by the driver forcibly ejecting him
from the cab and/or assaulting and battering him. The evidence does
not establish that Checker knew of or authorized cab drivers to
forcibly eject or assault and batter their customers.
7. Provocation. From the Restatement (Second) of Torts (1965):
§921. PROVOCATION
Compensatory damages are not diminished by the fact that the

injured person provoked the tortfeasor; but the provocation is
considered in determining the allowance and amount of punitive
damages.
Illustration 1. A insults B and runs away. B pursues A, knocks
him down and breaks his glasses. A is entitled to compensatory
damages for the harm done to his glasses and for any physical harm
caused to him, undiminished by the fact that he insulted B. However,
the jury should be instructed that while it has discretion to award
punitive damages, in determining whether to do so and the amount, it
should consider the fact of the insult.
What general theories used to justify punitive damages are consistent or

inconsistent with the Restatement’s treatment of provocation?
8. $450 per gallon. In In re Exxon Valdez, 1995 WL 527990 (D. Alaska
1995), the Exxon tanker Valdez ran aground in Prince William Sound in
Alaska in 1989, causing a spill of 11 million gallons of crude oil. The
plaintiffs’ evidence was that the captain of the Valdez, Joseph Hazelwood,
was an alcoholic who had been drinking on the night of the incident, and
that his blood alcohol level at the time of the grounding was approximately
.241. He had left the bridge of the tanker shortly before midnight on the
evening of the accident as the vessel was headed toward Bligh Reef. He
instructed one of the mates to turn when he was abeam of Busby Island
light. The mate made the turn too late, and the tanker ran into the reef.
Various groups of plaintiffs injured by the spill joined in a suit against
Exxon. Against Hazelwood the jury awarded $5,000 in punitive damages;
against Exxon the jury awarded punitive damages of $5 billion. Exxon
appealed, arguing among other things that the jury was improperly
instructed. There had been evidence that Exxon was reckless in permitting
Hazelwood to captain the Valdez, and that the company’s work schedules
recklessly created a large risk of fatigue on the part of the vessel’s crew. But
the jury also was instructed that even if Exxon was not itself negligent, the
company could be held liable in punitive damages if Hazelwood committed
reckless acts on the night of the grounding. Exxon argued that this last
instruction misstated the law. It further argued that Hazelwood had violated
company policy by leaving the bridge as the tanker approached Bligh Reef;
according to Exxon’s Navigation and Bridge Organization Manual, “[t]he
Master must be on the bridge when ‘passing in the vicinity of shoals, rocks
or other hazards which represent any threat to safe navigation’ and when
entering or leaving port.” Exxon argued that in defying this instruction
Hazelwood was acting outside the scope of his employment, and that in any
event Exxon itself had no complicity in his misjudgments.
The district court disagreed with these arguments and entered judgment
on the jury’s verdict. The court used the test for liability provided by the
Restatement (Second) of Agency §217C — the same test used in Kennan v.
Checker Cab Co., above. Why was that test thought to permit liability on
these facts but not in Kennan? (The same test, with minor alterations, also
appears at Restatement (Second) of Torts §909.)
After a series of appeals, the punitive damages in the case were reduced
to $507.5 million. See Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008).
9. Statutory measures. Many states have enacted statutes that limit the
availability of punitive damages in various ways. Pennsylvania, for
example, limits the punitive damages available in medical malpractice
actions to twice the amount of the plaintiff’s compensatory damages, 40 Pa.
Cons. Stat. §1301.812-A(g); Connecticut law provides the same rule for
products liability cases. Conn. Gen. Stat. §52-240b. In Georgia, 75 percent
of the punitive damage award in a product liability case is paid to the state
treasury rather than to the plaintiff. Ga. Code Ann. §51-12-5.1(e)(2). And in
Virginia, punitive damages in cases of all kinds are limited to $350,000. Va.
Code Ann. §8.01-38.1.
Who is helped by these statutes? Who is hurt by them?
10. Punitive damages and the due process clause. The due process
clause of the Fourteenth Amendment to the Constitution provides that no
state shall “deprive any person of life, liberty, or property, without due
process of law.” The provision has been held to require the states to provide
certain time-honored procedural safeguards (such as appellate review)
before imposing punitive damages on defendants. But does the due process
clause set a limit on the sheer size of punitive damage awards in tort cases?
The Supreme Court answered that question in the affirmative in BMW of
North America v. Gore, 517 U.S. 559 (1996). The plaintiff, Gore, bought a
BMW in Alabama. He later discovered that the car’s paint job had been
damaged during the course of its delivery to the dealership, but that the
manufacturer had then repainted it so that it could be sold as “new” without
disclosing the touch-up work. Gore sued BMW for fraud. A jury awarded
him $4,000 in compensatory damages and $4 million in punitive damages.
The Alabama Supreme Court reduced the award to $2 million. The United
States Supreme Court held that the reduced award still violated BMW’s
rights under the due process clause. The Court said that “[t]hree guideposts,
each of which indicates that BMW did not receive adequate notice of the
magnitude of the sanction that Alabama might impose for adhering to the
nondisclosure policy adopted in 1983, lead us to the conclusion that the $2
million award against BMW is grossly excessive: the degree of
reprehensibility of the nondisclosure; the disparity between the harm or
potential harm suffered by Dr. Gore and his punitive damages award; and
the difference between this remedy and the civil penalties authorized or
imposed in comparable cases.”
Justice Scalia filed a dissenting opinion, arguing that the due process
clause requires that certain procedures be followed in awarding punitive
damages but imposes no limits on the size of such awards. He also
contended that the majority’s guideposts “mark a road to nowhere” and
“provide no real guidance at all” to future courts asked to assess the
constitutionality of large awards of punitive damages.
More recently, the Court struck down an award of $145 million in
punitive damages in a case where the plaintiff won compensatory damages
of $1 million against an insurance company for its bad-faith refusal to settle
a lawsuit. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003).
The Court emphasized that “[a] jury must be instructed . . . that it may not
use evidence of out-of-state conduct to punish a defendant for action that
was lawful in the jurisdiction where it occurred,” as appeared to have
occurred in that case; the Court added that “[d]ue process does not permit
courts, in the calculation of punitive damages, to adjudicate the merits of
other parties’ hypothetical claims against a defendant under the guise of the
reprehensibility analysis, but we have no doubt the Utah Supreme Court did
that here.” The Court also offered the view that “few awards exceeding a
single-digit ratio between punitive and compensatory damages, to a
significant degree, will satisfy due process.”
Cass R. Sunstein, How Law Constructs Preferences

86 Geo. L.J. 2637 (1998)
. . . My principal emphasis here is on the broader implications of a

recent empirical study of punitive damages, undertaken by Daniel
Kahneman, David Schkade, and me. Our study involved about 900 jury
eligible citizens in Texas; each was asked to evaluate punitive damage
cases, by saying: (a) how outrageous the defendant’s conduct was, on a
bounded scale of 0 to 6; (b) how much the defendant should be punished,
on the same bounded scale; and (c) how much in the way of punitive
damages the defendant should be expected to pay on an unbounded scale of
dollars. There were twenty eight total scenarios. The questions allowed
measurement of the effects of the defendant firm’s size (which was varied),
the effects of harm (in all cases, compensatory damages were $200,000, but
in some, the harm seemed qualitatively worse), and the effects of context
(all participants read one case in isolation, others together).
Here was the basic puzzle that we sought to explore: Frequently the
legal system requires judges or juries to make (normative) judgments of
some kind and then to translate those judgments into dollar amounts. This is
of course the task of juries who impose punitive damages. How does this
translation take place? When the translation occurs, what is it that the legal
system is doing? Can the task be done well?
Our basic findings were as follows:
1. People have a remarkably high degree of moral consensus on the

degree of outrage and punishment that is appropriate for punitive
damage cases. At least in the personal injury cases we offered, this
moral consensus, on what might be called outrage and punitive
intent, cuts across differences in gender, race, income, age, and
education. For example, our study shows through the construction of
“synthetic juries” that all white, all female, all Hispanic, all male, all
poor, all wealthy, all black, all old, and all young juries are likely to
come to similar conclusions about how to rank and how to rate a
range of cases.
There is one exception to this generalization. Though women and
men rank cases in the same way, women tend to rate cases more
severely on the bounded scales, and this effect is heightened when
the plaintiff is female. (It could as accurately be said that men tend to
rate cases more leniently than women, and this effect is heightened
when the plaintiff is female.) But this modest difference does not
undermine our basic finding, which involves a striking consensus.
2. The consensus fractures when the legal system uses dollars as the
vehicle to measure moral outrage. Even when there is a consensus on
punitive intent, there is no consensus about the dollar amount that is
necessary to produce the appropriate suffering in a defendant. Under
existing law, widely shared and reasonably predictable judgments
about punitive intent are turned into highly erratic judgments about
appropriate dollar punishment. A basic source of arbitrariness with
the existing system of punitive damages (and a problem not limited
to the area of punitive damages) is the use of an unbounded dollar
scale.
3. A modest degree of additional arbitrariness is created by the fact that
juries have a hard time making appropriate distinctions among cases
in what might be called a “no comparison condition.” When one case
is seen apart from other cases, people show a general tendency to
place it toward the midpoint of any bounded scale. It is therefore less
likely that sensible discriminations will be made among diverse
cases. This effect is, however, far less important than the effect
identified in (2) in producing arbitrary awards.
4. Harm matters a great deal, even if compensatory damages are held
constant. The degree of outrage evoked by the defendant’s behavior
was not affected by the harm that occurred, but varying the harm had
a limited but statistically significant effect on punishment ratings;
defendants who had done more harm to the plaintiff were judged to
deserve greater punishment. Thus low harm produced an average
award of $727,599 and high harm an average award of $1,171,251
— a substantially greater amount.
5. We hypothesized that the defendant firm’s size would affect neither
outrage nor punitive intent, but that the same degree of punitive
intent would be translated into a larger amount of damages when the
firm is larger than when it is smaller. As expected, we found no
statistically significant effects of firm size on either outrage or
punishment judgments. But large firms were punished with much
larger dollar awards (an average of $1,009,994) than medium firms
($526,398). This is substantial evidence that equivalent outrage and
punitive intent will produce significantly higher dollar awards
against wealthy defendants.
The most basic finding that emerges from this study is that outrage and
punitive intent are shared, but judgments about dollar awards are not. This
is because the legal system gives people no “modulus,” or standard, by
which to assess different possibilities along the unbounded scale of dollars.
If, for example, $2 million in punitive damages were associated with a
particular, specified action, juries would have a “modulus” around which to
organize their intuitions. The legal system constructs jury’s preferences for
punitive awards by asking them to come up with a number along the
unbounded scale of dollars, subject to instructions that are usually open
ended.
How might this problem be handled? Once we see that punitive awards
are constructed by the legal system’s particular response mode — dollars —
we can specify the basis of complaints about the status quo, and generate
appropriate reforms. I consider three possible approaches.
If the basic problem is simple unpredictability, the legal system might
reduce that problem by asking juries not to come up with dollar amounts,
but to rank the case at hand among a preselected set of exemplar cases, or to
use a bounded scale of numbers rather than an unbounded scale of dollars. .
..
If the basic problem is that people cannot sensibly map their moral
judgments onto dollar awards, the legal system should provide a mechanism
by which judges or administrators, rather than jurors, can translate the
relevant moral judgments into dollar amounts. It is reasonable to question
whether ordinary people can know what a given dollar amount would mean
for, or do to, the defendant or those in the position of the defendant. On this
view, the jury should also rank the case at hand in comparison to
preselected cases, or come up with a number on a bounded scale. A
conversion formula, based not on population wide data but on expert
judgments about what various awards would actually mean or do, would be
used to produce rational judgments about dollar amounts. . . .
If the basic problem is that people’s moral judgments are not the proper
basis for punitive awards, judges might, in some or all contexts, use those
moral judgments as one factor to be considered among others, or the legal
system might dispense with jury judgments entirely in some or all contexts.
If, for example, it is believed that existing social norms are not the
appropriate basis for punishment, or if deterrence rather than retribution is
the appropriate goal of punitive damages, an expert body might decide on
appropriate awards, or offer general guidance to trial court judges. Because
this approach reduces or eliminates the jury and relies instead on specialists,
it attempts a form of bureaucratic rationality.1
1. Reprinted with permission of the publisher, Georgetown Law Journal © 1998.

Chapter 10
Defenses
A defendant sued for negligently inflicting harm often will attempt to

fend off the claim by pointing to various features of the plaintiff’s own
conduct. This chapter considers such defenses. They can be divided broadly
into two categories. The first, with which we begin, involves claims that the
plaintiff was negligent. The second family of defenses involves claims that
the plaintiff assumed the risk of the harm that occurred. These latter claims
can be further divided into three types: claims that the plaintiff expressly
assumed the risk by agreement; claims that the defendant had no duty to
protect the plaintiff from the harm suffered because the risk of it was
inherent in an activity the plaintiff chose to undertake; and claims — now
more rare — that the plaintiff chose to encounter a risk negligently created
by the defendant. We consider each sort of claim in turn.
A. CONTRIBUTORY AND COMPARATIVE NEGLIGENCE
The traditional common law rule was that plaintiffs whose own negligence
contributed to their injuries generally could not recover anything from
defendants whose negligence also contributed to them. This was the
doctrine of contributory negligence. Most jurisdictions now have
abandoned that rule in favor of comparative negligence doctrines that
reduce the damages paid to a negligent defendant but do not prevent
recovery altogether. It will help put the new rules in perspective to begin by
considering the older ones.
1. Contributory negligence: a simple example. In Harris v. Meadows,
477 So. 2d 374 (Ala. 1985), the plaintiff, Harris, was driving down an
avenue in Birmingham. The defendant, Meadows, was driving on the same
street in the other direction. Meadows started to make a left turn that
brought her car into the path of Harris’s car. Harris testified that she blew
her horn, applied her brakes, and “moved over to the right a little bit”; the
cars nevertheless collided, causing Harris various injuries for which she
sought to recover. Meadows admitted that she had been negligent in making
the left turn, but defended on the ground that Harris was guilty of
contributory negligence. A jury found for Meadows, and Harris appealed.
At trial Harris had testified as follows:
Q. How far from her vehicle would you say you were when you really
came down on your brakes in an attempt to stop?
A. I didn’t really come down on my brakes in an attempt to stop. I
slowed down to see that maybe she could get on across there and not
hit me. But that was not possible. She was already on me at that
point.
Q. Did you make any attempt to put on your brakes and come to a stop
and let this lady turn in front of you to go into Kelly’s?
A. There wasn’t time.
Q. But you never did come down hard on your brakes, lock your
brakes, skid, and attempt to stop. You were going to see if she had
time to come in front of you?
A. There was not time to make all those decisions. I just slowed down
thinking she would see me coming at that point and stop her turn.
Q. Did you ever try to mash your brakes to the floor to try to stop your
vehicle to keep from hitting the Chevrolet that was turning in front
of you?
A. No, sir.
On the basis of this testimony the Alabama Supreme Court affirmed the
judgment for the defendant. Said the court: “[T]here was sufficient evidence
before the jury for it to conclude that Harris was guilty of contributory
negligence in failing to act reasonably under the circumstances to avoid the
collision. This case is perhaps illustrative of the harshness of the
contributory negligence doctrine, a doctrine which . . . seems to be firmly
established in our jurisprudence.”
2. All or nothing. As the court says, Harris v. Meadows illustrates well
the operation of contributory negligence, the traditional rule that barred
plaintiffs from recovery if their own negligence contributed at all to an
accident. “It has been a rule of law from time immemorial, and is not likely
to be changed in all time to come, that there can be no recovery for an
injury caused by the mutual default of both parties.” Pa. Ry. Co. v. Aspell,
23 Pa. 147 (1854). About 50 years after that utterance in Aspell was made,
however, Mississippi passed the country’s first general comparative
negligence statute, abolishing the “all or nothing” approach in favor of a
regime in which the negligent plaintiff still could obtain a partial recovery
from the defendant in many cases. Wisconsin did the same in 1931, and
Arkansas in 1955; then from the late 1960s through the 1980s almost all
other states followed suit, usually by action of the legislature but in some
cases by judicial decision. At this writing Alabama remains one of a few
states where the doctrine of contributory negligence remains good law.
3. The substance of the standard. In principle, the meaning of
“negligence” is the same whether the conduct being considered is the
plaintiff’s or the defendant’s; the principles discussed in the chapter of this
book covering the negligence standard apply in both directions. The
traditional rule of contributory negligence was that any such negligence by
the plaintiff prevented all recovery. Thus here were many cases forbidding
recovery if the plaintiff’s negligence, “however slight” (or “in the slightest
degree”), contributed to the accident — and stating that the jury should be
instructed in just those terms. See, e.g., Crum v. Ward, 122 S.E.2d 421 (W.
Va. 1961); Miller v. Montgomery, 152 A.2d 757 (Pa. 1959); Capitol Transp.
Co. v. Alexander, 242 S.W.2d 833 (Ark. 1951). The implication and result
of these cases could be quite harsh, as plaintiffs who bore but a small share
of blame for their injuries could collect nothing from defendants who were
largely responsible. In practice, some courts appear to have judged the
conduct of plaintiffs a bit more generously than the conduct of defendants
to avoid such outcomes. A study of the doctrine’s application in California
and New Hampshire during the nineteenth century turned up a number of
examples:
In administering tort appeals, the two states’ Courts developed a
variety of maxim-like ideas emphasizing the lenient and forgiving
quality of the contributory negligence standard. Thus, a plaintiff was
not required to exercise “great care” or to behave in a “very timid or
cautious” way; contributory negligence was not proven by an
“indiscretion” or a mere “error of judgment,” let alone by a
“misjudgment” in retrospect. . . . If the plaintiff forgot what he knew
about the particular danger, the Court could say that “people are
liable to lapses of memory.” Attenuating maxims like these were
almost totally in lacking the Courts’ opinions dealing with the
possible negligence of tort defendants, who were frequently held to a
standard of the “utmost care.” Whatever, then, the symmetry in form
of the doctrines of negligence and contributory negligence, they were
administered under an emphatic, if implicit, double standard[.]
Gary Schwartz, Tort Law and the Economy in Nineteenth-Century America:

A Reinterpretation, 90 Yale L.J. 1717, 1762 (1981).
It also is possible for a jury to create, de facto, a similar double standard
regardless of the court’s instructions. Thus, in Alibrandi v. Helmsley, 314
N.Y.S.2d 95 (Sup. Ct. 1970), the plaintiff was a truck driver who arrived at
the defendant’s building to pick up some packages. All the bays at the
defendant’s loading dock were occupied; rather than wait for one of them to
open up, the plaintiff parked his truck some distance away, retrieved the
boxes himself, put them onto a cart, and then pulled the cart along while he
walked backwards down a ramp toward his truck. He tripped on a loose
steel plate on the ramp and suffered various injuries for which he sued to
recover. The case was tried to a judge rather than a jury. The judge denied
recovery, holding the plaintiff contributorily negligent as a matter of law in
deciding to walk the cart backwards down the ramp:
I am as confident as one can be about these matters that, had the case
been tried to a jury, the jury would have determined the sum of
plaintiff’s damages in a substantial amount, deducted a portion
equivalent of the degree of his negligence, and returned a verdict for
the difference. In short, as every trial lawyer knows, the jury would
likely have ignored its instructions on contributory negligence and
applied a standard of comparative negligence. It would be
comfortable for me simply to guess what the jury’s verdict would
have been and then file a one-sentence decision holding defendants
liable in that amount. Comfortable but false. My duty is to apply the
law as I understand it, and I do not understand that, no matter that a
jury might do, a judge may pretend to make a decision on the basis of
contributory negligence while actually deciding on comparative
negligence.
4. Last clear chance. The hard results produced by contributory

negligence also were softened in a more explicit way by the doctrine of
“last clear chance.” In the leading case of Davies v. Mann, 152 Eng. Rep.
588 (Exch. 1842), Davies left his donkey to graze by the side of a highway;
its legs were fettered to prevent it from wandering. The defendant’s wagon,
pulled by a team of horses, ran over the donkey and killed it. Davies was
held entitled to recover despite his negligence in letting the donkey onto the
road. Said Parke, B.:
[A]lthough the ass may have been wrongfully there, still the
defendant was bound to go along the road at such a pace as would be
likely to prevent mischief. Were this not so, a man might justify the
driving over goods left on a public highway, or even over a man lying
asleep there, or the purposely running against a carriage going on the
wrong side of the street.
The holding of Davies gradually was generalized into the doctrine of last
clear chance: generally speaking, the plaintiff could recover despite
committing contributory negligence if the defendant had a sufficiently good
opportunity to avoid the accident at a point when the plaintiff did not.
Typically it had to be shown that the defendant saw the plaintiff or had
some other notice of him but failed to avoid inflicting the injury. The
doctrine involves many intricacies on which jurisdictions disagreed:
whether, for example, the plaintiff must have been helpless or merely
inattentive when the defendant’s chance to take precautions arose; whether
it must be shown that the defendant was guilty of something worse than
negligence; whether the plaintiff must have actually perceived the plaintiff
or could be held liable if he should have known the plaintiff was there; or
whether it matters if the defendant created the peril faced by the plaintiff or
only failed to avoid a peril created by the plaintiff himself. If the doctrine of
last clear chance still retained vitality, we would be spending a section of
this chapter exploring each of those issues and others like them. Given the
demise of contributory negligence, however, we will content ourselves with
that brief sketch of the outlines of last clear chance and the following
excerpts from the Restatement (Second) of Torts:
§479. LAST CLEAR CHANCE: HELPLESS PLAINTIFF
A plaintiff who has negligently subjected himself to a risk of

harm from the defendant’s subsequent negligence may recover for
harm caused thereby if, immediately preceding the harm,
(a) the plaintiff is unable to avoid it by the exercise of reasonable
vigilance and care, and
(b) the defendant is negligent in failing to utilize with reasonable
care and competence his then existing opportunity to avoid the
harm, when he
(i) knows of the plaintiff’s situation and realizes or has reason
to realize the peril involved in it or
(ii) would discover the situation and thus have reason to
realize the peril, if he were to exercise the vigilance which it is
then his duty to the plaintiff to exercise.
Comment a. . . . Two explanations are commonly given for this
departure from the general rule that contributory negligence bars
recovery. One is that the later negligence of the defendant involves a
higher degree of fault. This may be true in cases where the defendant
has discovered the danger and his conduct approaches intentional or
reckless disregard of it; but it fails to explain many cases in which his
negligence consists merely of a failure to discover the situation at all,
or in slowness, clumsiness, inadvertence, or an error of judgment in
dealing with it. The other explanation is that the plaintiff’s negligence
is not a “proximate” or legal cause of the harm to him, because the
later negligence of the defendant is a superseding cause which
relieves the plaintiff of responsibility for it. This is quite out of line
with modern ideas as to legal cause. Where the injury is to a third
person, as for example a passenger in the actor’s car, the fact that the
actor has the last clear chance does not relieve the other driver of
liability. The causal relation can scarcely be otherwise where the
injury is to the other driver himself.
In reality the rules of the last clear chance appear to arise out of a
dislike for the defense of contributory negligence, which has made
the courts reject it in situations where they can regard the defendant’s
negligence as the final and decisive factor in producing the injury.
Illustration 1. A is driving his car negligently. In consequence he
collides at an intersection with the car of B. A’s car is thrown onto the
other side of the road, upon which C’s car is approaching. C sees the
car, but instead of stopping unreasonably thinks that he can cut
around it. The space is too narrow, and he collides with A’s car,
overturning it and breaking A’s leg. C is subject to liability to A.
Illustration 3. The same facts as in Illustration 1, except that C
does everything which then could be done to stop the car but is
unable to do so because his brakes are negligently defective. C is not
liable to A.
Illustration 4. A is negligently driving his car at night without
headlights. The absence of lights prevents A from discovering B’s
car, negligently stopped on the highway without lights, in time to
avoid a collision with it. Although A is driving with proper care in all
other respects, he collides with B’s car, injuring B. A is not liable to
B.
§480. LAST CLEAR CHANCE: INATTENTIVE PLAINTIFF
A plaintiff who, by the exercise of reasonable vigilance, could

discover the danger created by the defendant’s negligence in time to
avoid the harm to him, can recover if, but only if, the defendant
(a) knows of the plaintiff’s situation, and
(b) realizes or has reason to realize that the plaintiff is inattentive
and therefore unlikely to discover his peril in time to avoid the
harm, and
(c) thereafter is negligent in failing to utilize with reasonable
care and competence his then existing opportunity to avoid the
harm.
Comment a. The situation dealt with in this Section differs from
that dealt with in §479 in one important particular: §479 is applicable
only where the plaintiff immediately before his harm could not have
avoided it by the exercise of that vigilance which a reasonable man
would exercise for his own protection. This Section states the rule
under which a plaintiff who could have made timely discovery of his
peril if he had been on the alert can recover notwithstanding his
negligent inattention. In such a situation, the defendant has no reason
to believe that he has the exclusive power to prevent the harm unless
he not only knows or has reason to know of the plaintiff’s situation
but realizes or should realize that the plaintiff does not know the peril
of his situation and is, therefore, in a danger from which only the
defendant’s careful action can protect him.
5. Why? From Prosser, Comparative Negligence, 41 Cal. L. Rev. 1
(1953):
There has been much speculation as to why the rule [of contributory
negligence] found such ready acceptance in later decisions, both in
England and in the United States. The explanations given by the
courts themselves never have carried much conviction. Most of the
decisions have talked about “proximate cause,” saying that the
plaintiff’s negligence is an intervening, insulating cause between the
defendant’s negligence and the injury. But this cannot be supported
unless a meaning is assigned to proximate cause which is found
nowhere else. If two automobiles collide and injure a bystander, the
negligence of one driver is not held to be a superseding cause which
relieves the other of liability; and there is no visible reason for any
different conclusion when the action is by one driver against the
other. It has been said that the defense has a penal basis, and is
intended to punish the plaintiff for his own misconduct; or that the
court will not aid one who is himself at fault, and he must come into
court with clean hands. But this is no explanation of the many cases,
particularly those of the last clear chance, in which a plaintiff clearly
at fault is permitted to recover. It has been said that the rule is
intended to discourage accidents, by denying recovery to those who
fail to use proper care for their own safety; but the assumption that
the speeding motorist is, or should be, meditating on the possible
failure of a lawsuit for his possible injuries lacks all reality, and it is
quite as reasonable to say that the rule promotes accidents by
encouraging the negligent defendant. Probably the true explanation
lies merely in the highly individualistic attitude of the common law of
the early nineteenth century. The period of development of
contributory negligence was that of the industrial revolution, and
there is reason to think that the courts found in this defense, along
with the concepts of duty and proximate cause, a convenient
instrument of control over the jury, by which the liabilities of rapidly
growing industry were curbed and kept within bounds.
McIntyre v. Balentine
833 S.W.2d 52 (Tenn. 1992)
[Balentine’s tractor collided with McIntyre’s pickup truck, causing

McIntyre various injuries. McIntyre sued Balentine. The evidence at trial
tended to show that Balentine had been intoxicated but that McIntyre had
been speeding. The jury found the two men equally at fault; the trial court
thus gave judgment to the defendant, Balentine, under Tennessee’s doctrine
of contributory negligence. The court of appeals affirmed. This appeal
followed.]
DROWOTA, J. — . . . The common law contributory negligence doctrine

has traditionally been traced to Lord Ellenborough’s opinion in Butterfield
v. Forrester, 103 Eng. Rep. 926 (1809). There, plaintiff, “riding as fast as
his horse would go,” was injured after running into an obstruction
defendant had placed in the road. Stating as the rule that “[o]ne person
being in fault will not dispense with another’s using ordinary care,” plaintiff
was denied recovery on the basis that he did not use ordinary care to avoid
the obstruction.
The contributory negligence bar was soon brought to America as part of
the common law, and proceeded to spread throughout the states. This strict
bar may have been a direct outgrowth of the common law system of issue
pleading; issue pleading posed questions to be answered “yes” or “no,”
leaving common law courts, the theory goes, no choice but to award all or
nothing. A number of other rationalizations have been advanced in the
attempt to justify the harshness of the “all-or-nothing” bar. Among these:
the plaintiff should be penalized for his misconduct; the plaintiff should be
deterred from injuring himself; and the plaintiff’s negligence supersedes the
defendant’s so as to render defendant’s negligence no longer proximate. See
Prosser and Keeton on The Law of Torts, §65 (5th ed. 1984).
In Tennessee, the rule as initially stated was that “if a party, by his own
gross negligence, brings an injury upon himself, or contributes to such
injury, he cannot recover;” for, in such cases, the party “must be regarded as
the author of his own misfortune.” Whirley v. Whiteman, 38 Tenn. 610, 619
(1858). In subsequent decisions, we have continued to follow the general
rule that a plaintiff’s contributory negligence completely bars recovery.
Equally entrenched in Tennessee jurisprudence are exceptions to the
general all-or-nothing rule: contributory negligence does not absolutely bar
recovery where defendant’s conduct was intentional, where defendant’s
conduct was “grossly” negligent, where defendant had the “last clear
chance” with which, through the exercise of ordinary care, to avoid
plaintiff’s injury, or where plaintiff’s negligence may be classified as
“remote.” . . .
Between 1920 and 1969, a few states began utilizing the principles of
comparative fault in all tort litigation. Then, between 1969 and 1984,
comparative fault replaced contributory negligence in 37 additional states.
In 1991, South Carolina became the 45th state to adopt comparative fault,
leaving Alabama, Maryland, North Carolina, Virginia, and Tennessee as the
only remaining common law contributory negligence jurisdictions.
Eleven states have judicially adopted comparative fault. Thirty-four
states have legislatively adopted comparative fault. . . .
After exhaustive deliberation that was facilitated by extensive briefing
and argument by the parties, amicus curiae, and Tennessee’s scholastic
community, we conclude that it is time to abandon the outmoded and unjust
common law doctrine of contributory negligence and adopt in its place a
system of comparative fault. Justice simply will not permit our continued
adherence to a rule that, in the face of a judicial determination that others
bear primary responsibility, nevertheless completely denies injured litigants
recompense for their damages.
We recognize that this action could be taken by our General Assembly.
However, legislative inaction has never prevented judicial abolition of
obsolete common law doctrines, especially those, such as contributory
negligence, conceived in the judicial womb. Indeed, our abstinence would
sanction “a mutual state of inaction in which the court awaits action by the
legislature and the legislature awaits guidance from the court,” Alvis v.
Ribar, 421 N.E.2d 886, 896 (Ill. 1981), thereby prejudicing the equitable
resolution of legal conflicts. . . .
Two basic forms of comparative fault are utilized by 45 of our sister
jurisdictions, these variants being commonly referred to as either “pure” or
“modified.” In the “pure” form, a plaintiff’s damages are reduced in
proportion to the percentage negligence attributed to him; for example, a
plaintiff responsible for 90 percent of the negligence that caused his injuries
nevertheless may recover 10 percent of his damages. In the “modified”
form, plaintiffs recover as in pure jurisdictions, but only if the plaintiff’s
negligence either (1) does not exceed (“50 percent” jurisdictions) or (2) is
less than (“49 percent” jurisdictions) the defendant’s negligence.
Although we conclude that the all-or-nothing rule of contributory
negligence must be replaced, we nevertheless decline to abandon totally our
fault-based tort system. We do not agree that a party should necessarily be
able to recover in tort even though he may be 80, 90, or 95 percent at fault.
We therefore reject the pure form of comparative fault.
We recognize that modified comparative fault systems have been
criticized as merely shifting the arbitrary contributory negligence bar to a
new ground. See, e.g., Li v. Yellow Cab Co., 532 P.2d 1226 (Cal. 1975).
However, we feel the “49 percent rule” ameliorates the harshness of the
common law rule while remaining compatible with a fault-based tort
system. We therefore hold that so long as a plaintiff’s negligence remains
less than the defendant’s negligence the plaintiff may recover; in such a
case, plaintiff’s damages are to be reduced in proportion to the percentage
of the total negligence attributable to the plaintiff.
In all trials where the issue of comparative fault is before a jury, the trial
court shall instruct the jury on the effect of the jury’s finding as to the
percentage of negligence as between the plaintiff or plaintiffs and the
defendant or defendants. The attorneys for each party shall be allowed to
argue how this instruction affects a plaintiff’s ability to recover. . . .
[The court remanded the case for a new trial in accordance the opinion.
In an appendix it included the following special verdict form for use in
comparative negligence cases:]
SPECIAL VERDICT FORM

We, the jury, make the following answers to the questions submitted by
the court:
1. Was the defendant negligent?

Answer: ______ (Yes or No)
(If your answer is “No,” do not answer any further questions. Sign this
form and return it to the court.)
2. Was the defendant’s negligence a proximate cause of injury or
damage to the plaintiff?
(If your answer is “No,” do not answer any further questions. Sign this
3. Did the plaintiff’s own negligence account for 50 percent or more of
the total negligence that proximately caused his/her injuries or damages?
(If your answer is “Yes,” do not answer any further questions. Sign this
4. What is the total amount of plaintiff’s damages, determined without
reference to the amount of plaintiff’s negligence?
Amount in dollars: $ ______
5. Using 100 percent as the total combined negligence which
proximately caused the injuries or damages to the plaintiff, what are the
percentages of such negligence to be allocated to the plaintiff and
defendant?
Plaintiff ______%
Defendant ______%
(Total must equal 100%)
NOTES
1. Statute vs. judicial decision. As the opinion in McIntyre notes, most

states have now adopted some sort of comparative negligence regime by
statute rather than by judicial decision. What considerations should drive
the choice between comparative and contributory negligence? Is there
reason to prefer a legislative decision on the subject to a move by the
courts? Here are three examples of comparative negligence statutes; notice
how each differs importantly from the other two:
a. New York:
Civil Practice Law and Rules §1411. damages recoverable when

contributory negligence or assumption of risk is established
In any action to recover damages for personal injury, injury to
property, or wrongful death, the culpable conduct attributable to the
claimant or to the decedent, including contributory negligence or
assumption of risk, shall not bar recovery, but the amount of
damages otherwise recoverable shall be diminished in the
proportion which the culpable conduct attributable to the claimant or
decedent bears to the culpable conduct which caused the damages.
b. Colorado:
Rev. Stat. §13-21-111. negligence cases — comparative negligence

as measure of damages
(1) Contributory negligence shall not bar recovery in any action
by any person or his legal representative to recover damages for
negligence resulting in death or in injury to person or property, if
such negligence was not as great as the negligence of the person
against whom recovery is sought, but any damages allowed shall be
diminished in proportion to the amount of negligence attributable to
the person for whose injury, damage, or death recovery is made.
(2) In any action to which subsection (1) of this section applies,
the court, in a nonjury trial, shall make findings of fact or, in a jury
trial, the jury shall return a special verdict which shall state:
(a) The amount of the damages which would have been
recoverable if there had been no contributory negligence; and
(b) The degree of negligence of each party, expressed as a
percentage.
c. Oregon:
Rev. Stat. §18.470(1). contributory negligence not bar to recovery;

comparative negligence standard; third party complaints
Contributory negligence shall not bar recovery in an action by
any person or the legal representative of the person to recover
damages for death or injury to person or property if the fault
attributable to the claimant was not greater than the combined fault
of all [defendants], but any damages allowed shall be diminished in
the proportion to the percentage of fault attributable to the claimant.
...
Consider how each of those three states would treat a case where the jury
decided that the plaintiff and the defendant were equally at fault; where the
plaintiff’s share of responsibility was 60 percent and the defendant’s was 40
percent; and where those figures were reversed. The “not greater than”
formulation (also known as the “50 percent rule”) illustrated by the Oregon
statute is the most common approach, being used by roughly half the states
that have adopted comparative negligence in one form or another. The
remaining states are about evenly divided between a “49 percent rule” such
as Colorado’s (and like the rule adopted in McIntyre) and “pure”
comparative negligence after the fashion of the New York law. Would you
expect the practical difference between the two types of modified
comparative negligence — the 50 percent rule and the 49 percent rule — to
be significant?
2. Comparative what? Notice an ambiguity in the statutes just
considered and in the concept of comparative negligence generally: what is
being compared? One possibility is to compare how negligent each party
was; another is to ask whose conduct made a greater causal contribution to
the accident. To make the problem more concrete, Victor Schwartz offers a
hypothetical collision between a motorcyclist and a truck in which both
were negligent. Suppose it can be shown that the momentum of the truck
contributed 95 percent of the force that injured the motorcyclist — but the
motorcyclist was drunk and was speeding, whereas the truck driver’s
negligence was less flagrant. Should the motorcyclist still recover 95
percent of his damages in a regime of pure comparative fault? Schwartz,
Comparative Negligence §17.01 (4th ed. 2002). The Oregon Supreme Court
has answered that question in the negative, interpreting its statute to call for
a comparison of negligence, not causation:
There is no reference [in the statute] to causation, or to any question

how much the fault of each contributed to the injury. . . . We do not
mean that the allegedly faulty conduct or condition need not have
affected the event for which recovery is sought; as we have said, it
must have been a cause in fact. But the statute does not call for
apportioning damages by quantifying the contribution of several
causes that had to coincide to produce the injury.
Rather, ORS 18.470 . . . calls upon the factfinder to assess and
quantify fault. If the plaintiff’s conduct is not faultless, the
assessment has two purposes: to determine whether her fault is “not
greater than” that of defendants, and if it is not, then to reduce the
plaintiff’s recovery of damages “in the proportion to the percentage
of fault attributable to” the plaintiff.
Sandford v. General Motors Corp., 642 P.2d 624 (Or. 1982). There are cases
elsewhere holding that the jury should compare causation, but these
generally are in situations involving products liability where the defendant
is held strictly liable, making an inquiry into the extent of its negligence
seem out of place. See, e.g., Murray v. Fairbanks Morse, 610 F.2d 149 (3d
Cir. 1979). In Tennessee as in many other states, the courts have avoided
committing to one view or the other in ordinary negligence cases and have
charged juries with comparing causation as well as negligence — and more:
[T]he percentage of fault assigned to each party should be dependent

upon all the circumstances of the case, including such factors as: (1)
the relative closeness of the causal relationship between the conduct
of the defendant and the injury to the plaintiff; (2) the reasonableness
of the party’s conduct in confronting a risk, such as whether the party
knew of the risk, or should have known of it; (3) the extent to which
the defendant failed to reasonably utilize an existing opportunity to
avoid the injury to the plaintiff; (4) the existence of a sudden
emergency requiring a hasty decision; (5) the significance of what the
party was attempting to accomplish by the conduct, such as an
attempt to save another’s life; and (6) the party’s particular capacities,
such as age, maturity, training, education, and so forth.
Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1994).

3. The question of efficiency. The condemnation of contributory
negligence usually was based on its perceived unfairness to plaintiffs. But
economic analysts have focused on a different aspect of the question: which
rule — contributory or comparative negligence — is more efficient? The
economist’s goal is to find rules to govern liability for accidents that
minimize the sum of all the costs involved: the costs of the accidents
themselves, but also the costs of precautions and of litigation. A possible
implication of this approach is that the law should try to induce the party
who can prevent an accident at least cost to take precautions against it. See
G. Calabresi, The Costs of Accidents (1970). Sometimes this may be the
victim of an injury rather than the party who inflicted it — the pedestrian
rather than the driver. Does comparative negligence create better incentives
than contributory negligence for both parties to an accident to take the right
level of precautions? Does one of the rules cause more uncertainty than the
other, thus creating a greater need for litigation and raising administrative
costs? Is it relevant whether the rules governing comparative negligence are
well known within a jurisdiction? For a rule to have an impact on incentives
it need not affect the average person; it is enough if it exerts influence at the
margin, causing some people to behave differently. Are there situations in
which you would expect the rules governing contributory fault to
significantly influence behavior?
4. Intentional torts, etc. One result of the rise of comparative negligence
has been the modification or demise of doctrines that were developed to
mitigate the effects of contributory negligence. The doctrine of last clear
chance has been abolished in most jurisdictions, as noted earlier in this
section; also being widely phased out is the doctrine of secondary
assumption of risk, considered later in this chapter. A more complicated
question involves the treatment of conduct by the defendant that is reckless,
wanton, or otherwise worse than negligent. The doctrine of contributory
negligence did not deprive plaintiffs of recoveries in such cases, but
jurisdictions now using comparative negligence often do allow the
plaintiff’s negligence to be balanced against worse conduct by defendants at
least some of the time. In Danculovich v. Brown, 593 P.2d 187 (Wyo.
1987), for example, the court allowed a reduction of damages on account of
the plaintiff’s ordinary negligence despite the defendant’s gross negligence,
but would not allow such a reduction if the defendant’s misconduct had
been “willful and wanton,” reasoning that the latter sort of misbehavior
involved intent and thus was different in kind from the sort of fault meant to
be compared under the state’s statute. In keeping with this principle,
comparative negligence, like contributory negligence, generally is held to
be no defense to an intentional tort claim.
5. Declining to balance. A related consequence of comparative
negligence is that many other rules that used to result in decisive victories
for defendants have now been turned into mere factors for juries to
consider. The doctrine of secondary assumption of risk is one example, as
noted a moment ago. Another is the old rule that in many situations a
plaintiff could not recover for injuries caused by a danger that was “open
and obvious”; today the obviousness of a danger is more likely to be left for
the jury to balance against the other considerations in a case, and to produce
a reduced award for the plaintiff rather than a complete denial of recovery.
But this preference for balancing does not always hold sway. Sometimes
courts still will conclude that a plaintiff’s own negligence was of a sort that
should preclude any recovery, even if a negligent defendant was partly
responsible for the plaintiff’s injuries as well. And sometimes courts will
say that a plaintiff’s negligence should not cause any reduction in recovery
even if it seems clearly to have contributed to the injury the plaintiff
suffered. The following cases consider some examples of these decisions.
6. Serious violations. In Manning v. Brown, 689 N.E.2d 1382 (N.Y.
1997), the plaintiff, Manning, and her friend, Amidon, were high school
classmates. Neither girl had a driver’s license or learner’s permit. One night
they found an unattended car belonging to a friend. They discovered a set of
keys in the car and drove off with it. The two of them took turns driving. At
one point Manning suggested that Amidon, who then was driving, should
tune the car’s radio to the same station it was on when they found it, so that
the car’s owners would not deduce that the car had been in use. As Amidon
adjusted the radio she swerved into a pole, causing Manning various
injuries. Manning sued Amidon and the owners of the car, a couple named
Brown, for negligence. The trial court gave summary judgment to the
defendants, and the New York Court of Appeals affirmed:
Defendant Amidon contends that plaintiff’s complaint seeking

damages for personal injuries should be dismissed as plaintiff was a
willing participant in an illegal activity. In Barker v. Kallash, 479
N.Y.S.2d 201, we held, as a matter of public policy, that where a
plaintiff has engaged in unlawful conduct, the courts will not
entertain suit if the plaintiff’s conduct constitutes a serious violation
of the law and the injuries for which the plaintiff seeks recovery are
the direct result of that violation. The policy derives from the rule
that one may not profit from one’s own wrongdoing and precludes
recovery “at the very threshold of the plaintiff’s application for
judicial relief.” Barker v. Kallash, supra, 479 N.Y.S.2d 201.
“[R]ecovery is denied, not because plaintiff contributed to [her]
injury, but because the public policy of this State generally denies
judicial relief to those injured in the course of committing a serious
criminal act.” Id. . . .
[The] difficult question is whether plaintiff’s conduct constituted
such a serious violation of the law that she should be precluded, as a
matter of public policy, from recovery. We are persuaded that it does.
. . . Plaintiff and Amidon, both unlicensed drivers, unjustifiably
engaged in an activity which was hazardous not only to themselves
but also to the public at large. An automobile is an inherently
dangerous instrument in the hands of an inexperienced operator. It
becomes even more dangerous when the inexperienced operator does
not have permission to take the vehicle. We note that joyriding, as
evidenced in the instant case, is typically characterized by more than
mere unauthorized use. The unauthorized use is usually accompanied
by reckless or excessively fast driving, posing a threat to innocent
third parties. Such criminal conduct which puts the public at grave
risk constitutes a serious violation.
Amidon was prosecuted as a juvenile and sentenced to two years in the

custody of the New York State Division for Youth. Manning was not
prosecuted.
7. Pre-operative negligence. In Fritts v. McKinne, 934 P.2d 371 (Okla.
1997), Fritts drove his pickup truck into a tree at 70 miles per hour one
night while he was drunk. All of the major bones in his face were broken in
the accident. The defendant, McKinne, was an otorhinolaryngologist called
upon to perform a tracheostomy on Fritts so that he could breathe during
surgery. Fritts suffered a ruptured artery during the procedure and bled to
death. His spouse sued McKinne, alleging that he negligently had cut open
the artery while performing the tracheostomy. McKinne asserted a
comparative negligence defense, claiming that Fritts was responsible for his
own death because he had been driving while drunk (or riding with a drunk
driver; there was some dispute as to whether Fritts or a friend of his, also
drunk, had been behind the wheel). The trial court permitted McKinne to
present this theory to the jury, which in turn brought in a verdict in
McKinne’s favor. The Oklahoma Supreme Court reversed: “Under the guise
of a claim of contributory negligence, a physician simply may not avoid
liability for negligent treatment by asserting that the patient’s injuries were
originally caused by the patient’s own negligence.” Why not? What is the
distinction between Fritts v. McKinne and Manning v. Brown?
8. Rescuers. In Ouellette v. Carde, 612 A.2d 687 (R.I. 1992), the
defendant, Carde, jacked up a car in his garage and set about trying to
replace the muffler. The car fell off the jack, pinning Carde underneath and
releasing gasoline into the garage. He worked himself free and called his
neighbor, Ouellette, on the phone. During his conversation with her, Carde
passed out. Ouellette rushed to his house and revived him. They decided to
leave the garage, so Ouellette pressed the button on Carde’s electric garage
door opener. While the door was opening, the gasoline that earlier had
spilled onto the garage floor ignited, resulting in a large explosion that
caused Carde and Ouellette various injuries. Ouellette sued Carde, alleging
that his negligence in creating the situation was the proximate cause of her
damages. Carde countered that Ouellette had herself been negligent in
certain respects in her efforts to rescue him. The trial court refused to permit
Carde to make these arguments or to allow the jury to consider whether
Ouellette had been negligent. The Rhode Island Supreme Court affirmed:
The law places a premium on human life, and one who voluntarily
attempts to save a life of another should not be barred from complete
recovery. Only if a person is rash or reckless in the rescue attempt
should recovery be limited; accordingly we hold that [this] doctrine
survives the adoption of the comparative-negligence statute and that
principles of comparative negligence apply only if a defendant
establishes that the rescuer’s actions were rash or reckless. . . .
Because defendant did not assert that plaintiff acted recklessly, the
trial justice did not err in denying defendant’s requested jury
instruction on comparative negligence.
What principles emerge from Ouellette v. Carde and Fritts v. McKinne?

9. Drunk driving (problem). In Alami v. Volkswagen of America, Inc.,
766 N.E.2d 574 (N.Y. 2002), a man named Alami drove his Volkswagen
Jetta into a utility pole as he exited the Saw Mill Parkway in Yonkers,
suffering fatal injuries. Alami’s blood alcohol level at the time of his death
was over the limit set for drivers by state statute. Alami’s widow brought
suit against Volkswagen, alleging that Alami’s injuries from the crash were
increased by a defect in the car’s design that caused the floorboard to
buckle upward during the crash. Volkswagen sought summary judgment on
the ground that the plaintiff’s suit was barred by Manning v. Brown. The
trial court granted the motion and dismissed the case. The plaintiff
appealed. What result?
10. The disobedient patient (problem). In Van Vacter v. Hierholzer, 865
S.W.2d 355 (Mo. App. 1993), Van Vacter suffered a heart attack at the age
of 40. His doctors instructed him to quit smoking, to exercise, and to reduce
his weight and cholesterol level. The following year his arteries were
narrowing and his doctors prescribed a regimen of drug treatment. Van
Vacter did not follow his doctors’ directions, did not take the drugs they
prescribed, and did not return for examinations as they had instructed.
Several years later Van Vacter went to a hospital complaining of chest
pains. A doctor there, Hierholzer, performed tests, concluded that Van
Vacter’s condition had stabilized, and sent him home. He died there a few
hours later. His widow sued Hierholzer, claiming her negligence in sending
Van Vacter home was the cause of his death. Hierholzer asked that the jury
be instructed that it could reduce any recovery for the plaintiff by the extent
to which Van Vacter’s death was caused by his own negligent failure to
follow the instructions of his physicians during the five years before he
died. The jury was so instructed and returned a verdict finding Hierholzer
negligent but finding Van Vacter 93 percent responsible for his own death
and awarding no damages. The plaintiff appealed, arguing that it was error
to permit the jury to consider Van Vacter contributorily negligent at all.
What result?
B. EXPRESS ASSUMPTION OF RISK
We turn now to a different family of defenses based on the plaintiff’s

conduct: claims not that the plaintiff was negligent but that the plaintiff
assumed the risk of the harm that occurred and therefore should be barred
from recovering from the defendant. As noted at the start of the chapter,
these claims can be further divided into three types that may roughly be
summarized as follows: claims that the plaintiff expressly assumed the risk
by formal agreement; claims that the defendant had no duty to protect the
plaintiff from the harm suffered because the risk of it was inherent in an
activity the plaintiff chose to undertake; and claims — now more rare —
that the plaintiff chose to encounter a risk negligently created by the
defendant. We now consider each form of assumption of risk, beginning
with the express variety.
1. Any and all risk. In Van Tuyn v. Zurich American Insurance Co., 447
So. 2d 318 (Fla. App. 1984), the plaintiff’s evidence was that she was a
patron at an establishment known as the Club Dallas. On the club’s
premises was a mechanical bull named “J.R.” After observing other patrons
riding the bull, the plaintiff decided to try it. She told the operator that she
had never ridden before and asked that he go slowly. His response, as the
plaintiff recalled it, was something to the effect of, “Don’t worry about it.
We’ll take care of it.” The plaintiff was asked to read and sign a release. She
signed it without reading it. The release said:
I fully understand that the mechanical Bucking Brama Bull known as

“JR” is a dangerous amusement device.
I hereby voluntarily assume any and all risk, including injury to
my person and property which may be caused as a result of my riding
or attempting to ride this Bucking Brama Bull.
In consideration for CLUB DALLAS permitting me to ride such
amusement device, I hereby voluntarily release, waive, and discharge
CLUB DALLAS, Marr Investments, Inc., their lessors, heirs,
successors and/or assigns from any and all claims, demands, damages
and causes of action of any nature whatsoever which I, my heirs, my
assigns, or my successors may have against any of them for, on
account of, or by reason of my riding or attempting to ride this
Bucking Brama Bull. I also state that I am not under the influence of
alcohol or any other intoxicant and execute this GENERAL
RELEASE, WAIVER OF CLAIM AND ASSUMPTION OF RISK
AGREEMENT of my own free will and accord.
After the plaintiff had been on the bull for about 15 seconds, it began to
speed up and she was thrown to the floor. She suffered various injuries, and
brought a suit against the Club claiming that the operator of the bull
negligently handled the mechanism that regulated the bull’s speed. The trial
court gave summary judgment to the defendants. The court of appeals
reversed:
An exculpatory clause, while looked on with disfavor, may operate to

absolve a defendant from liability arising out of his/her own negligent
acts. For such a clause to be effective, however, it must clearly state
that it releases the party from liability for its own negligence.
The agreement being reviewed is devoid of any language
manifesting the intent to either release or indemnify Club Dallas,
Marr Investments, Inc., for its own negligence. Therefore, the
agreement does not, as a matter of law, bar the Appellant’s recovery. .
..
If the release did not apply to the plaintiff’s claim in this case, can you
imagine a claim to which it would apply?
2. Parachutes. In Manning v. Brannon, 956 P.2d 156 (Okla. App. 1997),
the plaintiff, Manning, took skydiving lessons from the defendant. During
his training, Manning was given a detailed exculpatory contract that
released the defendant from liability in the event of his injury or death.
Manning watched a videotape in which an attorney explained the terms of
the contract. Manning read, signed, and initialed the contract in 14 places.
The release read in part as follows:
(5) ASSUMPTION OF THE RISK. I understand and acknowledge
that parachuting activities are inherently dangerous and I
EXPRESSLY AND VOLUNTARILY ASSUME THE RISK OF
DEATH OR OTHER PERSONAL INJURY SUSTAINED WHILE
PARTICIPATING IN PARACHUTING ACTIVITIES WHETHER
OR NOT CAUSED BY THE NEGLIGENCE OR OTHER FAULT of
[defendant] including but not limited to equipment malfunction from
whatever cause, inadequate training, and deficiencies in the landing
area, or any other fault of [defendant].
On Manning’s third jump, both his main and reserve chutes

malfunctioned by deploying simultaneously. As instructed, he cut away his
main chute. Either the reserve chute failed to fully inflate, however, or
Manning was unable to properly control the jump, or he disregarded audio
instructions he was receiving from a jump instructor on the ground; in any
event, he spiraled into a pond, sustaining various injuries. Manning brought
a lawsuit claiming that his injuries were attributable to the defendant’s
negligence in improperly packing his parachute or in negligently training
him. The jury returned a verdict finding both parties 50 percent negligent
and awarding Manning damages, and the trial court denied the defendant’s
motion for judgment notwithstanding the verdict. The defendant appealed.
Held, for the defendant, that the release was enforceable and that the
trial court erred in denying its motion for judgment notwithstanding the
verdict. Said the court:
[T]he court must ascertain the equality of the contracting parties’

bargaining power by assessing first the “importance of the subject
matter to the physical or economic well-being of the party agreeing to
the release” and second the “amount of free choice that party could
have exercised when seeking alternate services.” As to the former,
Manning neither adduced evidence nor argued that parachuting was
necessary or important to his physical or economic well-being.
Regarding the second element, Manning again neither adduced
evidence nor argued that he had no choice but to agree to be trained
by and jump with Paradise as opposed to going elsewhere,
parachuting without training, or choosing not to jump; in fact, the
record reflects Manning was offered his money back if he did not
want to jump and was offered the names of other sky-diving training
facilities. Accordingly, we find no disparity in the bargaining power
of the parties.
Hansen, J., dissented:
In my view a party should not be permitted to contract to exculpate

himself from responsibility for severe personal injury resulting from
his acts in willful or reckless disregard for the safety of others,
particularly where any negligence would create a strong potential of
immediate and violent death. In such an instance, to require a
participant to allow Appellants to be negligent in packing a parachute
certainly violates the public policy of this state.
What is the distinction between Manning v. Brannon and Van Tuyn v.

Zurich American Insurance Co. (the L case of the mechanical bull)? In
thinking about the Manning case, is it fair to assume that the defendants did
negligently pack the plaintiff’s parachute? Can we assume there also would
have been no liability if the defendants had forgotten altogether to include a
parachute in the plaintiff’s backpack, so that he plummeted to his death?
How might you distinguish such a case from Manning?
Why does the law enforce these sorts of waivers at all? If it turns out
that the defendant inexpensively could have prevented the harm the plaintiff
suffered, why does anything the plaintiff signed in advance prevent the
courts from saying so and assigning liability accordingly? What incentives
are created by enforcing such agreements, and what incentives are created
by declining to enforce them?
3. Clerical ticket. In Anderson v. Erie Ry. Co., 119 N.E. 557 (N.Y.
1918), a clergyman named Anderson bought a ticket to ride on the
defendant’s railroad at a reduced fare — a “clerical ticket.” On the back of
the ticket were these words: “In consideration of this ticket being sold at a
reduced rate, a person accepting and using it expressly agrees to and does
thereby assume all risk of accidents and damage to person and property,
whether caused by negligence of the company or that of its agents or
employees or otherwise.” The train derailed and Anderson was killed. His
administrator sued the railroad to recover and won a jury verdict. The New
York Court of Appeals reversed, holding that the release barred recovery:
The sole question presented by the appeal is whether the release from
liability for negligence given by plaintiff’s intestate to defendant, in
consideration of the reduced rate at which the ticket was sold to him,
prevents a recovery. Had the intestate, at the time of the accident,
been traveling on a pass there could be but one answer to the
question. A recovery could not be had. . . . Mr. Justice Brewer in
Northern Pacific Ry. Co. v. Adams, 192 U. S. 440 (1904), tersely
stated the reason for the rule as follows: “The railway company was
not as to Adams a carrier for hire. It waived its right as a common
carrier to exact compensation. It offered him the privilege of riding in
its coaches without charge if he would assume the risk of negligence.
He was not in the power of the company and obliged to accept its
terms. They stood on an equal footing. If he had desired to hold it to
its common law obligations to him as a passenger, he could have paid
his fare and compelled the company to receive and carry him.” . . .
Does an agreement to sell a ticket at a reduced rate of fare, in
consideration of exemption from liability in case of negligence,
change the rule? I do not think it does. No good reason can be
suggested why it should. If a railroad company and a passenger be
permitted to make such contract at all, then they are the sole judges of
the amount of consideration which will compensate the one for being
relieved from liability and the other for assuming the risk, whether it
be the whole fare or anything less than that.
The usual common-law rule, as Anderson implies, was that if a

passenger signed a release promising not to sue a common carrier for
injuries suffered as a result of the carrier’s negligence, the release was void.
What is the sense of that rule — and of the exception to it recognized by
Anderson?
4. The Tunkl test. In Tunkl v. Regents of the University of California, 32
Cal. Rptr. 33 (Cal. 1963), Hugo Tunkl was admitted to the UCLA Medical
Center. Upon entering he signed a document setting forth certain
“Conditions of Admission.” Condition number six read as follows:
RELEASE: The hospital is a nonprofit, charitable institution. In

consideration of the hospital and allied services to be rendered and
the rates charged therefor, the patient or his legal representative
agrees to and hereby releases The Regents of the University of
California, and the hospital from any and all liability for the negligent
or wrongful acts or omissions of its employees, if the hospital has
used due care in selecting its employees.
Tunkl brought a lawsuit claiming that he was injured by acts of

malpractice committed by employees of the medical center. A jury found
that Tunkl understood or should have understood the significance of the
release, and brought in a verdict for the defendants. The California Supreme
Court reversed, holding the release unenforceable. The court noted case law
holding that exculpatory provisions of the sort the plaintiff signed may be
held unenforceable if they involve “the public interest.” The court went to
discuss the problem of identifying such provisions:
[T]he courts have revealed a rough outline of that type of transaction

in which exculpatory provisions will be held invalid. Thus the
attempted but invalid exemption involves a transaction which
exhibits some or all of the following characteristics. It concerns a
business of a type generally thought suitable for public regulation.
The party seeking exculpation is engaged in performing a service of
great importance to the public, which is often a matter of practical
necessity for some members of the public. The party holds himself
out as willing to perform this service for any member of the public
who seeks it, or at least for any member coming within certain
established standards. As a result of the essential nature of the
service, in the economic setting of the transaction, the party invoking
exculpation possesses a decisive advantage of bargaining strength
against any member of the public who seeks his services. In
exercising a superior bargaining power the party confronts the public
with a standardized adhesion contract of exculpation, and makes no
provision whereby a purchaser may pay additional reasonable fees
and obtain protection against negligence. Finally, as a result of the
transaction, the person or property of the purchaser is placed under
the control of the seller, subject to the risk of carelessness by the
seller or his agents. . . .
In the light of the decisions, we think that the hospital-patient
contract clearly falls within the category of agreements affecting the
public interest. To meet that test, the agreement need only fulfill some
of the characteristics above outlined; here, the relationship fulfills all
of them. . . . In insisting that the patient accept the provision of
waiver in the contract, the hospital certainly exercises a decisive
advantage in bargaining. The would-be patient is in no position to
reject the proffered agreement, to bargain with the hospital, or in lieu
of agreement to find another hospital. The admission room of a
hospital contains no bargaining table where, as in a private business
transaction, the parties can debate the terms of their contract. As a
result, we cannot but conclude that the instant agreement manifested
the characteristics of the so-called adhesion contract. Finally, when
the patient signed the contract, he completely placed himself in the
control of the hospital; he subjected himself to the risk of its
carelessness.
The Tunkl case is well known (how can it be distinguished from

Anderson?), and many courts in other jurisdictions have borrowed its
framework (the “Tunkl test”) to assess the enforceability of releases. One
court summarized the resulting trend as follows:
Generally, a written contract defines the extent of the obligations of

contracting parties, and a valid exculpatory clause will preclude
recovery. It was recognized long ago that parties may contractually
absolve themselves from liability for the consequences of their
negligent acts. . . . However, the law also recognized that lying
behind these contracts is a residuum of public policy which is
antagonistic to carte blanche exculpation from liability; and thus
developed the rule that these provisions would be strictly construed
with every intendment against the party seeking their protection.
Responding to changes in economic and social necessities, courts
then went beyond this rule of construction and found that in certain
situations and relations express agreements by which one party
assumes the risk of another’s conduct could not, in good conscience,
be accepted. Where a disparity of bargaining power has grown out of
economic necessity for certain goods or services or from a
monopolistic position of a seller, courts have found exculpatory
agreements inimical to the public interest. Where an agreement does
not represent a free choice on the part of the plaintiff, where he is
forced to accept the clause by the necessities of his situation, courts
have refused to enforce such agreements as contrary to public policy.
This rule has been applied broadly in the employer-employee
relationship; in situations where one party is charged with a duty of
public service [citing cases, including Tunkl, involving public
utilities, hospitals, and common carriers]; to agreements which
attempt to exculpate one from liability for the violation of a statute or
regulation designed to protect human life; and elsewhere, e.g.,
Uniform Commercial Code sec. 2-719(3), 12A P.S. sec. 2-719,
provides that the limitation of consequential damages for injury to the
person in the case of consumer goods is prima facie unconscionable.
Phillips Home Furnishings, Inc. v. Continental Bank, 331 A.2d 840, 843-
844 (Pa. Super. 1974).
5. Further attempts at summary. From the Restatement (Second) of
Torts (1965):
§496B. EXPRESS ASSUMPTION OF RISK
A plaintiff who by contract or otherwise expressly agrees to

accept a risk of harm arising from the defendant’s negligent or
reckless conduct cannot recover for such harm, unless the agreement
is invalid as contrary to public policy.
Comment c. In order for an express agreement assuming the risk
to be effective, it must appear that the plaintiff has given his assent to
the terms of the agreement. Particularly where the agreement is
drawn by the defendant, and the plaintiff’s conduct with respect to it
is merely that of a recipient, it must appear that the terms were in fact
brought home to him and understood by him, before it can be found
that he has accepted them.
Illustration 1. A, attending a theatre, checks his hat in B’s check
room. He is handed a ticket, on the back of which, in fine print, it is
stated that B will not be liable for any loss or damage to the hat.
Reasonably believing the ticket to be a mere receipt, A accepts it
without reading it. B negligently loses the hat. A is not bound by the
provision on the back of the ticket.
Comment j. Disparity of bargaining power. An express agreement
for the assumption of risk will not, in general, be enforced where
there is such disparity of bargaining power between the parties that
the agreement does not represent a free choice on the part of the
plaintiff. The basis for such a result is the policy of the law which
relieves the party who is at such a disadvantage from harsh,
inequitable, and unfair contracts which he is forced to accept by the
necessities of his situation. The disparity in bargaining power may
arise from the defendant’s monopoly of a particular field of service,
from the generality of use of contract clauses insisting upon
assumption of risk by all those engaged in such a field, so that the
plaintiff has no alternative possibility of obtaining the service without
the clause; or it may arise from the exigencies of the needs of the
plaintiff himself, which leave him no reasonable alternative to the
acceptance of the offered terms.
Illustration 5. In a crowded city, A drives his car around for half
an hour without finding a place to park it. Having no other way to
leave his car in order to transact important business, he drives it into
B’s garage. B gives him a ticket, of a type in general use in garages
and parking places in the city, which states on its face that the car is
left entirely at A’s risk, and that B will not be liable for any loss or
damage, even though it is due to his negligence. A reads the ticket
and accepts it without comment. Through the negligence of B the car
is stolen. The terms of the ticket are not effective to bar A’s recovery
from B for the loss of the car.
6. Medical dilemma (problem). In Shorter v. Drury, 695 P.2d 116 (Wash.

1985), a woman named Shorter became pregnant; the fetus died at an early
stage of the pregnancy, however, and her doctor recommended a “dilation
and curettage” (D and C) procedure to remove it from her uterus. Shorter
was a Jehovah’s Witness, and was forbidden by the tenets of the religion to
accept a blood transfusion. She understood that the D and C procedure
entailed a risk of bleeding, and signed a document at the hospital stating
that she wanted to receive no transfusions of blood and releasing the
hospital and its doctors “from any responsibility whatever for unfavorable
reactions or any untoward results due to my refusal to permit the use of
blood or its derivatives[.]” The procedure went badly, and Shorter began to
suffer profuse bleeding. Her doctors pleaded with her to allow a transfusion,
explaining that she likely would die without one. Shorter refused, and she
died soon thereafter. Her husband brought a wrongful death suit against the
physician and hospital, claiming that the doctor performed the D and C
procedure negligently and that the release therefore had no application.
What result?
7. Khumbu flu (problem). In Vodopest v. MacGregor, 913 P.2d 779
(Wash. 1996), the plaintiff, Vodopest, was a nurse and mountaineer. She
read an article in the Boeing Alpine Club newsletter entitled, “Nepal,
Himalayan Breathing Research Trek — WOULD YOU LIKE TO GO?”
The article stated that in March 1990, a party of 15 trekkers would be going
to the Solo Khumbu area of Nepal to “continue research on a ‘Sherpa
Breathing’ technique for high altitude survival.” The article said that “[w]e
are repeating a successful research trip conducted in April of 1989” in
which “seven trained breathers performed well at high altitude and were
able to consistently eliminate all symptoms of altitude sickness.” The trip
leader was Rosemary MacGregor, a nurse and biofeedback therapist. She
collaborated in organizing the trip with a professor from the University of
Washington, and the University’s Human Subjects Review Committee
approved the venture.
Vodopest agreed to join the trek. At MacGregor’s request, Vodopest
signed a form entitled “Release from Liability and Indemnity Agreement,”
which stated that she had been informed of all dangers of the trek, including
the possibility of illness, and that she released MacGregor “from all
liability, claims and causes of action arising out of or in any way connected
with my participation in this trek.” The release also stated: “I personally
assume all risks in connection with all activities, and further agree to
indemnify and release Rosemary MacGregor, other group leaders, and all
other participants from all liability, claims and causes of action or harm
which may befall me arising from my participation in this trek.”
Vodopest’s evidence was that during the trek she began to exhibit
symptoms of altitude sickness at 8,700 feet, and that the symptoms
worsened as her altitude increased. MacGregor told Vodopest that she
probably had the Khumbu flu, advised her to “breathe away” the symptoms,
and said that she would be fine. Vodopest’s symptoms soon became life-
threatening. She developed cerebral edema, with symptoms that included
shortness of breath, racing heartbeat, terrible head pain, nausea, vomiting,
loss of balance, and a swollen face. Another nurse on the trek administered
simple neurological tests, which Vodopest failed. MacGregor suggested that
Vodopest had an ear infection. The next morning Vodopest was sent down
from the mountain and was ultimately diagnosed with cerebral edema from
altitude sickness. As a consequence, she suffered permanent brain damage.
Vodopest sued MacGregor, claiming that her neurological damage
resulted from MacGregor’s negligence in promoting the use of her
breathing technique rather than advising Vodopest to descend to a lower
altitude as a remedy for her symptoms of altitude sickness. MacGregor
moved for summary judgment based on the release Vodopest had signed.
Vodopest argued that enforcing such a release in the setting of a medical
research project would violate public policy. The trial court gave summary
judgment to MacGregor. The plaintiff appealed. What result?
C. PRIMARY ASSUMPTION OF THE RISK
Generally speaking, “primary” assumption of risk is a doctrine that prevents

plaintiffs from recovering for injuries they suffer when they freely
undertake dangerous activities. Courts often refer to it as a defense, but that
may be a bit misleading; in cases where primary assumption of risk applies,
the plaintiff is unable to make out even a prima facie case of liability. The
doctrine amounts to a way of saying that the defendant had no duty to
protect the plaintiff from the harm he has suffered, or that the defendant did
not breach whatever duty existed. If a plaintiff joins a tackle football game
and is injured by a tackler, for example, the plaintiff cannot make out even a
prima facie case of liability against him; the plaintiff assumed the risk of
being tackled, which is equivalent to saying the tackler owed no duty at all
to the plaintiff to avoid tackling him.
Murphy v. Steeplechase Amusement Co.

166 N.E. 173 (N.Y. 1929)
CARDOZO, C.J.— The defendant, Steeplechase Amusement Company,

maintains an amusement park at Coney Island, N.Y. One of the supposed
attractions is known as “the Flopper.” It is a moving belt, running upward
on an inclined plane, on which passengers sit or stand. Many of them are
unable to keep their feet because of the movement of the belt, and are
thrown backward or aside. The belt runs in a groove, with padded walls on
either side to a height of four feet, and with padded flooring beyond the
walls at the same angle as the belt. An electric motor, driven by current
furnished by the Brooklyn Edison Company, supplies the needed power.
Plaintiff, a vigorous young man, visited the park with friends. One of
them, a young woman, now his wife, stepped upon the moving belt.
Plaintiff followed and stepped behind her. As he did so, he felt what he
describes as a sudden jerk, and was thrown to the floor. His wife in front
and also friends behind him were thrown at the same time. Something more
was here, as every one understood, than the slowly moving escalator that is
common in shops and public places. A fall was foreseen as one of the risks
of the adventure. There would have been no point to the whole thing, no
adventure about it, if the risk had not been there. The very name, above the
gate, “the Flopper,” was warning to the timid. If the name was not enough,
there was warning more distinct in the experience of others. We are told by
the plaintiff’s wife that the members of her party stood looking at the sport
before joining in it themselves. Some aboard the belt were able, as she
viewed them, to sit down with decorum or even to stand and keep their
footing; others jumped or fell. The tumbling bodies and the screams and
laughter supplied the merriment and fun. “I took a chance,” she said when
asked whether she thought that a fall might be expected. Plaintiff took the
chance with her, but, less lucky than his companions, suffered a fracture of
a knee cap. He states in his complaint that the belt was dangerous to life and
limb, in that it stopped and started violently and suddenly and was not
properly equipped to prevent injuries to persons who were using it without
knowledge of its dangers, and in a bill of particulars he adds that it was
operated at a fast and dangerous rate of speed and was not supplied with a
proper railing, guard, or other device to prevent a fall therefrom. No other
negligence is charged.
We see no adequate basis for a finding that the belt was out of order. It
was already in motion when the plaintiff put his foot on it. He cannot help
himself to a verdict in such circumstances by the addition of the facile
comment that it threw him with a jerk. One who steps upon a moving belt
and finds his heels above his head is in no position to discriminate with
nicety between the successive stages of the shock, between the jerk which is
a cause and the jerk, accompanying the fall, as an instantaneous effect.
There is evidence for the defendant that power was transmitted smoothly,
and could not be transmitted otherwise. If the movement was spasmodic, it
was an unexplained and, it seems, an inexplicable departure from the
normal workings of the mechanism. An aberration so extraordinary, if it is
to lay the basis for a verdict, should rest on something firmer than a mere
descriptive epithet, a summary of the sensations of a tense and crowded
moment. But the jerk, if it were established, would add little to the case.
Whether the movement of the belt was uniform or irregular, the risk at
greatest was a fall. This was the very hazard that was invited and foreseen.
Volenti non fit injuria. One who takes part in such a sport accepts the
dangers that inhere in it so far as they are obvious and necessary, just as a
fencer accepts the risk of a thrust by his antagonist or a spectator at a ball
game the chance of contact with the ball. The antics of the clown are not the
paces of the cloistered cleric. The rough and boisterous joke, the horseplay
of the crowd, evokes its own guffaws, but they are not the pleasures of
tranquillity. The plaintiff was not seeking a retreat for meditation. Visitors
were tumbling about the belt to the merriment of onlookers when he made
his choice to join them. He took the chance of a like fate, with whatever
damage to his body might ensue from such a fall. The timorous may stay at
home.
A different case would be here if the dangers inherent in the sport were
obscure or unobserved, or so serious as to justify the belief that precautions
of some kind must have been taken to avert them. Nothing happened to the
plaintiff except what common experience tells us may happen at any time as
the consequence of a sudden fall. Many a skater or a horseman can rehearse
a tale of equal woe. A different case there would also be if the accidents had
been so many as to show that the game in its inherent nature was too
dangerous to be continued without change. The president of the amusement
company says that there had never been such an accident before. A nurse
employed at an emergency hospital maintained in connection with the park
contradicts him to some extent. She says that on other occasions she had
attended patrons of the park who had been injured at the Flopper, how many
she could not say. None, however, had been badly injured or had suffered
broken bones. Such testimony is not enough to show that the game was a
trap for the unwary, too perilous to be endured. According to the
defendant’s estimate, 250,000 visitors were at the Flopper in a year. Some
quota of accidents was to be looked for in so great a mass. One might as
well say that a skating rink should be abandoned because skaters sometimes
fall.
There is testimony by the plaintiff that he fell upon wood, and not upon
a canvas padding. He is strongly contradicted by the photographs and by the
witnesses for the defendant, and is without corroboration in the testimony
of his companions who were witnesses in his behalf. If his observation was
correct, there was a defect in the equipment, and one not obvious or known.
The padding should have been kept in repair to break the force of any fall.
The case did not go to the jury, however, upon any such theory of the
defendant’s liability, nor is the defect fairly suggested by the plaintiff’s bill
of particulars, which limits his complaint. The case went to the jury upon
the theory that negligence was dependent upon a sharp and sudden jerk.
The judgment of the Appellate Division and that of the Trial Term
should be reversed, and a new trial granted, with costs to abide the event.
NOTES
1. The Human Kite. In Woodall v. Wayne Steffner Productions, 20 Cal.

Rptr. 572 (Cal. App. 1962), the plaintiff, Woodall, was known as “The
Human Kite.” The defendant hired him to perform on a street in the Los
Angeles area. The performance was to be filmed and featured as a segment
on a television show titled “You Asked For It.” Woodall, standing on roller
skates, would be lifted into the air while attached to a kite he had
constructed that was tied by a 150-foot rope to the rear axle of a moving
automobile. The car was to start slowly and increase its speed to about 30
miles an hour, at which time the kite would take to the air; then the driver of
the car was to slow down. A failure to slow down would cause the kite to
dive. Woodall told the show’s producer that his main requirement in a
driver for the car was that the driver had participated in stunts of this nature
before. The producer told Woodall that “We have one of the best stunt
drivers in Hollywood.” So Woodall left his own driver at home in
Cleveland, and headed for Los Angeles.
The driver supplied by the defendant was a man named Welo. Woodall’s
last words to Welo before the flight were, “Remember, now, don’t go over
30 miles an hour,” to which Welo agreed. The plaintiff’s evidence was that
Welo went on to drive the car over 45 miles per hour, causing the kite to
turn over on Woodall and crash to the ground, injuring him. Welo later
testified by deposition that “I have never represented myself to Mr. Woodall
or anybody else as being a driver because I am not.” Welo had indeed never
held himself out to the defendant as a stunt driver, and had never been used
by the defendant as a stunt driver before. Woodall sued the company that
had hired him to perform the stunt and that supplied Welo as his driver. The
jury brought in a verdict for Woodall, and the trial court entered judgment
upon it. The defendant appealed, claiming among other things that Woodall
should be barred from recovery by assumption of the risk. The court of
appeals affirmed:
It is doubtless true that plaintiff assumed any risk growing out of

inexpert manipulation of the kite, a sudden windstorm, breaking loose
of the tow rope which he had fastened, the kite splitting in the air, or
any one of many eventualities that were not properly attributable to
the [defendant’s] own activities. Respondent’s brief says, at page 63:
“Respondent may have assumed the risk of his kite’s breaking, his
landing’s being imperfect, a pothole in the road, a gust of wind. But
that respondent assumed the risk of the ridiculous and callous lead-
foot on the accelerator, which in fact caused the accident, is denied by
a mass of testimony. Every case cited by appellants simply underlines
this concept. In each and every one of them, the cause of the injury
was inherent in the very nature of the thing.”
Concerning defendant’s part in the flight, it is to be remembered
that plaintiff had been assured repeatedly as to the competency and
care of the driver to be furnished by defendant. That was the one
feature of the venture that he could not control. He obviously
surrendered his judgment as to selection of a driver to defendant and
did so upon the faith of such assurances given him. Prosser on Law of
Torts, 2nd Ed., page 311, says: “Assumption of risk must be free and
voluntary. If it clearly appears from the plaintiff’s words or conduct
that he does not consent to relieve the defendant of the obligation to
protect him, the risk will not be assumed. . . . If, however, he
surrenders his better judgment upon an assurance of safety or a
promise of protection, he does not assume the risk, unless the danger
is so obvious and so extreme that there can be no reasonable reliance
upon the assurance.”
What is the distinction between Woodall and Murphy v. Steeplechase
Amusement Co.? Was the plaintiff in Woodall arguably negligent in
agreeing to perform the “human kite” stunt at all?
2. Lobo’s last stand. In Cohen v. McIntyre, 20 Cal. Rptr. 2d 143 (Cal.
App. 1993), the defendant decided to have her dog, Lobo, neutered; Lobo
had bitten three people and the defendant hoped that the surgical procedure
would “mellow” him. She took the dog to the plaintiff, a veterinarian named
Cohen, to be examined for this purpose. The dog snapped at Cohen when he
first reached toward him. Cohen told the dog’s owner that Lobo would need
to be muzzled before proceeding further. The muzzle was applied and
Cohen performed the examination. Once it was over, the dog was returned
from the table to the floor and its owner took off the muzzle. The dog then
turned on Cohen and bit him several times. Cohen sued Lobo’s owner to
recover for his injuries, alleging that the defendant never mentioned the
dog’s history as a biter and that he was not put on notice of the dog’s
tendencies when it “snapped insignificantly” at him on their first encounter.
The trial court gave summary judgment to the defendant, and the court of
appeals affirmed: “[D]efendant owed no duty of care to Cohen unless she
either engaged in intentional concealment or misrepresentation, or her
conduct was so reckless as to fall totally outside the range of behavior
ordinarily expected of those who avail themselves of veterinary services.”
What is the distinction between Cohen v. McIntyre and Woodall v.
Wayne Steffner Productions (the L case of the “human kite”)?
3. Occupational hazards. In Neighbarger v. Irwin Industries, 882 P.2d
347 (Cal. 1994), some employees of the defendant maintenance company,
Irwin Industries, were doing work at a refinery when two of them
negligently tried to unplug a valve with a sharp instrument. The result was
to release a stream of flammable petroleum into the work area. The
plaintiffs were safety supervisors at the refinery. Their duties included
participating in the refinery’s fire brigade. They saw the petroleum leak,
approached the valve, and tried to close it; but as they did so, the petroleum
ignited and burned them. They sued Irwin to recover for their injuries. The
trial court gave summary judgment to the defendants on assumption of risk
grounds. The California Supreme Court reversed:
[A] special rule has emerged limiting the duty of care the public owes
to firefighters and police officers. Under the firefighter’s rule, a
member of the public who negligently starts a fire owes no duty of
care to assure that the firefighter who is summoned to combat the fire
is not injured thereby. Nor does a member of the public whose
conduct precipitates the intervention of a police officer owe a duty of
care to the officer with respect to the original negligence that caused
the officer’s intervention. . . . The firefighter’s rule should not be
viewed as a separate concept, but as an example of the proper
application of the doctrine of assumption of risk, that is, an
illustration of when it is appropriate to find that the defendant owes
no duty of care. Accordingly, we examine the case law establishing
the rule to discover the policy basis for waiving the usual duty of care
and to determine whether such a policy justifies exonerating
defendants from their usual duty of care in the case of private safety
employees. . . .
On the surface, the fairness element of the firefighter’s rule would
seem to apply equally to public firefighters and private safety
employees, as both are employed to confront and control hazards that
may be created by the negligence of others. However, the firefighter’s
rule was not intended to bar recovery for all hazards that are
foreseeable in the employment context, but to eliminate the duty of
care to a limited class of workers, the need for whose employment
arises from certain inevitable risks that threaten the public welfare.
An industrial safety supervisor faces a much broader range of risks,
many of which we should be reluctant to regard as inevitably ripening
into injury-causing accidents. Fire is inevitable, but industrial
accidents, as a broader category, are not equally inevitable. Although
we were prepared to admit that almost all fires can be traced to
someone’s negligence, and that it is simply too burdensome to
identify that negligence for the purpose of compensating those most
likely to be injured by fire, we should be hesitant to narrow the duty
of care to avoid industrial accidents. . . .
When the firefighter is publicly employed, the public, having
secured the services of the firefighter by taxing itself, stands in the
shoes of the person who hires a contractor to cure a dangerous
condition. In effect, the public has purchased exoneration from the
duty of care and should not have to pay twice, through taxation and
through individual liability, for that service. But when a safety
employee is privately employed, a third party lacks the relationship
that justifies exonerating him or her from the usual duty of care. The
third party, unlike the public with its police and fire departments, has
not provided the services of the private safety employee. Nor has the
third party paid in any way to be relieved of the duty of care toward
such a private employee. Having no relationship with the employee,
and not having contracted for his or her services, it would not be
unfair to charge the third party with the usual duty of care towards the
private safety employee.
What is the distinction between Neighbarger v. Irwin Industries and

Cohen v. McIntyre (the NL case of the dog bite)?
4. Gobble gobble. In Hendricks v. Broderick, 284 N.W.2d 209 (Iowa
1979), the plaintiff and the defendant each went turkey hunting before dawn
one morning in an Iowa forest. Neither knew of the other’s presence; both
wore camouflage. A turkey hunter listens for the gobble of a tom turkey,
then begins sending out the softer yelp of a hen turkey by using a calling
device in hopes of enticing the tom to come within gunshot range. At one
point Broderick heard a tom gobbling and proceeded to imitate the sounds
of a female turkey. He continued the mimicking every few minutes until he
detected a rustling in the brush about 60 yards away. He opened fire in that
direction with his shotgun. It turned out that Hendricks had been causing
the rustling, and that Broderick had shot him.
Hendricks sued Broderick for negligence. Broderick based his defense
in part on the doctrines of contributory negligence and assumption of the
risk. There was evidence at trial that Hendricks understood that a turkey
hunter should not intrude on another hunter who is “working” a tom turkey
— that is, seeking to draw the male near by imitating the sounds of a
female. Broderick also testified that the following events occurred after the
shooting:
Q. And when you reached [Hendricks], what did he say?

A. Well, the first thing he asked me was what size shot I used.
Q. And did he say anything further to you?
A. Well, on our way out to the car I asked him if he had heard me
calling that turkey.
Q. What was his answer?
A. He said yes and he thought I was calling too loud. . . .
Q. So he criticized your style and quality of yelping, is that it?
A. Yes, sir.
The trial court instructed the jurors that they should bring in a verdict
for the defendant, Broderick, if they found that the plaintiff “was negligent
in that he placed himself in a position of assuming whatever risk there
would be when he voluntarily went turkey hunting in Shimek Forest,” and
if they found that this negligence was a proximate cause of Hendricks’s
injuries. The jury found for the defendant. Hendricks appealed, arguing that
the instruction just quoted misstated the law.
Held, for the plaintiff, that the instruction was incorrect, and that there
must be a new trial. Said the court:
Hendricks of course accepted the hazards which naturally attend

turkey hunting in Shimek Forest without culpability on the part of
other hunters. In an ordinary negligence case like this, however,
assumption of the risk of negligence on Broderick’s part is not a
separate defense. . . . Under the particular circumstances here the
contributory negligence issue was whether, if Hendricks knew or in
the exercise of due care should have known that Broderick was
working a turkey at the place in question, Hendricks acted as an
ordinarily prudent person in entering that place. If Broderick
established by a preponderance of the evidence that Hendricks did
not act as an ordinarily prudent person, and also that Hendricks’
conduct constituted a proximate cause of the damages, Hendricks
could not recover. Lively jury arguments could be made on both sides
of this question. . . .
In the absence of evidence which does not appear here, however,
a hunter does not assume whatever risk there would be by voluntarily
hunting in Shimek Forest. This court stated in Gross v. Miller, 61
N.W. 385, 388 (1884): “Men go hunting every day, and no one
reasonably anticipates that, as a result, one will negligently shoot the
other.” . . . Although Shimek is a dark and deep forest, Hendricks had
a right to assume, until he knew otherwise or in the exercise of
ordinary care should have known otherwise, that other hunters would
exercise due care under the circumstances, including the
circumstance of the nature of the forest.
What is the distinction between Hendricks v. Broderick and Cohen v.

McIntyre (the NL case of the dog bite)? What is the distinction between
Hendricks v. Broderick and Murphy v. Steeplechase Amusements (the NL
case of the “Flopper” where assumption of risk was held to apply)?
5. Foul ball (problem). In Lowe v. California League of Professional
Baseball, 65 Cal. Rptr. 2d 105 (Cal. App. 1997), the plaintiff was hit in the
face by a foul ball while attending a game played by the Rancho
Cucamonga Quakes, a minor league baseball team. He sued the team to
recover for his injuries. He alleged that the incident occurred because he
was distracted by the nearby presence of “Tremor,” a man wearing a
dinosaur costume who served as the team’s mascot; the dinosaur was
standing behind the plaintiff’s seat and hitting his back with its tail, causing
the plaintiff to turn his attention away from the field. When he turned back
to the game, the ball hit him in the face. The team claimed that Lowe
assumed this risk. What result?
6. The spectacle of savagery (problem). In Hackbart v. Cincinnati
Bengals, Inc., 601 F.2d 516 (10th Cir. 1979), the plaintiff, Hackbart, was a
defensive back for the Denver Broncos football team. In the course of a
game against the Cincinnati Bengals, Hackbart performed a blocking
maneuver on one of the Bengals’ players, Charles “Booby” Clark. The trial
court found that after the play ended, Clark, “acting out of anger and
frustration, but without a specific intent to injure . . . stepped forward and
struck a blow with his right forearm to the back of the kneeling plaintiff’s
head and neck with sufficient force to cause both players to fall forward to
the ground.” The blow caused a fracture of Hackbart’s neck. Hackbart sued
the Bengals to recover for his injuries. After a bench trial, judgment was
entered for the defendant. Said the court:
The violence of professional football is carefully orchestrated. Both

offensive and defensive players must be extremely aggressive in their
actions and they must play with a reckless abandonment of self-
protective instincts. The coaches make studied and deliberate efforts
to build the emotional levels of their players to what some call a
“controlled rage.”
John Ralston, the 1973 Broncos coach, testified that the pre-game
psychological preparation should be designed to generate an emotion
equivalent to that which would be experienced by a father whose
family had been endangered by another driver who had attempted to
force the family car off the edge of a mountain road. The precise
pitch of motivation for the players at the beginning of the game
should be the feeling of that father when, after overtaking and
stopping the offending vehicle, he is about to open the door to take
revenge upon the person of the other driver. . . .
The end product of all of the organization and effort involved in
the professional football industry is an exhibition of highly developed
individual skills in coordinated team competition for the benefit of
large numbers of paying spectators, together with radio and television
audiences. It is appropriate to infer that while some of those persons
are attracted by the individual skills and precision performances of
the teams, the appeal to others is the spectacle of savagery. . . .
[The plaintiff’s theories] of liability are . . . subject to the
recognized defenses of consent and assumption of the risk. Here the
question is what would a professional football player in the plaintiff’s
circumstances reasonably expect to encounter in a professional
contest? . . .
Upon all of the evidence, my finding is that the level of violence
and the frequency of emotional outbursts in NFL football games are
such that Dale Hackbart must have recognized and accepted the risk
that he would be injured by such an act as that committed by the
defendant Clark on September 16, 1973. Accordingly, the plaintiff
must be held to have assumed the risk of such an occurrence.
Therefore, even if the defendant breached a duty which he owed to
the plaintiff, there can be no recovery because of assumption of the
risk. . . .
[T]o decide which restraints should be made applicable is a task
for which the courts are not well suited. There is no discernible code
of conduct for NFL players. The dictionary definition of a sportsman
is one who abides by the rules of a contest and accepts victory or
defeat graciously. Webster’s Third New International Dictionary, p.
2206 (1971). That is not the prevalent attitude in professional
football. There are no Athenian virtues in this form of athletics. The
NFL has substituted the morality of the battlefield for that of the
playing field, and the “restraints of civilization” have been left on the
sidelines.
The plaintiff appealed. What result?
D. SECONDARY ASSUMPTION OF THE RISK AND THE RISE OF

COMPARATIVE FAULT
“Secondary” assumption of risk cases arise when the defendant does have a
duty to the plaintiff and may have breached it; as an affirmative defense, the
defendant argues that the plaintiff recognized whatever danger resulted
from the defendant’s alleged negligence and voluntarily chose to encounter
it. The traditional position of the common law was that a plaintiff who
assumed the risk in this sense, like a plaintiff who was contributorily
negligent, was forbidden to recover anything from the negligent defendant.
But as the states gradually replaced contributory negligence with
comparative negligence, which allows a plaintiff who is negligent to
nevertheless collect at least some damages from the defendant, the same
logic often has been applied to secondary assumption of risk. In many
jurisdictions the plaintiff who assumes the risk in this sense thus will have
his damages reduced accordingly, but will not be forbidden to recover
altogether. Indeed, assumption of risk in the secondary sense considered
here has been merged outright with comparative negligence in many
jurisdictions, so that the question in every case is simply how the
reasonableness of the defendant’s behavior compares with the
reasonableness of the plaintiff’s. (“Primary” assumption of risk, discussed
in the previous section, generally remains a complete defense to a
negligence claim.) We therefore treat this subject more briefly than the
others in the chapter.
Marshall v. Ranne
511 S.W.2d 255 (Tex. 1974)
POPE, J. — Paul Marshall instituted this suit against John C. Ranne
seeking damages for injuries he sustained when Ranne’s vicious hog
attacked him and severely injured his hand. The jury made findings that
plaintiff Marshall was contributorily negligent and also that he voluntarily
assumed the risk of the hog. The trial court rendered judgment for the
defendant on the verdict. The court of civil appeals ruled that the findings
of the jury concerning the plaintiff’s assumption of the risk supported the
judgment and affirmed. We reverse the judgments of the courts below and
render judgment for the plaintiff Marshall.
The opinion of the court of civil appeals correctly states these operative
facts:
The only witness to the occurrence was plaintiff. He and defendant

both lived in Dallas, but they owned neighboring farms in Van Zandt
County. Plaintiff’s principal occupation was raising hogs. At the time
of the injury he had about two hundred on his farm. The hog in
question was a boar which had escaped from defendant’s farm and
had been seen on plaintiff’s land during several weeks before the day
of the injury. According to plaintiff, defendant’s boar had charged
him ten to twelve times before this occurrence, had held him prisoner
in his outhouse several times, and had attacked his wife on four or
five occasions. On the day of the injury plaintiff had hauled in several
barrels of old bread in his pickup and had put it out for his hogs at the
barn. At that time he saw defendant’s boar about a hundred yards
behind the barn, but it came no nearer. After feeding his hogs, he
went into the house and changed clothes to get ready to go back to
Dallas. On emerging from the house, he looked for the boar because,
as he testified, he always had to look before he made a move, but he
did not see it. He started toward his pickup, and when he was about
thirty feet from it, near the outhouse, he heard a noise behind him,
turned around and saw the boar charging toward him. He put out his
hand defensively, but the boar grabbed it and bit it severely.
Plaintiff testified that the first time the hog had jeopardized his safety was
about a week or ten days before he was hurt. He did not shoot the hog
because he did not consider that the neighborly thing to do, although he was
an expert with a gun and had two available. He made no complaint about
the hog to defendant until the day of the injury, when he wrote a note and
put it on defendant’s gate. The note read:
John, your boar has gone bad. He is trying to chase me off the farm.
He stalks us just like a cat stalks a mouse every time he catches us out
of the house. We are going to have to get him out before he hurts
someone.
This note did not come to defendant’s attention until he came in late that
afternoon, and the evidence does not reveal whether he saw it before
plaintiff was injured. Plaintiff testified that he and defendant had previously
discussed the hog’s viciousness on several occasions. . . .
Marshall’s argument is that he did not, as a matter of law voluntarily
expose himself to the risk of the attack by the hog. The jury found that
plaintiff Marshall had knowledge of the vicious propensities of the hog and
that it was likely to cause injury to persons, and also found that plaintiff,
with knowledge of the nature of defendant’s boar hog, voluntarily exposed
himself to the risk of attack by the animal. We hold that there was no proof
that plaintiff had a free and voluntary choice, because he did not have a free
choice of alternatives. He had, instead, only a choice of evils, both of which
were wrongfully imposed upon him by the defendant. He could remain a
prisoner inside his own house or he could take the risk of reaching his car
before defendant’s hog attacked him. Plaintiff could have remained inside
his house, but in doing so, he would have surrendered his legal right to
proceed over his own property to his car so he could return to his home in
Dallas. The latter alternative was forced upon him against his will and was
a choice he was not legally required to accept. We approve and follow the
rule expressed in Restatement (Second) of Torts §496E (1965):
(1) A plaintiff does not assume a risk of harm unless he

voluntarily accepts the risk.
(2) The plaintiff’s acceptance of a risk is not voluntary if the
defendant’s tortious conduct has left him no reasonable alternative
course of conduct in order to
(a) avert harm to himself or another, or
(b) exercise or protect a right or privilege of which the defendant
has no right to deprive him.
The dilemma which defendant forced upon plaintiff was that of facing the
danger or surrendering his rights with respect to his own real property, and
that was not, as a matter of law the voluntary choice to which the law
entitled him. . . .
In this case as a matter of law, the proof shows that plaintiff Marshall
did not voluntarily encounter the vicious hog. We, therefore, reverse the
judgments of the courts below and render judgment that plaintiff recover
the sum of $4,146.00 the amount of damages found by the jury.
NOTES
1. Flying puck syndrome. In Kennedy v. Providence Hockey Club, 376

A.2d 329 (R.I. 1977), the plaintiff and her fiancé were spectators at one of
the defendant’s hockey games. During a face-off, a puck flew from the ice
into the stands and hit the plaintiff in the face. She brought a suit against the
defendant alleging that it negligently had failed to provide her with a safe
seat from which to view the game. The defendant’s rink was surrounded by
a plexiglass sheet that protected patrons in the first three rows of the
audience. The plaintiff was seated in the fourth row. According to the
plaintiff’s deposition, she had attended more than 30 games in the past and
had watched others on television. During those games she had seen hockey
pucks hit the plexiglass around the rink as well as fly into the crowd.
Usually she sat in the seats farthest from the ice because they were least
expensive, but on the day in question the only seats available were in the
more expensive section closer to the ice.
The trial court gave summary judgment to the defendant, finding that
the plaintiff had assumed the risk of the injury she suffered. The plaintiff
appealed, arguing that assumption of risk should be treated as a form of
contributory negligence; she maintained that a jury should compare her
responsibility for her injury with the defendant’s share and apportion
liability accordingly. The Rhode Island Supreme Court affirmed the
judgment in favor of the defendant:
[C]ontributory negligence and assumption of the risk do not overlap;

the key difference is, of course, the exercise of one’s free will in
encountering the risk. Negligence analysis, couched in reasonable
man hypotheses, has no place in the assumption of the risk
framework. When one acts knowingly, it is immaterial whether he
acts reasonably. The postulate, then, that assumption of the risk is
merely a variant of contributory fault, is not, to our minds,
persuasive. . . .
In the case before us Mrs. Kennedy had attended numerous
hockey games and was familiar with the flying-puck syndrome. The
only reasonable inference suggesting itself to us is that she knew
there was a risk that the puck would take flight and come to rest
somewhere in the crowd. Furthermore, the fact that the only seats
available to the affianced couple were in Section F North does not
make the purchase of those seats any less voluntary. Having
voluntarily and knowingly encountered the risk, she can be said to
have assumed it.
Does it follow from the court’s discussion that the plaintiff acted
unreasonably in choosing to stay in her seat?
2. Teed off. In Hennessey v. Pyne, 694 A.2d 691 (R.I. 1997), the
plaintiff, Hennessey, lived in a condominium adjacent to a golf course. As
she was returning home from church one Sunday morning, she paused to
examine her flower garden. Moments later she was hit on the head by a golf
ball that had been struck by the defendant, Pyne, an assistant pro at the golf
course who had been attempting to play the eleventh hole. Hennessey
suffered various injuries as a result, and sued Pyne to collect for them; she
claimed, among other things, that Pyne negligently hit the ball and
negligently failed to call out a warning before or after he hit the shot. Both
parties knew golf balls often flew onto the plaintiff’s property. Hennessey
testified that her building was hit by balls about ten times a day during
playing season, and that she had installed plexiglass over some of her
windows to prevent them from being broken.
The trial court gave summary judgment to the defendant, Pyne.
Hennessey appealed, and the Rhode Island Supreme Court reversed: “we
believe that the question of whether Hennessey voluntarily assumed the risk
of injury when she tarried to flower gaze in her own garden upon returning
from church on a summer Sunday morning is a factual question to be
resolved by the jury, and thus summary judgment should not have been
entered against her negligence claim upon this basis.”
What is the distinction between Hennessey v. Pyne and Kennedy v.
Providence Hockey Club (the NL case where the plaintiff was hit by a
hockey puck)?
3. Virtue is its own reward. In Fagan v. Atnalta, 376 S.E.2d 204 (Ga.
App. 1988), the plaintiff, Fagan, was a customer at a bar called The Beer
Mug. The bar was staffed by a female bartender, a female waitress, and a
male cook. An altercation erupted between four other customers who were
shooting pool. Fagan saw the waitress and bartender trying to get the
participants in the dispute to move outside through the back door of the bar.
One of the men being forced to leave grabbed the bartender by her collar.
Fagan grabbed the bartender from behind to prevent her from being dragged
outside. This caused the belligerent parties to turn their attention to Fagan.
They pulled him outside and administered a severe beating. Fagan brought
a suit claiming that the owner of the bar had been negligent in failing to
take appropriate security measures given an extensive history of assaults
there. The trial court gave summary judgment to the defendant. The
plaintiff appealed; his brief began as follows:
In the days of chivalry and knighthood, men of courage would joust

for the love of a woman. Damsels in distress would be rescued by
fearless knights. It was not only a duty, but an honor to give one’s life
for one in imminent danger.
The times have changed, like all things, and civilization bellows
that chivalry is lost and gone, of another era. The final imprimatur
that chivalry is lost in civilization is the courts of our society
interpreting the laws to approve of cowardice and strike down the
actions of a gallant knight in modern times, for almost having lost his
life, in the aid of a damsel in distress.
The court of appeals nevertheless affirmed:
Here, the appellant had a clear choice of alternative actions, stay out
of the business of the management in expelling disorderly customers
or voluntarily assist two female employees attempting to remove four
rowdy male patrons from the premises. The appellant deliberately
entered into a volatile confrontation between management and
patrons. He saw the entire situation in front of him. He had the
opportunity to measure the risk and testified that he was aware he
would be in “big trouble” if a fight evolved from the confrontation. . .
. [A]n adult of ordinary intelligence will be held to be aware of
manifest risk or danger of possible injury when he deliberately and
voluntarily joins in an affray, as a matter of law.
Accordingly, only one conclusion is permissible, that is, appellant
saw and recognized the risk, and deliberately interjected himself into
the affray after the bartender was grabbed by a customer being
ejected. Appellant obviously assumed the risk of injury by voluntarily
confronting four rowdy customers being ejected from a bar by
management.
What is the distinction between Fagan v. Atnalta and Woodall v. Wayne

Steffner Productions (the L case of the human kite)? In stylizing the facts
and holding of Fagan v. Atnalta, is it reasonable to assume that the owner of
the bar was indeed negligent in failing to take precautions against assaults?
Is there a satisfactory distinction between Fagan v. Atnalta and Wagner v.
International Ry. Co. (the case in Chapter 6 on proximate causation (scope
of liability) where the court found liability because “danger invites
rescue”)? Between Fagan and Eckert v. Long Island R. Co. (the L case in
Chapter 3 on the negligence standard and breach of duty where the
plaintiff’s decedent rushed onto the defendant’s railroad tracks to rescue a
child, and was killed)?
4. A needful doctrine? Does it make sense to have a doctrine of

secondary assumption of risk distinct from the doctrine of comparative
negligence? In a majority of jurisdictions the distinction has been abolished:
the question about the plaintiff’s conduct is not whether he appreciated the
risk created by the defendant and chose to encounter it; it is just whether the
plaintiff acted reasonably. If he did act reasonably, he recovers his damages
regardless of whether he understood the risks and chose to encounter them
(unless the doctrine of primary assumption of risk applies, as discussed
earlier). If the plaintiff did not act reasonably, then his damages are reduced
as they would be in any case under the doctrine of comparative negligence.
But as we have seen, a few jurisdictions have held on to secondary
assumption of risk as a separate and complete defense. Consider some
circumstances where the two approaches can differ in the results they
produce:
a. Kennedy v. Providence Hockey Club, considered earlier. Assume

that the defendant was negligent in failing to have a higher
plexiglass barrier around its rink, that the plaintiff knew this, and
that the plaintiff decided to stay and watch the game anyway —
reasonably, since the odds of her being hit were very remote, and no
other seats were available. Should the plaintiff have been able to
collect for her damages?
b. Eckert v. Long Island R. Co., considered in Chapter 3 on the
negligence standard. The plaintiff’s decedent was killed when he ran
onto a set of railroad tracks to rescue a child about to be hit by a
train. The dissenter in that case argued that the plaintiff should be
denied recovery because the rescuer had assumed the risks involved
in attempting the rescue. Fagan v. Atnalta, considered above, might
be understood as taking such a position. Should rescuers who
volunteer for duty be able to collect for harms they knew they might
be likely to suffer?
c. Suppose a passenger agrees to travel in a car despite knowing the
driver to be drunk. The passenger’s need for transportation is an
emergency, so her decision to accept the ride is not unreasonable;
perhaps she flags down a driver in a deserted area where her car has
broken down. The driver’s intoxicated state causes him to steer the
car into a telephone pole, causing the plaintiff various injuries.
Should she be allowed to recover from the driver?
To what are the plaintiffs in these examples consenting? Is there any

reason to hesitate before judging the reasonableness of their conduct and
comparing it to the defendant’s — any reason, in other words, to prefer an
approach to liability other than comparative negligence? Why treat these
cases differently from those where the plaintiff signs a waiver of liability
and the court enforces it?
Professor Simons has suggested that secondary assumption of risk
should continue to have limited application:
In a small number of cases, assumption of risk can continue to play a
valuable role in tort law. If we isolate the important common element
in assumption of risk and consent doctrine, a narrow concept of full
preference emerges. We should not simply ask whether plaintiff
voluntarily and knowingly encountered the risk that defendant
created, when she could have avoided that risk. Rather, we should ask
whether plaintiff fully preferred to take the risk, i.e., whether she
preferred the risky alternative that she chose to the alternative that
defendant tortiously failed to offer.
Consider a classic assumption of risk problem, the liability of the
owner of a baseball park to a spectator who is hit by a ball while
sitting in an unscreened seat. Suppose the owner owes and breaches a
duty to provide an adequate number of screened seats in certain
locations. But suppose that the spectator, aware of the risk of injury,
nevertheless prefers an unscreened to a screened seat, because it
provides a slightly better view. Then she fully prefers to take the risk,
and should ordinarily be barred from recovery.
Kenneth W. Simons, Assumption of Risk and Consent in the Law of Torts: A

Theory of Full Preference, 67 B.U. L. Rev. 213, 279 (1987). Does this
approach produce satisfactory results in the cases we have considered?
TABLE OF CASES
Principal cases are italicized.
532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc., 253, 255, 257
Actiesselskabet Ingrid v. Central R. Co. of New Jersey, 193

Adams v. Bullock, 133, 141
Alami v. Volkswagen of America, Inc., 507
Alexander v. Town of New Castle, 321
Alibrandi v. Helmsley, 495
American Tobacco Co. v. Grinnell, 424, 429
Anderson v. Erie Ry. Co., 510, 511
Anderson v. Gouldberg, 45, 46
Archibeque v. Homrich, 186
Armory v. Delamirie, 46
Atlantic & Pacific Tea Co. v. Paul, 56
Baggett v. National Bank & Trust Co., 56, 58, 59

Baker v. Snell, 351, 352
Balfour v. Barty-King, 357
Baltimore & Ohio R.R. v. Goodman, 169
Bamford v. Turnley, 87, 94
Barber Lines A/S v. M/V Donau Maru, 257
Barnes v. Geiger, 270
Barnhill v. Davis, 270
Behrens v. Bertram Mills Circus, Ltd., 344, 347, 348, 351, 352
Bell v. Campbell, 326
Bennight v. Western Auto Supply Co., 62, 63
Benwell v. Dean, 455
Bernard v. Char, 276, 277, 278
Berry v. Borough of Sugar Notch, 318
Beynon v. Montgomery Cablevision Ltd. Partnership, 465, 466
Biakanja v. Irving, 247, 248, 249
Blaak v. Davidson, 172, 173
Bloomberg v. Interinsurance Exchange of the Automobile Club of Southern California, 211
BMW of North America v. Gore, 488
Bolton v. Stone, 134, 135, 141
Bond v. Otis Elevator Co., 193, 194
Bostock-Ferari Amusements v. Brocksmith, 351, 371
Boyd v. Racine Currency Exchange, 243
Boyette v. Trans World Airlines, 213, 214
Bradshaw v. Daniel, 223, 224
Brauer v. New York Central & H.R.R. Co., 318, 321, 322
Brauner v. Peterson, 179
Bright v. Ailshie, 54, 55
Brooks v. Medtronic, Inc., 435
Brosnahan v. Western Air Lines, 212, 214
Brower v. Ackerley, 61, 63
Brown v. McDonald’s Corp., 430, 431
Brown v. Shyne, 166, 168
Brune v. Belinkoff, 151, 152, 153
Brzoska v. Olson, 18, 19
Byrd v. English, 255
Byrne v. Boadle, 174, 176, 178, 192
Candler v. Smith, 348, 349, 351

Canterbury v. Spence, 276, 277
Capitol Transp. Co. v. Alexander, 495
Carbone v. Ursich, 251, 252
Carter v. Kinney, 240, 242
Casado v. Schooner Pilgrim, Inc., 252
Central of Georgia Ry. v. Price, 316, 317
Charles v. Seigfried, 214, 215
Christy Bros. Circus v. Turnage, 262
City of Boca Raton v. Mattef, 235, 238
City of Columbus v. Strassner, 470
Clark v. E.I. DuPont de Nemours Powder Co., 325
Cleveland Electric Illuminating Co. v. Van Benshoten, 229, 230
Cohen v. McIntyre, 519, 520, 522
Cohen v. Smith, 19, 21
Colonial Inn Motor Lodge v. Gay, 313, 314, 315
Combustion Engineering Co. v. Hunsberger, 175, 176
CompuServe, Inc. v. Cyber Promotions, Inc., 49
Conboy v. Mogeloff, 247, 248
Connolly v. Nicollet Hotel, 178, 179
Cook v. Irion, 155, 156
Cooper v. McJunkin, 104, 107
Cory v. Shierloh, 166
Cox v. Valley Fair Corp., 462
Credit Alliance Corp. v. Arthur Andersen & Co., 249
Crisci v. Security Insurance Co., 461
Crosby v. Cox Aircraft Co., 371
Crowhurst v. The Burial Board of the Parish of Amersham, 356
Crum v. Ward, 495
Cuppy v. Bunch, 209, 210
Customer Co. v. City of Sacramento, 101
Danculovich v. Brown, 505
Daubert v. Merrell Dow Pharmaceuticals, Inc., 288
Daugert v. Pappas, 289
Daugherty v. Erie Ry. Co., 469, 471
Davies v. Mann, 496
Davies v. McDowell National Bank, 233, 234
Davis v. Consolidated Rail Corp., 142
Davis v. Feinstein, 123
Dawson v. Chrysler Corp., 414, 418, 420, 421
Dellwo v. Pearson, 126, 127
Desnick v. American Broadcasting Companies, Inc., 26, 29, 34
Dillon v. Legg, 268
Dillon v. Twin State Gas & Electric Co., 288, 292
DiPonzio v. Riordan, 314, 315
Docherty v. Sadler, 350
Doe v. Doe, 73
Doughty v. Turner, 312, 313, 314, 315
Douglass v. Hustler Magazine, Inc., 467, 469
Doyle v. Pillsbury Co., 412
Dreisonstok v. Volkswagenwerk A.G., 421, 422
Dumas v. Cooney, 285
Dunn v. Teti, 127, 128
Earl v. Van Alstine, 347, 348, 349

Eaton v. McLain, 504
Eckert v. Long Island R. Co., 136, 137, 138, 142, 528
Edwards v. Honeywell, 338, 341
Edwards v. Lee, 34, 37
Ehret v. Village of Scarsdale, 230, 234
Eilers v. Coy, 53
Einhorn v. Seeley, 250
Ellis v. Louisville & Nashville Ry., 147, 148, 149, 151
Escola v. Coca Cola Bottling Co., 391, 394
Estate of Peters, In re, 110
Exxon Shipping Co. v. Baker, 487
Exxon Valdez, In re, 487
Fagan v. Atnalta, 527, 528

Farmilant v. Singapore Airlines, Ltd., 325
Faught v. Washam, 463
Fennell v. Southern Maryland Hospital Center, Inc., 286
Figueiredo-Torres v. Nickel, 71, 72
Food Pageant v. Consolidated Edison, 246
Forbes v. Parsons, 101
Forster v. Red Top Sedan Service, 377
Frank v. United States, 207, 208
Fredericks v. Castora, 121, 122
Freeman v. Hoffman-LaRoche, 434
Friedman v. State, 119, 120
Fritts v. McKinne, 506, 507
Frye v. United States, 288
Fulgham v. State, 108
Gain v. Carroll Mill Co., 269

Gambill v. Stroud, 153, 154
Gardner v. National Bulk Carriers, Inc., 272, 273, 274, 276
G.A.W., III v. D.M.W., 73
Gehres v. City of Phoenix, 301, 302
Glanzer v. Shepard, 246, 248, 249, 255
Globe Malleable Iron & Steel Co. v. New York Cent. & H.R.R. Co., 201, 202, 203
Goldman v. Johns-Manville Sales Corp., 298
Gomes v. Byrne, 352
Gorris v. Scott, 168
Gortarez v. Smitty’s Super Valu, Inc., 56
Grabowski v. Quigley, 17, 19, 21
Granier v. Chagnon, 86
Graves v. Church & Dwight, 428, 429, 431
Green v. Smith & Nephew, 418, 420
Greenman v. Yuba Power Products, Inc., 395, 397
Greer v. Medders, 68, 69, 72
Grimshaw v. Ford Motor Co., 144, 482, 483
Guthrie v. Powell, 179, 180
Haasman v. Pacific Alaska Air Express, 184, 185, 186

Hackbart v. Cincinnati Bengals, Inc., 522
Haddigan v. Harkins, 454
Haft v. Lone Palm Hotel, 274, 276
Harris v. Forklift Systems, Inc., 77
Harris v. Meadows, 493, 494
Hart v. Geysel, 22, 24
Haskins v. Grybko, 228, 229, 230
Hawkins v. Pizarro, 224, 247
Henderson v. Arundel Corp., 252, 253
Hendricks v. Broderick, 520, 522
Hennessey v. Pyne, 526, 527
Henningsen v. Bloomfield Motors, Inc., 397
Henriksen v. Cameron, 110
Henry v. Houston Lighting & Power Co., 324
Herrick v. Wixom, 228, 229
Herskovits v. Group Health Cooperative of Puget Sound, 278, 283, 284, 285, 287, 289, 290, 299
Hogan v. Santa Fe Trail Transportation Co., 470, 471
Hogenson v. Williams, 106
Hollerud v. Malamis, 25
H. R. Moch Co. v. Rensselaer Water Co., 243, 246, 247, 251, 338
Hull v. Scruggs, 84, 85
Hurley v. Eddingfield, 205, 206, 207
Hustler Magazine v. Falwell, 73, 76
Hymowitz v. Eli Lilly & Co., 298
Indiana Harbor Belt Railroad Co. v. American Cyanamid Co., 363, 367, 369
Ira S. Bushey & Sons v. United States, 373, 375, 377
Jacobsma v. Goldberg’s Fashion Forum, 237, 238

Jensen v. Heritage Mutual Insurance Co., 456
Joel v. Morison, 375
Johnson v. Douglas, 270
Johnson v. Jamaica Hospital, 264, 266
Johnson v. Kosmos Portland Cement Co., 324
Johnson v. Wills Memorial Hospital & Nursing Home, 154
Jordan v. Kancel, 43
Judson v. Giant Powder Co., 182, 184, 185, 194
Katko v. Briney, 79, 82, 83, 85

Keel v. Hainline, 8, 9, 10, 11
Keen v. Dominick’s Finer Foods, Inc., 410
Keffe v. Milwaukee & St. Paul R. Co., 231, 232
Kelley Kar Co. v. Maryland Casualty Co., 44, 45
Kelly v. Gwinnell, 215, 216
Kemezy v. Peters, 478, 481
Kennan v. Checker Cab Co., 485, 487
Kennedy v. Providence Hockey Club, Inc., 525, 527, 528
Kerr v. Connecticut Co., 122, 123
Kershaw v. McKown, 85, 86
Kingston v. Chicago & N.W. Ry. Co., 292, 293
Klein v. Pyrodyne Corp., 369, 370
Kline v. 1500 Massachusetts Avenue Corp., 222, 223
Knight v. Jewett, 3, 4
Konradi v. United States, 377, 379
Kopczick v. Hobart Corp., 481, 483
Kremen v. Cohen, 47
Kumho Tire Co. v. Carmichael, 288
Laidlaw v. Sage, 7, 8
Lander v. Seaver, 103
Landers v. Ghosh, 452, 454
Langford v. Shu, 63, 64
Larsen v. Nissan Motor Corp., 302
Larson v. St. Francis Hotel, 176, 178, 179
Lawson v. Management Activities, Inc., 264
Leichtman v. WLW Jacor Communications, Inc., 12
Leiker v. Gafford, 470
Liebeck v. McDonald’s Restaurants, P.T.S., Inc., 441, 442
Lilpan Food Corp. v. Consolidated Edison, 246, 247
Liriano v. Hobart Corp., 432
Litzman v. Humboldt County, 293
Lombardo v. New York University Medical Center, 268
London Borough of Southwark v. Williams, 95, 96, 97
Lordi v. Spiotta, 234
Losee v. Buchanan, 357, 358
Louisville & Nashville Ry. v. Creighton, 456
Lowe v. California League of Professional Baseball, 522
Lubin v. Iowa City, 359, 360, 361
Luthringer v. Moore, 371
Lynch v. Rosenthal, 116, 117, 119
MacDougall v. Pennsylvania Power & Light Co., 148, 149, 151

Mackintosh v. Mackintosh, 132
MacPherson v. Buick Motor Co., 385, 390, 391
Madden v. D.C. Transit System, Inc., 12
Madsen v. East Jordan Irrigation Co., 370, 371
Magrine v. Krasnica, 407, 410
Malouf v. Dallas Athletic Country Club, 31, 32, 34
Manning v. Brannon, 509, 510
Manning v. Brown, 505, 506, 507
Manning v. Grimsley, 10, 11
Marsalis v. La Salle, 210
Marshall v. Ranne, 524
Martin v. Herzog, 157, 160, 161, 163
Marzolf v. Stone, 269
McCarthy v. Olin Corp., 422, 423
McIntyre v. Balentine, 499, 501, 503
McMahon v. Bunn-O-Matic Corp., 438, 442
McNeil v. Mullin, 23, 24
Melton v. LaCalamito, 57, 58, 59
Mercado v. Ahmed, 472
Merryweather v. Nixan, 302
Mexicali Rose v. Superior Court, 410, 411
Miami Herald Publishing Co. v. Kendall, 378, 379, 381, 383
Miller v. Civil Constructors, Inc., 369, 370
Miller v. Couvillion, 25
Miller v. Montgomery, 495
Miller v. Reiman-Wuerth Co., 375, 376
Mitchell v. Rochester Ry. Co., 263
Mix v. Ingersoll Candy Co., 411
Mohr v. Williams, 14, 21
Moisan v. Loftus, 131
Moore v. Regents of the University of California, 46
Morgan v. Loyacomo, 12, 14, 56
Moskovitz v. Mt. Sinai Medical Center, 483
Mouse’s Case, 97, 98, 99
Mulcahy v. Eli Lilly & Co., 298
Muratore v. M/S Scotia Prince, 69, 71
Murphy v. Hobbs, 475, 480, 481
Murphy v. Steeplechase Amusement Co., 515, 519, 522
Murray v. Fairbanks Morse, 503
Murray v. Schlosser, 77
Neal v. Neal, 21, 29
Neighbarger v. Irwin Industries, 519, 520
New York Central Railroad v. Grimstad, 272, 273, 282, 284
Newell v. Whitcher, 64
Newlin v. New England Telephone & Telegraph Co., 255
Newmark v. Gimbel’s Inc., 409, 410
New York Times Co. v. Sullivan, 74
Nutting v. Ford Motor Co., 410
Ocotillo West Joint Venture v. Superior Court, 208, 209, 210, 214
O’Gilvie v. United States, 459
O’Keeffe v. Snyder, 42, 43, 45
Olin Corp. v. Smith, 463, 465
Oncale v. Sundowner Offshore Services, Inc., 77
O’Neill v. Montefiore Hospital, 206, 207
Opelt v. Al G. Barnes Co., 352
O’Shea v. Riverway Towing Co., 457
Ouellette v. Carde, 506, 507
Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. (The Wagon Mound (No. 1)),
306, 311, 312, 313, 336
Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. (The Wagon Mound (No.2)), 309
Palmer v. Mayo, 40, 41, 42

Palsgraf v. Long Island R.R. Co., 328, 335, 336, 338, 340, 341
Pegg v. Gray, 30, 31, 32
Pemberton v. Bethlehem Steel Corp., 70, 71
Pennsylvania R.R. Co. v. Aspell, 494
People v. Ciesler, 56
People Express Airlines, Inc., v. Consolidated Rail Corp., 256, 257
Perez v. Wyeth Laboratories, 436
Perry-Rogers v. Obasaju, 265, 266
Pescatore v. Pan American World Airways, Inc., 453, 454, 457, 459, 460
Peterson v. Lou Bachrodt Chevrolet Co., 410
Peterson v. Sorlien, 51, 54
Petition of Kinsman Transit Co., 309, 311, 312, 313
Petition of Trans-Pacific Fishing & Packing Co., 211
Phelps v. McQuade, 43, 44
Phillips Home Furnishings, Inc. v. Continental Bank, 513
Phoenix Professional Hockey Club, Inc. v. Hirmer, 255
Ploof v. Putnam, 89, 94, 95, 96, 97
Pokora v. Wabash Ry., 170, 172
Polemis, In re, 305, 311, 336
Polmatier v. Russ, 5, 8
Potter v. Firestone Tire & Rubber Co., 266
Price v. Blaine Kern Artista, Inc., 423, 424
Pridham v. Cash & Carry Building Center, Inc., 316, 317
Pugach v. Borja, 226
Purtle v. Shelton, 123, 127
Quill v. Trans World Airlines, 264
Railroad Co. v. Aspell, 494

Red Top Cab Co. v. Capps, 462
Reina v. Metropolitan Dade County, 377
Respublica v. Sparhawk, 99
Rhodes v. Illinois Central Gulf R.R., 242
Richardson v. Ham, 325
Richardson v. J. C. Penney, 263
Rickards v. Lothian, 356, 357
Rinehart v. Board of Education, 105
Riss v. City of New York, 225, 227
Robb v. Pennsylvania Railroad Co., 260, 262, 263, 264, 268
Roberts v. Ring, 125
Roberts v. Saylor, 67, 69
Robins Dry Dock & Repair Co. v. Flint, 250, 251, 252
Rodi Yachts, Inc. v. National Marine, Inc., 149, 151, 152
Rodriguez v. Glock, Inc., 423, 424
Ross v. Hartman, 168
Rossi v. DelDuca, 91
Roth v. First National State Bank of New Jersey, 376, 377
Rowland v. Christian, 239, 241, 242
Rufo v. Simpson, 484
Russell-Vaughn Ford, Inc., v. Rouse, 39
Ryan v. Towar, 232
Rylands v. Fletcher, 343, 353, 355, 356, 357, 358, 361
Saloomey v. Jeppesen, 406, 407

Samson v. Riesing, 194
Sanderson v. International Flavors & Fragrances, Inc., 298
Sandford v. General Motors Corp., 503
Schuster v. City of New York, 226, 227
Scott v. Bradford, 277
Scott v. Shepherd, 322
Selger v. Steven Bros., Inc., 162, 163
Shorter v. Drury, 514
Siegler v. Kuhlman, 368, 369
Sindell v. Abbott Laboratories, 294, 297, 298, 299
Small v. Howard, 151
Smith v. Cutter Biological, Inc., 299
Smith v. New England Aircraft Co., 35, 37
Smith v. Pelah, 349
Soldano v. O’Daniels, 202, 203, 211
Sparkman v. Maxwell, 163
Spiess v. Johnson, 73
Spooner v. Manchester, 41, 42
Stacy v. Knickerbocker Ice Co., 273, 274, 276, 282
Standard v. Shine, 128
Stangle v. Fireman’s Fund Insurance Co., 203
State v. Black, 108
State v. McAteer, 56
State v. Rhodes, 109
State Farm Mutual Automobile Insurance Co. v. Campbell, 488
Steinhauser v. Hertz Corp., 315
Struve v. Droge, 99
Sullivan v. Dunham, 370, 371
Summers v. Tice, 290, 291, 292, 293, 294, 297, 299
Surocco v. Geary, 98, 99
Swajian v. General Motors Corp., 173
Tarasoff v. Regents of the University of California, 217, 220, 222, 224, 227
Tedla v. Ellman, 159, 160, 173
Texas Midland Ry. Co. v. Geraldon, 95, 96
Theisen v. Milwaukee Automobile Mutual Insurance Co., 171, 172, 173
The Margharita, 138, 142, 212
The Roman Prince, 323
The T.J. Hooper, 146, 148, 151
Thing v. La Chusa, 268
Thompson v. County of Alameda, 221, 222, 223
Thompson v. White, 323
Tingle v. Chicago, B. & Q. Ry., 160, 161
Tuberville v. Savage, 64
Tunkl v. Regents of the University of California, 511, 512
Turner v. Big Lake Oil Co., 358, 360
Uloth v. City Tank Corp., 431

Ultramares Corp. v. Touche, 248, 249
United Novelty Co. v. Daniels, 315
United States v. Carroll Towing Co., 128
United States v. Hatahley, 443
United States v. Lawter, 207, 208, 209
Van Alstyne v. Rochester Telephone Corp., 32, 34

Van Duyn v. Smith, 74, 76, 77
Van Tuyn v. Zurich American Insurance Co., 508, 510
Van Vacter v. Hierholzer, 507
Vaughan v. Menlove, 115, 116, 117
Vaughan v. Miller Bros. “101” Ranch Wild West Show, 350
Vesely v. Sager, 165, 166
Village of Carterville v. Cook, 321
Vincent v. Lake Erie Transportation Co., 91, 94, 95, 96, 97, 98
Vodopest v. MacGregor, 514
Vosburg v. Putney, 1, 3, 4, 9, 10, 11, 32
Wagner v. International Ry. Co., 340, 341, 528

Walker Shoe Store v. Howard’s Hobby Shop, 361
Walko v. Kean College, 76, 77
Wallace v. Rosen, 13, 14
Walston v. Lambertsen, 185, 186
Wanzer v. District of Columbia, 227
Watson v. Kentucky & Indiana Bridge & R.R., 320, 321
Wegner v. Milwaukee Mutual Insurance Co., 100
Weirs v. Jones County, 118, 119, 120, 123
Weirum v. RKO Radio General, Inc., 200, 201, 210, 211
Welge v. Planters Lifesavers Co., 401, 405
Weller v. American Broadcasting Companies, Inc., 468, 469
Wendland v. Sparks, 287
Werth v. Taylor, 20, 21
White v. Levarn, 161
White v. University of Idaho, 4, 14, 32
Widlowski v. Durkee Foods, 339
Williams v. Hays, 112, 115, 116, 123
Williams v. United States, 464, 465
Wilson v. Stillwill, 180
Wilton v. City of Spokane, 382, 383
Winter v. G.P. Putnam’s Sons, 405, 407
Winterbottom v. Wright, 390, 391
Wiseman v. Schaffer, 42
Wolf v. American Tract Society, 191, 192, 193
Woodall v. Wayne Steffner Productions, 517, 519, 528
Woodbridge v. Marks, 83, 91
Wright v. Haffke, 82, 83
Wyeth v. Levine, 418
Yania v. Bigan, 197, 198, 199, 200, 201, 202, 206, 207, 212
Yarmouth Sea Products Ltd. v. Scully, 253
Yazoo & Mississippi Valley R.R. Co. v. Gordon, 381, 383
Ybarra v. Spangard, 188, 190, 191, 192, 291, 293, 294, 299
Zalazar v. Vercimak, 277, 278

INDEX
Abnormally dangerous activities, 361-372

Accountants’ liability for negligence, 248-249
Alternative liability, 290-300
Amatory torts, 72
Ames, James Barr, 203-204
Animals, liability of owners generally, 344-353
Apparent authority, 377-378
Apportionment, 300-304
Assault, 59-64
Assumption of risk, 504, 508-529
express, 508-515
primary, 515-523
secondary, 523-529
Attractive nuisance doctrine, 231
Battered wives, 107-110

Battery, 1-26
consent, 14-26
doctrinal distinctions, 4-5
harmful or offensive touching, 11-14
insanity defense, 5-7
intent, 1-11
offensive battery, 5
transferred intent, 9-10
Bell, W.G., 99
Bender, Leslie, 205
Blackstone, William, 107, 108
But-for causation, 272-290
Bystanders, emotional distress of, 268-269
Cause in fact, 271-304

Collateral source rule, 461-462
Comparative and contributory negligence, 120-121, 173, 301, 493-507
Comparative fault, 120, 413, 523
Compliance errors, 145-146
Concurrent vs. subsequent causation, 293
Contribution, 302
Conversion, 37-50
good faith purchasers, 43-44
intent, 41-42
Custom, 146-156
medical malpractice cases, 151-155
Damages, 443-491
compensatory damages, 443-475
emotional distress damages, 462-469
hedonic damages, 462, 469-473
lost earnings, 451-462
mitigation of damages, 455-456
pain and suffering, 462-475
property damage, 443-451
punitive damages, 475-491
Defense of person and property, 79-89
Discipline, 101-110
schoolmasters, 103-106
sea captain’s privilege, 101-103
spousal abuse, 107-110
Domestic violence, 107-110
Due process clause, 488-489
Duty to rescue, 195 ff.
Economic loss doctrine, 250-259

Eggshell skull doctrine, 313-314
Eminent domain, 100-101
Epstein, Richard A., 94
Expert testimony, 152, 155, 191, 287-288, 472
False imprisonment, 50-59

bounty hunters, 54-55
citizens’ arrests, 55-56
relation to malicious prosecution, 59
shoplifters, 56
Firefighter’s rule, 519-520
“Flagrant trespassers,” 231
Gilles, Stephen G., 131, 367-368

Givelber, Daniel J., 66-67
“Good Samaritan” doctrine, 208-209
Grady, Mark F., 186-187, 326-327
Hand formula, 128-145

Heart-balm statutes, 72-73
Hedonic damages, 469-473
Holmes, Oliver Wendell, 117, 168-169
Independent contractors, 378-383

Inflation, 457-459
Informed consent, 47, 156, 276-277
Insanity, 5-7, 112-115
Insurance, 460-462
Intentional infliction of emotional distress. See Outrage
Interest on damage awards, 459-460
Intoxication
drunk drivers, 56, 165-166, 208-209, 215-216, 507, 528-529
effect on consent, 25
Invitees, 235-242
Jehovah’s Witnesses, 19, 20, 514

Joint and several liability, 300, 301-304
Landes, William M., 204-205

Land owners and occupiers, 228-243
Last clear chance, 496-498, 504
Legal malpractice, 155-156, 289-290
Levmore, Saul X., 224-225
Licensees, 233-235
Lost chance doctrine, 278-290
Malicious prosecution, 59
Market-share liability, 294-298
Meat grinders, 432-433, 481-482
Medical malpractice
battery, 14-21
collateral source rule and, 461-462
comparative and contributory negligence, 506, 507
custom, 151-155
ghost surgery, 17
lost chance doctrine, 278-290
remote consequences, 317-318
res ipsa loquitur, 180, 188-190
Mitigation of damages, 449-450, 455-456
Necessity
private, 89-97
public, 97-101
Negligence
comparative and contributory, 120-121, 173, 301, 493-507
custom, 146-156
Hand formula, 128-145
negligence per se, 156-173
reasonable person standard, 112-128
res ipsa loquitur, 174-194
Negligence per se, 156-173
judge-made rules, 168-173
statutory violations, 156-168
Negligent infliction of emotional distress, 259-270
bystanders, 268-269
spatial proximity, 269
temporal proximity, 269
Nonrescuers, 198-199, 224-225
Opportunity cost, 454-455

Outrage, 64-77
limited purpose public figures, 76-77
private figures, 74-76
public figures, 73-74, 76-77
Posner, Richard A., 131, 132, 138, 204-205

Pre-impact fright, 465-466
Prejudgment interest, 459-460
Present value, 457-459
Privity doctrine, 243-250
Products liability, 385-442
design defects, 412-424
failure to warn, 424-442
food, 410-412
manufacturing defects, 400-412
written works, 405-406
Prosser, William L., 361, 498
Proximate causation, 305-341
Public figures, 73-74, 76-77
Reasonable person standard, 112-128

age, 123-128
mental states, 112-117
physical infirmities, 122-123
religion, 119-120
Rescuers, 506-507
Res ipsa loquitur, 174-194
Respondeat superior, 372-383, 485-486
apparent authority of agent, 377-378
frolic and detour, 375-376
nondelegable duties, 381
servant, defined, 379-380
Restatement of Torts (first)
emotional harm, 65
“ultrahazardous” activities, 361
“abnormally dangerous” activities, 361-363
accidental intrusions, 32
additional harm from efforts to mitigate harm, 317
apportionment of harm to causes, 291-292
assault, 60-61
assumption of risk, 513-514
child trespassers, 232-233
compensatory damages, 446-450, 466-467
consent
conditional or restricted consent, 29
duress, 22
fraud, 27
meaning, 21
misrepresentation, 22
mistake, 22
to crime, 24-25
to whom given, 17-18
contractors mistakenly thought to be servants, 383
controlling conduct of third person, 210, 217
distinct defects, 118
duty to act when prior conduct found to be dangerous, 199
duty to aid another harmed by actor’s conduct, 199-200
false imprisonment, 50-51, 58-59
“good Samaritan” doctrine, 208-209
humiliation, recovery for, 466-467
ignorance as excuse, 163
inferior qualities, 118
intentional intervening acts, 322
intentional intrusions on land, 30
invitees, obligations to, 238-239
knowledge, 163
last clear chance, 496-498
licensees, obligations to, 235
mistake, intrusions under, 32
necessity that actor employ competence available, 121-122
negligence in doing work accepted in reliance on employer’s doing work himself, 383
outrageous conduct causing severe emotional distress, 65-66
peculiar risks, 381-382
privilege created by public necessity, 100
products liability, 397-398, 406, 410-411, 412, 431, 434
provocation, 486-487
punitive damages, 486-487
reasonable person standard, 112
rescue, failures to, 198
self-defense, 87-89
statutes, uses of, 161
strict liability, 361-363, 372, 397-398, 406, 410-411, 412, 431, 434
subsequent accidents due to impaired physical condition, 318
superior qualities and facilities, 121-122
third person, controlling conduct of, 210, 217
trespass, 30
trespassers, obligations to, 230-231, 232
unavoidably unsafe products, 434
value of property or services, 446-447
work dangerous in absence of special precautions, 381-382
Restatement Third, Torts: Intentional Torts to Persons
battery, 5
offensive contact, defined, 5
Restatement Third, Torts: Liability for Physical and Emotional Harm
duty to exercise reasonable care, 196
“flagrant trespassers,” 231
joint and several liability, 301
limitations on liability for tortious conduct, 311-312
multiple causation, 293
negligence, 144
negligent infliction of emotional distress, 263, 269
scope of liability, 311-312
strict liability, 350-351, 372
trespassers, obligations to, 231
Restatement Third, Torts: Products Liability, 369, 398-400
design defects, 412-414, 419, 420, 423
manufacturing defects, 400-401
unsafe prescription drug or medical device, 434
Schwartz, Gary T., 132, 336, 495

Schwartz, Victor, 503
Scope of employment doctrine, 372-378
Scope of liability, 305-341
Self-defense, 87-89
Sexual harassment, 77
Simons, Kenneth W., 529
Single owner principle, 87, 94-95
September 11th Victim Compensation Fund, 473-474
Special relationships, 211-228
public duty doctrine, 225-228
Special verdicts, 3
Statutory violations
effect on consent, 25
harassment in workplace, 77
negligence per se, 157-168
Subrogation, 462
Sunstein, Cass R., 489-491
Survival actions, 451
Taxes, 459
Terry, Henry, 137-138
Transaction costs, 96-97
Transferred intent, 9-10
Trespass, 26-37
consent, 26-29
duties to trespassers, 228-233
“flagrant trespassers,” 231
intent, 30-31
relation to battery, 29, 32
relation to negligence, 31-32
relation to property law, 34
Undertakings, 205-211
Vioxx litigation, 299-300
Wright, Richard W., 140-142
Zipursky, Benjamin C., 337

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TORTS

Cases and Questions

Library of Congress Cataloging-in-Publication Data

Names: Farnsworth, Ward, 1967-author. | Grady, Mark F., author.

Serving customers worldwide, its legal and regulatory portfolio includes

Chapter 1. Intentional Torts: The Prima Facie Case

Preface to the Third Edition

Chapter 1. Intentional Torts: The Prima Facie Case

Chapter 2. Intentional Torts: Privileges

Chapter 3. The Negligence Standard

Chapter 4. Duties and Limitations

Chapter 5. Cause in Fact

Chapter 6. Proximate Causation (Scope of Liability)

Chapter 7. Strict Liability

Chapter 8. Products Liability

Chapter 10. Defenses

This edition contains updated references to the Third Restatement and

The distinctive approach of this casebook is to present pairs and clusters

Building this book has been a labor-intensive enterprise, and I would

My contribution to this casebook evolved over a period of years at a

Ames, James Barr, Law and Morals, 22 Harv. L. Rev. 97 (1908).

Guthrie, Chris, Jeffrey J. Rachlinski, and Andrew J. Wistrich, Inside the

Restatement of the Law Second, Agency, copyright © 1958 by The

Restatement of the Law Second, Torts, copyright © 1965, 1977, 1979

Restatement of the Law Third, Torts: Liability for Physical and

Restatement of the Law Third, Torts: Products Liability, copyright ©

Schwartz, Gary, Cardozo as Tort Lawmaker, 49 DePaul L. Rev. 305

Uniform Commercial Code, copyright © 2018 by The American Law

Zipursky, Benjamin, Rights, Wrongs, and Recourse in the Law of Torts,

The purpose of this introduction is to provide the newcomer to tort law

1. The Scope of the Law of Torts

By way of additional context it will help to understand some differences

3. Modern Procedure: How to Understand the Posture of a Case

a. Dismissal of a complaint. Suppose D’s dog bites P. P files a lawsuit

b. Summary judgment. Assuming the plaintiff’s complaint is not

c. Directed verdicts. Now suppose the defendant does not succeed in

May vs. Must. The explanation so far glosses over an important

Summary. We have just surveyed the most common settings in which

Regulation, deterrence, and economics. In the view of the first camp of

Torts come in two general varieties: unintentional and intentional.

1. Intent and Volition

1. Seven questions. When a jury renders a general verdict, it simply

A requisite element of assault and battery is intent. Here, however,

§3. BATTERY: DEFINITION OF OFFENSIVE CONTACT

A contact is offensive [for purposes of the tort of battery] if:

Illustration 6 to that portion of the Restatement begins as follows:

Caterer is hired to serve food for a wedding reception. He is informed

Complete the illustration: should Caterer be subject to liability for battery?

There is, to be sure, an appearance of hardship in compelling one to

That the duties and responsibilities of a person confronted with such a

Was Laidlaw v. Sage correctly decided? Can it be squared with

The Oklahoma Supreme Court rejected Keel’s argument and approved

John, a security guard at a nightclub, is angry that Rudy, an

Any person or other legal entity shall be entitled to recover actual

To these rules compare the doctrine of respondeat superior, which

Professors Prosser and Keeton [] made the following observations

What is the distinction between Wallace v. Rosen and Morgan v.

3. Consent and Its Limits

A second and more complex question concerning battery, to which we now

BROWN, J. — Defendant is a physician and surgeon of standing and