Palsgraf v.

Long Island Railroad

FACTS: The plaintiff was standing on the defendant’s railroad. When a train stopped two men
ran to catch the train, while one made it the other barely did. He appeared to be unsteady, when
one guard on the train reached out to help and another on the platform attempted to push him in.
It was at this time that the package the man was carrying dislodges, fell on the rails and
exploded. The shock of the explosion threw the some scales at the other end of the platform
many feet away but nevertheless the scales struck the plaintiff, causing injuries. The package is
of small size, fifteen inches long, and was covered with newspaper. There was nothing in its
appearance to give notice of contents but in fact the package had contained fireworks and had
exploded when it struck the rails.
The trial and appellate court affirmed judgment for the plaintiff.

ISSUE: Whether the defendant owed duty to the plaintiff when the package was dropped
inadvertently.

RULE: (Concurring) if no hazard was apparent to the eye of ordinary vigilance, an act innocent
and harmless, at least to outward seeming, with reference to her, did not take to itself the quality
of tort because it happened to be wrong. The risk reasonably to be perceived define the duty to
be obeyed, and risks imports relation; it is risk to another or to others within the range of
apprehension. But, had the defendant been aware of the particular method in which the accident
would have occurred, if the possibility of an accident was clear to the ordinarily prudent eye,
then there exists a duty imposed upon that defendant.

Dissenting: Due care is a duty imposed on each one of us to protect society from unnecessary
danger, not to protect A, B, or C alone. Negligence involves a relationship between man and his
fellows, but not merely a relationship between man and those whom he might reasonably expert
his act would injure; rather, a relationship between him and those whom he does in fact injure. If
his act has a tendency to harm someone, it harms him mile away as surely as it does those on the
scene. When injuries resulted from our unlawful act, we are liable for the consequences. It does
matter that that they are unusual, unexpected, unforeseen, and unforeseeable. But the damages
has to be connected with the negligence that the latter may have said to be the cause in fact of the
former.
APPLICATION: (Concurring) here, the defendant was attempting to help a man who during
that act dropped a package causing the firecracker within to explode and injures the plaintiff
standing at the end of the platform. At no time during this contact is there any reasons for the
defendant to exercise any extra care in handling the package. And, without any perception that
one's actions could harm someone, there could be no duty towards that person, and therefore no
negligence for which to impose liability. And even if the guard knew there were firecrackers in
the package, there is only a possibility that it would affect her.

Dissenting: Here, the defendant was negligent when he dropped the package, causing it to
explode and injured the plaintiff. The judge saw the case as a matter of cause in fact, because the
plaintiff’s injury could be immediately traced to the wrong committed by the guard, and the fact
of the wrong and the fact of the injury should be enough to find negligence. We owe a duty to
ourselves and others to refrain from engaging in acts to would likely injure ourselves and other.
But if we do choose to act negligently, then not only should will be held liable to those with
whom we injured but also to those that were or not within the vicinity of the accident because
our actions put them also in danger.

CONCLUSION: Therefore, if there is no tort to redress, there is no occasion to consider what

damage might be recovered if there were a finding of a tort. Judgment should be reversed and
complaint dismissed.

Dissenting: Therefore, the act upon which the defendant’s liability rests is knocking the
apparently harmless package on the platform. The act is negligent. For its proximate
consequences the defendant is liable even if its content were broken, to owner; if it fell upon and
crushed a passenger’s foot, then to him; if it exploded and injured one in the immediate vicinity,
to him. Decision should be affirmed with costs.
Hegyes v. Unjian Enterprises Inc,

FACTS: The plaintiff’s mother was injured in a car accident caused by the defendant causing
her to be fitted with a lumbo-peritoneal shunt as a result of the accident. Three years later,
plaintiff’s mother was pregnant and during that pregnancy, the fetus compresses the lumbo-
peritoneal shunt and to prevent injury to the mother, the plaintiff was delivered 51 days
premature by Cesarean section.
The defendant served its demurrer challenging the plaintiff complaint on the absence of
any legal duty of care. The trail court sustained the demurrer without leave to amend on the
ground that recognition of such a cause of action would be an unwarranted extension of a duty of
care. Plaintiff appealed.

ISSUE: Whether a negligent motorist owed a legal duty of care to the subsequent conceived
child of a woman who was injured in an automotive accident.

RULE: Every case is governed by the rule of general application that persons are required to use
ordinary care for the protection of those whom harm can be reasonable foreseen. The court’s task
then in determining duty is to evaluate whether the category of negligent conduct at issue is
sufficiently to result in the kind of harm experienced such that liability may be appropriately
imposed upon the negligent party.

APPLICATION: Here, the defendant conduct was the cause in fact of the injuries, but there has
to be a foreseeable likeliness that the harm suffered was from the injury sustained during the
accident. The foreseeability was lacking in this case, because there is no way for the defendant’
conduct to have translated to the injuries sustained by the plaintiff. Not only is the plaintiff not
conceived but the injuries sustained by the plaintiff were three years later. As the court puts it, “a
motorist cannot reasonable foresee that his negligent conduct might injure a child subsequently
conceived by a woman several years after a car accident.

CONCLUSION: The concept of legal duty necessarily includes and expresses considerations of
social policy and the trial courts’ determinations with respect to those considerations have merit
and rationality, and so we affirmed.

Dykema v. Gus Macker Enterprises, Inc

FACTS: The plaintiff was injured at a basketball tournament organized by the defendant. The
tournament was held outdoors, spectators were charged no admission fee, free to move about to
watch the games. The plaintiff attended the game as a nonspectator and during the tournament a
 thunderstorm struck the area, winds was blowing in excess of 40 miles an hour. While the
plaintiff was running for shelter, he was struck by a falling tree limb that paralyzed him.
Plaintiff appeal as a right from the trial court’s order to granting the defendants’ motion
for summary disposition arguing because of the special relationship that existed between him and
the defendant, defendant was under duty to warn plaintiff of the approaching thunderstorm.

ISSUE: Whether there existed a special relationship between the plaintiff and the defendant that
warrant a duty.

RULE: There is no duty to aid or protect another, but there is an exception, a duty may be found
if there is special relationship between the defendant and the plaintiff. Such special relationships
include common carrier-passenger, inn-keeper guest, employer-employee, landlord-tenant, and
invitor-invitee. In a special relationship, one person entrusts himself to the control and protection
of another, with a consequent loss of control to protect himself. The duty to protect is imposed
upon the person in control because he is in the best position to provide a place of safety. Thus the
determination whether a duty-imposing special relationship exists in a particular case involves
the determination whether the plaintiff entrusted himself to the control and protection of the
defendant, with a consequent loss of control to protect himself. Ways to establish a duty:
1. Balance of social interest
2. Severity of risk
3. Burden on the defendant
4. Relationship b/w the parties
5. Foreseeability of the harm
6. Victim’s ability to protect himself
7. Cost of protection
8. Business relationship

APPLICATION: Here, the plaintiff was a nonpaying spectator, who had no special relationship
with the defendant. There weren’t engaged in a business invitee-invitor relationship or any
business dealings, he did not entrust himself to the control and protection of the defendant nor
lost the ability to protect himself, he was free to move about because movement not restricted by
the defendant, and he was capable of detecting the change in the weather w/o warning from the
defendant. Relationship did not give rise to any legal obligation

CONCLUSION: Therefore, no special relationship existed between the defendant and the
plaintiff, Δ was under no duty to warn the Π of the approaching thunderstorm.
Graff v. Beard

FACTS: The defendant hosted a party in which an invitee became intoxicated and drove his
vehicle in an intoxicated condition. The invitee en-route from the party collided plaintiff’s
motorcycle.
The plaintiff sued the invitee and the defendant for his injuries and the trial court dismissed
the plaintiff’s claim against the host for failure to sate the court of action. An en banc divided
Court of Appeals reversed the trial courts judgment and remanded the case, holding for the first
time in Texas jurispendence, a social hosts may be liable to third parties for acts of their
intoxicated adult guests. Under the Court of appeals standard, a social hosts violates a legal duty to
third parties when the hosts makes an alcoholic beverage available to all adult guests who the host
knows is intoxicated and will be driving

ISSUE: Whether imposing a common law duty on a social host who makes alcohol available to an
intoxicated adult who the host knows will be driving is justifiable considering the public policy
considerations.

RULE: The common law has long recognized, the imbiber maintains the ultimate power and thus
the obligation to control his own behavior: to decide to drink or not to drink, to drive or not to
drive. Forseeability and likelihood of injury weight against the social utility of the actor’s conduct
the magnitude of the burden of guarding against the injury, and the consequences of placing the
burden on the defendant.

APPLICATION: Here, the court looked at the underlying assumption of the court of appeals
holding. First, social host can reasonably know of the guest’s alcohol consumption and possible
intoxication is inconclusive because (1) the host can reasonable know how much alcohol its guests
have consumed not to talk about how much they consumed prior to the party (2) it’s unlikely that
the host can accurately depending on the number of guests discover who is intoxicated and who is
not (3) that while some are easily spotted, others may not be. Second, should the guests become
intoxicated, the host must prevent the guest from driving. The CP was under the assumption that
the guest will willingly act responsible by listening to the host, but practical reality says otherwise.
The responsibility is on the guests to watch their own alcohol consumption not the host and
shifting the burden to them will create an unrealistic approach more than likely would be
impossible to enforce.

CONCLUSION: Therefore, the common law’s focus should remain on the drinker as the person
primary responsible for his own behavior and best able to avoid the foreseeable risks of that
behavior.

Eisel v. Board of Education of Montgomery County

FACTS: The plaintiff’s decedent and another student consummate an apparent murder-suicide
pact. Prior to the suicide, the decedent informs her friends she intended to kill herself, who relayed
the information the school counselor. The decedent was questioned by the school’s counselor but
denied making them. Neither the school’s counselor notified the plaintiff of decedent intention.
Information later suggested that the other party to the suicide pact shot herself before shooting
herself.
 The plaintiff brought a wrongful death cause of action against the school’s counselors
alleging they have a duty to intervene to attempt to prevent a student’s threatened suicide. The
circuit court granted summary judgment for the defendants, premised on the absence of any duty.

ISSUE: Whether there is a duty to attempt to prevent an adolescent’s suicide, by reasonable

means, including, in this case, warning the parent.

RULE: A tort duty is an expression of the sum total of those considerations of policy which lead
the law to say that the plaintiff is entitled to protection. Duty is recognized by: Balance of social
interest, Severity of risk, Burden on the defendant, Relationship b/w the parties, Foreseeability of
the harm, Victim’s ability to protect himself, Cost of protection, and Business relationship.
Foreseeability is the most important variable in the duty calculus and without it there can be no
duty to prevent suicide. Youth Suicide Prevention School Programs Act holds counselors to a
common law duty of reasonable care to prevent suicides when there is evidence of a suicidal
intent.

APPLICATION: Here, The suicide was foreseeable, harm did not cease to be foreseeable just b/c
plaintiff’s decedent denied intent. Pg 238-239

CONCLUSION: Therefore, school’s counselors have a duty to use reasonable means to attempt
to prevent a suicide when they are on notice of a child or adolescent student’s suicidal intent.

In Re An Arbitration Between Polemis & Furness. Withy & Co, Ltd

FACTS: The defendant was unloading cargo from the plaintiff’ ship using a sling, which held
the cases, and winch, which raised and lowered the slings. There had been leakage from benzene
or petrol into the cargo hold. During the course of the lifting, the rope or the sling came in
contact with boards placed across the end hatch causing it to fall into the lower hold and
instantaneously ignited the hold and causing total destruction of the ship
The plaintiff contended the defendant is liable, since fire is the type of loss cover under
the terms of the charter. The defendant contended that the fire was not the type of loss cover;
since there was no negligent.
ISSUE: Whether this kind of damage was reasonably foreseeable when the defendant knocked
the board into the hold causing a spark that set the fire and destroyed the ship.

RULE: The fact that the damage it is fact causes is not the exact kind damage one would expect
is immaterial, so long as the damage is in fact directly traceable to the negligent act, and not due
to the operation of independent causes having no connection with the negligent act, except that
they could not avoid its result.

APPLICATION: Here, there was negligent because the sling knocked over the board that spark
the fire and destroyed the ship. The negligent act itself is capable of causing harm to the ship,
cargo and the crewmen. Whether the harm is reasonably foreseen or not is irrelevant. What
matter is that the act causes the fire and the fire destroyed the ship. There is a causal connection
between the act and the fire.

CONCLUSION: Therefore, the fact that they did directly produce an unexpected result does not
relieve them of negligent from the damage which the negligent act directly caused.

Lureano v. Louzoun

FACTS: The plaintiff, a tenant in the defendant building was boiling water because the building
was without hot water. In the process of dumping the hot water into another pot, she bang the
two pots together causing the hot water to s[ill and onto her knee and feet. The plaintiff filed suit
claiming it is the defendant’s negligence in failing to maintain the boiler properly thereby
providing hot water to the building caused her injuries.
The defendant moved for a summary judgment on the ground that their conduct was, not
as a matter of law, the proximate cause of the plaintiff’s injuries. The trial court granted the
motion holding that there was no connection of proximate cause between the lack of heat and the
accident.
ISSUE: Whether the defendant lack of providing heat and hot water to the plaintiff and in the
attempt to substitute for the shortage spill hot water onto herself causing the injuries.

RULE: There has to be a direct connection between the defendant’s conduct and the plaintiff’s
harm and such harm has to be reasonably foreseen to some degree to justify liability.

APPLICATION: Here, there is no connection between the defendant’s conduct and the
plaintiff’s injuries because there is an intervening act of banging the pots together that caused the
plaintiff to spill the hot water on herself. Failure to provide hot water does not constitute
negligent on part of the defendant because such injuries cannot be foreseen to have resulted from
the defendant’s conduct.

CONCLUSION: Therefore, plaintiff’s injuries would not have resulted from failure to supply
hot water alone, and cannot be classified as injuries normally to have been expected to ensue
from the landlord’s conduct.

Tieder v. Little

FACTS: While two students were attempting to clutch start a car, the car started suddenly
causing the student behind the wheel to loss control of the car. The car left the driveway, lurched
over three inch curb onto a grassy area, and then travelled some thirty three feet across the front
lawn, collided with an elevated walkway, jumped the walkway, and struck the decedent and then
pinned her against a high brick wall. Because the wall was built negligently without adequate
support as specified by the applicable building code, the entire wall came off intact from its
foundation and crushed the decedent to death.
The defendant moved to dismiss on the ground that his negligence was not, as a matter of
law, the proximate cause of the decedent’s death because the accident was so bizarre as to be
entirely foreseen. The trial court granted the motion. Plaintiff appealed..
ISSUE: Whether the decedent would have died but for the defendant’s negligent design and
construction of the brick wall falling intact upon her.

RULE: It is not necessary that the defendant foresee the exact sequence of events which led to
the accident sued upon; it is only necessary that the general type of accident which has occurred
was within the scope of danger created by the defendant’s negligence, or stated differently, it
must be shown that the said general type accident was a reasonably foreseeable consequence of
the defendant’s negligence.

APPLICATION: Here, the accident that occurred was the general types of accident within the
scope of danger created by the defendant’s negligence because the wall was designed and
constructed inadequately and thus violate the applicable building codes. The foreseeability of
the accident has to do with the fact that the wall inadequate design and construction can be
reasonable foreseen to collapse on someone regardless of whether they were struck by car or not.
As stated in the case, the wall uprooted from its foundation intact and fell upon the decedent.
Anyone could have come in-contact or add substantial force to the wall considering its location
is on a school compound and cause it to tip over, injuring someone. The type of accident is
reasonable could have been foreseen regardless of how it happen.

CONCLUSION: Therefore, the death of the decedent was entirely foreseeable in this case
regardless of what sequence led to the collapse of the wall may have been unforeseeable. The
dismissal and final summary judgment both reversed and the cause is remanded to the trial court.

McCain v. Florida Power Corporation

FACTS: The plaintiff was injured when the blade of a mechanical trencher he was operating
struck an electrical cable. An employee of the defendant had been out earlier marking the safe
areas where it would be safe to use the trencher and there was evidence to suggest the plaintiff
was within the mark area.
The jury found for the plaintiff and defendant appealed. The Second District court
reversed and remanded for entry of directed verdict for the defendant, concluding the injury was
foreseeable.

ISSUE: Whether there is foreseeability of risks in the marking of the area that imposed duty on
the defendant to take reasonable actions to prevent the type of injury that occurred.
RULE: A person who creates a risk is required to exercise prudent foresight whenever others
may be injured as a result. This requirement of reasonable, general foresight is the core of duty
element. For the same reasons, duty exists as a matter of law and is not a factual question for the
jury to decide: Duty is the standard of care given to the jury for gauging the defendant’s factual
conduct. And, foreseeability as it relates to proximate cause in a legal sense is that of if a prudent
human foresight would lead one to expect that similar harm is likely to be substantially caused
by the specific act or omission in question (in this case, the mistaken label of the safe areas).

APPLICATION: Here, there is a duty because the defendant’s conduct creates a foreseeable
zone of risk that poses a threat to others. The marking of the safe area by the defendant shows
that they understand the foreseeable actions that can more than likely results with the
disregarding that duty as in this case electrocution. The extent or sequence the injury would have
occurred is immaterial. The fact is the negligent marking of the safe area puts the plaintiff in
harm. A reasonable jury could conclude the defendant breach its duty and subsequently that
breach of duty contributed to the injury suffered by the plaintiff.

CONCLUSION: Therefore, there is sufficient evidence in this record that would justify a
reasonable juror in concluding the plaintiff’s injury was proximately caused by the breach of
duty imposed by the law.

Schafer v. Hoffman

FACTS: The defendant while under the influence of drugs and alcohol struck the plaintiff, a
pedestrian with his vehicle. The plaintiff suffered severe injuries, including a compressed
fracture in a spinal vertebra, a concussion with the intracranial bleeding, a fractured femur in her
leg, and a torn cartilage in her left knee.
The plaintiff filed an action suit and the jury found favor for the Π in the amount of
$715,000. The defendant contended claiming the plaintiff had pre-existing injuries for which he
was not liable because they were not caused by his conduct. Evidence introduced by the
defendant reveal the plaintiff had (1) knee pain and lower back problems, (2) the vertebra
fracture might have occurred prior to the accident, (3) had some degeneration as a result of aging
process, (4) might be predispose to causalgia and (5) the plaintiff’s knee surgery was delayed
longer than an average person’s b/c of her blood clotting condition. The defendant appealed to
the Court of Appeals and they affirmed the trial court decision. The defendant appealed.
ISSUE: Whether the defendant should be held liable for the entirety of the plaintiff’s harm when
the plaintiff had pre-existing injuries for which his conduct did not caused making her more
predisposed or more susceptible to ill effects than a normal person.

RULE: A negligent actor must bear the risk that his liability will be increased by reason of the
actual physical condition of the other toward whom his act is negligent (The negligent defendant
is liable for the resulting harm even though the harm is increased by the particular plaintiff’s
condition at the time of the negligent conduct)

APPLICATION: Here, the defendant is held liable for the plaintiff’s entire injuries b/c the thin
skull doctrine requires the defendant to take the plaintiff as he find him or her. The foreseeable of
the injuries in this case does not matter. What matter is that the plaintiff’s is predisposed or more
susceptible to ill effects than a normal person and her injuries would not have being aggregate
but for the defendant’s negligent. The defendant drove while under the influence of drugs and
alcohol therefore hid negligent conduct was the proximate cause of the plaintiff’s injuries.

CONCLUSION: Therefore, the defendant’s contention is without merit and can no seek to
reduce the amount of damages owed to the plaintiff by trying to spotlight the frailties of the
plaintiff prior to the his negligent conduct.
Petition of Kinsman Transit Co.

FACTS: A barge torn from its moorings as a dock operated by continental. Floated downstream
and crashed into a moored ship, the Tewksbury. The vessels, one 425 ft and the other 525 ft long
clashed into the bridge with a swift ice-ridden stream, with a channel only 177 ft dammed up the
river, and properties were damage far upstream. The crews of the Kinsman, the continental
employees, and the city employees were all found to be negligent. Claims were made for the
property damages. An admiralty decree adjudicated liability and several parties appealed

ISSUE: Whether the unforeseeability of the damage when the barge loosen from its mooring
dock and clashed with another ship causing both ships to float downstream and collided with the
bridge, destroying it and causing the stream to dammed and subsequently flood property
upstream exonerate the defendants from liability.

RULE: We see no reason why an actor engaging in conduct which entails a large risks of small
damage and a small risk of other and greater damage, of the same general sort, from the same
forces, and to the same class of persons, should be relieved of responsibility for the latter simply
because the chance of its occurrence, if viewed alone, may not have been large enough to
required the exercise of care.

APPLICATION: Here, the defendant should not be exonerated from liability b/c they failed to
exercise the right amount of care required in such situation to protect others. Their negligent
conduct resulted in the damage that subsequently caused more serious damages to other. While
the foreseeability of the damages in particular is beyond that which can be reasonable foreseen
but that does not excuse the defendant’s failure to exercise greater care than was taken in this
situation.

CONCLUSION: Therefore, the damages resulted from the same physical forces whose
existence required the exercised of greater care than was displayed and were of the same general
sort that was expected, unforeseeability of the exact developments and of the extent of the loss
will not limit liability.
American Truck Leasing, Inc v. Thorne Equipment Company

FACTS: A fire started due to accumulated trash and debris, spread across the narrow street and
damage other property utilized for business. The fire burned for eight hours before it was
extinguished. The defendant was later hired to demolish a six-story elevator shaft on the business
premises after been damage by the fire. During the demolition, a portion of the elevator shaft fell
upon and damaged building and vehicles owned by the plaintiff.
The plaintiff brought suit against the originator of the fire, City of Philadelphia, owner of
the destroyed property and the defendant. All claims remained undetermined in the trial court
except the claim against the originator of the fire. He alleged the originator of the fire had been
negligent by allowing combustible trash and debris to accumulate on her property and had failed
to exercise care to prevent the occurrence of fire and that negligence is a substantial factor in
bringing the harm.

ISSUE: Whether the originator of the fire negligent when she allowed combustible and debris
trash to accumulate on her property causing the fire and subsequently spreading across the street
destroying the property that caused the plaintiff’s harm was a substantial factor in producing the
harm suffered by the plaintiff.

RULE: An actor’s conduct is a substantial factor in bringing harm to another (a) number of other
factors which contribute in producing the harm and the extent of the effect which they have in
producing it; (b) whether actor’s conduct has created a force or series of forces which are in
continuous and active operation up to the time of the harm; or has created a situation harmless
unless acted upon by other forces for which the actor is not responsible;(c) lapse of time

APPLICATION: Here, the originator of the fire negligent conduct of allowing combustible
trash and debris to accumulate on her property and starting the fire is not a substantial factor in
bringing about the harm to the plaintiff b/c the fire she started had been extinguished. Although
the fire destroyed the building been demolished, the causal connection has been severed by the
demolition contractor who in the process of destroying the elevator damage by the fire caused a
portion of it to fall on the plaintiff’s building and car. The fire she started had long been
extinguished before demolition began on the damage property.

CONCLUSION: Therefore, the plaintiff’s harm was caused by the demolition of the fire
damaged grain elevator after the fire had been extinguished. Therefore, as a matter of law the
originator of the fire was not legally responsible for the plaintiff’s harm.

Chelcher v. Spider Staging Corp

FACTS: The plaintiff worked at sandblasting the top hemisphere of a spherical propane tank
belonging to HOVIC, while employed by IMC. Plaintiff worked from a movable, cage-like
scaffold or spider allegedly manufactured by defendant. On the particular day in question, the
cage was mis-rigged by HOVIC/IMC to drag along side of the tank rather than hanging from its
suspension wires. The mis-riged caused the floor platform of the spider to tilt horizontally as it
progresses up the side of the tank. The plaintiff nonetheless boarded the spider cage and
sandblasted from it for five hours in which the plaintiff sustained permanent disabling damage to
his lower back.
The plaintiffs’ motion for a partial summary judgment and the defendant’s motion for a
summary judgment. The court denies the plaintiffs’ motion and grants the defendant’s motion.
Plaintiff appealed claiming cause of action against Spider for negligent failure to warn.

ISSUE: Whether the alleged product defect, a negligent failure to affix an instruction manual to
the scaffold, was a cause in fact of plaintiff’s injuries and whether the alleged product defect,
defendant’s failure to affix an instruction manual to the Spider cage, was the proximate cause or
legal cause of the plaintiff’s injuries.

RULE: An actor’s conduct is a substantial factor in bringing harm to another (a) number of other
factors which contribute in producing the harm and the extent of the effect which they have in
producing it; (b) whether actor’s conduct has created a force or series of forces which are in
continuous and active operation up to the time of the harm; or has created a situation harmless
unless acted upon by other forces for which the actor is not responsible;(c) lapse of time

APPLICATION: Here, the failure to affix an instruction manual to the scaffold won’t have
made a different b/c the plaintiff had worked in similar scaffolds for three years. The assertion
that a pictogram of a man falling, or that he would have acted differently on the day of the injury
is highly speculative b/c the plaintiff saw the spider cage was mis-rigged and didn’t complain to
his job-site safety inspector before proceeding to work in it for five hours. No reasonable juror
could conclude from the evidence that the manual would have made a different on this particular
day. Second, the number of other factors in bringing the harm and the effect they have on
producing the harm is needed to determine the extent of fault. In this case, the plaintiff’s
employer had mis-rigged the scaffold, failed to provide on job-onsite supervision and proceeded
to ask the plaintiff to work in the unsafe scaffold were all substantial factors in causing the
plaintiff’s injury.

CONCLUSION: Therefore, the mis-rigging, the request for the plaintiff to worked on the
scaffold w/o safety inspector on site, and the plaintiff unobjectionable compliance to work on the
spider cage all had a predominant impact and so diluted the defendant’s contribution, if any, as to
prevent it from being a substantial factor in producing the harm. And, no reasonable juror can
conclude that the defendant’s failure to warn was the proximate cause of the plaintiff’s harm.
Taylor v. Jackson

FACTS: An accident occurred when:

• Knopp coming to a stop during the sudden thunderstorm
 • Defendant jackknifing his tractor-trailer
• The initial back-up of traffic behind the first accident;
• The downed of the PPL power line;
• The efforts of the Pennsylvania State Police {PSP};
• Watley’s jackknifing his traitor-trailer in the second accident;
• The continued traffic back-up behind the second accident for approximate 2 hours
• Questore collided with the Franz’s vehicle which the plaintiff was the passenger
propelling it eighty-seven feet;
• Questore also struck the rear of Lindow’s vehicle

ISSUE: Whether the defendant’s jackknifing his traitor-trailer to prevent colliding with knopp
was a substantial factor in the Questore’s truck crashing into the rear of the plaintiff’s vehicles
after 2 hours had passed from the defendant’s initial jackknifing his tractor-trailer.

RULE: An actor’s conduct is a substantial factor in bringing harm to another (a) number of other
factors which contribute in producing the harm and the extent of the effect which they have in
producing it; (b) whether actor’s conduct has created a force or series of forces which are in
continuous and active operation up to the time of the harm; or has created a situation harmless
unless acted upon by other forces for which the actor is not responsible;(c) lapse of time; BUT
(d) where it is evident that the influence of the actor’s negligence is still a substantial factor,
mere lapse of time, no matter how long it is, is not sufficient to prevent it from being the legal
cause of the harm

APPLICATION: Here, the defendant’s conduct created series of forces which were continuous
and active up to the time of the plaintiff’s harm b/c defendant’s initial accident cause the back-up
of all other accident. While two hours might have passed between the initial accident and the
latter accident, the lapse of time is irrelevant if a juror can still conclude the defendant’s
negligent conduct was a continuous substantial factor in causing the latter.

CONCLUSION: Therefore, a reasonable individual can differ regarding the question of whether
the two hour period should insulate a negligent actor from suit given the particular and unique
facts of this case. The trial court erred in granting judgment b/c it should have been left to the
jury to decide whether the defendant’s action was still a substantial factor.

Sumpter v. Moulton

FACTS: The defendant instructed the plaintiff to mow the weeds on lots south of his home. The
plaintiff agitated refused to obey the city but nonetheless set out to clean the ditches the next day.
After about four hours of cleaning, the plaintiff felt pain in his chest and was diagnosing as
having mild heart attack. Further exams also revealed the plaintiff had heart disease with ninety-
five percent blockage in his right coronary artery and according to his physician; bypass surgery
was inevitable given the extent of the plaintiff’s heart blockage.
The jury returned verdict finding the city negligent, but concluded the negligence was not
the proximate cause of the plaintiff’s injury. Plaintiff appealed claiming error in instructing on
the issues of intervening and proximate cause and in failing to give the eggshell instruction

ISSUE: Whether the city’s negligence in failing to clean the ditches themselves was the
proximate cause of the plaintiff’s injury when the city should have reasonable foreseen that the
failure to clean the ditches will result in someone else doing it and may likely injure him/herself
in the process.

RULE: For proximate cause, there must be a “substantial foreseeable factor”

APPLICATION: Here, the defendant should have foreseen the harm likely to occur from its
neglection of the ditches b/c someone else might attempt to clean it and in doing so injure
themselves. In this case, the foreseeability component has been excluded b/c of the pre-existing
condition of the plaintiff (eggshell plaintiff). Now, it not whether the injuring should have been
foreseen but rather what numerous factors should be relevantly considered to determine whether
the defendant’s conduct, in this case failing to clean the ditches was a substantial factor in
causing the plaintiff’s injury.

CONCLUSION: Therefore, the trial court instruction blurred the distinction between substantial
factor and foreseeability. While they can be joined, they need to be considered separately.

Price v. Blaine Kern Artista, Inc

FACTS: The plaintiff was wearing an oversize caricature manufactured by the defendant. The
particular caricature the plaintiff was wearing during his employment as an entertainer at
Harrah’s Club was the face of George Bush with the safety harness absent to support the head
and the neck under the heavy weight. The injury occurred after the plaintiff was pushed when a
Harrah’s patron took issue with the plaintiff over Bush’s policy on abortion. The patron pushed
the plaintiff from behind causing the weight of the caricature mask to strain and injure his neck
as he fell to the ground.
The defendant motion for a summary judgment and was granted by the court asserting
that the patron’s push that precipitated plaintiff’s fall constituted an unforeseeable superseding
cause absolving the defendant’s of his liability.

ISSUE: Whether the absence of safety harness for the George Bush’s caricature was the legal
and proximate cause of the plaintiff’s fall rather than the push from the patron.

RULE: Criminal or tortuous third-party conduct typically severs the chain of proximate
causation between the plaintiff and the defendant, the chain remains unbroken when the third
party’s intervening intentional act is reasonably foreseeable

APPLICATION: Here, Even though BKA could not foresee that Price would be pushed, a jury
could find that BKA proximately caused the injury due to its failure to equip the caricature mask
with a safety harness. “The chain remains unbroken when the third party’s intervening
intentional act is reasonably foreseeable.” If it’s foreseeable, it’s intervening but not superseding.

CONCLUSION: Therefore, there still exist the genuine issue of material fact with respect to
what the legal and proximate cause of the plaintiff’s injury is and that should be left to the trier
of facts

McClenahan v. Cooley

FACTS: The defendant drove his vehicle to a bank located in the public parking lots of a
shopping center. The defendant left his keys in the ignition of the car, while he was in the bank, a
thief saw the keys in the ignition, starts the engine, and began driving the car down the interstate
where he was spotted by a state trooper. Car chase ensued after that at which the thief exited the
interstate and enter the busiest stretch of highway in Cleveland during lunch. The thief was been
chased at about 80 miles an hour by the state trooper approaching the most dangerous
intersection in the city. The thief ran a red light at the intersection and slams his vehicle in to
another vehicle broadside. The vehicle was been driving by the plaintiff’s thirty- one yrs old wife
who was also six-eight month pregnant. She died 14 hrs later, including the safe fetus, and the
plaintiff’s four yrs old son. Another child was riding in the car that only sustained substantial
injuries but will survived.
In a action filed for wrongful death of his wife and two children and personal injuries to
another was dismissed by the Circuit Court Bradley County. Plaintiff appealed

ISSUE: Whether a jury should be permitted to determine the issue of proximate causation in
cases where the keys are left in the ignition of a parked automobile that is subsequently stolen
and thereafter involved in an accident.

RULE: It is not necessary that tortfeasors or concurrent forces acts in concert, or that there be a
joint operation or a union of act or intent, in order for the negligence of each to be regarded as
the proximate cause of the injuries, thereby rendering all tortfeasors liable. There is no
requirement that a cause, to be regarded as the proximate cause of an injury, be the sole cause,
the last act, or the one nearest to the injury, provided it is a substantial factor in producing the
end result. An intervening act is not superseding if:
a. It is a normal response to a negligent act that is reasonably
foreseeable and a substantial factor in bringing about harm.
b. It could have been reasonably anticipated.
c. The intervening conduct could have been anticipated and taking the
risk of it was unreasonable.

APPLICATION: Here, the thief stole a car and drove it at excessive speed, killing a pregnant
woman, and two children. Whether this is an intervening force that should exculpate the
defendant b/c of his negligent conduct of leaving the keys in the ignition of an unattended car in
a public parking accessible by the public and causing it to be stolen and subsequently killing
people. Whether such accident could have been foreseen by a reasonable person is left to the jury
to decide. But in rationale, a reasonable person could have foreseen that leaving his car keys in
the ignition in a publicly access area can result in it being stolen and should have taken necessary
precaution to avoid such mishap even though he may not have foreseen the extent such
carelessness may inflict on the public in general.
CONCLUSION: Therefore, it is up to the fact-finder to return a not reasonably verdict for the
car owner or that evidence surrounding the circumstances of this case would have prevented the
foreseeability of such accident.
WEEMS V. HY-VEE FOOD STORES, INC

FACTS: The plaintiff slipped and fell on a wet floor in front of the defendant’s store. Plaintiff
began experiencing lower back pain from the fall and approximately eighteen months later
received an epidural from his doctor to block the pain. The procedure involved a spinal steroid
injection and as a result of the epidural block, the plaintiff developed an infection which led to
spinal meningitis. The plaintiff suit the defendant claiming damages for the injuries received
from the fall. The defendant requested instruction regarding the treatment administered by the
doctor has been a superseding cause of any damages associated with the plaintiff and it was
rejected. Defendant appealed.

ISSUE: Whether the harmful side effects of the medical treatment rendered the eighteen months
after the fall constituted an intervening superseding cause of the subsequent damages.

RULE: If the negligent actor is liable for another’s bodily injury, he is also subject to liability
for any additional bodily harm resulting from normal efforts of third persons in rendering aid
which the other’s injury reasonably requires, irrespective of whether such acts was done in a
proper or negligent manner

APPLICATION: Here, the plaintiff did get an infection from the doctor’s administer of the
epidural block but that did not break the causal connection between the fall and later injury. As
the rule stated as long as the subsequent injury is within the scope of the original known risk,
then regardless of time or subsequent injuries the original tortfeasor is still liable. In this case, the
administering of the epidural was a known treatment for the back pain plaintiff sustains during
the fall and the infection sustained by the plaintiff was a known risk of the procedure. The causal
chain is not broken, simply the plaintiff was seeking treatment from the injury sustained in the
fall and such injuries that make have occurred from receiving that treatment is within the scope
of risk associated with the fall.

CONCLUSION: Therefore, the treatment the plaintiff received was still within the scope of the
original risk. The treatment was not extraordinary or unforeseeable since such treatment would
have been required to cure the chronic back pain sustained by the plaintiff. Usually it would
have been left to the juror to decide whether defendant negligence was the proximate cause of
the plaintiff’s injuries but in this case it would have been impossible to reach that conclusion the
epidural block treatment was a superseding cause.
CORBETT V. WEISBAND

FACTS: The plaintiff was receiving treatment from the defendant for a knee infection and
during the course of the treatment; he also had a knee fusion performed by the defendant. Later,
the plaintiff came under the care of Dr. Greene, who stated the knee fusion was unsuccessful and
performed a total knee replacement. After several months of the plaintiff in and out of the
hospital, it was discovered that the knee was infected and was amputated by Dr. Greene.
The plaintiff filed suit against both doctors, one for negligently performing the knee
fusion and to the other as negligently performing the knee replacement. At the trial court level,
expert testimonies from the defendant explained Dr. Greene conduct was highly extraordinary in
curing the infection and the court agreed stating all testimonies stated the Dr. Greene conduct
was highly extraordinary to constitute superseding cause to the defendant’s conduct.

ISSUE: Whether reasonable minds could differ on the question of whether Dr. Greene’s decision
to perform the knee replacement in the absence of taking an adequate history was extraordinary
as to constitute a superseding cause which insulates the defendant and ROPA from liability for
the harm resulting from Dr. Greene’s care.

RULE: The fact that an intervening act is done by a third person is negligent or done in a
negligent manner does not make it a superseding cause of the harm to another which the actor’s
negligent conduct is a substantial factor in bringing about if (a) the actor at the time of his
negligent conduct should have realized that a third person might so act, or (b) a reasonable
person knowing the situation existing when the act of the third person was done would not regard
it as highly extraordinary that the third person had so acted, or (c) the intervening act is a normal
consequence of a situation created by the actor’s conduct and the manner in which it is done is
not extraordinarily negligent.

APPLICATION: Here, the defendant through testimonies was able to show that Dr. Greene was
unaware of the osteomyelitis infection, which if missed will make the knee replacement a failure.
The defendant and the ROPA contended which the trial court agreed that the knee replacement
was done negligently and Dr. Greene’s conduct was highly extraordinary in amputating the
plaintiff’s leg. They also contended that such conduct was highly substantial to eradicate the
defendant negligence. While that might be so, Dr. Greene did not create the situation for the
plaintiff to seek medical attention. If an actor knows his conduct may cause someone injury, then
he should also foresee that the victim will seek medical attention to remedy that harm, therefore ,
the actor’s conduct is not broken just because the treatment did not go so well. The injury, the
treatment from a third party are all still within the scope of risk the defendant created regardless
of whether or not there is a intervening cause that might be substantial enough to be superseding
cause.

CONCLUSION: Therefore, the question of whether Dr. Greene’s conduct was highly
extraordinarily, so extreme to constitute a superseding cause was a question for the trier of facts
to decide. The decision could have gone either way.
WRIGHT V. NORFOLK AND WESTERN RAILROAD CO.

FACTS: The plaintiff was injured at a crossroad between the street and the defendant’s railroad
track. Plaintiff was an experienced truck driver who drove truck across RR tracks, he had driven
across the railroad nine times before, he also lived less than a mile to the train, and he was well
familiar with the track hit by train. Train had an advance warning signs painted in yellow but no
other warning devices, or traffic control in place. Plaintiff was known to turn his A/C, radio, and
CB radio on when driving. On this particular day the plaintiff didn’t hear the train.
The plaintiff filed a negligence action, the jury returned verdict for the plaintiff for $4
million but sustaining a post trial motion, the trial court set the verdict aside and awarded
judgment for the defendant. Plaintiff appealed

ISSUE: Whether the plaintiff was liable for contributory negligence when he drove through the
track without exercising the precaution he should have which ultimately was the proximate cause
of his injury.

RULE: For the purpose of determining proximate cause of injury, when a person acted
negligently as to cause a reasonable person to differ as a matter of law that their contributory
negligence was the proximate cause of the injury, the actor is barred from recovery

APPLICATION: Here, the defendant’s track was not reasonably safe but the plaintiff is an
experienced truck driver, had lived near the track for ten years, driven over the track several
times that day and the day before, was aware about the lack of visibility in regards to the angle of
the track to the road, also from his truck and therefore needs to utilize his senses to cross the
track b/c he had failed to listen due to his closed window, radio and A/C blasting he had failed to
exercise reasonable care needed to cross the road. Had he look and listen, he would have noticed
the train and would have easily avoided the train.

CONCLUSION: Therefore, the plaintiff failure to look and listen was contributory negligence
as a matter of law, which barred him from recovery any damages.
MCINTYRE V. BALENTINE

FACTS: The plaintiff was coming out of a truck stop traveling south when he was struck by the
defendant’s tractor also traveling south. Both men had consumed alcohol prior to the accident.
Plaintiff’s blood alcohol level was measured at .17 percent by weight and also evidenced
suggests the defendant had been travelling in excess of the posted speed limit.
Plaintiff filed a negligence suit and defendant answered the plaintiff was contributorally
negligence also because he drove his vehicle while intoxicated. The jury found the plaintiff and
defendant both equally at fault in the accident; and rule in favor of the defendant. Plaintiff
appealed claiming the court held by refusing to give the comparative negligence instruction.

ISSUE: Whether contributory negligence that bars recovery for plaintiff under Tennessee law
should be put aside and adopt the comparative negligence system that allows partial recovery for
plaintiff.

RULE: For the purpose of determining negligence in regards to fault, the court adopted the
modified comparative negligence that allows plaintiffs to recover in pure jurisdiction, but only if
the plaintiff’s negligence either (1) does not exceed (50 percent jurisdiction) or (2) is less than
(49 percent jurisdiction) the defendant’s negligence. And in such case, plaintiff’s damages are to
be reduced in proportion to the total negligence attributable to the plaintiff.

APPLICATION: Here, the plaintiff’s conduct was contributory negligence b/c he drove while
intoxicated and under Tenn. Law is barred from any recovery. Under the new modified
comparative rule, the plaintiff will not bar him from recovery as long as the jury does not found
his negligent to exceed that of the defendant.

CONCLUSION: Therefore, since the jury found the plaintiff and the defendant both equally
negligent but without the proper instruction to guide them made a gratuitous apportionment of
fault, which is not sufficient to form the basis of final determination between both parties.

DOBSON V. LOIUSIANA POWER AND LIGHT COMPANY

FACTS: The plaintiff’s decedent was electrocuted when the metallically reinforced safety rope
he was using came in contact with the defendant’s uninsulated 8,000 volt electric power
distribution line.
The trial court found in favor of the plaintiff and awarded them $1, 034,054.50 in
damages claiming the defendant was negligence for failure to insulate its high voltage power
lines or give adequate warnings regarding its dangerous nature. The Court of Appeals also
affirmed the defendant’s negligence but reversed in part, reducing the plaintiff’s recovery by
70% based on its finding that the decedent was at fault to a certain degree.

ISSUE: Whether the degree or percentage of negligence attributable to the decedent following
the comparative system is adequately calculated compared to that of the defendant who fails to
insulate its power distribution line or give adequate warning about its dangerous nature.

RULE: Using the learned hand formula, If the burden of prevention or avoidance is less than the
magnitude of the risk occurrence multiplied by the probability of the loss. A person about to
caused injury inadvertently must expend much more effort to avoid a danger than need one who
is at least aware of the danger involved.

APPLICATION: Here, the burden of prevention or avoidance is less for the defendant than the
decedent b/c the defendant was clearly in a superior position to take effective precautions. The
magnitude of risk in this case is the loss of life by the defendant. While there is a greater
responsibility on the defendant to exercise reasonably precaution, the probability of the risk
occurrence is slim b/c its not everyday people climb trees and the fact that the plaintiff a tree
trimmer climbed the tree with a metallically safety rope next to a power line is unusual. The
plaintiff was partially negligence and should be found faulty as to absorb some portion of the
damages.

CONCLUSION: Therefore, the defendant negligent is not so great as to absorb all the cost and
accordingly we attribute 60 percent of the negligence to the defendant and 40 percent to the
decedent. The plaintiff recovery will be reduced by 40 percent.

JENSEN V. INTERMOUNTAIN HEALTH CARE, INC

FACTS: The plaintiff’s decedent died as a result of negligence on part of an emergency room
physician and the hospital.
 The plaintiff filed a malpractice suit against the doctor and the hospital. The doctor
settled and the hospital went to trial. The jury returned a special verdict, finding plaintiff’s
decedent 46 percent negligence in his own death, the defendant 36 percent negligent and the
doctor 18 percent negligent. Judgment was entered for the plaintiff and against the hospital. The
trial court set aside the original reward and entered a judgment of no cause of action.

ISSUE: Whether the Utah Comparative Negligence Act requires the negligence of each
defendant in a multi-defendant case to be compared individually against the negligence of the
plaintiff or whether the total negligence of all defendants should be compared to that of the
plaintiff to determine whether a particular defendant is liable.

RULE: The UCNA stated Contributory negligence shall not bar recovery in an action by any
person or his legal representative to recover damages for negligence or gross negligence
resulting in death or in injury to person or property if such negligence was not as great as the
negligence or gross negligence of the person against whom recovery is sought, but any damages
allowed shall be diminished in the proportion of the amount of negligence attributable to the
person recovering. In looking at the way the statute defines person, it means “persons” in a
multi-defendant case so that the plaintiff’s negligence is compared against the aggregate of all
the defendants or in a single-defendant case to be compared against the negligence of the
defendant.

APPLICATION: Here, the unit rule that needs to be followed is one that allows the plaintiff’s
negligent to be measured against all negligence of the defendant not the Wisconsin rule that
allows the negligence of each defendant to be compared against that of the plaintiff’s negligence.
Under the Wisconsin rule, there are several defects to that rule; first, negligence of both the
defendant and the plaintiff when added up need to total 100 percent. Following the Wisconsin
rule would allowed the plaintiff’s 46 percent be compared to that of the defendant 36 percent and
the doctor’s 18 percent. Under the Wisconsin rule, the plaintiff’s negligent is used twice against
the defendant totaling 92 percent and the defendant added up totals 54 percent. The total
percentage of negligence in this case combined will equal 146 percent. Second, in a case where
there are two defendants (3313) with equal amount of negligence as the plaintiff (3313) the
plaintiff will be barred from recovery. Third, if there are two defendants who produced the injury
but one defendant was responsible for the larger portion of the injury, the plaintiff will recover a
larger share. Either way under the Wisconsin rule, the more likely that there are more defendants
the less likely the plaintiff will be able to recover. Utah comparative negligence requires
negligence of each D in a multi-D case to be compared individually against P’s negligence.

CONCLUSION: Therefore, the UCNA emphasize person or persons depending on whether it is

a single-defendant or a multi-defendant case as plural to compare the total negligence of all
defendants to that of the plaintiff’s negligent.
COLEMAN V. HINES

FACTS:
• Defendant was drinking prior to stopping by plaintiff’s decedent place of
employment
• Decedent’s employer stated decedent knew defendant had been drinking prior to
see her and decedent also stated they had planned later that night to drink on their
way to an engagement during the party and after the party
• Decedent’s employer begged decedent not to ride with the defendant and had also
offered to pick defendant and decedent up after the party and rive them home
• Defendant and decedent later that night went to a store and bought beer, and
drank it in the presence of each other
• The only alcohol defendant drank that night was in the presence of the decedent
• According to the treating physician, the defendant blood level alcohol was .184
twice the legal limit
• And, the officer at the scene of the accident sated the defendant was under the
influence of alcohol at the time of accident

ISSUE: Whether the decedent’s conduct shows similar high degree of negligence as the
defendant’s conduct thereby contributing to her own death when she saw the defendant
purchased alcohol, consumed alcohol with him before and during the party, and willingly entered
a car with an intoxicated person.

RULE: Plaintiff’s claim will be barred as a result of the decedent’s own actions, if it rise to the
same level of negligence as that of the defendant, to the extent the allegations of the complaint
establish more than ordinary negligence on the part of the defendant, they also establish a
similarly high degree of negligence on part of the decedent.

In regards to the plaintiff’s claim that the last clear chance doctrine is applicable in the this case,
the court held that such doctrine is only applicable when plaintiff prove that
• Plaintiff’s negligence placed her in a position of peril from which she could not
escape
• Defendant saw, or by the exercise of reasonable care should have seen and
understood, the perilous position of plaintiff
• Defendant had the time and means to avoid the accident if defendant had seen or
discovered the plaintiff’s perilous position
• Defendant failed or refused to use every reasonable means at his command to
avoid impeding injury to plaintiff
• Plaintiff was injured as a result of the defendant’s failure or refusal to avoid
impending injury
APPLICATION: Here, the decedent’s own actions rise to a similar high degree of contributory
negligence as the defendant b/c she was with the defendant when they purchased the beer,
consumed the alcohol in the presence of each other, had made drinking plan with the defendant
prior to buying or consuming the alcohol, and was aware of the defendant’s plan to drive back
home, refused to accept the offer from her employer to drive them home and she willfully enter
the vehicle with the defendant knowing he was going to drive intoxicated. Her actions establish
same level of negligence as that of the defendant.
In regards to the applicability of the last chance doctrine, plaintiff presents no evidence that the
decedent had placed herself in a position of peril from which she could not escape. Based on the
offer from her employer, she had the opportunity to avoid getting in the car with the defendant
but refused.

CONCLUSION: Therefore, the plaintiff and the defendant conduct both establish a high degree
of contributory negligence and bar the plaintiff’s claim from prevailing against the defendant for
negligence.
DOWNING V. UNITED AUTO RACING ASSOCIATION

FACTS: Plaintiff was a member of a pit crew at a midget car race promoted, organized and
supervised by the defendant. During the race, plaintiff notice one of the driver in the race car was
bicycling (when car’s inner wheels lose contact with the track surface) as it approach a turn near
the plaintiff and also at a distance. Both the plaintiff and another pit crew member noticed again
the car bicycled and stated the driver of the bicycled car should be blackflag of the track. When
the bicycled driver car reached the pit nearest to the plaintiff it bicycled again and then flipped
over and began skidding towards the plaintiff and other two pit crew members. Plaintiff was
struck by the car and pinned against the fence next to the track straightaway. He sustained
injuries that requires surgery and post operative care
Plaintiff filed suit claiming the UARA were guilty of willful and wanton conduct when
they failed to extend the guardrail next to the pit, failed to provide the pit with steward to ensure
person did not remain in the exposed area near the pit and also failed to blackflag the driver off
the track once it began to bicycle. The jury returned a verdict against the defendant and awarded
the plaintiff $1.5 million in damages, reduced to $615,000 for plaintiff’s comparative fault,
which was assessed at 59%. The trial court entered judgment in conformity with the verdict and
defendant appealed and plaintiff cross appealed. During the appealing, the plaintiff challenged
the apportionment of damages between both parties

ISSUE: Whether evidence was for jury to decide if the defendant were guilty of willful and
wanton conduct for failure to extend guardrail or require presence of pit steward to protect pit
crew member from injuries that occurred when driver lost control of his car, which flipped over,
skidded, and struck crew member, pinning him against fence.

RULE:

APPLICATION: Here, there are different divergent views in regards to how social stigma is
weighted against the equitable principles of comparative fault. While some see the weight has
overriding, others see it has underbidding the equitable principles of comparative fault.
According to the court, when such disparity occurs it should be left to the jury to decide the
plaintiff’s comparative fault, based upon the principles of ordinary negligence, as an offset to the
compensatory damages awarded for the defendant’s willful and wanton conduct and since this
was a comparative negligence state, jury can prorate damages between the plaintiff and
defendant. And they did that by reducing P’s negligence damage by 59%

CONCLUSION: Therefore, jury should be left to decide if defendant was guilty of willful or
wanton conduct and prorate the damages as they see fit.
Wagenblast v. Odessa School District

FACTS: School districts require students and their parents to sign a release of all potential future
claims as a condition to student participation in certain school related activities.

ISSUE: Whether the School Districts release forms requiring the students and their parent
signature barring all allege future claims violate public policy.

RULE: Six factors determine whether a release forms violate public policy. They are: (1) the
agreement concerns an endeavor of a type generally thought suitable for public regulation (2) the
party seeking exculpation is engaged in performing a service of great importance to the public,
which is often a matter of practical necessity for some members of the public (3) such party
holds itself out as willing to perform this service for any member of the public who seeks it, or at
least for any member coming within the certain established standards (4) because of the
essentials of the service, in the economic setting of the transaction, the party invoking the
exculpation possesses a decisive advantage of bargaining strength against any member of the
pubic who seeks the services (5) in exercising a superior bargaining power, the party confronts
the public with a standardized adhesion contract of exculpation, and makes no provision whereby
a purchaser may pay additional reasonable fees and obtain protection against negligence (6) the
person or property of the members of the public seeking such services must be placed under the
control of the furnisher of the services, subject to the risk of carelessness on the part of the
furnisher, its employees or agents.

APPLICATION: On balance, (1) the agreement concerns an endeavor of a type generally

thought suitable for public regulation. In this case, a legislature statute has granted the school
the authority to supervise, control, regulate the conduct of interscholastic activities and in some
instance the power to delegate its authority to a third party like the WIAA. The WIAA’s
handbook has printed the rules and regulation in regards to interscholastic activity and it is the
rules that the school look to for guidance. (2) the party seeking exculpation is engaged in
performing a service of great importance to the public, which is often a matter of practical
necessity for some members of the public. In this case, the justification advanced for have
interscholastic athletics at school is for their educational and cultural value which is a substantive
portion of Washington educational schemes. Also the program creates a bridge between the
public and the system of public education. (3) such party holds itself out as willing to perform
this service for any member of the public who seeks it, or at least for any member coming
within the certain established standards. The programs as construed is that the doors are open
to all those who are eligible (4) because of the essentials of the service, in the economic
setting of the transaction, the party invoking the exculpation possesses a decisive advantage
of bargaining strength against any member of the pubic who seeks the services. The school
programs have become importance both to the student and the public at large. And likewise,
there are no alternatives option at least not one that many of the student can afford that does not
required relinquishing their rights to claim. (5) in exercising a superior bargaining power,
the party confronts the public with a standardized adhesion contract of exculpation, and
makes no provision whereby a purchaser may pay additional reasonable fees and obtain
protection against negligence. The schools have a strict policy of not allowing student to
participate without signing the release forms; while parents have tried to modify the language of
the release form they are unsuccessful. This gave them no alternatives, rather sign the form or the
student will be barred from joining. (6) the person or property of the members of the public
seeking such services must be placed under the control of the furnisher of the services,
subject to the risk of carelessness on the part of the furnisher, its employees or agents. In
this case, the school owes a duty to the students to employ the reasonable care to protect them
from danger and that duty extend to those participating or joining the interscholastic athletics.

CONCLUSION: Therefore, the more factors that applies to any kind of release form, the more
likely it violates public policy. The release forms presented by the school encompasses all six
factors thereby making it unenforceable constituting a violation of public policy.
Turnbough v. Ladner

FACTS: Plaintiff paid for a six week scuba diving course to the defendant. Upon enrollment,
participants are required to sign a release form excusing the defendant from liability pertaining to
any risks sustained during the duration of the course. In order to receive certification, the
participants are required to perform check out dives. On several occasions, the defendant
calculated the dive time to be 38 minutes and a dive of sixty feet for both dive for the
participants. The plaintiff began to feel the effect of decompression sickness known as bends on
his way home. He began to experience arthritic pain in his joint. He was to see an expert doctor
in diving, who told him he had dive too long and can never dive again. The doctor, an expert in
diving explained the defendant was negligent in planning the depths and failing to make safety
stops.
The plaintiff filed suit claiming the defendant was negligent in her supervision of the dive
and in exposing him to decompression injury. The defendant filed a motion for summary
judgment based on the release and the trial granted the motion and dismissed the case. The court
of appeal also found the release was a contract of purely personal nature and did not violate
public policy b/c scuba diving does not implicate public concerns.

ISSUE: Whether the release exculpate the defendant from liability when she negligently
miscalculate the participants’ depths and time causing the plaintiff to suffered decompression
sickness.

RULE: The wording of an exculpatory agreement should express as clearly and precisely as
possible the extent to which a party intends to be absolved from liability, the circumstances
existing at the time of the instrument’s execution and negotiate the terms of the agreement with
the plaintiff.

APPLICATION: Here, the plaintiff signed the release form but the contract was not negotiated,
and contained broad waiver of negligence provision. One, the language of the provision can be
broadly construed to cover all claims. Second, the plaintiff’s harm was brought on by the
defendant’s negligent. The plaintiff’s acceptance of the release form does not mean he waive his
right to recover for any injuries brought on by the defendant negligence in failing to follow basic
safety guidelines that should be common knowledge to any instructor of novice students. If the
defendant intended not to be liable for negligent, it should do so in specific terms in the release
form.

CONCLUSION: Therefore, the agreement fails to specific in the release form that defendant’s
negligent of any kind will also not be claimable. Court reverse and remanded the case for further
processing.
SCHROYER V. MCNEAL

FACTS: Plaintiff arrived at the defendant hotel; saw about four inches of sleet and ice had
accumulated, she noticed the entry way into the hotel was shoveled but the other vicinities
weren’t. Nevertheless, she registered for a room and requested a room closest to an exit due to
her shoving boxes back and forth to her room. She was given a room closest to the exit as
requested against hotel’s policy not to assign such rooms during inclement weather and contrary
to policy was not warned not to use the west entrance of the hotel. No warning was also posted.
The plaintiff parked her car on ice and snow near the west entrance, noticed the side walkway
had not been shoveled and further more the entrance was slippery. Nevertheless, she begins to
remove his boxes from the car and crossed the ice and snow carefully and without mishap. On
her return to the car to retrieve more boxes, she slipped and fell sustaining the injury.
The defendant move for a motion both at the beginning of trial and at the end for a
motion n.o.v. both motion was denied. The jury returned verdict for the plaintiff and defendant
appealed.

ISSUE: Whether the plaintiff assumed the risk, when she saw the dangerous condition and acted
voluntarily when she started to cross the ice and snow covered parking lot and sidewalk.

RULE: The defense of assumption of risk rest upon the plaintiff’s consent to relieve the
defendant of an obligation of conduct toward him and to take his chance of harm from a
particular risk. Such consent may be found by implication the conduct of the parties. When the
plaintiff enters voluntarily into a relation or situation involving danger, he may be taken to
assume the risk, and to relieve the defendant of responsibility, such implied assumption of risk
requires the knowledge and appreciation of the risk, and voluntary choice to encounter it.

APPLICATION: Here, the plaintiff voluntarily assumed the risk b/c she parked on ice and
snow, saw the west entrance was unshoveled, knew the packed ice and snow was slippery and
according to her own testimony, traverse over the snow carefully to unload her luggage. She was
well aware of her vicinity, the possible danger pertaining to crossing the slippery snow and
nevertheless proceeded cautiously over the slippery snow before she fell. Her awareness means
she knew about the danger and appreciate the risks involve.

CONCLUSION: Therefore, her contributory negligence may very well be for the court to
decide but her assumption of the risk is uncontested. Judgment of the Court of Appeals is
reversed and remanded to the court with directions to reverse the judgment of the trial court in
Garrett County.
Davenport v. Cotton Hope

FACTS: The plaintiff resides in Cotton Hope. A condominium of ninety-six units located in
multiple buildings. Each building consists of three levels, three stairways: one in the middle and
the others on the side of the building. The plaintiff lived on the top level, approximately five feet
to the stairway. Cotton Hope was maintained by PAI and PAI hired Carson to perform
landscape, maintenance on Cotton Hope. Its duty also includes checking outdoor lights and
changing bulbs as needed. The plaintiff noticed the light bulb at the bottom of the stairway he
used was not working. He noticed PAI on several occasions regarding the floodlight but
nevertheless continued to use the stairs. On this particular day, the plaintiff fell while descending
on the stair claiming he attempted to place his foot on what he thought was a step but rather it
was a shadow caused by the broken floodlights.
He sued Cotton Hope for his injuries. Trial court returned verdict against the plaintiff
finding he assumed the risk of the injury and also even if assumption of risk were not abrogated
by comparative negligence, the plaintiff was more than fifty percent negligent. Plaintiff appealed

ISSUE: Whether a plaintiff should be completely barred from recovery when he voluntary
assumes a known risk, regardless of whether his assumption of that risk was reasonable or
unreasonable.

RULE: There are four requirements to establishing the defense of assumption of risk: (1) the
plaintiff must have knowledge of the facts constituting a dangerous condition; (2) the plaintiff
must know the condition is dangerous; (3) the plaintiff must appreciate the nature and extent of
the danger; and (4) the plaintiff must voluntarily expose himself to the danger.

APPLICATION: Here, the court stated the four requirements that established the defense of
assumption can also be used to established contributory negligence. Contributory negligence
barred recovery if the plaintiff is to be found at fault. S.C. has adopted the comparative
negligence but on such if likely abandon the assumption of risk since how it compatible to
contributory negligence particularly the secondary implied of assumption of risk. Primary and
express are compatible to comparative negligence while secondary is more in a way contributory
negligence b/c it shed lights on the plaintiff involvement to expose himself to the danger after
being aware of the dangerous condition. If the plaintiff is found guilty it bar recovery. The court
recognized there is a different between contributory negligence and secondary assumption of the
risk and the difference is that one secondary assumption of risk exercise one’s free will in
encountering the danger while the other.
CONCLUSION: Therefore, P not barred from recovery by the doctrine of secondary implied
assumption of risk unless the degree of fault arising therefrom is greater than the negligence of
the D.
KLANSECK V. ANDERSON SALES & SERVICE, INC

FACTS: The plaintiff bought a motorcycle from the defendant and on the way home the
motorcycle began to fishtail. Plaintiff applied brakes and the motorcycle slide sideways and went
down. Plaintiff suffered severe injuries and brought action against the defendant seeking
damages for the injuries. Defendant replied alleging the plaintiff failed to mitigate damages.

ISSUE: Whether the plaintiff failure to adhere to his physician recommendation mitigates his
damages.

RULE: An injured party has a duty to exercise reasonable care to minimize damages.

APPLICATION: Here, the plaintiff did not exercise reasonable care to minimize damages b/c
he refused his physician’s recommended undergo additional diagnostics test to determine if he
had a herniated disk. He declined taking the test unless his symptoms worsened.

CONCLUSION: Therefore, plaintiff’s refusal to undertake additional diagnostics test is failure

to mitigate damages.
MILLER V. EICHHORN

FACTS: Plaintiffs collided with the defendants when the defendant backed his car out of his
driveway into the street. Plaintiffs (husband and wife) sued defendant for injuries. The jury
returned verdict for the wife’s damages to be $3,569. 70 (plaintiff) and denied husband
(plaintiff). The court also found the plaintiffs’ fault to be 15% and the defendants’ fault to be
85%. Plaintiff challenged the mitigating instruction given to the court.

ISSUE: Whether there are mitigating circumstances on the plaintiff that makes the instruction
proper.

RULE: In determining the percentages of fault, the trier of fact shall consider both the nature of
the conduct of each party and the extent of the causal relation between the conduct and the
damages claimed and under Iowa Comparative Fault Act, the term fault means unreasonable
failure to avoid or to mitigate damages.

APPLICATION: the plaintiff was advice by her doctor more chiropractic treatment is required
but plaintiff failed to consult her doctor as needed. Failure to visit doctor is not evidence of
failure to mitigate.

CONCLUSION: Therefore, evidence support the submission of the mitigating of damage issue
and is evidence from which jury could find she did not use due care in following her doctor’s
advice.
LAW V. SUPERIOR COURT

FACTS: The defendant pulled out in front of the plaintiff who swerved violently to avoid the
collision but his evasive maneuver overturned the vehicle. Both the plaintiffs weren’t wearing
their seat belt and were thrown from the car→ the husband through a closed sunroof. Plaintiff
brought a negligence claim against the defendant. During the trial, defendant requested
information regarding the plaintiff’s use of seat belt. Defendants replied with a case rule in which
the court of appeals held evidence of a passenger’s failure to wear seatbelt was inadmissible
either to show breach of duty to minimize damages or to prove contributory negligence
The trial court ruled there no duty wear seat belt. In an interlocutory appeal the court of
appeal held that evidence of non-use could be admissible.

ISSUE: Whether a plaintiff who does not wear an automobile seat belt is at fault for injuries
enhanced or caused by the failure to use the seat belt.

RULE: Fault includes acts or omissions that are in any measure negligent or reckless toward the
person or property of the actor or the others, or that subject a person to strict tort liability. The
term also includes unreasonable failure to avoid an injury or mitigate damages. Negligent failure
to use seat belt would reduce damages solely for those injuries directly attributable to the lack of
seat belt restraint.

APPLICATION: Here, the plaintiffs were not wearing seat belt which would have in some way
prevent them from been thrown out through a closed sunroof. This shows fault on their part that
could reasonably have mitigate their damages. The plaintiff claims wearing seat belt is irrelevant
therefore he is shielded by the doctrine of seat belt. The court in this case held that the duty to
use restraint is not so much failure to use reasonable care but reasonably more obligated to
reduce damages. The seat belt defense also opens up the doctrine of avoidance consequence→
which denies recovery for those injuries plaintiff could reasonably have avoided. The court held
that this doctrine has been modified by its adoption of the comparative fault statute which
requires each person under an obligation to act reasonably to minimize foreseeable injuries and
damages. Thus if someone should failed to use their seat beat, then they are at fault.
The plaintiffs argued allowing the seat belt defense will create windfall for tortfeasors. The court
held that the process of comparative negligence is to apportioned damages based on the
plaintiff’s and defendant’s fault thereby allocating damages based on fault. Plaintiffs also
maintained that allowing apportionment of the failure to use seat belt will unnecessarily
complicate and protract litigation. The recognized that in some case it might but also the
defendant has to established several factual predicates before the seat belt nonuse is presented to
the court. To prove these factors, defendant may have to utilize several resources, testimonies
and it is then will the fact-finder be able to evaluate the evidence and apportion as it see fit. The
plaintiffs assert that introducing evidence of seat belt nonuse will propel the court into morass of
unforeseen consequences.
CONCLUSION: Therefore, the court recognize the seat belt defense as a matter which the jury
can take into consideration in deciding apportionment damages due to fault of the plaintiff.