Torts Briefs first year

7/29/2019 Torts Briefs first year

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Williams v. BrightSupreme Court of New York, Appellate Division,

First Department230 A.D.2d 548 (1997)

Parties and Roles: Gwendolyn Robbins (plaintiff) was a passenger in a car driven by her 70-

year-old father, Charles Williams (plaintiff), on an upstate highway when it veered off the roadand overturned.

Dispositive and Material Facts: Gwendolyn Robbins (plaintiff) was a passenger in a car drivenby her 70-year-old father, Charles Williams (plaintiff), on an upstate highway when it veered offthe road and overturned. Robbins, a practicing Jehovahs Witness, suffered a severely damagedhip and knee. Due to her religious beliefs, she refused to undergo recommended surgeries toalleviate the injuries because it required her to receive blood transfusions.

Procedural History: Robbins brought suit against the lessor of the vehicle, Bright (defendant).The jury found Bright negligent and Bright appealed. Bright did not contest liability, butobjected to Robbins failure to mitigate damages due to her religious beliefs.

Substantive or Procedural Issue:May a jury hear and consider evidence of a plaintiffsreligious beliefs in determining whether the plaintiff acted reasonably in an action whichotherwise requires a plaintiff to mitigate damages?

Holding: Ajury may hear and consider evidence of a plaintiffs religious beliefs in determiningwhether the plaintiff acted reasonably in an action which otherwise requires a plaintiff tomitigate damages.

Reasoning: Yes. It is well established in New York that a party claiming to have suffereddamage by the negligent conduct of another is bound to use reasonable and proper efforts tomake the damage as small as practicable. If an injured party allows the damages to beunnecessarily enhanced, he should be responsible for the incurred loss. The standard juryinstruction relating to damage mitigation utilizes the reasonably prudent person standard. Here,the trial court, over the objections of Bright, used the reasonable Jehovahs Witness standard.Consequently, the trial court perceived the issue as involving Robbins fundamental right to thefree exercise of her religion as protected by the First Amendment to the U.S. Constitution andheld that if the jury were permitted to assess Robbins refusal to accept surgical interventionwithout total deference to her religious beliefs, it would unlawfully restrain the free exercise ofher beliefs. In doing so, the trial court erred. The issue is whether the consequences of Robbinsreligious beliefs must be paid for by someone other than Robbins. However, the jury never heardevidence related to the rationale or sincerity of Robbins religious convictions, nor howuniversally accepted they might be. The state has a compelling interest in assuring that civilproceedings are not improperly advantaged or disadvantaged by adherence to a particular set ofreligious practices. However, the trial courts outright acceptance of Robbins religious beliefsbasically amounted to a directed verdict.

Decision: Reversed and remanded for new trial.

Notes: Eggshell plaintiff rule, or avoidable consequences rule


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Coyne v. Campbell

Court of Appeals of New York183 N.E.2d 891 (1962)

Parties and Roles: Coyne (plaintiff); Campbell (defendant)

Dispositive and Material Facts: In 1957, Coyne (plaintiff), a practicing physician and surgeon,sustained a whiplash injury when his vehicle was struck in the rear by a vehicle driven byCampbell (defendant). Thereafter, Coyne received medical treatment, physiotherapy, and carefrom his professional colleagues and nurse, and incurred no out-of-pocket expenses.

Procedural History: Coyne sued Campbell for negligence and requested $2,235 in specialdamages for the medical expenses and nursing care provided. The trial court held that the amountwas not allowable and that Coyne was not entitled to any recovery. Coyne appealed.

Substantive or Procedural Issue: Are free medical services provided to a plaintiff recoverable

in a negligence action for damages, or do they need to be from some sort of preexisting benefitsprogram such as Social Security?

Holding: Free medical services provided to, or on behalf of, a plaintiff are not recoverable in anegligence action for damages.

Reasoning:No. InDrinkwater v. Dinsmore, 80 N.Y. 390 (NY Ct. of App. 1880), the court heldthat a plaintiff seeking recovery for medical expenses was limited to those expenses for which hepaid. There, the court stated that the plaintiff must show what he paid the doctor, and canrecover only so much as he paid or was bound to pay.Id. at 393. Here, the medical services andnursing care provided to Coyne were provided free of charge. Coyne testified he did not have to

pay for the services and any moral obligation the physicians felt to perform the services will notsupport a claim for legal damages.

Decision: The judgment of trial court is affirmed.

Concurrence: If Coyne were allowed to recover for free services he would be receiving doublerecovery, or an undue windfall.

Dissent: While monetary damages are awarded in a personal injury action to compensate aplaintiff, a defendant should be required to pay for the incurred medical expenses and notallowed to deduct benefits which the plaintiff may have received from another source.Healy v.

Rennert, 173 NE 2d 777 (NY Ct. of App. 1961). There is no real difference between the facts inHealy and the facts here. Moreover, there should really be no distinction between medicalservices paid for and those provided free of charge.

Notes: The Collateral Source Doctrine: The Collateral Source rule mandates that damagesawarded in court cannot be reduced by any amount of other sources of income used to cover thedamages suffered by the victim.


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Ruzzi v. Butler Petroleum Company

Supreme Court of Pennsylvania588 A.2d 1 (1991)

Parties and Roles: Ruzzi (plaintiff) was servicing a sign at a gas station owned by Zinsser (defendant)and supplied with fuel by Butler Petroleum Company (Butler) (defendant)

Dispositive and Material Facts: Ruzzi (plaintiff) was servicing a sign at a gas station owned by Zinsser(defendant) and supplied with fuel by Butler Petroleum Company (Butler) (defendant), when used fueltanks near the sign exploded. Ruzzi was permanently injured.

Procedural History: Ruzzi brought suit against Zinsser, Butler, and Shockey (defendant), the fuel tanksvendor. At trial, Ruzzi called an expert, Jarrell, who testified as to Ruzzis loss of earning capacity. At thetime of trial, Ruzzi was employed by AMG Sign Company at a less physically demanding job, butearning the same salary he made prior to his injury. A jury found Butler and Shockey liable and both

appealed.The appellate court affirmed and the defendants appealed to the states supreme court.

Substantive or Procedural Issue: To determine loss of earning capacity for a permanently injuredplaintiff, must the whole span of life be considered to determine whether the plaintiffs economic horizonhas been diminished?

Holding: To determine loss of earning capacity for a permanently injured plaintiff, the whole span of lifemust be considered to determine whether the plaintiffs economic horizon has been diminished.

Reasoning: Yes. Shockey argues that the trial court erred in imposing liability because, at the time of thetrial, Ruzzi was making the same salary he made prior to his injury. However, Shockey fails to understandthe difference between actual loss of earnings and loss of earning capacity. InBochar v. J.B. Martin

Motors, Inc., 97 A.2d 813-815 (Pa. 1953), the court held that a defendant was not entitled to a reductionin damages simply because the injured plaintiff was earning the same, or more than, prior to his injuries.It is not a persons current injury status that determines his capacity for gainful employment. Rather,when there is a permanent injury involved, the whole span of life must be considered. A determinationmust be made whether, due to the injuries sustained, the injured plaintiffs economic horizon has beenshortened. The fact that Ruzzi was fortunate enough to earn the same at a new and less physicallydemanding job does not establish a loss of earning capacity. Additionally, Shockey argues that Jarrellsexpert testimony is inadmissible because it went beyond the scope of Jarrells pretrial report. Morespecifically, Shockey claims that because the pretrial report did not address diminished earning capacity itbarred Jarrell from providing testimony on that issue. Jarrell stated in his pretrial report that Ruzzi waspermanently injured and would never be able to perform work of the type he had performed before theaccident. Instead, Ruzzi would be limited to light duty work allowing for frequent position changes. At

trial, Jarrell testified that, according to a number of studies, the impaired and handicapped individualsuffered a loss of 17 percent earning capacity compared to the earnings of a non-impaired, non-handicapped employee. Jarrells report described not only the nature of Ruzzis injuries but also, in hisopinion, what would happen to him if he was forced to compete in an open job market and predicted thatRuzzi would earn no more than 82 percent of his former salary. Thus, Jarrells trial testimony was withinthe scope of his pretrial report.

Decision: The judgment of the appellate court is affirmed.


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Mauro v. Raymark Industries, Inc.

Supreme Court of New Jersey561 A.2d 257 (1989)

Parties and Roles: Mauro and his wife Lois (plaintiffs) brought suit against Raymark Industries, Inc.(Raymark) (defendant) and other manufacturers of asbestos products for future damages related to hiscontracting cancer.

Dispositive and Material Facts: Roger Mauro participated in tests conducted by the New JerseyDepartment of Health to determine the prevalence of asbestos-related disease among plumbers andsteamfitters in state institutions. During this time, Mauro was informed by a physician that he hadbilateral thickening of both chest walls and calcification of the diaphragm. The physician told Mauro thathis exposure to asbestos had been significant and that there was evidence that this exposure mayincrease his risk of developing lung cancer. Mauro was very upset upon hearing the news andsubsequently consulted a pulmonary specialist every six months to find out if and when he was going to

get cancer.

Procedural History: Mauro and his wife Lois (plaintiffs) brought suit against Raymark Industries, Inc.(Raymark) (defendant) and other manufacturers of asbestos products for future damages related to hiscontracting cancer. The trial court instructed the jury that there was no evidence at that time to suggestthat Mauro would absolutely get cancer and that they could not award damages for the future, enhancedrisk of developing cancer. The trial court did permit the jury to consider Mauros claims for damagescaused by emotional distress related to his fear of developing cancer and for damages caused by hispresent medical condition and the cost for future medical surveillance. The jury awarded Mauro $7,500and he appealed. The appellate court affirmed the trial courts judgment. Mauro appealed to the statessupreme court.

Substantive or Procedural Issue: In New Jersey, are prospective damages recoverable if they arereasonably probable to occur?

Holding: In New Jersey, prospective damages are recoverable only if they are reasonably probable tooccur.

Reasoning: Yes. In New Jersey, it is well settled that prospective damages are not recoverable unlessthey are reasonably probable to occur. However, there are policy considerations against imposition of therule. First, deferring an enhanced-risk claim may result in a plaintiff unable to recover damages due to adefendants claim that intervening events or causes were the cause of a plaintiffs injury. Second,recognition of a claim for significantly enhanced risk of disease might allow courts and companies todeter the improper use of toxic chemicals and substances, thereby addressing the claim that tort law

cannot deter polluters who view the cost of proper use or disposal as exceeding the risk of tort liability.The downside, however, is that proof of future disease may result in damages awarded for diseases thatwill never occur. Such results exact a societal cost in the form of higher insurance premiums and higherproduct costs. A line must be drawn. Allowing plaintiffs to bring actions for a present injury, not aspeculative claim for future injury, allows juries to better award damages in an amount that fairly reflectsthe severity of a plaintiffs injury.

Decision: The judgment of the appellate court is affirmed.


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Grayson v. Irvmar Realty Corp.

Supreme Court of New York, Appellate Division, First Department7 A.D.2d 436 (1959)

Parties and Roles: Grayson (plaintiff), a 21-year-old aspiring opera singer, fell in front of Irvmar RealtyCorporations (Irvmar) (defendant)premises, suffering a fractured leg and hearing loss when her head hitthe pavement.

Dispositive and Material Facts: Grayson (plaintiff), a 21-year-old aspiring opera singer, fell in front ofIrvmar Realty Corporations (Irvmar) (defendant) premises, suffering a fractured leg and hearing losswhen her head hit the pavement. Grayson brought suit against Irvmar for negligence in its failure toproperly light a construction sidewalk bridge and sought damages for loss of future earnings. At the timeof her injury, Grayson had graduated from high school and had been studying music and singing since shewas a young child. She also had five years of instrumental instruction. In her later years Grayson had aprofessional voice instructor and studied under an opera coach. She also participated successively in

operatic workshops which required her to learn various foreign languages associated with classic opera.At trial, Graysons voice teacher and opera coach testified that she had a superior voice and a brightfuture.

Procedural History: A jury awarded Grayson $50,000 in damages and Irvmar appealed.

Substantive or Procedural Issue: May an individual possessing special or rare talent recover damagesfor loss of future earnings if the damages are measurable and not excessive?

Holding: An individual possessing special or rare talent may recover damages for loss of future earningsif the damages are measurable and not excessive.

Reasoning: Yes. It is well established that an injured plaintiff may recover damages for lost futureearning capacity. However, it is not as well settled whether damages may be awarded based on the futureearnings of someone not yet engaged in the particular profession. An individual who possesses rare andspecial talents is entitled to recover damages for injury to the development of those talents if there waspotential for success prior to incurring the injury. Here, while Grayson certainly possessed measurabletalents, the jurys award of $50,000 in damages was excessive. Although Grayson has been able tocontinue studying music and even has had a number of performances, she claims that the impairment toher hearing, specifically pitch, has diminished her abilities and is likely to be permanent. Her claim issupported by testimony provided at trial by her voice instructor and medical expert. Conversely, there washighly credible proof from a physician selected by Irvmar from the court-designated panel to the effectthat any impairment of hearing Grayson had was due to a diseased condition which existed before theaccident. The jury could have accepted this testimony, but it did not. Any aspiring artist, singer, or actor

has a highly speculative future. In determining the amount that should be recovered for loss of futureearnings, a jury should consider (1) the gifts attributed to the plaintiff; (2) the training received; (3) thetraining the plaintiff is likely to receive; (4) the opportunities she is likely to have in the future; (5) therealization that opportunities may be limited to a few; and (6) the realization that there may be many otherrisks and contingencies that may divert an aspiring vocal artist from her career. Here, Grayson was veryserious about her future career as an opera singer, but she had not yet achieved any spectacular orextraordinary recognition for her talents. Based on this, any award in excess of $20,000 is excessive.

Decision: The judgment of the trial court is modified with respect to damages and affirmed.


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Walters v. Hitchcock

Kansas Supreme Court697 P.2d 847 (1985)

Parties and Roles: In 1979, a lump was discovered on the neck of Lillian Walters (plaintiff) byher family physician. At the time, Walters was 32-years-old, not employed, and married withfour minor children. Thereafter, Walters was seen by surgeon, Dr. C. Thomas Hitchcock(defendant), who recommended a surgical removal of the diseased areas of Walters thyroidgland.

Dispositive and Material Facts: Hitchcock informed Walters that the procedure was low riskwith an anticipated three-day hospital stay afterwards. Following the procedure, Walterscondition rapidly deteriorated: her head swelled, she lost her vision, and she suffered extremerespiratory distress. Walters was taken to the intensive care unit where a breathing tube was

inserted. Hitchcock was notified by the hospitals pathology department that a piece of Waltersesophagus was connected to the thyroid specimen he had sent to the lab during her surgery.Subsequently, Hitchcock reopened Walters wound and observed a significant hole in heresophagus that was not repairable. Hitchcock permanently closed Walters esophagus.

Procedural History: Walters brought a medical malpractice action against Hitchcock andsought $4 million in damages. A jury awarded Walters $2 million in damages, and Hitchcockappealed.

Substantive or Procedural Issue: Will an appellate court uphold a jury verdict in a medicalmalpractice action so long as the award amount does not shock the conscience?

Holding: An appellate court will uphold a jury verdict in a medical malpractice action so long asthe award amount does not shock the conscience.

Reasoning: Yes. After Walters esophagus was permanently closed by Hitchcock, she was onlyable to obtain nutrition via a tube inserted directly into her stomach. While Walters regained hervision after her second surgery, she was required to undergo a number of surgical procedures andhospitalizations thereafter due to the negligence of Hitchcock. Hitchcock first argues thatWalters counsel made inappropriate comments during his closing argument, stating [w]howould sell their esophagus for $4 million? I would not sell mine. Hitchcock argues that thestatement constitutes a prohibited golden rule argument. The term golden rule relates to

improper arguments made by counsel that jurors should place themselves in the position of theplaintiff. Walters counsel argues that the remarks were not asking that the jurors placethemselves in Walters position, but were merely hypothetical in nature. To constitute reversibleerror, there must be some likelihood that the improper remarks changed the result of the trial.Here, the remarks were both proper and improper, but the improper remarks are harmless innature. First, counsels statement beginning with who would sell is a fair argument relativeto claimed damages and is not a golden rule argument. However, counsels comment that hewould not sell his esophagus is his opinion, is testimonial in nature, and was improper but does


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not rise to reversible error. Next, Hitchcock argues that thejurys award of $4 million isexcessive. Hitchcock states that Walters did not seek damages for lost wages or diminishedfuture earning capacity and that her medical bills only totaled about $59,000 with no significantmedical intervention expected in the future. Although Walters is not expecting to undergo futuresurgical procedures, that does not mean that the damage done to Walters can be undone. When

Walters now swallows food, it does not automatically go into her stomach. Instead, it piles up inbulges in her throat and upper chest. Walters must manually massage the bulges downward toforce the food into her stomach. The process is physically painful and will continue for the restof her life. At trial, her life expectancy was 41.9 years. Walters condition is embarrassing,distasteful to those around her, and is a major obstacle to leading a normal life. The size of the $2million jury verdict does not shock the conscience and is thus appropriate.

Decision: The judgment of the trial court is affirmed.

Dissent: The magnitude of the verdict is the result of trial error and possible misconduct by thejurors. The $2 million jury verdict included $1,940,000 in general damages for pain and

suffering. That would provide Walters with about $48,000 annually for the remainder of her life.Assuming that one-half of the damage award is paid on expenses and attorneys fees, theremaining $1 million could be invested at 10 percent and provide an annual income of $100,000without invading the principal sum. InKirk v. Beachner Construction Co., Inc., 522 P.2d 176(Kan. 1974), the court ruled that a jurys verdict must be reasonable and not overlycompensate a plaintiff. The majority here erred in affirming the excessive jury verdict rendered.


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McDougald v. Garber

Court of Appeals of New York536 N.E.2d 372 (N.Y. 1989)

Parties and Roles: Emma McDougald (plaintiff) underwent a Cesarean section and tubal

ligation in 1978. The procedures were performed by Garber (defendant), and anesthesia wasperformed by Armengol and Kulkarni (defendants). During the surgery, McDougald wasdeprived of oxygen and suffered brain damage leaving her in a permanent coma.

Dispositive and Material Facts: In the P.H.

Procedural History: McDougald and her husband brought derivative actions against alldefendants alleging malpractice. The jury awarded McDougald a total of $9,650,102 in damages,including $1,000,000 for conscious pain and suffering and a separate award of $3,500,000 forloss of the pleasures and pursuits of life. Her husband received $1,500,000. The remainderdamages were awarded for economic losses. In a post-trial motion, the trial judge reduced

McDougalds award to $4,796,728 by striking her award for future nursing care and reducingseparate awards for conscious pain and suffering and loss of the pleasures and pursuits of life toa single award of $2,000,000. The appellate division affirmed, and the defendants appealedprimarily on the issue of the award to McDougald for nonpecuniary damages involving herconscious pain and suffering and loss of the pleasures and pursuits of life. The parties agreedMcDougald could not recover for pain and suffering unless she was conscious of her pain. Thedefendants argued she also could not recover for loss of enjoyment of life unless she wasconscious of her loss. The trial court permitted recovery without proof of this consciousness,which is the primary issue raised by the defendants on appeal.

Substantive or Procedural Issue: Whether some degree of cognitive awareness of loss by the

plaintiff is a prerequisite to recovery for loss of enjoyment of life.

Holding: Some degree of cognitive awareness of loss by the plaintiff is a prerequisite torecovery for loss of enjoyment of life.

Reasoning: Yes. A new trial is needed to determine whether MacDougald had no cognitiveawareness of her loss of enjoyment of life due to her injuries, and thus may not recover damagesfor this end. Some degree of cognitive awareness of loss by the plaintiff is a prerequisite torecovery for loss of enjoyment of life. However, the finder of fact does not need to determine thelevel of awareness of loss at which compensation stops. Rather, the finder of fact must find thatsome level of awareness exists to impose damages based on loss of enjoyment of life. If it isappropriate to award damages for loss of enjoyment of life, the trial court need not impose anaward for this amount separate from a general award for pain and suffering. Loss of enjoymentof life can encompass part of the frustration for whichpain and suffering damages areappropriate. The primary goal of damages is compensation to the victim, or restoring the victimto the place he or she would have been had the defendants action never occurred. Thiscompensation can include both pecuniary (economic) and nonpecuniary damages. Nonpecuniarydamages are those damages awarded to compensate an injured person for the physical andemotional consequences of the injury, such as pain and suffering and the loss of the ability to


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engage in certain activities. However, nonpecuniary damages are limited when they cease toserve the tort goals of compensating the victim. When that limit is met, any further nonpecuniarydamages assessed become punitive and thus not compensatory in nature. An award of damagesbased on loss of enjoyment of life to a person whose injuries preclude any awareness of the lossdoes not serve a compensatory purpose. This is because the award has no meaning or utility to

the injured person. If McDougalds condition is so severe that she has no cognitive awareness ofher loss of enjoyment of life, she may not recover pain and suffering damages encompassing thismeasure of recovery.

Decision: A new trial is needed to determine whether McDougalds injuries are so severe as topreclude her awareness of her loss of enjoyment of life.

Dissent: Loss of enjoyment of life should be treated as an objective measure of damages that isseparate from the subjective award of damages for pain and suffering. Thus, the trial court didnot commit error in authorizing a separate award for loss of enjoyment of life even in theabsence of any awareness of the loss on the part of the injured person.

Notes:Non-pecuniary Damages: Compensatory damages intended to compensate the injuredparty for the physical and emotional consequences resulting from the injury, such as pain andsuffering.


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Hoyt v. Jeffers

Michigan Supreme Court30 Mich. 181 (1874)

Parties and Roles: Jeffers (defendant) owned and operated a saw mill. The mill had a chimney

from which sparks were seen to escape regularly. The mill was located near a hotel owned andoperated by Hoyt (plaintiff).

Dispositive and Material Facts: Jeffers (defendant) owned and operated a saw mill. The millhad a chimney from which sparks were seen to escape regularly. The mill was located near ahotel owned and operated by Hoyt (plaintiff). Hoyts hotel caught fire and burned down. No onesaw the fire begin or what caused the fire, but Hoyt believed sparks emanating from Jeffers millthrough its chimney caused the fire. Jeffers had increased the height of the chimney just prior tothe fire, but sparks had been seen to escape both before and after the chimney was changed.

Procedural History: Hoyt filed suit and the matter went to trial. Hoyt was permitted to

introduce evidence showing that sparks had escaped from the chimney on previous occasions,that there had been previous fires due to the sparks, that the hotel had been set on fire previouslydue to the sparks, and that clothes hanging on clothes lines near the mill had often had holesburnt in them or were sooty due to the sparks. Jeffers objected to the entry of the evidence,claiming that the chimney had been substantially changed since the incidents referred to inHoyts evidence. The jury entered a verdict for Hoyt. Jeffers appealed.

Substantive or Procedural Issue: May a jury consider and base its decision upon circumstantialevidence of causation when no direct evidence has been introduced?

Holding: A jury may consider and base its decision upon circumstantial evidence of causation

when no direct evidence has been introduced.

Plaintiff does need to prove conditions at the time of the accident need to be the same as at thetime of the circumstantial evidence.

Reasoning: Yes. A litigant may offer into evidence anything that would tend to prove, or iscalculated to produce a reasonable belief, that the facts are as he says they are. It is the jurysduty to weigh this and all of the evidence when making a decision. In the current matter, theevidence produced by Hoyt is sufficiently calculated to produce a reasonable belief that the firewas caused by the sparks emanating from the mills chimney.

Decision: Accordingly, the judgment of the trial court is affirmed.

Notes: Circumstantial Evidence: Evidence submitted that does not directly establish theexistence or non-existence of a fact, but which leads to an inference that a fact does or does notexist.


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Smith v. Rapid Transit, Inc.

Supreme Judicial Court of Massachusetts58 N.E.2d 754 (Mass. 1945)

Parties and Roles: Smith (plaintiff was injured in an accident caused by a bus of Rapid Transit,

Inc. (Rapid) (defendant).

Dispositive and Material Facts: Smith (plaintiff) was driving her car on Main Street in thetown of Winthrop. She saw a bus driving towards her, which she described as a great big, long,wide affair. Smith, trying to get out of the way of the bus, crashed into a parked car. RapidTransit Inc. (Rapid) (defendant) had been issued a certificate by the city to operate a bus route onMain Street, which was in effect at the time of Smiths accident. Rapids certificate did notpreclude private or chartered buses from operating on Main Street.

Procedural History: Smith brought suit against the defendant claiming that the bus that injuredher belonged to Rapid. Rapid claimed that it could have been a bus operated by someone else

that caused the accident. Rapid was the only public franchise running a bus line on the street atthe time accident occurred. The trial court issued a directed verdict for Rapid. Smith appealed.

Substantive or Procedural Issue: Must a lawsuit be submitted to a jury when the tribunaldetermines that there is insufficient evidence to establish that the defendant caused the injuries ofwhich it is accused?

Holding: The tribunal is not required to submit a lawsuit to the jury when there is insufficientevidence to establish that the defendant caused the injuries of which it is accused.

Reasoning:No. A plaintiff must prove his case by a preponderance of the evidence. The tribunal

must have an actual belief in the truth of what the plaintiff alleges, which is derived from theevidence he introduces. In the current matter, Smith has merely established that it is likely thatthe bus that she saw that evening was owned by Rapid. The evidence she submitted did notpreclude the possibility that a private or chartered bus could have been the one she encountered.Smith did meet her burden of proof.

Decision: Accordingly, the judgment of the trial court is affirmed.

Notes: Preponderance of evidence: An evidentiary standard utilized in a civil trial whereby aplaintiff must prove that the facts stated in a complaint are more likely than not to be true. Thestandard is much less stringent than the beyond a reasonable doubt standard applied in criminal

matters.

A jury question is not presented by mere mathematical probability


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Summers v. Tice

California Supreme Court199 P.2d 1 (Cal. 1948)

Parties and Roles: Summers (plaintiff), Tice (defendant), and Simonson (defendant) went quail

hunting.

Dispositive and Material Facts: Summers (plaintiff), Tice (defendant), and Simonson(defendant) went quail hunting. Summers instructed both Tice and Simonson to use care whenshooting. Summers walked in front of both men in the field. Tice flushed a quail out of thebushes and both he and Simonson shot at the quail in the direction of Summers. They were usingbirdshot. One pellet hit Summers eye and one hit his lip. It is unknown which pellet was shot bywhich man.

Procedural History: Summers brought suit for negligence against both Tice and Simonson. Thetrial court entered judgment for Summers against both Tice and Simonson, and the defendants

appealed.

Substantive or Procedural Issue: Whether, when two defendants both serve as the proximatecause of a plaintiffs injuries but were not acting together, each defendant may be held liable forthe full extent of the damage.

Holding: When two defendants not acting together, either of which could be the proximate causeof a plaintiffs injuries, both may be held liable for the full extent of the damage and the burdenof proof shifts to each defendant to work out a fair apportionment of damages among themselves.

Reasoning: Yes. Both Tice and Simonson may be held fully liable for the extent of Summers

injuries, and should determine a fair apportionment of damages among themselves. When twodefendants not acting together both serve as a proximate cause of a plaintiffs injuries, both maybe held liable for the full extent of the damage and the burden of proof shifts to each defendant towork out a fair apportionment of damages among themselves. When it is impossible to knowwhich defendant was the actual cause of an injury, both must be held liable to protect theplaintiff. Otherwise, the plaintiff risks not receiving full recovery for his injuries. The defendantsare usually in a much better position than the plaintiff to present evidence to exoneratethemselves, and thus should bear the burden of working out a fair apportionment of damages.Both Tice and Simonson negligently fired guns in the direction of Summers, and it is impossiblefor Summers to know who actually hit him and caused his injuries. However, this fact should notprevent Summers from being made whole. The best way to protect Summers is to issue judgmentagainst both Tice and Simonson, and allow the two defendants to present additional exculpatoryevidence for themselves in later proceedings.

Decision: The decision of the trial court holding both Tice and Simonson fully liable forSummers injuries is affirmed.

Notes: Concurrent tortfeasor: One of two or more defendants potentially liable for a single injuryor claim. The court flipped the burden of proof to the defendants.


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Daubert v. Merrell Dow Pharmaceuticals, Inc.

United States Supreme Court509 U.S. 579 (1993)

Parties and Roles: Jason Daubert and Eric Schuller were minors born with birth defects.

Dispositive and Material Facts: In the P.H.

Procedural History: The minors and their parents (Daubert) (plaintiffs) brought suit againstMerrell Dow Pharmaceuticals (Merrell) (defendant), alleging that its product, Bendectin, causedthe defects. Daubert brought forth the testimony of eight scientific experts who had concludedthat Bendectin could cause birth defects. However, the district court granted Merrells motion forsummary judgment and the United States Court of Appeals for the Ninth Circuit affirmedbecause Dauberts experts opinions were based on scientific techniques that were not generallyaccepted in the scientific community and as a result, their testimony was not admissible underFrye v. United States (1923). The United States Supreme Court granted certiorari to determine

the proper standard for admitting expert testimony of scientific knowledge.

Substantive or Procedural Issue: Must an expert witnesss scientific knowledge be generallyaccepted in the relevant field to be admissible?

Holding: Expert testimony from a qualified expert is admissible if it will assist the jury incomprehending the evidence and determining issues of fact.

Reasoning:No.Frye v. United States(1923) held that an expert witnesss scientific knowledgemust be generally accepted in the relevant field to be admissible. However, the Court overrulesFryebecause since-enacted Rule 702 and its legislative history do not mentionFrye or the

generally accepted test. Rule 702 provides that expert testimony is admissible if it will assistthe jury in comprehending the evidence and determining issues of fact. Thus, to determinewhether scientific knowledge is admissible as expert testimony, the court must make apreliminary determination under Rule 104(a) that the reasoning behind the testimony isscientifically valid and can be applied to the facts of the case. Such a determination should bemade by taking into account a number of factors, including, but not limited to the following: thetestability of the theory/methodology; whether the theory has been published and subject to peerreview; any potential rate of error; and finally, whether the knowledge has reached generalacceptance (the test laid out inFrye).

Decision: Because the inquiries of the lower courts focused only on the general acceptance test

fromFrye, the decision of the United States Court of Appeals for the Ninth Circuit is vacatedand the case is remanded for proceedings consistent with this opinion.


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Frye v. United States

United States Court of Appeals for the D.C. Circuit293 F. 1013 (D.C. Cir. 1923

Parties and Roles: Frye (defendant) was charged with second-degree murder. At trial, Fryes

counsel sought to introduce an expert who would testify as to a systolic blood pressuredeception test that the expert performed on Frye.

Dispositive and Material Facts: Frye (defendant) was charged with second-degree murder. Attrial, Fryes counsel sought to introduce an expert who would testify as to a systolic bloodpressure deception test that the expert performed on Frye. The test would allegedly showwhether Frye was lying when he testified because blood pressure allegedly rises when a personlies but stays the same when the person told the truth.

Procedural History: The trial court rejected the testimony of the expert. Frye was convicted andappealed.

Substantive or Procedural Issue: May expert scientific evidence be admitted if the science hasgained general acceptance in the relevant scientific community?

Holding: Expert scientific evidence is only admissible if the science has gained generalacceptance in the relevant scientific community.

Reasoning: Yes. The standard for admission of expert scientific evidence is that evidence isadmissible if the science has gained general acceptance in the relevant scientific community.Here, the systolic blood pressure deception test has not gained such acceptance. Therefore, thetrial court correctly excluded such evidence.

Decision: Judgment affirmed.

Notes: Test for the admissibility of expert testimony which finds expert testimony admissible ifthe scientific method on which the evidence was based was generally accepted in the relevantscientific community. It has been replaced by theDauberttest based on the Supreme Courtsopinion inDaubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Expert scientific evidence is only admissible if the science has gained general acceptance in therelevant scientific community.


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Ybarra v. Spangard

Supreme Court of California154 P.2d 687 (Cal. 1944)

Parties and Roles: Ybarra (plaintiff) consulted Dr. Tilley (defendant) about stomach pains. He

diagnosed him with appendicitis and scheduled an appendectomy to be performed by Dr.Spangard (defendant) at a hospital owned by Dr. Swift (defendant).

Dispositive and Material Facts: Before the operation, Ybarra was placed on the operating tableby Dr. Reser (defendant), an anesthetist. Dr. Reser positioned him against two hard objects thatsupported her neck and shoulders, and administered anesthesia. After the operation, Ybarra wokeup to severe pain in her neck and right shoulder. The pain increased after she left the hospital,resulting in paralysis and loss of function of her right arm. Ybarra was examined by two otherdoctors who stated the cause of her injury as being trauma from pressure or strain on her neckand right arm.

Procedural History: Ybarra brought suit against all doctors involved on a theory of res ipsaloquitur, meaning an inference of negligence on the part of the doctors should arise from the factof her injury. The doctors argued that where there are several defendants or instrumentalitiesinvolved in an injury-producing act, and the injury cannot actually be traced to any onedefendant or instrumentality, the doctrine of res ipsa loquitur does not apply. The trial courtgranted a judgment of nonsuit (directed verdict) for the doctors, and Ybarra appealed.

Substantive or Procedural Issue: Whether an action for damages based on the doctrine of resipsa loquitur may ever be brought when an injury is caused by and not easily traceable tomultiple defendants and instrumentalities.

Holding: Where a plaintiff receives unusual injuries while unconscious and in the course ofmedical treatment, all those defendants who had any control over his body or theinstrumentalities which might have caused the injuries may be held liable in an action based onres ipsa loquitur.

Reasoning: Yes. The judgment of nonsuit is improper. Ybarra should not be precluded frombringing an action for res ipsa loquitur simply because multiple defendants and instrumentalitiesmay have been involved in causing her injuries. Where a plaintiff receives unusual injuries whileunconscious and in the course of medical treatment, all those defendants who had any controlover his body or the instrumentalities which might have caused the injuries may be held liable inan action based on res ipsa loquitur. The number of those in whose care the patient is placedshould not be a factor in determining whether he is entitled to all reasonable opportunities torecover for negligence. As long as the plaintiff can show an injury resulting from some externalforce and occurring while he was unconscious in the hospital, he should be entitled to an actionbased on res ipsa loquitur. An action for res ipsa loquitur states that negligence on the part of adefendant may be presumed from the mere occurrence of an accident if the accident is of a kindwhich ordinarily does not occur in the absence of someones negligence, is caused by an agencyor instrumentality within the exclusive control of the defendant, and is not due to any voluntaryaction on the part of the plaintiff. Before her operation where the injury to her neck and right


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shoulder occurred, Ybarra was made unconscious by Dr. Reser. Thus, any injury occurringduring this time could not be due to any voluntary action on the part of Ybarra. Additionally, theinjury occurred to a healthy part of her body that was not the subject of her scheduled surgery.Thus, this injury is the type that could not normally occur without some type of negligence onthe part of Ybarras doctors or caregivers. The fact that Ybarra was unconscious and thus cannot

absolutely identify the defendant responsible for exclusive control over her body when theinjury occurred should not preclude her from recovering for damages based on res ipsa loquitur.Such a rigid application of the doctrine defies common sense and may prevent deservingplaintiffs from recovering for their injuries. Ybarra should be able to bring an action for res ipsaloquitur, and the judgment of nonsuit in favor of the doctors is improper.

Decision: The judgment of the trial court is reversed and remanded.

Notes: Res Ipsa Loquitur: The mere fact of an occurrence of an accident is evidence ofnegligence.

Unlike Summers v. Tice, there is no proof that any of the specific defendants were negligent, just

that one of them must have been. Res Ipsa Loquitur kicks in, and


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Dillon v. Twin State Gas & Electric Co.

New Hampshire Supreme Court163 A. 111 (1932)

Parties and Roles: Dillon (plaintiff), Twin State (defendant)

Dispositive and Material Facts: A 14-year-old boy and his friends often played on a publicbridge, near which there were electrical wires that were owned and maintained by Twin StateGas & Electric Co. (Twin State) (defendant). On one afternoon, the boy lost his balance on thebridge and grabbed an electrical wire to stop himself from falling. The boy was killed byelectrocution.

Procedural History: Dillon (plaintiff) brought suit for wrongful death on the boys behalf. TwinState moved for a directed verdict. The trial court denied the motion. Twin State appealed to theNew Hampshire Supreme Court.

Substantive or Procedural Issue: Can one be held liable for negligence when it is possible thatthe decedent would have died from a different cause?

Holding: One can be held liable for negligence when it is possible that the decedent would havedied from a different cause.

Reasoning: Yes. Damages must be established in order to maintain an action in negligence.Damages in a wrongful death claim are provided by statute and are limited to those damagesonly. Those statutory damages include pecuniary value of life and earning capacity. In thecurrent matter, Twin State would be found liable if Dillon could establish damages. It wascertain that the boy was going to fall from the bridge. It is possible that he could have been

grievously injured and, thus, there would have been no possible future earning capacity. In sucha case, there would be no damages and Twin State would not be held liable. However, it is alsopossible that he could have died or suffered only minor injuries from the fall. Either of the latterscenarios would permit Dillon to recover damages. Therefore, different conclusions could havebeen drawn from the evidence. It was proper for the trial court to deny Twin States motion for adirected verdict.

Decision: Accordingly, the ruling of the trial court is affirmed.

Notes: Wrongful Death: A civil action, permitted through statute, by which one may bring anegligence action on behalf of another who has died as a result of the alleged negligence.


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Kingston v. Chicago & N.W. Ry. Wisconsin

Supreme Court211 N.W. 913 (Wis. 1927)

Parties and Roles: Kingston (plaintiff), railroad (defendant)

Dispositive and Material Facts: Kingston (plaintiff) owned a piece of property. A fire was startedfrom sparks emitted from a locomotive owned by Chicago & N.W. Ry. (railroad) (defendant). Thisfire was northeast of Kingstons property. At the same time, another fire was started northwest ofKingstons property. It is unknown who or what started this fire. Both fires spread, and merged intoone fire north of Kingstons property. They approached and eventually destroyed the property.

Procedural History: Kingston brought suit against the railroad for negligent destruction of property.The trial court held the railroad responsible for the full amount of damages and entered judgment forKingston. The railroad appealed.

Substantive or Procedural Issue: Whether, when two or more human entities both proximately

caused injury to a plaintiff, the plaintiff may recover for the full amount of the injury from either one.

Holding: When two or more human entities both proximately cause injury to a plaintiff, and onlyone is identified, the plaintiff may recover the full amount of damages suffered from the one knownwrongdoer.

Reasoning: Yes. The northeast fire was started by the railroad, and this is enough to hold that entityfully liable for the entire amount of Kingstons damages. When two or more human entities bothproximately cause injury to a plaintiff, and only one is identified, the plaintiff may recover the fullamount of damages suffered from the one known wrongdoer. The known wrongdoer may not be heldfully liable, however, when the full extent of injury was also proximately caused by an act of God

or natural disaster. In the case ofthe two fires which destroyed Kingstons property, one wasconclusively started by the railroad. There is no evidence suggesting that the other fire could havebeen started by anything other than a human. No weather conditions or acts of God were reported.Thus, it can be assumed with moral certainty that the property damage was caused by twotortfeasors; one known and one unknown. When two torteafsors are both shown to be the proximatecause of an injury, either may be held liable for the full amount of the injury. Thus, the railroad mayappropriately be held liable for all of Kingstons property damage. The railroad may have a defenseif it shows that its own actions were not the proximate cause of the damage. However, this burden ofproof rests entirely on the railroad. The railroad has not provided sufficient evidence to meet thisburden. The northeast fire was started by the railroad and was a proximate cause of Kingstonsdamages.

Decision: The railroad is fully liable for all damages, and the decision of the trial court is affirmed.

Notes: Joint and Several Liability: Where multiple acts of negligence combine to directly cause asingle harm, each tortfeasor may be held liable for up to the full amount of the damage, but thatamount may be reduced proportionately by the other tortfeasor(s) relative liability.

Kingston is a minority holding, Substantial Cause Test is what the majority of jurisdictions would do.


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Brown v. Kendall

Supreme Court of Massachusetts 60 Mass. 292 (1850)

Parties and Roles: Brown (plaintiff), Kendall (defendant)

Dispositive and Material Facts: Two dogs, owned by Brown (plaintiff) and Kendall(defendant), were fighting in front of their masters. Kendall took a large stick and began beatingthe dogs for the purpose of separating them. Brown was standing behind Kendall watching.Kendall took a step back and raised the stick over his head with the intent to strike the dogs. Indoing so, Kendall struck Brown in the eye and caused him severe injury.

Procedural History: Brown sued Kendall in an action of trespass for an assault and battery.

Substantive or Procedural Issue: Whether a person is liable for injuries he causes to another ifhis intent is lawful and he is not at fault.

Holding: A person will be liable for injuries caused by a trespass only if his intent is unlawful,or he is at fault.

Reasoning:No. Kendall is not liable for Browns injuries because he did not act with unlawfulintent, and was not at fault. A person will be liable for injuries caused by a trespass only if hisintent is unlawful, or he is at fault. If the injury is unavoidable and the person acting does not actin an unlawful manner, there is no liability for injuries occurring incidentally to the action. If theperson acting is using ordinary care, he cannot be held liable for injuries caused by his actions.

Kendalls actions, in attempting to part fighting dogs, one of which he owned, was lawful. If, inperforming this act, he used ordinary care in attempting to avoid injury to others, he cannot beheld liable for Browns injuries. The burden of proof of showing that Kendall did not useordinary care is on Brown.

Decision: This is a question that must ultimately be resolved by a jury, and a new trial is ordered.

Notes: comparative negligence, not contributory negligence. In contributory negligencejurisdiction the defendant's charge of contributory negligence shifts burden to prove negligenceto the defendant.


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United States v. Carroll Towing Co.

United States Court of Appeals for the Second Circuit159 F.2d 169 (2d Cir. 1947)

Parties and Roles: Connors (plaintiff), United States (plaintiff), Grace (defendant), Carroll(defendant).

Dispositive and Material Facts: Connors Company (Connors) (plaintiff) owned a barge called theAnna C. The barge carried a load of flour owned by the United States (plaintiff). Connors hiredCarroll Towing Co. (Carroll) (defendant) to tow the barge with its tug boat. Carroll chartered its tugboat to Grace Line (Grace) (defendant), another tug company. On January 4, 1944, Connors bargewas docked at Pier 51 on the North River. Connors employee who was tasked with watching thebarge had gone ashore. Carrolls tug boat attempted a tricky move of the Anna C to another dock, butthis maneuver failed and ultimately set loose all other boats at the dock. The boats floated down theriver and the Anna C sank.

Procedural History: Connors brought suit against Carroll and Grace for damages from the loss of

the boat, and the United States brought suit against Carroll for the loss of the flour. At trial, Carrolland Grace defended on the ground that Connors was contributorily negligent because its employeewas absent from the barge at the time of the incident. The trial judge found that Carroll, but notGrace was responsible for one-half the damage to the Anna C and for the entire loss of the flour. Theparties appealed.

Substantive or Procedural Issue: Whether liability for failure to take precautions to avoid harmdepends upon the probability of injury and the gravity of any resulting injury.

Holding: Liability for negligence due to failure to take safety precautions exists if the burden oftaking such precautions is less than the probability of injury multiplied by the gravity of any resulting

injury, symbolized by B < PL = negligence liability.

Reasoning: Yes. Connors is contributorily negligent for its failure to take safety precautions byhaving an employee aboard the barge during the daylight hours. Liability for negligence due tofailure to take safety precautions exists if the burden of taking such precautions is less than theprobability of injury multiplied by the gravity of any resulting injury. This formula may besymbolized mathematically by B < PL = negligence liability, where B is the burden of adequateprecautions, P is the probability of injury, and L is the injury itself. The burden of takingprecautions for Connors was nothing more than paying its employee to remain on the barge duringnormal working hours, when the incident occurred. If he had been on board, he could have called forhelp from the tug boats when the barge broke free and possibly avoided the damage. The likelihoodof a barge breaking free is relatively high, especially in instances of severe weather. This likelihood

is increased when the employee tasked with manning the barge is absent. The potential injuryresulting from a barge breaking free is quite significant and may, as with the Anna C, result in totalloss of the barge. Thus, compared with the relatively high risk of injury multiplied by the gravity ofthe injury, the burden on Connors to take precautions is relatively low.

Decision: Connors is thus contributorily negligent for its failure to take safety precautions by havingan employee aboard the barge during the daylight working hours.


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Washington v. Louisiana Power and Light Co.

Louisiana Supreme Court555 So. 2d 1350

Parties and Roles: Washington (plaintiff), LP&L (defendant)

Dispositive and Material Facts: A man was using his CB radio in his back yard when theantenna from the radio came into contact with an electrical line owned and operated byLouisiana Power and Light Co. (LP & L) (defendant). The line was located about 21 and a halffeet off the ground. The man was electrocuted and died as a result. The man had previously beenelectrocuted in the same manner, but only suffered burns on his hands. The man had then askedLP & L to move the line. LP & L said they would do so if the man would pay for the expense.

Procedural History: The mans children, including Washington (Washington and his siblings)(plaintiff), sued LP & L for wrongful death. The matter went to trial. The jury awarded damagesto Washington and his siblings. LP & L appealed. The appeals court reversed the trial court,

finding that LP & L had not breached any duty owed to the man. Washington and his siblingsappealed to the Louisiana Supreme Court.

Substantive or Procedural Issue: Does an electric company owe a duty to ensure that thepublic will not come into contact with every electrical line?

Holding: An electric company does not owe a duty to ensure that the public will not come intocontact with every electrical line.

Reasoning:No. In order to establish that an electric company is negligent, it must be establishedthat there existed an unreasonable risk of harm. The following three considerations must be

balanced against one another: (1) how possible it was for the electricity to escape, (2) when itdoes, the gravity of the injury that results, and (3) the burden the electric company would haveborn in keeping the accident from happening. In the current matter, it is not clear that it was verypossible for the electricity to escape. There was no reason to believe that the man would attemptto move the antenna near the power line and his prior accident would lead one to reasonablyexpect that he would stay away from the line. It is clear, however, that the gravity of possibleinjury from contact with an electrical line is very great. Additionally, the burden to LP & L ofmoving every line that had the remotest possibility of coming into contact with an antenna wouldbe very great. Though the gravity of harm is great, the other considerations weigh in favor of LP& L and thus LP & L did not breach its duty.

Decision: Accordingly, the decision of the appellate court is affirmed.

Notes: Duty of Care: An obligation to act in a reasonably careful manner in order to preventharm to others.


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Weirum v. RKO General, Inc.

Supreme Court of California539 P.2d 36 (1975)

Parties and Roles: Weirum (plaintiff), RKO (defendant)

Dispositive and Material Facts: KHJ radio station (KHJ), owned by RKO General, Inc. (RKO)(defendant), conducted a contest one summer where listeners were invited to follow and locateone of KHJs disc jockeys, Steele, as he traveled throughout Los Angeles. In order to claim aprize, the listener had to be the first to locate Steele when he stopped at a location. KHJ had alarge teenage audience. Two teenage listeners, Sentner and Baime, were participating in thecontest one day and both following Steele. They both were driving erratically as they attemptedto gain the closest position to Steeles vehicle. One of the two teenagers, it is unknown which,forced Mr. Weirums carfrom the freeway, causing his death.

Procedural History: Mrs. Weirum and her children (plaintiffs) filed a wrongful death action

against Sentner, Baime, RKO, and the manufacturer of Mr. Weirums car. Sentner settled priorto trial. After a trial on the merits, the jury returned a verdict against Baime and KHJ and foundin favor of the manufacturer of Mr. Weirums car. KHJ filed a motion notwithstanding theverdict. That motion was denied. KHJ appealed.

Substantive or Procedural Issue: Does one breach his duty of ordinary care when his actionsforeseeably cause a third party to act negligently, which results in unreasonable harm?

Holding: One breaches his duty of ordinary care when his actions foreseeably cause a third partyto act negligently, which results in unreasonable harm.

Reasoning: Yes. All persons are required to act with ordinary care to prevent injury as a result oftheir conduct. Whether or not one can be held liable for breaching this duty depends upon theforeseeability of the harm. Harm may be foreseeable even if it has not previously occurred as aresult of particular conduct. That a third party may act negligently as a result of ones actions isforeseeable and may be the basis of liability. In order to establish liability, the harm that resultsmust be unreasonable harm. Unreasonable harm exists when the gravity and likelihood of harmoutweigh any utility that may be gained from the conduct. In the current matter, KHJ catered toteenagers and ran their contest during summer vacation when teenagers were bored and hadplenty of free time. It was foreseeable that teenagers in this position would act in haste to win thecontest and disregard highway safety while doing so. The gravity and likelihood of harm in thissituation are great. They cannot be outweighed by the entertainment or possible rewards resultingfrom such a contest. Therefore, KHJ has breached its duty of ordinary care.

Decision: Accordingly, the judgment against KHJ and denying its motion are affirmed.

Notes: Ordinary care: Also known as reasonable care, a duty requiring one to act as would areasonable man under all the circumstances.


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Martin v. Herzog

Court of Appeals of New York126 N.E. 814 (N.Y. 1920)

Parties and Roles: Decedent of Martin (plaintiff), Herzog (defendant)

Dispositive and Material Facts: The decedent of Martin (plaintiff) was killed when a buggy hewas driving collided with an automobile driven by Herzog (defendant). A statute required allbuggies to be operated with headlights at night. At the time of the accident, Martins decedentwas violating this statute by not driving a buggy with headlights.

Procedural History: Martin brought suit against Herzog for negligence. Herzog countered bystating that Martins decedent was liable for contributory negligence based on his violation of theheadlight statute. At trial, the jury held for Martin and found Herzog liable for negligence. Theappellate court reversed, and Martin appealed.

Substantive or Procedural Issue: Whether the failure to perform an act required by statuteconstitutes negligence per se.

Holding: An omission, or failure to perform an act required by statute, constitutes negligence perse.

Reasoning: Yes. Herzog is not liable for damages because Martins decedent engaged incontributory negligence by violating the headlight statute. An omission, or failure to perform anact required by statute, constitutes negligence per se. When a statute requires an affirmativeaction, the failure to perform that action constitutes a violation of a legal duty. It is negligenceper se. The violator may be liable for damages, but only if the omission is the proximate cause of

the injury. Thus, with the headlight statute, Martins decedent will only be liable for contributorynegligence for failing to use headlights if that omission was the proximate cause of the disaster.If Martins decedent had been using the headlights as required, Herzog likely would have seenhis buggy in the night and would have been able to avoid the fatal accident. Thus, the decedentsfailure to use lights constitutes negligence per se.It does not matter that Martins decedent is notthe defendant. Violating a statute may be contributory negligence just as it may be negligence.Herzog is not liable for damages because Martins decedent engaged in contributory negligenceby violating the headlight statute.

Decision: The decision of the appellate court is affirmed.

Notes:Negligence per se: An individuals action is negligent simply because it violated a statuteor regulation.


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Torts Briefs first year

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Transcript of Torts Briefs first year