Casenote Legal Briefs for Contracts Keyed to Barnett and Oman Casenote Legal Briefs Series 6th Casenote Legal Briefs 1543831834 9781543831832

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ISBN 10: 1543831834
ISBN 13: 9781543831832
Author: Casenote Legal Briefs

After your casebook, a Casenote Legal Brief is your most important reference source for the entire semester. The series is trusted for its expert summary of the principal cases in your casebook. Its proven reliability makes Casenote Legal Briefs the most popular case brief series available. With more than 100 titles keyed to the current editions of major casebooks, you know you can find the help you need. The brief for each case saves you time and helps you retain important issues. Each brief has a succinct statement of the rule of law/black letter law, description of the facts, and important points of the holding and decision. Quicknotes are short definitions of the legal terms used at the end of each brief. Use the Glossary in the end of your text to define common Latin legal terms. Such an overview, combined with case analysis, helps broaden your understanding and supports you in classroom discussion. Each title is keyed to the current edition of a specific casebook; it s your trusted guide to the text throughout the semester. The brief for each principal case in the casebook saves you time and helps you retain important issues. Each brief has a succinct statement of the rule of law/black letter law, description of the facts, important points of the holding and decision, and concurrences and dissents included in the casebook excerpt. This overview is combined with a short analysis: all to help you broaden your understanding and support you in classroom discussion. Quicknotes at end of each brief give you short definitions of the legal terms used. A handy Glossary of common Latin words and phrases is included in every Casenote. Detailed instruction on how to brief a case is provided for you. A free Quick Course Outline accompanies all Casenote Legal Briefs in these course areas: Civil Procedure, Constitutional Law, Contracts, Criminal Law, Criminal Procedure, Evidence, Property, and Torts.

Table of contents:

CHAPTER 1 Development of Liability Based upon Fault

1. Hulle v. Orynge (The Case of Thorns). Every trespass on land that causes damage is actionable.

2. Weaver v. Ward. An actor is liable for injury directly caused by his act unless he can prove himself utterly without fault.

3. Brown v. Kendall. If in the prosecution of a lawful act, a casualty purely accidental arises, i.e., the injury was unavoidable, and the conduct of the defendant was free from blame, no action can be supported for an injury arising therefrom.

4. Cohen v. Petty. When injury results from an unforeseeable event there is no liability.

5. Spano v. Perini Corp. (1) One who engages in blasting is responsible for damage caused without any showing of fault. (2) Proof of trespass is not necessary to recovery in strict liability.

CHAPTER 2 Intentional Interference with Person or Property

1.Garratt v. Dailey. The intent necessary for the commission of a battery is present when the person acts, knowing with substantial certainty that the harmful contact will occur.

2. Wagner v. State. The intentional tort of battery requires only an intent to contact with that contact legally harmful or offensive, but does not require an intent to cause harm thereby.

3. Ranson v. Kitner. Mistake does not absolve an actor from liability for the harm caused by his or her intentional act.

4. McGuire v. Almy. An insane person may be capable of entertaining the intent to commit a battery.

5. Talmage v. Smith. When one intends to harm another, it is no defense that an unintended person was harmed instead.

6. Cole v. Turner. The least touching of another in anger is a battery. An unintentional touching without violence is not a battery. The use of violence in a rude manner is a battery. An attempt to pass through a narrow way resulting in a struggle sufficient to do injury is a battery.

7. Wallace v. Rosen. Intentionally touching another person cannot constitute battery if the touching does not occur in a rude, insolent, or angry manner.

8. Fisher v. Carrousel Motor Hotel, Inc. A battery may be committed even though there is no physical contact with the person’s body, so long as there is contact with something that is attached to, or closely identified with, the body.

9. I de S et ux. v. W de S. An act that causes another to be fearful of a harmful or offensive contact is known as an assault, and the plaintiff may recover damages, even though there is no actual physical contact or physical harm.

10. Western Union Telegraph Co. v. Hill. There can be no assault unless there is an apparent ability to carry out a threatened contact.

11. Big Town Nursing Home, Inc. v. Newman. One can be held liable for exemplary damages in a false imprisonment action if the false imprisonment is done intentionally in violation of the rights of the plaintiff.

12. Parvi v. City of Kingston. A plaintiff’s present recollection of a previous consciousness of confinement is not required to make out a prima facie case for false imprisonment.

13. Hardy v. LaBelle’s Distributing Co. False imprisonment exists upon the unlawful restraint of an individual against his or her will.

14. Enright v. Groves. 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.

15. Whittaker v. Sandford. (1) To commit a false imprisonment it is not necessary that the tortfeasor actually apply physical force to the person of the plaintiff, but that plaintiff be physically constrained. (2) A false imprisonment occurs when there is an intentional breach of an obligation to take active steps to release plaintiff.

16. State Rubbish Collectors Assn. v. Siliznoff. A complaint based on mental suffering caused by the outrageous conduct of defendant will be sustained if there was no privilege to act in such a manner.

17. Slocum v. Food Fair Stores of Florida. No recovery is allowed for mental suffering when the abuse, insult, or profanity is not accompanied with serious threats to life or other affronts that amount to more than mere annoyances.

18. Harris v. Jones. In order to recover damages resulting from the intentional infliction of emotional distress, a plaintiff must show that the distress suffered was ‘‘severe.’’

19. Taylor v. Vallelunga. In order to recover damages for mental suffering that is the result of defendant’s injury of a third person, the plaintiff must show that defendant reasonably anticipated mental stress would be inflicted on the plaintiff.

20. Dougherty v. Stepp. Every unprivileged entry onto the land of another is a trespass regardless of the amount of damages.

21. Herrin v. Sutherland. A trespass to the land occurs when bullets or other foreign particles violate the airspace above the land.

22. Rogers v. Board of Road Comm’rs. for Kent County. Failure to remove a structure upon expiration of the license allowing the structure on plaintiff’s land is a continuing trespass.

23. Glidden v. Szybiak. In order for a cause of action based upon trespass to chattels to besustained, chattel owner must prove more than nominal damages to and intentional interference with the chattel.

24. CompuServe Inc. v. Cyber Promotions, Inc. An action claiming trespass to chattels allows recovery for interference with the possession of chattels that are not sufficiently important to rise to the level of conversion and requires the defendant to pay the full value of the thing with which he has interfered.

25. Pearson v. Dodd. The publication of information that does not amount to literary property,scientific invention, or secret plans formulated for the conduct of commerce, without an actual physical conversion of the documents containing the information, does not amount to conversion.

CHAPTER 3 Privileges

1. O’Brien v. Cunard S.S. Co. Silence and inaction may imply consent to defendant’s acts if the circumstances are such that a reasonable person would speak if he or she objected.

2. Hackbart v. Cincinnati Bengals, Inc. An injury inflicted by one player upon another during a professional football game may give rise to liability where the cause of the injury was an intentional blow.

3. Mohr v. Williams. If the defendant’s actions exceed the consent given, and the defendant does a substantially different act than the one authorized, then the defendant is liable.

4. De May v. Roberts. (1) There exists no privilege of consent when the plaintiff has consented under a mistaken belief which has been instilled by defendant’s deceit. (2) An assault is perpetrated by the inducement of consent through misrepresentation.

5. Katko v. Briney. A landowner does not have a privilege to install, for the purpose of protecting his uninhabited property against unlawful intrusions, a mechanism the sole function of which is the infliction of death or serious harm upon intruders.

6. Bonkowski v. Arlan’s Department Store. A privilege exists by which a shopkeeper is able to detain for a reasonable investigation a person whom the shopkeeper reasonably suspects has unlawfully taken merchandise.

7. Surocco v. Geary. An individual is not personally liable for the damage he creates when, in good faith and under apparent necessity, he destroys the property of another in order to save the surrounding area.

8. Vincent v. Lake Erie Transp. Co. The private necessity of avoiding destruction or damage to one’s property gives rise to a privilege to invade the property of another, but this privilege is limited to entry and compensation must be made for any damage resulting from it.

9. Sindle v. New York City Transit Authority. In a false imprisonment action, it is an abuse of discretion for the judge to deny the defendant’s motion to amend its answer to claim the defense of justification.

CHAPTER 4 Negligence

1. Lubitz v. Wells. Conduct that is reasonable and has low probability of resulting in harm to others is not negligence.

2. Blyth v. Birmingham Waterworks Co. Negligence involves the creation of an ‘‘unreasonable’’ risk, by act or omission, which a reasonable and prudent man would not create.

3. Pipher v. Parsell. When it is foreseeable that the actions of a passenger may interfere with a driver’s ability to operate the vehicle safely, a driver’s failure to prevent such conduct may constitute a breach of the driver’s duty to other passengers and the public.

4. Chicago, B. & Q.R. Co. v. Krayenbuhl. When the owner of dangerous premises knows, or has good reason to believe, that children trespassers, so young as to be ignorant of the danger, will be attracted to and will resort to such premises, the owner is under a duty of care to protect such children from the risks arising from such premises.

5. Davison v. Snohomish County. The burden in terms of monetary costs is too high for a public entity to protect against every anticipated accident.

6. United States v. Carroll Towing Co. There is a duty of care to protect others from harm when the burden of taking adequate precautions is less than the product of the probability of the resulting harm and the magnitude of the harm.

7. Vaughan v. Menlove. The standard of care in determining gross negligence is the objective ‘‘reasonable person’’ standard.

8. Delair v. McAdoo. In exercising one’s duty of due care for the safety of others, every automobile driver and owner is charged with such knowledge of the safe condition of his car as can be ascertained through a reasonable inspection.

9. Trimarco v. Klein. Evidence of custom and usage by others engaged in the same business is admissible as bearing on what is reasonable conduct under all the circumstances, which is the quintessential test of negligence.

10. Cordas v. Peerless Transportation Co. A person is not necessarily negligent if, in an emergency, he acts to avoid injury to himself and in doing so injures bystanders.

11. Roberts v. State of Louisiana. The standard of care applicable to people with handicaps is that they must take those precautions that ordinary, reasonable persons would if they were similarly handicapped.

12. Robinson v. Lindsay. A child will be held to an adult standard of care when engaging in an inherently dangerous activity, such as the operation of a powerful motor vehicle.

13. Breunig v. American Family Ins. Co. A person seized with a sudden mental disability for which he had no warning will be excused from the general rule of holding an insane person liable for his negligence.

14. Heath v. Swift Wings, Inc. Even as to professionals, the standard of care is an objective one and may not be tailored to the individual characteristics of each defendant.

15. Hodges v. Carter. An attorney acting in good faith and with an honest belief that his actions are in the best interest of his client is not liable for mistaken advice in an area of unsettled law.

16. Boyce v. Brown. Negligence on the part of a physician or surgeon, by reason of his departure from the proper standard of practice, must be established by expert medical testimony, unless the negligence is so grossly apparent that a layman would have no difficulty in recognizing it.

17. Morrison v. MacNamara. The standard of care applicable to board certified physicians, hospitals, medical laboratories, and other health care providers is measured by the national standard of care.

18. Scott v. Bradford. A doctor is under a legal obligation to disclose sufficient information to a patient to enable him to make an informed decision regarding a proposed medical treatment.

19. Moore v. The Regents of the University of California. A physician has a duty to disclose to a patient intended research connected to the patient’s treatment.

20. Pokora v. Wabash Ry. Co. Unless reasonable minds could not differ on the point, the standard by which negligence is measured is for the jury to decide. Failure to get out of a vehicle and look before crossing a railroad track is not contributory negligence as a matter of law.

21. Osborne v. McMasters. When a statute imposes a legal duty, violation of the statute constitutes conclusive evidence of negligence, i.e., negligence per se.

22. 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 intended to prevent.

23. Perry v. S.N. and S.N. Violation of a mandatory child abuse reporting statute does not constitute negligence per se.

24. Martin v. Herzog. The unexcused omission to perform a statutory duty is negligence per se.

25. Zeni v. Anderson. Violation of a statute creates a presumption of negligence, which may be rebutted by a showing of adequate excuse for the violation.

26. Goddard v. Boston & Maine R.R. Co. A business owes no duty of reasonable care to ensure its patrons’ safety unless the business has adequate notice that conditions on the premises are potentially dangerous.

27. Anjou v. Boston Elevated Railway Co. Circumstantial evidence can sustain plaintiff’s burden of proof of negligence only if a reasonable jury can draw from it the positive inference that defendant was negligent.

28. Joye v. Great Atlantic and Pacific Tea Co. Without constructive notice of a dangerous condition, a defendant cannot be held liable for negligence.

29. Ortega v. Kmart Corp. A store owner has a duty of reasonable care to inspect the store’s premises within a reasonable period of time sufficient to permit discovery and correction of potentially dangerous conditions.

30. Jasko v. F.W. Woolworth Co. When the operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable, conventional notice requirements need not be met.

31. H.E. Butt Groc. Co. v. Resendez. Merely displaying produce for customer sampling in a grocery store, without more, does not create an unreasonable risk of harm.

32. Byrne v. Boadle. When it is highly probable that an injury is due to the negligence of the defendant, and the defendant has better access to the evidence concerning the injury, the doctrine of res ipsa loquitur creates an inference that the defendant was negligent, and puts the burden on defendant to introduce contrary evidence.

33. Larson v. St. Francis Hotel. The doctrine of res ipsa loquitur applies only where the cause of the injury is shown to be under the exclusive control and management of the defendant.

34. Cruz v. DaimlerChrysler Motors Corp. A plaintiff cannot use the doctrine of res ipsa loquitur to raise an inference of the defendant’s negligence where, although the injury-causing event at issue ordinarily does not occur in the absence of negligence, the plaintiff cannot present evidence that points the negligence to the defendant.

35. James v. Wormuth. In a medical malpractice action based on a foreign object being left in a patient’s body, the theory of res ipsa loquitur may not be used to establish a physician’s negligence where the physician intentionally left the foreign object in the patient’s body based on the physician’s judgment that doing so would be in the patient’s best interest.

36. Sullivan v. Crabtree. The doctrine of res ipsa loquitur merely affords reasonable evidence, in the absence of an explanation that injury was caused by negligence. Even if the facts are unexplained in a res ipsa loquitur situation, the jury may still refuse to make a finding of negligence.

CHAPTER 5 Causation in Fact

1. Perkins v. Texas and New Orleans R. Co. Negligence will not give rise to liability if the injury would have happened even if the negligence had not occurred.

2. Reynolds v. Texas & Pac. Ry. Co. Although an injury might possibly have occurred even in the absence of another’s negligence, if the negligence greatly multiplies the chances of accident to the injured person and is of a character naturally leading to the accident’s occurrence, the mere possibility that the accident might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury.

3. Gentry v. Douglas Hereford Ranch, Inc. Cause in fact is established when a plaintiff can demonstrate that an event would not have occurred but for the defendant’s conduct.

4. Kramer Service, Inc. v. Wilkins. One cannot recover for an injury if one shows just a possibility that the injury was caused by another’s negligence.

5. Smith v. Providence Health & Services. A limited loss-of-chance theory of injury is cognizable in common-law negligence claims of medical malpractice where reliable scientific evidence about the statistical probability of the outcome involved in the case is available and the plaintiff can demonstrate the loss of a substantial chance of recovery or a better medical outcome.

6. Daubert v. Merrell Dow Pharmaceuticals, Inc. Expert scientific testimony is admissible if itreflects ‘‘scientific knowledge,’’ if the findings are ‘‘derived by the scientific method,’’ if the work product amounts to ‘‘good science,’’ and if it logically advances a material aspect of the proposing party’s case.

7. Hill v. Edmonds. When separate acts of negligence combine to produce directly a single injury, each tortfeasor is responsible for the entire result, even though his act alone might not have caused it.

8. Anderson v. Minneapolis, St. P. & S. St. M. Ry. Co. If one negligently sets a fire that combines with another fire of no responsible origin, he is liable if his fire would have caused the damage independent of the other fire, or if his fire materially caused the damage. In other words, if one’s negligence would have caused the damage complained of, he is liable and it is irrelevant whether, in fact, another force combined to cause the damage.

9. Summers v. Tice. When two defendants are both negligent, but only one of them could have caused the plaintiff’s injury, the court will hold them both liable when it cannot determine which of the defendants caused the damage.

10. Sindell v. Abbott Laboratories. Where multiple manufacturers produce and distribute a dangerously defective product, an injured party can recover from one or several of them, even if she cannot identify which manufacturer(s) produced the drug that caused the injury.

CHAPTER 6 Proximate or Legal Cause

1. Atlantic Coast Line R. Co. v. Daniels. The law will look to see whether the wrongful act was the proximate cause of the injury complained of in determining liability.

2. Ryan v. New York Central R.R. Co. Damages can be awarded only when the injury is immediate and not the remote result of defendant’s negligence.

3. Bartolone v. Jeckovich. A tortfeasor bears responsibility for all damages proximately caused by tortious conduct, even if the damages appear disproportionate to the tortious conduct.

4. In re Arbitration between Polemis and Furness, Withy & Co., Ltd. The fact that the kind of damage which an act might probably cause was not the damage anticipated is immaterial so long as the resulting damage is directly traceable to the negligent act, and not due to independent cause having no connection with the negligent act.

5. Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. ‘‘Wagon Mound No. 1’’. Even though injury may result from a negligent act, liability for that injury is limited to the risk reasonably to be foreseen.

6. Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. ‘‘Wagon Mound No. 2’’. One who is knowledgeable of a risk and can reasonably prevent it is liable for damages resulting from his failure to do so.

7. Palsgraf v. Long Island R.R. Co. The risk reasonably to be perceived defines the duty to be obeyed.

8. Yun v. Ford Motor Co. A claim of strict liability may be defeated if the defendant can show that an intervening superseding event or another sole proximate cause resulted in the plaintiff’s injury.

9. Derdiarian v. Felix Contracting Corp. An intervening act will not serve as a superseding cause, relieving the defendant of liability, where the risk of the intervening act occurring is the very same risk which rendered the defendant negligent.

10. Watson v. Kentucky & Indiana Bridge & R.R. Co. The mere fact that an intervening act was unforeseen will not relieve the defendant guilty of primary negligence from liability unless the intervening act is something so unexpected or extraordinary as that it could not or ought not to be anticipated.

11. Fuller v. Preis. As a matter of law, an act of suicide is not a superseding cause in negligence law precluding liability.

12. McCoy v. American Suzuki Motor Corp. The rescue doctrine may be invoked in products liability cases, requiring the rescuer-plaintiff to prove that the defendant’s conduct was the proximate cause of his injuries.

13. Kelly v. Gwinnell. A social host may be liable for furnishing alcohol to an intoxicated guest.

14. Enright v. Eli Lilly & Co. An injury to a mother that results in injuries to a later-conceived child does not establish a cause of action in favor of the child against the original tortfeasor.

CHAPTER 7 Joint Tortfeasors

1. Bierczynski v. Rodgers. Individuals who are party to a motor vehicle race on a highway are tortfeasors acting in concert and each participant is liable for harm to a third person arising from tortious conduct because he has engaged in and induced the wrong.

2. Coney v. J.L.G. Industries, Inc. The adoption of comparative negligence does not require the abolition of joint and several liability.

3. Bartlett v. New Mexico Welding Supply, Inc. Joint and several liability will not be applied when pure comparative negligence is adopted.

4. Bundt v. Embro. When individuals are joint tortfeasors with the state, satisfaction from the state discharges the individuals.

5. Cox v. Pearl Investment Co. Plaintiff does not relinquish his cause of action against a tortfeasor by releasing a joint tortfeasor, if the plaintiff expressly reserves the right to sue others who may be liable.

6. Elbaor v. Smith. ‘‘Mary Carter’’ settlement agreements, whereby the settling defendant agrees to testify against any remaining defendants in exchange for an offset, are void as against public policy.

7. Knell v. Feltman. When a tort is committed by the concurrent negligence of two or more individuals who did not intentionally inflict injury, contribution should be required of the co-tortfeasor even though no joint judgment was obtained by the plaintiff.

8. Yellow Cab Co. of D.C., Inc. v. Dreslin. Since neither husband nor wife is liable for the torts perpetrated against the other, the spouse cannot be held on contribution theory to pay damages for injury to the other spouse because, in order for a right of contribution to exist,

9. Slocum v. Donahue. When a release is given in good faith to one of two or more persons liable in tort for the same injury, it discharges the tortfeasor to whom it is granted from all liability for contribution to the other tortfeasor.

10. Bruckman v. Pena. It is error for a court to instruct the jury that a plaintiff may recover damages for injuries received subsequent to any act of negligence by the defendant and from causes for which the defendant is in no way responsible.

CHAPTER 8 Duty of Care

1. Winterbottom v. Wright. A contracting party, unless he has undertaken a public duty, has no liability to third parties who are injured as a result of a breach of the contract.

2. MacPherson v. Buick Motor Co. A manufacturer breaches a duty of care to a foreseeable user of its product if the product was likely to cause an injury if egligently made and it places the product on the market without conducting a reasonable inspection.

3. H.R. Moch Co. v. Rensselaer Water Co. A water company that contracts with a city to supply water is not liable to a citizen whose house burns when water service fails.

4. Clagett v. Dacy. In the absence of an underlying contractual attorney-client relationship, an attorney owes no duty of care to a third party.

5. Commonwealth v. Peterson. Even assuming a special relationship exists between a state university and its students, the university does not have a duty to warn students of the potential for third-party criminal acts where the university does not know, or cannot reasonably foresee, that students will fall victim to third-party criminal harm.

6. Hegel v. Langsam. Colleges and universities are under no affirmative duty to regulate the private lives of their students.

7. L.S. Ayres & Co. v. Hicks. The invitor or one who has control of an instrumentality has the legal obligation to aid a helpless person, even if he did not cause the original situation in which the helpless person finds himself.

8. J.S. and M.S. v. R.T.H. When a spouse has actual knowledge or special reason to know of the likelihood that his or her spouse is engaging in sexually abusive behavior against a particular person, the spouse has a duty of care to take reasonable steps to prevent or warn of the harm and a breach of that duty constitutes a proximate cause of the resultant sexual abuse of the victim.

9. Tarasoff v. Regents of University of California. A doctor bears a duty to exercise reasonable care and warn potential victims about known violent tendencies or intentions of a patient.

10. Southern California Gas Co. v. Superior Court of Los Angeles County. A public utility does not have a duty to local businesses to guard against purely economic losses.

11. Daley v. LaCroix. Whenever a definite and objective physical injury is produced as a result of emotional distress proximately caused by a tortfeasor’s negligent conduct, the injured party may recover damages for such physical consequences to himself notwithstanding the absence of any physical impact upon him at the time of the emotional shock.

12. Thing v. La Chusa. One may recover emotional distress damages for an injury to a relative only if he observes the injury-producing event.

13. Endresz v. Friedberg. The parents of an unborn fetus whose birth was prevented by negligent conduct may not bring a wrongful death action to redress the wrong that was done.

14. Procanik by Procanik v. Cillo. An infant plaintiff may recover special damages for ‘‘wrongful life’’ but may not recover general damages therefor.

CHAPTER 9 Owners and Occupiers of Land

1.Taylor v. Olsen. It is generally a question of fact as to whether a landowner has taken reasonable care in protecting people outside his land from dangerous conditions existing upon the land.

2. Salevan v. Wilmington Park, Inc. Landowners whose property is adjacent to public sidewalks or highways owe a duty of care to take reasonable precautions for the protection of the traveling public.

3. Sheehan v. St. Paul & Duluth Ry. Co. A landowner owes a duty of care to a trespasser only after he or she has discovered the presence of the trespasser.

4. Barmore v. Elmore. As to a licensee, the owner of premises is only required to warn his guest of any hidden dangers of which the owner has knowledge.

5. Campbell v. Weathers. A regular customer of a business establishment who enters the establishment but does not buy anything is considered to be an invitee.

6. Whelan v. Van Natta. An invitee retains the status of an invitee only as long as he remains on that part of the premises to which the land occupier’s invitation extends.

7. Rowland v. Christian. An injured person’s status as a trespasser, licensee, or invitee will not be determinate as to liability, although the status may have some bearing on the question of liability.

8. Borders v. Roseberry. Landlords are liable for defective conditions existing at the time of leasing to a tenant only in regard to: (1) undisclosed dangerous conditions known to lessor and unknown to lessee; (2) conditions dangerous to persons outside of the premises; (3) premises leased for admission of the public; (4) parts of land retained in lessor’s control which lessee is entitled to use; (5) situations in which lessor contracts to repair; and/or (6) negligence by lessor in making repairs.

9. Pagelsdorf v. Safeco Ins. Co. of America. A landlord must exercise ordinary care toward his tenants and toward others on the premises with the tenants’ permission.

10. Kline v. 1500 Massachusetts Ave. Apartment Corp. A landlord is under a duty to take precautions to protect tenants from foreseeable criminal acts committed by hird parties.

CHAPTER 10 Damages

1.Anderson v. Sears, Roebuck & Co. In determining whether a damage award is excessive in a personal injury case, the court must individually examine each of the five cardinal elements of damages: (1) past physical and mental pain; (2) future physical and mental pain; (3) future medical expenses; (4) loss of earning capacity; and (5) permanent disability and disfigurement.

2. Richardson v. Chapman. An award of damages may be deemed excessive if it exceeds the range of fair and reasonable compensation, is the result of passion or prejudice, or is so large that it shocks the conscience.

3. Montgomery Ward & Co., Inc. v. Anderson. Gratuitous or discounted medical services are a collateral source and are not to be considered in assessing the damages owed by a tortfeasor to a plaintiff in a personal injury suit.

4. Cheatham v. Pohle. The Takings Clauses of the federal and Indiana Constitutions do not prohibit the Indiana state legislature from requiring 75 percent of punitive-damages awards to be deposited into state-operated funds for public benefit.

5. State Farm Mutual Automobile Ins. Co. v. Campbell. In determining the validity of a punitive damages award, consideration is given to the degree of reprehensibility of the defendant’s misconduct, the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award, and the difference between the punitive damages award by the jury and the civil penalties authorized or imposed in comparable cases.

CHAPTER 11 Wrongful Death and Survival

1. Moragne v. States Marine Lines, Inc. Although Congress has not enacted a specific remedy for wrongful death in admiralty, an action for wrongful death does lie under maritime common law for death caused by violation of maritime duties.

2. Selders v. Armentrout. The measure of damages recoverable by a parent for the wrongful death of a minor child includes the loss of society, comfort and companionship of the child, as well as any pecuniary loss.

3. Murphy v. Martin Oil Co. When an injury caused by tortious conduct results in death, survivors of the decedent can recover from the tortfeasor both under the Illinois Wrongful Death Statute for the decedent’s death and under the State Survival Statute for any damages suffered by the decedent during the interval between his injury and death.

CHAPTER 12 Defenses

1. Butterfield v. Forrester. A plaintiff will not be able to recover where his lack of due care contributed to the occurrence of the accident.

2. Davies v. Mann. Where plaintiff’s negligence has put him in a dangerous position and defendant discovers plaintiff’s danger and fails to use due care to avoid injuring plaintiff, plaintiff’s negligence will not bar his recovery. This is the last clear chance doctrine.

3. McIntyre v. Balentine. Contributory negligence is abolished as a defense.

4. Seigneur v. National Fitness Institute, Inc. An express exculpatory clause in an agreement can excuse a defendant’s negligence.

5. Rush v. Commercial Realty Co. The defense of assumption of risk requires that the plaintiff has voluntarily encountered the risk, and the risk is not assumed where the defendant has left the plaintiff no reasonable alternatives.

6. Teeters v. Currey. The statute of limitations for a medical malpractice action for negligently performed surgery runs not from the date of the injury, but from the time that the patient discovers, or should have reasonably been expected to discover, the injury.

7. Freehe v. Freehe. Interspousal tort immunity in personal injury cases is hereafter abandoned.

8. Zellmer v. Zellmer. The doctrine of parental immunity, which shields a parent from liability for negligent acts against a child, does not extend to a stepparent or anyone other than a biological or adoptive parent, even if such person is standing in loco parentis.

9. Abernathy v. Sisters of St. Mary’s. The doctrine of immunity of charitable institutions from liability for torts is hereafter abolished.

10. Clarke v. Oregon Health Sciences University. Damage limits, coupled with the elimination of a cause of action against individual employees, are not constitutional under Article I, § 10 of the Oregon Constitution.

11. Riss v. New York. Absent a specific legislative mandate to the contrary, the government is not liable for the negligent failure of police authorities to protect citizens from crime.

12. DeLong v. Erie County. Liability may arise when standard procedures are not followed in an emergency summons for police help.

13. Deuser v. Vecera. The federal government is immune from civil liability under the discretionary function exception if the federal government or its employees’ conduct involves an element of judgment or choice of the type that the exception was designed to shield.

CHAPTER 13 Vicarious Liability

1. Bussard v. Minimed, Inc. An employer can be held liable when an employee leaves work early and foreseeably causes an accident while driving home.

2. O’Shea v. Welch. A reasonable juror could conclude that driving a personal car to deliver sports tickets to one’s fellow employees during work hours, and turning one’s personal car into a service station to get a maintenance estimate while delivering the sports tickets during working hours, are actions within the scope of an employee’s employment.

3. Murrell v. Goertz. An independent contractor is one who performs a service for another, free from control and direction of his employer in all matters connected with the performance of the service, except for the end result.

4. Maloney v. Rath. An employer who fails to provide specified safeguards or precautions will not be insulated from liability for injuries caused by the negligence of an independent contractor.

5. Popejoy v. Steinle. Vicarious liability will not be imposed on a tortfeasor’s spouse for acts arising in a personal context.

6. Malchose v. Kalfell. In determining whether a member of a family other than the driver is vicariously liable for the negligence of the driver (‘‘family car doctrine’’), one must evaluate the ‘‘totality of the circumstances.’’

7. Seaborne-Worsley v. Mintiens. The presumption, under the doctrine of imputed negligence, that an owner-passenger who is injured in an automobile accident had operational control over a permissive driver of the vehicle, and is therefore responsible for any negligence of the driver, will not be applied in an automobile tort action.

CHAPTER 14 Strict Liability

1. Rylands v. Fletcher. A person using his land for a dangerous, non-natural use is strictly liable for any damage to another’s property resulting from such non-natural use.

2. Miller v. Civil Constructors, Inc. The use of guns or firearms is not an ultrahazardous activity as required for strict liability.

3. Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. Strict liability will not be imposed against the manufacturer of a toxic chemical for accidents occurring during transportation.

4. Foster v. Preston Mill Co. Strict liability is only imposed for those injuries resulting as the natural consequence of that which makes an activity ultrahazardous.

5. Golden v. Amory. The rule of strict liability for the escape of stored water does not apply where the injury results from an act of God, which the owner had no reason to anticipate.

6. Sandy v. Bushey. The keeper of a vicious domestic animal known to be dangerous cannot interpose contributory negligence as a defense to relieve him of his strict liability as an insurer.

CHAPTER 15 Products Liability

1. MacPherson v. Buick Motor Co. A manufacturer breaches a duty of care to a foreseeable user of its product if the product was likely to cause an injury if negligently made and the manufacturer places the product on the market without conducting a reasonable inspection.

2. Baxter v. Ford Motor Co. A manufacturer or retailer of a product is responsible in tort for all representations upon which the consumer must rely, regardless of a contractual relationship between plaintiff and defendant.

3. Henningsen v. Bloomfield Motors, Inc. When a manufacturer and a dealer put a new automobile in the stream of trade and promote its purchase by the public, an implied warranty that it is reasonably suitable for use as such accompanies it into the hands of the ultimate purchaser, despite any contractual provisions to the contrary.

4. Greenman v. Yuba Power Products, Inc. When an article is placed on the market by a manufacturer that knows that the product will be used without inspection for defects, the manufacturer will be strictly liable in tort for any injury caused by a defect in the product.

5. Rix v. General Motors Corp. A manufacturer will be strictly liable for manufacturing defects.

6. Prentis v. Yale Manufacturing Co. Liability for a defectively designed product shall be based on a pure negligence analysis.

7. Anderson v. Owens-Corning Fiberglas Corp. Knowability is a required element of strict liability for failure to warn.

8. Friedman v. General Motors Corp. A product defect may be proved by circumstantial evidence, where a preponderance of that evidence establishes that an accident was caused by a defect and not other possibilities, although not all other possibilities need be eliminated.

9. Daly v. General Motors Corp. A plaintiff’s recovery in a strict products liability action may be reduced according to the extent to which his injury resulted from his own lack of reasonable care.

10. Ford Motor Co. v. Matthews. Although misuse of a product that causes an injury is normally a bar to strict liability, a manufacturer is liable for injuries resulting from abnormal or unintended use of his product if such use was reasonably foreseeable.

11. Peterson v. Lou Bachrodt Chevrolet Co. Strict liability does not extend to the seller of a defective used car.

12. Erie Ins. Co. v. Amazon.com. An electronic commerce company that provides fulfillment services to purchasers of manufacturers’ products is not a ‘‘seller’’ subject to products liability for damages sustained when a product sold by a manufacturer through the company’s fulfillment services malfunctions and causes damages, where the manufacturer transfers possession of the product to the company without the company’s payment of a purchase price or agreement transferring title to it, and the agreement between company and manufacturer repeatedly specifies and contemplates that the manufacturer retains title to goods it stores in the company’s warehouses as part of the company’s fulfillment program.

13. T.H. v. Novartis Pharmaceuticals Corp. A brand-name drug manufacturer has the duty under state law to warn of the risks about which it knew or reasonably should have known, regardless of whether and when the consumer is prescribed the brand-name drug or its generic bioequivalent.

14. Hector v. Cedars-Sinai Medical Center. Since the essence of the relationship between hospitals and patients is for the provision of medical services, hospitals are not liable under strict products liability because they are not engaged in the business of selling products.

CHAPTER 16 Nuisance

1. Philadelphia Electric Co. v. Hercules, Inc. A vendor of real property cannot be held liable in nuisance to the vendee.

2. Morgan v. High Penn Oil Co. A person who intentionally creates or maintains a private nuisance is liable for the resulting injury to others, regardless of the degree of care or skill exercised by him to avoid such injury.

3. Carpenter v. The Double R Cattle Company, Inc. No nuisance may be found where the utility of the activity outweighs the gravity of harm.

4. Boomer v. Atlantic Cement Co., Inc. Although a nuisance will be enjoined even when a marked disparity is shown in economic consequence between the effect of the injunction and the effect of the nuisance, if the practical effect of the injunction will be to close a production plant, a court will condition on equitable grounds the continuance of the injunction on the payment of permanent damages.

5. Spur Industries, Inc. v. Del E. Webb Development Co. Although the operation of a business, lawful in the first instance, which becomes a nuisance by reason of a nearby residential area, may be enjoined in an action brought by the developer of the residential area, the developer must indemnify the business for a reasonable amount of the cost of moving or shutting down.

CHAPTER 17 Defamation

1. Belli v. Orlando Daily Newspapers, Inc. If a statement may be interpreted in both a defamatory and nondefamatory manner, it is the province of the jury to determine which one the general public would have taken.

2. Grant v. Reader’s Digest Assn. Libel consists of utterances that arouse hatred, contempt, scorn, obloquy, or shame in the minds of people whether or not those persons are ‘‘right thinking’’ people.

3. Kilian v. Doubleday & Co., Inc. To claim truth as a defense, it must be shown that the statements in the article were substantially true, not that other acts of a different nature occurred.

4. Neiman-Marcus v. Lait. Where a group or class disparaged is a large one, absent circumstances pointing to a particular plaintiff as the person defamed, no individual member of the group or class has a cause of action. However, where the group or class libeled is small, and each and every member of the group or class is referred to, then any individual member can sue.

5. Bindrim v. Mitchell. The test of identification in a libel action is whether a reasonable person, viewing the work, would identify the ‘‘fictional’’ character described therein as the plaintiff.

6. Terwilliger v. Wands. Words that claim a man is having extra-marital intercourse are not actionable without a demonstration of special damages, since they do not disparage the man’s character or reputation.

7. Economopoulos v. A.G. Pollard Co. For a cause of defamation to lie there must be publication to third parties of the defamatory statement in such a manner so as to be understood by those hearing the statement.

8. Carafano v. Metrosplash.com, Inc. The immunity provision of the Communications Decency Act (CDA), 47 U.S.C. 230(c)(1), immunizes an interactive computer service (ICS) from liability for publishing false or defamatory material if another party besides the ICS provides the objectionable material.

9. Ogden v. Association of the United States Army. The publication of a book, periodical, or newspaper containing defamatory matter gives rise to but one cause of action for libel, which accrues at the time of the original publication, and the statute of limitations runs from that date.

10. New York Times Co. v. Sullivan. A public official may not recover damages for a defamatory falsehood concerning his official conduct unless he can prove that the statement was made with actual malice.

11. St. Amant v. Thompson. In a defamation suit, a public official must prove that the defendant had serious doubts as to the truth of his publication in order to demonstrate actual malice.

12. Harte-Hanks Communications, Inc. v. Connaughton. In a defamation suit filed by a public figure, an appellate court must conduct a plenary review of the entire record to confirm whether the plaintiff has shown that the allegedly defamatory statements were made with a reckless disregard for the truth.

13. Gertz v. Robert Welch, Inc. (1) The standard of liability for a defamation which a publisher or broadcaster publishes about a private individual is set by the states. (2) The private defamation plaintiff must prove falsity or reckless disregard for the truth to recover any damages other than compensation for actual injury.

14. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. Recovery may be obtained for libel without a showing of actual malice when the statements do not involve a matter of public concern.

15. Philadelphia Newspapers, Inc. v. Hepps. A plaintiff may not recover damages for defamation without showing that the statements are false.

16. Milkovich v. Lorain Journal Co. Expressions of opinion that imply an assertion of objective fact may be the basis of a libel action.

17. Sindorf v. Jacron Sales Co., Inc. A conditional privilege may be lost where the person who utters the defamation acts with malice or in utter disregard of the truth.

18. Trout Point Lodge v. Handshoe. Under the Securing the Protection of our Enduring and Established Constitutional Heritage Act (the SPEECH Act), a default defamation judgment rendered in a foreign country will not be recognized and enforced in U.S. courts where neither the law of the foreign forum, as applied in the foreign proceeding, provides free-speech protection that is coextensive with relevant domestic law, nor the facts, as proven in the foreign proceeding, are sufficient to establish a defamation claim under domestic law.

CHAPTER 18 Privacy

1. Joe Dickerson & Associates, LLC v. Dittmar. A claim for invasion of privacy by appropriation in Colorado does not require proof of the value of the plaintiff’s name or likeness, and an appropriation claim will not lie against a self-promotional article on another person’s felony conviction where the defendant asserts a First Amendment privilege.

2. Sanders v. American Broadcasting Companies, Inc., et al. An employee has a limited expectation of privacy in conversations at his workplace against a reporter’s secret videotaping even if coworkers could have seen or heard the conversations.

3. Hall v. Post. In North Carolina, a plaintiff cannot sue for invasion of privacy by public disclosure of private facts.

4. Cantrell v. Forest City Publishing Co. A reckless disregard of the truth will expose a publisher to liability in an action for invasion of privacy.

5. Hustler Magazine v. Falwell. Public figures may not recover for infliction of emotional distress due to an allegedly defamatory act unless actual malice is shown.

6. Synder v. Phelps. The First Amendment may immunize protesters from tort liability if their speech relates to a matter of legitimate public concern and if the protesters comply with all applicable time, place and manner restrictions relating to public protests.

CHAPTER 19 Civil Rights

1. Ashby v. White. A party may recover for wrongfully being denied his right to vote.

2. Camp v. Gregory. A child placed in the guardianship of the state has a due process right not to be placed with a custodian whom the state knows will fail to exercise the requisite degree of supervision over the child.

3. Memphis Community School Dist. v. Stachura. Damages for deprivation of constitutional rights may not be awarded merely for the importance of the rights themselves.

CHAPTER 20 Misuse of Legal Procedure

1. Texas Skaggs Inc. v. Graves. In order to establish a cause of action for malicious prosecution, a favorable termination of the underlying action must be shown, as well as lack of probable cause to institute the prosecution and malice.

2. Friedman v. Dozorc. An attorney owes no actionable duty of care to an adverse party.

3. Grainger v. Hill. An action for abuse of process is not based upon a favorable termination of the underlying proceeding

CHAPTER 21 isrepresentation

1. Swinton v. Whitinsville Savings Bank. There is no liability for bare nondisclosure.

2. Griffith v. Byers Constr. Co. of Kansas, Inc. A purchaser who has bought a home on a lot that

3. Derry v. Peek. An action in deceit will not lie for a false representation made with an honest

4. International Products Co. v. Erie R.R. Co. An action for damages for negligent

5. Winter v. G.P. Putnam’s Sons. Strict products liability is not applicable to the expressions

6. Hanberry v. Hearst Corp. A party who endorses a product for its own economic gain and for

7. Richard v. A. Waldman & Sons, Inc. An innocent misrepresentation may be actionable if the

8. Credit Alliance Corp. v. Arthur Andersen & Co. Accountants may be liable to persons not in

9. Citizens State Bank v. Timm, Schmidt & Co. Accountants may be held liable for the negligent.

10. Ultramares Corp. v. Touche. An accounting firm may be held liable for fraudulent.

11. Williams v. Rank & Son Buick, Inc. A plaintiff cannot recover for misrepresentation unless his.

12. Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am. (1) Representations are actionable.

13. Vulcan Metals Co. v. Simmons Manufacturing Co. An opinion is a fact, and when parties are so.

14. National Conversion Corp. v. Cedar Bldg. Corp. A cause of action for fraud in the inducement.

15. McElrath v. Electric Investment Co. Deceit, to be actionable, requires the misrepresentation of.

16. Hinkle v. Rockville Motor Co., Inc. A defrauded plaintiff should be allowed to claim out-of-pocket expenses. If the defendant is morally culpable, the representations definite, and the present value ascertainable, then the plaintiff should be permitted to sue for the benefit of the bargain.

CHAPTER 22 Interference with Advantageous Relationships

1. Ratcliffe v. Evans. An action for malicious interference with business, based on a published falsehood, will lie even though special damages are not proven.

2. Horning v. Hardy. The conditional privilege to make a damaging statement when necessary to protect one’s economic interests may only be overcome by a showing of constitutional or common-law malice.

3. Testing Systems, Inc. v. Magnaflux Corp. While statements that make an unfavorable comparison of products are privileged, statements that contain specific assertions of unfavorable facts are not privileged and are actionable.

4. Lumley v. Gye. A person who procures a breach of another’s contract is liable for damages due to his interference.

5. Bacon v. St. Paul Union Stockyards Co. The wrongful interference with the contract relations of others causing a breach is a tort.

6. Della Penna v. Toyota Motor Sales, U.S.A., Inc. A plaintiff seeking to recover for interference

7. Neibuhr v. Gage. A party injured by duress is entitled to the same remedies available in cases

8. Freeman & Mills, Inc. v. Belcher Oil Company. There is no tort cause of action for bad faith

9. Nash v. Baker. Children do not have a cause of action for any losses sustained through the

CHAPTER 23 Torts in the Age of Statutes

1. Burnette v. Wahl. No action lies in tort for breach of parental duties.

2. Nearing v. Weaver. A police officer who knowingly fails to enforce a judicial order issued pursuant to a state statute designed to strengthen legal protections for persons abused by a present or former spouse or a cohabitant may be held liable for resulting psychological and physical harm to the intended beneficiaries of the order, over the defenses of official discretion and official immunity.

3. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. Monetary damages may be recovered for violations of the Fourth Amendment by federal officials.

4. Alexander v. Sandoval. A private individual cannot sue to enforce regulations promulgated under Title VI of the Civil Rights Act.

5. De Falco v. Bernas. A private individual cannot successfully enforce the federal criminal RICO statute, 18 U.S.C. 1962(c), unless he proves that the prohibited racketeering conduct was both the factual and proximate cause of his injuries.

6. Pulliam v. Coastal Emergency Svcs. A statutory cap on medical malpractice damages does not violate the Constitution.

CHAPTER 24 Compensation Systems as Substitutes for Tort Law

1. Blankenship v. Cincinnati Milacron Chemicals, Inc. The workers’ compensation system does

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