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Nov. 27 Torts: Affirmative Defenses

Affirmative defenses are very helpful in torts because they are excellent defenses to negligence. We’ll first compare contributory and comparative negligence. Contributory negligence is a complete bar to recovery. In Butterfield v. Forrester, Forrester put a pole in the middle of the street and at the same time, Butterfield was riding on his horse recklessly. The court held that if a person acting with reasonable and ordinary care could have seen and avoided the obstruction, and if Butterfield was not acting so, the verdict should be for Forrest, which it was and Butterfield couldn’t recover. In McIntyre v. Ballentine, both were in an accident where McIntyre had been drinking and Ballentine was speeding. The court specifically overruled the state’s contributory negligence common law in favor of comparative negligence. It held that so long as P’s negligence is less than D’s, P may recover. P’s damages are to be reduced in proportion to the percentage of the total negligence attributable to P. In cases of multiple tortfeasors, P will be entitled to recover so long as P’s fault is less than the combined fault of all tortfeasors. There are two kinds of contributory negligence. The first is pure which means the award equals whatever percentage the defendant is at fault for. The second is modified which takes on two forms: a 50% rule and a 49% rule. In each rule, if the plaintiff’s negligence exceeds either 50% or 49% (depending on the jurisdiction you’re in), the plaintiff can’t recover.

The next affirmative defense is assumption of risk. Assumption of risk comes in two varieties: express and implied, but I’ll only deal with express assumption or risk here. A good example of express assumption of risk is Seigneur v. National Fitness Institute Inc. Seigneur went to the health club and signed a consent form that said the club wasn’t liable for any injury. She was, of course, injured and sued the club. The court held that an exculpatory clause is sufficient to insulate the party from his or her own negligence as long as its language clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence. For such a clause to be void it has to violate public policy or the defendant has to possess a decisive bargaining advantage over the customer.


November 27, 2006 Posted by | Torts | 6 Comments

Nov. 13 Torts: Merging of Categories

Last time we discussed the categories of people to whom the owner of property may owe a duty. In true law school fashion, we’ve been told that at least one court thinks we should forget that. In Rowland v. Christian, the California Supreme Court held that where the occupier of land is aware of a concealed condition involving, in the absence of precautions, an unreasonable risk of harm to those coming in contact with it and is aware that a person on the premises is about to come in contact with it, the trier of fact can reasonably conclude that a failure to war or to repair the condition constitutes negligence. What they did, in effect, is put the licensee and invitee in the same category. So now we have two categories: the trespasser and the invited person (my language).

November 13, 2006 Posted by | Torts | Leave a comment

Nov. 9 Torts: Duties Owed to Trespassers, Licensees, and Invitees

I’m going to skip “duty of care” and move on to owners of land. Instead of briefing the cases, I’m going to review the holdings. The holding of Sheehan v. St. Paul & Duluth Ry. Co. was that a trespasser doesn’t have permission to be on the property. The defendant doesn’t owe any duty to the undiscovered trespasser and only a duty to avoid willfully or wantonly injuring the trespasser.

The holding of Barmore v. Elmore showed that a licensee has permission to be on the property, but is there for his own purposes (such as social guests). The owner has a duty to warn of hidden dangers known to the owner, but she doesn’t have to keep the premises safe.

In Campbell v. Weathers,  the court said that an invitee has permission to be on the land for purposes that benefit the landowner. In this case, the landowner has the duty to keep the premises reasonably safe along with the duty to warn and not injure.

It’s important to know what the people are so you can determine the duty owed to the people for purposes of negligence (duty, breach, causation, harm).

November 9, 2006 Posted by | Torts | Leave a comment

Nov. 7 Torts: Public Policy

So in torts we move on to public policy as a reason for finding proximate cause. In our first case, Kelly v. Gwinnell, Zak and Gwinnell were at Zak’s home drinking. Gwinnell became visibly intoxicated and Zak watched as he drove away. On his way home, Gwinnell hit Kelly’s car, causing severe injuries to Kelly. Kelly sued both Zak and Gwinnell, but the trial court granted summary judgment for Zak. The appellate court affirmed, but the Supreme Court of New Jersey reversed that ruling. The court held that when negligent conduct creates an unreasonable risk, setting off foreseeable consequences that lead to P’s injury, the conduct is deemed the proximate cause of the injury. As partial justification for this holding, the Court said that the damages caused by drunk driving are horrible and intolerable. The state has strengthened criminal sanctions against drunk driving. The duty (for a host to be responsible for individuals that imbibe) can be imposed because the policy considerations served by its imposition far outweigh those asserted in opposition. So it turns out that those “Friends don’t let friends drink and drive” are actually law. Using the idea from Glannon on Torts, it’s easy to see that the Reasonable Person would tell Zak, “Don’t let Gwinnell drive because he’s really drunk and could hurt someone.”


Let’s look at an example of the court limiting an action because of public policy issues. In Enright v. Eli Lily Co., A mother and her daughter were suing the defendant because the grandmother had taken DES during her pregnancy. The plaintiffs alleged that the DES affected the mother’s reproductive system which resulted in her daughter’s cerebral palsy and other disabilities. DES litigation has gone on for some time and the courts and legislatures have removed barriers to DES claims (such as the statute of limitations) because of the public policy issues. Instead of letting the claims go forward, the court held that an injury to a mother which results in injuries to a later-conceived child doesn’t establish a cause of action in favor of the child against the original tort-feasor. They held this because public policy favors the availability of prescription drugs even though most carry some risks. The dangers of overdetterence are discouraged research or the withholding of beneficial drugs. These are magnified if there’s a legal duty toward generations not yet conceived. So here they established an arbitrary line; otherwise the makers of DES would be liable for heaven knows how many generations, and that multigenerational liability could make it less likely that drug makers would put out drugs. So public policy arguments can swing both ways—that’s why it’s important for lawyers to consider the public policy behind their actions.

November 8, 2006 Posted by | Torts | Leave a comment

Nov. 3 Torts: Proximate Cause

I was reading Glannon on Torts (an excellent book and I hear the one on Civil Procedure is also very useful). He acknowledged that in the hard cases, proximate cause can be difficult to work with. He had an idea that I thought was helpful though. He said that you should imagine the defendant about to commit the act that results in the plaintiff’s injury. Next to him is the Reasonable Person who’s saying, “You shouldn’t do x because y.” So in Yun v. Ford Motor Co. where a man was hit by a car when retrieving a spare tire, that was improperly installed by the defendant, from the other side of a highway when it’s dark and raining, the Reasonable Person wouldn’t have told the installer, “Don’t do this wrong because a man may be hit by a car trying to retrieve the spare tire.” The Reasonable Person would probably say, “Don’t do this wrong because the tire may fall off and cause harm in the process.” I think that helps clear things up a bit.

November 5, 2006 Posted by | Torts | Leave a comment

Oct. 31-Nov. 1 Torts: Intervening causes

We started talking about intervening causes as they relate to proximate causation. The first case was Derdiarian v. Felix Contracting Corp. in which the plaintiff was working in an excavation area in the street. A driver had a seizure and went into the area. The car hit the plaintiff and a bucket of molten metal that he was working with. Not only did he suffer injuries from the car, but he was also severely burned by the metal. The defendant, the contractor, said that it was impossible to foresee a man having a seizure while driving, crashing into the work area, hitting a workman, and spraying him with molten metal. The court held, however, that when the acts of a third person intervene between the defendant’s conduct and the plaintiff’s injury, the causal connection isn’t automatically severed. If the intervening act is extraordinary and not foreseeable in the normal course of events or so far removed from the defendant’s conduct, it may break the chain of causation. The precise manner of the event doesn’t have to be anticipated, however. If the risk of the intervening act is the same risk which injures the plaintiff, the act wasn’t a superseding cause. In this case, the defendant hadn’t erected a barrier that would have stopped the car, and while the specific nature of the cause of injury wasn’t specifically foreseen, getting hurt by a car could have been. So in this way, an intervening cause doesn’t cut the chain of causation.

The next case we read was Watson v. Kentucky & Indiana Bridge & RR Co. In this case, a tanker derailed and spilled a considerable amount of gasoline onto the street. A man, Duerr, was walking by and somehow it the vapors on fire. Some people said he was lighting a cigar and others said he intentionally threw the match in to blow up the tanker. In any case, the plaintiff was a bystander who was injured in the explosion. (Must have been one heck of an explosion) The defendant wanted to argue that Duerr’s act was sufficient to cut the chain of causation because it wasn’t foreseen. The court held that the mere fact that the concurrent cause or intervening act was unforeseen will not relieve the defendant guilty of primary negligence from liability, but if the intervening act is something so unexpected that it couldn’t be anticipated, he isn’t liable. He isn’t bound to anticipate the criminal acts of others by which damage is inflicted. The court goes on further and says that if Duerr lit the gasoline on purpose, it would be a criminal act and the defendant wouldn’t be held responsible for not foreseeing a criminal act. The case had to go back to the jury to decide if Duerr acted negligently or criminally. The point of this case was that just because something is unforeseen, it doesn’t mean that chain of causation is broken, though some unforeseeable things that are very unexpected may cut that chain.

Our final case for the day was Fuller v. Preis. Here, Preis hit Lewis’s car while driving. Lewis thought he was fine, but then started to have epileptic seizures. After seven months, Lewis committed suicide. Fuller, the executor, sued Preis for Lewis’s death. The court held that although suicide is a superseding cause, suicide isn’t a superseding cause for negligence law precluding liability. In tort law, one may retain the power to intend and know, but still have an irresistible impulse to act, and therefore be incapable of voluntary act. This means that when suicide is voluntary, it’s a third person cutting the chain. If it’s not voluntary though, the chain isn’t cut. Here, it was theorized that Lewis suffered brain damage that led to his eventual suicide and Preis was responsible for the brain damage.

Most of the cases for today got at causes that don’t break the chain of causation. It seems like proximate cause covers a lot of possibilities, but not all of them.


November 2, 2006 Posted by | Torts | 1 Comment

Oct. 30 Torts: Proximate Causation


We’ve been talking about proximate cause–an issue that isn’t as easy as it looks. It would seem like it’s easy to determine the causes between the breach of a duty and the harm, but that’s not always the case. I’ll spare you the previous cases we’ve looked at and start with Wagon Mound I and Wagon Mound II. The facts of each case are the same. There was a ship in a harbor about 600 feet away from the dock, and two other ships were docked at the dock. The first ship emptied oil into the harbor. The oil spread over the water to the dock. Then in a strange turn of events, some molten metal fell on a piece of cotton that was floating on the water. The oil ignited and a fire destroyed the dock and the two ships.
Wagon Mound I was the suit by the dock. The court held that a man is responsible for the probable consequences of his acts if they were foreseeable. Basically, the man who emptied the oil couldn’t have foreseen a fire started by cotton and molten metal. The court essentially says that you have to foresee the actual harm, so if you’re going to claim fire, you have to foresee fire. You don’t however, have to foresee the degree. Wagon Mound I is pretty restrictive when it comes to how easy it is to recover. Wagon Mound II is another story though.
Wagon Mound II comes from the same facts, but this suit was brought by the owners of the ships. The court held that if it’s clear that the reasonable man would have realized or foreseen and prevented the risk, then he’s liable for damages. The court said that it was reasonable for the chief engineer to foresee the risk and that the only way not to eliminate the risk was to have a valid reason not to. This ruling was more expansive than that in Wagon Mound I because it would be easier for someone to collect. There are a lot of cases that range from incredibly restrictive to incredibly expansive. My question is what direction should I go?
In yet another proximate cause cause, Palsgraf v. Long Island RR (the fireworks one), the court held that the risk reasonably to be perceived defines the duty to be obeyed. Thus, if there’s nothing that says you should have a heightened duty, you don’t. One example from the opinion is if there’s a bundle of newspaper that has a can of dynamite inside, you don’t have a heightened duty because there’s nothing that tells you to have to take more precautions that usual. On the other hand, if you’re shooting, you have a duty of prevision, but other acts aren’t so dangerous and require less duty.

November 1, 2006 Posted by | Torts | 1 Comment