Negligence Damages

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 lumboperitoneal 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:

• • • • • •

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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.