Torts II

Abernathy v. Sisters of St. Mary's

Page 675, Bottom

[A] nongovernmental charitable institution is liable for its own negligence and for the negligence of its agents and employees acting within the scope of their employment.

Anderson v. Sears, Roebuck & Co.

Page 542, Bottom

The legal standard on which to gauge a jury verdict for remittitur purposes is the "maximum recovery rule," . . . This rule directs the trial judge to determine whether the verdict of the jury exceeds the maximum amount which the jury could reasonably find and if it does, the trial judge may then reduce the verdict to the highest amount that the jury could properly have awarded.

Barmore v. Elmore

• Page 511, Paragraph 3

  In order for a person to be classified as an invitee it is sufficient that he go on the land in furtherance of the owner's business. It is not necessary that the invited person gain an advantage by his entry on the land. A social guest is considered a licensee and has been defined as one who enters the premises of the owner by permission, but for the licensee's own purposes.

• A host must warn a licensee of any hidden dangers he knows that the guest does not, but otherwise a licensee takes the premises as he finds them.

• A host must take reasonable care in keeping his premises reasonable safe for use by an invitee.

Bartlett v. New Mexico Welding Supply, Inc.

Page 392, Paragraph 7–8

Joint and several liability is not to be retained in our pure comparative negligence system on the basis that a plaintiff must be favored.

We hold that defendant is not liable for the entire damage caused by defendant and the unknown driver. Defendant, as a concurrent tortfeasor, is not liable on a theory of joint and several liability.

Baxter v. Ford Motor Co. (1)

Page 772, Paragraph 5

[T]he manufacturer is liable to the consumer, even though the consumer purchased from a third person the commodity causing the damage. . . . on the principle that the original act of delivering an article is wrong, when, because of the lack of those qualities which the manufacturer represented it as having, the absence of which could not be readily detected by the consumer, the article is not safe for the purposes for which the consumer would ordinarily use it.

Baxter v. Ford Motor Co. (2)

Page 774

If a person states as true material facts susceptible of knowledge to one who relies and acts thereon to his injury, if the representations are false, it is immaterial that he did not know they were false, or that he believed them to be true.

Belli v. Orlando Daily Newspapers, Inc.

Page 882

A civil action for libel will lie when there has been a false and unprivileged publication by letter or otherwise which exposes a person to distrust, hatred, contempt, ridicule, or obloquy * * * or which has a tendency to injure such person in his office, occupation, business, or employment.

Bierczynski v. Rogers

When multiple tortfeasors act in concert, all are liable for the resulting harm.

Bindrim v. Mitchell

• Page 898, Bottom

  The test is whether a reasonable person, reading the book, would understand that the fictional character therein pictured was, in actual fact, the plaintiff acting as described.

• Page 899

  Publication for purposes of defamation is sufficient when the publication is to only one person other than the person defamed.

Blackburn v. Dorta

Page 651

Therefore, we hold that the affirmative defense of implied assumption of risk is merged into the defense of contributory negligence and the principles of comparative negligence enunciated in Hoffman v. Jones, supra, shall apply in all cases where such defense is asserted.

Borders v. Roseberry

In general, there is no liability upon the landlord for defective conditions existing at the time of the lease.

Bruckman v. Pena

A defendant cannot be held liable for a separate subsequent injury, whether or not such damage can be apportioned between the two injuries.

Bundt v. Embro

Page 396

[O]ne who has been injured by the joint wrong of several parties may recover his damages against either or all; but although there may be several suits and recoveries, there can be but one satisfaction.

Bussard v. Minimed, Inc.

• Page 706

  Under the doctrine of respondeat superior, an employer is ordinarily liable for the injuries its employees cause others in the course of their work. Respondeat superior imposes liability whether or not the employer was itself negligent, and whether or not the employer had control of the employee.

• Page 706, Bottom

  [A]cts necessary to the comfort, convenience, health, and welfare of the employee while at work, though strictly personal and not acts of service, do not take the employee outside the scope of employment. Moreover, '"where the employee is combining his own business with that of his employer, or attending to both at substantially the same time, no nice inquiry will be made as to which business he was actually engaged in at the time of injury, unless it clearly appears that neither directly nor indirectly could he have been serving his employer."' It is also settled that an employer's vicarious liability may extend to willful and malicious torts of an employee as well as negligence. Finally, an employee's tortious act may be within the scope of employment even if it contravenes an express company rule and confers no benefit to the employer.

• The going-and-coming rule says that commute to and from work is outside the scope of one's employment.

  Exception:

  The going-and-coming rule does not apply when an employee endangers others with a risk arising from or related to work. This is determined by if it "was a generally foreseeable consequence of the activity." The conduct is foreseeable if it is not so startling or unusual that it would seem unfair to include the loss as part of the employer's cost of doing business.

Butterfield v. Forrester

Two things must concur to support this action,

• an obstruction in the road by the fault of the defendant, and
• no want of ordinary care to avoid it on the part of the plaintiff.

Campbell v. Weathers

Page 515

". . . . If one goes into a store with the view of then, or at some other time, doing some business with the store, he is an invitee."

Cheatham v. Pohle

Bell: The state can limit how much of a punitive damages award a plaintiff will receive.

Clarke v. Oregon Health Sciences University

• While the Oregon constitution allows the legislature to change remedies, it cannot deny a remedy entirely.

• Instrumentalities of the state are protected by immunity. Other public bodies can be protected by governmental immunity, but only when they are engaged in a "governmental" function as opposed to a "proprietary" function.

Coney v. J.L.G. Industries, Inc.

Comparative fault does not eliminate joint and several liability.

Cox v. Pearl Investment Co.

A release releases all joint tortfeasors, while a covenant not to sue does not.

Davies v. Mann

DeLong v. Erie County

There is no tort liability for police protection to members of the public, but there is to people police undertake responsibilities towards and expose to danger without adequate protection.

Deuser v. Vecera

The discretionary function exception says that the government is still immune where it otherwise waived sovereign immunity if the action was a discretionary function.

Elbaor v. Smith

Mary Carter agreements are void as violative of sound public policy.

Exxon Shipping Co. v. Baker

Maritime cases such as this should have their punitive damages limited to an amount equal to their compensatory damages.

Ford Motor Co. v. Matthews

Page 827, Bottom

Although misuse of a product that causes an injury is normally a bar to strict liability, it is said that: ". . . The manufacturer is not liable for injuries resulting from abnormal or unintended use of his product, if such use was not reasonably foreseeable. The issue is one of foreseeability and misuse may be foreseeable."

Foster v. Preston Mill Co.

Page 758, Bottomish

"Except as stated in §§ 521-4, one who carries on an ultrahazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultrahazardous, although the utmost care is exercised to prevent the harm."

Freehe v. Freehe

The rule of interspousal immunity in personal injury cases is abandoned.

Friedman v. General Motors Corp.

Page 816

To sustain [one's motion for product defect, he must] prove that the [product], was defective; that the defect existed at the time the product left the factory; and that the defect was the direct and proximate cause of the accident and injuries. A defect may be proven by circumstantial evidence, where a preponderance of that evidence establishes that the accident was caused by a defect and not other possibilities, although not all other possibilities need be eliminated.

Golden v. Armory

There is no strict liability for an unforeseeable act of God.

Grant v. Reader's Digest Ass'n

Page 885

[L]ibel . . . consist[s] of utterances which arouse 'hatred, contempt, scorn, obloquy or shame,' and the like.

Harte-Hanks Communications, Inc. v. Connaughton

Failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard.

Indiana Harbor Belt R.R. Co. v. American Cyanamid Co.

Kilian v. Doubleday & Co., Inc.

• Page 890

  [I]n order to support a defense of truth, it is necessary merely to prove that it was substantially true

• Page 890

  "Specific charges cannot be justified by showing the plaintiff's general bad character; and if the accusation is one of particular misconduct, . . . it is not enough to show a different offense, even though it be a more serious one . . . "

Kline v. 1500 Massachusetts Ave. Apartment Corp.

Bell: A landlord has a duty to take reasonable precautions against criminal acts against his tenants. Courts use three factors in determining this duty:

1. Ability to exercise control
2. Advantageous position in exercising control and minimizing risk
3. Knowledge about the rise of criminal behavior.

Knell v. Feltman

Page 410

[W]hen a tort is committed by the concurrent negligence of two or more persons who are not intentional wrongdoers, contribution should be enforced; that a joint judgment against such tort-feasors is not a prerequisite to contribution between them, and it is immaterial whether they were, or any of them was, personally negligent.

Malchose v. Kalfell

Page 724, Last Paragraph

The family car doctrine places liability on the owner of a vehicle for negligent operation by a person using the vehicle with the express or implied consent of the owner for purposes of the business or pleasure of the owner's family.

Maloney v. Rath

Bell: Where there is a non-delegable duty, the person upon whom the duty is imposed is responsible for an independent contractor's actions in negligently performing that duty.

McIntyre v. Balentine

Tennessee now adopts the 49% modified comparative negligence rule.

Miller v. Civil Constructors, Inc.

• Page 747, Paragraph 3

  Most jurisdictions in this country have adopted the rule of Rylands to impose strict liability on owners and users of land for harm resulting from abnormally dangerous conditions and activities.

  See Also:

  Rylands v. Fletcher

• Page 748, Top

  Section 520 of the Restatement sets forth several factors which we will consider in determining whether an activity is abnormally dangerous (ultrahazardous): "

  1. existence of a high degree of risk of some harm to the person, land or chattels of others;
  2. likelihood that the harm that results from it will be great;
  3. inability to eliminate the risk by the exercise of reasonable care;
  4. extent to which the activity is not a matter of common usage;
  5. inappropriateness of the activity to the place where it is carried on; and
  6. extent to which its value to the community is outweighed by its dangerous attributes."

Montgomery Ward & Co., Inc. v. Anderson

Page 565, Paragraph 5

We choose to adopt the rule that gratuitous or discounted medical services are a collateral source not to be considered in assessing the damages due a personal-injury plaintiff.

Morgan v. High Penn Oil Co.

• Page 860, Paragraph 2

  [P]rivate nuisances may be classified as nuisances per se or at law, and nuisances per accidens or in fact. A nuisance per se or at law is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. Nuisances per accidens or in fact are those which become nuisances by reason of their location, or by reason of the manner in which they are constructed, maintained, or operated

• See:

  R2T § 825

Morgane v. States Marine Lines, Inc.

Page 597

[A]n action does lie under general maritime law for death caused by violation of maritime duties.

Murphy v. Martin Oil Co.

Pain from between the time of injury to the time of death is recoverable.

Murrel v. Goertz

• Employers are not vicariously responsible for the tortious acts of independent contractors.

• Page 714, Paragraph 3

  [T]he decisive test for determining whether a person is an employee or an independent contractor is the right to control the physical details of the work

Neiman-Marcus v. Lait

A cause of action lies for a member of a defamed group when the group is small. When a group is large, statements about that group must have particular circumstances that point to the plaintiff as the person defamed.

New York Times Co. v. Sullivan

A public official cannot recover for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice".

O'Shea v. Welch

• An employer is only liable for injuries caused by an employee acting within the scope of his employment.

  See Also:

  Bussard v. Minimed, Inc.

• Page 708, Bottom

  An employee is acting within the scope of [his employment] when [he] is performing services for which [he] has been [employed], or when [he] is doing anything which is reasonably incidental to [his employment]. The test is not necessarily whether this specific conduct was expressly authorized or forbidden by the employer[], but whether such conduct should have been fairly foreseen from the nature of the [employment] and the duties relating to it.

• Page 709Approximately half of the states have applied the slight deviation analysis, which says that a detour, or a slight deviation, is sufficiently related to the employment, but a frolic, a substantial deviation, is not. A frolic is when the employee wholly abandons, even temporarily, the employer's business for personal reasons.

  Explanations:

  • A slight deviation for the comfort, convenience, health, and welfare of the employee while at work are not outside the scope of employment if the conduct is not a substantial deviation from the duties of employment.

  • Page 709, Bottom

    Several factors have been identified as helpful in determining whether an employee has embarked on a slight or substantial deviation. They include:

    1. the employee's intent;
    2. the nature, time, and place of the deviation;
    3. the time consumed in the deviation;
    4. the work for which the employee was hired;
    5. the incidental acts reasonably expected by the employer; and
    6. the freedom allowed the employee in performing his job responsibilities.

Pagelsdorf v. Safeco Ins. Co. of America

A landlord must exercise ordinary care toward his tenant and others on the premises with permission.

Philadelphia Electric Company v. Hercules, Inc.

• See:

  R2T § 821D

• See:

  R2T § 821B(1)

• See:

  R2T § 821C

Popejoy v. Steinle

Bell: Vicarious liability may be imposed upon those engaged in a joint venture or enterprise.

Richardson v. Chapman

Remittitur can be granted when the award:

1. Falls outside the accepted range
2. Is a result of passion or prejudice
3. Shocks the judicial conscience

Riss v. New York

Governments do not have tort liability for police protection to members of the public.

Rowland v. Christian

Ordinary principles of negligence should apply.

Page 526, Paragraph 1

Where the occupier of land is aware of a concealed condition involving in the absence of precautions an unreasonable risk of harm to those coming in contact with it and is aware that a person on the premises is about to come in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence.

Rush v. Commercial Realty Co.

For implied assumption of risk, plaintiffs' actions must be voluntary.

Rylands v. Fletcher

Page 743, Top

"[T]he person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so, is primâ facie answerable for all the damage which is the natural consequence of its escape."

Salevan v. Wilmington Park, Inc.

A baseball park owner must take reasonable precautions to protect the public that have been previously shown to be necessary.

Sandy v. Bushey

• Page 761–762

  [O]wners or keepers of domestic animals are not answerable for an injury done by them in a place where they have a right to be

  Exception:

  If, however, a person keeps a vicious or dangerous animal which he knows is accustomed to attack and injure mankind, he assumes the obligation of an insurer against injury by such animal, and no measure of care in its keeping will excuse him.

  Explanation:

  In an action for an injury caused by such an animal, the plaintiff has only to allege and prove

  • the keeping,
  • the vicious propensities, and
  • the scienter.

• Contributory negligence is not a defense to SL.

• Assumption of risk is a defense to SL.

Seigneur v. National Fitness Institute, Inc.

• An exculpatory clause is valid 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."

• Page 639, B., Paragraph 2

  In Maryland, unambiguous exculpatory clauses are generally held to be valid in the absence of legislation to the contrary.

  Exception:

  Page 639, B., Paragraph 3

  Three exceptions have been identified where the public interest will render an exculpatory clause unenforceable. They are:

  1. when the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence;
  2. when the bargaining power of one party to the contract is so grossly unequal so as to put that party at the mercy of the other's negligence; and
  3. when the transaction involves the public interest.

  Explanation:

  Page 641, Paragraph 3

  The ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.

Selders v. Armentrout

[T]he measure of damages for the wrongful death of a minor child should be extended to include the loss of the society, comfort, and companionship of the child.

Sheehan v. St. Paul & Duluth Ry. Co.

A railway company has a duty to make all reasonable effort to avert injury to people after it has received notice of a trespasser.

Slocum v. Donahue

• Page 415, Paragraph 2

  "When a release . . . is given in good faith to one of two or more persons liable in tort for the same injury: . . . (b) It shall discharge the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor."

• Page 416, Paragraph 3, Bottom

  "Indemnity is permitted only when the would-be indemnitee does not join in the negligent act." "This right to indemnity is limited to those cases in which the would-be indemnitee is held derivatively or vicariously liable for the wrongful act of another."

Smalich v. Westfall

Page 729, Top

[O]nly a master-servant relationship or a finding of a joint enterprise to the text of the note will justify an imputation of contributory negligence.

Spur Industries, Inc. v. Del E. Webb Development Co.

In "coming to the nuisance" cases, a residential landowner cannot have relief if he knowingly came into a neighborhood reserved for industrial or agricultural use.

State Farm Mutual Automobile Ins. Co. v. Campbell

The due process clause of the Fourteenth Amendment can set a limit on punitive damages. Usually they are limited to a single-digit ratio.

Taylor v. Olsen

• Page 501, Paragraph 2

  [E]xcept for extreme situations, the question of the landowner's or possessor's attention to the condition of his roadside trees under a general standard of "reasonable care to prevent an unreasonable risk of harm" is to be decided as a question of fact upon the circumstances of the individual case.

• To determine duty a tree-owner owes people on adjoining highways and sidewalks must be determined by factor balancing of patterns of land use, road use, traffic density, and whether it is a rural or urban setting.

Teeters v. Currey

Page 654, Paragraph 2

[W]here medical malpractice is asserted to have occurred through the negligent performance of surgical procedures, the cause of action accrues and the statute of limitations commences to run when the patient discovers, or in the exercise of reasonable care and diligence for his own health and welfare, should have discovered the resulting injury.

Whelan v. Van Natta

• Page 517, Paragraph 5

  Thus an invitee ceases to be an invitee after the expiration of a reasonable time within which to accomplish the purpose for which he is invited to enter, or to remain.

• Page 517, Paragraph 6

  Likewise, the visitor has the status of an invitee only while he is on the part of the land to which his invitation extends—or in other words, the part of the land upon which the possessor gives him reason to believe that his presence is desired for the purpose for which he has come.

Yellow Cab Co. of D.C., Inc. v. Dreslin

Bell: Non-immune tortfeasors cannot collect contribution from immune tortfeasors.

Zellmer v. Zellmer

• Page 667, Bottom

  A parent is not immune when acting outside his or her parental capacity. . . . Even when acting in a parental capacity, a parent who abdicates his or her parental responsibilities by engaging in willful or wanton misconduct is not immune from suit.

  But this court has consistently held a parent is not liable for ordinary negligence in the performance of parental responsibilities.

  Note:

  This is the majority rule.

  See Also:

  Parental Immunity

• Page 670

  No court has allowed a stepparent to claim parental immunity solely by virtue of his or her marriage to the injured child's biological parent. . . . On the other hand, a stepparent standing in loco parentis has a common law duty to support and educate a child to the same extent as does a natural parent.