Torts 2 - Illustrations Flashcards
(144 cards)
1
Q
Pleasant Valley Insurance Company provides worker’s compensation insurance to Green Acres Rest Home. Pleasant Valley periodically inspects Green Acres to identify risks to Green Acres’ employees. During an inspection, Pleasant Valley’s employee neglects to inspect Green Acres’ heating system and, therefore, fails to identify a faulty valve that emitted carbon monoxide. Later, Colleen, a Green Acre employee, is overcome by leaking carbon monoxide
A
Because Pleasant Valley’s conduct did not create a risk of harm to Colleen, whether Pleasant Valley has a duty of care to Colleen is governed by the provisions of § 37, not § 7.
2
Q
Pleasant Valley Insurance Company provides worker’s compensation insurance to Green Acres Rest Home. Pleasant Valley periodically inspects Green Acres to identify risks to Green Acres’ employees. During an inspection, Pleasant Valley’s employee removes and inspects a valve in Green Acres’ heating system. The employee neglects to replace the valve, which permits carbon monoxide to leak from the heating system. Colleen is overcome by the leaking gas.
A
Because the conduct of Pleasant Valley’s employee created a risk of harm, whether Pleasant Valley had a duty of care to Colleen is governed by § 7, not by § 37, even though the specific claim of negligence is that Pleasant Valley’s employee omitted to replace the valve.
3
Q
Steven rents an apartment from Garber Realty. After he moves in, the lock on the rear door of the apartment breaks, and despite several requests from Steven, Gerber does not repair the lock. One night when Steven is away, a burglar enters Steven’s apartment through the rear door and steals a substantial amount of Steven’s personal property. Steven sues Gerber for the value of the stolen property, asserting negligence in failing to keep the apartment locks operational. A municipal ordinance requires landlords to provide and maintain locks on all rental properties but states nothing about any private rights that might exist for violations of the ordinance.
A
A court in a jurisdiction that has not previously recognized a common-law duty of landlords to exercise reasonable care for the safety of its tenants should take the ordinance into account in determining whether Garber has a common-law duty of reasonable care to maintain locks on its apartments.
4
Q
A statute requires all public schools to test all students for scoliosis, an abnormal curvature of the spine. The Spartan school district neglects to comply with this requirement, and the diagnosis of scoliosis in Elizabeth, a student in the Spartan school district is delayed. Elizabeth sues Spartan for her enhanced harm due to the delayed diagnosis, and Spartan responds that it owed Elizabeth no duty. The statute does not explicitly provide a private right of action for persons who suffer from violations of the statute nor is there any indication that the legislature thought such a claim under the statute should exists. A provision in the statute providing for administrative enforcement makes plain that the legislature sought to minimize the expense incurred by school districts, including school districts that did not comply with their statutory obligations.
A
Based on this analysis, the court decides that no implied right of action exists under the statute. The legislature’s concern about preserving school districts’ financial resources counsels against the court finding that Spartan had an affirmative duty to Elizabeth with regard to scoliosis testing.
5
Q
Randall, while on a bridge spanning a river, decides to jump from the bridge into the water, an action barred by no law. Randall carefully canvasses the area below before jumping but does not realize that Cheri is treading water directly under the bridge. As Randall jumps, Cheri swims out from under the bridge. Randall lands on top of Cheri, knocking her unconscious
A
While not subject to liability for her initial injuries, Randall has a duty of reasonable care to Cheri to mitigate the extent of the harm she suffers.
6
Q
Vince, while motoring on an isolated mountain road, nonnegligently drives into Jane, who was hiking on the side of the road. Jane is injured but remains lucid. Jane, who does not have a cell phone, asks Vince to use his cell phone to call for aid. Vince refuses and drives off
A
Vince owes a duty to Jane to use reasonable care to mitigate further harm and is subject to liability for any enhanced harm suffered by Jane due to delay caused by Vince’s negligent failure to use his cell phone to summon assistance for Jane.
7
Q
Caryn and David purchase a new natural-gas furnace for their home. They hire Jillian to install the furnace, and she does so. She does not follow the manufacturer’s minimum requirements for venting the furnace, and as a results, both Caryn and David suffer carbon-monoxide poisoning. Danielle, their friend, finds them unconscious in their home due to the carbon-monoxide poisoning. Danielle drags them to another room but does not call for help. Cary and David suffer harm that could have been avoided if Danielle had summoned help
A
Whether Danielle is subject to a duty to Caryn and David for harm that could have been avoided is governed by this Section, not § 7, because Danielle’s conduct did not itself create the risk that caused the harm.
8
Q
Caryn and David purchase a new natural-gas furnace for their home. They hire Jillian to install the furnace, and she does so. She does not follow the manufacturer’s minimum requirements for venting the furnace, and as a results, both Caryn and David suffer carbon-monoxide poisoning. Danielle, their friend, finds them unconscious in their home due to the carbon-monoxide poisoning. Danielle drags them to another room but does not call for help. Cary and David suffer harm that could have been avoided if Danielle had summoned help
A
Jillian owes a duty of reasonable care as provided in § 7 to Caryn and David for the harm due to carbon-monoxide poisoning, without reference to this Section, because Jillian’s conduct in installing the furnace created the risk that caused harm to Caryn and David.
9
Q
Ahmed’s neighbor, Meena, agrees to make daily visits to Ahmed’s house to care for Ahmed’s cat and dog while he is out of town. Meena forgets to do so
A
Meena owes a duty of reasonable care to Ahmed because he relied on Meena to attend to his pets. Meena is subject to liability for harm caused by her negligent failure to visit Ahmed’s home and attend to his pets.
10
Q
Lindsay hires Margaret to fix a leaking plumbing fixture in a second floor apartment. Margaret repairs the leak in a nonnegligent manner. After completing the repairs. Margaret realizes that water that had leaked earlier from the fixture then had run from the apartment onto an adjacent alley. When returning home that evening, Lindsay slips and falls on ice that formed in the alley from the runoff. Lindsay sues Margaret, claiming that she had a duty of reasonable care with regard to the water that leaked out of the fixture
A
The risks posed by the water that had previously escaped from the fixture are beyond the scope of Margaret’s undertaking to repair the fixture as a matter of law, and Margaret is not subject to liability for Lindsay’s harm.
11
Q
The River City School District provides school crossing guards at the three most dangerous intersections for each school in the district. While walking to school and crossing one of those intersections, Alphonso, a seven-year-old boy, is hit by an automobile and injured because no crossing guard is present. Alphonso’s guardian sues the School District, claiming that its negligence caused Alphonso’s harm.
A
The duty of the School District encompasses reasonable care at the intersection at which Alphonso was injured, as a matter of law, and the School District is subject to liability for Alphonso’s harm.
12
Q
Rick, while piloting a small plane with his spouse, Steve, as a passenger, detects smoke in the cockpit. Rick radios the Pleasant Flying service located at one of several nearby airports to determine if firefighting equipment is available. Upon being told that it is, Rick informs Pleasant that he is going to land at the airport because of a suspected fire and will need emergency firefighting equipment. Sheila, an employee of Pleasant, promises to provide such equipment and proceeds to retrieve the airport fire truck and move it to the runway. In her haste, Sheila negligently fails to unlock the garage door before actuating the motor for the door opener, jamming the door and preventing her from moving the truck out of the garage and onto the runway. After Rick lands, a fire breaks out that burns Steve.
A
Pleasant owes a duty of reasonable care to Steve based on its undertaking to provide firefighting equipment and on Rick’s reliance on Pleasant’s undertaking.
13
Q
Phillips’ Ribs, a restaurant, hires Lyndsey an independent contractor, to keep its sidewalks clear of ice and snow. After a particularly bad storm, Lyndsey fails to clear the restaurant’s sidewalks. Luther, a customer of Phillip’s, falls on the sidewalk and suffers injury.
A
Lyndsey has a duty of reasonable care to Luther because Lyndsey undertook a duty owed by Phillip’s to Luther.
14
Q
While eating lunch alone at the Walkalong restaurant, Joe suddenly suffers a severe asthma attack. Several waiters at the restaurant recognize that Joe is suffering an asthma attack. All of them ignore Joe, and another 10 minutes pass before another patron observes Joe and summons medical care. The delay results in Joe suffering more serious injury than if he had received medical attention promptly after the waiters observed his plight
A
The Walkalong restaurant is subject to liability to Joe for his enhanced injury due to the delay in his receiving medical care.
15
Q
Joe suffers an asthma attack after finishing his meal at Walkalong and departing. Rich, a waiter at Walkalong, sees Joe through a window and appreciates that he is suffering an asthma attack but does nothing, thereby delaying appropriate medical care for Joe.
A
Walkalong is not subject to liability for any enhanced injury to Joe due to the delay in his receiving medical care because Joe’s asthma attack occurred outside the scope of the relationship he had with Walkalong.
16
Q
Welch Repair Service knows that its employee Don had several episodes of assault in his previous employment. Don goes to Traci’s residence, where he had previously been dispatched by Welch to perform repairs, and misrepresents to Traci that he is there on Welch business to check those repairs. After Traci admits Don to her home, he assaults her
A
Welch is subject to a duty under this Subsection with regard to Don’s assault on Traci.
17
Q
Steve, a 14-year-old having adolescent adjustment difficulties, is referred to Dr. Cress, a psychologist. Dr. Cress treats Steve for several months, concluding that Steve suffers from mild depression and deficits in peer social skills. Steve occasionally expresses generalized anger at his circumstances in life but never blames others or gives any other indication that he might act violently, and Dr. Cress has no reason to think that Steve poses a risk of harm to others. Steve hacks his parents to death with a scythe.
A
Dr. Cress had no duty to Steve’s parents and is not subject to liability to the administrators of their estates.
18
Q
Dr. Strand, a clinical psychologist, becomes aware, during the course of counseling, that a patient, Lester, is sexually abusing his eight-year-old stepdaughter, Kelly. Dr. Strand does not communicate this information to Kelly’s mother or to appropriate officials of the state Department of Social Services, or take any other steps to prevent Lester from continuing his sexual assaults on Kelly.
A
Dr. Strand owes a duty of reasonable care to Kelly and is subject to liability for the harm due to Lester’s continuing abuse of her.
19
Q
Kyle is a guest in Meeren’s home and, after some prompting by other guests, agrees to demonstrate magic tricks. While demonstrating a trick involving an open flame, he ignites the clothing of Sarah, another guest, burning her
A
Kyle owes Sarah a duty of reasonable care pursuant to § 7; this Chapter is inapplicable to the duty owed by Kyle, because he is not in possession of the premises (Premises Liability).
20
Q
Ed and Margaret carpool together to work. Unable to find a place on the street to park, Margaret pulled into a parking lot owned by the Viner Hospital that is restricted to hospital visitors. After parking, Ed decides to go into the hospital to visit his brother, while Margaret, who has no business at the hospital, walks toward her office in a nearby building. Both Ed and Margaret slip and fall on an accumulation of ice while walking across the sloping parking lot
A
Under applicable law, Margaret is a trespasser while Ed, having decided to visit his brother, is an invitee. Viner Hospital owes both Ed and Margaret a duty of reasonable care for the condition of the parking lot. Under the circumstances provided in this Illustration, determination as to whether the duty was breached is for the factfinder.
21
Q
Marc owns a home and stores anhydrous ammonia in a garden shed on the property. Anhydrous ammonia, which can cause severe chemical burns if handled improperly, is used as a fertilizer. It is also used as an ingredient in methamphetamine, an illegal drug. Betty, a police officer investigating a report of a strong chemical smell in the neighborhood, obtains Marc’s permission to search the premises. During the search, Betty enters the shed and examines a container. Its lid pops off, and the contents, under pressure, spray onto her and burn her.
A
Marc, who is aware of the possibility of the sudden and unintended escape of the chemical, is subject to liability for failing to warn Betty that anhydrous ammonia was kept under pressure in the shed.
22
Q
Marc owns a home and stores anhydrous ammonia in a garden shed on the property. Anhydrous ammonia, which can cause severe chemical burns if handled improperly, is used as a fertilizer. It is also used as an ingredient in methamphetamine, an illegal drug. Betty is a police officer investigating a report of a strong chemical smell in the neighborhood. Marc is not present when Betty comes to investigate. Upon realizing that no one is home, Betty searches the land and the shed, which is unlocked, and she is injured in the same fashion (Container’s lid pops off, and the contents, under pressure, spray onto her and burn her)
A
Marc is not subject to liability for failing to warn Betty. Marc, however, may be subject to liability to Betty for failing to take precautions to more securely store the chemicals in the shed.
23
Q
Virginia and her daughter, Jeanne, a two-year-old, temporarily reside with a friend, Euclid, and her young daughter, because Virginia lost her job and can no longer afford her apartment’s rent. Euclid’s lease specifies that she cannot have anyone but herself and related family residing in her apartment, making Virginia and Jeanne trespassers. The balcony of Euclid’s apartment is missing several of the vertical posts required to make the railing safe. Hoover, Euclid’s lessor, has been notified of the condition, but has failed over a two-month time period to repair the railing.
A
Hoover is subject to liability for the physical harm Jeanne suffers when she falls through the opening in the railing.
24
Q
On a dark night, John goes for a walk in a city park that winds along the coastline on a bluff above the water. While walking on a path adjacent to a stone wall marking the edge of the bluff, the ground gives way, and John falls to the bottom of the bluff, suffering physical harm. A city ordinance prohibits entry into the park from dusk until dawn, allowing entry only during daylight, but no physical barrier prevents entry during that time
A
John is an ordinary trespasser in the park, and the city owes him a duty of reasonable care.
25
Herman engages in a late-night burglary of the Jacob liquor store after it has closed. While leaving the store after taking cash from the store’s register, Herman slips on a slick spot on the floor, falls, and breaks his arm
Herman is a flagrant trespasser, and Jacob’s duties to Herman are provided by this Section.
§ 52 – Duty of Land Possessors to Flagrant Trespassers:
(a) The only duty a land possessor owes to flagrant trespassers is the duty not to act in an intentional, willful, or wanton manner to cause physical harm.
(b) Notwithstanding Subsection (a), a land possessor has a duty to flagrant trespassers to exercise reasonable care if the trespasser reasonably appears to be imperiled and
(1) Helpless; or
(2) Unable to protect him- or herself.
26
Late one night, Rick climbs over a low decorative fence surrounding Rachel’s Bed and Breakfast. He lies in wait until a guest returns and then assaults the guest and snatches her purse. While escaping from the property, Rick is injured by an uninsulated electrical wire providing high-intensity lighting on the grounds
Rick’s criminal assault of a customer of Rachel’s on the premises is important (and sufficient) to support the determination that he is a flagrant trespasser.
27
Rick assaults Sasha on a public street and snatches her purse. After running several blocks and making his escape, he stops at a local bar for a drink. On his way home, he climbs over a low decorative fence at Rachel’s Bed and Breakfast and is injured by the uninsulated electrical wire providing high-intensity lighting on the grounds
Rick’s commission of a crime is not relevant to the determination of whether his trespass on Rachel’s land is flagrant.
28
Garnett, Inc., owns a large tract of unimproved land and takes significant measures to keep trespassers away. Nevertheless, Willy and friends drive on the land at night to go mudding – an activity that involves driving off-road in soft, wet ground. Willy drives up a steep embankment and the car falls and strikes a tree. Willy is trapped in his car and bleeding profusely. A security guard employed by Garnett finds Willy in his car, ignores his plight, and leaves the scene to take a coffee break. Willy dies.
Garnett is subject to liability for any enhanced harm Willy suffered that could have been prevented by the security guard taking reasonable measures on behalf of Willy, such as calling 911 or providing immediate first aid.
29
Kaidan, who owns an apartment building, negligently repairs the screen door on one of the apartments; consequently, the door-closing apparatus that prevents the door from slamming shut sometimes malfunctions. Kaidan knows of this problem but decides not to fix it. Kaidan rents the apartment to Ramona without telling her of the door’s condition. Soon after, she is injured when the door slams shut behind her, its kickplate cutting her heel and severing her Achilles tendon
Kaidan is subject to liability under both Subsections (b) and (c).
Except as provided in § 52, a lessor owes to the lessee and all other entrants on the leased premises the following duties:
(a) A duty of reasonable care under § 51 for those portions of the leased premises over which the lessor retains control;
(b) A duty of reasonable under § 7 for any risks that are created by the lessor in the condition of the leased premises;
(c) A duty to disclose to the lessee any dangerous condition that satisfies all of the following:
(1) It poses a risk to entrants on the leased premises;
(2) It exists on the leased premises when the lessee takes possession;
(3) It is latent and unknown to the lessee; and
(4) It is known or should be known to the lessor;
30
Sharon, driving a car, approaches Dan’s car, and properly steps on the brakes. For reasons unrelated to any negligence on Sharon’s part, the brakes fail to function. Sharon’s car continues forward. In this emergency, Sharon chooses to step on the brakes again, and they fail again, causing Sharon’s car to strike Dan’s car, injuring Dan.
A claim assessment of the choices facing Sharon indicates that all things considered, a better choice would have been for her to turn the car quickly to the right. Still, the jury can conclude that, in light of the emergency circumstances, Sharon behaved as a reasonably careful person
31
Sharon, driving a car, approaches Dan’s car, and properly steps on the brakes. The brakes fail to function. The failure of the brakes is due to Sharon’s negligence in inadequately maintaining the brakes. Sharon’s car continues forward. In this emergency, Sharon chooses to step on the brakes again, and they fail again, causing Sharon’s car to strike Dan’s car, injuring Dan
This negligence renders Sharon liable for the harm Dan suffers in the eventual collision, regardless of how a jury evaluates Sharon’s decision to reapply the brake
32
Clyde was a guest at the Hilgard Hotel. At nine in the evening, there was a power outage that deprived the hotel of electricity. In his dark room, Clyde fell and injured himself. There was no form of emergency lighting within the hotel room, although flashlights were available at the hotel front desk. At trial, Clyde identified an inexpensive battery-powered lighting fixture that a hotel could install in guest rooms. Had Clyde’s room had such a fixture, he would have avoided injury. However, expert testimony makes clear that no hotels provide in-room emergency lighting of this sort.
This evidence of Hilgard’s compliance with hotel custom is some evidence of its nonnegligence; yet if there is adequate evidence that emergency lighting in hotel rooms is a reasonable precaution with respect to the risk of guests injuring themselves during a power outage, Clyde’s claim of negligence can be considered by the jury.
33
Carl is a guest in the Finney Hotel. The bathroom in the hotel includes a shower, protected by a sliding door made of ordinary glass. Carl trips while taking a shower and falls on the door. Its glass shatters and lacerates Carl. It is a standard practice among hotels to use shatter-proof tempered safety glass rather than ordinary glass at hazardous locations, such as shower enclosures
Finney’s departure from this custom is some evidence of its negligence.
34
A state statute requires that the operator of a truck that becomes disabled on a highway promptly put out a warning sign at least 100 feet behind the truck. When a deflated tire disables Carl’s truck, he places a warning sign right next to the truck. Ann, approaching Carl’s truck from behind, does not see Carl’s warning sign until it is too late for her to stop. Her car strikes the rear of Carl’s truck, and she is injured in the collision. Ann would have been able to stop in time had the warning sign been set at the 100-foot distance
In the suit brought by Ann against Carl, Carl’s violation of the statute is negligence per se; the basic purpose of the statute is to prevent accidents of this type. In the absence of the statute, Carl’s failure to place a warning sign at least 100 feet away from the truck would merely raise a jury question as to Carl’s possible negligence.
35
A state administrative regulation requires railroad trains to avoid blocking highway crossings for more than 10 minutes. The Pacific Railway allows one of its trains to remain in a highway crossing for 30 minutes. Fifteen minutes into this 30-minute period, Arthur, driving on the highway, fails to notice the train until it is too late, and collides with it, suffering an injury. Arthur concedes that his absent-minded negligence should reduce his recovery under comparative negligence, but claims that Pacific is negligent per se for violating the regulation.
However, a review of the history of the regulation and of the agency’s findings that accompany the regulation shows that its only purpose is to encourage the free flow of traffic and prevent traffic delays. Because the prevention of personal injuries is not part of this purpose, Pacific is not negligent per se.
36
A state statute requires that all slow moving vehicles drive as far to the right on the highway as possible. One of this statute’s major purposes is to minimize the safety hazards posed by vehicles whose slow speed can interfere with the flow of highway traffic. Ellen is driving slowly on a highway heading north, yet is violating the statute by driving in the fast lane on the left. Bob is a passenger in Ellen’s car. A car coming south on the highway for some reason crosses the highway’s median line and strikes Ellen’s car, injuring Bob. Had Ellen been in the lane on the far right, her car would have avoided contact with the other car. Bob sues Ellen, and seeks to show her negligence by establishing her violation of the statute.
The purpose of the statute is to protect highway safety. However, the statute is designed to prevent accidents between cars moving in the same direction caused by one car’s slow speed, not to prevent accidents between cars moving in opposite directions. Accordingly, Ellen’s violation of the statute is not negligence per se.
37
A state statute fixes a speed limit of 55 miles per hour for a state highway. Linda is driving her car on that highway at a speed of 50 miles per hour. A teenager, Dave, unexpectedly darts from the sidewalk onto the highway. Despite a proper lookout, Linda is unable to stop in time, and strikes Dave, injuring him. Had Linda been driving at 40 miles per hour, she would have been able to avoid hitting Dave. In his lawsuit, Dave alleges that Linda was negligent in driving at a speed faster than 40 miles per hour. At the time the weather had been fine, the road and traffic conditions had been entirely ordinary, and no other circumstances suggested any special danger.
A court would be justified in ruling as a matter of law that Linda was not negligent in the speed at which she operated her car.
38
To deal with a problem of bleeding ulcers, Ronald agrees to surgery. Complications ensue in the course of surgery, which extends its duration from two hours to four hours. After surgery, Ronald ends up with only limited motion in his right arm. Ronald suspects negligence on the part of Dr. Jones, the anesthesiologist, but has no specific evidence of this. In his suit against Dr. Jones, Ronald seeks to rely on res ipsa loquitur in order to prove Dr. Jones’s negligence. Without expert testimony, Ronald’s res ipsa loquitur claim against Dr. Jones fails; jurors lack general knowledge as to the possible causes of palsy in the arm after an extended anesthetic of this sort
However, if Dr. Smith, an expert, testifies that such instances of palsy are usually the result of negligence of the anesthesiologist, Ronald’s res ipsa loquitur claim can be considered by the jury. Dr. Jones is of course free to cross-examine Dr. Smith, or to present his own expert to challenge Dr. Smith’s testimony.
39
Bruce parks his car at the top of a driveway, which is on an incline. Two minutes later, the car rolls down the incline and injures Janice, on the sidewalk. In suing Bruce, Janice seeks to rely on res ipsa loquitur in order to prove Bruce’s negligence.
Admittedly, mechanical failure or third-party tampering are at least possible explanations for why the car rolled. Still, the jury’s general knowledge can affirm that driver negligence is the usual cause when cars roll so quickly after being parked. Accordingly, the jury may infer that Bruce was negligent.
40
Paul, while moving his household goods, throws a heavy parcel out of his window onto the street, intending it to fall into a waiting cart. In doing so, he calls out, “Look out below.” He misses his target, and the parcel strikes Andrea, a pedestrian, who does not hear the warning because her attention is directed to other matters.
Despite his warning, Paul can be found negligent for dropping the parcel
41
Judy loans her car for the evening to her friend, Grant, who needs the car for social purposes. Judy knows that Grant’s driver’s license was suspended a moth previously on account of repeated instances of reckless driving. In the course of the evening, Grant drives the car negligently, and injures Eugene, a pedestrian
A jury can find that Judy was negligent in loaning or entrusting her car to Grant.
42
The Nelson Company hires Tom to serve as a janitor in its apartment building. Nelson knows that Tom has a record of inappropriate sexually aggressive conduct toward women. In his role as a janitor, Tom has frequent interactions with Carol, one of the building’s tenants. One evening, after his workday is over, Tom knocks on Carol’s door. Regarding Tom’s presence as an ordinary occurrence, Carol lets him in. Once in her apartment, Tom rapes Carol
A jury can find that Nelson was negligent in hiring Tom for a job in which Tom would have access to female tenants within their apartments.
43
Late one night, Richard places his loaded pistol on the coffee table in the family room of his home. The next afternoon, Richard’s 10-year-old son, Norm, is spending time in the family room with his friend, Judy. Norm picks up the gun and plays with it; it accidentally discharges and injures Judy
A jury can find that Richard was negligent in providing Norm access to the gun in circumstances in which Norm might use it improperly.
44
Ajax, a car rental agency, rents a car to Ron. Ajax has property inspected the car to make sure it is in sound operating condition. The car turns out to have a bomb in it at the time of rental; an hour later, the bomb explodes, injuring Ron
While obviously someone deliberately placed the bomb in the car, the circumstances for this remain unclear. Ajax would have discovered the bomb had Ajax conducted an inspection of the car specifically searching for explosive devices before renting the car to Ron. No one knows of any prior incidents in which rental cars have been criminally tampered with in this way. Ajax is not negligent in failing to search the car for explosive devices before renting it.
45
A negligently runs out of gasoline on the highway. B sees A’s automobile but negligently fails to avoid hitting it with his own automobile, injuring A
A is not forgiven his own negligence under the last-clear-chance rule. In assigning percentages of responsibility, the factfinder may take into account that B knew of A’s peril and was subsequently negligent.
46
A negligently runs out of gasoline on the highway. B sees A’s automobile but recklessly fails to avoid hitting it with his own automobile, injuring A
A is not forgiven his own negligence under the last-clear-chance rule. In assigning percentages of responsibility, the factfinder may take into account the fact that B knew of A’s peril and subsequently acted recklessly.
47
A negligently fails to wear a seat belt. B drives an automobile negligently, causing it to crash into A’s automobile. A is thrown through the windshield and severely injured.
Unless there is a statute precluding consideration of seat-belt use, A’s conduct in failing to wear a seat belt is relevant in determining whether A was negligent and, if so, in assigning percentages of responsibility for the portion of the plaintiff’s injuries caused by the failure to wear the seat belt.
48
A negligently breaks B’s leg. B negligently (or deliberately) fails to follow his doctor’s orders about taking anti-inflammatory medication. This failure causes B’s leg to heal more slowly, which in turn causes B to miss two extra weeks of work
B’s failure to take his medicine affects his percentage of responsibility for and thereby reduces his recovery of damages caused by the two-week delay. It does not, however, bar him entirely from recovering those damages or cause them to be excluded from the damage finding.
49
A negligently breaks B’s leg. B negligently goes skiing on the broken leg one week after it is set. This reinjures B’s leg, delaying B’s return to work by two weeks
B’s conduct in skiing on the broken leg affects his percentage of responsibility for the damages related to the two-week delay. Damages caused by B’s decision to ski on the broken leg are not, however, excluded in their entirety from B’s damages. A factfinder may find that B’s decision to ski on a broken leg was unforeseeable and beyond the scope of the risk created by A’s negligence.
50
A attends a baseball game at B’s ballpark. A sits in a portion of the stands beyond the point where the screen prevents balls from entering the seats. A is aware that balls occasionally are hit into the stands
The fact that A knew balls are occasionally hit into the stands does not constitute assumption of risk. The fact that A knew balls occasionally are hit into the stands is relevant in evaluating whether A acted reasonably by engaging in particular types of conduct while sitting in the stands (sitting in the stands would not itself constitute unreasonable conduct). If the factfinder concludes that A did not act reasonably under the circumstances, A’s knowledge of the risk is relevant to the percentage of responsibility the factfinder assigns to A. If B could reasonably assume that A and other fans are aware that balls are occasionally hit into the stands, this fact is also relevant to whether B acted reasonably in relying on A to watch out for balls instead of constructing a screen or providing warnings.
51
A trespasses on B’s land without B’s knowledge and damages B’s flowers. In a suit by B against A, A argues that B failed to use reasonable care because he did not protect his flowers
B’s recovery against A is not diminished by B’s conduct if the substantive rule of law does not require B to exercise reasonable care to protect an undiscovered trespasser from a condition on the land.
52
A injures B in an automobile accident. B requires medical treatment but refuses a blood transfusion on religious grounds
Whether B must exercise reasonable care with respect to permitting the transfusion and whether B’s refusal is outside the scope of the risk created by A’s negligence are determined by the applicable substantive law, not by the rule stated in this Section
§ 3 – Ameliorative Doctrines for Defining Plaintiff’s Negligence Abolished:
Plaintiff’s negligence is defined by the applicable standard for a defendant’s negligence. Special ameliorative doctrines for defining plaintiff’s negligence are abolished
53
A, who is driving an automobile, hits B, who is a pedestrian, in a parking lot. B sues A for negligently failing to keep a lookout and for speeding. A claims that B’s damages should be reduced because B failed to use reasonable care in watching for automobiles
B has the burden to prove that A failed to use reasonable care and that this failure was a legal cause of B’s damages. A has the burden to prove that B failed to use reasonable care and that this failure was a legal cause of B’s damages. If A and B meet their burdens of proof on these issues, they do not have any further burden to produce particular evidence about the precise percentage of responsibility the factfinder should assign to A.
54
A, who is driving while intoxicated, is stopped at a red light. B negligently fails to stop and hits A’s car in a rear-end collision. A sues B for personal injuries suffered in the collision.
A’s own negligence of being intoxicated does not affect A’s recovery, because it did not cause A’s injuries.
55
A sues B. The factfinder assigns 40 percent responsibility to A and 60 percent responsibility to B. The factfinder finds that A’s damages are $100,000
A’s recovery is reduced from $100,000 to $60,000, which constitute the plaintiff’s “recoverable damages.”
56
A negligently injures himself in an automobile accident. A seeks medical treatment from B, who negligently aggravates A’s injury.
In a suit in which A seeks to recover from B for the art of A’s injuries caused by B’s medical malpractice, the factfinder does not consider A’s negligence in causing the accident. A’s negligence produced the very condition B undertook to treat
57
A seeks medical treatment from B. B aggravates A’s condition because B negligently fails to properly diagnose A’s problem. B’s failure to diagnose A’s condition was due in part to A’s negligent failure to provide accurate answers to B’s questions.
In a suit in which A seeks to recover from B the part of A’s injuries caused by B’s negligence, the factfinder does consider A’s negligence in failing to accurately answer B’s questions. That conduct was not a cause of the condition B undertook to treat
58
A negligently damages his own automobile and takes it to B for repair. B negligently repairs the automobile. The faulty repairs cause the automobile to crash, injuring A. A sues B.
The factfinder does not consider A’s original negligence in damaging the automobile.
59
A sues B and C. The factfinder assigns 40 percent responsibility to A, 40 percent responsibility to B, and 20 percent responsibility to C, and finds A’s damages are $100,000
In a jurisdiction that has adopted a pure comparative-responsibility system, A recovers a total of $60,000 from B and C. In a jurisdiction that has adopted a modified-comparative-responsibility system (51% bar), A recovers a total of $60,000 from B and C. A is not barred from recovering from C merely because A’s percentage of responsibility is greater that C’s percentage of responsibility. In a jurisdiction that has adopted a modified-comparative-responsibility system (50% bar), A recovers a total of $60,000 from B and C. A is not barred from recovering from B or C merely because A’s percentage of responsibility is greater than C’s percentages of responsibility and equal to B’s percentage of responsibility.
60
A rear-ends B’s automobile when B is stopped at a red light at night. B sues A, alleging that A was not watching the road. A claims that B was negligent for failing to have working taillights and for being drunk
In assigning a percentage of responsibility to B, the factfinder considers B’s failure to have working taillights if the factfinder finds that the absence of working taillights was a legal cause of the collision; the factfinder does not consider B’s drunkenness if the factfinder concludes that the same accident would have happened even if B had been sober and thus that B’s drunkenness was not a legal cause of the collision.
61
A is injured when A’s and B’s automobiles collide at an intersection with a four-way stop. In A’s lawsuit against B, A is found negligent for taking his eyes off the road to attend to a child in the back seat, and B is found negligent for purposefully trying to beat A’s automobile across the intersection after seeing it approaching. A’s conduct and B’s conduct are each found to have caused A’s indivisible injury.
The factfinder would be justified in assigning a higher percentage of responsibility to B because,
(a) B’s conduct deviated more significantly from the legally required norm,
(b) B had a more culpable state of mind, and
(c) the other circumstances surrounding A’s conduct were more forgivable.
62
E is injured when E’s and F’s automobiles collide at an intersection. In E’s lawsuit against F, E and F are both found to be negligent. F is mentally impaired
In assigning percentages of responsibility to the parties, the factfinder may take F’s mental impairment into account, even though the impairment is not relevant to F’s legal culpability under the applicable objective legal standard for negligence. The court has discretion, where appropriate, to limit inquiry into F’s mental state on the ground that it would be too prejudicial, confusing, or misleading or would cause undue delay. If the evidence is admitted, a limiting instruction may be appropriate to instruct the jury that F’s mental state is not relevant to the question of whether F is negligent, but may only be considered for assigning percentages of responsibility.
63
A sues B, C, and D, who are found jointly and severally liable to A. The factfinder determines that A’s damages are $100,000 and assigns 20 percent responsibility to A
A may recover $80,000 from either B, C, or D. A may not recover more than $80,000 in total from B, C, and D, pursuant to any judgment against B, C, and D.
64
A breaks down the door to B’s hotel room and rapes B. C, the operator of the hotel, is also found liable for the rape because of negligence in providing security. The factfinder assigns 20 percent responsibility to C and 80 percent responsibility to A
A is jointly and severally liable for all recoverable damages pursuant to this Section (§ 12 - Intentional Tortfeasors), regardless of the governing provision on joint and several liability for independent tortfeasors who do not act with intent.
65
A sues B, C, and D in a jurisdiction that applies several liability to independent tortfeasors who cause a single indivisible injury. C is B’s employer, and the sole basis for C’s liability is C’s vicarious liability for B’s negligence
The factfinder assigns 40 percent of the responsibility to B and C, who are considered an single entity and assigns 60 percent of the responsibility to D. B and C are each liable for up to 40 percent of A’s damages (although A may only recover a total of 40 percent of the damages from B and C), but neither is liable for the other 60 percent of A’s damages, for which D is severally liable.
66
A is a guest at a hotel operated by B. B neglects to provide adequate door locks on A’s room, as a result of which C, an intruder, gains access to A’s room, assaults A, and steals A’s property
B is liable for the shares of comparative responsibility assigned both to B and to C, because the risk that made B’s conduct negligent was specifically the risk that someone would assault A and steal A’s property. C is jointly and severally liable for all of A’s damages
67
A, a police officer, is injured when shot by B, a criminal that A was pursuing in a car chase. A is injured both by the bullet and by a sharp shard of defective glass in the windshield of A’s police cruiser, manufactured by C. A was wearing a bullet-proof vest manufactured by D that, had it not been defective, would have prevented A’s injuries.
Assuming that the applicable rules of legal cause make B and D liable for the injury caused by the bullet and B, C, and D liable for the injury caused by the glass, D is liable for its share of comparative responsibility and B’s share of comparative responsibility for the bullet damages and the glass damages, because D is liable for failing to protect against both the shooting and the risk of being assaulted with a broken bottle or other glass. This Section does not impose liability on D for C’s share of comparative responsibility for the glass damages; D’s joint and several or several liability with regard to C’s comparative share of responsibility for the glass damages is determined by the applicable law on joint and several liability for independent tortfeasors in the jurisdictions (Tracks A-E). B is jointly and severally liable for the entirety of A’s damages. D’s right to contribution from B is governed by § 23, Comment e. B’s right to contribution from D is governed by § 23, Comment l.
68
A, engaged in salvage operations, locates and raises to the ocean surface a ship that had sunk many years before. A contracts with B to tow the shipwreck into port later that day. The contract between A and B provides that any damage to the ship that occurs while B is performing its obligations will be borne by the parties according to applicable tort law. B neglects to tow the ship into dock, and, because it is sitting on the water overnight, C, a thief who pirates unoccupied ships, strips it of much of its valuable contents
If B is negligent for the delay in towing the ship only because of the risk that the ship would be harmed or resunk by adverse weather conditions, B is not liable for the share of comparative responsibility assigned to C based on the rule stated in this Section. B’s joint and several liability is determined by the applicable law on joint and several liability is determined by the applicable law on joint and several liability of independent tortfeasors in the jurisdiction (Tracks A-E). If B is negligent for the delay in towing the ship because of the risk of thieves ransacking the ship (e.g., B was on notice that pirates were known to be lurking in the area looking for looting opportunities), B is liable for the share of comparative responsibility assigned to C based on the rule stated in this Section. B is liable for C’s share regardless of whether B would be negligent in addition because of the risks posed by adverse weather conditions. [B’s right to contribution from C and C’s right to contribution from B are governed by a separate Section].
69
A, a pedestrian, sues B, C, and D, who engaged in a drag race on a busy city street, and E, who was not involved in the drag race. B and C simultaneously collided with A, breaking A’s leg. D and E also collided with A, causing a fracture of A’s skull. The factfinder determines damages to be $25,000 for the broken leg and $50,000 for the fractured skull and assigns 50 percent responsibility to each of B and C for the broken leg and 50 percent responsibility to each of D and E for the fractured skull. The factfinder also determines that B, C, and D were engaged in concerted activity
B, C, and D are jointly and severally liable to A for $50,000 pursuant to the rule stated in this Section. B, C, and D are jointly and severally liable for this amount regardless of the applicable law regarding the joint and several liability of independent tortfeasors. Whether B, C, and D are also jointly and severally liable for E’s $25,000 comparative share of A’s skull fracture is a matter on which this Restatement takes no position. E’s liability for A’s fracture skull depends on the governing rules regarding joint and several liability or, on the other hand, several liability for independent tortfeasors who cause an indivisible injury.
70
A, a passenger in B’s car, sues B for negligence in going though a stop sign and C, who also went through a stop sign at the same intersection, resulting in a collision that injured A. A settles with B for $20,000. The factfinder assigns 20 percent responsibility to A for distracting B and 45 percent and 35 percent responsibility respectively to B and C and determines that A suffered $100,000 in damages.
C receives a $45,000 credit (B’s 45% share of comparative responsibility x $100,000 damages) due to A’s settlement with B that is applied to the total damage award by the jury, thereby reducing C’s liability to $35,000.
71
A negligently parks his automobile in a dangerous location. B negligently crashes his automobile into A’s automobile, damaging it. When B is standing in the road inspecting the damage, B is hit by C, causing personal injury to B. B sues A and C for personal injury and property damage. B’s negligent standing in the road, and C’s negligent driving caused B’s personal injuries
The factfinder determines damages separately for B’s automobile and B’s person. The factfinder assigns separate percentages of responsibility to A and B for damage to B’s automobile, considering A’s parking and B’s driving. A’s and B’s percentages add to 100 percent. The factfinder assigns a separate percentage of responsibility to A, B, and C for B’s personal injury, considering A’s parking, B’s driving, B’s standing in the road, and C’s driving. A’s, B’s, and C’s percentages add to 100 percent. After applying the rules in Topics 1-4 [basic rules and liability, contribution, indemnity, and settlement of multiple tortfeasors for indivisible harm] to each component injury, the court determines A’s and C’s liability to B by adding each party’s liability for each component injury.
72
A negligently parks his automobile in a dangerous location. B negligently crashes his automobile into A’s automobile, damaging it. When B is standing in the road inspecting the damage, B is hit by C, causing personal injury to B. B sues A and C for personal injury and property damage. B’s negligent standing in the road, and C’s negligent driving caused B’s personal injuries. The factfinder determines damages separately for B’s automobile and B’s person. The factfinder assigns separate percentages of responsibility to A and B for damage to B’s automobile, considering A’s parking and B’s driving. A’s and B’s percentages add to 100 percent. The factfinder assigns a separate percentage of responsibility to A, B, and C for B’s personal injury, considering A’s parking, B’s driving, B’s standing in the road, and C’s driving. A’s, B’s, and C’s percentages add to 100 percent. After applying the rules in Topics 1-4 [basic rules and liability, contribution, indemnity, and settlement of multiple tortfeasors for indivisible harm] to each component injury, the court determines A’s and C’s liability to B by adding each party’s liability for each component injury.
The factfinder finds that damages for B’s automobile are $1000 and that damages for B’s personal injury are $10,000. For the damage to B’s automobile, the factfinder assigns 70 percent responsibility to A and 30 percent responsibility to B. For B’s personal injuries, the factfinder assigns 20 percent responsibility to A, 40 percent responsibility to B, and 40 percent responsibility to C. A is liable to B for $2700: $700 ($1000 x .70) for damage to B’s automobile plus $2000 ($10,000 x .20) for B’s personal injuries. C is liable to B for $4000 ($10,000 x .40) for B’s personal injury. Whether A and C are jointly and severally liable for B’s personal injury is determined by Topic 2 (liability of multiple tortfeasors for indivisible harm).
73
The factfinder finds that damages for B’s automobile are $1000 and that damages for B’s personal injury are $10,000. For the damage to B’s automobile, the factfinder assigns 70 percent responsibility to A and 30 percent responsibility to B. For B’s personal injuries, the factfinder assigns 20 percent responsibility to A, 40 percent responsibility to B, and 40 percent responsibility to C. A is liable to B for $2700: $700 ($1000 x .70) for damage to B’s automobile plus $2000 ($10,000 x .20) for B’s personal injuries. C is liable to B for $4000 ($10,000 x .40) for B’s personal injury. Whether A and C are jointly and severally liable for B’s personal injury is determined by Topic 2 (liability of multiple tortfeasors for indivisible harm).
Same facts as Illustration 2, except that, for B’s personal injury, the factfinder assigns 20 percent responsibility to A, 60 percent responsibility to B, and 20 percent responsibility to C. Under pure comparative responsibility, A is liable to B for $2700: $700 ($1000 x .70) for damage to B’s automobile plus $2000 ($10,000 x .20) for B’s personal injuries. C is liable to B for $2000 ($10,000 x .20) for B’s personal injury. Under modified comparative negligence, A is liable to B for $700 ($1000 x .70) for damage to B’s automobile. B is barred from recovering from A or C for B’s personal injury.
74
A manufactures a product and sells it to B, who is a retailer. B then sells the product to C, who is injured. C settles with B for $100,000. B sues A for indemnity. B is unable to prove that the product was defective when it left A’s control and, therefore, is unable to prove that A would have been liable to C.
Absent contractual indemnity, B cannot recover indemnity from A.
75
A sues B and C. The factfinder finds that B and C are liable, finds that A’s damages are $100,000, and assigns 10 percent responsibility to A, 30 percent responsibility to B, and 60 percent responsibility to C
In a jurisdiction that uses joint and several liability, A is entitled to collect $90,000 from B. If A collects $90,000 from B, B is entitled to recover $60,000 ($100,000 x .60) in contribution from C.
76
A sues B and C. The factfinder finds that B and C are liable, finds that A’s damages are $100,000, and assigns 40 percent responsibility to B and 60 percent responsibility to C. B pays A $40,000, either because the jurisdiction does not use joint and several liability, or because A chooses to recover only $40,000 from B
B cannot recover contribution from C because B did not pay more than B’s percentage share of responsibility.
77
A sues B, C, and D. The factfinder finds that B, C and D are liable, finds that A’s damages are $100,000, and assigns 10 percent responsibility to A, 50 percent responsibility to B, 25 percent responsibility to C, and 15 percent responsibility to D. B pays the entire $90,000 judgment and sues C for contribution
B can recover $30,000 contribution from C ($25,000 plus 25/75ths of $15,000). After C pays B $30,000 in contribution, B can recover $10,000 and C can recover $5000 in contribution from D.
78
P, a landlord, employs A Ejectment Co. to dispossess a tenant. P knows that A Ejectment Co. has a reputation for using undue force in dealing with tenants. E, an employee of A Ejectment Co., in accordance with its usual methods, commits an unprovoked battery on T, a tenant, in order to induce T to leave
In an action by T against P, punitive damages can be awarded.
79
P, who owns an apartment building, employs A as its on-site manager. P knows that A is impatient and has a violent temper. T, one of P’s tenants, complains to A about the lack of heat in T’s apartment. Enraged, A assaults T
P is subject to liability to T. P hired A knowing that A’s temperament was not suited to the foreseeable demands of on-site residential management. P’s liability to T under this section is independent of whether P is subject to liability to T under § 7.07 [Respondeat Superior] on the basis that A’s conduct was within the scope of A’s employment by P.
80
P, who owns a furniture store, employs A to deliver furniture to retail customers. A’s duties include entering customers’ homes to situate items they have purchased. Having entered T’s home to deliver a sofa, A assaults T. Prior to employing A, P conducted no check of A’s background. Had P done so, P would have discovered criminal convictions for assault. Had P known of A’s criminal history, P would not have employed A to make deliveries
P is subject to liability to T.
81
P, who owns an apartment building, employs A as its on-site manager. P knows that A is impatient and has a violent temper. T, one of P’s tenants, complains to A about the lack of heat in T’s apartment. Enraged, A assaults T
P is subject to liability to T. P reasonably believes that A’s temperament is suited to the duties of on-site apartment management on the basis of P’s inquiries to A’s prior employers. However, P does not check with law enforcement authorities. Had P so checked, P would have discovered that A has been convicted of income tax evasion. P would not have viewed that conviction as material to A’s duties as an on-site manager, which do not involve tax compliance tasks, and P would have employed A had P known of A’s tax evasion conviction. P is not subject to liability to T as a consequence of A’s assault on T. Even if P acted negligently in failing to check A’s record with law enforcement authorities, P’s failure to detect A’s tax evasion conviction was not he factual cause of harm to T and did not increase the risk of an assault by A against T
82
Telephone Company lays underground cable in parts of a city. Telephone Company hires Martin as the independent contractor to perform the digging necessary for laying the cable. When the job starts, Martin has no previous digging or construction experience and only several hours of practice using a trenching machine. Telephone Company does not inquire into Martin’s experience in using trenching machines or working around gas pipes. During the course of the digging, Martin negligently strikes and damages a gas line, causing an explosion that seriously injures Anthony
Telephone Company is subject to liability to Anthony under this Section for failing to use reasonable care in selecting a competent contractor.
83
Tonya hires Blue Moon Movers, a local moving company, to transport furniture and packages from her old office to her new office. Tonya is a chemist, and some of her packages contain chemical mixtures that are combustible at temperatures over 100 degrees Fahrenheit. Tonya does not advise Blue Moon Movers that several boxes contain chemicals combustible at high temperatures. The move occurs on a summer day, and the temperature inside the truck exceeds 100 degrees. An explosion results, causing a collision that injures Darren, another driver.
Tonya is subject to liability to Darren under this Section for failing to warn Blue Moon about the chemicals or to take other precautions as to the chemicals.
84
John, a hotel owner, contacts AmeriPipe to deliver and install a hollow steel pipe 20 feet long and 8 inches in diameter to fit vertically over an existing stub of pipe secured in the ground. John plans to use the resulting structure to display a sig for the hotel. AmeriPipe’s representative tells John that AmeriPipe does not ordinarily install such pipes, but only delivers them. When AmeriPipe workers deliver the pipe, however, John renews his request that they install the pipe, offering to pay extra for the installation. AmeriPipe’s workers, after contacting their supervisors, agree to go ahead with the installation. John returns to his office while the workers attempt the installation by using their truck, hooks, chains, and additional poles for stabilization. The pipe slips off, bouncing on a passing car and injuring the driver.
John owes a duty of care under § 55 and is subject to liability to the injured driver for lack of reasonable care in selecting a competent contractor. The duty limitation in § 56 does not apply because the case does not involve allegations that John failed to use reasonable care as to the manner in which AmeriPipe performed the work.
85
John, a hotel owner, contacts AmeriPipe to deliver and install a hollow steel pipe 20 feet long and 8 inches in diameter to fit vertically over an existing stub of pipe secured in the ground. John plans to use the resulting structure to display a sig for the hotel. AmeriPipe’s representative sends John information showing that the company has extensive experience installing pipes and is bonded for this purpose. While the workers attempt the installation by using their truck, hooks, chains, and additional poles for stabilization. The pipe slips off, bouncing on a passing car and injuring the driver.
John is not subject to negligence liability under § 55 because he has not failed to use reasonable care. Further, John does not have a duty of care with respect to the manner in which AmeriPipe performed the work because John did not retain control over any part of the work.
86
Susan, an independent contractor, drives a tractor trailer unit transporting cattle on a highway. Susan loses focus on the road and also drives at excessive speed. She loses control of the tractor trailer, which flips over the highway and injures John
The transportation of cattle in these circumstances in a tractor trailer unit does not pose a peculiar risk because the risk of a truck turning over on the highway is not uncommon in the community.
87
John, attending a high school football game, suffers a fatal electric shock when he touches one of the light poles while he is leaning against a metal fence. The electrical conduit on the outside of the pole had become electrified because the insulation around a buried cable near the bottom of the pole was damaged. Had a plastic bushing been installed near where the buried cable entered the metal conduit, the pole could not have been electrified
High voltage electricity in this public place constitutes a peculiar risk because, unless reasonable precautions are taken, the risk is different from the ordinary risks to which person sin the community are ordinarily exposed.
88
Natural Gas Company supplies natural gas for the county. Natural Gas Company retains Gas Supply Company to install a service line to carry gas to a new neighborhood. Gas Supply Company’s employees negligently cause a slight tear in the pipe. The resulting gas leak causes an explosion that injures Sonya.
Natural Gas Company is subject to vicarious liability under the rule in this Section.
89
Arnold hires Bob, an independent contractor, to construct a dam in a stream on Arnold’s land. Arnold knows or should know that work on the dam makes it likely that the land upstream will be flooded if a heavy rainfall occurs. Before the completion of the dam, heavy spring rains cause flooding of Carol’s land upstream
Arnold is subject to vicarious liability to Carol.
90
A city ordinance requires that all apartments be equipped with smoke detectors in each sleeping area and in or near each stairwell leading to an occupied area. Tonya, who owns an apartment building and leases apartments, hires Elise, an independent electrical contractor, to install smoke alarms in the building. Elise does not install smoke detectors in every stairwell as specified by the ordinance. Kenyon, a tenant in Tonya’s building, is injured in a fire that started in a stairwell without a smoke detector; he would have escaped the fire without injury if a detector had been in place
Tonya is subject to vicarious liability to Kenyon for Elise’s failure to comply with the city ordinance.
91
A city hires LightCo., an independent contractor, to operate and maintain the city’s streetlights. Jamar is struck by a car while crossing a street near dusk. The streetlight was not operating at the time given the negligent failure of LightCo. to maintain the streetlights
The city is subject to vicarious liability to Jamar under Subsection (c).
§ 64 – Activities Under Public Franchise or in a Public Place:
(a) An actor engaged in an activity that can be lawfully carried out only under a franchise granted by public authority is subject to vicarious liability for physical harm when the actor hires an independent contractor to carry out the activity and the independent contractor’s negligence is a factual cause of any such harm within the scope of liability.
(b) An actor who hires an independent contractor for activity in a public place is subject to vicarious liability for physical harm if the independent contractor’s negligence is a factual cause of any such harm within the scope of liability.
(c) An actor who hires an independent contractor for maintenance or repair of a public place is subject to vicarious liability for physical harm if:
(1) The actor is under a duty to maintain the public place in reasonably safe condition; and
(2) The independent contractor’s negligence is maintaining the public place in reasonably safe condition is a factual cause of any such harm within the scope of liability.
92
Janet calls Beth, who operates a car service, asking Beth to send a seven-passenger car and driver to Janet’s home. Beth discovers that her only seven-passenger car is out of service. Beth contacts David and arranges with David to use his seven-passenger car. Beth sends David and the car to Janet, who thinks the car is Beth’s and that David is Beth’s employee. Because the car is in bad condition (which a reasonable inspection by David would have revealed), a collision occurs and injures Janet
Beth is subject to vicarious liability to Janet under this Section.
93
Dionne, an insulin dependent diabetic, goes to the emergency room at Harris Hospital after waking up with intense nausea that will not subside. At Harris Hospital, she is diagnosed with renal failure and undergoes surgery to implant a catheter that will assist with ongoing dialysis. The anesthesiologist for the surgery is Dr. Hudson, an employee of AA Anesthesiology services for Harris Hospital. Before the surgery, Dr. Hudson introduces herself by name and states that she will be providing the anesthesia. Dionne receives no information from Dr. Hudson or Harris Hospital suggesting that Dr. Hudson is not an employee of the hospital. Harris Hospital’s website lists Dr. Hudson as a member of its anesthesiology department and does not include any reference to AA Anesthesiology. Dionne suffers brain damage resulting from the negligence of Dr. Hudson
Harris Hospital is subject to vicarious liability to Dionne under this Section.
94
During surgery to correct a congenital anomaly, Culver, a 19-month old child, suffered a serious injury because of an overdose of anesthesia. Culver’s anesthesiologist explained that she believed the overdose occurred because a vaporizer, a component of an anesthesia machine, malfunctioned. St. Maria’s Hospital, the hospital where the surgery took place, took possession of the anesthesia machine after Culver’s injury as a part of its internal investigation. At the time, St. Maria’s assured Culver’s representative that it would preserve the machine. Two months later, when Culver’s attorneys were preparing to file suit against the anesthesia machine’s manufacturer, St. Mari’s informed Culver’s attorneys that it had lost the anesthesia machine
Although St. Maria’s negligence in failing to preserve the anesthesia machine is not a factual cause of Culver’s injury, its negligence is a cause of Culver’s inability to pursue a claim against the machine’s manufacturer. In a jurisdiction that recognizes negligent spoliation of evidence as a cause of action, St. Maria’s negligence is a factual cause of harm to Culver.
95
While driving 57 miles per hour on a road with a 50-miles per hour speed limit, Ken ran into Melanie, a pedestrian
Ken is not subject to liability for negligence in speeding unless he would not have hit Melanie or would have caused her less harm if he had been driving 50 miles per hour. (Ken may be subject to liability to Melanie for negligence unrelated to his speeding).
96
David’s airplane was seriously damaged when he was forced to land the plane without the retractable gear in the down position. David sues Chaser Aircraft, the manufacturer of the plane. David claims that Chaser neglected to include instructions in its service manual of the need to be sure of a minimum clearance between two parts in the landing gear assembly when reassembling the gear after routine servicing. David’s plane was serviced at Chaser because Chaser needed to complete unrelated warranty work to the aircraft. The Chaser mechanics who worked on David’s plane was fired shortly after the work was completed for repeatedly failing to consult service manuals when working on a plane, and David includes a claim based on the mechanic’s negligence
Neither the omitted instruction nor the mechanic’s negligence in failing to consult the manual is, but itself, a but-for cause of the harm to David’s plane because neither one alone would have produced the harm to David’s plane. See § 27, Comment i. Nevertheless, if the factfinder determines that a company providing a service manual with the omitted instruction and the same company with a mechanic who properly consulted the service manual would have prevented the damage to David’s plane, Chaser’s multiple negligent acts are a factual cause of the plane damage.
97
Cain, a two-year-old child suffering from a bacterial infection, received a routine childhood vaccination with a vaccine manufactured by Vacso. Shortly after receiving the vaccine, Cain spiked a very high fever, went into respiratory arrest, and died.
Cain’s estate provides competent evidence that Cain died because of the infection and the vaccine; if either Cain had not had an infection or if Cain had not been vaccinated, death would not have ensued. Cain’s estate has satisfied its burden of production to show that the vaccine was a factual cause of Cain’s death.
98
Cain, a two-year-old child suffering from a bacterial infection, received a routine childhood vaccination with a vaccine manufactured by Vacso. Shortly after receiving the vaccine, Cain spiked a very high fever, went into respiratory arrest, and died. Cain’s estate provides competent evidence that Cain died because of the infection and the vaccine; if either Cain had not had an infection or if Cain had not been vaccinated, death would not have ensued. Cain’s estate has satisfied its burden of production to show that the vaccine was a factual cause of Cain’s death.
In its defense, Vacso introduces competent evidence that the biological mechanism of infections and adverse drug reactions are entirely independent; therefore, either the vaccine or the infection caused Cain’s death, but not the two in combination. If the factfinder accepts this evidence and finds that the infection was more likely (or equally likely) a cause of death than an adverse vaccine reaction, Cain’s estate has failed to satisfy its burden of persuasion that the vaccine was a cause of Cain’s death.
99
Cain, a two-year-old child suffering from a bacterial infection, received a routine childhood vaccination with a vaccine manufactured by Vacso. Shortly after receiving the vaccine, Cain spiked a very high fever, went into respiratory arrest, and died. Cain’s estate provides competent evidence that Cain died because of the infection and the vaccine; if either Cain had not had an infection or if Cain had not been vaccinated, death would not have ensued. Vacso introduces competent evidence that the biological mechanism of infections and adverse drug reactions are entirely independent; therefore, either the vaccine or the infection caused Cain’s death, but not the two in combination
If the factfinder accepts this evidence and finds that the infection was more likely (or equally likely) a cause of death than an adverse vaccine reaction, Cain’s estate has failed to satisfy its burden of persuasion that the vaccine was a cause of Cain’s death.
100
Rosaria and Vicenzo were independently camping in a heavily forested campground. Each one had a campfire, and each negligently failed to ensure that the fire was extinguished upon retiring for the night. Due to unusually dry forest conditions and a stiff wind, both campfires escaped their sites and began a forest fire. The two fires, burning out of control, joined together and engulfed Centurion Company’s hunting lodge, destroying it.
Either fire alone would have destroyed the lodge. Each of Rosaria’s and Vicenzo’s negligence is a factual cause of the destruction of Centurion’s hunting lodge.
101
Trent is a guardian ad litem and father of Lakeesha, an infant born with a birth defect. Trent sues Pharmco, a pharmaceutical company, alleging both that Pharmco’s drug caused Lakeesha’s birth defect and that Pharmco was negligent for its failure to warn that its drug was teratogenic (causing developmental malformations/birth defects). Trent introduces sufficient evidence for the factfinder to find that Pharmco’s failure to warn was negligent, that the drug was a cause of Lakeesha’s birth defect, and that an adequate warning would have prevented the birth defect. Pharmco contends that its drug did not cause Lakeesha’s bright defect. Rather, Pharmco contends, Lakeesha’s birth defect was caused by a genetic condition wholly independent of Pharmco’s drug. Pharmco introduces sufficient evidence in support of its claims. The factfinder must determine if the drug, absent Lakeesha’s genetic condition, would have caused the firth defect.
If the factfinder determines that either the drug or the genetic condition would have, in absence of the other, caused Lakeesha’s birth defect at the same time then each is a factual cause pursuant to this Section (§ 27 – Multiple Sufficient Causes). If the factfinder determines that either the drug or the genetic condition played no role in the birth defect, then the other’s causal status is determined under the but-for standard of § 26.
102
Abe, Baker, and Charlie, acting independently but simultaneously, each negligently lean on Paul’s car, which is parked at a scenic overlook at the edge of a mountain. Their combined force results in the car rolling over the edge of a diminutive curbstone and plummeting down the mountain to its destruction
The force exerted by each of Abe, Baker, and Charlie would have been insufficient to properly push Paul’s car past the curbstone, but the combined force of any two of them is sufficient. Abe, Baker, and Charlie are each a factual cause of the destruction of Paul’s car.
103
Jonathan raises salmon in a pond on his property. Due to an unusual rainfall, a chemical, potentially toxic to salmon, leaks into the pond from natural deposits some distance from Jonathan’s property. However, the chemical concentration in the pond remains below the threshold that causes harm to salmon. Shelley and Mia, who engage in industrial operations near Jonathan’s property, each negligently allow the escape of the same chemical from their operations. Shelley’s and Mia’s chemical is deposited in Jonathan’s pond at the same time; each is sufficient with the existing contamination to raise the chemical concentration of the pond to a level that kills all of the salmon.
Each of Shelley’s and Mia’s negligence is a factual cause of Jonathan’s loss of salmon.
104
Emma, who was employed as an asbestos insulation installer for many years, is killed when a defect in a ground fault interrupter (GFI) in her bathroom fails. The GFI failed to break the electrical circuit after an electrical razor fell in the bathtub, resulting in Emma’s electrocution. The autopsy reveals that Emma was in the early stages of mesothelioma, an almost invariably fatal form of cancer, due to her asbestos exposure.
The defect in the GFI is the factual cause of Emma’s death, and her exposure to asbestos is not a factual cause of her death. Whether the damages recoverable from the GFI manufacturer are diminished because of Emma’s mesothelioma and, if so, by how much, are beyond the scope to this Restatement.
105
Abby was exposed to two different solvents while working in a laboratory. Each solvent contained a toxic chemical; one contained brion, and the other contained choron. After developing a disease, myeplopia, several years later, she sues the manufacturers of each solvent, claiming that the manufacturers were negligent for including a toxic chemical in their solvents. Abby’s evidence, presented by competent expert testimony based on valid scientific evidence, reveals that the increased risk of contracting myeplopia from the dose of brion to which she was exposed is insufficient to permit a finding of factual causation. Similarly, the increased risk of myeplopia from exposure to choron is insufficient to permit a finding of factual causation. However, Abby’s evidence reveals that, while choron and brion operate independently (those exposed to both are only subject to an increased risk of the additive risks of each), the combined risk of contracting myeplopia due to exposure to both is sufficient to permit a finding of factual causation
Each of the manufacturers is subject to liability. See § 26, Comment c. Apportionment of liability between the manufacturers is governed by Restatement Third, Torts: Apportionment of Liability.
106
Competent evidence shows that choron exposure increases the risk of myeplopia by 10 times, as does brion exposure. Competent evidence also reveals that the mechanism by which myeplopia develops is different for choron exposure and for brion exposure and that exposure to one or the other, but not both, is the most likely explanation for Abby’s myeplopia. Abby cannot prove, however, whether choron or brion caused her myeplopia.
Pursuant to § 28(b), the burden of proof on agent-disease causation is shifted to the manufacturers of choron and brion.
107
Competent evidence reveals that choron and brion operate in precisely the same physiologic manner in the human body; they are interchangeable in their role in causing myeplopia
Exposure to each of choron and brion is a factual cause of Abby’s myeplopia. See § 27, Comment g.
108
Reed, a pedestrian, was injured by a sofa that was negligently or intentionally thrown from an upper-story hotel room during the celebration of an NCAA basketball championship. Reed sues all of the occupants of the 47 rooms from which the sofa might have been thrown.
Reed must prove which of the defendants was responsible for throwing the sofa; the burden shifting provided in this Subsection is unavailable to Reed in his suit because he has not shown that the occupants of each of the 47 rooms acted tortuously
109
Ken was hit by a taxi late one night after a substantial snowstorm. The skid marks left by the taxi revealed that after the driver slammed on the brakes and began skidding, the brakes failed. A nearby witness confirmed that the driver of the taxi appeared to be pumping the brakes furiously while the vehicle continued to roll. Because of the hour and lack of light, neither Ken nor the witness could identify the company name of the taxi. There are five different taxicab companies that operate in the community; each has a single cab. Examination of the five cabs reveals that each one has the same brake problem, caused by negligent maintenance, which permits the brakes to fail when a substantial amount of snow accumulates around them.
The burden of proof on which taxicab company’s vehicle ran into Ken remains with Ken because the other taxicab companies’ negligence was too far removed to have exposed Ken to a risk of harm.
110
Five taxicabs were driven on city streets crowded with automobiles and pedestrians. The five taxi drivers, operating independently, were negligently weaving in and out of traffic on the same street at the same time, narrowly averting collisions among themselves and with others. One of the taxicabs nicked Ken, a pedestrian, breaking his leg, while swerving to avert a collision with another vehicle. In the confusion, no witness could identify the taxi that hit Ken.
The burden of proof on which taxicab company’s vehicle hit Ken is shifted to the taxicab companies, if Ken joins all of them in his suit.
111
Phil, a passenger in an automobile passing through an intersection, was injured when first Elizabeth, and then, several seconds later, Joshua, driving in opposite directions on the intersecting road, went through a red light, and each collided with the car in which Phil was a passenger. After the collisions, Phil had a severely fractured hip, which required several reconstructive surgeries. In Phil’s suit against Joshua and Elizabeth, contradicted evidence shows that Joshua would have collided with Phil’s car, because of its low speed, in virtually identical fashion, whether or not Elizabeth had first hit Phil’s car. The evidence, however, is conflicting on whether Phil’s harm occurred due to the first collision alone or the second collision alone, and on whether its severity was a consequence of both collisions.
The jury should be instructed that, if it can find that one or the other of the collisions alone was the factual cause of Phil’s harm, the verdict should be against the defendant responsible for that collision. If the jury finds that the severity of the fracture was a result of both collisions, both defendants would be liable for the entirety of the harm, pursuant to Commend d, unless one was able to show a basis for causal apportionment. Finally, if the jury finds that Phil’s harm was caused either by Joshua or Elizabeth, but not by both, and cannot determine which, Subsection (b) shifts the burden of proof on causation to Joshua and Elizabeth. Unless one or both has introduced sufficient evidence to satisfy this burden, both are liable for Phil’s harm.
112
Richard, a hunter, finishes his day in the field and stops at a friend’s house while walking home. His friend’s nine-year-old daughter, Kim, greets Richard, who hands his loaded shotgun to her as he enters the house. Kim drops the shotgun, which lands on her toe, breaking it.
Although Richard is negligent for giving Kim his shotgun, the risk that makes Richard negligent is that Kim might shoot someone with the gun, not that she would drop it and hurt herself (the gun was neither especially heavy for unwieldy). Kim’s broken toe is outside the scope of Richard’s liability, even though Richard’s tortious conduct was a factual cause of Kim’s harm.
113
James Transport Co. provides a company owned automobile to Henry for personal and business use. While driving on vacation, Henry is speeding, loses control of the vehicle, and destroys a roadside billboard owned by Nannouncements, Inc. Nannouncements sues James Transport, claiming that it negligently entrusted an automobile to Henry, despite his history of several speeding and other moving violations, as well as a number of recent accidents, all of which were known by James
If the factfinder determines that James was negligent in providing the vehicle to Henry, Nannouncement’s harm is within the scope of James’s liability for its negligence, as a matter of law, because the risk that made James negligent was that Henry would drive poorly and cause an accident.
114
Parker’s automobile is run off a narrow, hilly road by Wilson, who is driving a semitrailer negligently. Because the accident scene involves an unusual configuration of the semitrailer and Parker’s vehicle, Deborah, who is driving by, stops her car at the side of the road to observe the scene. While parked at the side of the road, Deborah is hit by another vehicle driven carelessly into Deborah’s car.
Whether Deborah’s harm is within the scope of liability created by Wilson’s negligence in causing the accident with Parker is a question for the factfinder.
115
Arthur owns a convenience store located within an exclusive, gated community. Sandy, who lives in the community, tripped on a curbstone in the store’s parking lot one night after emerging from the store. Sandy suffered a skull fracture in the fall. Sandy sues Arthur for negligence in failing to have light to illuminate the parking lot, which is otherwise pitch dark
If the factfinder determines that Arthur’s failure to light the parking lot was negligent and a factual cause of Sandy’s harm, Sandy’s harm is within the scope of Arthur’s liability, because the risk of someone falling in the parking lot due to darkness is among the risks that made Arthur negligent for failing to provide lighting in the parking lot.
116
Sheldon, a thief, to gain entrance to the grounds, digs a tunnel underneath a fence, owned and maintained by the homeowner’s association, that surrounds Sandy’s community. Sheldon sees Sandy emerge from Arthur’s store. As Sandy walks through the parking lot, Sheldon is able to approach Sandy undetected because of the darkness. Sheldon trips Sandy from behind, and in the resulting fall, Sandy suffers a skull fracture. No prior assaults had occurred at Arthur’s store
Sheldon’s role in causing Sandy’s harm is relevant to whether that harm is outside the scope of Arthur’s liability for Arthur’s failing to light the parking lot. The factfinder may decide that the harm Sandy suffered arose from the risk of a criminal attack due to darkness and that this was to a foreseeable risk that made Arthur’s failure to provide lighting negligent because it occurred in a gated community without any previous criminal history.
117
Betsy, a passenger on the Xavier Railroad company, is attempting to board a train while carrying a bulky and apparently fragile package. Bob, an employee of Xavier, attempts to assist Betsy in boarding a crowded train and does so in a careless fashion that creates a likelihood Betsy will drop the package or otherwise damage it. Betsy does drop the package, which contains explosives, although there is nothing in the appearance of the package that would have so indicated. The package explodes upon impact, and the force of the explosion knocks over a platform scale 30 feet away. The scale falls on a waiting passenger, Heather, injuring her
Heather’s harm is not within the scope of Bob’s liability for his negligence as a matter of law; neither Bob nor Xavier is liable to Heather.
118
Gordie is driving 35 miles per hour on a city street with a speed limit of 25 miles per hour with Nathan as his passenger. Without warning, a tree crashes on Gordie’s car, injuring Nathan. Gordie’s speeding is a factual cause of Nathan’s harm because, if Gordie had not been traveling at 35 miles per hour, he would not have arrived at the location where the tree fell at the precise time that it fell.
Gordie is not liable to Nathan because Gordie’s speeding did not increase the risk of the type of harm suffered by Nathan. The speeding merely put Gordie at the place and time at which the tree fell. This is true even if the type of harm suffered by Nathan might be found to be one of the risks arising from speeding in an automobile.
119
While driving on a country road, Joe lost control of his car because Sander, driving a semitrailer in the opposite direction, negligently crossed over the center line of the road and did not leave enough room for Joe to stay on the road. Several cars stopped, creating a hazard at the site, particularly because a curve in the road obscured the site and approaching traffic had little advance warning that the road was blocked. Betty, Joe’s passenger, went down the road to warn approaching traffic of the hazardous condition ahead and the need to slow down. After a tow truck returned Joe’s car to the road, he and Betty drove off. A few miles from the scene, Betty decide to pick wildflowers by the side of the road, and Joe stopped his car just off the road. While picking flowers, Betty was struck by an automobile when the driver failed to keep an adequate lookout
Although Sander’s negligence is a factual cause of Betty’s injury, her injury is outside the scope of Sander’s liability because the risks created by Sander’s negligence did not increase the risk of Betty being struck when she decided to get out of her car and pick wildflowers at the side of the road.
120
Gino, who worked as a concessionaire at a sports stadium, negligently collided with Maddy, a fan attending the game, and knocked her to the ground. Maddy had an asymptomatic herniated disc that results in her suffering serious back injury and pain as a result of Gino’s negligence
All of Maddy’s harm is within Gino’s scope of liability for his negligence, as a matter of law.
121
Tom, a passenger in an automobile. Suffered modest physical injuries in an accident in which Katherine drove across the center line of the road and sideswiped the automobile in which Tom was riding. During treatment for his injuries, Tom’s doctors prescribed narcotic painkillers because of the severe pain from which Tom was suffering. Tom became addicted to the painkillers and remained addicted for approximately a year before he was able, after attending a detoxification program to overcome his addiction. Tom had a history of drug dependence, and Katherine seeks to introduce evidence of Tom’s drug dependence to ameliorate the damages to which he would otherwise be entitled to recover for his drug addiction
Tom’s predisposition to becoming addicted constitutes a preexisting condition within the meaning of this Section (§ 31 – Preexisting Conditions and Unforeseeable Harm). That condition is irrelevant to the damages to which he is entitled, unless Katherine can show that Tom’s predisposition would have resulted in his independently becoming addicted at some time during the year even if he had not had narcotic painkillers because of the accident.
122
Jennifer was driving her automobile, manufactured by Benessere Motor Co., on an Interstate highway when the voltage regulator in the car failed due to negligent installation. The failure caused the battery fluid to boil, which produced toxic fumes that reached the interior of the car. Jenifer suffered chronic vocal-cord dysfunction as a result. Jenifer was a popular vocal performer who earned several million dollars each year
All of Jennifer’s lost earnings due to her vocal-cord injury are within the scope of Benessere’s liability for its negligence, as a matter of law.
123
Gary was born with a genetic predisposition to heart disease. While leaving a tavern late one night, he was accosted by Jeffrey, who ordered Gary to hand over his wallet. When Gary resisted, Jeffrey hit Gary in the chest with this fist, which resulted in Gary suffering a heart attack
Gary’s harm resulting from the hearth attack is within the scope of Jeffery’s liability, as a matter of law.
124
Gino, who worked as a concessionaire at a sports stadium, negligently collided with Maddy, a fan attending the game, and knocked her to the ground. At the time Gino collided with Maddy, she had a mild level of chronic back pain. After the accident with Gino, Maddy suffered severe back pain
Gino is subject to liability for the enhanced injury to Maddy; he is not liable for the pain from which Maddy was suffering at the time of the accident.
125
Middlesex County maintained a nature park that included paths along its canyons and gorges. Denis, employed as a park ranger by Middlesex County, became aware that a stream had dangerously eroded the support for a path, but neglected to close the path or to post warnings. A group of campers pitched camp after dark near the path. Two of the campers, Anne and Craig, left the group to go on a walk. Anne and Craig fell into a gorge when the weakness in the support for the path gave way. The other members of the camping party heard what sounded like a falling object and called out to Anne and Craig, but received no response. Steve and Larry proceeded with a flashlight to investigate and discovered that Craig and Anne had fallen into the bottom of the gorge and appeared to be unconscious. In his attempt to descend to the bottom of the gorge, Larry lost his footing, fell, and suffered harm
Middlesex County and Denis are subject to liability to Larry for the harm he suffered in attempting to rescue Anne and Craig.
126
Laurie was a guest at the Rogers Motor Inn, which was located in a neighborhood where significant violent crime existed. After Laurie returned to her room, David was able to gain entrance to Laurie’s room because the lock on the door was of the simple residential type that could be easily defeated with a credit card. After gaining entrance to Laurie’s room, David sexually assaulted her. Laurie sues Rogers claiming negligence in providing inadequate locks for guest rooms
David’s criminal acts are not a superseding cause of Laurie’s harm, as a matter of law, and, consequently, Laurie’s harm is within the scope of Rogers’s liability for its negligence.
127
Carol undertakes a substantial excavation in a crowded public sidewalk and leaves it without putting concrete barriers around the excavation, creating a risk that a pedestrian on the sidewalk will fall into the excavation. Barbara, passing Gary on the sidewalk, negligently bumps into him, knocking Gary into the excavation.
Carol is subject to liability to Gary, as Gary’s harm is within the scope of Carol’s liability for her negligence.
128
Carol undertakes a substantial excavation in a crowded public sidewalk and leaves it without putting concrete barriers around the excavation, creating a risk that a pedestrian on the sidewalk will fall into the excavation. Barbara deliberately shoves Gary into the excavation.
Whether Gary’s harm is within the scope of Carol’s liability for her negligence is an issue for the factfinder. The factfinder will have to determine whether the appropriate characterization of the harm to Gary is falling into an unguarded excavation site or being deliberately pushed into an unguarded excavation site and, if the latter, whether it is among the risks that made Carol negligent.
129
David, a private security guard, personally purchased a walkie-talkie designed for children as a toy and manufactured by the Hohe Toy Co. David took one of the receivers to work and left the other with his brother, Gary. One night, while inspecting an empty warehouse whose door was left open, David was accosted by several thieves. David attempted to contact Gary to call for help, but a defective switch in the walkie-talkie prevented David from contacting Gary. The thieves attacked and injured David, who sues Hohe for the harm he suffered in the attack
Despite the defect in Hohe’s walkie-talkie, Hohe is not liable for David’s harm as a matter of law, because the attack by the thieves produced harm that was not among the risks that one might consider in determining that, at the time of manufacture, the walkie-talkie was defective.
130
David, a private security guard, personally purchased a walkie-talkie manufactured by Stand Tall, Inc., a company that specializes in security equipment for law enforcement personnel, and the walkie-talkie was designed and marketed for use by law enforcement officials. David took one of the receivers to work and left the other with his brother, Gary. One night, while inspecting an empty warehouse whose door was left open, David was accosted by several thieves. David attempted to contact Gary to call for help, but a defective switch in the walkie-talkie prevented David from contacting Gary
Stand Tall’s liability for selling a defective walkie-talkie includes the harm suffered by David in the attack by the thieves, as a matter of law.
131
Harriet, a diabetic, required special orthopedic shoes. Walker, a podiatrist who fitted Harriet for her shoes, did so negligently. The improperly fitted shoes caused blistering on Harriet’s feet. Harriet saw Yael, her physician, about the blistering, but Yael decide nothing need be done. Because of her diabetic condition, Harriet developed gangrene and had to have her leg amputated. Harriet sued Walter for negligence, seeking to recover damages for her amputation. Walter contends that if Yael had not been negligent in failing to take prompt action to treat Harriet’s blistering, she would not have lost her leg.
Whether Yael’s treatment was negligent or not, Harriet’s amputation is within the scope of Walker's liability for his negligence in fitting Harriet for special shoes
132
Susan, a pedestrian on a busy promenade, negligently failed to keep a lookout. She ran into and knocked down Amy, another pedestrian. Amy suffered several bruises and cuts in the fall and was rendered unconscious. None of Amy’s injuries required anything more than ordinary first aid. Harvey, a passerby who was not a physician and who had no health care training, stopped to help Amy. Harvey decided that to reduce the risk of infection, he should enlarge one of Amy’s cuts with his penknife so as to enhance the flow of blood. When he did so, he cut off the tip of Amy’s finger.
Susan is not subject to liability for the enhance harm caused by Harvey’s efforts to aid Amy.
133
Harriet, a diabetic, required special orthopedic shoes. Walker, a podiatrist who fitted Harriet for her shoes, did so negligently. The improperly fitted shoes caused blistering on Harriet’s feet. Harriet saw Yael, her physician, about the blistering, but Yael decide nothing need be done. Because of her diabetic condition, Harriet developed gangrene and had to have her leg amputated. Harriet sues both Walter and Yael.
The jury finds Walter liable for Harriet’s blistering and Walter and Yael liable or Harriet’s amputation. The jury awards $300,000 in damages to Harriet for her amputation and finds that Walter is 10 percent and Yael is 90 percent comparatively responsible for the amputation. In a jurisdiction in which several liability is the applicable rule, the judgment against Walter would be $30,000 for the amputation and $270,000 against Yael. Walter would also be liable for all the damages awarded for Harriet’s blistering.
134
Jerry worked for 40 years as an asbestos insulation installer. During that time, he was exposed to asbestos fibers from insulation manufactured by a dozen manufacturers. In the case of most of the manufacturers, Jerry was exposed to their products on a daily basis for years. Jerry’s 40 years of substantial exposure to asbestos was considerably more than required to cause Jerry’s mesothelioma. Jerry’s exposure to the product of one manufacturer, Centurion Company, however, occurred at a commercial construction site where other installers were using a Centurion product. Centurion’s product was installed in a single day, on a different floor of the building from where Jerry worked that day. Competent and reliable expert testimony was introduced that explained that Jerry would have inhaled some fibers from Centurion’s product during that day, but the amount would he minuscule compared to Jerry’s exposure to the other defendants’ asbestos products.
Centurion is not subject to liability to Jerry, despite any tortious conduct by it in manufacturing and selling its asbestos product.
135
After a negligent and erroneous report by Liz Labs to the Tarheel Medical Society that a physician, Dr. Kate, recently used illegal drugs, Dr. Kate becomes so distraught at the false-positive report that she commits suicide
A tort action by Dr. Kate’s administrator against Liz Labs is governed by §§ 5, 6, and 20-23; Dr. Kate’s administrator need not satisfy the requirements of §§ 46-48 to recover for the harm.
136
A tortuously strikes B heavily on the back, causing B severe but momentary pain. The blow causes a bone to slip back onto place
He is entitled to compensatory damages, undiminished by the fact that the blow was beneficial, except as it prevents future suffering.
137
A is afflicted with deafness in one ear. She informs her physician, B, that she does not desire an operation upon it. Nevertheless, while A is under an anesthetic, B operates upon the ear, thereby preventing subsequent harm but causing pain for a considerable period following the operation
A is entitled to compensatory damages for the suffering, undiminished by reason of the physical benefit conferred upon her by B except as it prevents future suffering.
138
A negligently operates his car so that it skids into B, a pedestrian. B experiences only a slight impact and is under the doctor’s care for only two days. He brings suit against A, and recovers a verdict of $5000 for the slight harm then apparent. The verdict is set aside, on appeal, on the ground that the award is excessive. At the second trial there is evidence that the impact has caused a deterioration of the bone that began after the first trial
B is entitled to recover as damages such amount of loss of earning capacity and past and future suffering that the facts now justify and a verdict for $12,000 may not be excessive.
139
A intentionally strikes B, causing a slight wound on B’s hand. B unreasonably delays in taking antiseptic measure and the wound becomes infected, as a result of which B is unable to use his hand for six weeks. B sues A, claiming damages, including loss of six weeks earnings. A files an answer stating that B was neglectful in not having the wound attended to.
The answer is not a defense to B’s action, but B is entitled to damages only for the pain, loss of earnings and other elements of damages that B would have suffered if he had used reasonable care.
140
A, a trespasser upon B’s pasture, negligently leaves open a gate in the fence. B sees that the gate is open but carelessly fails to close it, as a result of which B’s cattle escape and are lost
B is not entitled to damages for the loss of his cattle.
141
A tortuously destroys B’s fence. Although B knows the facts and is able to build a temporary barrier at an expense of $20, he fails to do so and his cattle worth $500 stray from the field and are lost.
B is entitled to recover only $20 in addition to the value of the destroyed fence.
142
A, a surgeon, having been directed to examine but not to operate upon B’s ear, performs an operation that is painful but that averts future pain and suffering
The diminution in future pain is a factor to be considered in determining the amount of damages for the pain caused by the operation.
143
A, a surgeon, without B’s consent, operates upon B’s eye, causing B to lose the sight in that eye.
In an action of battery, it may be shown in mitigation of damages for the loss of the eye that had A not operated, the sight of the other eye would have been lost.
144
A tortuously digs a channel through B’s land, thereby making it impossible to grow crops upon the land through which the channel runs
It may be shown in mitigation that the digging of the channel drains the remainder of B’s land, making it more valuable.
