Torts Cases

Priest v. Rotary (1986)

Plaintiff sued for sexual harrassmant, employment termination, false imprisonment, assault and battery, intentional infliction of emotional distress, etc. while working in a restaurant.

Hammontree v. Jenner (1971)

Defendant has a seizure while driving and injures plaintiff. Plaintiff tries and fails to impose strict liability.

Brown v. Kendall, Supreme Judicial Court of Massachusetts, 6 Cush. (60 Mass.) 292 (1850)

Dogs belonging to the plaintiff and defendant were fighting, and defendant beat them with a stick to separate them. Defendant backed up and accidentally hit the plaintiff in the eye with the stick. Held If this was an accident, the defendant is not liable for the act "unless it was done in the want of exercise of due care ...."

Adams v. Bullock, Court of Appeals of New York, 227 N.Y. 208, 125 N.E. 93 (1919)

(Standard of Care) Trolley owner not liable for an extraordinary mishap (a boy swinging a wire and hitting the lines) which could not have been foreseen.

United States v. Carroll Towing Co, United States Court of Appeals, Second Circuit, 159 F.2d 169 (1947)

(Standard of Care) Bargee liable for leaving the barge because it was likely that injury would occur, and staying didn't incurr a large burden (B<PL).

Bethel v. New York City Transit Authority, Court of Appeals of New York, 92 N.Y.2d 348, 703 N.E.2d 1214, 681 N.Y.S.2d 201 (1998)

Plaintiff was hurt when a wheelchair-accessible seat collapsed on the defendant's bus. Held The rule of a common carrier to exercise extraordinary care should no longer be used in New York, as the standard of "reasonable care under all of the circumstances of the particular case" is flexible enough to cover common carriers.

Baltimore & Ohio Railroad Co. v. Goodman, Supreme Court of the United States, 275 U.S. 66, 48 S.Ct. 24, 72 L.Ed. 167 (1927)

HeldAn automobile driver crossing train tracks is responsible for his own death when being struck by a train, because there is a standard of conduct expected.

Pokora v. Wabash Railway Co., Supreme Court of the United States, 292 U.S. 98, 54 S.Ct. 580, 78 L.Ed. 1149 (1934)

Overturned the Goodman, standard of conduct for drivers a railroad crossings because, in this instance, the standard of conduct is unreasonable and potentially counterproductive.

Andrews v. United Airlines, Inc. United States Court of Appeals, Ninth Circuit, 24 F.3d 39 (1994)

Held After luggage fell from an overhead compartment at the gate and injured a passenger, the facts should be presented to a jury for them to determine if negligence exists.

Trimarco v. Klein, Court of Appeals of New York, 56 N.Y.2d 98, 436 N.E.2d 502, 451 N.Y.S.2d 52 (1982)

Plaintiff tenant cut when he fell through a shower door of non-shatterproof glass that was installed before it was a custom to use safer glass. Held Custom of a safety-related practice may be used to prove negligence if that custom is reasonable, but in itself does not prove negligence.

Martin v. Herzog, Court of Appeals of New York, 228 N.Y. 164, 126 N.E. 814 (1920)

A buggy without headlights gets struck by a car on the wrong side of the road. Held The buggy should have had its lights on according to statute, and disobeying a statute "is negligence itself."

Tedla v. Ellman, Court of Appeals of New York, 280 N.Y. 124, 19 N.E.2d 987 (1939)

Brother and sister junk collectors walked on the right side of a highway rather than the left, as statute required, because the traffic in that direction was lighter. When struck from behind, the driver claimed contributory negligence, but this was denied. Held As the statute was to promote preservation of life and limb, it can be disobeyed if its observance would increase danger.

Robinson v. District of Columbia (1990)

Pedestrian crossing outside a crosswalk struck by police van, and ruled contributorily negligent even though many people acted similarly. Held There's no basis for violating a statute even if such violations are common practice.

Platt v. City of Cahoes (1882)

Plaintiffs driving on Sunday against a statute struck obstruction in the road negligently left by the city. Held The purpose of the ordinance was not safety, so it did not make the plaintiffs negligent.

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

Defendant was struck by a barrel of flour falling from plaintiff's flour store. Held The fact that the object fell is considered prima facie evidence that the plaintiff was negligent.

McDougald v. Perry, Supreme Court of Florida, 716 So.2d 783 (1998)

Leonard v. Watsonville Community Hospital, 305 P.2d 36 (Cal.1956)

Doctors left a clamp inside a patient, and it wasn't a custom to count clamps. HeldThe clamps should have been counted. Even though existence of a custom may help determine what is due care, it does not conclusively set the standard of due care.

Ybarra v. Spangard, Supreme Court of California, 25 Cal.2d 486, 154 P.2d 687 (1944)

Held Person injured during surgery can apply res ipsa loquitur even if the exact person and/or instrumentation causing the injury during the plaintiff's unconsciousness is unknown.

Sheeley v. Memorial Hospital, Supreme Court of Rhode Island, 710 A.2d 161 (1998)

Second-year family practice resident's patient developed complications after episiotomy. In determining if the testimony of an expert witness should be allowed, examined proper standard of care for medical malpractice cases. Held Abandoned the "similar locality" rule. "[P]hysician is under a duty to use the degree of care and skill that is expected of a reasonably competent practitioner in the same class to which he or she belongs, acting in the same or similar circumstances."

Connors v. University Associates in Obstetrics & Gynecology, Inc., 4 F.3d 123 (1993)

Woman after surgery to increase likelihood of pregnancy lost all function in her left leg. She may have had a unusually situated nerve. Held Res ipsa loquitur does not preclude expert testimony, because the expert has experiences in common with the defendant and can educate the jury to have a "different, higher level of common knowledge".

Matthies v. Mastromonaco (1999)

Elderly woman fell and broke her hip, and physician prescribed bed rest without informing her of an alternative of surgery, even though the doctor didn't feel that was surgery was the best choice. Without the informed consent of the patient, the doctor is negligent for interfering with the patient's right of self-determination. Held The doctor has a duty to inform the patient of all medically reasonable alternatives and their risks, even for non-invasive procedures.

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

Harper rode in a boat with Herman and dove into shallow water. Herman had not warned Harper of the danger, but had no duty to do so. An affirmative duty to act only arises if there is a special relationship between the parties, such as with common carriers, inkeepers, possessors of public land, and those in custody of another person who doesn't have the capability of self-protection.

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

Siegrist and Farwell went drinking, got into a fight, and Farwell was injured. Siegrist put ice on Farwell's neck, drove him around, and after Farwell crawled into the back seat and went to sleep, Siegrist drove him to Farwell's grandparents' house. Failing to wake Farwell, he left Farwell. His grandparents found him and took him to the hospital, and he died three days later. Did Siegrist owe Farwell a duty to ensure he had treatment? Held Factual circumstances sometimes give rise to a duty, and those facts must be determined by a jury. Every person has a duty to avoid affirmative actions that make a situation worse, and if someone attempts to aid someone else, they take on a responsibility. The two were "companions on a social venture", and Siegrist could have rendered aid without endangering himself, therefore imposing a duty on Siegrist.

Strauss v. Belle Realty Co., 65 N.Y.2d 399, 482 N.E.2d 34, 492 N.Y.S.2d 555 (1985)

Because of gross negligence, Consolodated Edison's power system left most of New York without power, including property owned by Belle Realty company. Strauss, in a Belle apartment, had no running water so went downstairs to get water and fell down defective stairs because, with no electricity, it was dark. Is Con Edison liable to the general population, even if they are not subscribers? Held Duty is not defined by foreseeability nor by privity of contract, but the courts must fix an "orbit of duty" to cover foreseeable parties but to contain liability to manageable levels. In this case, liability to the general population outside of the subscriber base (i.e. all of New York) would be "crushing" to Con Edison. Dissent It seems "perverse" to say, in effect, the greater the injury, the lower the liability. Instead of assuming Con Edison would be crushed, that is an issue of fact to be determined.

Uhr v. East Greenbush Central School District, 94 N.Y.3d 32, 720 N.E.2d 886, 698 N.Y.S.2d 609 (1999)

Education Law statute § 905(1) required school officials to test students for scoliosis, and § 911 charges the Commissioner of Education with enforcing the rules. The school failed to do so, resulting in one case of scoliosis going undiagnosed and worsening. Does violation of this Education Law statute make available a private right of action? Held There are three tests: 1) whether the plaintiff is part of the class the statute meant to benefit, 2) whether a private right of action would promote the legislative purpose (in this case, preventing scoliosis), and 3) whether such a right would be consistent with the legislative scheme. All these hold except the latter—as the statutes provide for the Commissioner of Education to oversee and enforce the rules, a private right of action is redundant.

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

Dr. Moore at the University of California was a psychologist treating Poddar, who told Poddar he would kill Tatiana Tarasoff. After Poddar was released, he killed Poddar. Does a doctor have a duty to third parties with whom the doctor has no special relationship to warn of foreseeable injury by the patient? Held There can be a special relationship between two people that would impose a duty on one of them to protect a third party with which no special relatoniship exists. The doctor patient privilege ends where public safety begins. If a doctor knows or should know pursuant to standards of their profession that a patient presents a serious danger, the doctor has a duty to exercise reasonable care to protect her from danger. Dissent: If the doctor knew, he had a duty, but this "should have known pursuant to standards of their profession" is simply unworkable. (See and hear "Duty this Time" song.)

Randi W. v. Muroc Joint Unified School District, 14 Cal.4th 1066, 929 P.2d 582, 60 Cal.Rptr.2d 263 (1997)

Muroc gave a misleadingly good recommendation for Gadams, who had been charged before of sexual misconduct. Gadams who was hired by Livingston School District as a vice-principal and then molested Randi. Is defendant liable to a third party because of providing a misleading recommendation? Held Yes, if the recommendation contains "an affirmative misrepresentation presenting a foreseeable and substantial risk of physical harm to a third person," even in the absence of a special relationship. (The absence of a duty to speak doesn't mean one can speak falsely, Garcia, cited by case.) (See Restatement Second of Torts § 311.)

Vince v. Wilson, 151 Vt. 425, 561 A.2d 103 (1999)

Wilson provided funds for grandnephew to purchase a car, even though she knew he had no drivers license, that he had repeatedly failed the drivers test, and that he had abused alcohol and other drugs. His inexperience and lack of training caused an accident involving Vince. Held One who supplies (not just sells) someone something and has knowledge that because of youth, inexperience, or otherwise the other is likely to use it in a manner involving unreasonable risk of harm to self or others the supplier should expect the third party to share with is liability. (See Restatement of Torts.)

Reynolds v. Hicks, 134 Wash.2d 491, 951 P.2d 761 (1998)

Jamie and Anna Hicks were married, and at their wedding reception Anna's under-aged nephew consumed alcohol, left, drove, and injured Reynolds. A statute bars providing alcohl to minors. Do the liability of social hosts extend to third persons harmed by minors? Held No, social hosts are ill-equipped to handle responsibilities of guests' alcohol consumption, unlike commercian vendors have no profit motive, and the results would be sweeping and unpredictable if liability were imposed. They are only liable for injuries of the minor.

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

The Kinneys hosted a bible study in their home, inviting only those who signed up at church. Carter fell on ice in the driveway and broke a leg. Do the Kinneys owe Carter a duty to excercise reasonable care to protect against known dangers and those evident upon inspection? Held No, as a social guest Carter was a licensee, not an invitee, and was therefore owed only a duty to make safe dangers of which the host was aware. The Kinneys are not liable.

Rowland v. Christian, 443 P.2d 561 (Cal. 1968)

Held The three divisions of landowners should be discarded in favor of a general duty of care for landowners.

Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996)

Heins visited defendant's hospital to visit his daughter, who worked there. When exiting the main entrance, he slipped because of ice and snow and injured his hip. Although his visitation purpose classified him as a licensee, he was using a door used by public visitors (i.e. invitees). Is a distinction between licensee and invitee appropriate? Held No, the focus should be on the foreseeability of the injury, not the status of the person who enters the property. The distinction between licensee and invitee should be abolished, requiring a standard of reasonable care for all lawful visitors (i.e. not for trespassors).

Posecai v. Wal-Mart Stores, Inc., Supreme Court of Louisiana, 752 So.2d 762 (1999)

Posecai was robbed of $19,000 worth of jewelry in a Sam's parking lot which, although near a high-crime area, had only had three predatory offenses in the six and a half years before the robbery, only one of which had been similar to the robbery in question. Does a store owner owe a duty to protect customers from the criminal acts of third parties under these circumstances? Held No, using a balancing test between store owner and customer, there was a low foreseeability that the crime would occur and its gravity was slight.

Broadbent v. Broadbent, Supreme Court of Arizona, 184 Ariz. 74, 907 P.2d 43 (1996)

Mother left 2-1/2-year-old child by the swimming pool to answer the phone, and the child got into the pool and suffered severe brain damage. Should parental immunity be done away with? Held Yes; suing a parent would not disturb domestic tranquility, create a danger of fraud, deplete family resources, benefit the parent through inheritance, or interfere with parental care, discipline, and control, as claimed. It wouldn't make sense in this case for the parent to be liable to a neighbor's child for the same act, but not to her own child. A reasonable parent standard should be used.

Falzone v. Busch, Supreme Court of New Jersey, 45 N.J. 559, 214 A.2d 12 (1965)

Charles Falzone was standing in a field by his car when he saw struck by the plaintiff's car. His wife, Mabel, was in the Falzone's car. The plaintiff's car same close enough to Mabel to "put her in fear of her safety." Can Mabel sue for bodily injury or sickness resulting from negligently induced fright, even though there was no physical impact? Held Yes. Ward v. West (1900) said this is not possible, because 1) physical injury is not the proximate and natural cause from fright, 2) there is no precedent, and 3) the field would be open for speculative claims. However, 1) medical science has made it clearer that harm can stem from fright, 2) there always has to be a first time for everything, and 3) there will always be speculative cases, but that doesn't mean the deserving cases shouldn't be heard.

R.J. v. Humana of Florida, Inc., 652 So.2d, 360 (Fla. 1995)

Man erroneously told from an HIV test that he was HIV positive, but "emotional distress suffered must flow from physical injuries the plaintiff sustained in an impact."

Quill v. TransWorld Airlines, Inc., 361 N.W.2d 438 (Minn.App.1985)

Airplane plunged 34,000 feet in a tailspin, then continued to shake for 40 minutes. Passenger awarded $50,000.

Metro-North Commuter Railroad Company v. Buckley Supreme Court of the United States, 521 U.S. 424, 117 S.Ct. 2113, 138 L.Ed.2d 560 (1997)

Buckley worked as a pipefitter for the railroad and was exposed to asbestos. Buckley feared he would develop cancer, but so far tests have shown nothing. Does the physical contact with the asbestos dust constitute a "physical impact" for which the plaintiff could collect damages? Held The worker cannot collect unless he develops symptoms of the disease. The plaintiff must have have been in a "zone of danger" that would have caused immediate traumatic harm; precendent doesn't allow simple exposure to a substance to collect; and it would be hard otherwise to separate important from trivial claims.

Gammon v. Osteopathic Hospital of Maine, Inc., Supreme Judicial Court of Maine, 534 A.2d 1282 (1987)

Plaintiff's father died and defendant funeral home made arrangements. Defendant sent a bag to plaintiff with supposed "personal effects" that contained a severed leg (not of plaintiff's father). As a result, plaintiff began to have nightmares and his relationship with his wife and children deteriorated. Is there a tort claim for negligent infliction of severe emotional distress? Held Yes, if the emotional harm is foreseeable in that it could reasonably be expected to befall the ordinarily sensitive person. The funeral home should reasonably have foreseen emotional harm to the family of the decedent.

Portee v. Jaffee, Supreme Court of New Jersey, 84 N.J. 88, 417 A.2d 521 (1980)

Seven-year-old boy was caught between and elevator and the shaft wall, and was pinned for four hours, moaning and flailing, for over four hours while his mother (Jaffee) watched the attempted rescue until his death. Afterwards the mother experience psychological problems and attempted suicide. Is it defendant's duty to avoid the mother's mental and emotional harm? Held Yes; to avoid speculative emotional injury claims, they are limited to the following conditions: 1) a death or serious injury caused by defendant's negligence; 2) a marital or intimate familial relationship between the plaintiff and the victim; 3) observation at the scene of the accident; and 4) resulting severe emotional distress.

Johnson v. Jamaica Hospital, Court of Appeals of New York, 62 N.Y.2d 523, 467 N.E.2d 502, 478 N.Y.S.2d 838 (1984)

Plaintiffs' daughter was abducted from a hospital after the mother was released and the daughter kept for further treatment. The daughter was discovered and returned after over four months. Does the hospital have a duty to the parents to prevent emotional distress from the kidnapping of the daughter? Held No; although the hospital has a duty to the daughter, the parents do not meet the Dillon criteria, such as directly observing the event, and the hospital owes them no duty.

Nycal Corporation v. KPMG Peat Marwick LLP., Supreme Judicial Court of Massachusetts, 426 Mass. 491, 688 N.E.2d 1368

Plaintiff relied on defendant's auditor's report of Gulf Resources & Chemical Corporation when he purchased 35% of their shares. Gulf went bankrupt a few months later, and plaintiff alleges the report didn't take everything into account. Do accountants have a duty to non-clients? Held Not according to Restatement (Second) of Torts § 552, unless the plaintiff is a member of a smaller class to which the defendant had a duty. Here the report was for Gulf's annual report, not for potential investors. Unlike personal injury, auditors usually rely on reports from clients and the clients really control the auditing process. (The court rejects the foreseeability test and Cardoza's near-privity test as being too extreme in each direction.)

Biakanja v. Irving, 320 P.2d 16 (Cal. 1958)

Defendant notary public was found liable for not properly getting a will witnessed, and plaintiff was given damages of the difference between estate portions received, because the notary was aware of the content of the will and the consequences of not getting it properly notarized.

Duncan v. Afton, Inc., 991 P.2d 739 (Wyo.1999)

Court found a drug-testing company liable for erroneously giving positive results to an employee, because the company knew what would happen if they didn't correctly test the class of workers being testing. The court also noted that "two out of every five workers testing positive truly are drug free" (312).

People Express Airlines, Inc. v. Consolidated Rail Corp., Supreme Court of New Jersey, 100 N.J. 246, 495 A.2d 107 (1985)

Railway company tank car exploded near an airport, and they had to shut the airport down while things were cleaned up, resulting in economic loss to the airport even though no one and nothing was hurt. Can the airport sue for purely economic loss? Held Yes. "[A] defendant owes a duty of care to take reasonable measures to avoid the risk of causing economic damages ... 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." (The courts have traditionally excluded recovery for purely economic damages because of difficulty of ascertaining proximate cause and to limit liability, but through need of social policy courts have created exceptions based on special relationships and use of a public resource. These exceptions are really specific instances of a broaders characterization: 1) foreseeability, 2) direct and proximate case, 3) fair limitation of liability.)

Stubbs v. City of Rochester, Court of Appeals of New York, 226 N.Y. 516, 124 N.E. 137 (1919)

Plaintiff contacted typhoid fever at the same time the city water supplier accidentally mixed good water with waste water. Plaintiff only drank tap water from defendant, and there was an increase in cases of typhoid fever in that area and at that time. Doctors declared contaminated water to be the primary carrier of typhoid bacillus, but there are other carriers and even unknown causes of typhoid fever. Held The plaintiff has the burden of proof of causation, but in this case the most favorable inferences deducible would justify a submission of the facts to the jury as they rest on reasonable probabilities.

Wilson v. Circus Circus Hotels, Inc., 710 P.2d 77 (Nev.1985)

Boy developed salmonella poisoning after staying at a hotel. Held Showing almost exclusive ingestion of food at the hotel during the incubation period and negation of other causes was sufficient to send the case to a jury.

Zuchowicz v. United States, United States Court of Appeals, Second Circuit, 140 F.3d 381 (1998)

Doctors negligently gave plaintiff an overdose of Danocrine, after which she developed primary pulmonary hypertension (PPT), a very rare disease, and then died. Experts testified that, although there are multiple causes of PPT and that this drug had previously not been linked to PPT, in their opinion, based upon their experience with drug-induced PPT and the timing of the onset, the overdose of Danocrine caused the PPT. Held The expert testimony can be allowed, because the Federal Rules of Evidence has a flexible (not exclusive or dispositive) list of allowable evidence in which 1) the theory has been tested using the scientific method, 2) there has been peer review and publication, 3) there is a known or potential rate of error, and 4) the theory is generally accepted. Held Causation was allowed because the Connecticut law of causation says a) the negligence was a "but for" cause of the injury, b) the negligence was causally linked to the harm, and c) the negligent act was proximate to the resulting injury. Even though it used to be the rule that negligence does not necessarily prove causation, Chief Judge Cardozo in New York and Chief Justice Traynor and California have paved the way for the doctrine that if the negligence is of the type that causes the harm, the defendant has the burden of proof to show the negligence did not cause the harm.

Alberts v. Schultz, Supreme Court of New Mexico, 126 N.M. 807, 975 P.2d 1279 (1999)

Plaintiff's doctor didn't realize there was a serious problem with plaintiff's leg, so he postponed running tests. Plaintiff's leg eventually had to be amputated. Is plaintiff liable for loss-of-chance by lowering plaintiff's chances of recovery? Held No, because the plaintiff cannot prove that he was within the window of recovery when examined and that the doctors could have done something to raise his chances. The injury in question is the loss of a chance, not the resulting injury, although an actual injury must occur for loss-of-chance theory to be available. Damages are the percentage of worth of the individual equal to the percentage of chance taken away by the negligence.

Ravo v. Rogatnick, 514 N.E.2d 1104 (N.Y.1987)

Defendant suffered severe brain damage at birth, and the obstetrician was negligent during delivery and/or the pediatrician was negligent thereafter. Held The jury found 80% fault to the former and 20% to the latter. Through joint and several liability, because in this case the injury allows no "reasonable or practicable division or allocation" of damages, 100% damages could be retrieved from either. ("Under successive and independent liability, of course, the initial tort-feasor may well be liable to the plaintiff for the entire damage proximately resulting from his own wrongful acts. ... The successive tort-feasor, however, is liable only for the separate injury or the aggravation his conduct has caused.")

Veazey v. Elmwood Plantation Associates, Ltd., 650 So.2d 712 (La.1994)

Plaintiff was raped in her apartment and sued management company for failure to provide for safety of residents. Should fault be allocated between the rapist and the management company? Held No, just to the management company, because 1) the failure to provide safety encompassed the rape, 2) comparison as public policy would reduce incentives for providing safety, and 3) intentional and unintentional torts cannot be compared.

Hutcherson v. City of Phoenix, 961 P.2d 449 (Ariz.1998)

Girlfriend called 911 saying that old boyfriend had threatened to kill her and new boyfriend. 911 operator assigned the call a low priority and, by the time officers arrived, the old boyfriend had done what he threatened. Held The operator was negligent, and the city was 75% at fault and the boyfriend 25% at fault.

Summers v. Tice, Supreme Court of California, 33 Cal.2d 80, 199 P.2d 1 (1948)

On a hunting trip, defendant was struck by bullets from defendants, one in the eye and one in the lip. The one in the eye caused the most damage, but it could not be determined from which defendant the bullet came. Held Regardless of whether the defendants were determined to be acting independently or in concert, each defendant is liable for the whole damage and, like res ipsa loquitur, placed the plaintiff in a position in which the plaintiff cannot determine which defendant is liable.

Hymowitz v. Eli Lilly & Co., Court of Appeals of New York, 73 N.Y.2d 487, 539 N.E.2d 1069, 541 N.Y.S.2d 941. Cert, denied, 493 U.S. 944 (1989)

Many people were injured when their mothers took DES while pregnant. However, many manufacturers at the time manufactured identical versions of the drug, records are scarce, and there is no way to ascertain which manufacturer caused which damages. Held All manufacturers will be aportioned liability based upon national market share; this will not correspond to actual injury caused, but will instead approximate culpability through general risk presented to public. (Althernative liability, such as in Summers v. Tice, is not appropriate, as defendants have no greater knowledge of fault, and the number of defendants is so large. A theory of concerted action is not appropriate, as defendants were not acting together by agreement in some parallel effort.) Those who could prove they did not produce the drug for use relating to pregnancy will be exculpated.

Benn v. Thomas, Supreme Court of Iowa, 512 N.W.2d 537 (1994)

Plaintiff, who had extensive heart problems, died six days after plaintiff ran into him in an automobile. Is defendant liable for plaintiff's death because injury was foreseeable, even though plaintiff's death was not foreseeable because of his unusual physical condition? Held Yes; According to the "eggshell plaintiff" doctrine, once it is proved that the defendant caused an injury, defendant is liable for the full extent of those injuries whether or not they were foreseeable to the defendant. The "eggshell plaintiff" doctrine is not just a measure of damages, but also of proximate cause: "consequences which follow an unbroken sequence, without an intervening efficient cause, from the original negligent act ..." See Restatement (Second) of Torts § 461 (1965).

Dillon v. Twin State Gas & Electric Co., 163 A. Ill (N.H.1932)

Boy on a girder, about to fall, grabbed and was killed by an electric line negligently exposed. Held If it could be shown that the boy's fall alone would have killed him, the award would be drastically reduced.

Steinhauser v. Hertz Corp., 421 F.2d 1169 (2d Cir.1970)

14-year-old sustained no injuries in a car accident, but was later institutionalized for "chronic schizophrenic reaction." Held Plaintiff can recover if jury finds the accident "precipitated" the schizophrenia. The existence of prior tendencies might greatly effect damages. Defendants could explore possibility of plaintiff having developed schizophrenia regardless of the accident.

Pridham v. Cash & Carry Bldg. Center, Inc., 359 A.2d 193 (N.H.1976)

Plaintiff, seriously injured by defendant's negligence, died because the ambulance in which he was riding swerved into a tree because the driver had a heart attack. Held The defendant is liable for injuries arising from normal efforts of rendering aid to the victim, even if the services are "rendered negligently."

Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. (The Wagon Mound), Privy Council, [1961] A.C. 388 (1961)

Plaintiff spilled oil from a ship into the water near the dock and then sailed away. Later defendant's welding sparked a fire and burned defendant's ship. Plaintiff could not have reasonably known that the oil spilled on water could be set on fire. The oil also got into plaintiff's slipways and impeded use of the slips. Held Plaintiff should not be liable for direct or natural damage from careless actions, but only for foreseeable results of actions, even though these two are many times the same. The fact that an action causes other foreseeable injuries is irrelevant to the first injury. [This case overrules In re Polemis.]

McLaughlin v. Mine Safety Appliances Co., Court of Appeals of New York, 11 N.Y.2d 62, 181 N.E.2d 430, 226 N.Y.S.2d 407 (1962)

A man was pulled nearly drowned from a lake, and firepeople tried to warm him using heatable blocks manufactured for that purpose. The blocks, which should have first been wrapped in some insulating object such as a blanket, burned the man. The jury ruled the manufacturer was negligent because the insulation warning was in small print on the container, making it foreseeable that the actual user would not see or not even have the warning at the time of use. A fireman at the time said that he knew of the danger, though— if he failed to warn the nurse, would the manufacturer still be liable? Held Yes; the duty of a third person to warn would then insulate the manufacturer from liability. Dissent The Restatement of Torts § 449 says otherwise.

Cohen v. St. Regis Paper Co., 481 N.E.2d 562 (N.Y.1985)

Worker was killed by exposure to dry ice and the employer knew of its danger. Held The employer was not "grossly negligent" as in McLaughlin because he didn't stand idly by while injury occurred. It is up to the jury do decide if such knowledge removed the liability of the manufacturer.

Addis v. Steele, 648 N.E.2d 773 (Mass.App.1995)

Residents were injured in a fire because of a lack of adequate escape lighting. Defendant claimed it was not liable because the fire was set by an arson. Held The cause of the fire does not relieve defendant of liability because the defendant had a duty to provide for safety from fires, regardless of their source.

Palsgraf v. Long Island Railroad Co., Court of Appeals of New York, 248 N.Y. 339, 162 N.E. 99 (1928)

A guard pushed a man boarding a train because it looked as if he weren't going to be able to get on, and an innocent-looking package fell from the man onto the track. The package contained fireworks which exploded, knocking down a set of scales a ways away, injuring a woman. Is the defendant liable for the woman's injuries? Held No; the defendant gave no injury to the woman. "Negligence is not a tort unless it results in the commission of a wrong ...." There is no liability for only "negligence in the air", as it were. This is not about remote or proximate cause. The defendant might have injured the man he pushed, but he did nothing to the woman's bodily security. Dissent This is not about direct harm to the defendant, this is about proximate cause in the "stream of events". Everyone has a duty to the world not to injure others. A defendant is liable if defendant's actions are proximate and natural and if the results were foreseeable. Actions that are less proximate should be given to a jury to decide.

Wagner v. International Railway Co., 133 N.E. 437 (N.Y.1921)

Because of the crew's negligence, someone fell from the train and his cousin, in trying to rescue him, was injured. Held Defendant is liable for the injury to the rescuer because "danger invites rescue," but not past the point where the rescue action stops being instinctive.

Moore v. Shah, 458 N.Y.S.2d 33 (App.Div. 1982)

Father was injured by defendant and his son gave up his kidney for the father. Held Even though it might be foreseeable that the son would give the father his kidney, the son's action was not instinctive—they were deliberate at a later time—and defendant is therefore not liable for the injury to the son.

Petition of Kinsman Transit Co., 338 F.2d 708 (2d Cir.1964), cert, denied 380 U.S. 944 (1965)

The ship Shiras, owned by Kinsman, tore loose from the dock because of ice on the Buffalo River and because of the negligence of the crew. It broke free and struck another ship, and together they hit a drawbridge that should have been raised by the city. That created a dam that backed up water and flooded the river, causing property damage. Held The crew, the city, and the dock are all liable because the injury, even though not the extent, was foreseeable. When the consequences of negligence are direct but the extent of the damages were not foreseeable at the time, there is still liability for damages. (However, "... a negligent actor is responsible only for the harm the risk of which was increased by the negligent part of his conduct.")

Kinsman II, 388 F.2d 821 (2d Cir. 1968)

After Kinsman I, Held there was no liability for the higher cost of unloading ships because this economic cost was too remote from the actions.

Seffert v. Los Angeles Transit Lines, Supreme Court of California, 56 Cal.2d 498, 364 P.2d 337, 15 Cal.Rptr. 161 (1961)

Woman got stuck in a closing bus door and was dragged along, injuring her foot. She was permanently disfigured, her left leg is shorter, she had to get a skin graft from her right thigh, she has an open wound on her left heel, and she will probably take medications for the rest of her life. Were the pecuniary damages of $53,903.75 excessive? Held No, evidence was entered to show current bills and extrapolate for her expected life span. Were the damages of $134,000 for pain and suffering ($100/day up to the trial and $2,000/year after) excessive? Held No; the jury accepted that amount and the trial judge (who sits as a "thirteenth juror") denied a motion for a new trial on excessiveness of the award. An appellate judge can only rule an amount excessive if it "shocks the conscience" and implies the verdict must have been a result of passion and prejudice. Was the use of a mathematical formula appropriate for determining damages for pain and suffering? Held Yes; in some jurisdictions this is debated, but because the defense also used a mathematical formula the defense is considered to have waived an objection. Dissent 1) This amount is much larger than for similar injuries in other cases. 2) Because damages for pain and suffering are conjectural, assigning an amount for a day or year and then extrapolating only compounds the conjecture. 3) Even if the defense did not object to such a mathematical formula, the appeals court should examine that anyway.

Epping v. Commonwealth Edison Co., 734 N.E.2d 916 (Ill.App.2000)

Business woman was disabled for life. Held $9 million award does not "shock the judicial conscience."

Miksis v. Howard, 106 F.3d 754 (7th Cir.1997)

21-year-old defendant suffered brain damage. Held $10 million is not excessive. Other plaintiffs that received less prove nothing but that that other plaintiffs received less.

Waldorf v. Shuta, 142 F.3d 601 (3d Cir. 1998)

24-year-old rendered a quadriplegic argued that $2.5 million was inadequate because other similar cases awarded more. Held The other cases don't establish that this award is inadequate, as long as this award is within acceptable limits.

McDougald v. Garber, Court of Appeals of New York, 73 N.Y.2d 246, 536 N.E.2d 372, 538 N.Y.S.2d 937 (1989)

Plaintiff was rendered permanently comatose because of defendant's malpractice. Held (Defendant must have some level of awareness of experiencing pain and suffering or she cannot received damages for pain and suffering.) Defendant must have "some level of awareness" before damages are awarded for loss of enjoyment of life, because awards are compensatory not punitive, and if she can't use them there is no purpose for them. Held There should be no category separate from pain and suffering for loss of enjoyment of life (or any nonpecuniary damage), because compensating the former using money is a legal fiction to begin with, and we can't analyze at such a granular level for nonpecuniary injuries using money. Making distinct categories would inevitably return larger damage assessments. Dissent Pain and suffering and loss of enjoyment of life are analytically distinct, and the latter should be allowed damages even with no awareness of the defendant because its effects on the defendant are objectively measurable, unlike the former. Such a criterion as "utility" to the defendant is a new, unnecessary element introduced by the majority, and has nothing to do with defining whether damages are punitive. Punative damages go beyond compensatory damages. Having different categories allows the jury to determine a more accurate damage assessment.

Sander v. Geib, Elston, Frost, P.A., 506 N.W.2d 107 (S.D.1993)

Plaintiff died because of a misread pap smear result. Held Awarded $1 million for pain and suffering in contemplating the impending doom.

DeLong v. County of Erie, 457 N.E.2d 717 (N.Y.1983)

Plaintiff was stabbed by an intruder because of the negligence of a 911 dispatcher in getting the right location. Held Awarded $200,000 for pain and suffering of fear, and $600,000 for three child benficiaries for cooking, cleaning, housekeeping, and bookkeeping.

Andrews v. Reynolds Memorial Hospital, Inc., 499 S.E.2d 846 (W.Va.1997)

Death of a one-day-old baby. Held Awarded $1.75 million in lost earnings based upon life expectancy and educational background of parents.

Arambula v. Wells, Court of Appeal of California, 72 Cal.App.4th 1006, 85 Cal.Rptr.2d 584 (1999)

Defendant was not able to work but nonetheless continued to receive a salary because his brother owned a large part of the company. Held The defendant still owes damages. The collateral source rule allows a plaintiff to recover even if they receive benefits from insurance, etc., because the tortfeasor should not benefit from the foresight of the plaintiff. California and many other jurisdications make no distinction between policy benefits and third-party gifts. Allowing gratuitous donations preserves their value to the giver and may allow payback or further giving by the plaintiff, reducing the amount of extra reimbursement. Monetary damages are many times insufficient anyway, so this allows more reasonable compensation. (Evidence of income from third parties may be admissable for other reasons than damage reduction, though, such as proving ability to work.)

Acuar v. Letourneau, 531 S.E.2d 316 (Va.2000)

Over half of plaintiff's medical bills were written off because of an arrangement with the insurance company. Held The collateral source rule applies. Defendant is due the amount of liability, not the actual amount paid.

Barker v. Kallash, 468 N.E.2d 39 (N.Y.1984)

15-year-old was injured when the pipe bomb he was making exploded. Held Plaintiff is barred from bringing a suit because his injury is the direct result of his seriously violating the law.

Booth v. Mary Carter Paint Co., 202 So.2d 8 (Fla.App. 1967)

Plaintiff made a "Mary Carter agreement" with a defendant in which the defendant stayed in the case and guaranteed the defendant a certain low payment based upon the plaintiff's success against the other defendants.

Montgomery Elevator Co. v. Gordon, 619 P.2d 66 (Colo.1980)

Held Res ipsa loquitur can be used even if there is negligence on the plaintiff's part, allowing comparative negligence to distribute damages.

Fritts v. McKinne, Court of Civil Appeals of Oklahoma, 934 P.2d 371 (1996)

Plaintiff was seriously injured while intoxicated riding in a vehicle being driven either by the plaintiff or by another drunk person. Five days later defendant doctor was giving plaintiff a tracheostomy in preparation for surgery when plaintiff began bleeding and died three days later. Defendant claimed defendant had an anomolous aorta placement, and that plaintiff was comparatively negligent for either driving drunk or riding with someone who was drunk, which caused the injury to begin with. Held Evidence of the plaintiff's unusual anatomy was correctly presented to the jury as a defense to negligence. Held The plaintiff's intoxication five days before the defendant's alleged negligence, as well as the history of the plaintiff's substance abuse, was unrelated to the medical procedures and inappropriate to present to the jury. A physician may not use contributory negligence to avoid liability for later negligence by claiming that the patient's injuries were originally caused by the plaintiff's negligence.

Dalury v. S-K-I, Ltd., Supreme Court of Vermont, 670 A.2d 795 (1995)

A skier was badly hurt when he crashed into a metal pole forming part of a control maze for a ski lift. The skiier had signed an agreement releasing the owners of the resort from all liability from negligence. Held Such an exculpatory clause is invalid, because when a business makes a number of sales as a result of a general invitation to the public to utilize facilities and services, a legitimate public interest arises. The resort is in a better position to keep the property safe for the skier than does the customer. An agreement is invalid if it meets some or all of the Tunkl factors: 1) business is of a type for public regulation, 2) service is of great necessity to the public, 3) open invitation to the public, 4) there is a decisive economic advantage over the customer, 5) part of the superior bargaining power includes a general exculpatory clause, and 6) as a result of the transaction, customer is placed at the control of the seller, subject to the seller's carelessness.

Murphy v. Steeplechase Amusement Co., Court of Appeals of New York, 250 N.Y. 479, 166 N.E. 173 (1929)

Plaintiff rode a ride called the "Flopper" at an amusement park. The ride, a belt on an incline, was meant to move and cause participants to fall down. A sudden jerk caused the plaintiff to fall down, and he fractured a knee cap. Held The amusement park cannot be liable because of a fall from a jerk, because there was an implied assumption of risk because of the very nature of the ride. The ride would not have been fun without that risk. The plaintiff watched others participate and fall before joining them. (A ride can have so many injuries to make it inherently unsafe and too dangerous to be continued without change.)

Freeman v. Hale, 36 Cal.Rptr.2d 418 (App. 1994)

Drunken skiier collided with another skiier. Held Upholding actions prohibiting the conduct would not significantly alter participation in the sport. There was no duty to avoid inadvertent collisions, there was a duty not to increase the risk of such a collision.

Davenport v. Cotton Hope Plantation Horizontal Property Regime, Supreme Court of South Carolina, 333 S.C. 71, 508 S.E.2d 565

Plaintiff had told property management for two months that the lights on a stairwell were not working, but plaintiff continued to use the stairs. Plaintiff fell on the stairs in the dark and hurt himself. Held Plaintiff's [secondary] implied assumption of risk does not completely bar him from recovery as long as he was not more negligent than the defendant. Barring plaintiff from recovery would be incompatible with the comparative negligence standard used in the state. (Express assumption of risk is either written or oral. Primary implied assumption of risk, like at a baseball game, is really just the lack of defendant's legal duty towards plaintiff. Secondary assumption of risk, as here, is when plaintiff knows of the negligence of the defendant and knowingly encounters that risk, either reasonably or unreasonably.) To establish assumption of risk in South Carolina, 1) the plaintiff must have knowledge of the facts, 2) know the situation is dangerous, 3) appreciate the nature and extent of the danger, and 4) voluntarily expose self to danger.

Roberts v. Vaughn, Supreme Court of Michigan, 459 Mich. 282, 587 N.W.2d 249 (1998)

Plaintiff Roberts was a volunteer firefighter. When trying to rescue Vaughn from a car wreck, defendant kicked and permanently injured plaintiff so that he could no longer continue his work. Does the firefighter's rule preclude plaintiff from recovering because of defendant's negligence? Held No; firefighters and policemen are paid by taxpayers and are expected to act in situations usually created by negligent acts of those same taxpayers, and are liberally compensated if injured. This special relationship does not apply to volunteer firefighters.

Garratt v. Dailey, Supreme Court of Washington, 46 Wash.2d 197, 279 P.2d 1091 (1955)

Five-years-old Brian Daily was at Ruth Garratt's home in the back yard. Before Ruth sat down, Brian pulled a chair over and sat in it himself. Realizing she was going to sit down, he got up and tried to put the chair back, but he wasn't quick enough and she fell and broke her hip. The trial court found that Brian had no wilful or unlawful intent in moving the chair and that he didn't intend to injure Ruth. Held Intent to cause bodily harm must be derived from knowledge of the conditions. For Brian to have committed a battery, he must known with substantial certainty when he moved the chair that Ruth would attempt to sit down. Remanded for clarification of knowledge.

Baker v. Shymkiv, 451 N.E.2d 811 (Ohio 1983)

Plaintiff and her husband came home to find a tresspasser building a trench across their driveway. Plaintiff left to call police and came back to find defendant driving away and her husband face-down in a mud puddle. Held The defendant is liable even for unforeseen results of the actions, because the defendant was a tresspasser.

Williams v. Kearbey, 775 P.2d 670 (Kan.App.1989)

Minor defendant shot and injured two people at his junior high school. Held Insanity is not a defense to liability for an intentional tort.

Vermont Mutual Ins. Co. v. Singleton, 446 S.E.2d 417 (S.C.1994)

Defendant put out eyes of attacker in self defense. Held Intentional act exclusion clause does not apply because although the act was intended, the results were not (defendant wanted to defend himself, not injure the attacker).

R.W. v. T.F., 528 N.W.2d 869 (Minn.1995)

Man sexually transmitted genital herpes to a woman. Held The insurance company doesn't have to insure the man because, for public policy reasons, the likelihood of the transmission was equal to an intentional act.

Picard v. Barry Pontiac-Buick, Inc., Supreme Court of Rhode Island, 654 A.2d 690 (1995)

Plaintiff was unhappy about her mechanics work so she took a picture of him working on her car. He turned around, approached her, pointed his finger at her, and questioned her taking a picture of him. He intentionally touched her camera with his finger. She claimed that when she spun around her back was injured. Held Defendant committed assault. Assault is a threatening act which puts plaintiff in reasonable fear of imminent bodily harm, and as defendant's fear was reasonable, there was an assault. Held Defendant committed battery. Battery is an offensive or unconsentual touching upon the body of other, regardless of an intent to injure. Items attached to or identified with the plaintiff's body, such as the camera, also count.

Wishnatsky v. Huey, Court of Appeals of North Dakota, 584 N.W.2d 859 (1998)

Wishnatsky worked as a paralegal for attorney Crary. While Crary was having a conversation with Huey, an assisstant attorney general, Wishnatsky walked into the room. Huey quickly closed the door, pushing Wishnatsky out into the hall. Did Huey commit battery against Wishnatsky? Held No. Battery requires offensive touching that offends a reasonable sense of personal dignity. In this case, the contact of the door with Wishnatsky was incidental in closing the door. Although Huey's conduct was rude, the bodily conduct would not injure a normally sensitive person's sense of personal dignity. Wishnatsky is "unduly sensitive as to his personal dignity."

Lopez v. Winchell's Donut House, Illinois Appellate Court, 126 Ill.App.Sd 46, 466 N.E.2d 1309 (1984)

The plaintiff had worked as a clerk in defendant donut shop for three years. One day employees of the donut shop called her into the store, called her into a room, locked the door, and accused her of stealing. They claimed they had proof in a briefcase, but would not show her. Lopez remained in the room and protested to try to clear her reputation, but got up and left when the employees asked how long she had been shorting the cash. Was Lopez falsely imprisoned? Held No. False imprisonment is the unlawful restraint of an individual's personal liberty or freedom of locomotion. Actual force is not necessary to prove false imprisonment, but the confinement must be against the person's will—the person cannot consent to it. It is not enough that the person simply feel compelled.

Womack v. Eldridge, Supreme Court of Virginia, 215 Va. 338, 210 S.E.2d 145 (1974)

Defendant Eldridge investigated cased for an attorney. On a child molestation case, she pretended to be a reporter and got a picture of Womack with his concent. The attorney then showed the picture to the boys who had been molested, but they said that the man in the picture was not the molester. However, the Commonwealth's Attorney took the picture, and Womack was questioned and compelled to appear at trial. Womack, about whom there is no evidence regarding the molestation, contends that he was severely emotionally distressed, lost sleep, became incoherent, and fell into depression because his picture was connected to the crime and trial. Can one recover from intentional inflection of pure emotional distress without any physical injury? Held Yes. 1) The defendant's conduct must be intentional or reckless (knowing or should have knowing that the conduct would incur emotional distress), 2) the conduct offends generally accepted standards of decency and morality, 3) the conduct caused the distress, and 4) the emotional distress was severe. These are jury questions, and the jury should be allowed to decide for the plaintiff.

McDermott v. Reynolds, Supreme Court of Virginia, 530 S.E.2d 902 (2000)

Defendant Reynolds had an affair with McDermott's wife, and when confronted he flaunted it openly, affecting McDermott emotionally. May one bring a suit of intentional emotional infliction even though the state has by statute done away with suits for alienation of affection? Held No. One must look at the nature of the cause of action pleaded, not just its form. The statute Code § 8.01-220 intended to do away with exactly this type of tort suit.

C.M. v. J.M. v. W.P, 726 A.2d 998 (N.J.Ch. 1999)

Plaintiff J.M. sued because C.M. had hidden her affair with W.P. and that W.P. had fathered the children. Can J.M. sue based upon infliction of emotional distress even though the "Heart Balm Act" bars actions for emotional alienation? Held Yes, because J.M. isn't suing to recover for lack of love and affection, but because of the outrageous behavior of his wife to hide the true father of their children while J.M. continued to raise them.

Nader v. General Motors Corp., Court of Appeals of New York, 25 N.Y.2d 560, 255 N.E.2d 765, 307 N.Y.S.2d 647

Ralph Nader alleged that defendant GM tried to harrass and intimidate him because he was getting ready to publish a book, Unsafe at Any Speed. Is invasion of privacy a different theory of recovery than infliction of emotion disress? Held Fuld: Yes. Invasion is not based upon the right to be left alone, but a copyright-related principle that one has the right to keep secrets from others. The former requires a showing 1) that defendant's conduct was intrusive and 2) that it was "designed to elicit information that would not be available through normal inquiry or observation." Emotional distress requires higher levels of proof. Is asking questions about someone an invasion of privacy? Held No, when people tell information to their friends they risk the information being spread. Is accosting someone by girls with "illicit proposals" or making harrassing phone calls an invasion of privacy? Held No, these actions do not involve gathering private information. Is unauthorized wiretapping and eavesdropping by mechanical and electronic means an invasion of privacy? Held Yes. Can surveillance be an invasion of privacy? Held Yes, if the actions are so "overzealous" as to obtain information that the casual observer would not have. Concur Breitel: It is not possible to know ahead of time which of these theories of recovery refer to privacy issues, and which are interrelated, so judgment should be witheld until trial.

Plaxico v. Michael, 735 So.2d 1036 (Miss. 1999)

Attempting to influence a custody battle over his daughter, defendant Michael took picture of Plaxico, his ex-wife's lesbian partner, nude from the waist up as as she sat in her bedroom. Michael gave a copy to his attorney, who showed them to Michael's ex-wife during discovery. Held There was no invasion of privacy. Even though Plaxico might have had a reasonable expectation of privacy in her bedroom, Michael's actions under the circumstances were justifiable in trying to get his daughter back. Held Nothing justified taking pictures of someone nude in their bedroom, developing those pictures using a third party, and then giving the pictures to one's attorney.

Pearson v. Dodd

Employees of Senator Dodd made copies of private papers and gave them to newspaper columnists. Held Those who receive private information are not liable for how they are obtained, because the law of intrusion is so young and the temptation to "listen" to the parties who obtained the information is so great.

Desnick v. American Broadcasting Companies, Inc., United States Court of Appeals, Seventh Circuit, 44 F.3d 1345 (1995)

PrimeTime Live told Desnick Eye Center that it wanted to do a special program that would be "fair and balanced" and would not include "undercover" surveillance. ABC then sent people with hidden cameras who posed as patients. They later aired a story about how Desnick was operating for cateracts when the operations were not needed. Did ABC tresspass when they fraudulently entered posing as patients? Held Posner: No. "[C]onsent 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." Here there was no invasion of any of the interests the tort of trespass seeks to protect. The offices were open to anyone who expressed a desire for opthalmic services. Was there invasion of privacy? Held No. The information recorded was only between the public professionals and the undercover reporters themselves, so no private information was gained. Were other interviews gained through fraud? Held No; No harm flowed from the alleged fraud, and Illinois has an unusual law requiring there to be a scheme of fraud, which there wasn't here.

Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971)

Reporters entered plaintiff Dietemann's home, pretending to ask advice, and secretly filmed and recorded him as he waved a wand over one of them and advised her that she had a lump in her breast because of eating rancid butter over 11 years before. Held The initial entry was not actionable, because hosts take risks, but the recording was improper. One "does hot and should not be required to take the risk that what is heard and seen will be transmitted by photograph or recording, or in our modern world, in full living color and hifi to the public at large or to any segment of it that the visitor may select. A different rule could have a most pernicious effect upon the dignity of man and it would surely lead to guarded conversations and conduct where candor is most valued, e.g., in the case of doctors and lawyers."

Ribas v. Clark, 696 P.2d 637 (Cal. 1985)

Wife allowed defendant to listen in on a telephone conversation between her and her estranged husband. California Penal Code § 631(a) allows punishment for one who listens in on a message while being transmitted, without the permission of all parties. Held The complaint can go forward, because secret monitoring goes beyond repeating information and denies the speaker of "the right to control the nature and extent of the firsthand dissemination of his statement."

Hustler Magazine, Inc. v. Falwell, Supreme Court of the United States, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41. (1988)

Hustler Magazine published an advertisement parody that featured Jerry Falwell. The contained a fake interview in which Falwell referred to sexual encounters with his mother when he was drunk. The ad in small print stated, ""ad parody—not to be taken seriously." New York law requires for libel that the defendant have actual malice—either knowing or not caring that the statement is false. Can Falwell recover for libel? Held Rehnquist: No, the parody was not reasonably believable. Can Falwell recover for intentional infliction of emotional harm? Held No. The First Amendment values free discussion of ideas against public figures, analogous to political cartoons whose caricatures are one-sided and distort features. (See New York Times.) Allowing public officials to sue for emotional harm because of free speech will stifle debate and dilute the First Amendment. Concur White: I concur with the result, but the New York Times case has nothing to do with this because Hustler didn't even assert that the parody was fact.

Hart v. Geysel, Supreme Court of Washington, 159 Wash. 632, 294 P. 570 (1930)

Cartright died after receiving a blow in a prize fight which was illegal in Washington. Can plaintiff sue for an injury from an action which the injured consented? Held No. If one expressly consents to and engages in combat for business or sport, even if illegal, that person may not collect. Otherwise, the loser would benefit from the illegal activity. A majority think that if two choose fight in anger, each is liable for injury caused on the other. A minority think that such an act is unlawful and neither can collect unless it is shown that there was excessive force or malicious intent. Neither apply to these facts, as there was no anger.

Courvoisier v. Raymond, Supreme Court of Colorado, 23 Colo. 113, 47 P. 284 (1896)

Some "rowdy men" entered defendant Courvoisier's building after midnight, and he made them get out at gunpoint. They gathered on the street throwing things. Plaintiff policeman Raymond approached and defendant shot him. Defendant claimed he thought the plaintiff was one of the group and that his life was in danger. Is self defense a valid defense for intentional harm? Held Yes, if 1) the defendant actually believed in the need for self defense, and 2) this belief was reasonable.

Katko v. Briney, Supreme Court of Iowa, 183 N.W.2d 657 (1971)

A house had been abandoned for 10 years, and it had been broken into several times, with bottles and jars stolen. Plaintiff, while hunting, entered the house to again look for bottles and jars, and when he entered a room a spring gun in the room went off and permanently damaged his leg, causing $3,600 worth of damage. Is preparing a spring gun in an abandoned house for the protection of property a justifiable defense? Held No. When protecting property, one may use reasonable force but not force that will take human life or inflict great bodily harm, even if the injured party is a trespassor. Spring guns are only allowed to prevent felonies of violence or where human life is in danger. If the jury wants to award punitive damages, that's up to them—the defendant's attorney should have raised that issue in court. Dissent The jury should have been allowed to take into account whether the defendant actually intended harm. Punitive damages should not have been allowed.

Ploof v. Putnam, 71 A. 188 (Vt.1908)

In a storm the plaintiff moored his boat at a dock on defendant's private island. Defendant's servant, protecting the dock, cut loose the boat which then suffered damage by the storm. The plaintiff and his family was also injured. Does defendant have liability for simply protecting his property? Held Yes; the plaintiff had a privilege out of necessity to use the defendant's property.

Vincent v. Lake Erie Transportation Co., Supreme Court of Minnesota, 109 Minn. 456, 124 N.W. 221 (1910)

A steamship was moored against a dock when a large storm arrived, and the steamship remained moored all night because of wind and waves, using stronger lines to hold it there when the first ones broke. Is the steamship owner liable for damage to the dock, even though he continued mooring there during the storm out of necessity? Held Yes. The steamship's actions out of necessity remove moral reproach, but that doesn't remove their obligations to pay the damages. (There would have been no liability if the steamship had not added new stronger cables when the first ones broke.) Dissent If the boat was contractually legally moored to begin with, there shouldn't be any liability just because it remained there, adding stronger cables when the first ones broke. After all, the steamship owner might have used the stronger cables to begin with. This was just an unfortunate accident, and the defendand should not be liable. Dock owners should expect periodic damages from use by boats.

Surocco v. Geary, 3 Cal. 69 (1853)

Defendant, alcade of San Francisco, ordered plaintiff's house destroyed to stop the spread of fire. The house would have been destroyed anyway, but the plaintiff sued for the chattels that he could have removed before the fire. Can defendant recover for injury to property out of public necessity? Held No, individual property rights give way to public necessity. This is to be distinguished from the Constitutional taking of land, which can be compensated.

Shulman v. Group W Productions, Inc., et al., Supreme Court of California, 1998, 18 Cal.4th 200, 955 P.2d 469, 74 Cal.Rptr.2d 843

A woman and her son were involved in an automobile accident, and the car rolled down a hill into a ditch. Mercy Air helicopter rescue flew in to rescue them. A reporter rode with them and had placed a microphone on the nurse. The microphone picked up conversations between the nurse and the woman trapped in the automobile, as well as when they were in the helicopter flying back to the hospital with her son. The woman later saw herself being broadcast on television, and protested that she was being shown when she wasn't her best and when she wasn't in the best mind, saying things she normally wouldn't. Should the jury be allowed to decide if there is intrusion? Held Werdegar: Yes. The action for intrusion is when there is 1) an intrusion, physical or otherwise, into the solitude or seclusion of another's private place, conversation, or other matter in which the person had a reasonable expectation of privacy; and 2) the manner of intrusion would be highly offensive to a reasonable person. Yes. Here, the jury could find that there was an intrusion inside the helicopter (reporters are not usually allowed in emergency vehicles), or by placing a microphone on the nurse to hear conversations not normally picked up by onlookers. People being rescued are not in a state of mind to determine if they are being recorded or if there is a reporter in the rescue vehicle with them. A jury could also determine that such an intrusion is unreasonable. Held Reporters have no special Constitutional exemption from intrusion. Dissent Chin: There might have been a technical intrusion, but it was not unreasonable, as this was a newsworthy story and there was no surreptitious interception of information, such as wiretapping.

Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir.1999)

Two ABC employees misrepresented their resumes and became employees of Food Lion, a grocery store, and filmed unsanitary and illegal handling of food. Did the employees commit trespass? Held No, because even though they might have misrepresented their resumes, the store still hired them. Did the employees breach their duty of loyalty? Held Yes; as employees of ABC they had conflicting interests. Can Food Lion recover damages because of the information? Held No, the First Amendment denies Food Lion from recovering without meeting the First Amendment standards of defamation.

Romaine v. Kallinger, Supreme Court of New Jersey, 1988, 109 N.J. 282, 537 A.2d 284

Kallinger wrote a non-fiction book, The Shoemaker, about a murderer. On passage describes a kind-hearted fight-for-their-rights Maria Fasching who visisted twin sisters Randi and Retta Romaine. One purpose of the visit was to get "news from Randi about a junkie they both knew who was doing time in prison." Randi, a drug counsellor in real life, sued for defamation. Is this an accusation of criminal activity and therefore per se defamation? Held No. Defamation is a statement that is false and injures someone's reputation. To be tried, the court must determine that a statement is reasonably susceptible to a defamatory meaning ("fair and natural meaning which will be given it by reasonable persons of ordinary intelligence"). If there is only one reasonable meaning, the statement is either defamatory or not defamatory as a matter of law. Certain kinds of defamation, such as falst attribution of criminality, are defamatory as a matter of law. Here, however, the only reasonable meaning is that Randi knew a junkie; her and Maria's interest in helping the "downtrodden" was reason enough for their knowledge without inferring that Randi partook in any such sort of criminality.

Staples v. Bangor Hydro-Electric Co., 629 A.2d 601 (Me.1993)

One employee told a supervisor a suspicion that another employee had sabotaged a company computer. Held This is sufficient publication of defamation, even though some believe that employees talking to one another is simply the corporation talking to itself, and thus no third party is involved.

Kunst v. New York World Telegram Corp., 280 N.Y.S.2d 798 (App.Div. 1967)

A lead paragraph and a photo caption implied defamatory ideas, and the negation of the "sting" appeared in a hard-to-find place in the article. Held This represents defamation, as the determination examines a publication, no the way a lawyer would, but in the way it would appear an ordinary member of the public to whom it was directed.

West v. Thomson Newspapers, 872 P.2d 999 (Utah 1994)

The defendant asserted that the small town mayor was "manipulating" the press to keep it from reporting negative things. Held This is not necessarily defamation. Dictionary meanings are not dispositive. In the context, this coudl mean merely that the mayor was trying to use his power to gain favorable press, though not being unethical about it.

Chapin v. Knight-Ridder, Inc., 993 F.2d 1087 (4th Cir.1993)

A question regarding the cost of overseas gift packages to soldiers versus donations was, "Who will benefit more from the project—GIs or [plaintiff]?" Held This is not defamation. Although some questions could be defamatory if they can only be understood as an assertion of false fact, mere questions are not defamatory even if embarrassing or unpleasant in their subjects.

Matherson v. Marchello, New York Appellate Division, Second Department, 1984, 100 App.Div.2d 233, 473 N.Y.S.2d 998

Members of the band "The Good Rats" were being interviewed on a radio station, and they discussed not being able to play at Matherson's establishment, OBI. They indicated that they had a lawsuit with Matherson, and claimed that it was because one of them were "fool[ing] around with his wife," and that he really got angry "when somebody started messing around with his boyfriend." Does the reference to the wife constitute defamation? Held It is for the jury to decide, because it cannot be said as a matter of law that the statement was not defamatory. One interpretation is that one of the members were having an affair with the wife, which would be defamatation. Was the statement regarding a boyfriend defamation, even though many people take pride on homosexual status? Held Yes, because public opinion, rightly or wrongly, in 1984 (according to surveys) still attaches a negative connotation to homosexuality making the statement harmful to the plaintiff's reputation.

Mitchell v. Globe International Publishing, Inc., 773 F.Supp. 1235 (W.D.Ark.1991)

The Sun published a story about a 101-year-old newspaper carrier who had became pregnatn from a 96-year-old newsstand operator in Arkansas. The newsstand operator sued for defamation. Was the speech defamation, even though the facts were unbelievable or even impossible? Held The speech could be defamation, because even though the facts might be impossible, the allegation of sexual promiscuity could be believed. The case should therefore go to the jury.

Matherson v. Marchello, New York Appellate Division, Second Department, 1984, 100 App.Div.2d 233, 473 N.Y.S.2d 998

Held Slander is written defamation and usually requires evidence of special damages, while libel is written (including movies and broadcasts) and neither special or general damages need to be proved because this sort of defamation has a potential of more far-reaching consequences.

Liberman v. Gelstein, Court of Appeals of New York, 1992, 80 N.Y.2d 429, 605 N.E.2d 344, 590 N.Y.S.2d 857

The plaintiff said that Liberman bribing a policeman and that he threatened to kill plaintiff and plaintiff's family. Was the allegation of bribing a policeman actionable? Held Yes. Slander requires evidence of special damages unless it is "slander per-se" by being in one of four categories: 1) charging plaintiff with a serious crime, 2) saying things to injure plaintiff in a trade or business, 3) saying the plaintiff has a "loathsome disease", and 4) claiming that defendant is "imputing unchastity to a woman" [now "serious sexual misconduct"]. Only serious crimes count for the first category, but in this case bribing a police officer is a serious crime. Is the allegation of threatening to kill plaintiff and family slander per-se? Held No. Even if this was not "construed by the listeners as rhetorical hyperbole," it would only be harrassment. Are the alleged threats slander per-se because they are injurous to plaintiff's trade? Held No, to fit in this category the statements must be specific to the trade or concerning things related to the trade.

Rouch v. Enquirer & News of Battle Creek, 487 N.W.2d 205 (Mich.1992), cert, denied 507 U.S. 967 (1993)

Newspaper claimed plaintiff had been "arrested and charged" with sexual assault of a babysitter and identified by his children, but in reality he had never been arraigned and the children identifying him were those of his ex-wife. Held the truth was close enough to the statements to constitute a defense, because the literal statement was only minorly inaccurate.

Liberman v. Gelstein, Court of Appeals of New York, 1992, 80 N.Y.2d 429, 605 N.E.2d 344, 590 N.Y.S.2d 857

Was defendant privileged in the defamation? Held Yes. The "common interest" qualitifed privilege allows for defamatory speech when communicated to another on a subject in which they have a common interest, as long as there is no malice. Was there malice? Held No. Under the constitutional definition of absolute malice, the defendant would have needed to be aware of the high probability of falsity of the statement, or have reckless disregard of the veracity of the statement—here, the defendant didn't know whether the bribery statement was true or not, but wanted to find out. The common law definition of malice is to attempt to hurt the plaintiff, but here the defendant merely communicated the charge in order to determine its truthfulness in the realm protected by common interest.

Medico v. Time, Inc., United States Court of Appeals, Third Circuit, 1981, 643 F.2d 134. Certiorari denied, 454 U.S. 836 (1981)

Time published an article alleging then-Congressman Flood was connected to mafia boss Bufalino through Medico Industries, basing its facts on an unpublished FBI report. Does the fair report privilege apply? Held Yes; the fair report privilege allows publication of officiel proceedings or reports that is fair and accurate. There are three reasonings for this privilege: agency (reporter acts as an agent for those who had a right to attend; this doesn't apply here), public supervision, informational (affairs sufficiently of interest to the public), the latter two of which apply. Is the fair report privilege inapplicable because the reporting wasn't fair and accurate? Held No, the publication seems a fair and accurate representation of the contents of the report. Is the fair report privilege inapplicable because the sole purpose of publication was to cause harm to the plaintiff? Held. Medico does not allege this.

Koniak v. Heritage Newspapers, Inc., 499 N.W.2d 346 (Mich.App.1993)

Defendant reported that plaintiff had been charged with assaulting someone between 30 and 55 times, but in reality he had only been convicted of the crime eight times. Held The report was substantially true to warrant the fair report privilege, as greater than a certain number the actual number of assaults would make little difference to the public.

Burnett v. National Enquirer, Inc., Court of Appeal of California, 1983, 114 Cal.App.3d 991, 193 Cal.Rptr. 206, Appeal dismissed for want of jurisdiction, 465 U.S. 1014 (1984)

The National Enquirer published false information claiming that Carol Burnett had a loud argument at a restaurent and spilled drinks on other patrons. Burnett's attorney asked for a retraction according to Cal.Civ.Code 48(a), which allows a "newspaper" to avoid general damages in libel (incurring only special damages) by publishing a retraction within 20 days. The National Enquirer did so, but Burnett sued and a jury awarded large punitive damages. Does the California statute apply to and protect the National Enquirer? Held No, because the National Enquirer doesn't publish daily like normal newspapers, and its one to three week lead time should allow it to better ascertain the veracity of stories before they are published.

Jackson v. Longcope, 476 N.E.2d 617 (Mass. 1985)

A murderer of multiple convictions sued for libel that claimed he had raped and strangled all his victims. Held There can be no damage award because the plaintiff's reputation was already low.

New York Times Co. v. Sullivan, Supreme Court of the United States, 1964, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686

A full page ad appeared in the New York Times referring to a black student protest in which students sang "My Country, 'Tis of Thee", police ringed the campus of Alabama State College, and padlocked the dining hall to "starve them into submission". They claimed that "Southern violators" had bombed the home of Dr. Martin Luther King, Jr., that "they" had assaulted him and that "they" had arrested him seven times. In reality, the students sang "The Star Spangled Banner," the police were deployed but did not "ring" the campus, the dining hall was not padlocked, and MLK Jr. had been arrested only four times. Plaintiff, one of three elected commissioners of Montgomery, claimed that "they" referred to the police department and therefore included him. Plaintiff sued for libel. Alabama law said that publications are "libelous per se" if they tend to injure a person's reputation or bring that person into public contempt, and that a public official is assumed to have been affected if they affect the agency of which he/she is in charge. One "per se" is established, defendant has the burden of proof to show that all statements are true. Either actual malice is only required in Alabama to for punitive damages. The jury awarded the plaintiff $500,000 without specifying general or punitive damages. Are the First and Fourteenth Amendments irrelevant because a State libel law is in effect, rather than a federal one? Held Brennan: No. The First Amendment secures freedom of speech, and debate and criticism of public officials has always been valued. "We hold today that the Constitution delimits a State's power to award damages for libel in actions brought by public officials against critics of their official conduct." Is the speech any less protected because it contained falsity? Held No, erroneous statements are inevitable in free speech, and punishing every erroneous statement would deter criticism in general. Is speech directed at officials more susceptible to repression? Held No. Held For a public official to recover damages from defamation it must be proved that there was actual malice. As this jury verdict did not indicate if there was actual or implied malice, the case must be reversed and remanded. Held There is no evidence the defendants, either those whose names appeared or the Times, were aware of any erroneous statements. Held There is no evidence the speech was directed towards plaintiff; imputing a statement on an agency to a particular individual would overly broaden the definition of libel. Concur Black, Douglas: The First and Fourteenth Amendments not only "delimit", they completely prohibit public officials from claiming damages against criticism. The defendants had a complete right to say whatever they wanted about the public officials. Malice is an ambiguous concept, anyway, and even "actual malice" shouldn't enter the equation. Concur Goldburg, Douglas: Forget malice—the real issue is whether liability can be imposed on speech everyone agrees is constitutionally protected, just because some jury wants to impose liability. Criticism of public officials should always be allowed. (This doesn't mean private defamation should be allowed.)

St. Amant v. Thompson, 390 U.S. 727 (1968)

Defendant repeated false charges against plaintiff without checking their veracity. Held The "reckless disregard" of actual malice has not been shown without evidence that the defendant entertained serious doubts about the truth of the statements.

Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991)

Plaintiff alleged that Janet Malcolm had written an article attributing quotes to plaintiff that were incorrect and damaging to his reputation. Held Statements in quotation marks that the defendant knows to be incorrect may be used to show malice but are not dispositive, as readers usually understand that the quoted words of an interview are not verbatim—even transcripts of recorded interviews are seldom verbatim.

Westmoreland v. CBS, Inc., 601 F.Supp. 66 (S.D.N.Y.1984)

Held Unfairness or one-sidedness in an article is not dispositive of actual malice.

Schaefer v. Lynch, 406 So.2d 185 (La.1981)

Defendant reporter wrote a truthful article that implied the director of the state retirement system had used his office to influence commercial lenders to his personal benefit. Held All truthful statement are constitutionally protected. [Other courts have let the jury decide.]

Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971)

A broadcaster reported that a magazine distributor sold obscene material and was arrested in a police raid. Held Brennan, Burger, Blackmun (plurality): The Times standard should apply to all discussion involving matters of public concern, not just if the referrant is famous.

Gertz v. Robert Welch, Inc., Supreme Court of the United States, 1974, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789

Plaintiff was an attorney who represented a youth killed by a Chicago policeman, but played no part in the proceedings in which the policeman was convicted of second-degree murder. The American Opinion, a publication for the views of the John Birch Society, alleged a nationwide conspiracy to discredit local police, named the plaintiff as a "major architect" of the plot, and falsely asserted that he had a long police record and was a "Leninist" and a "Communist-fronter". The Jury assigned damages, but the judge, looking at Rosenbloom, gave a judgment for the defendant notwithstanding the verdict. Held Powell: The Rosenbloom formulation is unworkable, because it has the court making judgments on the worth of the speech rather than the parties involved. It would keep a private individual from recovering simply because the subject matter was one of public concern. Private persons do not have as great an access to the medi to rebut false statements. Held States may make their own rules regarding liability of a publisher or broadcaster to a private individual, as long as they do not impose liability without fault. Held States cannot permit recovery of presumed or punitive damages in the absence of malice. Held The plaintiff is not a public figure, as he holds no office and is only involved because he worked on a particular case—otherwise, all lawyers would automatically be public figures. One may become a public figure by achieving "pervasive fame or notoriety", becoming a public figure in all contexts; or (more commonly) by injecting oneself or being drawn into a particular public controversy, becoming a public figure in that limited context. Concur Blackmun: Although I joined in the Rosenbloom plurality opinion, 1) the holding here removes incentives for self-censorship in the press by disallowing presumed and punative damages without absolute malice, and 2) the majority needs my vote to concur, and I want to help the court settle down on a decision in this subject. Dissent Burger: There is no need for a new doctrine. The plaintiff wasn't a public figure, so he should get the damages the jury originally assigned. Dissent Douglas: This new rule allows a state to impose a "reasonable person" standard, and with the erosion of First Amendment protection a reasonable person may be one that doesn't speak. The lower court's decision should be reinstanted to protect First Amendment rights. Dissent Brennan: It's usually not true that a public figure has more control of the media to issue a rebuttal, because rebuttals are usually not hot news. Allowing a jury to decide whether subject matter is of public concern is less susceptible to holdings against unpopular ideas than is the majority's allowance for a reasonable care standard. Dissent White: The majority raises the bar to recovery for defamation by removing libel on its face and slander per se, shifting the rist of hurtful speech to the plaintiff. There's no evidence that libel suits from private citizens are causing the press to limit itself—the press is a big industry concentrated in few hands, and they can handle paying damages now and then.

Chapadeau v. Utica Observer-Dispatch, Inc., 341 N.E.2d 569 (N.Y.1975)

An "aberration" from the standards set by other states, New York allows private individuals recovery for speech relating to a public concern, if the party first "establish, by a preponderance of the evidence, that the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties."

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986)

Held O'Conner: In speech of public concern against a private individual, the plaintiff has the burden of proving falsity.

Time Inc. v. Firestone, 424 U.S. 448 (1976)

Gertz allows a private individual plaintiff to recover for "personal humiliation, and mental anguish and suffering" in the absence of reputational harm.

Rosenblatt v. Baer, 383 U.S. 75 (1966)

Commissioners hired Baer to supervise a public recreational facility owned by the county. He sued a newspaper that attacked the management there. Held Brennan: Baer could be a public official under the Times standard. A "public official" is "at the very least ... those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of government affairs." It also applies to the person in a position for which the public has a special interest in the "qualifications and performance" of those who hold the office, other than for all government employees in general. This doesn't apply to a nightwatchman accused of stealing state secrets, because the public interest must arise separate from the controversy.

Monitor Patriot Co. v. Roy, 40 U.S. 265 (1971)

Candidate are public officials.

Kassel v. Gannett Co., Inc., 875 F.2d 935 (1st Cir. 1989)

The plaintiff, a staff psychologist for the Veterans Administration, sued a newspaper for mistakenly attributing to him a statement about the Vietnam War. Held The plaintiff is not a public official. The "tripodal base" test for public officals is: 1) whether the position gives special independent public interest, 2) the extent to which the plaintiff has access to media to counteract the statements, and 3) the degree to which the plaintiff has assumed the risk of exposure to criticism.

Rotkiewicz v. Sadowsky, 730 N.E.2d 282 (Mass.2000)

Police are public officials for defamation purposes. [Firefighters have not equally been so held.]

Wells v. Liddy, United States Court of Appeals, Fourth Circuit, 1999, 186 F.3d 505

Wells was a secretary at the DNC during the Watergate breakin, and one of the burglars was found with a key to her desk. Later a rumor arose that she may have been connected to securing prostitutes for visiting dignitaries. Liddy, at the time counsel to the Committee to Reelect the President (Nixon), mentioned this rumor several times in public. Held Gertz recognizes three categories of public figures: 1) involuntary public figures, 2) all-purpose public figures, and 3) limited-purpose public figures. Was Wells a limited-purpose public figure? Held No. For purposes of defamataion, a plaintiff is a limited-purpose public figure if "(1) the plaintiff has access to channels of effective communication; (2) the plaintiff voluntarily assumed a role of special prominence in the public controversy; (3) the plaintiff sought to influence the resolution or outcome of the controversy; (4) the controversy existed prior to the publication of the defamatory statement; and (5) the plaintiff retained public-figure status at the time of the alleged defamation." Wells did not (2) voluntarily assume a role in the controversy. Her court appearances were required by law, and her few letters to the editor or public appearances were only to clear her name, not to speak on the overall controversy of Watergate. Was Wells an involantary public figure? No People are not involuntary public figures solely because they fall upon bad luck. An involuntary public figure must have 1) pursued a course of conduct that was reasonably foreseeable to gain public interest, 2) a public controversy must have arisen, 3) the public figure must be recognized as a central figure, 4) the controversy existed prior to the publication of the material, and 5) the plaintiff retained public figur status at the time of publication. Wells was not a central figure in media reports on Watergate. Held Wells is therefore a private figure, and need not prove actual malice required by the Times standard.

Milkovich v. Lorain Journal Co., Supreme Court of the United States, 1990, 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1

Milkovich was a high school coach accused of starting a brawl at an athletic event and placed on probation, but at a hearing Milkovich conviced a judge to restrain the probation. A newspaper columnist at the event but not at the hearing accused Milkovich of committing perjury at the hearing. Is the accusation protected because it is an opinion rather than a statement of fact? Held Rehnquist: No, this was a statement of fact, even though couched in terms of an opinion, because it implied the speaker had knowledge of some information that substantiated the assertion—this was "not the sort of loose, figurative or hyperbolic language" that would constitute an opinion. Held As in Hepps, a statement must be falsifiable before it can bring about liability. Held As in Falwell, statements that cannot reasonably be interpreted as facts are protected. Held Cases like Gertz say that even opinions about facts, if they are about public figures, must be shown to have been made with knowledge of their falcity or with reckless regard to the truth. Dissent Brennan, Marshall: The majority opinion have the reasoning right, and the holding should be that the statements were conjectures and speculation about facts, not assertions of those facts.

Flamm v. American Association of University Women, United States Court of Appeals, Second Circuit, 2000, 201 F.3d 144

The American Association of University Women and the AAUW Legal Advocacy Fund (collectively "AAUW") put together and distributed nationally a booklet with the names and addresses of attorneys willing to consult with women in higher education regarding gender discrimination actions. Out of ~275 entries, only one contained a negative statement: Note: At least one plaintiff has described Flamm as an "ambulance chaser" with interest only in "slam dunk cases." Flamm sued for libel per se. Held The speech is not protected under the First Amendment. The speech relates to an item of "common interest", so it is held to the standard that it must be a falsifiable fact, and the plaintiff has the burden of proving its falsity. "Ambulance chaser" can reasonably be construed to mean unethical solicitation, and that is falsifiable. Held The speech is not protected under the New York constitution, which requires analysis of the overall circumstances and particularly three factors: 1) precise, readily-understood meaning of the language, 2) falsifiability of the speech, and 3) whether the broader social context and circumstances signal opinion instead of fact. "Ambulance chaser" is specific and implies improper solicitation, and together with the "slam dunk" language accuses Flamm of the falsifiable fact of improperly soliciting easy cases.

Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d 724 (1st Cir.), cert, denied 504 U.S. 974 (1992)

A critic comparing two stage versions of "Phantom of the Opera" said that they don't resemble each other and that one was "a rip-off, a fraud, a scandal, a snake-oil job," even though the advertiser stated that there was no connection between the shows. Held The speech is not actionable, because overall it is clear that the author was expressing a point of view. Unlike Milkovich, the critic is using facts available to the audience, not claiming to have inside knowledge.

Greenmoss, D & B

As noted in Flamm, a credit reporting agency erroneously reported to five subscribers that Greenmoss Builders, Inc. had applied for bankruptcy. Held plurality: The speech was not protected, because it was not a matter of "public interest," especially as it had only been distributed to five people.

Johnson v. Johnson, 654 A.2d 1212 (R.I. 1995)

Husband in a restaurant called his ex-wife a "whore." Held Even though the statement was true, the award was upheld, as the state didn't allow a defense of truth if the statement was published in ill will. This was not a matter of public concern nor about a public figure.

Khawar v. Globe International, Inc., Supreme Court of California, 1998, 19 Cal.4th 254, 965 P.2d 696, 79 Cal.Rptr.2d 178, Certiorari denied, 526 U.S. 1114 (1999)

Khawar, a journalist, had been photographed with Senator Robert F. Kennedy before Kennedey was shot and killed. Although Sirhan Sirhan was convicted of his murder, acting alone, Robert Morrow wrote a book entitled The Senator Must Die: The Murder of Robert Kennedy claiming that Ali Ahmand, a Pakistani acting on behalf of the Iranian Shah's secret police (SAVAK), killed Robert Kennedy. The Morrow book contained pictures of people surrounding Kennedy, claiming one was Ahmand. The Globe published an article with the headline, Former CIA Agent Claims: IRANIANS KILLED BOBBY KENNEDY FOR THE MAFIA, and agreed that the article was not a book review. A picture from the Globe was reproduced, with an arrow pointing to Khawar. The plaintiff and his father, Ali Ahmad, sued for defamation. Held Khawar was a private figure. Held California does not have a neutral reportage privilege for libel regarding private figures. Held The plaintiff can be awarded damages for actual injury to reputation, as a private individual need only prove malice. Held The plaintiff can be awarded punitive and presumed damages, which requires proof of actual malice. The Globe showed actual malice because there was reason to believe the book was not accurate, and with those serious doubts they made no efforts to verify them, thereby showing reckless disregard to whether the informtaion was accurate.

Edwards v. National Audubon Society, Inc. (2d Cir. 1977) 556 F.2d 113, cert. den. 434 U.S. 1002

Held The First Amendment upholds republication of defamatory statement, if they are "accurate and disinterested" publication of "serious charges" against a "public figure" made by a "responsible, prominent organization."

Haynes v. Alfred A. Knopf, Inc., United States Court of Appeals, Seventh Circuit, 1993, 8 F.3d 1222

Nicholas Lemman wrote a book about the social, political, and economic effects of poor blacks from the rural South to the cities of the North between 1940 and 1970. It followed Ruby Lee Daniels, who told about her former husband Luther's habit of coming home drunk and entering her room with a bottle in one hand and a cigarette in the other, wanting to make love to her. Luther sued for invasion of privacy, as he had since reformed and was living a new life with a new wife. Held Posner: There was no tort of invasion of the right to privacy, because there was no specific sexual acts recounted, and because there was a legitimate public interest. Invasion of privacy requires that the information 1) be deeply offensive to a reasonable person, and 2) lack a legitimate public interest. The intimate details revealed, although shameful, were not shocking details such as sexual acts. The details had a direct public interest of illustrating a sharecropper's morality transplanted in another region.

Ross v. Midwest Communications, Inc., 870 F.2d 271 (5th Cir.)

A program claiming the innocence of an accused rapist displayed pictures of a victim's house and identified her by name. Held It was not an invasion of privacy to include the victim's name because it had a legitimate purpose: in promoting the innocence of the accused, an actual name lends credibility to the story.

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)

Cox published the name of a 17-year-old girl who had died after being raped. Georgia law made it a misdemeanor to publish the name of a female who might have been raped. Held If information is a matter of public record and open to public inspection, a state may not impose sanctions on the accurate reporting of that information, because the public looks to the media for a summary of such public information. To require that the information not be offensive to the reasonable person would invite self-censorship of the media.

The Florida Star v. B.J.F., Supreme Court of the United States, 1989, 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443

The Florida Star newspaper published the name of a rape victim in a news story, after one of its reporters found the name in a summary of the case in police files placed in the public domain. Later the woman received threatening phone calls. A Florida statute section 794.03 made it illegal to publish the name of sexual offense victims using a method of mass communication. Held Marshall: As presented in Daily Mail, it is unconstitutional to punish an accurate newspaper account of information lawfully obtained. A requirement of "lawfullly obtained" allows the government to protect some information, as it accidentally failed to do here. Punishing the press for such inadvertent revelations would not make such accidents less likely. Putting such a burden on the press would encourage "timidity and self-censorship." Held The Florida statute does not promote the privacy interests it purports to uphold. It doesn't look at how the information was obtained. The statute blanketly labels any identification as illegal, not considering the specific facts of each case, such as whether the information was already widely known. It only applies to an "instrument of mass communication," ignoring other ways that private information could be published and do just as much harm. Dicta This holding only says that liability may only be imposed on truthful reporting of lawfully obtained information, if at all, when there are narrow state interests of the highest order. This holding does not say that any truthful publication is automatically constitutionally protected, or that the state may never protect privacy interest from the press. Held Scalia: This statute does not protect a state interest "of the highest order," in part because its wording inconsistently imposes a restriction on the press, but not to people disseminating information personally. Dissent White, Rehnquist, O'Conner: Cox Broadcasting prevented the press from being the first in line to be punished for publication, but here the state tried as best it could to prevent the information from being spread. Daily Mail discussed a perpetrator of a crime—this case involves a victim, who has different privacy interests. When the government makes a mistake in giving out information, it's not too much to ask the press not to publish the information. The arguments against strict liability are not valid here, because the jury found the Florida Star reckless. Mass communication causes more harm to victims than does neighborhood gossip. This result leans towards doing away with all publication of private information torts, because there were no public interests in the information published.

Uranga v. Federated Publications, Inc., 2000 WL 1056095 (Idaho App. 2000)

A handwritten note from 1955 by someone arrested for having sex with boys contained allegations of Uranga. The note was found in a court file and published in 2000 as a "cautionary tale." Held There was no invasion of privacy; the passage of time does not remove the information from the public domain.

Humphers v. First Interstate Bank of Oregon, Supreme Court of Oregon, 1985, 298 Or. 706, 696 P.2d 527

Ramona in 1959 gave birth to Dawn, and when she put her up for adoption the only other people who knew were her knew were her new husband and her doctor, Dr. Mackey. Ramona went looking for her birth mother, so Dr. Mackey gave Dawn a letter falsely stating Ramona had taken DES while pregnant, in response to which the hospital released records. Ramona experienced emotional distress, worry, sleeplessness, humiliation, embarrassment, etc. Held Dr. Mackey's estate cannot be liable for invasion of privacy, because a normal person (i.e. not a doctor) who revealed such information would not be liable. Held Dr. Mackey is liable for breach of confidentiality in a confidential relationship. The duty breached must be nonconsensual and arise outside the tort, and must not be from custom. This means defenses would also lie outside the tort. In this caes, there are several statutes imposing a duty of confidentiality on physician.

Cantrell v. Forest City Publishing Co., Supreme Court of the United States, 1974, 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419

Margaret Cantrell's husband was killed when a bridge collapsed, Eszterhas wrote an award-winning news feature. Five months later, he and photographer Conway visited the home with Mrs. Cantrell away, and took around 50 photos. A few months later a story appeared about the family illustrating the effect of the bridge collapse on families in that area. The story had inaccuracies as to the poverty conditions of the family, and made statements about Mrs. Cantrell's facial expressions and statements even though she had not been present. Is the publishing company liable for portraying plaintiffs in a false light, causing them to suffer mental disress and humiliation? Held Stewart: Yes. The judge instructed the jury to find liability if the the statements were made with knowledge of their falsity or in reckless disregard of the truth, as in New York Times Co. v. Sullivan. Eszterhas must have known the story was untrue, and Forest City Publishing is liable as employer through respondeat superior. Dissent Douglas: The press do not scientifically analyze their stories. For matters of public import the press must be free from liability and not be frightened into censorship.

Dempsey v. National Enquirer, 702 F.Supp. 934 (D.Me.1989)

Dempsey fell out of a plane but clung to a boarding ladder while the co-pilot made an emergency landing. The National Enquirer published an accurate story that was falsely labelled as "by Henry Dempsey." Held The false light claim can go forward because, even though the story is truthful, portraying the article as being written by Dempsey when it wasn't would be "highly offensive" to a reasonable person.

Fletcher v. Rylands, Exchequer Chamber, 1866, L.R. 1. Ex. 265

Defendant had workers build a resevoir. Through no fault of defendant, but through a latent defect in the land, water broke through into plaintiff's coal mines on the adjacent property. Is defendant strictly liable because defendant kept a dangerous thing and it caused damage, or is defendant only liable if there was negligence? Held Blackburn: If defendant keeps a dangerous thing and the plaintiff does not take any risk (e.g. simply owns a property next door), the defendant is strictly liable if that dangerous thing causes damage.

Rylands v. Fletcher, House of Lords, 1868, L.R. 3 H.L. 330

Held Lord Cairns: If someone makes an unnatural use of the land, that person does such as his/her peril.

Sullivan v. Dunham, Court of Appeals of New York, 1900, 161 N.Y. 290, 55 N.B. 923

Defendant land owner hired two people to blast a tree with dynamite, and the blast sent a piece of wood flying 412 feet to a highway, where it killed a woman. Held When one for a lawful purpose, without negligence or want or skill, sets off a blast on his/her property, he/she is liable for any damage that occurs to other property. This is because the state places more importance on the security of others that have a right to be on land than on the improvement of property. (There is no liability without negligence if the injury is not direct but consequential, such as through shaking the earth.)

Indiana Harbor Belt Railroad Co. v. American Cyanamid Co., United States Court of Appeals, Seventh Circuit. 1990, 916 F.2d 1174

American Cyanamid Company manufactured acrylonitrile, a dangerous chemical. It shipped some on a railcar leased from North American Car Corporation, and Missouri Pacific Railroad took it to Blue Island yard to be further transported by Conrail. Employees there noticed fluid gushing out because of a broken lid, so homes were evacuated and the EPA ordered decontamination of the soil, costing almost $1 million, which the plaintiffs sought to recover. By placing this dangerous chemical into the stream of commerce, are the manufacturers strictly liable for damages that result? Held Posner: No, referencing Restatement (Second) 520. The negligence regime adequately addresses these circumstances rather than one of strict liability. The damage resulted, not from the chemical being manufactured, but from some negligence in transportation. Transporting the dangerous chemical is safe if performed non-negligently. The spill was not because of some inherent property of the chemical, but through some problem with the shipping, making negligence the more appropriate regime. Holding the manufacturer liable would not address the cause of the accident, as the manufacturer doesn't dictate the route used (here, through residential neighborhoods). Unlike Rylands, the plaintiff is asking that the manufacturer, not the actor (shipper), be subject to strict liability.

MacPherson v. Buick Motor Co., Court of Appeals of New York, 1916, 217 N.Y. 382, 111 N.E. 1050

Plaintiff bought an automobile from a dealer, who had purchased it from Buick. The automobile's wheel had been made with defective wood and crumbled and threw the plaintiff. The defendant had purchased the wheel from another manufacturer, but there was evidence that reasonable inspection would have revealed the defects. Did the defendant have a duty to the plaintiff, even though the defendant had no contractual relationship to the plaintiff? Held Cardozo: Yes. If a manufacturer knows that a thing of danger will be used by a person other than the purchaser and will be used without new tests, the manufacturer is under a duty to that person to make the object carefully. Held A thing is a thing of danger if it is reasonably certain to place life and limb in peril if negligently made.

Escola v. Coca Cola Bottling Co. of Fresno, Supreme Court of California, 1944, 24 Cal.2d 453, 150 P.2d 436

Waitress plaintiff was injured by a Coca Cola bottle that broke as she moved it from the case to the refrigerator. The bottle manufacturer subjected the bottles to scrutinous test that almost infallibly detects defects. Bottles delivered to the defendant bottler probably don't have visual defects, and as the bottles have already been tested the bottler doesn't retest the bottles to the same scrutiny. Held Although the bottler brought forth evidence that it had tested the bottles, the plaintiff correctly used res ipsa loquitur to infer negligence on the bottler. Concur Traynor: We should just come out and say what we're doing: we're imposing strict liability on the bottler. The user is the main party in interest, not intermediate dealers. The manufacturer is the one best able to bear the cost of an injury and distribute that cost to the public. Therefore a manufacturer should be strictly liable to users of a product during normal and proper use, even without negligence, and not restricted to contractual warranties.

Greenman v. Yuba Power Products, Inc., 377 P.2d 897 (Cal.1963)

Plaintiff's wife bought him a power tool. He used the power tool as a lathe, but because the screws didn't correctly hold the wood the wood flew up and hit the plaintiff in the forehead. Plaintiff sued for breach of warranty, but he sued outside the statute of limitations. Held Traynor: Strict liability gets around the statute of limitations. If the manufacturer puts something out to a consumer, who is unlikely to inspect it and if there is a defect that causes harm to the consumer, there is strict liability.

Elmore v. American Motors Corp., 451 P.2d 84 (Cal.1969)

A car's drive shaft fell out, causing the car to veer across the road and strike an oncoming car. Held Peters: Bystanders should be entitled to protection by strict liability if they are reasonably foreseeable.

Barker v. Lull Engineering Co., Inc., 573 P.2d 443 (Cal. 1978)

Plaintiff was hurt when a high-lift loader overturned on a slope. Held There are two ways to determine the existence of a design defect: 1) if the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonable manner, or 2) if through hindsight the jury determines the design embodies "excessive preventable danger" (benefit/risk analysis), the latter including such factors as gravity of danger, likelihood of danger, mechanical feasibility of alternate designs, and adverse consequences of alternate designs.

Soule v. General Motors Corporation, Supreme Court of California, 1994, 8 CaUth 548, 882 P.2d 298, 34 Cal.Rptr.2d 607

Plaintiff's ankles were severely injured when another vehicle hit the Camaro she was driving and the wheel bent the frame and deformed the metal under her feet. The jury found for the plaintiff on an "ordinary consumer expectations" theory: 1) the product failed to perform as safely as an ordinary consumer would expect, 2) the defect existed when the product left the manufacturere, 3) the defect was the legal cause of the injury, and 4) the product was used in a reasonably foreseen manner. The judge didn't allow GM's jury instruction that a legal cause required that the injury not have occurred in the absence of the defect. Held The jury should have been given instructions on a benefit/risk analysis instead of consumer expectations analysis, because this unique accident turned on a variety of variables the interrelation of which were complex and difficult to understand and need expert opinion. Held The judge should have allowed GM's instruction on "but-for" causation. Held Both errors were harmless. There is no reasonable probability that the jury ignored the risk/benefit data presented by the efforts [i.e. the jury probably did a risk/benefit analysis instead of making a decision based upon ordinary consumer expectations], and the causation error caused no actual prejudice.

Camacho v. Honda Motor Co., Ltd., Supreme Court of Colorado, 1987, 741 P.2d 1240, cert, dismissed 485 U.S. 901 (1988)

Plaintiff was injured at an intersection collission on his new Honda Hawk motorcycle. The plaintiff introduced expert witnesses who testified that leg protection devices, which were available from other manufacturers at the time, would have lessened or prevented plaintiff's severe leg injuries. The trial court gave summary judgment to defendant and the court of appeals affirmed because the danger could have been anticipated by the consumer. Held Summary judgment was improper. The crashworthiness doctrine gives strict liability against manufacturers when manufacturing or design defects, though not causing an accident, cause or enhance the injuries. Just because a danger is open or obvious doesn't mean it is not "unreasonably dangerous" under § 402A. Consumers expect that products are safe for an intended use, and the primary focus must be on the performance of the product, not on consumer conduct (although in some instances the plaintiff's appreciation of the danger may rise to assumption of risk). Consumer expectation is just one factor of crashworthiness, including those in Ortho: 1) usefulness and desirability of the product (utility), 2) likelihood of injury (safety), 3) availability of a safer substitute product, 4) manufacturers to ability eliminate unsafety without removing utility or making product too expensive, 5) user's ability to avoid danger by exercising care, 6) user's awareness (e.g. public knowledge or warnings) of inherent product dangers, and 7) feasibility of manufacturer to spread loss through price or by obtaining insurance. Here the experts disagreed on how to balance these factors, making summary judgment improper because of the dispute of factual conclusions. Dissent Jurisdictions differ on how to determine whether something is "unreasonably dangerous." The Ortho factors given by the majority are appropriate for complicated products such as drugs that require scientific and/or technical information, but here an average consumer knows that a motorcycle is dangerous. Therefore the consumer contemplation test of "unreasonably dangerous" should be used from comment i to § 402A: whether the article sold is more dangerous than contemplated by the ordinary consumer who purchases it, with ordinary knowledge common to the community as to its characteristics.

Hood v. Ryobi America Corporation, United States Court of Appeals, Fourth Circuit, 1999, 181 F.3d 608

Ryobi's miter saw had warnings all over it and in the manual that one should never remove the guards or encounter serious injury. Hood removed the guards, and the blade came off, partially amputating his thumb. He thought the guards were to guards were to keep his fingers and clothings away from the blade, not to keep the blade from coming detached. Held The warning was adequate because it was reasonable under the circumstances by being clear, unequivocal, unmistakable, and prominent. It did not need to be encyclopedic in its details—this might even have reduced its effectiveness by people ignoring them. Most people do not ignore these warnings—the only other known incident like this occurred 15 years ago.

Pittman v. Upjohn Co., 890 S.W.2d 425 (Tenn.1994)

"Among the criteria for determining the adequacy of a warning are: 1. the warning must adequately indicate the scope of the danger; 2. the warning must reasonably communicate the extent or seriousness of the harm that could result from misuse of the drug; 3. the physical aspects of the warning must be adequate to alert a reasonably prudent person to the danger; 4. a simple directive warning may be inadequate when it fails to indicate the consequences that might result from failure to follow it and, . . .5. the means to convey the warning must be adequate.

Edwards v. Basel Pharmaceuticals, Supreme Court of Oklahoma, 1997, 933 P.2d 298

Edwards died because of smoking while wearing two Habitrol nicotene patches. The instructions given to the doctor for these prescription patch warned of cardiace arrest for overdose, but the instructions that reached the consumer only mentioned fainting as a result of overdose. The FDA required warnings to the ultimate consumer for this product. Does the learned intermediary doctrine, which says that manufacturers only have to provide warnings to physicians or other intermediaries when the products can only be got by prescriptions, prevent liability? Held No. Although Oklahoma adopts the learned intermediary rule, it also adopts two exceptions: 1) mass immunizations and 2) when the FDA mandates that that a warning be given directly to consumers. Here the FDA mandated that warnings be given directly to consumers, so it is an exception to the learned intermediary doctrine, allowing the matter to go before a jury.

Liriano v. Hobart Corp., Court of Appeals of New York, 1998, 92 N.Y.2d 232, 700 N.E.2d 303, 677 N.Y.S.2d 764

Liriano was employed in the meat department of a "Super" grocery store, and lost his right hand in a meat grinder, sold by Hobart in 1961, the safety guard of which had been removed. Hobart started warning in 1962 against removing the safety guard. Robinson v. Reed-Prentice Div. of Package Mach. Co., 403 N.B.2d 440 (N.Y.1980) held that a manufacturer is not liable for injuries on a defective product theory due to user modifications that make the product unsafe. Is it possible for a manufacturer to be liable for not providing adequate warnings against product modifications? Held Yes. A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of which it knew or should have known. It also has a duty to warn of the danger of unintended but foreseeable uses. Similarly, there is a duty to warn of modifications. Warning takes a lot less effort and involves less risk/benefit analysis than does preventing the modifications from occurring. However, a safety device may serve the purpose of a warning, and some hazards are so open and obvious that a warning would add no additional safety and might even dilute the effect of other warnings.

General Motors Corporation v. Sanchez, Supreme Court of Texas, 1999, 997 S.W.2d 584

Lee Sanchez, Jr. left his home to feed a pen of heifers, and was found later having bled to death pinned behind the door of his truck which had rolled backwards towards him. Apparently he had thought he put the truck in "park" but had actually mis-shifted and put the truck in "hydraulic neutral" between "park" and "reverse," and the truck had slipped into reverse. The jury found that GM was negligent, the transmission was defectively designed, and warnings were inadequate. The jury found that Sanchez was 50% negligent. GM claimed that under the state's comparative responsibility the award should be reduced by 50%, but the plaintiff said that Sanchez' "negligence" was only a failure to discover or guard against a product defect, for which under Keen there is no duty and therefore no negligence. Held There is no comparative negligence for failing to discover or guard against a product defect. The new comparative reponsibility statute and Restatements Second and Third only allow comparative negligence in failing to discover a defect as a defense when there was a duty to discover a defect, which is basically never. Held There can, however, be comparative negligence in other ways, and Sanchez is comparatively negligent and damages will be reduced accordingly by 50%. Here Sanchez failed to follow the instruction manual and do any of the other things that might have prevented this accident, such as setting the parking brake, turning off the engine, and checking that park is fully engaged.

Jones v. Ryobi, Ltd., United States Court of Appeals, Eighth Circuit, 1994, 37 F.3d 423

Jones was running a printing press when a noise startled her; her hand was caught between moving parts and was crushed. The machine had a safety cover over the ejector wheels that would stop the machine when the cover was removed. Someone had removed the safety cover so that ejector wheels could be adjusted while the machine was running. Held The manufacturer is not liable as a matter of law if a third party made a modification that rendered a product unsafe, even if that modification was foreseeable. Dissent The product was already unreasonably dangerous as designed. The safety guard did not allow for ventilation and invited removal. The ejector wheels should have been placed farther away from moving parts to allow safer adjustment. There was testimony that 98% of all machines have their safety guards removed. The case should have went to a jury.

Royer v. Catholic Medical Center, Supreme Court of New Hampshire, 1999, 741 A.2d 74

Plaintiff underwent a knee replacement surgery at CMC, but the first prosthesis was defected, requiring a new surgery and a new prosthesis. Plaintiff sued CMC for strict liability because, besides providing a service of surgery, they provided a product of the prosthesis. Held The defendant's motion to dismiss is granted. Medical services do not have the same relationship to a consumer as that of normal manufacturer-consumer product sales. CMC was not "engaged in the business of selling" prostheseses for purposes of strict liability under Restatement (Second) § 402A. The sale was a small part of the entire treatment of the knee. Imposing strict liability would raise medical costs and restrict innovation in the medical field.

Taylor v. Superior Court, Supreme Court of California, 1979, 24 Cal.Sd 890, 598 P.2d 854, 157 Cal.Rptr. 693

Stille had a long history of alcoholism, had previously caused serious accidents while driving under the influence, and was under a probation condition which required him to wait six hours after drinking before driving. He started work that required him to visit alcohol-serving establishments and transport alcohol. He was drinking while driving when he had a wreck with Taylor. Taylor sued for compensatory and punitive damages because Stille "acted with a conscious disregard" for Taylor's safety. Held Richardson: Punitive damages should be allowed. California Civil Code Section 3294 authorized punitive damages in noncontract cases where defendant is guilty of oppression, fraud, or malice, express or implied. This is malice in face, not malice implied by law, and may be shown by evidence of hatred or ill will or by implication, "such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton." An actual intent to harm others is not needed. Alcoholism is a big problem and plaintiff was well aware of its risks. Punitive damages would provide greater deterrance. Concur Bird: This shouldn't mean that everyone driving under the influence gets punitive damages. Here, the second time was no accident, however. Dissent Clark: Punitive damages should be awarded, as Justice Peters has said, with the "greatest caution" in accident cases, and shouldn't be awarded here. The plaintiff is already compensated by compensatory damages, and punitive damages would make the plaintiff overly enriched. Tort law is not about punishment, and besides, defendant's actions are a crime and punitive damages would result in double punishment. Punitive damages impede the trial by requiring focus on the defendant's financial condition. Punitive damages may affect insurance coverage, and may prevent comparative fault from coming into effect by making defendant's conduct seem willful.

Lalomia v. Bankers & Shippers Ins. Co., Supreme Court of New York, Appellate Division, 1970, 35 App.Div.2d 114, 312 N.Y.S.2d 1018

Michael Maddock was riding a bicycle with the pedals removed and a 3.5 horsepower engine attached that could only be stopped by shorting the spark plug. Michael had a collision with Jean Lalomia, and both were killed. Michael's father, Daniel, had two insurance policies with defendant Bankers & Shippers Insurance Company that covered after-acquired "private passenger automobiles". Does this apply to the bicycle? Held No, the bicycle is classified as a motor vehicle so it will be subject to regulation on the road, but it is not a private passenger automobile. The insurance company by extending its policy did not intend to alter the nature of its risk to such dangerous contraptions. Defendant Insurance Company of North America had issued a homeowner policy to Daniel that covered personal injury and property damages except for those related to the maintenance of automobiles, defined as "land motor vehicles". Does this policy apply to the bicycle? Held Yes. Although the bicycle is a land motor vehicle, an exception, and was four blocks away from the premises when the accident occurred, the claim relates to negligence of Daniel Maddock, not maintenance of an automobile, so the insurance policy applies. Plaintiff Laurence Lalomia, Jean's husband, had a policy from defendant Liberty Mutual Insurance Company that applied to cover all uninsured motor vehicles—does this apply to the bicycle? Held Yes, the motor-driven bicycle is an uninsured motor vehicle within the meaning of the insurance policy.

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