Torts I

Case Rules

Anderson v. Minneapolis, St. P. & S. St. M. Ry. Co.

Bell: When two causes combine to cause damage and either alone would have caused the damage, both are liable as long as both were a substantial factor in causing the damage.

Anjou v. Boston Elevated Railway Co.

  • A business owner must maintain the premises in a reasonably safe condition
  • A business owner must make inspections of the premises and remove any hazardous conditions
    • May be satisfied by a posted warning

Bartolone v. Jeckovich

Bell: Defendant is liable for all physical injuries even if another plaintiff wouldn't have suffered those injuries.

Big Town Nursing Home, Inc. v. Newman

False imprisonment is the direct restraint of one person of the physical liberty of another without adequate legal justification.

Blyth v. Birmingham Waterworks Co.

  • To be liable for negligence by omitting something, it has to be something that a reasonable person would have done.

  • Bell's: Must be reasonable in average circumstances.

Bonkowski v. Arlan's Department Store

If a defendant reasonably believed the plaintiff had unlawfully taken goods for sale in defendant's store, then he has a privilege to detain plaintiff for a reasonable investigation of the facts once plaintiff has left the premises.

Boyce v. Brown

Medical professionals can be held liable for malpractice if they do something that violates the recognized standard of good medical practice in the community.

Breunig v. American Family Insurance Co.

Page 177

The policy basis of holding a permanently insane person liable for his tort is:

  1. Where one of two innocent persons must suffer a loss it should be borne by the one who occasioned it;
  2. to induce those interested in the estate of the insane person (if he has one) to restrain and control him; and
  3. the fear an insanity defense would lead to false claims of insanity to avoid liability.

Brown v. Kendall

Ordinary care is needed to not be liable for a resulting injury.

Byrne v. Boadle

It is the duty of people keeping barrels in warehouses to keep them from rolling out. Failure to do so is negligence on the face.

Chicago, B. & Q.R. Co. v. Krayenbuhl

Public benefit must outweigh public danger.

Clagett v. Dacy

Attorneys are not liable to third parties.

Cohen v. Petty

  • Unforeseeable illness is not actionable negligence.

  • Bell's: To be liable for an action, it has to be a volitional act.

Cole v. Turner

  • The least touching of another in anger is a battery.

  • If people touch each other gently in a narrow passage without violence or design of harm, it will not be battery.

  • If one uses violence against another to force his way in a rude inordinate manner or to a degree that may do hurt, it is a battery.

Commonwealth v. Peterson

People generally do not have a duty to warn or protect others from the criminal acts of a third person, especially when assaultive.


Page 440, Paragraph 4–5Such a duty can exist when a special relationship exists between the defendant and either the plaintiff or the criminal actor. "Certain special relationships such as that of a common carrier/passenger, innkeeper/guest, and employer/employee impose a duty to warn when the danger of third party criminal acts is known or reasonably foreseeable. In instances, however, where the special relationship was that of a business owner/invitee or landlord/tenant, we have imposed a duty to warn of third party criminal acts only where there was an "imminent probability of injury" from a third party criminal act."

CompuServe Inc. v. Cyber Promotions, Inc.

Page 84
Restatement Second of Torts § 218

One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if,

  1. he dispossesses the other of the chattel, or
  2. the chattel is impaired as to its condition, quality, or value, or
  3. the possessor is deprived of the use of the chattel for a substantial time, or
  4. bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.

Cordas v. Peerless Transportation Co.

  • One cannot be held liable for negligence for actions motivated by a serious threat of bodily injury or death.

  • Establishes the Sudden Emergency Doctrine.

Cruz v. DaimlerChrysler Motors Corp.

No, res ipsa loquitur cannot hold someone liable for a defect he did not cause and was not expected to know of.

Daley v. LaCroix

Page 471, Paragraph 6

[W]here a definite and objective physical injury is produced a result of emotional distress proximately caused by proved action may recover in damages for such physical consequences to himself notwithstanding the absence of any physical impact upon plaintiff at the time of the mental shock.

Daubert v. Merrel Dow Pharmaceuticals, Inc.

Statistically evidence must show that the risk of the damage more than doubled to satisfy the "but for" test.

Davison v. Snohomish County

One must fail to exercise ordinary care to be liable for negligence.

Delair v. McAdoo

  • Drivers must be aware of the flaws and faults that would be noticed by a reasonable inspection.

  • Bell's: The person whose conduct is being evaluated is deemed to have the knowledge that the ordinary prudent person would have.

Derdiarian v. Felix Contracting Corp.

Page 345, Paragraph 7When a third person intervenes between the defendant's conduct and the plaintiff's injury, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence. If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, it may well be a superseding act which breaks the causal nexus.

Dougherty v. Stepp

Every unauthorized entrance into the close of another is a trespass.

Endresz v. Friedberg

Parents cannot recover for the wrongful death of their unborn child.

Enright v. Eli Lilly & Co.

Offspring of DES victims cannot hold the manufacturers strictly liable if they did not have exposure themselves.

Enright v. Groves

  • Page 50, Paragraph 4

    [A] claim for false arrest will not lie if an officer has a valid warrant or probable cause to believe that an offense has been committed and that the person who was arrested committed it.

  • Bell: Conviction of the crime arrested for is a defense for false imprisonment.

Fisher v. Carrousel Motor Hotel, Inc.

Bell: Touching an item is considered touching the person if he is holding or otherwise in intimate contact with the item.


Subrule for touching

Fuller v. Preis

An act of suicide is generally a superseding cause.


Unless it is the product of an "irresistible impulse" caused by traumatic organic brain damage.

Garratt v. Dailey

  • Defendant must know with substantial certainty that harmful contact will occur.

  • Bell: Intent exists when the defendant acts with knowledge that there is a substantial certainty that the outcome (here, a harmful contact) would occur.

Gentry v. Douglas Hereford Ranch, Inc.

In an action for negligence, a plaintiff must produce evidence from which it can be reasonably inferred that negligent conduct on the part of the defendant or its agents was the proximate cause of the plaintiff's injuries.

Glidden v. Szybiak

Page 80, Paragraph 3.

The law in regard to a trespass to chattels is thus summarized in the Restatement of the Law of Torts, s. 218: "one who without consensual or other privilege to do so, uses or otherwise intentionally intermeddles with a chattel which is in possession of another is liable for a trespass to such person if,

  1. the chattel is impaired as to its condition, quality or value, or
  2. the possessor is deprived of the use of the chattel for a substantial time, or
  3. bodily harm is thereby caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest."

Goddard v. Boston & Maine R.R. Co.

Bell: There has to be evidence that the hazard had been on the platform long enough that defendant should have known and removed it.

H.E. Butt Grog. Co. v. Resendez

To prove negligence of someone's mode of operation, one must prove:

  1. The business had actual or constructive knowledge of a condition on the premises
  2. The condition posed an unreasonable risk of harm
  3. The business did not exercise reasonable care to reduce or to eliminate the risk
  4. The business's failure to use such care proximately caused the plaintiff's injuries

H.R. Moch Co. v. Rensselaer Water Co.

When a water company contracts with a city to supply water, they are not liable to any third-party plaintiff to supply water.

Hackbart v. Cincinnati Bengals, Inc.

Consent to one violent activity does not give implied consent to violence done outside the bounds of the activity.

Hardy v. LaBelle's Distributing Co.

The two key elements of false imprisonment are the restraint of an individual against his will and the unlawfulness of such restraint. The individual may be restrained by acts or merely by words which he fears to disregard.

Harris v. Jones

Page 63

[F]our elements . . . must coalesce to impose liability for intentional infliction of emotional distress:

  1. The conduct must be intentional or reckless;
  2. The conduct must be extreme and outrageous;
  3. There must be a causal connection between the wrongful conduct and the emotional distress;
  4. The emotional distress must be severe.

Heath v. Swift Wings, Inc.

A professional is held to the objective minimum standard of care applicable to all of that profession.

Hegel v. Langsam

If one starts to rescue, he has a duty to act like a reasonably prudent person would.

Herrin v. Sutherland

One's land rights extend up to an indefinite extent.

Herskovits v. Group Health Cooperative of Puget Sound

Page 286, Paragraph 2

. . . once a plaintiff has demonstrated that the defendant's acts or omission have increased the risk of harm to another, such evidence furnishes a basis for the jury to make a determination as to whether such increased risk was in turn a substantial factor in bringing about the resultant harm.

Hill v. Edmonds

Where separate acts of negligence combine to produce directly a single injury each tortfeasor is responsible for the entire result

Hodgeden v. Hubbard

Defendants were justified in taking back their property but not in using force to do so except in response to plaintiff's aggression. If defendants' force was in response to plaintiff's resistance and not unnecessarily violent, they were justified.

Hodges v. Carter

Lawyers who act in good faith and an honest belief that their advice and acts are well founded and in the best interest of their clients are not liable for mere errors of judgment or mistakes in points of law not yet settled by a court of last resort in his state and on which reasonable doubt may be entertained by well-informed lawyers. They are liable for damages resulting from a lack of knowledge and skill ordinarily possessed by other attorneys.

Hulle v. Orynge

People are liable for harms even if accidental.

I de S et ux. v. W de S

The apprehension itself is a harm, even if physical damage was not done.

In re Arbitration Between Polemis and Furness, Withy & Co., Ltd.

Defendants are liable for all harm they directly cause as long as some harm is reasonably foreseeable.

J.S. and M.S. v. R.T.H.

  • Page 449, Paragraph 2When the the empirical evidence and common experience indicate that one may have actual knowledge or special reason to know that his spouse is abusing or is likely to abuse an identifiable victim, it is considered reasonably foreseeable.

  • Bell: A duty to warn may exist based on particular knowledge or a special reason to know of the particular type of injury towards a reasonably identifiable victim.


    Employers, drivers, caretakers (of prisoners/hospital patients), spouses

James v. Wormuth

For res ipsa loquitur, the harm must have been caused by an agency or instrumentality within the exclusive control of the defendant

Jasko v. F.W. Wollworth Co.

When the "operating methods" present a continuous or easily foreseeable danger, notice is not needed for an individual event thereof.

Joye v. Great Atlantic and Pacific Tea Co.

Defendant must have received constructive notice of a dangerous condition.

Katko v. Briney

No, an owner may not shoot a person in an unoccupied house via a spring gun.


  • Majority rule

  • Some states modify the rule if defendant warned plaintiff of danger.

Kelly v. Gwinnell

A host who serves liquor to an adult social gust, knowing that the guest is intoxicated and that he will thereafter be driving, is liable for injuries inflicted by the guest as a result.

Kramer Service, Inc. v. Wilkins

Where the issue lies wholly beyond the range of the experience or observation of laymen and of which they can have no appreciable knowledge, court and juries must of necessity depend upon and accept the undisputed testimony of reputable specialists.

L.S. Ayres & Co. v. Hicks

  • Page 445, Paragraph 1

    [T]here may be a legal obligation to take positive or affirmative steps to effect the rescue of a person who is helpless or in a situation of peril, when the one proceeded against is a master or invitor, or when the injury resulted from use of an instrumentality under the control of the defendant. Such an obligation may exist although the accident or original injury was cause by the negligence of the plaintiff or through that of a third person and without any fault on the part of the defendant.

  • Bell: Where defendant controls the instrumentality causing the injury, defendant has a duty to rescue. Special relationships that involve duty to rescue require the defendant to have actual ability and authority to control the third-person.

Larson v. St. Francis Hotel

Plaintiff must prove:

  1. That there was an accident
  2. That the thing or instrumentality which caused the accident was at the time of and prior thereto under the exclusive control and management of the defendant
  3. That the accident was such that in the ordinary course of events, the defendant using ordinary care, the accident would not have happened

Lubitz v. Wells

Some objects are and some are not intrinsically dangerous enough to make on liable for leaving them accessible.

MacPherson v. Buick Motor Co.

Page 429, Bottom

If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.

Martin v. Herzog

Adds "unexcused" omission

McDougald v. Perry

  • Res ipsa loquitur allows a common sense inference of negligence if coupled with a sufficient showing of its immediate, precipitating cause.

  • Res ipsa loquitur may rarely apply when the facts show that the accident would not have usally occurred had the defendant not been negligent.

McGuire v. Almy

Bell: Mental illness does not negate intent for intentional torts.

Mohr v. Williams

Consent to one surgery is not consent to that surgery in another location, even if it helps.

Moore v. Regents of the University of California

Page ???
  1. A physician must disclose personal interests unrelated to the patient's health, whether research or economic, that may affect the physician's professional judgment.
  2. A physician's failure to disclose such interests may give rise to a cause of action for performing medical procedures without informed consent or breach of fiduciary duty.

Morrison v. MacNamara

Cases must be judged on a national standard of care.

O'Brien v. Cunnard S.S. Co.

Consent is viewed in the light of the surrounding circumstances.

Ortega v. Kmart Corp.

The plaintiff has the burden of proving that a hazard existed long enough for the business owner to receive constructive notice.

Osborne v. McMasters

Violation of a statute that is for the protection or benefit of others constitutes conclusive evidence of negligence.

Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. "Wagon Mound No. 2"

A defendant is liable for a risk that does not have a disadvantage to preventing it, no matter how small the risk is.

Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. "Wagon Mound No. 1"

A person is only liable for harms resulting from reasonably foreseeable risks that made the actor's conduct tortious.

Palsgraf v. Long Island R.R. Co.

Defendants are not liable for harm to unforeseeable victims.

Parvi v. City of Kingston

Page 46, Top

[T]here is no liability for intentionally confining another unless the person physically restrained knows of the confinement or is harmed by it.

Pearson v. Dodd

  • Page 87, Paragraph 4

    The Restatement (Second) of Torts has marked the distinction by defining conversion as: ". . . [A]n intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel." Less serious interferences fall under the Restatement's definition of trespass [to chattels].

  • Page 87, Paragraph 5

    The measure of damages in trespass in not the whole value of the property interfered with, but rather the actual diminution in its value caused by the interference.

  • Bell: There must be complete of very substantial deprivation of possession rights.

Perry v. S.N. and S.N.

A series of factors determines tort liability based off statute violations:

  • Whether there is a relevant common law duty
  • Whether the statute clearly defines the prohibited or required conduct
  • Whether applying negligence per se to the reporting statute would create liability without fault
  • Whether negligence per se would impose ruinous liability disproportionate to the seriousness of the defendant's conduct
  • Whether the injury resulted directly or indirectly from the violation of the statute

Pipher v. Parsell

When the actions of a passenger are foreseeably dangerous, the driver has a duty to his passengers and/or the public to prevent harm from occurring as a result.

Pokora v. Wabash Ry. Co.

  • Standards of prudent conduct are declared at time by courts, but they are taken over from the facts of life.

  • Extraordinary situations may not be subjected to tests or regulations that are fitting for the commonplace or normal.

Procanik by Provanik v. Cillo

Bell: Cause of action by parent or child based on negligent medical treatment that deprives parents of the option to terminate the pregnancy to avoid the birth of a defective child.

Ranson v. Kitner

Bell: Good faith mistakes do not negate intent for intentional torts.

Reynolds v. Texas & Pac. Ry. Co.

Where the negligence of the defendant greatly multiplies the chances of accident to the plaintiff and is of a character naturally leading to its occurrence, the mere possibility that it might have happened withotu the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury.

Roberts v. State of Louisiana

  • Disabled people have the same standard of care as abled people.

  • The reasonably prudent person has the same physical characteristics as the defendant.

Robinson v. Lindsay

A child should be held to the standard of a reasonable child of their age unless the activity is a dangerous one, in which case, it should be that of an adult.

Rogers v. Board of Road Com'rs for Kent County

Bell: A privilege to enter land may be limited by time, space, or purpose.

Ryan v. New York Central R.R. Co.

The damages incurred must be the immediate result of the negligence of the defendants.

Scott v. Bradford

  • A physician has a duty to disclose all material risks of the procedure.

    When a risk is open to debate as to whether it must be disclosed, it is a matter for the fact-finder to determine.

    This does not apply when the patient should know the risks, when it would detrimental for the patient to know the risks, or in emergency situations.

  • A patient's medical malpractice action must show:

    1. Defendant physician failed to inform him adequately of a material risk before securing his consent to the proposed treatment;
    2. If he had been informed of the risks he would not have consented to the treatment;
    3. The adverse consequences that were not made known did in fact occur and he was injured as a result of submitting to the treatment.

Sindell v. Abbott Laboratories

When a group of defendants produce a substantial share of the market share of a drug, they may be held liable for harms resulting therefrom for their approximate portion of market share when the specific manufacturer is unknown.


Sindle v. New York City Transit Authority

Bell: The privilege of justification is a generic term for a defense to a tort in circumstances where it would be unfair to hold defendant liable when no traditional defense applies.

Slocum v. Food Fair Stores of Florida

  • Restatement § 46 makes a blanket provision for liability on the part of "one, who, without a privilege to do so, intentionally causes severe emotional distress to another." Intention exists "when the act is done for the purpose of causing the distress or with knowledge . . . that severe emotional distress is substantially certain to be produced by [such] conduct."

  • Page 59, Paragraph 2Language must be likely to cause "severe emotional distress," not mere "emotional distress."

  • Conduct must be outrageous.


    The test is: Is it so severe that a person of ordinary sensibilities suffer intentional infliction of emotional distress?

Spano v. Perini Corp.

Some acts come with strict liability for resulting harms.

Stachniewicz v. Mar-Cam Corp.

A violation of a statute or regulation constitutes negligence as a matter of law when the violation results in injury to a member of the class of persons intended to be protected by the legislation and when the harm is of the kind which the statute or regulation was enacted to prevent.

State Rubbish Collectors Ass'n v. Siliznoff

Page 55, Paragraph 5
Restatement of Torts § 46

One who, without a privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress, and (b) for bodily harm resulting from it.

State of Lousiana ex rel. Guste v. M/V Testbank

Physical damage is a prerequisite to recover for economic loss.

Sullivan v. Crabtree

When a driver causes an accident by going off the road without apparent cause and causes harm, the normal inference is negligence, and res ipsa loquitur is usually held to apply.

Summers v. Tice

Bell: Where both act negligently but only one is liable, the burden of proof shifts to the defendant.


  • All wrong-doers must be before the court for the rule to apply.

  • The burden only shifts if all are wrong-doers

  • The Restatements 2nd and 3rd proved this rule.

  • In medical cases, defendant's burden is to show they didn't breach their duty, not that they did not cause the harm.

Surocco v. Geary

Yes, a house may be destroyed to prevent a fire from spreading when it is necessary like here.

Talmage v. Smith

Intent transfers between people and between the five trespass torts.

Tarasoff v. Regents of University of California

Where the defendant and the criminal actor have a special relationship and the harm is reasonably foreseeable, the defendant may have an affirmative duty for the benefit of third persons.

Taylor v. Vallelunga

[A] cause of action is established when it is shown that one, in the absence of any privilege, intentionally subjects another to the mental suffering incident to serious threats to his physical well-being, whether or not the threats are made under such circumstances as to constitute a technical assault.

Thing v. La Chusa

Page 481, Bottom

[A] plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff:

  1. is closely related to the injury victim;
  2. is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and
  3. as a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.

Trimarco v. Klein

Negligence must be judged by the defendant's conduct under all the circumstances.

United States v. Carroll Towing Co.

One is liable if the likely harm outweighs the burden of adequate precautions.

Vaughan v. Menlove

Prudence must be judged as being that of a reasonable man.

Vincent v. Lake Erie Transp. Co.

Yes, plaintiff is liable for damage he does to defendant by leaving his ship moored during a storm.

Wagner v. State

Battery only requires the contact to be intended, not the resulting harm.

Wallace v. Rosen

  • Consent is assumed for ordinary contacts which are customary and reasonably necessary to the common intercourse of life.

  • Judged whether it is offensive to an ordinary person, not to one unduly sensitive as to personal dignity.

Watson v. Kentucky & Indiana Bridge & R.R. Co.

  • Page 351, Paragraph 2

    [I]f the intervening agency is something so unexpected or extraordinary as that he could not or ought not to have anticipated it, he will not be liable

  • Bell: If defendant's negligence created a foreseeable risk that a third person would commit a crime or intentional tort, defendant's liability will not be cut off by that crime or intentional tort.

Weaver v. Ward

Defendants might not be liable for accidental harms.

Western Union Telegraph Co. v. Hill

An assault can be committed as long as the defendant "create[s] in the mind of the [plaintiff] a well-founded fear of an imminent battery coupled with the apparent present ability to effectuate the attempt, if not prevented."

Whittaker v. Sandford

For false imprisonment, the restraint must be physical, but physical impediments are physical.

Winterbottom v. Wright

A tort action based on an injury resulting from violation of a contract cannot be upheld if plaintiff was not a party to the contract.

Yun v. Ford Motor Co.

The conduct leading to a harm must be a reasonably foreseeable result of a defendant's actions for him to proximately liable for an injury caused by the resulting conduct.

Zeni v. Anderson

Violation of statute merely establishes a rebuttable presumption of negligence.