TORTS 1 OUTLINE

DEVELOPMENT OF LIABILITY BASED ON FAULT – CH. 1

• “TORT” – twisted or wrongful conduct - INJURY

- a civil, non-contractual wrong giving rise to a civil action, usually for damages
- imposes duty to act in manner that will not injure others
• Tort law - developed in recent times – middle of 19th century
- some ancient undeveloped cases hinting at torts
- 1st case in 15th century was Anonymous
- tort law now concerns COMPENSATION for injuries - a.k.a. “personal injury” law – includes
wrongful death, property losses, invasion of other legally protected interest (defamation to good name;
invasion of privacy etc.)
-Auto accidents compromises bulk of tort practice in US
• Legal system – establishes system of rules to distribute rights and wrongs in society
1. Labels conduct as right or wrong
2. Sorts out advantage – provides mechanism/procedural process
3. Substitute for revenge and private self-help which disturbed King’s peace

4 Purposes of Tort Law:

1. TO COMPENSATE VICTIMS – shift loss from victim to wrongdoer
2. Deterrence – punishment = imposition of liability ($$$damages$$$) – will deter by
transferring loss from victim to actor and making wrongdoer pay
3. Non-violent dispute mechanism
4. Encourage Social Responsibility

Deter = “ex ante” Compensate = “ex post”

• Goal in tort law is to find reason to shift loss

MAJOR PREMISE: To determine appropriate basis of liability!!!

• Common Law Writ System – genesis of tort law – form of action - needed writ to bring action
**NOTE: distinx not b/t intentional and negligent conduct; emphasis on CAUSAL
CONNEX not character of ∆ s wrong
1. Writ of trespass
-criminal character = no proof of actual damages
-purpose to punish
-LIES ONLY FOR DIRECT AND FORCIBLE INJURIES
2. Writ of trespass on the case
-developed from no writ applicable and applied to Chancellor
-through this action on the case, most of tort and contract law developed
-purpose to award civil damages = must prove indirect injury was done w/ fault – prove damages
-LIES FOR OTHER INDIRECT/TANGIBLE INJURIES TO PERSON OR PROPERTY
**NOTE: In modern law, must prove actual damages EXCEPT for assault, offensive
battery, false imprisonment, and trespass to land

• OLIVER WENDELL HOLMES – “The Path of the Law” – 1897 Harv. L. Rev.
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o General principle of Tort Law: Loss from accident must lie where it falls and principle not
affected b/c human is instrument of misfortune, UNLESS a good reason exists to shift loss from
where it fell
o No case or principle can be found or if found can be maintained subjecting individual to
liability for an act done without fault on his part…..all case concede that an injury arising from
an inevitable accident (no fault) or which in law or reason is the same thing from an act that
ordinary human care and foresight are unable to guard against is but the misfortune of the
suffered and lays no foundation for legal responsibility
o “inevitable accident” is misfortune of sufferer and has no foundation in legal responsibility
o BASIC PRINCIPLE FROM HOLMES TO NOW OF AMERICAN TORT LAW:
--Let loss lie where it fell even though human being is victim UNLESS there is a “good
reason” to shift the loss ------THE “GOOD REASON” TO SHIFT LOSS IS FAULT per Brown v.
Kendall!!!)

TIMELINE

-1466 - ANONYMOUS = NO FAULT SYSTEM

• FACTS - timber falls on house of neighbor
• Timber fell “w/o intent” == “w/o fault” - subjects individual to liability w/o fault
• Sets up no fault regime and strict liability system for direct injury
• No injury or damage be inflicted on the other and intent doesn’t matter
• Contrary to Holmes’ common law – this is a case that can be found that subjects individual to liability
w/o fault where timber dropped on neighbors house
• This strict liability system is trying to accomplish goal of compensation and deterrence = policy
• Achieve max compensation and max deterrence – ok in 15th cent.
• BASIS OF LIABILITY = FULL RESPONSIBILITY REPARATIONS SYSTEM = NO FAULT OR
STRICT LIABILITY
• Defense = “I didn’t do it”

-1616 - WEAVER v. WARD = STILL NO FAULT S/L ESCAPE IF ∆ PROVES UTTERLY W/O FAULT
• Age of Enlightenment/exploration/discovery
• FACTS – soldier shot another soldier during exercise
• Same problem as Anonymous – Both have DIRECT injury - ∆ shoots Π
• Under Anonymous, Π wins b/c ∆ was DIRECT cause of injury
• Strict Liability system
• But now want to relax strict rules of strict liability – Defense = “utterly without fault”
• ∆ can escape strict liability from direct injury with these MAGIC WORDS – UTTERLY WITHOUT
FAULT
• No fault system with fault based escape – mixing oil and water
• Transitional phase from old rule to new one – part of system development, very pragmatic

-1850 - BROWN v. KENDALL = ALL LIABILITY IS BASED ON FAULT

• Represents new scheme/value – coming out of transition
• Identical fact pattern to Weaver and Anon. – writ of trespass form b/c ∆ “directly” injured Π
• FACTS: ∆ separating two dogs – and hit Π in eye with stick
• If apply Anon: Π wins – Kendall strictly liable for direct injury in no fault system – no escape
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• If apply Weaver: Π wins but excuse available (“utterly without fault) – since Weaver, legal system
developed this excuse to be “high care or extraordinary care” as excuse for liability – if ∆ could prove
was doing necessary or required act, could escape if exercising extraordinary care
• Now escape is extraordinary care – but incorrect statement of Holmes
• FAULT IS BASIS OF LIABILITY & BASIS TO SHIFT LOSS – reverse of where we started in Anon
• All liability is based on fault – forms premise of Holmes’s Common Law –
• Shaw sets up PARADIGM OF LIABILITY: see page 8
#4 = LIABILITY - Π wins
∆ Π

Not negligent or no fault Not negligent or no fault #1 = NO LIABILITY: Inevitable

Accident - NO FAULT –no one
Liable - Π loses
Negligent Negligent
#3 = Π negligent and can’t recover
no matter how slight – Π loses
#3= Contributory Negligence - 1809 Landmark case is
Butterfield v. Forrester - Π ’s neg no matter how slight #2 = NO LIABILITY: No
is a complete bar to recovery by Π - case overruled in negligence - ∆ denies liability and
all but 5 jurisdictions with Comparative Negligence sues Π - Π is liable and loses

COMPARATIVE NEGLIGENCE
- A party’s negligence reduces the parties damages by the % of that parties negligence
-Mass. is a modified comparative negligence state
-“Greater Than Not Less than Jurisdiction” – if Π ’s neg is not >, 51% +, the Π may recover but damages are
reduced by % of fault:
• Π = 50% neg and ∆ neg = 50% ------------- Π can recover 50% of damages
• Π = 49% neg and ∆ neg = 51%--------------Π can recover 51% of damages
• Π =6% and ∆ =94% --------------------------- Π can recover 94% of damages

-WEST VIRGINIA IS COMPARATIVE NEGLIGENCE STATE:

-WV IS LESS THAN STATE–parties negligence reduces damages by % of his fault if it is < combined
neg of all other parties in accident
-if 50% - 50% no one recovers ----must be < 49% or less at fault

PURE COMPARATIVE NEG – 15 jurisdictions

-Party may recover damages reduced by % of fault as long as his fault is not total
-e.g: California - ∆ =99% and Π =1% ----Π recovers 99% and ∆ recovers 1%

CONTRIBUTORY NEGLIGENCE – 5 jurisdictions – any neg by Π is complete bar to recovery

-these states stuck in 19th cent. Of Butterfield v. Forrester
-impt to WV b/c are much traveled states: NC, MD, D.C., Alab, Va = Primitive Jurisdix

-In Brown v. Kendall - Π wins only 1 out 4 times

THERE HAS NEVER BEEN A SOCIETY THAT DID NOT IMPOSE LIABILITY FOR FAULT!!!
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Philosophical Interpretations of Brown v. Kendall
A. MARXIST: -THESIS OF SHAW – HE DIDN’T SEE THIS AS PURELY PRIVATE MATTER:
• Saw industrialization emerging in Mass. and America
• MARXIST interpretation of Shaw: decision was subsidiary to business
-decision was a SUBSIDY TO CAPITALISM
-gave mills and employers greater leeway to maim, kill, etc. w/o fear of liability for direct
injuries – maximizes industry’s freedom
• Brown allowed dirty dangerous plant owners to be found not liable
• Under Weaver v. Ward – employer would have to compensate worker for all direct injuries
unless could prove he was “utterly without fault”

B. ARISTOTILIAN: MORAL CONCEPTS IN BROWN V . KENDALL –

** Ethical and moral foundation of Brown v. Kendall found in Aristotle’s philosophy
“what has been taken away should be replaced”
• 2 Kinds of Justice accdg to Aristotle:
1. Macro – Societal – Distributive
• In just society all rewards based on merit – how society allocates money, honors,
awards, etc.
2. Retributive – “corrective”
• System provides remedy for wrongs
• ALL LIABILITY IS BASED ON FAULT – reason to shift loss is fault

C. UTILITARIAN -PRAGMATIST
• Dominant legal view among academics
• John Stuart Mill-“justice is rule which produces greatest good for greatest number” = Greatest
Social Happiness
• Jeremy Bentham – “social utility”

- 1969 - SPANO v. PERINI CORP.= STRICT LIABILITY FOR EXTRAHAZARDOUS ACTIVITY

• Throws hazard of what is at once desirable and inevitable upon actor
• (Public Profits from individual acts that enrich society)
• Some Aristotilian corrective justice issues
• BOOTH CASE w/in Spano – 1893 – Stupid Rule: makes distinx (as in 15th cent.) b/t direct and indirect
damages: direct – rocks hitting property – no need for proof of damages; indirect – vibrations – need
proof of damages -----similar to trespass v. case = DUMB ancient way!
• PROBLEM IN SPANO is choosing the correct liability regime:
o 3 Possibilities in NY for decisional tree:
1. Change to Strict Liability for all blasting/extrahazardous activities
2. Stay the course with Booth as stare decisis – and make silly distinx
3. Change to Fault –use Brown v. Kendall
• Court choses #1 – rejects Brown and Booth
• Booth makes no good sense in contemporary age – direct/indirect injury outdated ideas
• Apply UTILITARIAN Concepts: many injured by very dangerous, although socially beneficial, blasting
– Greatest good for greatest # by imposing liability on blaster
• How does imposing S/L produce > good? (ENTERPRISE LIABILITY UTILITARIANISM)
-Economic Interpretation of Utility: internalize cost to enterprise –
-Business can better bear loss and risk
-Loss is widely distributed through loss system = mechanism of tort system’s imposition of S/L
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-FAULT IS IRRELEVANT
-greatest good for greatest # by shifting loss = HALLMARK OF MODERN WELFARE
SYSTEM!!
-enterprises must assume cost of their activity
• Ex. of corrective justice borrowing from distributive justice

3 BASIS OF TORT LIABILITY:

1. Intentional Conduct
2. Negligent Conduct creates unreasonable risk of
causing harm
3. Conduct that is neither intentional or negligent
but subjects actor to strict liability b/c of public
policy (e.g. Spano)

Target ∆ s = McDonalds – Deep Pockets are Key

• 3 GLOBAL ISSUES OF ANY DISPUTE (not just torts)
1. LIABILITY – What are rules that render ∆ liable to shift loss and collect? What did ∆ do
WRONG?
- Must break rule to have any liability = substantive rule of law
2. REMEDY – What can Π get to right wrong?
-2 kinds of remedies:
a) specific – designed to remedy problem specifically (i.e. divorce, injunx)
b) substitute – ALWAYS $$$ Damages – most often sought in tort
3. ENFORCEABILITY of remedy –
a) specific performance
b) collectability – assets/insurance

• More philosophy:
1. Aristotle - analysis in terms of pure morality and ethics – individual corrective justice
-shift loss only when wrong done
2. Posner – pragmatist/utilitarian theory
-law analysis based on economic analysis: Justice produces maximum economic efficiency
or wealth maximization
-∆ required to spend sufficient amt of $ to avoid unreasonable accidents
-not care about morals, but >est good for > #
-loss is distributed based on WHO is better distributor in economic terms
-Hammontree v. Jenner – Note 5 pg. 12 = liability should not be based on fault but rather on
utilitarian ideas of loss spreading and who is more effective loss distributor – “all liability is
based on insurance”
-Spano – was all about LOSS DISTRIBUTION

Note: Ethical vs. Utilitarian Principles pushing tort system

COHEN v. PETTY – 1933

-FACTS: Π s were riding as guest in ∆ s car -∆ fainted and wrecked injuring Π s
-∆ won - ∆ not negligent for fainting
-in fault based system must prove fault ----no fault here therefore no liability----no reason to shift loss even
though victim injured
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-Rule of society here says injurer can escape liability – seems hard hearted
-Is it “just” for a person NOT at fault to be held liable?
--DIFFERING ATTITUDES ABOUT WHAT IS JUST:
-Under Anonymous 15th cent– YES – S/L or No fault system for direct injuries –
-Direct injury is proper loss shifter
-Under Weaver – 17th cent. – YES - liable UNLESS “utterly w/o fault”
-Under Brown v. Kendall – 19th cent. – NO – b/c all liability is based on fault – dominant value system
dictated – era of INDIVIDUALISM
-Under Spano – 20th cent -Yes – Strict liability for ultrahazardous activity – concerned with loss repair
=Solidarity Century
-In 21st Cent – concerned with LOSS PREVENTION – reparation – focus on safety regs, etc

2 BASIS OF LIABILITY THAT ARE JUST or 2 Good Reasons to shift loss

1. Liability based on Fault from Shaw – shift where have fault
BASIS OF FAULT:
a) intentional conduct
-intent = Restatement 3rd § 1:
i. Purpose; or
ii. Knows to a substantial certainty that conseq will ensue from person’s conduct
-Rest. 2nd refers to “desire” to cause harm
b) reckless conduct – Restatement 3rd § 2
i. knows of risk or knows facts make risk obvious to anyone in situation; AND
ii. precaution involves slight burdens relative to magnitude of risk as to make
failure to adopt precaution a demonstration of person’s indifference to risk
c) negligent conduct
-definition in Rest 3rd differs from Rest 2nd
-Rest 3rd incorporates Carroll Towing Calculus of Risk –compares Burden of Precaution
with potential loss
-“ A person acts with neg if does not exercise reasonable care under all circumstances…”

2. S/L or NO FAULT under limited circumstances

a) extrahazardous activity

WVa CASE: Bailey v. S.J. Groves and Sons - Liability Based on Fault
-∆ built highway and flooded Π s land
RULE: All liability is based on fault = modern rule so ∆ not S/L to Π in trespass for land damage
-∆ had no fault –no intent-no recklessness-no negligence- no ultrahazardous activity
-Direct injury theory of Anon-rejected and not deemed hazardous activity
-THEREFORE – no theory of liability to shift loss from Π to ∆
3 Global Issues:
1. No theory of liability and no case
2. Remedy - ?
3. Collectability = good deep pocket ∆ with construx co

2 Ways to Look at Legal Rules

Ex post – “of after” – does rule accomplish goal of compensation?
B. Ex anti – “of before” – does rule produce proper amt of deterrence?
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SEE QUIZ

Remember - BURDEN OF PROOF IN FAULT BASED SYSTEM IS ON Π

- Direct/ Indirect Injury has no meaning

INTENTIONAL INTERFERENCE WITH PERSON/PROPERTY – CH. 2

“Even a dog understands difference between being kicked and being tripped over” –TC Cady

1. “Intent” -
• Restatement 2nd §8A – “desires” to cause conseq; or “believes” conseq certain or substantially certain
• Restatement 3rd § 1 – stylistic change – “purpose”; or “knowledge” to subst. certainty
• Intentional wrong utterly w/o any social utility = highest wrongdoing form = great outrage
• Legal response to intentional wrong is to punish and ignore excuses of minority, infancy, mistake,
prank, and to EXTEND liability to limits of outrage
• Nominate/Dignitary/Intentional Torts Include: BATTERY, FALSE IMPRISONMENT, TRESPASS TO
REALTY, CHATTEL, and CONVERSION – new addition of infliction of emotional distress
Garrett v. Dailey
-Facts: 5 yr old removed chair from under Π as she went to sit down - Π fractured hip
-INFANCY/MINORITY ARISES AS FIRST EXCUSE to intent
-Issue: Whether a child that young could have sufficient mental development to have subjective state of mind
sufficient to be labeled intent? Could he know to substantial certainty or have belief that act will cause harm?
-INFANCY IS IRRELEVANT AND NO EXCUSE– in theory a child of one day could intend a tort – from
legal position b/c intentional wrongdoing has no social utility – legal view is punitive
-WHETHER THERE IS SUFFICIENT FACTS TO DETERMINE WHETHER OR NOT HE HAD
KNOWLEDGE TO A SUBSTANTIAL CERTAINTY

Spivey v. Battaglia
-Facts: friendly hug paralyzed Π
-intent is acting with purpose or knowledge to a substantial certainty
-Issue: Was there intent?
-Rule: intent is acting w/ of purpose of producing crooked neck or knowledge to substantial certainty
-Analyze: ∆ did not act with purpose of paralyzing Π - was only a friendly hug
-Conclusion: No intent to cause harm and therefore no battery
-Must be a belief to subst certainty of a conseq – none here

Ranson v. Kitner
-FACTS: ∆ shot Π ’s dog while hunting, thought it was wolf
-MISTAKE DOES NOT NEGATE INTENT – MISTAKE IS IRRELEVANT AND NOT A DEFENSE
-Intent not ltd to consequences that are desired – intent refers to conseq of act rather than act itself
-May seem harsh but is so B/C INTENT IS ALWAYS IN TERMS OF CONSEQUENCES
Rest. 2nd § 8A Rest. 3rd § 1
1. desires consequences 1. purpose –consequences
2. believes substantially certain 2. knows subst. certain

-one intends to shoot – did intend to harm something

-B/C of punitive purposes for intentional wrong – mistake is no defense
-In W.Va. a deer hunter who was shot by a squirrel hunter has an intentional tort action!
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McGuire v. Almy
-Facts: Π was nurse caretaker who was struck by insane ∆
-INSANITY IS NO EXCUSE b/c
1) civil law not want to deal with “mental capacity”
2) insane person has estate – financially able to compensate and may make “keepers” more careful
-Ex ante – may deter - those who have charge of ∆ will be careful to retain assets
-THIS IS MORE RELEVANT ANALYSIS OF RULE
-Ex post – need to compensate victim

REMEMBER:
THESE CASES SHOW: MINORITY/MISTAKE/INSANITY ARE NOT DEFENSES B/C INTENTIONAL
WRONGS ARE ANTISOCIAL AND MUST BE PUNISHED

-Talmage v. Smith
-Facts: Trespass action; ∆ owner of shed through sticks at boys on rood – stick missed intended target and hit
boy on roof unbeknownst to ∆ - Π is father of boy who got eye poked out
-TRANSFERRED INTENT THEORY = LEGAL FICTION TO GET DESIRED RESULT
-Don’t need transferred intent theory because ∆ caused voluntary violence = unacceptable to society
-∆ is liable
5 torts w/in trespass writ:
1. Battery
W.Va. Case – Lambert v. Brewster – WV adopts transferred intent 2. Assault
-Facts: pregnant woman sees Dad battered – miscarries 3. False Imprisonment
-Distinx b/t Talmage: 4. Trespass to Land
1. Dealing with INDIRECT harm harm here – no stick in eye - 5. Trespass to Chattel
2. Mental component of INTENTIONAL INFLIX OF
EMOTIONAL DISTRESS
3. BYSTANDER LIABILITY – bystanders can recover under “Why the Haves Come out
transferred intent theory – even though not in zone of danger – Ahead” – by Mark Gallanters
this may be argued as “grotesque” expansion -sociology of law
-INTENT TO HARM FATHER IS TRANSFERRED TO WOMAN One Shotters – little guy
-Her fright had physical consequences = spontaneous abortion Vs.
-WV adopts doctrine of transferred intent: ∆ not excused from liability Repeat Players – big co
b/c he did not realize conseq of actions -RPS have advantages of :
-Brewster intended to harm her b/c he intended to harm her father = 1. Sheer size –lg co
application of transferred intent doctrine 2. Better Legal Services
3. Institutional Facilities – all
NOTE: TRANSFERRED INTENT IS TRANSPARENT FICTION – from Harvard – boys club –
made up to PUNISH and expand liability b/c intentional wrongdoing has WASP conspiracy – system is
no social redeeming value rigged
4. They make rules b/c there
USABLE RULE FROM LAMBERT: all time
1. Elemental Test 2. Factoring Test
-restrictive list of elements: -not as restrictive THESIS: formidable barriers
-∆ oriented/no expansion -Π oriented to using legal system as
Intent Nature of wrongdoing (intentional, vehicle of reform
Transferred Intent reckless, neg) 7 Nominate Torts – protecting
Physical Conseq Nature of Consequences (physical, personal dignity =
Battery Trespass to Land
Π closely related mental, permanent, temp)
Assault Trespass to Chattel
Proximity Nature of Relationship
False Imp. Conversion
Nature of information/relationship
IIED
to location
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2. BATTERY See Restatement Concise page 7-10

-battery has become exclusively an intentional tort REVIEW HARMFUL v.
-2 TYPES OF BATTERY: OFFENSIVE – SEE PAGE 30
1. HARMFUL CONTACT – Rest. § 13 in text and page 7-10 in
-physical alteration of physical integrity by: Concise Restatement
a) Invasive – bullet - knife
b) non-invasive - bruising
2. OFFENSIVE CONTACT – Rest §18
-offends sense of dignity of reasonable person
-(Rest. § 19)
Cole v. Turner -Idea of “least touching” changed – do not focus on intent of
-least touching in anger is battery actor but on the contact and whether it was harmful or offensive
-gently w/o violence is no battery
-any violence = battery

Fisher v. Carousel Motor Co.

-OFFENSIVE TOUCHING EXAMPLE
-Facts: plate snatched out of hand of black Π - racial epithet also spoken
-Intentional grabbing of plate = battery and intentional invasion of person
-indirect offensive result - § 18 includes contact with other items of person (cane, bag, purse, dog, bumper,
umbrella) ----ltd to items “closely associated”
-Still offensive contact w/o epithet
-but if only offensive words w/o contact, NO BATTERY

Page 33 Note: Blowing smoke in face of someone allergic is battery accdg to § 18 1(b) – indirect, offensive and
harmful

W.Va. Cases – Criss v. Criss

-husband raped wife – threatened her etc.
-Testimony of wife and wife’s mom only evidence - nothing else introduced – trial court said insufficient
evidence given but Sup Ct overruled – was sufficient evidence
-Under WV Law in an action to recover for an intentional tort, the Π is entitled to have elements such as
mental anguish, insult, indignity, and humiliation considered by jury in arriving at an award for damages
-invoked theory of “outrage” = “iied”

Courtney v. Courtney
-husband abusive to wife and son – mother-in-law supplied him with drugs/alcohol
-iied can be recovered even though no physical harm suffered
-for ∆ to be liable for assault, Π must be in fear or apprehension of imminent bodily harm w/o proof of
physical harm
-these case represent genre of intentional torts for domestic abuse
-can recover for insult to dignity for intentional tort
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3. ASSAULT -

-I de S v W de S – Great Grand-Dad of Assault cases (1348)

-Facts: beat on door w/ hatchet – scared wife of Π -she thought she would be hit
-See concise Rest §21 – was an “imminent apprehension” of harm
-HARM WAS DONE – cause of action protecting dignity of mental tranquility, uninterrupted by threats
-Western Union v. Hill
-Facts: agent of ∆ tried to grab woman across counter – “fix her clock” if he could pet her
-employer is liable for intentional wrongs of his employees only if the employee is acting within scope of
employment
-here employee was not acting within scope of employment

Personal dignity protected by assault = mental peace

Personal dignity protected by battery= freedom from harmful or offensive contact

4. False Imprisonment
-TORT designed to protect individual dignity of freedom of movement or right to travel unmolested
by public/private usurpation of right of locomotion
-when imposed by officials = False Arrest

Occurs in 3 Prototypical Situations:

A. Shoplifting -
3 Counts of liability v. Shopkeeper
1. False Imprisonment or False Arrest
-See Hardy v. LaBelle’s Distributing Co. page 41 – jewelry store case: no false arrest
b/c moral persuasion to clear her name
2. Defamation – false and malicious imputation re: character and integrity – stop “thief”
3. Invasion of Privacy – intrusion into private thing (purse)
B. Disturbing the Police Peace
1. Public intoxication
2. Disturbing Peace
3. Resist Arrest
4. Open Container
5. Assault
6. Destrux of Property
C. Religious Commune Cases

Restatement § 35-1-a: Essence of false imprisonment:

-intent to “confine” within boundaries fixed by actor – as opposed to “excluding” – no basis for false
imprisonment by denying access
-directly or indirectly results in confinement
-other is conscious of confinement or harmed by it

-Big Town Nursing Home v. Newman

-Facts: old man committed to home, restrained against will, and escaped
-False imp = direct restraint of physical liberty w/o adequate legal justification

W.Va. Case: Rife v. Armstrong – Parallels Big Town -

-Facts: involuntary commitment of Π - interest of freedom of movement/locomotion is protected by
dignitary tort of false imprisonment
-Cannot restrain w/o legal justification – Dr. faked exam to certify
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-Parvi v. City of Kingston

-Facts: cops took drunk to abandoned golf course – he wondered away and got hit by a car- had no memory of
events
-False imprisonment as dignitary tort is not suffered unless its victim knows or is conscious of dignitary
invasion
-No liability unless know of confinement – See Restatement § 42
-KNOWLEDGE IS KEY TO CASE
-Majority: knew at time what was happening – so conscious confinement
-Minority: no knowledge now so no knowledge then = no confinement

-Hardy v. Labelle’s Distributing Co.

-Facts: sales clerk in jewelry store accused of stealing watch – led into room under false pretenses – took lie
detector test and passed
-2 key elements 1) restraint against will and 2) unlawfulness of restraint
- must be w/o ability to leave – or fear harm
-Π here didn’t ask to leave – went willingly to clear her name
-fine line between restraint or confinement by duress v. moral persuasion

-Enright v. Groves
-ASSERTED LEGAL AUTHORITY
-“Disturbing police case” –
-Facts: Π arrested for not producing drivers license – offense – dog w/o leash
-abuse of discretion by cop – not entitled to arrest her for not producing driver’s license

-Whitaker v. Sanford
-Facts: wife was stranded on yacht – husband member of religious cult – no boat available to get to shore
-no contact is required for confinement – all need is physical barrier to escape (in this case, the sea)
-If 2nd exit available but not known, still liable for false imprisonment

5. Intentional Infliction of Emotional Distress or “outrage” = IIED

Note: Supreme Court of California dominated tort law in 2nd half of 20th cent.
Judge Traynor – led court
IIED-
-goes beyond assault which is threat of physical violence
-tort protecting mental tranquility
-SEE REST. § 46
-4 Elements:
1. Intentional or Reckless Conduct - *Note – no other intentional tort can be founded on
recklessness (which is wrong < intentional)
2. Extreme and outrageous conduct Each case explores one element…..
3. Causal Connection Siliznoff – intentional?
4. Severe Emotional Distress Slocum – extreme and outrageous?
Harris – severe?
Taylor – causal connex?
1. INTENTIONAL
-State Rubbish Collectors v. Siliznoff
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-LANDMARK CASE – JUDICIAL LAW-MAKING = 1ST AMER. LEGAL ADOPTION OF IIED
-Facts: ∆ collected trash in territory of other member of garbage union – was threatened and became ill
-cause of action is established when one without 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
-intentionally subjecting one to severe emotional distress is anti-social and w/o utility
-Π is liable if conduct is extreme and outrageous and intentionally or recklessly causes severe emotional
distress

See Restatement § 46 and comments following IIED unusual b/c liability based on
recklessness – See R3rd §2
Review: “Intent” -knowledge of risk and
R3d § 1 R2d § 8a -obvious indifference to known obvious
Purpose Desires risk
Knows Believes -See also R.2d§500 – old definition of
reckless
2. EXTREME & OUTRAGEOUS
-Slocum v, Food Fair Stores
-Facts: woman had heart attack after store clerk told her she stunk
-conduct did not exceed bounds tolerable by society
-insulting language – not extreme and outrageous = MAJORITY VIEW
-WV, VA, MISS – HAVE INSULTING WORDS STATUTES - § 55-7-2 = MINORITY VIEW – makes racial
epithets, vituperative etc. actionable
-“de minimus non curat lex” – the law does not concern itself with trivialities; of little things there is no legal
cure
W.Va. Case – Covey v. Fields (Insulting Words Statute)
-if allege insulting words, must go to jury -Facts: “yellow streak, SOB, MF, etc)-words tended to violence and
breach of peace

Middlebrooks v. HillCrest Foods Inc. – 11th Circt –in Ga. –See Rest. § 48 – Spec. Liability for common carrier
-Facts: 8 Black H.S students stopped at waffle house – racial epithets spoken by cook –GA no insult statute
-Rest. § 46 – was extreme and outrageous as abusive exploitation

-Jones v. Clinton
-Sitting pres. may be sued
-Π ’s theory of liability:
1. Emotional Distress
2. Violation of civil rts – sexual harassment in workplace
-Rest. § 46
-See also page 57-58 – Magruder Test – mere solicitation of woman is not assault or any other tort – Magruder
incorporates idea that law not concerned with trivial matters
-NO TORT OF INSULT – danger in trivial realm of insulting language – no pressing social need to convert to
tort – need room to blow off steam
-“Extreme and Outrageous” – atrocious and utterly intolerable in a civilized community – See page 15 Concise
-Clinton’s conduct was offensive but not extreme and outrageous – was but an odious, brief proposition – no
coercion or threats involved
-must be more than mere solicitation to be extreme and outrageous
 13
---------2 Kinds of Extreme and Outrageous Conduct
1. Abuse of a position (superior to inferior; i.e profs, supervisors)
2. Exploitation of some condition making other susceptible to insult

3. SEVERE
-Harris v. Jones
-Facts: Π was harassed by supervisor at GM due to his stuttering condition – condition worsened; was on meds
for nervous condition
-NO CAUSE OF ACTION B/C Π DID NOT SUFFER SEVERE EMOTIONAL DISTRESS
-Rest. 2nd § 46 comment j – Severity determined by 2 factors:
1) Intensity of emotional distress
2) Duration
-Π required to be hardened to certain amt of rough language and occasional acts that are reprehensible and
unkind

Collection Agencies: No liability for reasonable attempts to collect even if it causes or is expected to cause
emotional distress

Insurance Companies and Mental Distress: No liability but there is an obligation of good faith and fair dealing

In W.Va – Human Rights Act allows to recover for discrimination in Employment or in

Public Accommodations
WV CODE § 55-11-2 : “THE NAUGHTY NINE”
1. RACE 2. RELIGION 3. COLOR 4. NATIONAL ORIGINA 5. ANCESTRY
6. SEX 7. AGE (40+) 8. BLINDNESS 9. DISABILITY 10. FAMILY STATUS
11. SEXUAL ORIENTATION (NOT IN WV YET)
**All apply to sale, purchase, lease rental, financing of real estate

-Taylor v. Vallelunga
-Bystander Liability – same as in Lambert
-Facts: daughter saw Dad get beat up
-Rest. § 46 limited – where conduct is directed at 3rd person, liable if intentionally or recklessly causes sever
emotional distress to:
a) member of immediate family who is present at time – whether or not distress results in bodily harm
b) to any person present at time if distress results in harm
-FAMILY MEMBER’s PRESENCE MUST BE KNOWN = MAJORITY RULE
-WV AND MINORITY RULE =∆ DOESN’T HAVE TO KNOW OF BYSTANDERS PRESENCE
-In case, ∆ did not know of daughter’s presence and therefore no liability
***If third
-Prince v. person
Pittstonis“Buffalo Creek Disaster” - Gerald Stern atty for Π of ARNOLD & PORTER
not family:
-33 absent Π ’s who suffered from a) must be present
“survivor and presumably
syndrome” known
(one in Fla, one in jail – family members died)
b) must suffer IIED
-ABSENT Π ’s in WV may recover – EXTENDS LIABILITY resulting in phys consequences (as Lambert’s abortion)
WV EXTENDS
MENTAL THIS THEORY
DISTRESS RULE INOF LIABILITY:
WV:
1. Mental Anguish – compensable
2. IIED = physical consequences
3. Monteleone Rule – if no physical consequences or injury can’t recover BUT if emotional distress
caused by intentional wrongdoing or willful, wanton, reckless act can recover
-Π s alleged coal co’s action was willful, wanton and reckless-knew dams were unstable
-Π s developed “survivor syndrome” via Holocaust expert and University of Cincinnati = airtight case of
legitimacy
-WV LAW UNIQUE IN AREA OF ABSENT Π S – NOT NEED FAMILY MEMBER PRESENCE TO BE
KNOWN AT TIME AS IN BYSTANDER LIAB. – (THINK ABOUT WTC FAMILIES)
 14

MONTELEONE RULE – 3 WAYS MAY RECOVER FOR EMOTIONAL DISTRESS

1. When distress follows physical injury
2. If there is intentional wrong doing which does not produce injury but causes emotional distress
which causes physical consequences
3. No impact and no injury but emotional distress resulting from ∆ s intentional, wanton, reckless or
wrongful act
ESSENCE OF: IS:
REMEMBER:
Battery Harmful or offensive conduct?
Assault Imminent apprehension of phys harm?
False Imp. Confinement?

6. Trespass to Land
-Dougherty v. Stepp
-Facts: ∆ entered Π s land with surveyor – did not cut trees
-“Every unauthorized and therefore unlawful entry is a trespass” – infers damage!
-“Own surface of land up to heavens and down to center of earth”
-What constitutes a trespass? Any physical intrusion = trespass
-Reaching over property line
-shooting bullet onto property - and Herrin
-Blowing smoke on property – see Bradley
-NONPHYSICAL INTRUSION=NUISSANCE (i.e. lights, noise, odor, molecules)

W.Va. Case: Bullman v. Lumber Co. – TREBLE DAMAGES

-Facts: lumber co. wrongfully cut down Π s trees
-not necessary to have actual damages – Nominal damages may be recovered to vindicate dignitary tort
of trespass – offended dignity of property ownership
NOTE: MISTAKE IS NO EXCUSE TO INTENTIONAL TORT
-Unusual b/c granted punitive and “treble” damages – triple compensation
-TREBLE STATUTE - §61-3-48a: get 3 times value for and cut, damage or carrying away of flora w/o
written permission ---section applies to excessive timbering
--Not double recovery b/c treble are compensatory not punitive (punitive + treble = OK)
-Statute intended to deter timber and ginseng theft, & protect vs. intentional trespass to property
-Bradley v. American Smelting and Refining Co.
-Facts: molecules from heavy metals deposited on Π s land
-“Actionable invasion of a possessor’s interest in the exclusive possession of land is a TRESPASS”
-“An actionable invasion of a possessor’s interest in the use and enjoyment of his land is a NUISSANCE”
-Cady says case rids silly distinction b/t two – modern law requires proof of damage before allowing cause of
action no matter if tangible or intangible – ANALYSIS depends on interest interfered with (possession vs. use
and enjoyment)
-when particles dissipate – do not interfere with possession = Nuissance
-when particles do not pass away = TRESPASS
 15
-“INVERSE CONDEMNATION” -
-Trespass to airspace above land from overflights
-govt may take property w/o condemnation proceedings
-in general, property owner only owns within immediate reaches of land - public rt to navigable
airspace----See Rest. § 159

-Herin v. Sutherland
-Facts: ∆ shot at ducks over Π ’s property while on property of another
-firing gun over another’s land interferes with enjoyment of Π and committed technical trespass
-land extends upwards and downwards – nominal damages at least awarded

-Edward v. Simms (KY)

-trespass below surface = SUBTERRANEAN TRESPASS
-Facts: ∆ developed CAVE below surface of his property and went under Π s property - ∆ earned profit
-Π had remedy in portion of profits earned

***SIMILARITY B/T TRESPASS TO LAND AND BATTERY – both intensely protect from harmful
offensive touching – to person or land

SEE CONCISE REST. § 77, 158, 163, 164, 196 – CHAPTER 7

-Rogers v. Board of Road Commissioners Kent Co.

-Facts: ∆ failed to remove post and and Π ’s husband was killed when mowing
-Rest. § 160 – action in trespass lies for continued presence on land of a structure
-post was proximate cause of injuries and death

W.Va. Case – LaRew v. Mon Power –

-Facts: Mon Power damaged 300 yr old white oak tree – easement via written permission so couldn’t use
§61-3-48a
-Kell v. Appalachian applies – broadcast herbicide to rt of way – Power co must obey rule of reason (narrow
case) – Rule of reasonably should reasonably and generally apply to trimming trees = broad extension to
narrow rule

7. Trespass to Chattel
-Rest. § 218 p. 29
-Chattel is lesser interest – not as protected as land
-no good chattel cases in WV
-§218: ELEMENTAL REQUIREMENTS:
1) Dispossession
2) Impairment
3) Deprived for Substantial Time
4) Bodily Harm
-Glidden v. Szybiak
-Facts: Π bit by ∆ s dog - ∆ asserted Π injured dog as chattel
-no trespass to dog by girl b/c dog not injured or meet above requirements

-Compuserve v. Cyber Promotions

-Facts: ∆ was spamming Π s subscribers – subscribers complaining – burden on Π s equipment
 16
-Π asserts trespassing on personal property
-EMAILS are sufficiently physically tangible to support a trespass cause of action - Π has possessory interest
in its computer systems
-∆ s intrusions harm good will and reputation = Actionable

8. Conversion
-“An intentional exercise of dominion or control over 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

W.Va. Case: Arnold v. Kelly Pearson v. Dodd

-Facts: civil war - Π ’s horse take and used -Facts: Senator v. columnist (who entered office of
by ∆ - when tried to retrieve, horse was Sen w/o permission and copied docs then published
wounded article)—Not guilty of conversion – forgotten tort-
-Π has cause of action for -Distinctive feature of conversion MEASURE OF
conversion/trover – See Rest. § 222A(1) -∆ DAMAGES - ∆ must treat goods as own
committed intentional exercise of dominion -info in files not subject to protex – NO
or control that “seriously” interferes CONVERSION

PRIVILEGES – Chapter 3
*Defenses to intentional torts
1. CONSENT
-(Akin to Assumption of Risk Defense of Negligence)
3 Types:
-Expressed in fact
-Implied
-Apparent

-O’Brien v. Cunard S.S. Co.

-(APPARENT CONSENT)
-Facts: immigrant vaccinated for small pox – alleges assault
-dr. did not use force – her overt acts and manifestations indicated that she consented (she stood in line, held out
arm, no one forced her, got certificate)

-Hackbart v. Cincinnati Bengals –THE Consent Case in US for Sports Participant Rule
-Facts: pro-football player injured by intentional striking in back
-What is line for unacceptable Sports Violence?
1) Intentional –
2) Violates safety rule
3) Against General Custom of Game – acting beyond normal rough rules of the game
**Sports players consent to normal contacts of game but not to shots beyond custom of sport

W.Va. Case: King v. Kayak M. Corp-RULE IN WV RE: SPORTS PARTICIPANTS

-Assumption of risk unless conduct is : WILLFUL, WANTON, RECKLESS – which goes beyond
rules of game
Limited Duty for Sports Participants to avoid injury – must refrain from willful, wanton, reckless
injury
----Sports Spectator Rule-----
Spectator assumes ordinary hazards of sports activity (throwing garbage can on coach=not ordinary)
 17

-Mohr v. Williams
-Facts: Dr had consent to operate on rt ear – found nothing wrong- then operated on left ear when discovered
disease w/o reobtaining consent – was a nonemergent situation
-was assault and battery b/c unconsented, wrongful, unlawful b/c circumstances not justify operation, and
invasive = may have been beneficial but is a strict rule
-dr. extended procedure beyond limits of consent
-Notes cite Schloendorff v. Society of NY Hospital (1914)
-Cardozo opinion
-LANDMARK case for consent re: med treatment
-Establishes American baseline of “SELF-DETERMINATION”
“Every one has right to determine what happens to body”

-If Emergent Situation, consent is implied

“Informed Consent” Must be sought:
-if time to seek it, must do so
-for small kids from parents
-and patient given all info

-Demay v. Roberts
-Facts: pregnant woman – told that man with dr was asst when in fact was not – her and husband let him in
thinking he was a drs asst
-Rule: Consent induced by fraud is no consent – Rest. § 892B
-larger application of rule – STD’s

-Hart v.Geysel
-Facts: prize fighting – one died and executor of estate sues for wrongful death – can action be brought when
both parties consented to misdemeanor of prize fighting
-Majority/WV RULE: ILLEGAL CONSENT IS NO CONSENT and there is a valid claim v. ∆ - voluntarily
engaging in activity is no defense – MAY SUE ----WV case = Royer v. BElcher
-MINORITY AND REST §60 – ILLEGAL CONSENT IS GOOD CONSENT – MAY NOT SUE

2. SELF-DEFENSE
-may use such force as reasonably appears to be necessary to protect self - well-recognized principle
-REST. §63-65
a) Existence of Privilege – anyone may use reasonable force
b) Retaliation – after battery no longer threatens, privilege terminates
c) Reasonable Belief-if ∆ believes force is necessary to defend = OK
d) Provocation-insults, verbal threats, language are not enough to justify self-defense
e) Amount of Force – ltd to what is reasonably necessary – differences in age, size, etc must be considered
f) Retreat – generally not required in home –
-Maj/WV: John Wayne Rule - not require retreat – may stand and defend anywhere
-Min and Rest.: must retreat if can before using deadly force –except in home
g) Injury to Third Party – privilege is carried over and ∆ not liable unless negligent

W.Va. Case: Collins

-Facts: Π swung first
-Cannot assert self-defense when provoke or start fight
 18

3. DEFENSE OF OTHERS
-Similar to self-defense but small distinx b/t maj and min rule about reasonable force/ mistake –
-REST. § 76
-WHETHER IN DEFENSE OF ANOTHER ONE MAY INTERVENE AS GOOD SAMARITAN AND
DEFEND WRONG PERSON (AGGRESSOR) – is force reasonable under circumstances?
CHECK?
-Maj: can act on mistake if reasonably appears other is in duress and defending self
-Min: Person (aggressor) must be correct

W.Va. Case: Fink v. Thomas

-Π cracked Fink over head to defend cop
-∆ can assert defense of others b/c acted reasonably

4. DEFENSE OF PROPERTY
-Katko v. Briney
-Facts: ∆ s used spring guns in boarded up farm house to protect property and injured Π
-unusual case b/c homeowner almost always wins
-classic case b/c may NEVER use deadly force in defense of property
-can use reasonable force but not deadly force just to protect property
-law values life over property
-MAJORITY AND WV VIEW – deadly force impermissible in defense of property
-Rest. § 79

5. RECOVERY OF PROPERTY
-May use force to recapture property as reasonably appears necessary to recapture property
-Reasonable Force is limited to:
-“FRESH PURSUIT”
-Property obtained fraudulently by theft or misrepresentation of credit status
*Legal remedy must be used after fresh pursuit expires
-Hodgeden v, Hubbard
Facts: Π misrepresented assets and took stove - ∆ s discovered bad credit, pursued and reclaimed stove
-Π had no rt of possession due to fraudulent misrep of assets – drew knife and became aggressor - ∆ s were
justified to hold Π as long as not unreasonable force used

-Bonkowski v. Arlan’s Dept Store

-Facts: Π accused of shoplifting jewelry – detained by private cop
-Remanded for determination of owner had reasonable belief of larceny and investigation under the
circumstnaces

• Law re: shoplifting – based on reasonable belief of shopowner who may retain person for reasonable time
and reasonably investigate
---Every state has shoplifting statute – accords merchant privilege to detain on appearances for reasonable time,
etc
WV CODE: § 61-3A-4:
Merchant not liable
 19
No arrest made = eliminates suits for false arrest as theory of liability v. shopowner
No more than 30 min
• Landlord/tenant
-must use legal system to evict
-Min: can evict
-Maj:cannot evict

6. Necessity
-Surrocco v. Geary
-Facts: ∆ destroyed building in hopes of stopping fire raging - Π s unable to remove all goods
-Necessity provides a privilege for private rights
-page 636 – King can do no wrong – eminent domain – historical perspective
-@ C/L govt could not be sued = immunity W.Va. Case: Taylor v. Chesapeake
-doctrine of private necessity differs
-Vincent v. Lake Erie Transport from public necessity
-Facts: due to storm, ∆ had to stay moored to dock -have privilege to inflict harm on
causing damage rather than being lost in storm another but MUST compensate
-private necessity = must compensate dock owner
-value of ship>dock
-trespassing BUT privileged out of private necessity
-∆ must pay even though not at fault in terms of negligence
-Pay for necessity – prevent unjust enrichhment

7. AUTHORITY OF LAW
• IF ∆ IS DULY COMMANDED BY LAW TO DO WHAT HE DOES = NOT LIABLE
• PROBLEM IN HOW FAR TO EXTEND LEGAL SANCTION
• See page 124 – arrests w/ or w/o a warrant

8. DISCIPLINE
-MAJORITY: forbids corporal punishment-Other areas: Parent may use – Schools may not under WV § 18-8-
5(1)
-See WV assignmts page 62 – Parental Immunity (parent immune from suit by child except re
1. auto accident/insurance
2. Courtney v. Courtney – “child-abuse”
3. when parent kills child – Coal Case page 62

9. Justification
-“catch all”
-general privilege where actor justified in using force or violating intentional tort for > purpose of protection as
is REASONABLE in circumstances
-Applies to: Common Carriers, innkeepers, employers, guards, etc.
 20

NEGLIGENCE – CH. 4
-BUSINESS OF TORT LAW = Determining if conduct is intentional or NEGLIGENT
-Moving discussion from intentional conduct to NEGLIGENT conduct creating unreasonable risk of harm
-Negligence as cause of action arose out of liability for those in “public calling” (common carriers, innkeepers,
etc…those in which skill is required)
-evolved out of Industrial Rev. (19th cent) – 1825 from action on case – Railroads
-Intentional torts have no social value – Negligence involves activity that has some utility but is mixed with risk
of damage of tort
-Recognized generally after 1850 Mass. – Brown v. Kendall From Book:
-SEE RESTATMENT § 281 4 elements:
-4 ELEMENTS: WRONG – DUMB WAY OF
STATING FROM VA LAW Duty
1. Duty Breach
2. Dereliction STUDENT = 4 Ds
---from Harris v. Martin Causation
3. Damage Damage
4. Direct Cause

CADY’s SUPER SIX 1. Duty: Was ∆ under a duty to

exercise certain amount of care? If
so, what?
-basic analytical strux to solve most tort problems 2. Breach: all persons required to
-Premise from Rest 3d §4,5,6 refrain from harmful, dangerous
-TAKE THESE SEQUENTIALLY conduct – breach of duty subjects to
A. Conduct basic portion of liability
1. DUTY – to refrain from intentional wrong; 3. Factual Cause: scientific link of
exercise due care; S/L conduct to harm – “Neg. must be
2. BREACH – intent, negligence, ‘a’ cause in fact of harm”
ultrahazardous or S/L 4. Proximate Cause: Policy limitation
B. Causes of liability
3. FACTUAL – in fact 5. Injury: Law recognizes “interests”
4. PROXIMATE – limit of liability as being worthy of protex –
C. Harm 6. Damages: most often $$$
5. INJURY a. Compensatory
6. REMEDY – damages- $$ b. Nominal
c. Punitive

NEGLIGENCE FORMULAS:
• RST 2d § 282: “Negligence is ‘conduct’….” = not a state of mind as was focus in intentional torts – no
consideration of mental state
“which falls below the standard established by law….” = OBJECTIVE STD
“for protex of others from unreasonable risk of harm….” = conduct has utility and must not be
unreasonably risky
• RST 3d § 3: Very difft from 2d – CODIFIES CARROLL TOWING’s BALANCING TEST
 21
-to determine whether conduct is unreasonable must balance foreseeable likelihood conduct will result
in harm with the severity of harm
“A person acts with negligence if the person does not exercise reasonable care
under all the circumstances. Factors are foreseeable likelihood that will result in
harm, foreseeable severity of harm, and the burden that would be borne if person
takes precautions that eliminate or reduce possibility of harm”
-CARROL TOWING – LEARNED HAND’S CALCULUS OF THE RISK: B > OR < P X L
B = BURDEN OF PRECAUTION
P = POSSIBILITY OF HARM (FORESEEABLE LIKELIHOOD TO RESULT IN HARM) (Probability
That loss will occur)
L = GRAVITY OF INJURY (SEVERITY OF HARM OR POTENTIAL ACCIDENT COST)
(Magnitude of Loss)

-difft from § 282 b/c neg is “failure to exercise reasonable care”

• If B < PL = NEGLIGENCE
• If B > PL = DUE CARE – have taken adequate precaution
• If B = PL = EQUILIBRIUM and Due Care (accdg to Posner) – taken exactly enough precaution
to prevent unreasonable risk of harm
• Economic Analysis - if fail to take adeq precaution and are liable = cheap and are projecting cost
that should be ∆ s upon victiml; if use overcare – too much $ spent and not efficient
-Carroll Towing -
-Facts: bargee absent – boat unmanned and came away from dock
*Barge Co omitted to take sufficient precaution given likelihood harm would occur
*Burden of keeping someone on board was small in comparison w/ costs of potential accident
therefore was NEGLIGENT
*No excuse for absence in war time – much traffic – situation called for co. to have someone
aboard during working hours
-Accident costs outweighs cost of precaution to have bargee aboard

• Rest. 2d § 283 – Std of conduct by law is that of REASONABLY PRUDENT PERSON

“Unless the actor is a child, the standard of conduct to which he must conform to
avoid being negligent is that of a reasonable man under like circumstances”
-What would RPP do? In terms of Carroll Towing – would reasonably prudent barge co leave
unattended? NO – conduct fell below std of RPP
Rest. 282 and 291:
-In terms of unreasonable
• Rest. 2d § 291 – RISK UTILITY ANALYSIS or “Cost Benefit Analysis” – risk
o If Risk > Utility = NEGLIGENCE – unreasonably risky
o If Risk < Utility = DUE CARE – reasonably risky -Rest 3d §3 = CARROL
TOWING
Rest. 2d §292 – FACTORS TO DETERMINE UTILITY OF CONDUCT -Rest. § 283 = RPP =
o Social Value McMillen
o Extent of Chance Interest Advanced -Rest § 291= Risk/Utility
o Can it be advanced by another alternative, less dangerous one Risk defined in 293
Utility defined in 292
Rest. 2d §293 – FACTORS TO DETERMINE MAGNITUDE OF RISK
o Social Value
o Invasion of Interest
o Extent of harm
 22
o Other Persons

-Lubitz v. Wells = Not Negligent

-Facts: dad left golf club on ground – son hit other child with it
-∆ not negligent : WHY? Apply formulas….Calculus of Risk, Definition of Negligence 3d or 2d, § 291
-This deals with BREACH –
-§282: Conduct was reasonably risky – leaving club in yard not create unreasonable risk of harm
-§283: dad acted as RPP
-§291: Risk < Utility = DUE CARE
-§292 and § 293 – facts in considering utility and magnitude of risk
-CARROL TOWING: B > PL =DUE CARE
*Conduct which is reasonable and has low probability of resulting in harm is not negligent
-----Cady is not convinced that dad not negligent – simple precaution to pick up club – should be resolved by
jury, not rule on as a matter of law
-----Key to understanding case: P (potential risk probability) is non-existent = P(0) x L = B = 0 ---Cady doesn’t
believe this – understand in historical context – not as safety conscious then

WV Rule of Negligence = McMillen Test:

“Negligence is the doing of an act which a reasonably prudent person
in the same or similar circumstances would not do, or the omission to do an
act which a reasonably prudent person in the same or similar circumstances
would have done.”
----Did ∆ act as a reasonably prudent person under the same or similar circumstances….????
--Facts: Motorcycle accident – no witnesses – jury found for ∆ ----Cady says case is “pissing match b/t 2
skunks” = unwinnable case
-∆ not neg b/c acted as RPP

Haynes v. City of Nitro = Close to Negligence formula in WV

-Facts: mom-in-law sued city, RR, and daughter as driver of car when injured after car drove off street and
fell one foot onto RR tracks = Thelma and Louise
-Similar formula as Carroll Towing and Rest §3 – most sophisticated and recognized test - RR and city
were negligent (not daughter)
-road unmarked for 9 years
-Cost of prevention is so small compared to probability that harm will occur = NEGLIGENCE
-Case is typical of bureaucratic inertia – will accomplish deterrence and compensation

-Blyth v. Birmingham Waterworks= Not Negligent

-Facts: ∆ installed fire plugs in water mains – freezing caused water to go into Π s house
-§282 = Reasonable Risk Difference b/t
-§283 = acted as RPP ---precaution was reasonable Blyth and Gulf
--Water Co
-§291 = Risk < Utility ---Utility of conduct outweighed risk
would have to
-Carroll = B> PL ---∆ took sufficient precaution to guard against what was likely
replace all plugs
-McMillen = acted as RPP under circumstances
---Gulf only had
---unprecedented freezing = contingency against which no reas person could provide
to replace one
---Burden to install totally freeze proof plugs too much
drum = nominal
---DO NOT WANT OVER PRECAUTION = INEFFICIENT
burden
 23
-Gulf Refining v. Williams = NEGLIGENT
-Facts: Spark from cap of oil drum caused explosion – “bung cap”s
-B<PL; R> U; did not act as RPP
-failed to exercise due care by keeping bad drum in circulation – created unreasonable risk of harm

-Chicago RailRoad v. Krayenbuhl = NEGLIGENT

-Facts: kid got hurt on RR turntable
-B < PL; Risk > Utility; RPP would have locked turntable
-minimal burden, great risk of kid getting hurt, little utility in leaving it unlocked; RP RR would have locked

-Davison v. Snohomish Co. = NOT NEGLIGENT

-Facts: Π skidded around turn, broke through railing on ramp; fell to ground = severely injured
-B was sufficient and > PL ---∆ did enough to guard road – cost to co. would be too much (at the time)
(Safety is a function of wealth and technology)

STANDARD OF CARE
“Negligence is conduct that falls below the standard established by law”
SEE ALSO REST §283
• What is reasonably prudent person?
W.Va. Case – Crane Equip. Co v. Park Corp.
-Facts: loading heavy condenser – dropped on dock and damaged it
-MERE FACT THAT SOMETHING GOES WRONG DOES NOT NECESSARILY MEAN NEGLIGENCE
-Neutral mishap and Π has burden of proving negligence and what RPP would have done
-Universal Application - Simple Accident does Not mean Negligent ---Must have theory of liability such as
what a RPP co. would have done (use expert testimony)

W.Va. Case – Honaker v. Mahon

-Facts: widow sues kid who hit her late husband’s car on way to prom = intersection collision (Π wants
more from own insurance co.)
-Case establishes RPP std in WV as an OBJECTIVE STD (has been objective std since Vaughn v.
Menlove)
-“Negligence is either the failure to do what a RPP would ordinarily have done under
circumstances or doing what such a person under existing circumstances would not
have done”
-SAME TEST AS IN MCMILLAN v. DETTORE
-Vaughn v. Menlove = LANDMARK RPP CASE – USING OBJECTIVE STD
-Facts: ∆ built hay rick near Π s land – “∆ said he would chance it”
-∆ wanted to be held to subjective std - “judgment”- bona fide or good faith belief std = EMPTY MIND;
GOOD HEART
-See page 172 – atty case
-SUBJECTIVE STD LEFT FOR INTENTIONAL TORTS AND CRIM LAW

-DeLair v. McAdoo
-Facts: defective tires on ∆ s car blew out = collision
-RPP HAS KNOWLEDGE OF COMMON FACTS OF HUMAN EXPERIENCE
 24
-Drivers are required to know condition of vehicle – duty to find out

RPP is ideal, std which embodies all qualities of good citizen – who is careful, looks before
leaps, informs self of history of things – moderate – precautious
**HONEST MISTAKE? – RPP IS ALWAYS CORRECT and NEVER MAKES HONEST MISTAKE
---STRICT, OBJECTIVE, EXTERNALLY RIGID STANDARD
Trimarco v. Klein
CUSTOM: -Facts: bathtub door shattered on tenant
-Quintessential test is what is reasonable conduct
W.Va. Case: Harless v. Workman under all the circumstances
-Facts: ∆ coal co.’s dust was all over Π s
property
-NOT NEGLIGENT - ∆ attempted to
minimize dust
-see page 278 of WV Reporter
-if state of art equipment available, ∆
must use it---what is customary is usually
due care but not always

COMPARE HARLESS WITH:

-HOLMES: Custom is usually due care – “what usually is done may be evidence of what
ought to be done, but what ought to be done is fixed by a std of reasonable prudence,
whether complied with or not”
-HAND: “In most case, reasonable prudence is in fact common prudence; but strictly it is
never its measure; a whole calling may have unduly lagged in the adoption of new and
available devices. It never may set its own test, however persuasive be its usages.
Courts must in the end say what is required; there are precautions so imperative that
even their universal disregard will not excuse their omission.”

SUDDEN EMERGENCY:
-RPP std is relaxed to allow for misjudgment or mistake in situation NOT of his own making
-most often in traffic situation
-Sudden Emerg. Instrux only given in UNANTICIPATED EMERGENCIES – not viable for everyday traffic
issues

-Cordas v. Peerless Transportation Co.

-Facts: armed hood held up cab driver – he jumped – run-away cab injured Π s
-Question of fact for jury if RPP would do that under sudden emergency
-Court did not hold ∆ liable even though Π s were injured

W.Va. Case: Moran v. Atha Trucking

-Facts: crashed into parked trucks that blocked slippery road
-jury is instructed on sudden emergency
-Hunter v. Johnson
Facts: rearended by dump truck - ∆ claims brakes went out
-Unavoidable accident instrux should not be given – THIS CASE KILLS IT
-can’t be given b/c confuses jury and pro-∆
-this is becoming trend in US
 25
PHYSICALLY DISABLED
-Roberts v. State of La – RELAXES RPP STD OF CARE FOR PHYSICAL DISABILITY
-Facts: blind worker bumped into Π = NOT NEGLIGENT
-A blind man must take precautions which ordinary reasonable man would take if her were blind
-Rest. § 283C – Physical Disability – must conform to std of reasonable man under like disability
-ONLY APPLIES TO PHYSICAL HANDICAP – NOT MENTAL
-std relaxed for physically disabled at Π s expense
-physically disabled need not use higher std than RPP - only due care in light of disability
NOTE: Voluntary Intox = no excuse Involuntary Intox = excuse

CHILDREN
-Robinson v. Lindsay
-Facts: Kid driving snowmobile – severed thumb
-Is minor held to adult std of care? Rest § 283A – child held to std of child of like age, intelligence, and
experience under circumstances
-Exception: std goes up if child is engaged in DANGEROUS ADULT ACTIVITY such as operating
snowmobile – held to RPP as adult
-applies to cars, tractors, golf carts BUT NOT TO BIKES
-MAJORITY RULE: This case & Restatement
-MINORITY/WV RULE: RULE OF SEVENS =
W.Va. Case: Pino v. Szuch
Facts: 8 year old boy on bike and man on riding mower collided
-jury found boy 45% neg – WV Readopted RULE OF SEVENS in 1991:
- O – 7 = conclusively presumed incapable of contributory negligence
- 7 – 14 =inconclusively presumed to being capable of contributory negligence -
∆ must prove neg by comparing to child of like age, etc. =
REBUTTABLE PRESUMPTION
- 14 – 21 =Normal std of RPP
-Rule of Sevens most often applied to kid Π s and contrib. Neg
-Dart Out Cases (in front of cars) – if 0-7; ∆ must pay all – kid darting out is not sudden
emergency
-Court says Rest. § 283 too vague and not helpful – then says factors in §283 must be
introduced to prove neg
NOTE: deer hunting is not dangerous adult activity in Arkansas

Mentally Disabled – RPP NOT RELAXED

-Breunig v. American Family Ins. Co. = “GOD IS MY CO-PILOT and I AM BATMAN”
-Facts: woman driving on wrong side of road – overcome with insane delusion – God was talking to her –
BATMAN could do it
-RPP std NOT relaxed for mentally disabled -Cady offended by this discriminatory notion
-Insanity not allowed to relax std – see § 283B -Should apply same std as physically handicapped
-Too hard to draw line b/t incompetency, temperment, etc
-Easy to fake – evidence is bad – do not want confusion of criminal law
-compensation for innocent victims
-Keepers more responsible
-POLICY: Keepers of insane should take care to guard them
-Similar to McGuire v. Almy
-THIS IS MINORITY VIEW AND WV IS IN MINORITY
 26
WILL EVAL. ALMOST ALL CASES BASED ON RPP STD
REST. § 289(b) – IF HAVE SUPERIOR ATTRIBUTES, THOSE WILL BE CONSIDERED AS
SUBJECTIVE CHARAC.

WHEN IS RPP STD RELAXED?

1) Sudden Emergency
2) Physical Disability
3) Childhood – except if engaged in adult/dangerous activity

2 BASIC STDS for determining 3 Factors to determine degree of care demanded:

whether or not actor is negligent: 1. likelihood that conduct will injure others
1. What would RPP do or not do 2. seriousness of injury if it happens
under circumstances 3. interest must sacrifice to avoid risk
2. Calculus of Risk (Hand) or
Restatement § 3 Basic Formulas
--for sophisticated and juries use 1. RPP
RPP 2. Judge Hand – Carroll Towing
3. R§291 – Risk v. Utility

B < or > P x L
(Burden of (likelihood (extent of
Precaution) of accident) injury)

DUE CARE/Reasonable Negligent/Unreasonable

Risk Risk
• Risk < Utility or Cost < Benefit • Risk > Utility or Cost > Benefit
• Cost of precation > chance of • Cost of Precaution < chance of
accident accident
• B > PL • B < PL

THE PROFESSIONAL
---He who holds self out to public to be superior to norm with special qualities
must live up to them
-such as attys, drs., vets, teachers, clergy, accts, plumbers, mechanics-
any member of “SPECIAL
CALLING”
-Rest § 289(b) – lists superior qualities

 Heath v. Swift Wings Inc – PILOT case – crashed immediately after take
off
-MUST USE OBECTIVE STD FOR PROS – what skills norm possesses – no
allowance for “Fred Heath’s” subjective characteristics or skill
-Must compare ∆ to RPP not compare Fred to Fred! – if compare to
himself = no negligence
 27

R§299A – Undertaking in Profession or Trade:

-Unless he reps that he had > or < skill or knowledge one
who undertakes to render services in prax of a prof or
trade or calling is required to exercise the skill and
knowledge normally possessed by members of that
profession or trade in good standing…… “ in similar
 If professional holds self out as being “specialist” then a “superqualified” person is held to higher std –
that which he holds himself out to be ––See R§299A cmt d
 EXPERT TESTIMONY:
-There is NO Common Knowledge when it comes to technical stds of conduct in §299A
-Would be STUPID to try any malprax case w/o Expert witness – don’t trust juries “lay” or “common”
knoweldge
-Totten Case (WV) = only the STUPID rely on the common knowledge exception
-despite Totten, no reasonable atty would try malprax case w/o expert
-Expert is required to set std and give an opinion re: some deviation

 Hodges v. Carter – atty’s improper service of process – mailed when should have been
delivered
-Mistake; Atty’s not Negligent b/c did not depart from acceptable std of behavior due to
CUSTOM – mistake was not a departure from std b/c norm of profession was to do the same
wrong thing
-An act in good faith and reasonable belief is Not answerable for a mere error of judgmt or for
mistake in arguable point of law
-Act from want of knowledge and skill ordinarily possessed by others in trade or omission to
act with reasonable care or failure to exercise good faith IS answerable

-COMMON ERRORS FOR ATTYS

1. Missing Deadline – MUST FILE W/In 2 years in WV = basic SOL statute in tort
(WV adopted discovery rule – sol not run until Π discovers injury – and also
applies to TOXIC torts – when symptoms manifest, sol begins to run)
-failing to file on time = atty neg and malprax
80% v small firms – 33% v. solo
2. Stress/Substance Abuse 25% involve personal injury
3. Poor Client Relations
4. Suing Clients for fees = client will counterclaim for malprax

 Boyce v. Brown – metal screw in ankle

-Case discusses expert on setting std: post-op no X-ray was done – dr setting std said this was
not departure
*GENERAL RULES OF LAW GOVERNING MALPRACTICE:
1. Presumption of Innocence: Π must prove by preponderance -Presumed to possess the degree of
skill and learning possessed by average member of med profession in which he practices and to
apply that skill and learning with ordinary reasonable care – if he does not possess skill or not
apply it, guilty of malpractice

2. Departure: Before liable, must have done something in treatment which the recognized standard of
good medical practice in the community in which he is practicing forbids in such cases or he must
have neglected to do something which the std requires
 28

3. Expert Testimony needed: STUPID to rely on common knowledge exception:The std of med
qqpractice in the community must be shown by affirmative evidence and unless there is evidence
of such a std, a jury may not be permitted to speculate as to what the required std is, or whether the
∆ departed from it

4. No inference of presumption from bad result: Negligence is never presumed but must be
affirmatively proven and no presumption of neg or want of skill arises from mere fact that
treatment was unsuccessful or patient died

5. Expert to establish what std is and if there was an unacceptable departure: Neg by deviation from
std of care must be established by Expert testimony unless is so grossly apparent no layman would
have problem recognizing it

6. Acceptable Minority Rule: Ok to depart from norm where a dr uses old procedure that is ok or new
procedure that he developed:Testimony of other physicians that they would have followed a
different course of treatment than that followed by ∆ is not sufficient to establish malpractice
unless it also appears that the course of treatment followed deviated from one of the methods of
treatment approved by the std in the profession

Med Profession is Self-Regulating = customary care is due care

TJ HOOPER: Boats had no radios and were lost in gale – custom was not to have radios
Learned Hand wrote “In most cases reasonable prudence is in fact common prudence; but
strictly it is never its measure; a whole calling may have been unduly lagged in the adoption of new
and available devices. It never may set its own tests, however persuasive be its usages. Courts must
in the end say what is required, there are precautions so imperative that even their universal
disregard will not excuse their omission.
-Customary Care is GENERALLY Due care – trade can’t set std – law will
-Statement is true outside profession b/c profession establish care: atty conduct and dr
conduct

 Morrison v. McNamara – LOCALITY RULE abandoned in Favor of NATIONAL STD

-“in similar communities” is stricken from R§299A
-Locality rule was norm until change in communication and med ed –
-std of care applicable to board certified drs, hospitals, etc is measure by nat’l std

INFORMED CONSENT: interesting alternative theory of med mal

 Moore v. Regents: sold spleen for valuable cell line research
-advanced theory of med mal = breach of fiduciary duty
-duty not to profit privately –

WV Cases: Buskirk and Howell

Howell – arsenic given to her after miscarriage – Common knowledge exception allowed –
Buskirk – no need for expert testimony b/c no alternate source of treatment - Abandonment

Theories of Med Mal:

--Common Variety – unacceptable departure from std of care
--Breach of Fiduciary Duty –
-consistent with Self-Determination – rt to do whatever want with body –leading case is
Scholendorff v. Society of NY Hospital
 29
--Informed Consent – med equivalent of FOIA/Truth in Lending = Truth in treatment
--Lost chance
WV CASE: Cross v. Trapp- estab informed consent in WV
Treating Person Shall Disclose:
1) Risk 4.) Risk of Nothing Done
-Must describe to patient in lay terms
2) Alternative Methods 5.) Possibilty of Surgery
-WV ADOPTS OBJECTIVE STD in CROSS and Adams
3) Risks of Alternatives
Adams – what a RPP need to know - this fully realizes rt
of self-determination
-subjective std places too much risk on dr

 Cross case sets out exception when no consent needed:

1) Emergency
2) When telling patient would endanger him
-also Expert testimony is not required under Patient Need Std – Remember Totten said not
having expert is STUPID – TC says expert necessary b/c he establisher what a RPPatient needs
to know

 Scott v. Bradford = SUBJECTIVE STD in Oklahoma

-Cause of Action for lack of informed consent has 3 elements:
1) Duty to inform
2) Causation – causal connex b/t breach and injury only when
disclosure of material risks incidental to treatment would have
resulted in decision against it
3) Injury
-does not impose reasonable man standard – backtracks on patient’s right of self-
determination

3 Standards of Testing What Must be Done to Inform Patient Fully

1) National – norm of profession nationally
2) Community – Locality Rule
3) Patient Need Std – adopted everywhere – 2 rules are split
a) Objective – reasonable person – WV AND MAJORITY RULE
b) subjective - individual patient’s understanding – OKLAHOMA

UNDER INFORMED CONSENT THE NEGLIGENCE IS NOT IN TREATMENT, BUT IN FAILURE

TO INFORM!!!
-don’t take informed consent cases……

WV Case: Foster – Breach of Implied Warranty of Merchantability:

-UCC – when sale of tangible good by a seller, seller impliedly warrants merchantability of Good
-Foster got bad blood - no negligence involved so theory was implied warranty
-Theory not work b/c hospital is not merchant – blood is not sale by service (incidental transax)
-Possible area of reform – case was in 1975

WV Case: Thorton case = VALUE OF A LOST CHANCE – another med mal theory
-patient’s problem results in > loss and dr misses alternate method of treatment or diagnosis that could save
life = PATIENT LOSES THE CHANCE TO OPT FOR ANOTHER COURSE OF TREATMENT
-NEG here is missing diagnosis
-Π sues for value of lost chance – complex theory involves causation and neg theories
 30

WV CASE: Pleasants: multiple methods of treatment

-more than one method w/in std – can have approved method by a difft school
-SCHOOLS OF THOUGHT – R§299A cmt f = if difft schools of thought or difft methods – judged by
professional std of group to which he belongs
-most appropriate in psychiatry

ATTY MALPRAX
 Sheetz Inc, v. Bowles Rice
-Answers how to test atty mal and prove it - Can lawyers testify as legal experts
-ATTY CAN SERVE AS EXPERT WITNESSES

MED MAL REFORM ACT of 1986: See Green Sheet

---Central Aspect = Damages Cap: see Verba Case – upholds constitutionality of Act
-also Robinson case affirmed $1m cap on non-econ loss
--Verba issue is = Protex -$1m out of date – cap denies con rts – held that Leg has power to decide cap
-Dissent said cap uncon
--See McGraw Case

WV: has Rocket Docket Provision to speed up process

Jt and Several Liability: if > 25% neg = jt and sev – can recover any damn way
If < 25% neg = sev – must pay % of fault
Survey Nationally or Reform
1) Same purpose - crisis exist and needs rebalanced
2) WV does not have the following:
a) Review/Filter panels – MD has this
b) Collateral Sources: - 19 jurisdix allow intro of evidence to show costs been paid by
insurance/etc
c) Periodic Paymt Plans - allow judgmt to be pd periodically as opposed to lump sum
3) Damage Caps
4) Statute of Limitations – Discovery Rule adopted
Statute of Repose – absolute outside limit to # of years that may pass w/o regard to discovery and
then suit is absolutely barred – WV HAS 10 yr STATUTE OF REPOSE
5) Addendum Clause -
Wherefore Π demands X amt – WV complaint CANNOT include specific amount
6) Atty Fee Restrix - Π s atty can only charge contingent fee of 40%
7) Notice of Intent to Sue by letter

AGGRAVATED NEGLIGENCE
– Black’s “of a tort, made worse or more serious by circumstances such as intention to cause harm or reckless disregard
for another’s safety
1. Degrees of care – std of care for reasonable person will vary accdg to risk
-As danger increases, more caution is also required
-if have accepted social responsibility toward others: as in case of common carrier- accepts special
responsibility toward others and must exercise more care in accordance with duty undertaken
-carrier must exercise HIGHEST Degree of care (as well as person dealing with special danger)
-some courts rule no degrees of care but amounts of care, > or <
-care required of actor is always the same under the traditional formula, that of a
 31
reasonable person under like circumstances, > danger = > care required
-NY – common carrier rule no longer viable – only std of reasonable care in circumstances

2. Degrees of Negligence – breaks down difft kinds of conduct with difft consequences
-lifted from Roman Law by Justice Holt in bailment case:
--slight negligence – failure to use great care;
--ordinary negligence – failure to use reasonable care
--gross negligence – failure to exercise even slight care
-Magruder at Harvard – difference b/t “fool, damned fool, and GD fool” – much criticism of distinctions
-lines of demarcation difficult to set in practice

3. Willful, wanton, and reckless conduct – distinx based on ∆ ’s state of mind to establish and intermediate class
of conduct between negligence and intentional torts
-conduct with deliberate and conscious disregard for known high degree of probability of harm
 32
LEVELS OF R2nd R3rd WV
FAULT
Highest Level= § 8A – desire/believes §1 – purpose/ No definition in WV
INTENT to subst certainty knows to subst Lambert case is close
Pun.
certainty
May
Deliberate p. 9 WV assignmts
be Mandolidis – creates exception
Intention –
Award for employer willful, wanton or
knowledge and
ed – reckless –Act then amended to
appreciation of X X elimate broad definition
need
high degree of risk -2 Methods to prove deliberate
Malice
or subjective intent:
realization of high 1) employer liable if act is
consciously, subjectively,
degree of risk to and deliberately performed
employee with intention to produce
injury
2) employee can prove:
a) condition violates
statute
b) employer’s subj
realization and
appreciation of
unsafe condition
Willful, Wanton, §500 §2-knows See Mandolidis
Reckless obvious risk, -uses §500
fails to minimize

Negligence- X X Hopkins v. Grubb –uses Va

GROSS = GD fool definition: degree of neg
Breach of duty of shows indifference to
slight care others as constitutes an
= < willfult udder disregard of
prudence
Negligence- §283-RPP in like circum §3-Carrol Tow McMullen – RPP case
violates due care §291-Risk v. Utility B PL
§292-Utility
= Damn fool §282-unreas risk
§293-risk
Negligence – Abdulla – common carrier
slight=breach of has duty of high care
duty of high care -See brief
FOOL
 33

No
Punit
ives
may Gross Neg – failure to use high care = GD fool
be Neg – failure to use due care = damn fool
awar Slight Neg – failure to use high care = Fool
ded
WV Reduced Care Statutes: See ATtachments
§16-4c-16 – Damage ltd to $1m for emergency personnel
§16-4d-1 – What is duty of care owed?
§17c-2-5 – EMS vehicle – reduced – allowed to violate traffic
§19-25-4 – DUE CARE IS eliminated and liab of land owner open for recreational use
providing dispensation of land – must not be malice
-Care reduced to not injuring person

 Pokera v. Wabash – hit by train b/c couldn’t see around box cars
Holmes Rule vs. Cardozo Rule
A. Holmes – uses “Goodman” or Pennsy Rule – “stop, look, listen, get out and reconnoiter if
necessary” Rule – driver at RR crossing MUST under All circumstances stop and get out
-Holmes made RULE OF LAW – unvarying – if not comply = contrib. neg
-very HARSH, RIGID, Inflexible

B. Cardozo – makes new rule – more flexible – “case by case” reasonable rule
-compare Π ’s actions with elastic RPP under same circumstances
-page 198: Guidelines –
1) exercise caution in framing stds of behavior as rules
2) human experience too diverse for invarying fact patters – no single std should
be framed in rul
3) A rule imposed from w/o is not natural but artificial
 34
4) B/c of diversity need flexible std – RPP

WV Case: Wright v. Hanley – seatbelt (occurred before required)

-Universal Application = WV cautious in adopting rule of law b/c we prefer a flexible elastic std of RPP
-use judgmt of behavior under circumstances – less rigid – no need for exceptions to rigid rule b/c with flex
std can eval on case by case basis
-FLEX STD is preferred to RIGID rule – allows jury to perform its function
--Goodman and Wright cases – anti-Π ---Cardozo did not want rule to penalize Π by adding new
defense for ∆
-WRIGHT stands for proposition that is hard enough for Π to recover and adopting anti-Π rule is
uncalled for – let general RPP std dominate
-WRIGHT CALLS FOR PRO-Π System
RESTATEMENT §285d – std of conduct compared to flexible std

Don’t’ Use these rules b/c are too rigid:

RADIUS OF THE LIGHTS RULE – not applied in WV
Assured Clear Distance Ahead Rule – still on books not used

BUCKLE UP STATUTE – adopted in WV in 1993

In all but NH and Maine – NJ 1st to adopt in 1985 = WV §17c-15-49;
All states have child law: WV §17c-15-46
-Car industry did not install seat belts voluntarily – rule from w/o was imposed – LEG did it
-Cts must follow Cardozo’s caution to adopt rules
-Only 9 states mitigate damages – WV IS IN MINORITY

VIOLATION OF STATUTE:
Rest. §285b – Std of conduct of RPP may be adopted by leg enactment or reg

Mar-Cam Case: serving to drunks not allowed

-Regulation sets std of care
-Purpose of statute not to protect innocents from fights in bars but to AVOID alcohol
poisoning
-Reg prohibits loud, noisy, etc – useful to establish std of care for prudent bars b/c fights
usually happen when it gets loud
-class was anyone in bar – harm to be prevented was fights – statutory purpose test

Restatement Test - §286 When std of conduct defined by leg will be adopted
-to protect class

 Yourtee v. Hubbard – WV case  Ney v. Yellow Cab

-WV statute - §55-7-9: unique to WV – any -thief stole cab with keys left in it
person injured by violation of any statute may
use statute as estab std of care for violator
-leaving keys in car - any violation = guilty of
negligence – CT weasles out of this and says
statute is not applicable b/c decedent was not
part of class to be protected (joyriding kids)
 35
-uses Hurley test – co not hire mentally
handicapped - Π had symptoms of depression
and seeks liability§27-5-9a – “prohibits
discrimination v. persons based on mental
illness retardation or addiction” =
toothless/valentine
-REST § 286a = ID to Hurley court test
-basis for judicial doctrine of std of care =
1) is Π of class to which statute applies
2) it there leg intent to create or deny
remedy
3) is it consistent w/ leg scheme to apply
remedy
4) is cause of action one traditionally
relegated to state law so it would be
inappropriate to infer a cause of action
based solely on federal law?

IMPLICIT IN MAR-CAM AND YOURTEE CASES:

1) CT EXPLORES WHETHER OR NOT STATUTE DESIGNED TO PROTECT CLASS OF
PERSONS (OF WHICH Π IS A PART) AND TO PROTECT VS. HAZARD ENCOUNTERED
– IF SO STATUTE IS ADOPTED, IF NOT STATUTE ISN’T ADOPTED
2) Π MUST PROVE STATUTE DESIGNED TO PROTECT HIM AND HARM HE SUFFERED

HURLEY ATTACHES REMEDY to Statute – made meaningful a meaningless statute

Ct Created Remedy

Leg v. Judicial Activism

-cts fill gap where leg lagged
-tobacco suit
-Hurley was judicial activism

 Perry v. S.N and S.N

-Is it appropriate to impose tort liability for violations of statutes?

EFFECT OF STATUTE:
 Martin v. Herzog
-REPS RESTATEMENT & MAJORITY VIEW OF WHAT VIOLATION AND EFFECT IS =
WHEN
WV case: WaughA STATUTE
v. Traxler APPLIES TO THE
– WV/Minority RuleFACTS, AND UNEXCUSED VIOLATION IS
“NEGLIGENCE PER SE”
-crossed center line and hit Π - icy conditions - ∆ violated rules of road as criminal safety statute
-JUDGE
-Procedural RULES
Effect AS AofMATTER
of Violation OF Facie
Statute: Prima THAT ∆ofWAS
LAWEvidence NEG- Π s neg issue guaranteed
Negligence
to go to jury – creates rebuttable presumption
 Zeni v. Anderson
-(Majority uses neg per se – no jury question)
-MINORITY RULE = VIOLATION OF STATUTE AS REBUTTABLE PRESUMPTION:
-WV gives statement of what kind of evidence ∆ may intro to rebut presumption/excuse of why violated
Violation of statute provides prima facie evidence of negligence and a presumption which may be
1) ∆ may
rebutted by a rebut presumption
showing on the partbyofshowing ∆ acted
the violator of anasadequate
person of ordinary
excuse prudence
under circumstances
SEE RESTATEMENT §288A for excuses:
-NEG PER SE = TOO INFLEX AND MECHANICAL
1) violation is reasonable due to incapacity
2) not know of occasion for compliance
3) unable after due diligence to comply
4) confronted by emergency not due to own misconduct
5) compliance would = greater harm
 36

PROOF OF NEGLIGENCE
WV CASE: ROACH; CURRY; WISE
--SYLLOGISM: Form of reasoning to be used in all lawyering
A) Major Premise – All men are mortal = universal truth – principle of universal
application
B) Minor Premise – Socrates is a man = factual micro statement of universal
premise
C) Conclusion – Socrates is mortal = incorporates micro fact and universal truth

 Goddard – banana peel case

Major premise – nasty banana peels on ∆ s floor are negligent
Minor premise - ∆ had nasty bananas on floor ----bad! Fact failure – tenuous
inference
Conclusion - ∆ was negligent
 Procedural Hurdles must be overcome by Π - Avoid being thrown at each stage –level of proof =
Preponderance/ 50.00001% / more likely than not / more probable than not

A) Motion to Dismiss - Π fails to state claim on which relief can be granted

B) Motion for Summary Judgmt – discovery over; no issue of material fact in dispute
C) Motion for Judgmt as Matter of Law – at close of Π case – evidence inadequate
D) Instrux Given
E) Arguments
F) Verdict

 Anjou v. Boston El
-inference may be drawn b/c Π proved banana was gritty, trampled, old – good facts = Π won

 Joye v. Great Atlantic

-Π lost – can’t prove minor premise – failed to prove facts
-Special Notice Rule Added in 4th Circuit of which WV is a part –
-McDonald v. WVU – invitee must show hidden dangers, traps, etc
--adopted notice rule for land occupier liability – slip and fall
 37
--must show hidden danger for person to collect
--TERRIBLE CASE

BURDENS OF PROOF
Administrative Prepoderance = 50.001% Clear and Convincing Beyond Reasonable Doubt
-Substantial -more likely than not -highly probable -Criminal
Probative Evidence -more probable -overwhelming -doubt causing prudent person
Rule -FRAUD or for punitive to hesitate
damages -moral certainty

In Negligence Case: Π s burden of proof is

Preponderance McMillan case – WV definition of NEGLIGENCE
More likely than not -jury uses RPP std – allows jury to consider what RPP
Probable would do in same situation
50.0000001% +
See Restatement §328 A,B,C

Continuim of Function of Judge/Jury:

Judge Law Province of Jury – fuzzy area -if reach here Π wins
Law Issues “Where reasonable minds differ” May rest on matter of law (excuse)
Area of ambiguity
0%----------------------------------------------------------------------------------------------------------------------------
100%

Remember: -In old days – jury area was narrow – HOLMES – distrusted jury
Majority rule of neg per se: no -Now area is larger – Cardozo – hybrid of judge/jury system
issue for jury to decide b/c
WV Case: Dawson v. Casey
matter of law
-∆ won – area of ambiguity as to what RPP would
Minority rule/WV – prima
do
facie – jury then decides
-Case illustrates that reasonable minds may differ

DOCTRINE OF RES IPSA LOQUITOR – “THE THING SPEAKS FOR ITSELF”

-Pro-Π doctrine - Π s proof is not yet of suff quality to be in jury area
-accident speaks for itself
-Departure from preponderance = Assist in moving Π from 1st area of judge law into gray area
-pushes minor premise by allowing jury to hear issue normally would not hear
 Byrne v. Boadle – barrel of flour on head
-RIL allows inference of negligence - rule of evidence applicable to Tort – allows Π to get to jury on
neg issue when otherwise should not
Rule: HARM IS CAUSED BY Negligence if:
1) There is a neg origin
2) ∆ controls cause of harm - ∆ negligence was the negligence
3) No Π fault – other causes are eliminated
WV CASE: Foster
-can infer ∆ v. Keyser
s neg by application of RIL – w/o it Π loses
-WV rejects old definition of RIL and adopts -R§328D page 57 Concise:
-Normally not occur in absence of neg
-other causes (Π and 3rd parties) are eliminated
-neg w/in scope of ∆ s duty to Π
– in essence eliminating exclusive control element previously required in 4th Crct – Larson case in text
-many good cases lost b/c Π couldn’t prove exclusive control
---where divided Responsibility – issue is difficult – REST. and modern cases do not require Exclusive
Control
 38

Byrne: §328D R3rd§17

-Neg origin -neg origin -accident is a type
-∆ s neg -∆ s neg that ord happens
-No Π fault -duty to Π b/c of neg of class
-control of actors of which
∆ is relevant
member

 Ybarra v. Spangard –
Hold: where Π receives unusual injuries while unconscious and in course of med treatment, all those
∆ s who had any control over his body or instumentalities which may have caused injuries may properly
be called upon to meet inference of neg by giving an explanation of conduct
---alternative liability theory – another relaxation
-ril – relaxes burden of proof and helps Π with satisfying preponderance of evidence
-HERE: burden of proof is Switched - ∆ presumed to be Neg and must disprove neg
-b/c of conspiracy of silence in med field
-ALTERNATIVE LIABILITY IS LTD TO CASES WHERE?????

WV CASES- inferring liability – Foster and Lipscomb (EPA inspector injured at mine)

CAUSE IN FACT

3rd issue in Cady’s Super Six

CONDUCT CAUSE Harm
Duty, Breach IN fact Proximate Cause Injury Remedy
1 2 3 4 5 6

WAS THE ∆ S NEGLIGENCE “A” CAUSE OF Π ’S INJURY?

Sine Qua Non – w/o which not – “BUT FOR”
CAUSE IN FACT
 Perkins v. RR – speeding train
Prime Issue: Was excessive speed of train “a” cause in fact of collision §431a Substantial Factor
-may have many causes – was neg “a” cause among perhaps many
Necessary Antecedent
Rest. §430 – Necessity of Adeq Causal Relation – legal causal connex
Rest §431- What is legal cause? – “Proximate Cause” But For
A) SUBSTANTIAL FACTOR
Sine Qua Non
 39
-Rest § 432 – Negligent Conduct as Necessary Antecedent
“a” cause of effect – common sense eval of sequence
-NECESSARY and comes Before
B) Release Rule – concerns manner in which harm came about

-RR was negligent by speeding BUT Speed was NOT a cause in fact b/c would have hit truck anyway
-To solve but for think up hypo where train was not speeding and ask…..”What would have happened if
been going speed limit”

-∆ s NEG WAS NOT A CAUSE IN FACT OF Π S INJURY!

 ∆ S NEG IS NOT A CAUSE IN FACT OF Π S INJURY “IF” INJURY WOULD HAVE OCCURRED
W/O NEGLIGENCE
 ∆ S NEG IS A CAUSE IN FACT IF Π S INJURY WOULD NOT HAVE OCCURRED “BUT FOR”
∆ S NEGLIGENCE
 INSUFF TO CONNECT CONDUCT WITH RESULT – MUST CONNECT NEG WITH RESULT
 NEG/FAULT MUST BE A CAUSE IN FACT B/C “ALL LIABILITY IS BASED ON FAULT”

WV Case: Long v. City of Weirton – gas leak – co failed to respond – dug up road w/o maps
-Π must connect escaping gas to house blowing up
-Alabama case gives universal definition of cause in fact – Bessemer – classic theory of cause and effect –
possibilities are insufficient – must be a probability
-In multiple causation cases, the but for test must combine with the others which leads to a false negative
-“The” case on proof of causation in WV - Π bears burden but does not have to disprove other
possibilities
-Π does not need to negate all other possible theories – just show one that is more likely than not
-ADOPTS BUT FOR TEST IN WV AS TEST FOR CAUSATION – SINE QUA NON TEST
-Neg of ∆ need not be sole cause but one of causes thereof w/o which injury would not have resulted

 Gentry v. Douglas Hereford Ranch Inc

- burden is preponderance – here Π failed miserably - no proof of causal connex b/t fall and shot

 Reynolds v. Texas RR – fat woman fell down stairs

-complimentary to Gentry
-neg is unlit stairs – neg maintenance – was a substantial factor or BUT FOR cause b/c neg of ∆ greatly
multiplied accident chances
-made it to jury area - Π s theory of causation moved proof into jury area where reasonable minds differ
 Hayzlett case in WV (employee inhaled sulphur fumes)
“might” = insufficient to prove exposure to gas = means possibility
-In med testimony, causation is critical b/c of requirement of PROBABLE
 Hovernale – causation problem – proper std is REASONABLE MEDICAL PROBABILITY
Probable vs Certainty
-rule of civ pro -RULE OF DAMAGES
-bearer of burden of proof to prove by probability, -damages must be proved to reas-
preponderance, more likely than not onable degree of certainty
-RULE OF PROCEDURE
 PROBABLE – Drs question re: cause and effect – always in terms of probability
--Dr, do you have an opinion to a degree of reasonable med probability as to whether or not the…..?
 40
----Kramer – cut = cancer? Long – gas = kaboom?
------Yes I Do
-- What is your opinion?
-------The ………….was A CAUSE
 CERTAINTY - Π must prove permanency of injuries – if can’t prove then no damages – frame drs /s in
terms of reasonable medical certainty – RULE OF DAMAGES dictates certainty
--Dr, do you have an opinion to a degree of reasonable med certainty as to whether or not the Π s
injuries are permanent?
----Yes I do
--What is your opinion
----The Π s injuries are permanent

 Kramer case – cut from glass caused cancer?

-not sufficient that something merely came before an injury – must “cause”
-post hoc ergo propter hoc – after this therefore b/c of this = logical fallacy of arguing causal connex
based on bare causal sequence
-POSSIBILITIES ARE NOT ENOUGH – must be PROBABLE

 Wilder case (med mal)– stomach staples

-∆ may intro other evidence of possible causes
-∆ s burden of proof is less onerous - Π bears burden to prove; ∆ can weaken
-multiple causes may show weakness in Π s probable explanations
-Π must use PROBABILITIES
-∆ can use POSSIBILITIES – to shoot holes in Π s probabilities

 Herskovits – failure to diagnose cancer soon enough

-LOST CHANCE THEORY – 14% lost chance – redux in chance of survival
-14% is not more likely than not in strict since
-no need to prove probable or more than 50.0001% - preponderance –
-prima facie was enough – med testimony re: redux in chance of survival is sufficient

Remember WV accepts value of lost chance case – Totten Case?

WV Case: Hudnall
-Π s theory – decedent would have had chance to live had road not been so steep or warnings
-ct rejects extension of lost chance theory beyond med mal – most cases involve pre-existing injury
-this case is concurrent neg case

 Daubert – Benedictin and birth defects

-RULE OF EVIDENCE CASE – construes Rule 702 of Federal Evidence
-Testimony by experts – Rule 702 – If scientific, technical or other specialized knowledge will assist
trier of fact to understand evidence
-Frye test used prior to 702 – General Acceptance Test – could express opinion if has spec knowledge
and if his opinion is generally accepted w/in community

-Daubert Factors – scientific testimony admissible only if:

1) Has it been tested?
2) Peer Review and publication
 41
3) Known or potential rate of error and stds controlling
4) Generally accepted (Expansion of Frye)

Gentry case – cop testimony -----“GATEKEEPING FUNCTION”

-judge makes initial decision on admissibility of evidence

WV ADOPTS DAUBERT
-1999 Daubert applies to all experts not just scientific

CONCURRENT CAUSES
-always more than 1 ∆ - but for test is absurd here so use Substantial Factor
HILL ANDERSON LONG WV BURDETTE WV
-truck parked in road at -2 fires one from ∆ one -city, gas co, construx co -adoption of comparative
night from bog -SUBSTANTIAL neg change causation? NO
-multiple causes - 2∆ s FACTOR TEST USED -From Long – test for
concurrent neg is “one of
efficient causes w.o which
no injury”
-in multiple causation cases but for test is counter-intuitive ---need both causes
-TEST IN MULTIPLE CAUSATION CASES:
-SUBSTANTIAL FACTOR see page 92 concise
-Was ∆ 1 or ∆ 2 negligence a substantial factor? YES
-both ∆ s were “a” cause!!!
-BOTH CONCURRENTLY NEG TORTFEASORS LIABLE
-WV - JTLY AND SEVLY LIABLE – LIABLE TOGETHER AND SEPARATELY
-Π MAY COLLECT ANY DAMN WAY THEY PLEASE
-In comparative neg jurisdix – juries assess % of fault to all parties of accident
-each ∆ can seek contribution – crossclaim on same side of “vs” for proportionate share accdg to % of
fault from other liable tfs – unfairness of any damn way please modified by Pure Compar Contrib
-Sitzes case WV – contribution shares = comparative fault of each party – WV adopts Pure
Comparative Contribution

PROBLEMS IN DETERMINING WHICH PARTY CAUSED HARM:

1) Alternate Liability (Ybarra) – to assist Π in neg case the ct in ltd circumstances can shift burden of proof –
presumption reversed = ∆ presumed guilty
-Same court in Ybarra decides Summer v. Tice – hunter killed – not sure who killed him
-both ∆ s neg – negligent b/c:
Carrol Towing – burden of precaution was < PL – inadequate precation
Not RPP under same circumstances
McMillen
Restatement
Risk-Utility
-problem for Π is cannot possibly prove by preponderance who shot him – only gets 50% not 50.01%
-who’s neg was a cause? Balance fairness so turn normal presumption around and presume causation =
ALTERNATIVE LIABILITY = Restatment § 433b(3)
-if ∆ s cannot disprove own negligence then both liable
-holding one liable whose neg was not clearly a cause is anti – BROWN V. KENDALL
-WANT TO GIVE Π A REMEDY BY NOT ALLOWING WRONGDOER TO ESCAPE LIABILITY
 42

WV – NO SMELL OF BURDEN REVERSAL

-NO ALTERNATIVE LIABILITY OR CAUSATION IN WV
-NEEDS TO CATCH UP

2) MARKET SHARE LIABILITY

-Sindell v. Abbot Labs – DES taken by mom
-195 manufax – late developing symptoms
-DES daughters sued 5 drug companies – unable to prove that ∆ s drug was the drug Mom took
-must connect defective product causally to injury
-Court rejected
a) alternative liability theory b/c not all ∆ s before court – TC says so what
b) concert of action – no conspiracy by cos - may happen in sm industries – not so here
-Hall v. Dupont=Enterprise Liability
- needy Π , bug bus able to bear loss of own risk – larger pocket held liable
- entire industry liable
-MKT SHARE LIABILITY: impossible to prove which co was “a” cause
-reverse burden and establish that manufax liable to Π for % of damages as reflected by its % of mkt
-radical progressive – used in few states

PROXIMATE CAUSE
-WAS THE ∆ s NEGLIGENCE A PROXIMATE CAUSE OF Π s INJURY?
3 Sections in book:
1) Unforeseeable Consequences
2) Intervening Causes
3) Public Policy

 Atlantic CoastLine RR
-CAUSE AND EFFECT ARE LIMITLESS AND UNKNOWABLE
-courts must DRAW THE LINE to LIMIT LIABILITY
-cts must be practical -means of limiting cause and effect by drawing lines

PREMISE OF PROX CAUSE – DRAW LINE AND CUT OFF LIABILITY

Francis Bacon says - not remote cause but nearest one

APPROACHES TO PROXIMATE CAUSE:

I. RESTATEMENT
 Rest §430 – “adequate causal relation” (cause in fact)
 Rest §431 – proximate cause = legal cause = substantial factor – no one uses legal cause anymore

A) §431b = Rule of Law - there is no rule of law relieving the actor from liability b/c of the manner in
which his negligence has resulted in the harm
B) §435(2) = Not a highly extraordinary cause in hindsight – P/C is a cause which does not produce a
highly extraord result = Intervening cayse
C) §440 = Superseding Cause – distinguished from intervening cause - intervention of 3rd party prevents
actor from being liable for harm to another which his antecedent negligence is a substantial cause
 43
SUPERSEDING CAUSE vs. INTERVENING CAUSE –
-that which is highly extraordinary is a superseding cause
-that which is not highly extraord is intervening force

 Restatement does not work – not accepted for analytical flow – still know for schools of thought

II.
--------2 other schools of thought:
#1 = PROXIMATE #2 = CAUSE
-Deals with negligence/foreseeability -Deals with direct v. indirect
#1 . Emphasizes P/C in context of neg case – #2. Causation Issue – near or direct v. indirect
-Neg is doing or not doing what RPP would or
would not do under circumstances
Emphasizes foreseeability : that which is proximate
is foreseeable

III. Public Policy

-P/C not related to neg, foreseeability, or causation but rather a POLICY Issue of “line-drawing” to limit
liability
-Requires sophisticated legal analysis of how far we want system to compensated for negligently caused
losses

All cases in chapter deal with negligent ∆ s – passed all those tests ---and passed but for causation test:
Issue here is was ∆ s neg a P/C of Π s injury?
-Will we release a neg person to draw the line

 Ryan v. NY RR
-RR set fire to its woodshed – sparks caused Π s house to burn
-Anything proximate is anything not remote
-How do you determine if proximate or remote?
TEST FROM DUMB PART 1 = ANEONU – as statement of that which is proximate – court rules that
∆ s neg was not a P/C but was too remote – B/C line must be drawn simply and stupidly and property
line
=NY PROPERTY LINE RULE = “tough shit rule” - TCC
ANEONU =DUMBEST APPROACH
-Anticipated =even though this is dumb, it is accepted nationally as a norm or one approach
-Natural
-Expected
-Ordinary
-Necessary
-Usual
-Part 2 of Opinion is Realistic and Smart = better way = PROPORTIONALITY
-need fairness – some risks can be shifted, some cannot – Exodus 22 – eye for an eye principle
-PROPORTIONALITY – AS MEANS TO DRAW LINE
-hold ∆ liable for his negligence
-the extent of liability (# of houses) should be proportionate to his liability of negligence
-proportionality is sophisticated: liability is commensurate with negligence or extent of liability
is proportionate to basis of liability
 44
Smartest way: Would the imposition of liability be proportionate to basis of liability

-Part 3 Remoteness of damage back to dumber way

THIN SKULL RULE = EXCEPTIONAL RULE

 Kingdon v. Stanley (WV) – related to Bartolone v. Jeckovich (weightlifter in accident = then had
breakdown)
-both Π s had pre-existing conditions – Kingdon (physical) degeneration after accident– Bartolone
(mental) paranoid schizo caused him to change entire life
-PRINCIPLE APPLIES TO ALL PRE-EXISTING CONDITIONS = PRE-EXISTING CONDITION
RULE
-Deliu v. White = THIN SKULL RULE - ∆ TAKES Π AS HE FINDS HIM
-soldier injured and had skull removed
-in later accident and died from bump on head – INJURY was an UNFORESEEN CONSEQ
=old soldier’s rule = egg shell Π rule

-WV recognizes Thin Skull Rule = exception to Ryan Rule

 Polemis – cargo ship blows up in Morocco

-This approach emphasizes Directly Traceable element of cause
=Dumb= What kind of causation is proximate under this test?
-Proximate cause = direct cause
-Remote Cause = indirect cause under this test
-this test still has > degree of elasticity – ct recognizes some degree of indirectness is OK

 Wagon Mound #1 – oil spill burned docks ---- Wagon Mound #2 – oil spill burned boats
-contrary results in 1 and 2
-What neg are proximate causes? Those that are FORESEEABLE= Wagon Mound #2
-emphasizes neg nature of neg action
-FORESEEABLE Defines Neg and Therefore Should define extent of liability
-achieve proportionality b/t neg wrong and liability (conseq) by looking at foreseeability
-Π lost in 1 b.c fire not foreseeable
-Π won in 2

-English rule for 1 – framed in terms of proving directly traceable and causal relation – no emphasis on
foreseeability
-on appeal rule changed – direct is rejected and foreseeability is adopted
-proof below ignore foreseeability so Π lost
-new rule in #2 - Π tailored to foreseeability and won
PROX CAUSE = Foreseeable
Remote Cause= Unforeseeable
While both results were foreseeable; Π introduced wrong facts in #1

 Palsgraf v. Long Island RR – same ct that decided Ryan, perfect precedent in NY

-Cardozo – rejects P/C as analytical vehicle to draw the line = USES DUTY INSTEAD
-“The risk reasonably to be perceived defines the duty to be obeyed and risk imports relation; it is risk
to another or to others within the range of apprehension” = Cardozo’s Palsgraf Risk Rule
- judges decide what risks can reasonably be perceived
 45
Refer to other notes:

Intervening Causes
Patterns:
1. Intervening Negligence – Derdiarian case
2. Intervening Intentional or Criminal Misconduct – most disruptive of P/C = Watson
3. Suicide
4. Rescue
 Watson v. Ky and Ind Bridge and RR – threw lit match onto gas on street - Π as bystander was
injured
-intervening crim act may cut off liability and usually does – rule as matter of law that chain is
broken and orig ∆ not liable

 Nemo Foundations WV CASE – exec hurt in accident – co suffered loss

-no recovery for neg inflix of econ loss=NIEL
See also Justy case – economically based line drawing rule

5 AREAS WHERE DUTY USED AS ANALYTICAL VEHICLE:

1) PRIVITY OF CONTRACT – accts, other prof have no liability to those beyond contract for neg docs
2) FAILURE TO ACT – @ c/l no duty to aid or rescue – line drawn at failure to act
3) PURE ECON LOSS
4) MENTAL DISTURBANCE – line drawn at physical harm – if only neg emotional distress, no liab
5) UNBORN KIDS – prenatal torts no duty of care

WV assignments page 19
-privity of contract = no defense
-WV adheres to C/L rule of no duty to act
-NIED is cause of action in WV and duty of care to protect 3rd parties from suing
-Marlin case – adopted cause of action -duty to refrain from nef inflix of present fear of future illness
-Farley case – 1st - C/L cause of action for wrongful death of non viable fetus
WV ON CUTTING EDGE RE: Med Monitoring and NIED
PUBLIC POLICY
 Kelly case – NJ
-Holds social host liable to third party injured party if guest neg operates car

4 Liquor Liability Problems:

1) Statute in ev state that commercial purveyor “shall not sell” to:
a) Underage – protects from health hazard
b) Visibly intox – protects from alcohol poisoning
-Issue: is neg of commercial purveyor who sells in violation of statute form a basis of cause of
action to 3rd party? NO
-Π cannot go back v. seller --- injured Π not person intended to be protected by statute
2) DRAMSHOP ACTS
-c/l rule = selling was not a P/C of injury to Π , drunk driving was
-to revise c/l, < ½ states have these acts - Π has no cause of action v. seller who sells in violation
-NO DRAMSHOP ACT IN WV – NEVER WAS
 46

3) Employer-Employee – holiday X-mas party

Employer is liable to 3rd party

4) Social host to social guest

-NJ only state for social host liability – Leg later modified rule

IN WV: Overbach v. McCutcheon – re: social host

-NOT LIABLE B/C of PUBLIC POLICY of no DUTY and NO P/C
-is this correct in terms of public policy age of MADD., SADD
-imposing social host duty of due care = against social fabric/norm
-WV and all other states refuse to impose social host liability b.c too onersous
Anderson – social hosts are liable for serving to minors b/c code violation

Bailey – violation of code to see to visibly intox

WV STATUTE PROHIBITS SALE TO WHOM:

Physically incapacitated Minors/Underage
Mentally incompetent

 Enright v. Lily
-DES Daughters
-Mkt Share Liability – granddaughters cannot sue – only daughters (their moms)
-Line drawn after one generation – not suff med data – factor of 2 for scientific causation
-Tort system: designed to deter misconduct and compensate
-do not want overdeterrence or get disincentive for drug co to make drugs = Slippery Slope Argument
-“staggering implications” – Want proportionate not disproportionate liability – next generation is
disproportionate – no private fortune adequate = Ryan Riddle

 GUN CASES - Π s theory was Neg Mktg and Distribution

-fell into criminals hands – made too many for recreational use
-some Π s won against some ∆ s – MKT SHARE LIABILITY
-Black Jack Weinstein found: Gun makers had DUTY to exercise due care in selling weapons to
responsible retailers
-APPEALED to 2nd Circuit Ct of Appeals

ISSUE: Whether ∆ s owed Π s a duty to exercise reasonable care in mktg and distribution of handguns?
US FED DST COURT = Found Duty
NY ct of Appeals = No Duty to ex due care in distribution of product

FACTORS Both Courts Used to Analyze Issue:

 WHEN DOES THE DUTY ARISE????
PRECEDENT – to determine when duty arises – used analysis similar to Enright
-When Duty Arises - Landmark case = Heaven v. Pender
 47
-whenever AFFIRMATIVE CONDUCT – hand @ rest may stay @ rest but when moved to act in
affirmative conduct must exercise due care
-everyone must exercise due care to avoid unreasonable risk of harm
-gun manufax make guns = affirmative act = need due care

 WHAT IS THE DUTY?

-Enright – must drug manufax ex due care to 2nd level Π in manufax dangerous drug?
-DUTY is NOT FORESEEABILITY:
-duty is complex variety of factors – including reasonableness in light of risk – shifting
policy in modern econ of who should bear loss
-POLICY in enlightened America is Reasonableness of Risk Shifting
1) Reasonable expectations of parties in society
2) Proliferation of Claims
3) Likelihood of Unltd Liability
4) Disproportionate Risk
5) Public Policy
-On basis of reasonableness of risk – Weinstein says should allocate; App Ct says NO
-HIGHEST PHILOSOPHICAL ANALYSIS - who should bear risk loss

MKT SHARE LIABILITY:

-where Π s as in Sindell can’t ID manufax b/c gun disposed of
-Weinstein says good case for mkt share liability and relax of burden of proof b/c Π can’t prove more
likely than not

 BREACH = based on expert testimony

 FACTUAL CAUSE = under mkt share
 PROXIMATE CAUSE = whether the ∆ s neg was prox cause? Black Jack Says YES!!!
1) Unforeseen Consequences:
2) Intervening Cause problem of criminals – does crim intervention automatically break chain?
--Intervening Act only breaks chain if it is such an extraordinary nature that responsibility for
injury should not be reasonably attributed to them
--Weinstein says not break chain b/c a MORAL question

Weihner Case WV – pizza delivery to frat hous

-PROX CAUSE IN WV = efficient cause or last neg act
-An intervening cause, in order to relieve a person charged with negligence in connex with an injury must be a
neg act or omission which constitutes a new effective cause and operates independently of any other act making
it and it only the P/C of injury.
-In concurrent neg case, the nef of ∆ need not be the sole cause of the injury it being sufficient that it was one
of the EFFICIENT causes thereof w/o which the injury would not have resulted
 48

JOINT TORTFEASORS

3 ISSUES:
1. Liability that Makes Jointly and Severally Liable Tortfeasors Liable
2. Joinder
3. When there are joint tfs, what are their liability for damages?
(Text is not up to date)
WV CASE:ofWehner
**Adoption v. Weinstein
comparative (pizzahas
negligence boy)∆ atedfrat
thehouse
law dramatically = now very confusing
Many ∆ s sued by 3 Π s
LATEST
Issue DEFINITION OF INTERVENING CAUSE:
1: Liability
-an intervening cause in order to relieve a person charged with neg in connex with an injury, must be a
negligent act, or omission, which constitutes a new effective cause and operates independently of any
other act, making it and it only, the proximate cause of the injury

-In a concurrent negligence case, the negligence of the ∆ need not be the sole cause of the injury, it
being sufficient that it was one of the efficient causes thereof, without which injury would not have
resulted; but it must appear that the negligence of the person sought to be charged was responsible for at
least one of the causes resulting in the injury
 49

-What Rules of Liability Make a Joint TF liable?

There are more than one or multiple “causes” of an injury – each is a cause
There may be multiple “proximate causes of an injury”
-ANSWER: ALL OF THE NORMAL RULES OF LIABILITY THAT APPLY TO ONE TF APPLY TO
MULTIPLE TFS: neg is same, cause and prox cause same

-In the Multiple TF situation: ask same questions about each ∆ : was he neg? was neg a cause?
-Prox. Cause problem occurs in multiple tf case: Wehner – has latest definition of intervening cause
or concurrent neg:

-INTERVENING CAUSE = lable of exculpation (lets out) of other tfs and inculpates that one tf
-if intervening – cuts off other tfs

Long case: concurrent neg – neg need not be the sole cause but one of the efficient causes

Issue 2: Joinder
-Under old law – to join jt ∆ s in one lawsuit, must allege and prove one of the 4C’s
1. concert of action Quartet of Epithets to describe
2. conspiracy activities of tfs
3. combination
-only under these circumstances
4. common design
could you join
5. cahooted

-Joint tfs also include those acting INDEPENDENTLY – contrary to 4 C’s

-MODERN RULE OF CIVIL PROCEDURE: FED R CIV PRO 20(a)

WV RULE ON JOINDER: permissive joinder of parties

-the Π s “may” assert all rts together
-Hence in Wehner, 2+1 = 3Π s – may assert any rt jointly arising out of same transax, occurrence, or
series if common question of law or fact
-ALL Π s may join all ∆ s in One action – all persons may be joined in one act as ∆ s
-Thesis: Π s can co-op to bring in all ∆ s in one suit so can have more Π s pointing more fingers @
more ∆ s = more implicit prejudice created due to finger-pointing by ∆ s

JOINDER = modern rule is allowing one big suit to bring finality to one common ? of law or fact
“May” do this – do not have to

Issue 3: What is liability of Jt tfs?

• Coney v. JLG Industries
 50
Facts: wrongful death – Jasper died while operating hydraulic lift manufax by ∆ = products
liability action - ∆ argued Jasper had committed contrib. neg as did his employer
-C/L jt/sev liability holds jt tfs responsible for Π s entire injury allowing Π to pursue all, some or
one of tfs responsible for his injury for the full amt of damages
-Majority of jurisdix that have adopted comparative neg have retained joint and several liability bc
1. feasibility of apportioning fault on comparative basis does not render an indivisible injury
“divisible for purposes of jt and sev liability – just b/c can assign % of fault to one neg ∆
does not in any way suggest that each ∆ s neg is not p/c of the entire indivisible injury
2. Π would have to bear part of loss if one tf is unable to pay
3. ∆ s neg is tortious b/c it relates to lack of due care for others - Π s neg is not tortious b/c
relates to lack of due care re: himself
4. Elim of jt and sev liability would have deleterious effect on ability of injured Π to obtain
compensation
-If elim jt and several liability as ∆ advocates, burden of insolvent or immune ∆ would fall on Π
and Π s damages would be reduced beyond % of fault attributable to him
-wrongdoers can work out apportionment amongst themselves
-HOLDING: 1) comparative fault is applicable to strict products liability actions
2) comparative fault does not eliminate joint and several liab
3) retention of jt and sev liability does not deny ∆ s = protex

• Bartlett v. New Mexico Welding Supply, Inc hit and run

Facts: 3 car accident - #1 - in and out of service station, #2 swerved to miss (Π )
#3 ∆ rear-ended Π
Π

∆ contends neg of hit and run #1 driver caused or contributed to cause the accident ∆
-jury found Π s not neg; ∆ 30% neg; and unknown 70% neg- damages for $100K

-jt and sev liab = either of 2 persons whose concurrent neg contributed to cause Π s injuries
and
damage may be held liable for the entire amount of damage = C/L Rule existed in NM prior to
adoption of pure comparative negligence
-JT AND SEV Liability NOT to be retained in PURE COMPAR. NEG system on:
a) theory of one indivisible wrong b/c the concept is obsolete; or
b) on theory that Π is favored and must be protected against uncollectability b/c if only
one tf Π bears risk of insolvency so why should it be difft for 2 tfs?

Note 1 page 363: Joint and Sev. Liability Principles arose from:
1) Contributory Negligence – bars Π from recovery if he bears any fault – Now
been changed to comparative neg which reduces Π s damages by % of his fault
2) Contribution among tfs – not allowed at C/L but is allowed today either on
pro-rata or comparative-fault basis
---contribution would be unnecessary if there were no jt and sev liability

• Restatement 2nd Concise § 17:

---If indep. tortious conduct of 2+ persons is a legal cause of an indivisible injury, the law of the
applicable jurisdiction determines whether those persons are jointly and severally liable,
severally liable, or liable under some hybrid of joint and several and several liability
 51
---Options for liability of jt tfs are:
1) jtly and sevly liable
2) severally – each tf pays no more than his apportioned share and Π bears uncollectibility
risk
3) hybrid
---5 Tracks – no majority rule – scattered among several jurisdix – They represent difft view on what
to do w/ JT and Sev Liability in era of Comparative Negligence
HYBRIDS
TRACK A TRACK B TRACK C TRACK D TRACK E
WV RULE - 15 16 7 11 8
Jointly and Severally Reallocation Threshold Kind of
Severally Liable Liable -reallocates -jt and several liability Damage
– each ∆ is jtly -each ∆ must damages among all imposed on indep tfs -A tf is jtly and
and sevly liable for pay Π accdg parties if whose % of compar sevly liable for
all or any % of Π s to his % of unenforceability of responsibility exceeds a ECONOMIC
recovery fault judgment – risk of specific threshold loss
-Π MAY insolvency on all (wages/med
RECOVER ANY who bear if above= expenses)
DAMN WAY HE responsibility for jtly and sev liable -but is
PLEASES –WHY? Π s damages ----25% in WV----- severally liable
B/c under old -insolvent’s share if below = severally liable for non-
system jury never is reallocated to economic loss
assessed % of fault other parties in -risk of insolvency on Π if (pain, loss of
-when compar neg proportion to solvent ∆ s below consortium)
dev. so did tracks their comparative threshold
BCDE responsibility
-15 jurisdix WV STATUTES –
10 modern =Proportionate reforming old rule that
+ 5 old contrib. sharing of can collect anyway please:
neg states (Ala, uncollectability 29-12a-7 = pol sub-div
D.C., MD, Va, NC) -most equitable 55-7b-9 = med mal or
-Old and WV rule means for coping health providers
=most Π friendly with insolvency --if < 25% = Several liab

EXAMPLE
-A can join BCD in one suit due to Rule 20A
A=10% fault, 10K damages
B=20% fault 20K damages -In KY -pure comp - can Π recover from BCD –YES b/c
C=30% fault 30K damages % of fault is not TOTAL
D=40% fault 40K damages -C can recover from DAB b/c everyone may recover
Under Track A: -can D recover from ABC in Virgin Is – yes b/c no one’s
-A’s damages of $10K will be reduced neg is > combined of all
by % of his fault (10% or $1K) = Total damages of $9K
-A may collect all 9K from any, some, or all of BCD w/o regard to their % of fault
-B’s damages are 16K (20K – 20% or 20K x 80%)
-C’s damages are 21K
-D’s damages are 24K

Under Track B:
-A collects from B only accdg to his % of fault of 20% - so A collects 2K from B (10K x 20%)
-C owes A 3K
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-D owes A 4K 2+3+4 = 9K (Π s damage less own fault)

Under Track C:
-say B, C, D are pol subdivisions or municipalities (cop car, co car, school bus)
-B is severally liable b/c his fault is < threshold of 25% so only pays his % of fault of 20%
-C and D are > than 25% and above threshold so are jtly and sevly liable so Π can collect any damn
way he pleases

WV Rule/ Track A is most Π friendly b/c projects risk of uncollectibility upon ∆ s

SEVERAL LIABILITY IS UNFAIR in this regard

Track A vs. C
A-burden of uncollectibility botn by ∆ s - Π can collect any damn way
C-if one of ∆ s is judgment proof – burden of uncollectibility shared by everyone + Π

IN WV: D only applies to municipalities and medical provider – result of tort reform

*Contributory Neg = Π s neg no matter how slight is complete bar to any recovery by Π (old Punitive
All or Nothing Rule) – JURIES DID NOT ASSESS % OF FAULT IN THIS SYSTEM – NOW JURIES
ASSESS % OF FAULT TO ALL PARTIES TO THE ACCIDENT

*Comparative Neg = Π s own neg does not necessarily bar recovery but reduces damages by % of
his fault IF………………………..
A) Modified = 36 jurisdix
1) Slight-Gross (only SD) – …….. Π s neg is slight compared to ∆ s neg which is gross
(up to 6% slight ------- 94% gross)
2) LESS THAN or 49-51 – WV (13 jurisdix total)
-…….Π s neg is < the combined neg of all the other parties to the accident
-IF neg of Π is = to combines neg of all others then no one recovers
3) Not Greater Than or 50-50 (22 jurisdix total)
-…….Π s neg is not > the combined neg of all the parties
-if 50-50 = both parties get 50
-if 49-51 = Π s 49% neg allows him to recover 51% of his damages
-if Π s neg is 51, Π recover nothing b/c his neg is > and not = to or <
-ONLY BAR IN NOT > THAN IS IF SOMEONE IS 51% NEG!
B) Pure = 14 jurisdix
-……..Π s neg is not TOTAL
-Π 1% at fault gets 99% of damages
-Π 99% at fault gets 1% of damages
WV CASE: Bowman v. Barnes – JURY MUST ALLOCATE FAULT TO ALL PARTIES OF THE
ACCIDENT
Simple Rule – Allocation of Fault is to ALL parties to accident whether parties are present, settled,
dead or unknown
Remember:
-if 2+ ∆ s whose neg combines and contributes to single indivisible injury then are CONCURRENT
TFS OR JOINT TFS
-WV has modified Less than Comparative Fault – damages reduced by % of Π s fault if his fault is
< combined neg of all other parties
-WV adopted Comparative Neg in Bradley case – 1979 – adoption did not ∆ anything re: causation
-Proof of Causation from Long is still 50.00001 or Prepoderance or More likely than not or Probable
(lost chance exception to this – may reduce chances to live by any %)
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WV Case: Lacy v. CSX

-put blinder on juries
-See example below – B will argue that is unfair for jury to assess him any fault b/c his was so
minor – unfair to make him pay since Π can collect any way
-LACY PROHIBITS ∆ B from arguing that – jury cannot be told effect of verdict = blindfolds
them on theory that they can’t understand policy basis or way Π s collect

EXAMPLE:
A=1% at fault A can collect 99%; B can get 99%; D can get 99% but C gets
B=1% at fault nothing b/c neg is not < combined neg of all other parties
C=97% at fault
D=1% at fault

CONTRIBUTION

-Contribution ameliorates harshness of rule of Π s being able to collect any damn way they please
-defined as the “equitable sharing among jtly and sevly liable tfs of the jtly and sevly liable judgment”
-OLD RULE:
--PRO-RATA or PRO NUMERO Contribution – jury did not assess fault – if Π w/o fault could
collect anyway he pleased so parties sought contribution among selves on pro-rata basis:
if 3 ∆ s – each pd 1/3 if 5 ∆ s – each pd 1/5
-this was procedure b/c no other way to assess fault!!!
-w/ advent of compar neg and juries assessing fault, more of a basis for pro rata pure compar neg

WV Case: Sitzes v. Anchor

-CONTRIBUTION SHARES = COMPARATIVE FAULT
-WV is Modified Less Than Comparative Neg state with Pure Comparative Contribution = Skewed