BUS624Chapter7.docx

Course Text:
Langvardt, A. W., Barnes, A. J., Prenkert, J. D., McCrory, M. A., & Perry, J. E. (2019). 

Business law: The ethical, global, and e-commerce environment

(17th ed.). Retrieved from https://www.vitalsource.com 

Chapter 7

NEGLIGENCE AND STRICT LIABILITY

TNT Well Service Inc. hired Melvin Clyde as a rig operator. Clyde’s duties called for him to travel to various well sites within approximately 100 miles of Gillette, Wyoming. TNT provided Clyde with a company-owned pickup, which he used for work-related purposes and for travel to and from his home. Although TNT had a general policy of drug-testing prospective employees, TNT did not drug-test Clyde before hiring him and furnishing him with the pickup. Neither did TNT look into whether Clyde had any history of impaired driving or illegal drug use. Had TNT done such checking, it would have discovered that during roughly the preceding eight years, Clyde had been convicted twice for driving under the influence of alcohol and once for possession of a controlled substance.
Late one afternoon approximately a year after he began working for TNT, Clyde was driving the TNT pickup when it crossed the highway’s center line and collided head-on with a tractor-trailer driven by Rodney Shafer (the tractor-trailer’s owner). Clyde died in the accident. A post-accident blood test revealed the presence of controlled substances in his blood. Shafer sustained serious injuries in the collision, and his tractor-trailer was damaged beyond repair.
Shafer and his wife sued TNT in a Wyoming court. In seeking to have TNT held liable, the Shafers were unable to rely on a frequently involved legal basis for imposing liability on employers. Under the doctrine of respondeat superior, an employer is liable for its employee’s tort if the tort was committed within the scope of employment. Respondeat superior would not apply in this case, however, for either of two reasons: first, evidence offered by TNT indicated that Clyde had been fired from his job earlier in the afternoon of the accident (meaning that he would not have been TNT’s employee at the time of the accident); second, even if Clyde was still TNT’s employee at the time of the accident, he was outside the scope of employment because he was driving in an area that was outside TNT’s business territory. (In this chapter, you will read other cases in which the respondeat superior theory is applicable.)
However, respondeat superior’s inapplicability would not necessarily bar the Shafers from succeeding in their case against TNT. Whereas respondeat superior provides a basis for an employer to be held liable for an employee’s tort, an employer may sometimes be held liable for the employer’s own tort. Look back over the facts set forth above and consider these questions as you study Chapter 7:
· Are there things that TNT failed to do, but probably should have done? If so, what? Why those things?
· Are there things that TNT did, but probably should not have done? If so, what? Why those things?
· How do the things you have identified relate to the above-described accident and to the Shafers’ attempt to have TNT held legally liable?
· On what legal basis would the Shafers be relying in their lawsuit against TNT?
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 LEARNING OBJECTIVES
After studying this chapter, you should be able to:

7-1
 Identify the elements necessary for a valid negligence claim to exist (duty, breach of duty, and causation of injury).

7-2
 Explain what the reasonable care standard contemplates.

7-3
 Explain the role of foreseeability in determining whether a defendant owed the plaintiff a duty of reasonable care.

7-4
 Explain what goes into a determination of whether a defendant breached the duty of reasonable care.

7-5
 Explain the differences among the respective duties of care owed by owners or possessors of property to invitees, licensees, and trespassers.

7-6
 Explain what the doctrine of negligence per se does and when it applies.

7-7
 Identify the types of injuries or harms for which a plaintiff may recover compensatory damages in a negligence case.

7-8
 Explain the difference between actual cause and proximate cause.

7-9
 Explain what an intervening cause is and what effect it produces.

7-10
 Explain the difference between traditional contributory negligence and the comparative negligence doctrine now followed by almost all states.

7-11
 Explain the difference in operation between pure comparative negligence and mixed comparative negligence.

7-12
 Identify circumstances in which strict liability principles, rather than those of negligence, control a case.
THE INDUSTRIAL REVOLUTION THAT changed the face of 19th-century America created serious strains on tort law. Railroads, factories, machinery, and new technologies meant increased injuries to persons and harm to their property. These injuries did not fit within the intentional torts framework because most were unintended. In response, courts created the law of 
negligence
.
Negligence law initially was not kind to injured plaintiffs. One reason was the fear that if infant industries were held responsible for all the harms they caused, the country’s industrial development would be seriously restricted. As a viable industrial economy emerged in the 20th century, this concern began to fade. Also fading over the same period was the 19th-century belief that there should be no tort liability without genuine fault on the defendant’s part. More and more, the injuries addressed by tort law have come to be seen as the inevitable consequences of life in a high-speed, technologically advanced society. Although 21st-century negligence rules have not eliminated the fault feature, they sometimes seem consistent with a goal of imposing tort liability on the party better positioned to bear the financial costs of these consequences. That party often is the defendant. However, it is important to remember that even though negligence law may seem to have become more pro-plaintiff in recent decades, statistics indicate that defendants win negligence cases at least as often as plaintiffs do.
Because most tort cases that do not involve intentional torts are governed by the law of negligence, the bulk of this chapter will deal with negligence principles. In a narrow range of cases, however, courts dispense with the fault requirement of negligence and impose 
strict liability
 on defendants. Strict liability’s more limited application will be addressed during the latter part of this chapter. The chapter will conclude with discussion of recent decades’ tort reform movement, whose primary aims are to reduce plaintiffs’ ability to prevail in tort cases and limit the amounts of damages they may receive when they win such cases.

Negligence

Identify the elements necessary for a valid negligence claim to exist (duty, breach of duty, and causation of injury).
The previous chapter characterized negligence as conduct that falls below the level reasonably necessary to protect others against significant risks of harm. The elements of a negligence claim are (1) that the defendant owed a duty of care to the plaintiff, (2) that the defendant committed a breach of this duty, and (3) that this breach was the actual and proximate cause of injury experienced by the plaintiff. In order to win a negligence case, the plaintiff must prove each of these elements, which will be examined in the following pages. Later in the chapter, 
defenses
 to negligence liability will be considered.
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Duty of Reasonable Care

Duty and Breach of Duty

Explain what the reasonable care standard contemplates.
Negligence law rests on the premise that members of society normally should behave in ways that avoid the creation of unreasonable risks of harm to others. As a general rule, therefore, negligence law contemplates that each person must act as a reasonable person of ordinary prudence would have acted under the same or similar circumstances. This standard for assessing conduct is often called either the “reasonable person” test or the “reasonable care” standard. In most cases, the duty to exercise reasonable care serves as the relevant duty for purposes of a negligence claim’s first element. The second element—breach of duty—requires the plaintiff to establish that the defendant failed to act as a reasonable person would have acted. Negligence law’s focus on reasonableness of behavior leads to a broad range of applications in everyday personal life (e.g., a person’s negligent driving of a car) and in business and professional contexts (e.g., an employer’s negligent hiring of a certain employee or an accountant’s, attorney’s, or physician’s negligent performance of professional obligations).
Recent years have witnessed attempts to extend negligence principles to contexts not previously explored in litigation. For instance, numerous former National Football League (NFL) players sued the NFL for alleged failures to disclose the full extent of the long-term health risks posed by concussions (particularly of the repeated variety) and for alleged failures to develop appropriate protocols that would guard against players being put back on the field too soon after a head injury. Negligence was among the legal theories being invoked by the plaintiffs. The players and the NFL eventually agreed to a settlement in which the NFL would, among other things, set up a very large fund against which the ex-players could make claims.

Was the Duty Owed?

Explain the role of foreseeability in determining whether a defendant owed the plaintiff a duty of reasonable care.
Of course, there could not have been a breach of duty if the defendant did not owe the plaintiff a duty in the first place. It therefore becomes important, before we look further at how the reasonable person test is applied, to consider the ways in which courts determine whether the defendant owed the plaintiff a duty of reasonable care.
Courts typically hold that the defendant owed the plaintiff a duty of reasonable care if the plaintiff was among those who would foreseeably be at risk of harm stemming from the defendant’s activities or conduct, or if a special relationship logically calling for such a duty existed between the parties. Most courts today broadly define the group of foreseeable “victims” of a defendant’s activities or conduct. As a result, a duty of reasonable care is held to run from the defendant to the plaintiff in a high percentage of negligence cases—meaning that the outcome of the case will hinge on whether the defendant breached the duty or on whether the requisite causation link between the defendant’s breach and the plaintiff’s injury is established.
In Kesner v. Superior Court, which follows, the court considers whether to recognize a duty of reasonable care on the part of employers and property owners to guard against so-called take-home exposure to asbestos.

Kesner v. Superior Court
384 P.3d 283 (Cal. Sup. Ct. 2016)

Mesothelioma is a cancer of the chest and abdomen closely associated with asbestos exposure. Asbestos can cause disease when an individual inhales or ingests microscopic asbestos fibers that have been released into the air. Some forms of asbestos release such fibers upon slight contact. Other forms of asbestos release fibers if cut, sawed, or broken.

After being diagnosed with mesothelioma in February 2011, Johnny Kesner filed a negligence lawsuit against a number of defendants he believed were responsible for exposing him to asbestos and causing his illness. These defendants included Pneumo Abex LLC (Abex), the employer of Johnny’s uncle, George Kesner, for many years. While working at an Abex plant, George was exposed to asbestos fibers that were released in Abex’s manufacturing of brake shoes. From 1973 to 1979, Johnny spent an average of three nights per week at his uncle’s home, where he slept in general proximity to George. Johnny and George would sometimes roughhouse with each other while George was wearing his work clothes. Johnny alleged that his exposure to asbestos dust from the Abex plant, carried home on his uncle’s clothes, caused him to contract mesothelioma. After Johnny died in December 2014, a relative (Cecilia Kesner) litigated the case as his successor in interest. Lynne Haver died in April 2009 after having been diagnosed with mesothelioma a year earlier. Her children, referred to here as “the Havers,” filed a negligence-based wrongful death action against BNSF Railway Co. They alleged that Lynne’s exposure to asbestos by way of her former husband, Mike Haver, caused her fatal bout with mesothelioma. Mike was employed by the Atchison, Topeka, and Santa Fe Railway (ATSF), a predecessor of BNSF, from 1972 through 1974. While working for ATSF, Mike was exposed to asbestos from pipe insulation and other products. The Havers allege that Mike carried home these asbestos fibers on his body and clothing and that Lynne was exposed through contact with him and his clothing, tools, and vehicle after she began living with him in 1973.

In their negligence cases, Kesner and the Havers contended that Abex and BNSF (through its predecessor, ATSF), created a foreseeable risk of harm to the household members of their employees by failing to exercise reasonable care in connection with their use of their asbestos-containing materials. Neither case reached a jury, however. A California trial court dismissed Kesner’s case after holding that Abex did not owe Johnny a duty to take steps to prevent his exposure to asbestos. On appeal, however, the California Court of Appeal ruled that a duty of reasonable care existed. Therefore, that court reversed the lower court’s decision. Abex then appealed to the Supreme Court of California.

In the Havers’ case, a California court dismissed the plaintiffs’ claim on the same ground the trial court had used in Kesner’s case. On appeal, the California Court of Appeal upheld the dismissal, reasoning that premises owners owe no duty of care to protect household members against take-home exposure to asbestos. That court distinguished the Court of Appeal’s decision in Kesner on the ground that Kesner’s claim alleged negligence in the manufacturing of brake pads, whereas the Havers’ negligence claim rested on a theory of premises liability. The Havers appealed to the Supreme Court of California, which consolidated the Havers’ case with Kesner’s case for decision purposes.

Liu, Judge

These two cases ask whether employers or landowners owe a duty of care to prevent secondary exposure to asbestos. Such exposure, sometimes called take-home exposure, occurs when a worker who is directly exposed to a toxin carries it home on his or her person or clothing, and a household member is in turn exposed through physical proximity or contact with that worker or the worker’s clothing. Plaintiffs in these actions for personal injury and wrongful death allege that take-home exposure to asbestos was a contributing cause to the deaths of Lynne Haver and Johnny Kesner, and that the employers of Lynne’s former husband and Johnny’s uncle had a duty to prevent this exposure. Defendants argue that users of asbestos have no duty, either as employers or as premises owners, to prevent nonemployees who have never visited their facilities from being exposed to asbestos used in defendants’ business enterprises.
A plaintiff in any negligence suit must demonstrate a legal duty to use due care, a breach of such legal duty, and that the breach is the proximate cause of the resulting injury. Here we are tasked solely with deciding whether Abex or BNSF had a legal duty to prevent the injuries alleged by Kesner and the Havers. [A California statute] establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others. Civil Code §1714(a) provides in relevant part: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” The conclusion that a defendant did not have a duty constitutes a determination by the court that public policy concerns outweigh, for a particular category of cases, the broad principle enacted by the Legislature that one’s failure to exercise ordinary care incurs liability for all the harms that result. In the absence of a statutory provision establishing an exception to the general rule of Civil Code § 1714(a), courts should create one only where “clearly supported by public policy.” Rowland v. Christian, 443 P.2d 561 (Cal. Sup. Ct. 1968).
In determining whether policy considerations weigh in favor of such an exception, we [said in Rowland that the factors to consider] are “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, [and other considerations of a public policy nature].” By making exceptions to [Civil Code § 1714’s] general duty of ordinary care only when foreseeability and policy considerations justify a categorical no-duty rule, we preserve the crucial distinction between a determination that the defendant owed the plaintiff no duty of ordinary care, which is for the court to make, and a determination that the defendant did not breach the duty of ordinary care, which in a jury trial is for the jury to make.
[O]ur task is not to decide whether Kesner or the Havers have proven that asbestos from Abex or BNSF actually and foreseeably reached Johnny Kesner or Lynne Haver, or whether Abex’s or BNSF’s asbestos contributed to the disease that Johnny or Lynne suffered, or whether Abex or BNSF had adequate procedures in place to prevent take-home exposure. Our task is to determine whether household exposure is categorically unforeseeable and, if not, whether allowing the possibility of liability would result in such significant social burdens that the law should not recognize such claims.
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The most important factor to consider in determining whether to create an exception to the general duty to exercise ordinary care articulated by § 1714 is whether the injury in question was foreseeable. With respect to this factor, we conclude that it was foreseeable that people who work with or around asbestos may carry asbestos fibers home with them and expose members of their household. This factor weighs in favor of the existence of a duty. “[A]s to foreseeability, . . . the court’s task in determining duty is not to decide whether a particularplaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed.” [Citation omitted.]
A reasonably thoughtful person making industrial use of asbestos during the time periods at issue in this case (i.e., the mid-1970s) would take into account the possibility that asbestos fibers could become attached to an employee’s clothing or person, travel to that employee’s home, and thereby reach other persons who lived in the home. It is a matter of common experience and knowledge that dust or other substances may be carried from place to place on one’s clothing or person, as anyone who has cleaned an attic or spent time in a smoky room can attest. Defendants would not need to know the precise manner [in which] exposure occurred (i.e., that Lynne laundered Mike’s clothing or that George roughhoused with his nephew Johnny) in order to recognize the general risk posed by workers leaving an area with airborne dust-based toxins and then coming into contact with members of their households.
Moreover, at the time George Kesner and Mike Haver worked for defendants, broadly applicable regulations identified the potential health risks of asbestos traveling outside a work site. In June 1972, the federal Occupational Safety and Health Administration (OSHA) published its first permanent regulations for employers using asbestos. In addition to setting a ceiling for employee exposure to airborne asbestos, the OSHA Standard required employers to take precautions for employees and others who may be exposed to concentrations of airborne asbestos above that ceiling. Some precautions contemplated asbestos traveling within a work site. For example, the regulations required employers to post signs in all areas of high airborne asbestos concentrations “at such a distance from such a location so that an employee may read the signs and take necessary protective steps before entering the area marked by the signs.” Others protected nonemployees from asbestos traveling outside of a work site on employees’ clothing. Under the regulations, employers were required to provide their asbestos-exposed employees with special clothing and changing rooms. [Citations of relevant federal regulations omitted.]
Well before OSHA issued the 1972 standard, the federal government and industrial hygienists recommended that employers take measures to prevent employees who worked with toxins from contaminating their families by changing and showering before leaving the workplace. It was also known that take-home exposure to asbestos could cause serious injury; as early as 1965, scholarly journals documented fatal cases of mesothelioma where patients’ only exposure was through living with an asbestos worker. The risks of exposure that prompted OSHA to require precautions against take-home exposure were sufficient to provide notice of the reasonable foreseeability of such harm.
The second Rowland factor, the degree of certainty that the plaintiff suffered injury, has been noted primarily, if not exclusively, when the only claimed injury is an intangible harm such as emotional distress. Courts have occasionally included under this factor concerns about the existence of a remedy. Cecelia Kesner and the Havers allege that Johnny Kesner and Lynne Haver died as a result of mesothelioma; their injuries are certain and compensable under the law.
The third Rowland factor, the closeness of the connection between the defendant’s conduct and the injury suffered, is strongly related to the question of foreseeability itself. BNSF argues that the connection between defendants’ conduct and plaintiffs’ illness is “indirect and attenuated” because it “relies on the intervening acts of a defendant’s employee to transmit the alleged asbestos risk to the plaintiff.” The “closeness” factor, BNSF argues, “weighs strongly against the imposition of a legal duty” [quoting BNSF’s brief].
“It is well established . . . that one’s general duty to exercise due care includes the duty not to place another person in a situation in which the other person is exposed to an unreasonable risk of harm through the reasonably foreseeable conduct (including the reasonably foreseeable negligent conduct) of a third person.” [Citation omitted.] In determining whether one has a duty to prevent injury that is the result of third party conduct, the touchstone of the analysis is the foreseeability of that intervening conduct. The relevant intervening conduct here—that workers returned home at the end of the day and, without adequate precautions, would bring asbestos dust home—is entirely foreseeable. An intervening third party’s actions that are “themselves derivative of defendants’ allegedly negligent conduct . . . do not diminish the closeness of the connection between defendants’ conduct and plaintiff’s injury for purposes of determining the existence of a duty of care.” [Citation omitted.] An employee’s role as a vector in bringing asbestos fibers into his or her home is derived from the employer’s or property owner’s failure to control or limit exposure in the workplace. The foreseeability factors, therefore, weigh in favor of finding a duty here.
Foreseeability alone is not sufficient to create an independent tort duty. The existence of a duty [also reflects] a weighing of
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policy considerations for and against imposition of liability. “A duty of care will not be held to exist even as to foreseeable injuries . . . where the social utility of the activity concerned is so great, and avoidance of the injuries so burdensome to society, as to outweigh the compensatory and cost-internalization values of negligence liability.” [Citation omitted.] [In weighing public policy considerations, we note that] commercial users of asbestos benefitted financially from their use of asbestos and had greater information and control over the hazard than employees’ households. Negligence in their use of asbestos is morally blameworthy, and this factor weighs in favor of finding a duty.
[T]he main policy consideration urged by Abex and BNSF [is that allowing] tort liability for take-home asbestos exposure would dramatically increase the [already significant] volume of asbestos litigation, undermine its integrity, and create enormous costs for the courts and community. In evaluating defendants’ concerns, we begin by observing that the relevant burden in the analysis of duty is not the cost to the defendants of compensating individuals for past negligence. To the extent defendants argue that the costs of paying compensation for injuries that a jury finds they have actually caused would be so great that we should find no duty to prevent those injuries, the answer is that shielding tortfeasors from the full magnitude of their liability for past wrongs is not a proper consideration in determining the existence of a duty. Rather, our duty analysis is forward-looking, and the most relevant burden is the cost to the defendants of upholding, not violating, the duty of ordinary care. Neither the Court of Appeal in Haver nor defendants suggest that preventing Lynne’s or Johnny’s exposure to asbestos was unreasonably expensive to defendants or that the costs would have impeded defendants’ ability to carry out an activity with significant social utility. In general, preventing injuries to workers’ household members due to asbestos exposure does not impose a greater burden than preventing exposure and injury to the workers themselves. Defendants do not claim that precautions to prevent transmission via employees to off-site individuals—such as changing rooms, showers, separate lockers, and on-site laundry—would unreasonably interfere with business operations.
Defendants further argue that a finding of duty here will result in increased insurance costs and tort damages, and ultimately impose a burden on consumers and the community. But the tort system contemplates that the cost of an injury, instead of amounting to a “needless” and “overwhelming misfortune to the person injured,” will instead “be insured by the [defendant] and distributed among the public as a cost of doing business.” [Citation omitted.] Such allocation of costs serves to ensure that those best situated to prevent such injuries are incentivized to do so. Employers and premises owners are generally better positioned than their employees or members of their employees’ households to know of the dangers of asbestos and its transmission pathways, and to take reasonable precautions to avoid injuries that may result from on-site and take-home exposure.
Defendants’ most forceful contention is that a finding of duty in these cases would open the door to an “enormous pool of potential plaintiffs” [quoting BNSF’s brief]. Once we accept the principle of liability for asbestos exposure by means of employees carrying fibers outside the workplace, they argue, we invite claims from anyone who may have had contact with an asbestos worker, including “innumerable relatives, friends, acquaintances, [and] service providers,” as well as “babysitters, neighbors, . . . carpool partners, fellow commuters on public transportation, and laundry workers” [quoting BNSF’s brief]. Although defendants raise legitimate concerns regarding the unmanageability of claims premised upon incidental exposure, as in a restaurant or city bus, these concerns do not clearly justify a categorical rule against liability for foreseeable take-home exposure. Instead, the concerns point to the need for a limitation on the scope of the duty here.
We hold that an employer’s or property owner’s duty to prevent take-home exposure extends only to members of a worker’s household, i.e., persons who live with the worker and are thus foreseeably in close and sustained contact with the worker over a significant period of time. To be sure, there are other persons who may have reason to believe they were exposed to significant quantities of asbestos by repeatedly spending time in an enclosed space with an asbestos worker—for example, a regular carpool companion. But any duty rule will necessarily exclude some individuals who, as a causal matter, were harmed by the conduct of potential defendants. By drawing the line at members of a household, we limit potential plaintiffs to an identifiable category of persons who, as a class, are most likely to have suffered a legitimate, compensable harm.
Our finding of foreseeability turn[s] on the fact that a worker can be expected to return home each workday and to have close contact with household members on a regular basis over many years. Persons whose contact with the worker is more incidental, sporadic, or transitory do not, as a class, share the same characteristics as household members and are therefore not within the scope of the duty we identify here. This rule strikes a workable balance between ensuring that reasonably foreseeable injuries are compensated and protecting courts and defendants from the costs associated with litigation of disproportionately meritless claims.
Abex contends that if we find a duty to prevent take-home exposure, the duty should be limited to immediate family members. But extending the duty to household members, not just immediate family members, more closely tracks the rationale for the existence of the duty. The cause of asbestos-related diseases is the inhalation of asbestos fibers; the general foreseeability of harm turns on the regularity and intimacy of physical proximity, not the legal or biological relationship, between the asbestos worker and a potential plaintiff.

The Havers and Kesner allege different primary theories of liability: premises liability (the Havers) and [ordinary] negligence (Kesner). BNSF argues that even if employers have a duty to prevent employees from exposing members of their household to asbestos by carrying fibers home on their clothing, property owners do not have a similar obligation with respect to workers on their premises. We disagree.
The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. [T]he duty arising from possession and control of property is adherence to the same standard of care that applies in [other] negligence cases. [Importantly, in one of the cases before the court, it] is not Lynne’s contact with Mike that allegedly caused her mesothelioma, but rather Lynne’s contact with asbestos fibers that BNSF used on its property. Mike and his clothing acted as a vector to carry the fibers into Mike and Lynne’s home, where she was exposed. The Havers’ claim of negligence focuses on an allegedly hazardous condition created and maintained on BNSF’s property and BNSF’s alleged failure to contain that hazard as a reasonable property owner would have done in the mid-1970s. Under these circumstances, in which BNSF’s predecessors are alleged to have engaged in active supervisory control and management of asbestos sources, the Havers’ premises liability claim is subject to the same requirements and same duty analysis that apply to a claim of general negligence.
For the reasons above, we reverse the judgment of the Court of Appeal in Haver and remand for further proceedings. We vacate the judgment of the Court of Appeal in Kesner and remand for further proceedings, including, if appropriate, a remand to the trial court for the parties to submit additional evidence on whether Johnny Kesner was a member of George Kesner’s household for purposes of the duty we recognize here.

Duty to exercise reasonable care to guard against take-home exposure of household members to asbestos recognized; each case remanded for further proceedings
.

Was the Duty Breached?

Explain the role of foreseeability in determining whether a defendant owed the plaintiff a duty of reasonable care.

Explain what goes into a determination of whether a defendant breached the duty of reasonable care.
Assuming that the defendant owed the plaintiff a duty of reasonable care, whether the defendant satisfied or instead breached that duty depends upon the application of the reasonable person test. This test is objective in two senses. First, it compares the defendant’s actions with those that a hypothetical person with ordinary prudence and sensibilities would have taken (or not taken) under the circumstances. Second, the test focuses on the defendant’s behavior rather than on the defendant’s subjective mental state. The reasonable person test has another noteworthy characteristic: flexibility. In contemplating that courts consider all of the relevant facts and circumstances, the test allows courts to tailor their decisions to the facts of the particular case being decided.
When applying this objective yet flexible standard to specific cases, courts consider and balance various factors. The most important such factor is the reasonable foreseeability of harm. This factor does double duty, helping to determine not only whether the defendant owed the plaintiff a duty (as noted above) but also what the defendant’s duty of reasonable care entailed in the case at hand. Suppose that Donald falls asleep at the wheel and causes a car accident in which another motorist, Peter, is injured. Falling asleep at the wheel involves a foreseeable risk of harm to others, so a reasonable person would remain awake while driving. Because Donald’s conduct fell short of this behavioral standard, he has breached a duty to Peter. However, this probably would not be true if Donald’s loss of awareness resulted from a sudden, severe, and unforeseeable blackout. On the other hand, there probably would be a breach of duty if Donald was driving and had a blackout to which a doctor had warned him he was subject.
Negligence law does not require that we protect others against all foreseeable risks of harm. Instead, the risk created by the defendant’s conduct need only be an unreasonable one. In determining the reasonableness of the risk, courts consider other factors besides the foreseeability of harm. One such factor is the seriousness or magnitude of the foreseeable harm. As the seriousness of the harm increases, so does the need to take action to avoid it. Another factor is the social utility of the defendant’s conduct. The more valuable that conduct, the less likely that it will be regarded as a breach of duty. A further consideration is the ease or difficulty of avoiding the risk. Negligence law normally does not require that defendants make superhuman efforts to avoid harm to others.
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To a limited extent, negligence law also considers the personal characteristics of the defendant. For example, children are generally required to act as would a reasonable person of similar age, intelligence, and experience. A person who is physically disabled must act as would a reasonable person with the same disability. Mental deficiencies, however, ordinarily do not relieve a person from the duty to conform to the usual reasonable person standard. The same is true of voluntary and negligent intoxication.
Finally, negligence law is sensitive to the context in which the defendant acted. For example, someone confronted with an emergency requiring rapid decisions and action need not employ the same level of caution and deliberation as someone in circumstances allowing for calm reflection and deliberate action.
The Currie case, which follows, focuses mainly on the duty and breach of duty elements of a negligence claim. It also furnishes an introduction to concepts dealt with more fully later in the chapter.

Currie v. Chevron U.S.A., Inc.
2008 U.S. App. LEXIS 4269 (11th Cir. 2008)

Acting in her own right and as personal representative of the estate of her deceased daughter (Nodiana Antoine), Tracye Currie sued Chevron U.S.A., Inc. and Chevron Stations Inc. (collectively, “Chevron”) on the theory that Chevron negligently caused Antoine’s death. The facts giving rise to the case are summarized here.

For approximately two years, Antoine and Anjail Muhammad had had a close personal relationship. The relationship between the two women was a stormy one, with Muhammad sometimes threatening to inflict physical harm on Antoine. One morning in 2003, Muhammad and Antoine were in Muhammad’s car, which Muhammad had parked in a restaurant parking lot in Marietta, Georgia. According to a statement Muhammad later made to the police, Muhammad and Antoine became involved in an argument, during which Antoine said that she wanted to end their relationship. Muhammad also said in her statement that Antoine left the car and started walking toward a Chevron gas station across the street to call her family. Muhammad followed her, and the women continued arguing as they walked across the street.

Pamela Robinson, a customer at the Chevron station, testified at the trial in Currie’s case that when she pulled into the station, she saw Muhammad and Antoine approach the station. Muhammad was pulling on Antoine’s neck or the collar of her clothing and essentially dragging Antoine. Robinson also stated that Muhammad appeared to tighten her grip when Antoine tried to pull away. Robinson, who watched the two women move in the direction of gas pump number one, went inside the station when she realized that the pump she was seeking to use had to be activated by a Chevron cashier before it would work. Jyotika Shukla was the cashier at the station on that day. Robinson testified that she entered the station and “told [Shukla] immediately that there was something going on with the two young ladies out here and that she needed to contact the police immediately.” Robinson explained that she then pointed out the two women to Shukla.

Shukla testified at the trial that she did not know there was anything wrong outside until Robinson came into the station and told her, though an earlier statement by Shukla to the police indicated that Shukla saw the women before Robinson came into the station. Regardless of when she first saw the women, Shukla said that she did see the two women “verbally fighting” and that one woman was holding the other by her shirt. Shukla did not call the police because, according to her testimony, she thought the two women were or would be leaving the Chevron property.

Evidence adduced at the trial indicated that when customers at the Chevron station sought to use a gas pump, they had to lift a lever on the pump. A beeping sound inside the station would then inform the cashier that a customer had lifted the lever. In order for the customer to receive gas through the pump, the cashier would then have to hit the “authorize pump” button. After the pump was authorized, the beeping sound would stop.

The evidence established that Shukla authorized gas pump number one by pushing the appropriate button inside the station. This authorization of the pump enabled Muhammad to use it, even though Muhammad did not have a car on the premises. Shukla testified at trial that she authorized pump number one before Robinson came into the station and before she (Shukla) saw the women fighting, but Shukla’s deposition testimony and an earlier statement given to the police indicated that she could not remember whether she knew about or had seen the fighting before she authorized the pump.

Robinson’s testimony suggested that Shukla authorized a pump after Robinson told Shukla about the two women fighting. Based on her prior experience of working at a gas station, Robinson recognized that a beeping sound informed the cashier that a gas pump needed to be activated. Robinson testified that she heard a beeping sound when she entered the Chevron station. She also testified that the beeping sound stopped “right after” she told Shukla to call the police. Robinson also stated that she

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did not ask Shukla to authorize her gas pump until after she talked to Shukla about the two women fighting outside and showed Shukla where they were standing—by gas pump number one. Moreover, there were no other customers waiting for other pumps to be authorized.

Shukla’s testimony was inconsistent about whether she looked at gas pump number one before authorizing it. She first testified that she did not remember whether she had looked at pump number one before authorizing it, but later she said “[m]aybe yes.” In her statement to the police, Muhammad said that Shukla looked at pump number one before authorizing it. Muhammad stated that “[e]verybody was really helpful like the lady . . . in the store. . . . [S]he just turned the pump on.” When a police detective asked, “Even though ya’ll didn’t have a car?” Muhammad responded, “Didn’t even have a car right next to it, she just turned it on, she looked at us and just turned the pump on.”

After Shukla authorized pump number one, Muhammad sprayed 65 cents worth of gasoline on Antoine. Robinson testified that she exited the station to return to her car to pump gas and immediately saw the two women “in the same position with [Muhammad] holding [Antoine].” Before Robinson got to her car, Muhammad asked Robinson whether she had a cigarette lighter. Robinson said she did not. She then watched the two women as they left the Chevron station, with Muhammad still pulling Antoine by her shirt.

According to Muhammad’s statement to the police, she and Antoine left the Chevron station and went back to Muhammad’s car. Muhammad then found a cigarette lighter in the car and used the lighter to set Antoine on fire. Antoine ran through the parking lot while on fire and tried to roll over in a grassy area in an effort to put out the flames. A passerby called 911, and Antoine was taken to the hospital. Several weeks later, Antoine died as a result of the burns she had suffered. Muhammad, who confessed to police that she set Antoine on fire, was later indicted on criminal charges of murder, aggravated battery, aggravated assault, and arson.

In Currie’s wrongful death lawsuit against Chevron, Currie alleged that Shukla negligently authorized the gas pump used by Muhammad and that Antoine died as a result. Under the respondeat superior principle discussed in 

Chapter 36

 of this text, Chevron would be liable for any negligence on the part of its employee, Shukla, if that negligence occurred within the scope of Shukla’s employment. A federal district court jury returned a $3,500,000 verdict in Currie’s favor. The court issued a judgment against Chevron for $2,625,000, an amount that reflected a 25 percent reduction from $3,500,000 because of the jury’s finding that Antoine’s own negligence accounted for 25 percent of the reason why she was killed. (Later in this chapter, you will learn about the comparative negligence principle applied by the court in reducing the amount of damages awarded.) Chevron unsuccessfully moved for judgment as a matter of law or, in the alternative, a new trial. Chevron then appealed to the U.S. Court of Appeals for the Eleventh Circuit.

Per Curiam

In this diversity case controlled by Georgia law, . . . Currie contended at trial that Chevron’s Shukla negligently activated the gas pump for Muhammad only after: (1) Shukla saw Muhammad pulling Antoine around the Chevron station’s property by her shirt and thought that something was wrong; (2) Shukla saw that Muhammad and Antoine did not have a vehicle; and (3) customer Pamela Robinson warned Shukla that there was a problem with the two women outside, asked Shukla to call the police, and showed Shukla where the two women were standing by gas pump number one. Currie claimed that, given this evidence, Shukla should have foreseen that Antoine would suffer some injury as a result of Shukla’s activating the gas pump for Muhammad. On appeal, Chevron argues that . . . Muhammad’s actions were not a reasonably foreseeable consequence of Shukla’s negligence; [that] Antoine failed to exercise ordinary care to avoid the consequences of Shukla’s negligence; [and that] Antoine’s negligence was equal to or greater than Shukla’s negligence.
A cause of action for negligence in Georgia must contain the following elements: (1) a legal duty to conform to a standard of conduct for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage resulting from the breach of the legal duty. In order to establish a breach of the applicable standard of conduct, there must be evidence that the alleged negligent act (or omission) created a foreseeable, unreasonable risk of harm. As to foreseeability of injury, Georgia courts have stated that “?‘in order for a party to be held liable for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient if, in ordinary prudence, he might have foreseen that some injury would result from his act or omission, and that consequences of a generally injurious nature might result.’?” [Citations omitted.]
In Georgia, questions of negligence, proximate cause, and foreseeability are generally for the jury. [After reviewing the record in this case, we] conclude that reasonable minds could differ as to whether Shukla was aware at the moment she authorized gas pump number one that her action would create a foreseeable risk of injury to Antoine. There was evidence from which the

jury could have inferred that Shukla was aware that Muhammad and Antoine were involved in a serious fight on the Chevron station’s property. In her statement to police on the day of the incident, Shukla said that she saw the two women walking on the station’s property, that Muhammad had “grabbed” and “pulled” Antoine by the front of her shirt, and that Shukla “thought something was wrong.” Shukla also testified at trial that she saw the women fighting on the Chevron station’s property. Robinson’s testimony confirmed Shukla’s observation that the fight was serious. Robinson testified that [Muhammad tightened her grip on Antoine] when Antoine try to pull away from her. Robinson [also testified] that Muhammad then pulled Antoine “down to the ground like an animal.”
There also was evidence from which the jury could have found that Shukla was aware that Muhammad and Antoine were involved in a serious fight at the Chevron station before she activated gas pump number one for Muhammad. [In addition,] there was evidence from which the jury could have concluded that Shukla looked at Muhammad before authorizing gas pump number one. Muhammad told police on the day of the incident that “. . . she looked at us and just turned the pump on. . . .” Based on Muhammad’s statement and Shukla’s own testimony, the jury could have found that Shukla looked at gas pump number one before she authorized it, saw Muhammad (whom Shukla had seen fighting with Antoine on the station’s property and had recognized did not have a car), and nevertheless authorized gas pump number one for Muhammad.
[Considering] the totality of this evidence . . . , the jury could have found that the beeping sound that Robinson heard inside the Chevron station was Muhammad seeking authorization of gas pump number one and that Shukla looked at Muhammad and authorized gas pump number one for her (thus stopping the beeping sound) after Shukla’s conversation with Robinson. The jury also could have found that Shukla was aware at the time she authorized gas pump number one for Muhammad that: (1) Muhammad had been pulling Antoine around the Chevron station’s property by her shirt as they were fighting; (2) the fight was sufficiently serious that Shukla herself thought something was wrong and that Robinson came into the station to warn Shukla that something was going on with the two women outside and to ask her to call the police; (3) Muhammad and Antoine were fighting by gas pump number one; and (4) Muhammad and Antoine did not have a car on the station’s property. Thus, we conclude that there was, at the very least, a substantial conflict in the evidence such that reasonable and fair-minded jurors might reach different conclusions as to whether Shukla was aware before she authorized gas pump number one that her negligent action would create a foreseeable risk of injury to Antoine.
Chevron presented expert testimony from Rosemary Erickson, Ph.D., a forensic sociologist, that it was not reasonably foreseeable to Shukla that Muhammad would douse Antoine with gas and set her on fire. Dr. Erickson based her opinion on a review of the depositions, the police records, the low crime rate in the area surrounding the Chevron station, the lack of previous violent crimes at this specific Chevron station, and the rarity of the particular crime that occurred here. In addition to Dr. Erickson’s testimony, Shukla testified that she had never [witnessed] a crime or fire at the Chevron station before that day and never had to call the police. [The] former Chevron station manager testified that there had not been any criminal activity at the Chevron station in his eight to ten years working there before this incident.
However, in cross-examining Dr. Erickson, plaintiff’s counsel asked, “You would agree with me . . . would you not, that if something is going on at a gas station and a clerk sees one person holding another at a gas pump and there’s no car and no container, that it’s foreseeable that the gas may be used inappropriately and harm can result. . . .” Dr. Erickson replied, “If all those factors were in evidence.” Thus, even from Chevron’s own witness, there was in effect testimony to support Currie’s claim that Shukla should not have authorized the gas pump after Shukla saw Muhammad and Antoine fighting (or was told by Robinson they were fighting) and where Muhammad and Antoine had no car or gas container. [In addition, both the former station manager and Robinson [, who had worked at a gas station,] testified that they would not activate a gas pump if they saw people at the gas pump without a car or gas can.
In arguing that this incident was not foreseeable, Chevron cites Georgia premises liability cases providing that property owners have a duty to exercise ordinary care to protect invitees from foreseeable third-party criminal attacks where there are prior similar criminal acts occurring on the premises that put the property owner on notice of the dangerous condition. Chevron argues that the criminal attack by Muhammad on Antoine was not foreseeable because this particular Chevron station was in a low crime area and had not been the site of any criminal activity in previous years, much less violent crime.
First, while Currie raised a premises liability theory at trial, her primary theory of liability was that given the particularly serious events unfolding before Shukla and given Robinson’s warning, Shukla then committed her own affirmative negligent act in activating gas pump number one for Muhammad, not that Chevron breached its duty to Antoine to keep its premises safe generally. Second, the lack of prior criminal activity at this Chevron station does not wholly foreclose the foreseeability issue. Even in cases grounded solely on a premises liability theory, Georgia courts have stated that “a showing of prior similar incidents on a proprietor’s premises is not always required to establish that a danger was reasonably foreseeable. An absolute requirement of this nature would create the equivalent of a one free bite rule
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for premises liability, even if the proprietor otherwise knew that the danger existed.” [Citation omitted.] This Court applied this same reasoning in a premises liability case to conclude that there was a jury question of whether hostilities throughout the evening of which bowling alley employees were, or should have been, aware were sufficient to make it reasonably foreseeable to them that a fight would erupt, even though there had been no similar prior altercations on the premises. [Citation omitted.] Similarly, in this case, there was a sufficient conflict in the evidence for reasonable minds to differ as to whether the particular serious and exigent events unfolding right before Shukla at the Chevron station that morning, together along with Robinson’s warning, should have put her on notice that activating the gas pump for Muhammad would pose an unreasonable risk of harm to Antoine, even though there was no history of prior similar incidents at this specific Chevron station.
Therefore, we cannot say that the district court erred in denying Chevron’s motion for judgment as a matter of law or a new trial.
 
[Note: In a later portion of the opinion not included here, the Eleventh Circuit concluded that the district judge had correctly instructed the jury on issues related to Antoine’s own failure to use reasonable care, that the jury’s assignment of a 25 percent degree of responsibility to Antoine was supported by the evidence, and that the court had therefore properly reduced the award of damages by 25 percent.]

Judgment in favor of Currie affirmed
.

Ethics in Action

 Suppose that during regular work hours, an employee of XYZ Co. commits a sexual assault or other violent attack upon a member of the public. The employee, of course, is liable for the intentional tort of battery (about which you learned in 
Chapter 6
), as well as a criminal offense. Although the doctrine of respondeat superior makes employers liable for their employees’ torts when those torts are committed within the scope of employment, XYZ is quite unlikely to face respondeat superior liability for its employee’s flagrantly wrongful act because a sexual assault or violent attack, even if committed during regular work hours, presumably would be outside the scope of employment.
However, as the principles explained in this chapter suggest, XYZ could be liable for its own tort if XYZ was negligent in hiring, supervising, or retaining the employee who committed the attack. A determination of whether XYZ was negligent would depend upon all of the relevant facts and circumstances.
Regardless of whether XYZ would or would not face legal liability, the scenario described above suggests related ethical questions that may confront employers. Consider the following:
· Does an employer have an ethical obligation to take corrective or preventive action when the employer knows, or has reason to know, that the employee poses a danger to others?
· Does it matter whether the employer has irrefutable evidence that the employee poses a danger, or whether the employer has only a reasonable suspicion to that effect?
· If the employer has an ethical obligation to take corrective or preventive action, to whom does that obligation run and what should that obligation entail?
· Does the employer owe any ethical duty to the employee in such situations?
You may find it helpful to consider these questions through the frames of reference provided by the ethical theories discussed in 
Chapter 4
 (e.g., utilitarianism, rights theories, and profit maximization). Then compare and contrast the results of the respective analyses.

Special Duties In some situations, courts have fashioned particular negligence duties to supplement the general reasonable person standard. When performing their professional duties, for example, professionals such as doctors, lawyers, and accountants generally must exercise the knowledge, skill, and care ordinarily possessed and employed by members of the profession.
1
 Also, common carriers and (sometimes) innkeepers are held to an extremely high duty of care approaching strict liability when they are sued for damaging or losing their customers’ property. Many courts say that they also must exercise great caution to protect their passengers and lodgers against personal injury—especially against the foreseeable wrongful acts of third persons. This is true even though the law has long refused to recognize any general duty to aid and protect others from third-party wrongdoing unless the defendant’s actions foreseeably increased the risk of such wrongdoing. Some recent decisions have imposed a duty on landlords to protect their tenants against the foreseeable criminal acts of others.
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Explain the differences among the respective duties of care owed by owners or possessors of property to invitees, licensees, and trespassers.

Duties to Persons on Property Another important set of special duties runs from possessors of real estate (land and buildings) to those who enter that property. Negligence cases that address these duties are often called premises liability cases. Traditionally, the duty owed by the possessor has depended on the classification into which the entering party fits. The three classifications are:

1. Invitees. Invitees are of two general types, the first of which is the “business visitor” who is invited to enter the property for a purpose connected with the possessor’s business. Examples include customers, patrons, and delivery persons. The second type of invitees consists of “public invitees” who are invited to enter property that is held open to the public. Examples include persons using government or municipal facilities such as parks, swimming pools, and public offices; attendees of free public lectures and church services; and people responding to advertisements that something will be given away. The entry, however, must be for the purpose for which the property is held open.
A possessor of property must exercise reasonable care for the safety of his invitees. In particular, he must take appropriate steps to protect an invitee against dangerous on-premises conditions that he knows about, or reasonably should discover, and that the invitee is unlikely to discover.

2. Licensees. A licensee enters the property for her own purposes, not for a purpose connected with the possessor’s business. She does, however, enter with the possessor’s consent. In some states, social guests are licensees, though today they are more commonly classified as invitees. Other examples of licensees are door-to-door salespeople, solicitors of money for charity, and sometimes persons taking a shortcut across the property. As these examples suggest, consent to enter the property is often implied. The possessor usually is obligated only to warn licensees of dangerous on-premises conditions that they are unlikely to discover.

3. Trespassers. A trespasser enters the land without its possessor’s consent and without any other privilege. Traditionally, a possessor of land owed trespassers no duty to exercise reasonable care for their safety; instead, there was only a duty not to willfully and wantonly injure trespassers once their presence was known.
Recent years have seen some tendency to erode these traditional distinctions. Most notably, many courts no longer distinguish between licensees and invitees. These courts hold that the possessor owes a duty of reasonable care to persons regardless of whether they are licensees or invitees. Some courts have created additional duties that possessors owe to trespassers. For example, a higher level of care is often required as to trespassers who are known to regularly enter the land, and as to children known to be likely to trespass.
Traditionally, premises liability cases have focused on whether reasonable care was exercised to guard against or remedy potentially dangerous physical conditions such as slippery substances on or the floor or poorly lighted staircases—the sorts of conditions that could cause an invitee to fall or experience a similar mishap resulting in physical injuries. (Hence, those premises liability cases are often referred to as “slip-and-fall” cases.) In recent years, courts have considered whether the duty of reasonable care should encompass measures to protect invitees against on-the-premises criminal acts of third parties. Lord v. D & J Enterprises, Inc., which follows, is such a case.

Lord v. D & J Enterprises, Inc.
757 S.E.2d 695 (S.C. Sup. Ct.)

D & J Enterprises, Inc. operates businesses involving check cashing, payday lending, and motor vehicle title lending. One of its businesses is Cash on the Spot, which is located in Rock Hill, South Carolina. For the protection of employees, Cash on the Spot is outfitted with iron bars on the windows of its building and bulletproof glass on its tellers’ windows.

On February 14, 2008, Ida Lord went to Cash on the Spot to retrieve money that had been wired to her. As Lord approached a teller’s window, a man seated at a nearby table stood up, reached under his clothing, pulled out a pistol, and shot Lord in the head and back. The man then demanded money as he slid his weapon through the opening in the teller’s window. The store manager, who was stationed behind the bulletproof window and had access to a silent alarm, called 911. The man fled the premises but was soon arrested. He was later identified as Phillip Watts Jr.

After Watts was apprehended, he confessed to committing seven armed robberies in Rock Hill and elsewhere in York County (where Rock Hill is located). Those robberies, which began in October 2007 and primarily targeted small businesses, were the subject of significant media coverage. Two of the publicized robberies occurred within three weeks prior to the Cash on the Spot incident. In those robberies, Watts shot two store clerks and a bystander. Before the February 14, 2008, incident in which Lord was shot, D & J’s president, Darrell Starnes (who oversaw the corporation’s day-to-day operations), warned his employees to be vigilant because “there is a madman on the loose.” Watts ultimately pleaded guilty but mentally ill to criminal charges in connection with the Cash on the Spot incident and the other armed robberies.

Lord filed a negligence lawsuit against D & J in a South Carolina court in an effort to obtain damages for what she described as the “catastrophic brain injuries” she suffered in the shooting. She alleged that D & J breached its duty to use reasonable care to protect her while she was at Cash on the Spot. D & J later moved for summary judgment, arguing that it had no duty to protect Lord from the injuries directly caused by Watts. It was not foreseeable that Watts would shoot Lord, D & J contended, because Watts appeared to be a regular customer, because the incident lasted less than six seconds, and because there had not been prior instances of attempted armed robberies or acts of violence at Cash on the Spot. In opposing D & J’s motion, Lord offered the deposition testimony of D & J officers and employees, an affidavit from a private security expert who opined that D & J should have had a security guard stationed at Cash on the Spot, and evidence of media coverage of the earlier robberies committed by Watts.

Concluding that D & J did not owe a duty to Lord, the trial court granted summary judgment in favor of D & J. After Lord appealed to the South Carolina Court of Appeals, the Supreme Court of South Carolina certified the case for resolution by that court rather than the Court of Appeals.

Beatty, Justice

In this premises liability case involving a third-party criminal act, Lord . . . asserts the court erred in granting summary judgment to D & J because she presented . . . evidence showing a genuine issue of material fact as to each element of her negligence claim. Specifically, Lord asserts that: (1) D & J owed a duty to her as she was a business invitee on the premises of Cash on the Spot; (2) the risk of harm to her was foreseeable because D & J’s president admitted he knew before the shooting that “there was a madman on the loose” and reviewed procedures with D & J employees regarding a response to a potential armed robbery; (3) D & J failed to post a security guard at the entrance of Cash on the Spot despite the foreseen risk of a shooting; (4) the affidavit of private security expert Robert Clark established that the shooting of Lord “most probably would not have occurred if D & J had posted a security guard”; and (5) there is evidence that the shooting caused Lord to suffer profound neurological complications.

Bass v. Gopal, Inc., 716 S.E.2d 910 (S.C. Sup. Ct. 2011) (Gopal II) . . . is used to determine a business owner’s duty to protect a patron based on the foreseeability of violent acts by third parties. Gopal II was a premises liability action that arose out of the shooting of Gerald Bass while he was a guest at the Super 8 Motel in Orangeburg, South Carolina. Gopal, Inc., a Super 8 franchisee, owned and operated the motel. [The shooter was someone who was at the motel for the apparent purpose of committing a robbery.] Bass filed a complaint alleging negligence [on the part of] Gopal, Inc. and Super 8. The defendants filed motions for summary judgment, which were granted by the circuit court. The South Carolina Court of Appeals affirmed. [Bass appealed to the Supreme Court of South Carolina.]
In [ruling on Bass’s appeal in] Gopal II, we considered whether the Court of Appeals erred in upholding the circuit court’s finding that Gopal, Inc., . . . did not have a duty to protect Bass from the criminal act of a third party. [We] noted that the threshold question in any negligence action is whether the defendant owed a duty to the plaintiff. [We stated that although] “an innkeeper is not the insurer of [the] safety of its guests,” an innkeeper “is under a duty to its guests to take reasonable action to protect them against unreasonable risk of physical harm.” The court [further] explained in Gopal II that “a business owner has a duty to take a reasonable action to protect its invitees against the foreseeable risk of physical harm.”

*

In assessing the foreseeability issue, the Gopal II court [adopted] a balancing test, which . . . acknowledges that duty is a flexible concept, and seeks to balance the degree of foreseeability of harm against the burden of the duty imposed. The court explained that “the more foreseeable a crime, the more onerous is a business owner’s burden of providing security.” Accordingly, “[u]nder this test, the presence or absence of prior criminal incidents is a significant factor in determining the amount of security required of a business owner, but their absence does not foreclose the duty to provide some level of security if other factors support a heightened risk.” The court found that “the balancing approach appropriately weighs both the economic concerns of businesses and the safety concerns of their patrons.” By adopting this test, the court hoped to “encourage a reasonable response to the crime phenomenon without making unreasonable demands.”
Applying the balancing approach to the facts of Bass’s case, the court found the Court of Appeals correctly affirmed the grant of summary judgment in favor of Gopal, Inc. In reaching this decision, the court determined that Bass presented “at least some evidence the aggravated assault was foreseeable” because Bass produced a CRIMECAST report that showed . . . the risk of rape,
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robbery, and aggravated assaults at the Super 8 as compared to the national average risk, the state average risk, and the county average risk.
The court, however, found Bass did not provide any evidence that Gopal Inc.’s preventative measures were unreasonable given the risk of criminal activity on the property. Although Bass presented the deposition testimony of an expert who “concluded the addition of a closed circuit camera or some type of additional security personnel would have been reasonable in light of his perceived risk,” the court found Bass “failed to provide any evidence that [Gopal, Inc.] should have expended more resources to curtail the risk of criminal activity that might have been probable.” Instead, the court found determinative the expert’s statement that “if . . . this is [the] first time [a criminal incident occurred], there wasn’t enough data for [Gopal, Inc.] to say he really needed to spend a bunch of money on surveillance cameras, a bunch of money on a full-time security guard or part-time, or train his employees to do a guard tour.”
[Gopal II provides controlling insights on] how to determine (1) if a crime is foreseeable, and (2) the economically feasible security measures that are required to prevent the foreseeable harm. Applying the Gopal II balancing test [to the case at hand], we hold the circuit court erred in granting summary judgment to D & J. Viewing the evidence in the light most favorable to Lord, we find she presented [enough] evidence to withstand the motion for summary judgment as to her negligence claim against D & J.
To prevail on a negligence claim, a plaintiff must establish duty, breach, causation, and damages. The key determination in the instant case is whether D & J breached its duty to take reasonable action to protect Lord, its business invitee, against the foreseeable risk of physical harm. Regarding the foreseeability prong of Gopal II, Lord presented the deposition testimony of Starnes (D & J’s president) and Marsha Boyd, the manager of Cash on the Spot the day of the shooting. Starnes and Boyd testified they were aware of the prior robberies in York County because the local newspapers had covered the incidents. Prior to the shooting, Starnes discussed the robberies with his employees and warned them to “be on their toes to look out for suspicious people” because there was a “madman on the loose.” Based on the foregoing, we find, as did the circuit court, that Lord produced at least some evidence that the shooting was foreseeable.
[T]he question [then] becomes whether D & J’s preventative security measures were unreasonable given this risk. Lord primarily asserts that D & J should have posted a security guard at the entrance of Cash on the Spot. Although this court in Gopal II acknowledged the significant cost associated with hiring security guards absent evidence of prior crimes on the premises, we stated that a plaintiff may produce evidence of this prong through the testimony of an expert. Here, unlike the plaintiff in Gopal II, Lord presented expert testimony precisely on this point. Robert Clark, Lord’s expert in private security, reviewed the media coverage of the prior armed robberies, reviewed the deposition testimonies of Starnes and Boyd, and conducted a field investigation of the security measures used at Cash on the Spot. Based on his investigation, Clark opined that D & J “had a duty, in the exercise of reasonable care, to post a security guard at the entrance” of Cash on the Spot in order to “provide reasonable protection for its employees and customers against the threat of a serial armed robber who had shot two store clerks and a bystander in two previous armed robberies of businesses that fit the profile of D & J’s business.” He further stated, “The armed robbery attempt during which Ida Lord was shot most probably would not have occurred if D & J had posted a security guard at the entrance of its check cashing location.”
As we noted in Gopal II, “whether a business proprietor’s security measures were reasonable in light of a risk will, at many times, be identified by an expert.” Here, Lord presented such expert testimony. Under the specific facts presented in this case, we find the expert testimony was sufficient to create a question of fact for the jury.
[W]e conclude it is premature to deprive Lord of the opportunity to present her case to a jury. At this stage, it is not the role of the circuit court or this court to determine whether Lord will prevail on her negligence claim, but whether she presented [sufficient] evidence to withstand D & J’s motion for summary judgment.
We emphasize that our decision should not be construed as requiring all merchants to hire costly security guards. Instead, we merely find that it is for a jury to decide whether D & J employed reasonable security measures to fulfill its duty to protect Lord from the foreseeable risk of a shooting. Clearly, D & J recognized that it was susceptible to an armed robbery at Cash on the Spot, as it had installed security cameras and placed bars on the office windows. It also sought to protect its employees by placing them behind bulletproof glass, equipping them with panic buttons, and providing them with immediate access to a silent alarm. The circumstances of this case, however, presented a heightened risk of danger beyond the ordinary operation of Cash on the Spot. As evidenced by Starnes’s deposition testimony, there was a foreseeable risk of a shooting at Cash on the Spot given the rash of armed robberies that culminated in the shootings of store clerks and customers at nearby businesses. Under these unique facts, we cannot find that D & J was entitled to judgment as a matter of law on Lord’s cause of action for negligence.

Circuit court’s grant of summary judgment to D & J reversed; case remanded for trial regarding Lord’s negligence claim.

 

*

Gerald BASS, Appellant, v. GOPAL, INC. and Super 8 Motels, Inc., Respondents. No. 4576.
259

Explain what the doctrine of negligence per se does and when it applies.

Negligence Per Se

 Courts sometimes use statutes, ordinances, and administrative regulations to determine how a reasonable person would behave. Under the doctrine of 
negligence per se
, the defendant’s violation of such laws may create a breach of duty and may allow the plaintiff to win the case if the plaintiff (1) was within the class of persons intended to be protected by the statute or other law, and (2) suffered harm of a sort that the statute or other law was intended to protect against. In the Winger case, which follows, the plaintiffs’ decedent fell to her death from an apartment balcony whose guardrail was shorter than the height mandated by a supposedly applicable municipal housing code provision. The court considers whether the negligence per se principle can be applied when the supposed violation was of a local ordinance rather than a state or federal law.

Winger v. CM Holdings, L.L.C.
881 N.W.2d 433 (Iowa Sup. Ct. 2016)

At 1:30 A.M. on July 23, 2011, 21-year-old Shannon Potts came to her friends’ second-floor apartment at the Grand Stratford Apartments in Des Moines, Iowa. She arrived in a slightly intoxicated state and continued drinking until about 4:00 A.M., when her friends hid the alcohol. A conversation took place between Shannon and a friend while the two were on the apartment’s balcony. When the conversation ended, the friend returned inside the apartment. A scream and a crash were then heard. Discovering that Shannon had fallen over the balcony’s railing, the group of friends came to her aid and found her unresponsive. Shannon’s injuries proved to be fatal. Toxicology tests indicated that she was intoxicated at the time of her fall and that she had marijuana and Xanax in her bloodstream.

Until roughly five months before Shannon’s fatal fall, Mark Critelli solely owned the Grand Stratford Apartments (Apartments), which were located in buildings constructed in 1968. The Apartments were built to comply with the 1968 Des Moines housing code, which required balcony guardrails to be at least 30 inches in height. The original iron railings at the Apartments were 32 inches tall. They were still in place when Shannon fell to her death 43 years later. Amendments to the Des Moines housing code in 1979 and 2005 required that guardrails be at least 42 inches in height. However, these later versions of the housing code included a grandfather provision permitting previously installed guardrails that complied with the earlier version of the code to remain in use if they were in sound structural condition.

In 2009, Critelli attached a 48-inch-high white plastic lattice to the guardrails at the Apartments. He used zip ties to attach the lattice, which served as a privacy screen to shield each balcony from view. In February 2011, a Des Moines housing inspector visited the Apartments and found 106 violations, including the guardrail height. The inspector reasoned that Critelli’s attachment of the lattice modified the guardrails and that this modification both eliminated the protection of the above-noted grandfather provision and triggered a duty to comply with the code provision requiring 42-inch-high guardrails.

Later in February 2011, CM Holdings, L.L.C. acquired controlling ownership interest in the Apartments. (Critelli retained a partial ownership interest.) CM undertook significant renovations and other actions to correct most of the problems identified in the list of 106 violations. During a July 5, 2011, visit to the property, the city housing inspector noted only six remaining violations, one of which was the guardrail-height violation. He imposed a penalty of $1,090 for that violation. CM, which had ordered new 42-inch guardrails but did not yet have them, did not appeal the finding that it had violated the guardrail-height requirement. Instead, CM requested that the Des Moines Housing Appeal Board (HAB) grant it a three-month extension to comply with the 42-inch height requirement and that the $1,090 penalty be suspended. In a decision issued on July 20, 2011, the HAB upheld the finding of a violation but granted CM’s request for an extension of time to comply and a suspension of the penalty. Shannon Potts fell to her death three days later.

Acting in their personal capacities and as executors of Shannon’s estate, Shannon’s parents sued CM. They alleged that the 32-inch guardrails violated the housing code, that the code violation constituted negligence per se, and that a 42-inch-high guardrail would have prevented Shannon from falling. (During the eventual jury trial, the plaintiffs’ expert witness offered such an opinion about the likely effect of a 42-inch guardrail.) The trial court ruled on a pretrial basis that the newer code provision (the one requiring 42-inch guardrails) applied as a matter of law. The court also rejected CM’s arguments that the property was grandfathered out of the current code, that the 1968 code applied as a matter of law, and that, in any event, the HAB’s extension of time to install higher railings excused tort liability. The court instructed the jury that CM’s violation of the housing code constituted negligence per se. The court also limited the jury to deciding causation, comparative fault on Shannon’s part, and damages. The jury found CM 65 percent at fault and Shannon 35 percent at fault, and awarded damages of $1,750,000 ($1,137,500 after the necessary reduction for comparative fault).

In a post-trial ruling, however, the trial court concluded that the doctrine of negligence per se did not apply after all and that a new trial was therefore warranted. Both sides appealed to the Iowa Court of Appeals, which affirmed the lower court’s post-trial ruling and earlier rulings on other key issues. Both sides again appealed, this time to the Supreme Court of Iowa. The following edited version of that court’s opinion notes various issues on which the court ruled but focuses on one key question: whether the negligence per se doctrine can apply when the defendant violated a municipal housing code provision (as opposed to a state statute).

Waterman, Justice

The central fighting issue on appeal is whether CM was negligent as a matter of law by failing to replace the 32-inch-high balcony guardrails with 42-inch-high guardrails. We must resolve several related questions. First, CM argues—and the court of appeals ultimately concluded—that only breach of a specific statewide statute or rule can constitute negligence per se, while the breach of a local ordinance cannot. [Analysis of this key issue appears below.]
Second, CM argues that its property was grandfathered out of the 42-inch-high guardrail requirement [, whereas] the plaintiffs argue that CM is bound by the HAB’s determination that [the] 32-inch-high balcony guardrails with the attached lattice violated the code. We . . . hold that the HAB finding is not determinative in this tort action. Third, CM contends that the HAB’s extension of time to install 42-inch-high railings excused its tort liability in the interim. We affirm the [trial] court’s ruling rejecting that legal excuse. Finally, we conclude neither side was entitled to a directed verdict on the grandfather issue under the existing record. That issue must be litigated on remand. [Further discussion of the three issues noted in this paragraph is omitted.]
[Because the plaintiffs are seeking to rely on the negligence per se doctrine, we must resolve this threshold question:] Can a violation of a city ordinance constitute negligence per se? The court of appeals construed Griglione v. Martin, 525 N.W.2d 810 (Iowa Sup. Ct. 1994), [as holding] that only the breach of a statewide standard can constitute negligence per se, and affirmed the order granting a new trial on that basis. The court of appeals understandably relied on this language from Griglione: “We believe rules of conduct that establish absolute standards of care, the violation of which is negligence per se, must be ordained by a state legislative body or an administrative agency regulating on a statewide basis under authority of the legislature.”
The plaintiffs argued that [the quoted] language is dicta, but the court of appeals concluded that the language is controlling. We note that [the quoted] language was unnecessary to the decision and is not supported by the cited authorities. We resolve the issue by overruling Griglione.
Our court has long recognized that the violation of a municipal safety ordinance can be negligence per se. See Hedges v. Conder, 166 N.W.2d 844(Iowa Sup. Ct. 1969) (holding that party could be negligent per se for failing to follow city ordinance requiring use of crosswalks); Kisling v. Thierman, 243 N.W. 552 (Iowa Sup. Ct. 1932) (adopting general rule that violation of rules of the road in statutes or ordinances constitutes negligence per se); Tobey v. Burlington, Cedar Rapids & Northern Railway, 62 N.W. 761 (Iowa Sup. Ct. 1895) (holding that violation of speech limit ordinance was negligence per se) However, the [trial] court and court of appeals questioned the viability of this line of cases based on what we [more] recently said in Griglione, a case that did not involve a municipal ordinance or code with the force of law.
The fighting issue in Griglione was whether the violation of a local police department’s internal operating procedures constituted negligence per se. [In that case,] Paula Blythe had received threatening phone calls from Rodney Griglione. She called the Mt. Pleasant Police Department. The responding officer, while interviewing Blythe inside her trailer, heard someone yelling profanities outside. The officer stepped outside in the dark and looked around with his flashlight. He saw Griglione climbing over a fence with a large knife in his right hand. Griglione ran toward the officer, who drew his pistol and fired three times, fatally wounding Griglione.
Griglione’s widow sued the officer, arguing that he was negligent per se [because he violated] his police department’s operating procedures by using deadly force, by failing to call for backup before shooting, and by failing to identify himself as a police officer before shooting. The preamble to the operating procedures stated that the document provided “guidelines that are suggested” for handling situations and that they were not meant “to assist in assessing . . . possible liability after the fact.”
We concluded in Griglione that violations of the police department’s internal operating procedures were not negligence per se for two reasons. Id. First, we held that the operating procedures “do not involve the delineation of that type of precise standard required to invoke the negligence per se doctrine.” Second,
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we stated that only the violation of a rule applying “statewide” could constitute negligence per se. That statement was broader than necessary to decide the narrow issue of whether an officer’s violation of his department’s internal procedures is negligence per se. We could have answered “no” without addressing local ordinances that have the force of law.
In Wiersgalla v. Garrett, 486 N.W.2d 290 (Iowa Sup. Ct. 1992), we reiterated the governing standard as follows:
[I]f a statute or regulation . . . provides a rule of conduct specifically designed for the safety and protection of a certain class of persons, and a person within that class receives injuries as a proximate result of a violation of the statute or regulation, the injuries “would be actionable, as . . . negligence per se.” To be actionable as such, however, the harm for which the action is brought must be of the kind which the statute was intended to prevent; and the person injured, in order to recover, must be within the class which [the statute] was intended to protect.

Id. at 292 (Iowa 1992) (internal citations omitted). We hold this standard applies equally to municipal ordinances.
The ordinance at issue here requires 42-inch-high guardrails on second-floor or higher balconies. The obvious purpose for requiring a 42-inch-high guardrail on balconies above ground level is to protect persons from getting killed or injured falling off the balcony. Shannon clearly was within the scope of persons intended to be protected from injury by the municipal ordinance. The requirement is sufficiently specific to prescribe a standard of care, the violation of which constitutes negligence per se. See O’Neil v. Windshire Copeland Assocs., L.P., 197 F. Supp. 2d 507 (E.D. Va. 2002) (ruling that apartment owner was negligent per se for having balcony guardrail lower than required by city building code); Heath v. La Mariana Apartments, 180 P.3d 664 (N.M. Sup. Ct. 2008) (violation of guardrail spacing requirement in ordinance would be negligence per se if not for grandfather provision excusing landlord from obligation to upgrade railings to current code). [Compare the cases just cited with] Brichacek v. Hiskey, 401 N.W.2d 44 (Iowa Sup. Ct. 1987) (holding the Des Moines municipal code provision requiring a “working lock” lacked the requisite specificity for negligence per se), and Struve v. Payvandi, 740 N.W.2d 436 (Iowa App. 2007) (holding statutory requirement to maintain heating appliances in a safe and working order was not specific enough to support negligence per se theory).
CM’s argument that only a violation of a statewide law can be negligence per se conflicts with Iowa’s public policy encouraging local control over residential housing for public health and safety. The legislature has specifically allowed local housing ordinances [that are] more stringent than statewide standards. See Iowa Code § 562A.15(1)(a) (requiring the landlord to follow greater duties imposed by local building or housing codes that materially affect health and safety). Our legislative enactments thus tolerate local variations in housing codes. Although building codes may differ on either side of a city’s boundary, buildings are in fixed locations. Building owners will not have to deal with inconsistent local codes at a single location.
We see no good reason to limit application of the negligence per se doctrine to laws of statewide application. The negligence per se doctrine [can be applied regarding violations of] local ordinances. [Therefore, the trial court erred in its post-trial ruling that negligence per se was inapplicable, and the court of appeals erred in affirming that ruling. However, because the trial judge’s instructions to the jury contemplated that the later code provision requiring 42-inch-high guardrails applied as a matter of law, the jury verdict in favor of the plaintiffs could not simply be reinstated. The record produced at trial was insufficient to allow a determination as a matter of law on the question whether the later code provision applied, or whether the 1968 code provision instead applied because of grandfathering. Hence, a remand for a new trial was necessary.]

Court of Appeals decision vacated; trial court’s post-trial ruling on negligence per se issue reversed; other trials court orders affirmed in part and reversed in part; case remanded for new trial.

Causation of Injury Proof that the defendant breached a duty does not guarantee that the plaintiff will win a negligence case. The plaintiff must also prove that the defendant’s breach caused her to experience injury. We shall look briefly at the injury component of this causation of injury requirement before examining the necessary causation link in greater depth.

Types of Injury and Damages

Identify the types of injuries or harms for which a plaintiff may recover compensatory damages in a negligence case.

Personal injury—also called “physical” or “bodily” injury—is harm to the plaintiff’s body. It is the type of
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injury present in many negligence cases. Plaintiffs who experienced personal injury and have proven all elements of a negligence claim are entitled to recover compensatory damages. These damages may include not only amounts for losses such as medical expenses or lost wages but also sums for pain and suffering. Although the nature of the harm may make it difficult to assign a dollar value to pain and suffering, we ask judges and juries to determine the dollar value anyway. The rationale is that the plaintiff’s pain and suffering is a distinct harm resulting from the defendant’s failure to use reasonable care, and that merely totaling up the amounts of the plaintiff’s medical bills and lost wages would not compensate the plaintiff for the full effects of the defendant’s wrongful behavior.

Property damage—harm to the plaintiff’s real estate or a personal property item such as a car—is another recognized type of injury for which compensatory damages are recoverable in negligence litigation. In other negligence cases, many of which arise in business or professional contexts, no personal injury or property damage is involved. Instead, the plaintiff’s injury may take the form of economic loss such as out-of-pocket expenses, lost profits, or similar financial harms that resulted from the defendant’s breach of duty but have no connection to personal injury or property damages. Compensatory damages are available for losses of this nature in appropriate cases.
Whatever the type of injury experienced by the plaintiff, the usual rule is that only compensatory damages are recoverable in a negligence case. As noted in 
Chapter 6
, punitive damages tend to be reserved for cases involving flagrant wrongdoing. Negligence amounts to wrongdoing, but not of the more reprehensible sort typically necessary to trigger an assessment of punitive damages.
What if the plaintiff’s claimed injury is emotional in nature? As you learned in 
Chapter 6
, the law has long been reluctant to afford recovery for purely emotional harms. Until fairly recently, most courts would not allow a plaintiff to recover damages for emotional harms allegedly resulting from a defendant’s negligence unless the plaintiff proved that she experienced a physical injury or at least some impact on or contact with her person. Growing numbers of courts have abandoned the physical injury and impact rules and allow recovery for foreseeable emotional harms that stand alone, but clearly not all have done so. Among courts that still require either physical injury or impact as a general rule when emotional distress damages are sought, many have recognized exceptions to that general rule in particular instances where emotional harm seems especially likely to occur and especially likely to be severe.
In Philibert v. Kluser, which follows, the court decides on the appropriate legal treatment of “bystander” emotional distress cases—those in which a person died as a result of the defendant’s negligence and a member of the decedent’s family witnessed the fatal injuries as they were being inflicted.

Philibert v. Kluser
385 P.3d 1038 (Ore. Sup. Ct. 2016)

Three brothers—ages 12, 8, and 7, respectively—were crossing a street together in an Oregon city. While the brothers were in the crosswalk with the stoplight’s walk signal in their favor, Dennis Kluser drove his pickup truck through the crosswalk. The truck ran over the 7-year-old boy and narrowly missed the other two. The brother who was struck died at the scene. The other two boys witnessed their brother’s death.

Acting in her capacity as guardian ad litem for the surviving brothers, Stacy Philibert brought a negligence lawsuit against Kluser. (Because Philibert brought the case for the benefit of the 12- and 8-year-old brothers, they will often be referred to as “the plaintiffs” in this statement of facts and in the edited version of the court’s opinion.) The complaint alleged that as a result of witnessing their brother’s death, the boys experienced severe emotional distress, depression, post-traumatic stress disorder, aggression, and severe anxiety. The defendant moved to dismiss the complaint for failure to state a claim upon which relief could be granted. He argued that because the plaintiffs were bystanders who had experienced neither a physical injury nor a physical impact in the accident, they could not recover for their emotional distress. The trial court granted the dismissal motion. The plaintiffs appealed to the Oregon Court of Appeals, which affirmed the trial court’s ruling. The plaintiffs then appealed to the Supreme Court of Oregon.

Balmer, Chief Justice

This case requires us to consider the circumstances, if any, under which damages may be recovered by a bystander who suffers serious emotional distress as a result of observing the negligent physical injury of another person. Plaintiffs witnessed the death of a family member who was run over by a truck, but were not themselves physically injured. They sought recovery for their emotional distress. The trial court dismissed the action and the Court of Appeals affirmed, both relying on the “impact rule.” The impact rule allows a plaintiff to seek damages for negligently caused emotional distress only if the plaintiff can show some physical impact to himself or herself. We must decide whether the rule applies here or whether, under the the circumstances present here, the plaintiffs] should be able to pursue their claims notwithstanding the fact that they did not suffer physical injury [or a physical impact].
[In their decisions, the trial court and the Court of Appeals relied on Saechao v. Matsakoun, 717 P.2d 165 (Ore. App. 1986).] In Saechao, the Court of Appeals confronted a situation factually similar to the present case. A driver negligently drove a car onto a sidewalk, killing one child, striking a sibling, and leaving two additional siblings untouched. The three surviving children sued to recover for the emotional distress caused by witnessing their brother’s death. The court recognized the case as presenting a question of first impression[:] “[whether, and if so, when] a person who witnesses the negligently caused injury or death of a member of the immediate family may recover damages for serious emotional distress resulting from witnessing the accident.” A divided court adopted the impact rule, requiring that there be “a direct accompanying [physical] injury to the person who suffers the emotional distress as a prerequisite to its compensability.” As a result, the child who was physically injured was permitted to seek emotional distress damages caused by witnessing his brother’s death, but the claims by the two siblings who were not physically injured were dismissed. The Court of Appeals has continued to follow the impact rule in subsequent cases, as it did here. We directly address the bystander recovery issue [in this court] for the first time.
In Norwest v. Presbyterian Intercommunity Hospital, 652 P.2d 318 (Ore. Sup. Ct. 1982), we mapped the landscape of cases addressing claims for emotional distress damages. Oregon allows plaintiffs to recover damages for emotional distress when they are physically injured, and when the defendant acted intentionally. At issue here is a third basis recognized in Norwest for recovery of damages for emotional distress: when a defendant negligently causes foreseeable, serious emotional distress and also infringes some other legally protected interest. The plaintiff’s claim in that circumstance partially resembles [other] negligence claims in that it rests on the concept of foreseeability. Norwestmade clear, however, that the injury’s foreseeability, standing alone, is insufficient to establish the defendant’s liability: there must also be another legal source of liability for the plaintiff to recover emotional distress damages. Those two concepts identified in Norwest—foreseeability and the source of a legally protected interest—guide our analysis in this case.
Perhaps the simplest legally protected interest is that to be free from physical harm at the hands of another. Labeling freedom from physical harm as a legally protected interest for purposes of recovering emotional distress damages under the third category outlined in Norwest is simply a different way of stating the general rule that emotional distress damages are available to a plaintiff who is physically injured.
In contrast to physical harms, emotional harms occur frequently. Any number of people may suffer emotional distress as the foreseeable result of a single negligent act. The Restatement (Third) of Torts provides an example: “[A] negligent airline that causes the death of a beloved celebrity can foresee genuine emotional harm to the celebrity’s fans, but no court would permit recovery for emotional harm under these circumstances.” Restatement (Third) § 48, comment g. For that reason, foreseeability, standing alone, is not a useful limit on the scope of liability for emotional injuries. Without some limiting principle in addition to foreseeability, permitting recovery for emotional injuries would create indeterminate and potentially unlimited liability.
Nevertheless, even where a plaintiff has not been physically harmed, recovery for foreseeable emotional damages is available when the defendant’s conduct “infringed some legally protected interest apart from causing the claimed distress.” Norwest, supra. In the context of emotional distress, a legally protected interest is “an independent basis of liability separate from the general duty to avoid foreseeable risk of harm.” [Citation omitted.] The right to recovery for such injuries does not “arise from infringement of every kind of legally protected interest, but from only those that are of sufficient importance as a matter of public policy to merit protection from emotional impact.” [Citation omitted.] See, e.g., Hovis v. City of Burns, 415 P.2d 29 (Ore Sup. Ct. 1966) (allowing claim for emotional damages on the basis of infringement of right of a surviving spouse to have the remains of a deceased spouse undisturbed). In contrast, this court has denied recovery to plaintiffs for emotional injuries resulting from a defendant’s negligence when there is no independent legal source of liability. See, e.g., Hammond v. Central Lane Communications Center, 816 P.2d 593 (Ore. Sup. Ct. 1991) (denying recovery to wife who claimed emotional injury caused by watching husband die from heart attack while 911 system negligently delayed response, because she had not “point[ed] to some legally protected interest of hers that defendants violated”).
We now turn to the bystander’s claim for negligently inflicted emotional distress. Plaintiffs assert a common law right of a bystander to avoid observing the physical injury of a close family member as [an important enough legal interest] to support their claims. This court has not had occasion to previously consider such a bystander claim. Our prior cases, however, have allowed claims for negligently inflicted emotional distress to proceed when the court has determined that an asserted common law interest is sufficiently important to support the imposition of liability. The negligent handling of a spouse’s remains in Hovis [is an example].
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In our view, the interest in avoiding being a witness to the negligently caused traumatic injury or death of a close family member is similarly important. Witnessing sudden physical injury or death is a palpable and distinct harm, different in kind even from the emotional distress that comes with the inevitable loss of our loved ones. Plaintiffs here watched as their younger brother was crushed by a pickup truck—a violation of their interest in not witnessing such a shocking and tragic event. And the resulting impact on them might be described as the emotional equivalent of a physical injury. We have no difficulty concluding that plaintiffs have alleged the violation of a legally protected common law interest to be free from the kind of emotional distress injury caused by defendant’s negligence here.
Our remaining task is to frame the contours of that interest and identify the elements that will allow a bystander to recover for the negligent infliction of emotional distress, while also providing a limiting principle that will avoid potentially unlimited claims or damages. To do so, we consider three tests that courts commonly have used in similar cases: the impact test, the zone of danger test, and the Restatement (Third)approach.

The Impact Test

The impact rule allows a plaintiff to recover for emotional distress when he or she also has suffered a physical injury [or at least a physical impact]. The Court of Appeals in Saechao applied that general rule to bystander cases. Proponents of the impact rule claim that its merit lies in the bright line test for liability that it creates [and in the] “guarantee that the mental disturbance is genuine.” [Citation omitted.]
The impact rule is problematic, however, because it sets a bar to recovery in bystander cases that can be both too high and too low. The bar is often too high because there is no principled reason to deny recovery for negligently caused emotional injury simply because the physical contact was with a third person rather than the plaintiff. The facts of this case illustrate that point. Plaintiffs witnessed the traumatic death of their brother, but under the impact rule were denied recovery because the truck did not touch them. Yet, their distress at witnessing the death of their brother is likely unrelated to the coincidental fact that the truck did not hit them also. To deny recovery because . . . the plaintiffs [were not] physically injured—when even a minor physical impact is sufficient under that test—seems arbitrary and fails to protect plaintiffs’ interest in avoiding witnessing the negligently caused death of their brother. At the same time, the impact rule sets the bar too low in other circumstances, because a minor injury unrelated to the emotional distress satisfies the impact requirement and permits the claim to proceed.
The impact rule bars plaintiffs who have suffered genuine serious emotional distress from recovering and fails to treat like cases alike. We therefore reject the impact rule as the test for a bystander’s recovery of emotional distress resulting from injury to another.

The Zone of Danger Test

Plaintiffs suggest that we permit their recovery under the zone of danger test, which is used by some courts to allow recovery to a plaintiff who experiences “serious emotional distress due to witnessing a fatal injury to a third person only if the plaintiff was personally within the zone of danger of physical impact from the defendant’s negligence.” [Citation omitted.] Although the zone of danger test found some favor, California notably abandoned [it] in Dillon v. Legg, 441 P.2d 912 (Cal. Sup. Ct. 1968). In that case, a child’s sister, standing close by, and her mother, standing down the block, observed a negligent driver kill the child. The court rejected the zone of danger rule and allowed both witnesses to proceed with their claims for emotional distress. The court explained that rejecting the zone of danger test logically follows rejecting the impact test. Neither test actually relates to the likelihood or severity of the emotional distress that can result from seeing a close family member suffer serious injury.
In practice, the zone of danger test results in unfairly denying recovery to plaintiffs who are located outside the zone of physical danger, but witness the physical injury to the third person just the same as if they had been in that zone, as the facts of Dillon demonstrate. We are persuaded by the reasoning of the California Supreme Court in Dillon and decline to adopt the zone of danger test.

The Restatement (Third) Rule

A number of authorities have attempted to articulate a test for bystander recovery that avoids the somewhat arbitrary aspects of the impact and zone of danger tests, while limiting the potential for indeterminate and excessive liability for emotional distress claims. Probably the most thoughtful recent formulation is found in the Restatement (Third) of Torts § 48, which builds on Dillon and similar cases. Under that approach, a defendant “who negligently causes sudden serious bodily injury to a third person is subject to liability for serious emotional harm caused thereby to a person who (a) perceives the event contemporaneously, and (b) is a close family member of the person suffering the bodily injury.” Restatement (Third) § 48. In our view, that test hews closely to the interest that should be legally protected, while also recognizing necessary limits on potential liability and providing at least some guidance to courts and juries. Moreover, the Restatement (Third) test is generally consistent with this court’s cases dealing with other
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aspects of claims for negligently caused serious emotional distress. We turn to a closer examination of the rule articulated in the Restatement (Third).
The first element is that the bystander must witness a sudden, serious physical injury to a third person negligently caused by the defendant. Hammond presented a situation in which that element was not present. There, the plaintiff awoke to find her husband lying on the floor, apparently the victim of heart attack. The plaintiff sought to recover for her severe emotional distress, alleging that if the defendant 911 service had arrived in the “couple of minutes” that the 911 operator predicted, rather than after the 45 minutes that actually elapsed, she would not have suffered emotional distress. This court did not allow recovery. Although the defendant may have contributed to the death by failing to respond quickly enough, the defendant did not cause the actual physical injury—the heart attack.
Second, the plaintiff must have suffered serious emotional distress. It is a truism that emotional distress is an unavoidable and essential part of life. For that reason, our cases allow compensation for only serious emotional distress. A bystander who experiences emotional harm that does not rise to the level of serious emotional distress, therefore, cannot recover for that harm.
Third, in order to recover, the plaintiff must have perceived the events that caused injury to the third person as they occurred. This contemporaneous perception is at the core of the bystander’s action for damages. Observation of the scene of an accident after it has happened, or perceiving a recently injured person, does not meet this requirement. This bright line rule is justified in part by the fact that the distressing life experience of learning about the death or injury of a loved one is unavoidable. In comparison, the visceral experience of witnessing the sudden death or injury of a loved one by a negligent driver, as here, is not a certain part of life and therefore presents a stronger basis for allowing recovery against the tortfeasor.
The final element of the claim is that the physically injured person be a close family member of the plaintiff. Witnessing the injury of a stranger or acquaintance, while likely distressing, is not sufficient to recover. The fraternal relationship of plaintiffs here to the person killed meets that requirement, but other cases may present closer questions as to the meaning of “close family member.” See Restatement (Third) § 48 (“[A] grandparent who lives in the household may have a different status from a cousin who does not.”).
We recognize that the bystander recovery rule outlined in the Restatement (Third) may give rise to the possibility of false or inflated claims and that aspects of the rule may seem arbitrary. For as long as courts have awarded damages for emotional injuries, there have been concerns about plaintiffs bringing false claims. Juries are charged with discerning truth from self-serving fiction when plaintiffs testify about their own injuries and are as competent to do this in claims for emotional injuries as they are in other cases. The Restatement (Third) rule [includes] elements that, on the basis of human experience, are objective indicators of possibly serious emotional injury. When the elements of the test are met, a plaintiff’s claims of subjective emotional distress are more likely to be genuine.
The Restatement (Third) rule may have the effect of permitting some claims that would be rejected under other tests, and vice-versa. In this area of the law in particular, some arbitrariness cannot be avoided. But although the rule may be arbitrary in some circumstances, it “serve[s] a function and [is] neither random nor irrational.” Restatement (Third) § 48, comment g. The undesirable arbitrary aspect of rules must be balanced against the need to provide ex ante understanding of liability and assistance in the orderly administration of justice.
We return to the facts of this case. Plaintiffs are two brothers who watched their brother die as a result of being hit by defendant’s negligently driven pickup truck. They allege emotional injuries, including depression and severe emotional distress. Examined in the light of the Restatement (Third) test set forth above, plaintiffs here state a negligence claim for recovery of emotional distress damage.

Court of Appeals decision reversed; case remanded to trial court for further proceedings.

The Causation Link Even if the defendant has breached a duty and the plaintiff has suffered actual injury, there is no liability for negligence without the necessary causation link between breach and injury. The causation question involves three issues: (1) Was the breach an actual cause of the injury? (2) Was the breach a proximate cause of the injury? and (3) What was the effect of any intervening cause arising after the breach and helping to cause the injury? Both actual and proximate causes are necessary for a negligence recovery. Special rules dealing with intervening causes sometimes apply, depending on the facts of the case.

Actual Cause

Explain the difference between actual cause and proximate cause.
Suppose that Dullard drove his car at an excessive speed on a crowded street and was therefore unable to stop the car in time to avoid striking and injuring Pence, who had lawfully entered the crosswalk. Dullard’s conduct, being inconsistent with the behavior of a reasonable driver, was a breach of duty that served as the actual cause of Pence’s injuries. To determine the existence of actual cause, courts often employ a “but-for” test. This test provides that the defendant’s conduct is the actual cause of the plaintiff’s injury when the plaintiff would not have been hurt but for (i.e., if not for) the defendant’s breach of duty. In the example employed above, Pence clearly would not have been injured if not for Dullard’s duty-breaching conduct.
In some cases, however, a person’s negligent conduct may combine with another person’s negligent conduct to cause a plaintiff’s injury. Suppose that fires negligently started by Dustin and Dibble combine to burn down Potter’s house. If each fire would have destroyed Potter’s house on its own, the but-for test could absolve both Dustin and Dibble. In such cases, courts apply a different test by asking whether each defendant’s conduct was a substantial factor in bringing about the plaintiff’s injury. Under this test, both Dustin and Dibble are likely to be liable for Potter’s loss.

Proximate Cause

Explain the difference between actual cause and proximate cause.
The plaintiff who proves actual cause has not yet established the causation link necessary to enable her to win the case. She must also establish the existence of proximate cause—a task that sometimes, though clearly not always, is more difficult than proving actual cause.
Questions of proximate cause assume the existence of actual cause. Proximate cause concerns arise because it may sometimes seem unfair to hold a defendant liable for all the injuries actually caused by his breach—no matter how remote, bizarre, or unforeseeable they are. Thus, courts typically say that a negligent defendant is liable only for the proximate results of his breach. Proximate cause, then, concerns the required degree of proximity or closeness between the defendant’s breach and the injury it actually caused.
Courts have not reached complete agreement on the appropriate test for resolving the proximate cause question. In reality, the question is one of social policy. When deciding which test to adopt, courts must recognize that negligent defendants may be exposed to catastrophic liability by a lenient test for proximate cause, but that a restrictive test prevents some innocent victims from recovering damages for their losses. Courts have responded in various ways to this difficult question.
A significant number of courts have adopted a test under which a defendant who has breached a duty of care is liable only for the “natural and probable consequences” of his actions. In many negligence cases, the injuries actually caused by the defendant’s breach would easily qualify as natural and probable consequences because they are the sorts of harms that are both likely and logical effects of such a breach. The Dullard–Pence scenario discussed earlier would be an example. It is to be expected that a pedestrian struck by a car would sustain personal injury.
In other negligence cases, however, either the fact that the plaintiff was injured or the nature of his harms may seem unusual or in some sense remote from the defendant’s breach, despite the existence of an actual causation link. The presence or absence of proximate cause becomes a more seriously contested issue in a case of that nature. A great deal will depend upon how narrowly or broadly the court defines the scope of what is natural and probable.
Other courts have limited a breaching defendant’s liability for unforeseeable harms by stating that he is liable only to plaintiffs who were within the “scope of the foreseeable risk.” This proximate cause test bears similarity to a key test for determining whether the duty element of a negligence claim exists. As earlier discussion noted, courts typically hold that a defendant owes no duty to those who are not foreseeable “victims” of his actions. The Restatement (Second) of Torts takes yet another approach to the proximate cause question. It suggests that a defendant’s breach of duty is not the legal (i.e., proximate) cause of a plaintiff’s injury if, looking back after the harm, it appears “highly extraordinary” to the court that the breach would have brought about the injury.
Further discussion of proximate cause issues can be found in the Stahlecker case, which appears in this chapter’s later discussion of intervening causes. In Black v. William Insulation Co., which follows, the court rests its decision on the duty element of a negligence claim but engages in considerable discussion of the proximate cause concept.
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Black v. William Insulation Co.
141 P.3d 123 (Wyo. Sup. Ct. 2006)

William Insulation Co. (WIC) was a subcontractor on an expansion project at the Exxon/LaBarge Shute Creek Plant. The plant was located in a remote Wyoming area approximately 26 and 40 miles, respectively, from the nearest population centers, the towns of Green River and Kemmerer. Given the remoteness of the work site, WIC provided $30 per day in subsistence pay to each of its employees to defer part of the cost of a motel room or apartment in Green River or Kemmerer. WIC did not require its employees to spend the money on lodging. The employees were free to spend it—or not spend it—as they saw fit.

David Ibarra-Viernes, a WIC employee, was assigned to work on the above-described expansion project. Ibarra-Viernes received the $30 per day subsistence pay from WIC but elected to make the commute to the plant from his home in Evanston, Wyoming, which was 90 miles away. Ibarra-Viernes carpooled with a group of co-workers, who took turns driving. Ibarra-Viernes’s work schedule was Monday through Friday, 7:00 A.M. to 5:30 P.M., with a half-hour lunch and no, or minimal, breaks. In addition to his employment with WIC, Ibarra-Viernes worked a second job at night, washing dishes at a restaurant.

Ibarra-Viernes completed his regular shift at the plant on a Tuesday and returned to Evanston at 8:30 P.M. He then worked his second job before going to bed around 11:00 P.M. Ibarra-Viernes rose at 4:00 A.M. on Wednesday to get his vehicle and collect his co-workers for the daily commute to the plant, where he worked his normal shift. The car pool, with Ibarra-Viernes driving, left the plant around 6:00 P.M. Shortly thereafter, Ibarra-Viernes fell asleep at the wheel. His vehicle crossed the centerline of the highway and collided head-on with a vehicle in which Richard Black was a passenger. Richard Black died in the accident. His widow, Peggy Ann Cook Black, acting in her own right and as personal representative of her late husband’s estate, filed a negligence-based wrongful death action against WIC in a Wyoming state court.

In her lawsuit, Black claimed that WIC owed a duty of care to other travelers on the highway to prevent injury caused by employees who had become exhausted after being required to commute long distances and work long hours. She contended in her complaint that WIC breached its duty by “failing to take precautionary measures to prevent employees from becoming so exhausted that they pose a threat of harm to the traveling public and failing to provide alternative transportation to its exhausted employees or, in the alternative, failing to provide living quarters to its employees within a reasonable distance from the plant site.” The district court granted WIC’s motion, for summary judgment, concluding that WIC did not owe a duty to the decedent. Black appealed to the Supreme Court of Wyoming.

Hill, Justice

Black sets out [this issue] on appeal: Did the trial court err in failing to recognize a duty of care from an employer to innocent third parties who are injured, or in this case, killed, by its employees who are exhausted due to the working conditions imposed by the employer and thus fall asleep at the wheel? WIC responds [by arguing that] Wyoming law does not, and should not, impose a legal duty of reasonable care on Wyoming employers to protect the motoring public from the negligence of their off-duty employees when those off-duty employees drive to and from their Wyoming worksites in their personal vehicles outside the scope of their employment.
“Whether a legal duty exists is a question of a law, and absent a duty, there is no liability.” [Citation omitted.] A duty may arise by contract, statute, common law, “or when the relationship of the parties is such that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff.” [Citation omitted.]
In deciding whether to adopt a particular tort duty, a court’s focus must be much broader than just the case at hand. The judge’s function in a duty determination involves complex considerations of legal and social policies which will directly affect the essential determination of the limits to government protection. Consequently, “the imposition and scope of a legal duty is dependent not only on the factor of foreseeability but involves other considerations, including the magnitude of the risk involved in defendant’s conduct, the burden of requiring defendant to guard against that risk, and the consequences of placing that burden upon the defendant.” [Citations omitted.] In Gates v. Richardson, 719 P.2d 193 (1986), we further detailed the factors to be considered:
(1) the foreseeability of harm to the plaintiff, (2) the closeness of the connection between the defendant’s conduct and the injury suffered, (3) the degree of certainty that the plaintiff suffered injury, (4) the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden upon the defendant, (7) the consequences to the community and the court system, and (8) the availability, cost and prevalence of insurance for the risk involved.
Before we can proceed to our analysis, we must identify the nature of the duty that Black seeks to impose on WIC. Black insists that she is not seeking . . . to establish a broad duty of care for
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an employer to control an off-duty employee’s conduct. Instead, she argues that an employer has an obligation to ensure that the conditions of employment do not cause an employee to become fatigued and, to the extent that they do, the employer has a duty to take reasonable actions to protect the traveling public from the foreseeable consequences of those employees traveling from their worksite. Essentially, the question of duty that we must determine in this case is whether WIC’s actions and/or inactions prior to the accident created a foreseeable risk of harm that the employer had a duty to guard against. In other words: whether or not Ibarra- Viernes’s fatigue arose out of, and in the course of, his employment.
We turn to the first Gates factor: The foreseeability of harm to the plaintiff. We recently stated that this factor is essentially a consideration of proximate cause. Proximate cause [exists when] “the accident or injury [is] the natural and probable consequence of the act of negligence.” [Citation omitted.] The ultimate test of proximate cause is foreseeability of injury. In order to qualify as a legal cause, the conduct must be a substantial factor in bringing about the plaintiff’s injuries.
The question then is whether or not WIC’s conduct was a substantial factor in bringing about the death of the decedent. Or more precisely, a showing of causation necessitates a showing that Ibarra-Viernes’s work was a substantial contributing factor to his fatigue. This means that for an “employer to be liable for the actions of a fatigued employee on a theory of negligence, the fatigue must arise out of and in the course of employment . . . [because] . . . [t]o hold otherwise would charge an employer with knowledge of circumstances beyond his control.” [Citation of quoted article omitted.]
Black contends that the accident was a foreseeable consequence of WIC’s conduct. Specifically, she claims that . . . WIC required its employees to work long hours and make long commutes. She argues that workers who were commuting and working twelve to fourteen hours a day would not have sufficient time in the day to take care of life activities and still get sufficient sleep. Given these conditions, Black contends that without employer supplied alternatives such as bus transport, it was foreseeable that sleep-deprived workers would likely fall asleep and cause injury to other travelers on the roads.
The most obvious factor within the employer’s control that could cause fatigue in an employee is the number of hours the employee is required to work. On the day of the accident and those preceding it, Ibarra-Viernes worked his normal shift of ten hours. A ten-hour shift within a twenty-four-hour period is not, on its face, an objectively unreasonable period of work when compared with those situations where an employer was held liable for the damages caused by a fatigued employee driving home from work. Compare Robertson v. LeMaster, 301 S.E.2d 563, 568–69 (W.Va. 1983) (employee required to work 32 consecutive hours) and Faverty v. McDonald’s Restaurants of Oregon, Inc.,892 P.2d 703, 705 (Ore. App. 1995) (18-year-old employee worked 12½ hours in a 17-hour period). Crucially, in both of those cases, the employers had actual knowledge of their employee’s fatigued state. There is no evidence that WIC had notice that Ibarra-Viernes was fatigued on the day of the accident.
Black seeks to expand Ibarra-Viernes’s hours of work to include the time of his commute, claiming that WIC “required” him to make the lengthy drive to and from the plant [by not providing alternative transportation such as a bus]. First, Black cites no authority for the proposition that WIC was required to provide its employees with alternatives, such as busing, to commuting. Furthermore, WIC did, in fact, provide an alternative to long-distance commuting for its employees: WIC provided its employees, including Ibarra-Viernes, with a daily $30 subsistence payment to partially offset the cost of taking lodging closer to the worksite. Ibarra-Viernes, however, elected to pocket that money and commute every day from his home in Evanston. That was a voluntary choice made by Ibarra-Viernes.
In making her argument, Black fails to address a significant factor: Ibarra-Viernes’s decision to work a second job. After returning to Evanston upon completion of his work day for WIC, Ibarra-Viernes would go to a second job at a restaurant. On the night before the accident, Ibarra-Viernes stated that he returned home about 8:30 pm and then went to work [at] his second job. Ibarra-Viernes said he got to bed around 11:00 pm that night. Certainly, the second job had an effect on Ibarra-Viernes’s ability to get rest, if not actual sleep. Ibarra-Viernes admitted that he normally got only about five to six hours of sleep a night. Nevertheless, Black neglects to discuss the consequences of the second job in her brief. Her failure to do so seriously undermines her argument.
Ibarra-Viernes had 13½ hours between shifts during the work week. The burden was on him to manage his own time to ensure that he was capable of performing his job. Ibarra-Viernes elected to expend a significant portion of his time making a lengthy commute and working a second job. These were voluntary decisions made by Ibarra-Viernes for which he is responsible. Under these circumstances, it cannot be said that his employment was the substantial factor in contributing to Ibarra-Viernes’s fatigue.
We conclude that decedent’s injuries were not the “natural and probable consequence of ” any acts of negligence by WIC in the course of Ibarra-Viernes’s employment; rather, the decisions and conduct of Ibarra-Viernes were the substantial factor that brought about the injuries. Since the harm to Black’s decedent was not a foreseeable consequence of WIC’s actions (or inactions), we decline to impose a duty under the circumstances. Given this conclusion, the remaining Gates factors are not persuasive, and we decline to discuss them.

Grant of summary judgment to WIC affirmed.

Later Acts, Forces, or Events In some cases, an act, force, or event occurring after a defendant’s breach of duty may play a significant role in bringing about or worsening the plaintiff’s injury. For example, suppose that after Davis negligently starts a fire, a high wind comes up and spreads the fire to Parker’s home, or that after Davis negligently runs Parker down with his car, a thief steals Parker’s wallet while he lies unconscious. If the later act, force, or event was foreseeable, it will not relieve the defendant of liability. So, if high winds are an occurrence that may reasonably be expected from time to time in the locality, Davis is liable for the damage to Parker’s home even though his fire might not have spread that far under the wind conditions that existed when he started it. In the second example, Davis is liable not only for Parker’s physical injuries but also for the theft of Parker’s wallet if the theft was foreseeable, given the time and location of the accident. (The thief, of course, would also be liable for the theft.)

Explain what an intervening cause is and what effect it produces.

Intervening Causes On the other hand, if the later act, force, or event that contributes to the plaintiff’s injury was unforeseeable, most courts hold that it is an intervening cause, which absolves the defendant of liability for harms that resulted directly from the intervening cause. For example, Dalton negligently starts a fire that causes injury to several persons. The driver of an ambulance summoned to the scene has been drinking on duty and, as a result, loses control of his ambulance and runs up onto a sidewalk, injuring several pedestrians. Given the nature of the ambulance driver’s position, his drinking while on duty is likely to make the ambulance crash an unforeseeable event and thus an intervening cause. Most courts, therefore, would not hold Dalton responsible for the pedestrians’ injuries. The ambulance driver, of course, would be liable to those he injured.
An important exception to the liability-absolving effect of an intervening cause deals with unforeseeable later events that produce a foreseeable harm identical to the harm risked by the defendant’s breach of duty. Why should the defendant escape liability on the basis that an easily foreseeable consequence of its conduct came about through unforeseeable means? For example, if the owners of a concert hall negligently fail to install the number of emergency exits required by law, the owners will not escape liability to those burned and trampled during a fire just because the fire was caused by an insane concertgoer who set himself ablaze.
As suggested by some of the examples used above, when a defendant’s breach of duty is followed by a third party’s criminal or other wrongful act, the later act may be either foreseeable or unforeseeable, depending on the facts and circumstances. This state of affairs reflects the prevailing modern approach, which differs sharply from the traditional view that third parties’ criminal acts were unforeseeable as a matter of law and thus were always intervening causes serving to limit or eliminate the original defendant’s negligence liability. Today, courts do not hesitate to classify a third party’s criminal act as foreseeable if the time and place of its commission and other relevant facts point to such a conclusion.
Assume, for instance, that XYZ Inc. owns an apartment complex at which break-ins and prior instances of criminal activity had occurred. XYZ nevertheless fails to adopt the security-related measures that a reasonable apartment complex owner would adopt. As a result, a criminal intruder easily enters the complex. He then physically attacks a tenant. Because the intruder’s act is likely to be seen as foreseeable—and thus not an intervening cause—XYZ faces negligence liability to the tenant for the injuries that the intruder directly inflicted on the tenant. (The intruder, of course, would face both criminal and civil liability for battery, but if his financial assets are limited, the injured tenant may find collecting a damages award from him either difficult or impossible.) Note that for purposes of the tenant’s negligence claim, XYZ’s breach of duty was a substantial factor in bringing about the plaintiff’s injuries because the lack of reasonable security measures allowed the intruder to gain easy access to the premises. XYZ’s breach thus would be considered the actual cause of the tenant’s injuries under the previously discussed substantial factor test. It would also be considered the proximate cause under the various tests described earlier.
The Stahlecker case, which follows, illustrates the operation of intervening cause principles.

Stahlecker v. Ford Motor Co.
667 N.W.2d 244 (Neb. Sup. Ct. 2003)

During the early morning hours, Amy Stahlecker was driving a 1997 Ford Explorer equipped with Firestone Wilderness AT radial tires in a remote area of Nebraska. One of the tires failed, rendering the vehicle inoperable. Richard Cook encountered Amy while she was stranded as a result of the tire failure. Cook abducted Amy, sexually assaulted her, and then murdered her.
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Susan and Dale Stahlecker, acting on behalf of themselves and as personal representatives of their daughter’s estate, brought a wrongful death action in a Nebraska court against Cook, the Ford Motor Co. (manufacturer of the Explorer), and Bridgestone/Firestone Inc. (manufacturer of the tire that failed). The Stahleckers sought to make out negligence claims against Ford and Firestone. The plaintiffs alleged that Ford and Firestone knew of prior problems with the model of tire that was on the Explorer driven by Amy; knew those problems posed a greater-than-normal danger of tire failure; continued using a problematic model of Firestone tire on Explorers despite knowledge that tire failure would create a special risk of rollover and vehicle inoperability; failed to warn consumers of these dangers; and continued to advertise their tires and vehicles as suitable for uses of the sort Amy made immediately prior to the tire failure, even though they knew that drivers could become stranded in the event of tire failure. There was no allegation that the tire failure directly caused Amy to sustain physical harm prior to the obvious harm inflicted by Cook.

A state district court sustained demurrers filed by Ford and Firestone and dismissed the case as to those parties. The court concluded that the Stahleckers had not stated a valid cause of action against Ford and Firestone because Cook’s criminal acts constituted an intervening cause that would relieve Ford and Firestone of any liability they might otherwise have had. The Stahleckers successfully petitioned to bypass the Nebraska Court of Appeals and pursue their appeal in the Supreme Court of Nebraska.

Stephan, Judge

In order to withstand a demurrer, a plaintiff must plead . . . “a narrative of events, acts, and things done or omitted which show a legal liability of the defendant to the plaintiff.” [Citation omitted.] In determining whether a cause of action has been stated, a petition is to be construed liberally.
In order to prevail in a negligence action, a plaintiff must establish the defendant’s duty to protect the plaintiff from injury, a failure to discharge that duty, and damages proximately caused by the failure to discharge that duty. The concept of “foreseeability” is a component of both duty and proximate cause, although its meaning is somewhat different in each context. We have noted this distinction in recent cases:
Foreseeability as a determinant of a [defendant’s] duty of care . . . is to be distinguished from foreseeability as a determinant of whether a breach of duty is a proximate cause of an ultimate injury. Foreseeability as it impacts duty determinations refers to the knowledge of the risk of injury to be apprehended. The risk reasonably to be perceived defines the duty to be obeyed; it is the risk reasonably within the range of apprehension, of injury to another person, that is taken into account in determining the existence of the duty to exercise care. . . . Foreseeability that affects proximate cause, on the other hand, relates to the question of whether the specific act or omission of the defendant was such that the ultimate injury to the plaintiff reasonably flowed from defendant’s breach of duty. . . . Foreseeability in the proximate cause context relates to remoteness rather than the existence of a duty.
*

[Citations omitted.]
[B]y alleging that Ford and Firestone failed to exercise reasonable care in designing and manufacturing their tires, and failed to warn users of potential tire defects, the Stahleckers have alleged the existence of a legal duty and a breach thereof by both Ford and Firestone. The remaining issue is whether the breach of this duty was the proximate cause of Amy’s harm.
The proximate cause of an injury is “that cause which, in a natural and continuous sequence, without any efficient, intervening cause, produces the injury, and without which the injury would not have occurred.” [Citation omitted.] Stated another way, a plaintiff must meet [these] basic requirements in establishing [causation]: (1) [the actual cause requirement] that without the negligent action, the injury would not have occurred, commonly known as the “but-for” rule; [and] (2) [the proximate cause requirement] that the injury was a natural and probable result of the negligence. [In addition, there cannot have been] an efficient intervening cause.
As to the first requirement, a defendant’s conduct is the cause of the event if “the event would not have occurred but for that conduct; conversely, the defendant’s conduct is not a cause of the event if the event would have occurred without it.” [Citation omitted.] The petition alleges that Cook “found Amy alone and stranded as a direct result of the failure of the Firestone Wilderness AT Radial Tire and proceeded to abduct, terrorize, rape and murder Amy.” Firestone concedes that under the factual allegations of the Stahleckers’ petition—that “but for” the failure of its tire—Amy would not have been at the place where she was assaulted and murdered.
The [tests governing] proximate cause [and intervening cause] are somewhat interrelated. Was the criminal assault and murder the “natural and probable” result of the failure to warn of potential tire failure, or did the criminal acts constitute an effective intervening cause that would preclude any causal link between the failure to warn and the injuries and wrongful death for which damages are claimed in this action? An efficient intervening cause is a new, independent force intervening between the defendant’s negligent act and the plaintiff’s injury.
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This force may be the conduct of a third person who had full control of the situation, whose conduct the defendant could not anticipate or contemplate, and whose conduct resulted directly in the plaintiff’s injury. An efficient intervening cause must break the causal connection between the original wrong and the injury.
In Shelton v. Board of Regents, 320 N.W.2d 748 (Neb. 1982), we considered whether criminal conduct constituted an intervening cause. Shelton involved wrongful death claims brought on behalf of persons who were poisoned by a former employee of the Eugene C. Eppley Institute for Research in Cancer and Allied Diseases (the Institute). In their actions against the Institute . . . , the plaintiffs alleged that [even though] the former employee had a prior criminal conviction involving an attempted homicide, the Institute hired him as a research technologist and gave him access to the poisonous substance which he subsequently used to commit the murders. The plaintiffs alleged that the Institute was negligent in hiring the employee, in allowing him to have access to the poisonous substance, and in failing to monitor its inventory of the substance. The plaintiffs further alleged that the Institute’s negligence was the proximate cause of the injuries and deaths of the victims. The district court sustained a demurrer filed by the Institute and dismissed the actions. This court affirmed, holding . . . that the criminal acts of stealing the drug and administering it to the victims “were of such nature as to constitute an efficient intervening cause which destroys any claim that the alleged negligence of the [Institute] was the proximate cause of the appellants’ injuries and damage.” In reaching this conclusion, we relied upon Restatement (Second) of Torts § 448 (1965), which states the following rule:
The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.
We held [in Shelton] that the employee’s criminal acts were the cause of the injuries for which damages were claimed and that “nothing which the [plaintiffs] claim the . . . Institute failed to do was in any manner related to those acts, nor could they have been reasonably contemplated by the . . . Institute.”
We have, however, determined in certain premises liability cases and in cases involving negligent custodial entrustment that the criminal act of a third person does not constitute an efficient intervening cause. For example, in [one such case], a patron of a bar was seriously injured by another patron in the parking lot after the two were instructed by the bartender to take their argument “outside.” The injured patron sued the owner of the bar, alleging that the owner negligently failed to contact law enforcement, maintain proper security on the premises, and properly train his personnel. [R]evers[ing] a judgment on a jury verdict in favor of the owner, . . . [w]e reasoned that
because the harm resulting from a fight is precisely the harm against which [the owner] is alleged to have had a duty to protect [the patron], the “intervention” of [the other patron] cannot be said to be an independent act that would break the causal connection between [the owner’s] negligence and [the patron’s] injuries.
[Citation omitted.]
We employed similar reasoning in [two other cases that] involved negligent placement of juvenile wards of the state in foster homes without disclosure of their known histories of violent acts. In each of those cases, we held that criminal acts of foster children perpetrated upon members of the foster parents’ households could not be asserted as intervening causes to defeat liability for the negligent placement. Similarly, we recently held that a psychiatric patient’s criminal assault upon a nurse was not an intervening cause as to the negligence of a state agency which breached its duty to disclose the violent propensities of the patient at the time of his admission to the hospital where the assault occurred. These decisions were based upon the principle . . . that “once it is shown that a defendant had a duty to anticipate [a] criminal act and guard against it, the criminal act cannot supersede the defendant’s liability.” [Citation omitted.]
This principle requires that we determine whether the duty owed to Amy by Ford and Firestone, as manufacturers and sellers of the allegedly defective tires, included a duty to anticipate and guard against criminal acts perpetrated against the users of such tires. [As illustrated by the previously discussed cases dealing with juvenile wards and psychiatric patients,] we have recognized a duty to anticipate and protect another against criminal acts where the party charged with the duty has some right of control over the perpetrator of such acts or the physical premises upon which the crime occurs. [We have] recognized a duty on the part of the owner of business premises to protect invitees from criminal assault where there had been documented criminal activity in the immediate vicinity of the premises. [In addition, we have] held that a university had a duty to protect a student from physical hazing conducted in a fraternity house where similar incidents were known to have occurred previously[, and] that a university “owes a landowner-invitee duty to its students to take reasonable steps to protect against foreseeable acts of violence on its campus and the harm that naturally flows therefrom.” [Citation omitted.] However, we have adopted Restatement (Second) of Torts § 315 (1965), which provides:
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless . . . a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or . . . a special relation exists between the actor and the other which gives to the other a right to protection.
We have found no authority recognizing a duty on the part of the manufacturer of a product to protect a consumer from criminal activity at the scene of a product failure where no physical harm is caused by the product itself.
The Stahleckers argue that a duty to anticipate criminal acts associated with product failure arises from their allegations that Ford and Firestone knew or should have known of “the potential for similar dangerous situations arising as a result of a breakdown of a Ford
Explorer and/or its tires.” They also allege that Ford and Firestone had or should have had “knowledge, to include statistical information, regarding the likelihood of criminal conduct and/or sexual assault against auto and tire industry consumers as a result of unexpected auto and/or tire failures in general.” Assuming the truth of these allegations, the most that can be inferred is that Ford and Firestone had general knowledge that criminal assaults can occur at the scene of a vehicular product failure. However, it is generally known that violent crime can and does occur in a variety of settings, including the relative safety of a victim’s home. The facts alleged do not present the type of knowledge concerning a specific individual’s criminal propensity, or right of control over premises known to have been the scene of prior criminal activity, upon which we have recognized a tort duty to protect another from criminal acts.
The Stahleckers have not alleged, and could not allege, any special relationship between Ford and Firestone and the criminal actor (Cook) or the victim of his crime (Amy) that would extend their duty, as manufacturers and sellers of products, to protect a consumer from harm caused by a criminal act perpetrated at the scene of a product failure. In the absence of such a duty, [we must] conclude as a matter of law that the criminal assault constituted an efficient intervening cause which precludes a determination that negligence on the part of Ford and Firestone was the proximate cause of the harm [to Amy].
[Therefore,] the district court did not err in sustaining the demurrers of Ford and Firestone . . . and in dismissing the action as to them.

District court’s decision affirmed.

 

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Kuzmicz v. Ivy Hill Park Apartments, Inc.

Special Rules Whatever test for proximate cause a court adopts, most courts agree on certain basic causation rules. In case of a conflict, these rules supersede the proximate cause and intervening cause rules stated earlier. One such rule is that persons who are negligent “take their victims as they find them.” This means that a negligent defendant is liable for the full extent of her victim’s injuries if those injuries are aggravated by some preexisting physical susceptibility of the victim—even though this susceptibility could not have been foreseen. Similarly, negligent defendants normally are liable for diseases contracted by their victims while in a weakened state caused by their injuries. Negligent defendants typically are jointly liable—along with medical personnel—for negligent medical care that their victims receive for their injuries.

Res Ipsa Loquitur
 In some cases, negligence may be difficult to prove because the defendant has superior knowledge of the circumstances surrounding the plaintiff’s injury. It may not be in the defendant’s best interests to disclose those circumstances if they point to liability on his part. The classic example is an 1863 case, Byrne v. Boadle. The plaintiff was a pedestrian who had been hit on the head by a barrel of flour that fell from a warehouse owned by the defendant. The plaintiff had no way of knowing what caused the barrel to fall; he merely knew he had been injured. The only people likely to have known the relevant facts were the owners of the warehouse and their employees, but they most likely were the ones responsible for the accident. After observing that “[a] barrel could not roll out of a warehouse without some negligence,” the court required the defendant owner to show that he was not at fault.

Byrne v. Boadle eventually led to the doctrine of 
res
 
ipsa loquitur
 (“the thing speaks for itself”). Res ipsa applies when (1) the defendant has exclusive control of the instrumentality of harm (and therefore probable knowledge of, and responsibility for, the cause of the harm); (2) the harm that occurred would not ordinarily occur in the absence of negligence; and (3) the plaintiff was in no way responsible for his own injury. Most courts hold that when these three elements are satisfied, a presumption of breach of duty and causation arises. The defendant then runs a significant risk of losing the case if he does not produce evidence to rebut this presumption.
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CYBERLAW IN ACTION

Gentry v. eBay, Inc., 99 Cal. App. 4th 816 (2002), was a case brought by buyers of sports memorabilia that bore autographs later determined not to be genuine. The plaintiffs contended that eBay, an online marketplace on which the items were sold, should bear legal responsibility on various legal grounds, including negligence. According to the plaintiffs, eBay had been negligent: (1) by maintaining an online forum that allowed any user, regardless of his or her purchase history, to give positive or negative feedback regarding dealers and (2) by endorsing certain dealers on the basis of this feedback and the dealers’ sales volume. The plaintiffs contended that these actions by eBay created a false sense of confidence in the collectibles’ authenticity because most, if not all, of the positive feedback about a dealer would be generated either by that dealer or by another cooperating dealer.
A California appellate court held in Gentry that § 230 of the federal Communications Decency Act provided eBay a meritorious defense against the plaintiffs’ negligence claim. Section 230 states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The court reasoned that eBay was a “provider . . . of an interactive computer service” and that the plaintiffs’ negligence claim amounted, in substance, to an attempt to have eBay held liable for the effects of statements made by “another information content provider” or providers (i.e., those who, in the online forum, posted arguably misleading “feedback”). The court therefore regarded the plaintiffs’ negligence claim as an effort to have eBay treated as the “publisher” of information provided by another party. Section 230, the court held, prohibited such treatment of eBay.
Negligence Defenses The common law traditionally recognized two defenses to negligence: 
contributory negligence
 and 
assumption of risk
. In many states, however, these traditional defenses have been superseded by new defenses called 
comparative negligence
 and 

comparative fault

.

Explain the difference between traditional contributory negligence and the comparative negligence doctrine now followed by almost all states.

Contributory Negligence Contributory negligence is the plaintiff’s failure to exercise reasonable care for her own safety. In the very limited number of states where it still applies, contributory negligence is a complete defense for the defendant if it was a substantial factor in producing the plaintiff’s injury. So, if Preston steps into the path of Doyle’s speeding car without first checking to see whether any cars are coming, Preston would be denied any recovery against Doyle, in view of the clear causal relationship between Preston’s injury and his failure to exercise reasonable care for his own safety.

Explain the difference in operation between pure comparative negligence and mixed comparative negligence.

Comparative Negligence Traditionally, even a plaintiff’s fairly minor failure to exercise reasonable care for his own safety—only a slight departure from the standard of reasonable self-protectiveness—gave the defendant a complete contributory negligence defense. This rule, which probably stemmed from the 19th-century desire to protect railroads and infant manufacturing interests from negligence liability, came under increasing attack in the 20th century. The main reasons were the traditional rule’s harsh impact on many plaintiffs. The rule frequently prevented slightly negligent plaintiffs from recovering any compensation for their losses, even though the defendants may have been much more at fault.
In response to such complaints, almost all states have adopted comparative negligence systems either by statute or by judicial decision. The details of these systems vary, but the principle underlying them is essentially the same: courts seek to determine the relative negligence of the parties and award damages in proportion to the degrees of negligence determined. The formula is:
Plaintiff’s recovery = Defendant’s percentage share of the negligence causing the injury × Plaintiff’s proven damages
For example, assume that Dunne negligently injures Porter and that Porter suffers $100,000 in damages. A jury determines that Dunne was 80 percent at fault and Porter 20 percent at fault. Under comparative negligence, Porter would recover $80,000 from Dunne. What if Dunne’s share of the negligence is determined to be 40 percent and Porter’s 60 percent? Here, the results vary depending on whether the state in question has adopted a pure or a mixedcomparative negligence system. Under a pure system, courts apply the preceding formula regardless of the plaintiff’s and the defendant’s percentage shares of the negligence. Porter therefore would recover
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$40,000 in a pure comparative negligence state. Under a mixed system, the formula operates only when the defendant’s share of the negligence is greater than (or, in some states, greater than or equal to) 50 percent. If the plaintiff’s share of the negligence exceeds 50 percent, mixed systems provide that the defendant has a complete defense against liability. In such states, therefore, Porter would lose the case.

Currie v. Chevron USA, Inc., which appears earlier in the chapter, illustrates the operation of comparative negligence principles. In that wrongful death case arising out of a Chevron clerk’s negligence in authorizing a gas pump, the court reduced the amount of damages awarded to the plaintiff because the plaintiff’s decedent had been partially at fault (presumably through participating in a fight that, when it escalated, resulted in her death). The plaintiff still won a substantial damages award, but the amount was reduced in accordance with the percentage of fault attributed to her decedent.

Assumption of Risk Assumption of risk is the plaintiff’s voluntary consent to a known danger. Voluntariness means that the plaintiff accepted the risk of her own free will; knowledge means that the plaintiff was aware of the nature and extent of the risk. Often, the plaintiff’s knowledge and voluntariness are inferred from the facts. This type of assumption of risk is sometimes called implied assumption of risk. For example, Pilson voluntarily goes for a ride in Dudley’s car, even though Dudley has told Pilson that her car’s brakes frequently fail. Pilson probably has assumed the risk of injury from the car’s defective brakes. (For a court decision on whether implied assumption of risk applies, see Coomer v. Kansas City Royals Baseball Corp., a text case included in Chapter 1.)
A plaintiff can also expressly assume the risk of injury by entering into a contract that purports to relieve the defendant of a duty of care he would otherwise owe to the plaintiff. Such contract provisions are called exculpatory clauses. Chapter 15 discusses exculpatory clauses and the limitations that courts have imposed on their enforceability. The most important such limitations are that the plaintiff have knowledge of the exculpatory clause (which often boils down to a question of its conspicuousness), and that the plaintiff must accept it voluntarily (which does not happen when the defendant has greatly superior bargaining power).
What happens to assumption of risk in comparative negligence states? Some of these states maintain assumption of risk as a separate and complete defense. Most other states now incorporate implied assumption of risk within the state’s comparative negligence scheme. In such states, comparative negligence basically becomes comparative fault. Although the terms comparative negligence and comparative fault often are used interchangeably, technically the former involves only negligence and the latter involves all kinds of fault. In a comparative fault state, therefore, the fact-finder determines the plaintiff’s and the defendant’s relative shares of the fault—including assumption of risk—that caused the plaintiff’s injury.
Strict Liability

Identify circumstances in which strict liability principles, rather than those of negligence, control a case.

Strict liability
 is liability without fault or, perhaps more precisely, irrespective of fault. This means that in strict liability cases, the defendant is liable even though he did not intend to cause the harm and did not bring it about through recklessness or negligence.
The imposition of strict liability is a social policy decision that the risk associated with an activity should be borne by those who pursue it, rather than by innocent persons who are exposed to that risk. Such liability is premised on the defendant’s voluntary decision to engage in a particularly risky activity. When the defendant is a corporation that has engaged in such an activity, the assumption is that the firm can pass the costs of liability on to consumers in the form of higher prices for goods or services. Through strict liability, therefore, the economic costs created by certain harms are “socialized” by being transferred from the victims to defendants to society at large.
Strict liability, however, does not apply to the vast majority of activities. It therefore becomes important to consider which activities do trigger the liability-without-fault approach. The owners of trespassing livestock and the keepers of naturally dangerous wild animals were among the first classes of defendants on whom the courts imposed strict liability. Today, the two most important activities subject to judicially imposed strict liability are abnormally dangerous (or ultrahazardous) activities and the manufacture or sale of defective and unreasonably dangerous products. We discuss the latter in Chapter 20and the former immediately below.
Abnormally Dangerous Activities Abnormally dangerous (or ultrahazardous) activities are those necessarily involving a risk of harm that cannot be eliminated by the exercise of reasonable care. Among the activities treated as abnormally dangerous are blasting, crop dusting, stunt flying, and, in one case, the transportation of large quantities of gasoline by truck. (Most courts, however, would be unlikely to label the latter as abnormally dangerous.) Traditionally, contributory negligence has not been a defense in ultrahazardous activity cases, but assumption of risk has been a defense. In the Toms case, which follows, the court considers the factors to be taken into account in deciding whether strict liability is appropriate.

Toms v. Calvary Assembly of God, Inc.
132 A.3d 866 (Md. Ct. App. 2016)

Andrew Toms operated a dairy farm in Maryland. He owned a herd of approximately 90 dairy cows. A party other than Toms owned a 40-acre tract of land that was adjacent to Toms’s farm. With permission from the possessor of that tract of land, Calvary Assembly of God Inc. (a church) hosted a fireworks display on that property as part of a youth crusade. Calvary retained a professional fireworks company to handle the fireworks display. That company applied for and received the permit required by a Maryland statute. The fireworks company volunteered to have a 300-foot firing radius around the specific site at which the fireworks would be fired. The 300-foot radius exceeded the 250-foot minimum radius that state law required for the amount of fireworks to be discharged.

The fireworks display was open to the public. A deputy fire marshal was present to supervise the event. Approximately 250 shells were discharged over a 15-minute period, without any misfires. At the time of the event, Toms’s cattle were inside the barn that was located on his property. The barn was located more than 300 feet—perhaps roughly 500 feet—from the firing location. Toms arrived at the barn a few minutes after the discharging of fireworks began. According to Toms, the explosions startled his dairy cows and caused them to stampede inside the barn. In the lawsuit referred to below, Toms contended that the stampede resulted in the deaths of four cows. In addition to the loss of the four cows, Toms sustained property damage to fences and gates, disposal costs, and lost milk revenue.

Toms sent a demand letter to Calvary outlining the damages he claimed, but Calvary and the fireworks company denied liability. Toms then filed a lawsuit in which he sought to have Calvary and the fireworks company held liable on two alternative theories: negligence and strict liability. After a bench trial, a Maryland district court held that the defendants were not negligent and that strict liability was inapplicable. Toms appealed to a Maryland circuit court, which affirmed. The Maryland Court of Appeals then granted Toms’s request that it decide whether the lower courts ruled correctly on the strict liability question.

Greene, Judge

In this case, we address whether noise emanating from the discharge of a fireworks display constitutes an abnormally dangerous activity, which would warrant the imposition of strict liability.
Whether an activity constitutes an abnormally dangerous activity is a question of law. Maryland [recognizes] the doctrine of strict liability, which does not require a finding of fault in order to impose liability on a party. See Yommer v. McKenzie, 257 A.2d 138 (1969). The modern formulation of the strict liability doctrine is found in the Restatement (Second) of Torts §§ 519–520 (1977). This court adopted that formulation in Yommer, while the Restatement (Second) was still in its tentative draft. Restatement (Second) § 519 defines strict liability [this way]:
One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. . . . This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.
To determine whether an activity is abnormally dangerous, a court uses six factors. These factors are:
a. existence of a high degree of risk of some harm to the person, land or chattels of others;
b. likelihood that the harm that results from it will be great;
c. inability to eliminate the risk by the exercise of reasonable care;
d. extent to which the activity is not a matter of common usage;
e. inappropriateness of the activity to the place where it is carried on; and
f. extent to which its value to the community is outweighed by its dangerous attributes.

Restatement (Second) § 520. As the Restatement (Second) reminds us:
Because of the interplay of these various factors, it is not possible to reduce abnormally dangerous activities to any definition. The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care.
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Restatement (Second) § 520, comment f. The Reporter’s Note for this section identifies typical abnormally dangerous activities, such as the storage of large quantities of water or explosives in dangerous locations, and conducting blasting operations in the middle of a city.
[W]e weigh each Restatement factor independently. [I]t is not necessary to have all six factors weigh in favor of a particular party. More emphasis is placed on the fifth factor: the appropriateness of the activity in relation to its location. In Yommer, the owners of a gasoline station were held strictly liable for damages resulting from gasoline contamination of the well water of an adjacent residential property. There, we applied the Restatement factors, and found the fifth factor to be the most persuasive factor:
No one would deny that gasoline stations as a rule do not present any particular danger to the community. However, when the operation of such activity involves the placing of a large tank adjacent to a well from which a family must draw its water for drinking, bathing and laundry, at least that aspect of the activity is inappropriate to the locale, even when equated to the value of the activity.

Yommer, 257 A.2d at 139. “We accept the test of appropriateness as the proper one: that the unusual, the excessive, the extravagant, the bizarre are likely to be non-natural uses which lead to strict liability.” Id.
Though the doctrine of strict liability has evolved . . . , the policy concerns in favor of limiting its application remain. [For example, in] Gallagher v. H.V. Pierhomes, LLC, 957 A.2d 628 (Md. App. 2008), the Court of Special Appeals held that pile-driving was not an abnormally dangerous activity. There, pile-driving operations at the Inner Harbor in Baltimore City caused minor damage in a 200-year-old residence located 325 feet away from the construction site. The intermediate appellate court found that the defendants had acted appropriately in obtaining the proper permits, conducting geotechnical studies, and carefully monitoring the vibrations produced by the pile driving operations. The court concluded that the risk of harm produced by pile-driving operations “is not a high degree of risk which requires the application of strict liability” because that risk can be eliminated “through the exercise of ordinary care.”
Whether fireworks discharge constitutes an abnormally dangerous activity is a case of first impression in Maryland. Some jurisdictions, however, have addressed the issue of whether fireworks are abnormally dangerous. Although fireworks liability cases often share similar facts, jurisdictions disagree on whether discharging fireworks is an abnormally dangerous activity.
The highest appellate court in Washington, for instance, held pyrotechnicians strictly liable when a shell exploded improperly and injured spectators at a public fireworks show. Klein v. Pyrodyne Corp., 810 P.2d 917 (Wash. Sup. Ct. 1991). [The court] stated that Restatement factors (a) through (d) weighed in favor of imposing strict liability, because discharging fireworks creates a “high risk of serious bodily injury or property damage” due to the possibility of a malfunction or similar issue. Id. at 922. [The court added that] “[t]he dangerousness . . . is evidenced by the elaborate scheme of administrative regulations with which pyrotechnicians must comply[,]” including licensing and insurance requirements. Id. at 920. Under factor (d), [the court] further determined that discharging fireworks was not a matter of common usage, because the licensing scheme restricts the general public from engaging in that activity. In addition to the high risk discharging fireworks creates, the court determined that public policy and fairness warranted strict liability. Otherwise, the injured spectators would have been subject to the “problem of proof” because “all evidence was destroyed as to what caused the misfire of the shell that injured the [plaintiffs].” Id. at 921-22.
Other jurisdictions, however, have come to the opposite conclusion, and have held that the level of risk involved with a fireworks discharge does not warrant strict liability. In Haddon v. Lotito, 161 A.2d 160 (Pa. Sup. Ct. 1960), Pennsylvania’s highest appellate court applied the ultrahazardous activity test, and determined that strict liability . . . did not apply in a case involving spectator injuries at a public fireworks display. Critically, that court distinguished lawful from unlawful fireworks displays:
[A] public fireworks display, handled by a competent operator in a reasonably safe area and properly supervised (and there is no proof to the contrary herein), is not so dangerous an activity. . . . Where one discharges fireworks illegally or in such a manner as to amount to a nuisance and causes injury to another, some jurisdictions have held that liability follows without more. But the production of a public fireworks display, under the circumstances presented herein, is neither illegal nor a nuisance and, consequently, liability, if existing, must be predicated upon proof of negligence.

Id. at 162. Other courts have ruled similarly.
[We now consider] whether strict liability for an abnormally dangerous activity should be imposed on a . . . fireworks display [that was otherwise lawful under Maryland law]. [A Maryland statute] defines fireworks as “combustible, implosive or explosive compositions, substances, combinations of substances, or articles that are prepared to produce a visible or audible effect by combustion, explosion, implosion, deflagration, or detonation.” We disagree with Toms that our analysis should be so narrow as to focus solely on the audible component—the noise produced—by a fireworks display. [T]he noise itself is a by-product of the activity of discharging fireworks. By definition, under [the relevant statute], fireworks “are prepared to produce a visible or
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audible effect. . . .” Therefore, when applying the multi-factor test from § 520 of the Restatement (Second), we will consider all the characteristics and the nature of the risks associated with discharging fireworks. After all, we are also mindful that “[o]ne who carries on an abnormally dangerous activity is not under strict liability for every possible harm that may result from carrying it on.” Restatement (Second) § 519, comment e. We [now] apply the Restatement factors to the instant case:

(a) existence of a high degree of risk of some harm to the person, land, or chattels of others. Special events requiring the use of large, professional “display fireworks” are heavily regulated in Maryland pursuant to [a statutory scheme that requires a detailed application for a permit, supervision by a qualified person, and both official inspection and approval of the site for the display. All of those steps took place here.] We hold that a lawful fireworks display does not pose a high degree of risk, because the statutory scheme in place is designed to significantly reduce the risks associated with fireworks, namely mishandling, misfires, and malfunctions. Furthermore, the required firing radius of 250 feet was voluntarily extended by [the professional fireworks company] to 300 feet. Critically, in enacting the [statutory scheme, the legislature] did not regulate the audible effects of display fireworks, which indicates that any risk associated with the decibel level of a fireworks discharge is minimal or non-existent.
Lawful fireworks displays do not pose a significant risk because [the Maryland Code provides that] “[a] person who possesses or discharges fireworks in violation” of the permitting process “is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $250 for each offense.” To impose a relatively light penalty for an unlawful fireworks display is telling. If an unlawful fireworks display is only a misdemeanor offense with no possibility of incarceration, why then should strict liability be imposed for risks associated with a lawful fireworks display?

(b) likelihood that the harm that results from it will be great. This factor also weighs in favor of not imposing strict liability, because the purpose of a 300-foot perimeter surrounding the firing location is to mitigate the likelihood of harm. The statutory scheme regulating the use of fireworks is specifically designed to reduce risk. Because Toms’s dairy barn, and therefore his cows, were not located within the fallout zone, the likelihood of harm to the public and property was significantly reduced. The 300-foot firing radius was effective because no shells fired that night malfunctioned, and no debris littered Toms’s property.

(c) inability to eliminate the risk by the exercise of reasonable care. We disagree with Toms that reasonable care cannot reduce the risk of harm to livestock to acceptable levels. [In the statutory scheme, the legislature] took care to implement sufficient precautions so as to ensure that lawful fireworks displays can be a safe and enjoyable activity. This is evidenced by the active role the State Fire Marshal and authorities having jurisdiction have over the permitting process. Health and safety, therefore, are of paramount concern, and we are satisfied that the regulations sufficiently protect the public and property. Only qualified professional fireworks companies and their agents—authorized shooters—may apply for a permit. The requirements of mandatory insurance coverage, a physical site inspection, and event supervision is evidence of reasonable care that reduces the risk of harm. The site inspection and prior approval of an authority having jurisdiction ensures that the firing location is appropriate and that injury is unlikely. Importantly, additional measures are required if other properties are located within the fallout zone, including notice and permission from that property owner for their property to be used in the fallout zone.
The 300-foot firing radius is sufficient. Furthermore, notice to Toms was not necessary, because his dairy barn was located beyond the firing radius. In our view, the Restatement does not require the elimination of all risk, and because the risks inherent with a fireworks discharge can be reduced to acceptable levels, this factor does not support a conclusion of an abnormally dangerous activity.

(d) extent to which the activity is not a matter of common usage. [W]e define “common usage,” as it pertains to this case, broadly to include not only the professionals who discharge fireworks, but also the spectators who partake in the fireworks display. Almost by definition, lawful fireworks displays involve two parties: the shooter and the audience. We conclude that lawful fireworks displays are a matter of common usage.

(e) inappropriateness of the activity to the place where it is carried on. When this court adopted the Restatement (Second)’s multi-factor test for abnormally dangerous activities, this particular factor was identified as being the most crucial. See Yommer, supra. Implicit in the granting of a permit to discharge fireworks is the lawfulness of that proposed fireworks display. At trial, two deputy fire marshals testified about the procedures entailed with the permitting process, that a physical site inspection showed that the proposed firing location was appropriate, that the event was supervised and properly executed, and that the defendants complied with all applicable laws. Furthermore, a deputy fire marshal testified that although the state required a perimeter of 250 feet from the firing location, the defendants voluntarily extended it to 300 feet. In sum, we agree that a lawful fireworks display does not fall within the context of “the unusual, the excessive, the extravagant, the bizarre . . . non-natural uses which lead to strict liability.” Yommer, supra.

(f) extent to which its value to the community is outweighed by its dangerous attributes. Here, a church-sponsored fireworks display celebrated a youth crusade, and the event was open to the public. As a symbol of celebration, fireworks play an important role in our society, and are often met with much fanfare. The statutory scheme regulating its use minimizes the risk of accidents, thus reinforcing the popularity of these displays. [We] conclude that the social desirability of fireworks appears to outweigh their dangerous attributes.

Policy considerations. We are mindful that the doctrine of strict liability for abnormally dangerous activities is narrowly applied in order to avoid imposing “grievous burdens” on landowners and occupiers of land. [Citation omitted.] The use of fireworks, especially in public fireworks displays, is heavily regulated [by the state]. [According to the statute,] a permit to discharge fireworks cannot be obtained unless the State Fire Marshal determines that proposed fireworks display will “not endanger health or safety or damage property. . . .” In light of this policy, the defendants cannot be held strictly liable, because they lawfully complied with the conditions of the permit as well as applicable laws.
At trial, Toms did not present any evidence concerning what noise levels should be appropriate for public fireworks display. Sufficient evidence was not presented to the trier of fact that a lawful fireworks display was abnormally dangerous to livestock. Lawful fireworks displays are not an abnormally dangerous activity, because the statutory scheme regulating the use of fireworks significantly reduces the risk of harm associated with the discharge of fireworks.

Circuit Court judgment affirmed.

Statutory Strict Liability Strict liability principles are also embodied in modern legislation. The most important examples are the workers’ compensation acts passed by most states early in this century. Chapter 51 contains more detailed discussion of such statutes, which allow employees to recover statutorily limited amounts from their employers without any need to show fault on the employer’s part and without any consideration of contributory fault on the employee’s part. Employers participate in a compulsory liability insurance system and are expected to pass the costs of the system on to consumers, who then become the ultimate bearers of the human costs of industrial production. Other examples of statutory strict liability vary from state to state.

Tort Reform

The risk-spreading strategy of tort law has not been trouble-free. During roughly the past three decades, there has been considerable talk about a supposed crisis in the liability insurance system. From time to time over that period, the insurance system has been marked by refusals of coverage, reductions in coverage, and escalating premiums when coverage remains available. To some, this intermittent problem is largely the fault of the insurance industry. Among other things, such observers argue that insurers have manufactured the supposed crisis to obtain unjustified premium increases and to divert attention from insurer mismanagement of invested premium income.
To other observers, however, the reason for the supposed crisis is an explosion in tort liability. Examples cited include the tendency toward somewhat greater imposition of strict liability, increases in the frequency and size of punitive damage awards, and similar increases in awards for noneconomic harms such as pain and suffering. The greater costs imposed on defendants, some observers say, operate to increase the price and diminish the availability of liability insurance. In some cases, therefore, businesses may be required to self-insure or go without insurance coverage. In others, they may be able to obtain insurance—but only at a price that cannot be completely passed on to consumers. Where the costs can be fully passed on, the argument continues, they depress the economy by diminishing consumers’ purchasing power or adding to inflation, or both. In addition, the argument concludes, the liability explosion impedes the development of new products and technologies that might result in huge awards for injured plaintiffs.
These beliefs have fueled a movement for tort reform. By roughly 2000, many states had enacted some form of tort reform legislation. Such legislation typically follows one or both of two strategies: (1) limiting defendants’tort liability (plaintiffs’ ability to obtain a judgment) and (2) limiting the damagesplaintiffs can recover once they get a judgment.
The battle for tort reform has not ended, however. Proponents continue to seek additional reform measures. Tort reform opponents who lost the fight in the legislature have sometimes continued it in the courts. They have done so primarily by challenging tort reform measures on state constitutional grounds. Such challenges have succeeded in some states but have been rebuffed in others.
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In recent years, there have been calls in some quarters for Congress to enact caps on dollar amounts of damages for pain and suffering and similar noneconomic harm in certain negligence cases, most notably those involving alleged medical malpractice. Critics argue that damage caps’ major effect is a perverse one: limiting the rights of those who have experienced the worst and most long-lasting or debilitating injuries (and thus may be among the plaintiffs most deserving of recovery). Only those plaintiffs with quite severe injuries, the argument continues, have cases in which the potential damages would be likely to approach the ceiling set in the damage cap. As of the time this book went to press, no such federal measures had been enacted.

Problems and Problem Cases

1. During the evening hours, Hen Horn, a truck driver employed by Ralphs Grocery Co. (Ralphs), was driving in California on Interstate 10 as part of his job duties. Horn stopped his tractor-trailer rig on a large dirt shoulder alongside the highway in order to eat a snack he had brought with him. He regularly stopped for a snack in that spot when driving in the vicinity. The dirt shoulder was part of a somewhat larger dirt area that sat between Interstate 10 and an intersecting highway. Near the spot where Horn parked, California’s Department of Transportation had placed an “Emergency Parking Only” sign. Horn saw the sign from where he parked, approximately 16 feet from the outermost traffic lane of Interstate 10.
That same evening, Adelelmo Cabral was driving home from work alone in his pickup truck on Interstate 10. Juan Perez was driving behind Cabral on that same highway. Perez saw Cabral’s vehicle, which was traveling at 70 to 80 miles per hour, swerve within its lane, then change lanes rapidly, and then pass other vehicles. Cabral’s pickup truck crossed the outermost lane of traffic, left the highway, and traveled parallel to the road along the adjacent dirt until it hit the rear of Horn’s trailer. Perez saw no brake lights or other indications of an attempt on Cabral’s part to slow down before the collision. A toxicology report on Cabral, who died at the scene, was negative. Because there was no evidence of intoxication, suicide, or mechanical defect in the pickup, it appeared that Cabral had either fallen asleep or had been victimized by an unknown medical condition.
Cabral’s widow, Maria Cabral, sued Ralphs for the allegedly wrongful death of her husband. She contended that Ralphs should be liable because its employee (Horn) had caused her husband’s death through negligence in stopping for nonemergency reasons on the freeway shoulder. Ralphs responded by denying that Horn was negligent and by asserting that the decedent’s own negligence was the real cause of the accident. A California jury concluded that both Cabral and Horn were negligent and that their respective negligent acts were substantial factors in causing Cabral’s death. The jury returned a verdict in favor of Maria Cabral, but, as required by California law, the trial court reduced the amount of damages awarded by the jury in order to allow for the fact that the decedent’s own negligence had partially accounted for his death. Ralphs appealed to the California Court of Appeal, which reversed the lower court’s decision. The Court of Appeal held that there was no basis for holding Ralphs liable for negligence because neither Ralphs nor Horn owed the decedent a duty of reasonable care to prevent a collision with Horn’s parked-off-the-roadway rig. Maria Cabral appealed to the Supreme Court of California.
Was the Court of Appeal correct in its conclusion that neither Horn nor Ralphs owed a duty to the decedent? In any event, why would Ralphs even be at risk of liability? If there was negligence here, wasn’t it Horn’s? Why wouldn’t the decedent’s own negligence in falling asleep at the wheel bar Cabral from recovery, regardless of whether Horn or Ralphs was negligent?
2. Alvin and Gwendolyn Kallman retained All American Pest Control (AAPC) to treat and prevent pest infestation at their Virginia home on a quarterly basis. AAPC employee Patric Harrison performed one of the quarterly treatments. Three days before treating the Kaltmans’ home, Harrison had treated a commercial establishment with Orthene pesticide. After applying Orthene at that business, Harrison did not thoroughly clean his pesticide application equipment. As a result, he ended up applying a diluted spray of Orthene to the baseboards and adjoining floor surfaces throughout the Kaltmans’ home and to the concrete surfaces in the home’s basement and garage. As the pesticide was being applied, the Kaltmans complained to Harrison about the unusual and extraordinarily pungent odor. Harrison told them

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that the smell would dissipate, but it did not. Later that day, the Kaltmans telephoned AAPC to report their concern about the overwhelming stench. They were told that Harrison had applied an inappropriate pesticide that had a very strong and unpleasant odor.
The Kaltmans reported the incident to the Virginia Department of Agriculture and Consumer Services (VDACS). During the investigation by VDACS, Harrison admitted that he applied an Orthene dilution to the Kaltmans’ home. Harrison also admitted that he falsified the pertinent work order by documenting that he applied different pesticides. Laboratory analyses performed by VDACS revealed concentrations of acephate—a toxic ingredient in Orthene PCO Pellets—in the Kaltmans’ home. Exposure to acephate has been shown to cause nerve damage and cancer in laboratory animals. Orthene PCO Pellets are not licensed for residential use by VDACS. The Material Safety Data Sheet required by law for Orthene PCO Pellets states that the product “is not for indoor residential use,” “is for use in places other than private homes,” and should not be used on “unpainted masonry floors in poorly ventilated areas such as garages or basements . . . since persistent odor could develop.” AAPC informed the Kaltmans that although the odor from Orthene was unpleasant, it did not represent a health hazard. The Kaltmans therefore made more than a dozen attempts to eradicate the odor by washing the treated surfaces. They also had their home professionally cleaned. However, high concentrations of acephate remained. Because of the noxious fumes, their home was rendered uninhabitable for a year.
The Kaltmans sued AAPC and Harrison on a negligence per se theory in an effort to recover damages for their physical and emotional harms and for expenses they incurred. The trial court granted the defendants’ motion to have the “Pest Control Service Agreement” between the plaintiffs and AAPC made part of the pleadings. This agreement listed the pests to be controlled and stated that AAPC would “apply chemicals to control above-named pests in accordance with terms and conditions of this Service Agreement. All labors and materials will be furnished to provide the most efficient pest control and maximum safety required by federal, state and city regulations.” AACP and Harrison then filed demurrers to the negligence per se claim (i.e., they asked the court to dismiss the Kaltmans’ complaint for failure to state a valid course of action against them). The defendants argued that any duties they owed the plaintiffs stemmed from the parties’ contract and that the plaintiffs therefore could not assert a negligence per se claim. The trial court sustained the defendants’ demurrers. Was the trial court correct in doing so? Were the Kaltmans entitled to proceed on a negligence per se theory?
3. Ludmila Hresil and her niece were shopping at a Sears retail store. There were few shoppers in the store at the time. Hresil spent about 10 minutes in the store’s women’s department, where she observed no other shoppers. After Hresil’s niece completed a purchase in another part of the store, the two women began to walk through the women’s department. Hresil, who was pushing a shopping cart, suddenly lost her balance and struggled to avoid a fall. As she did so, her right leg struck the shopping cart and began to swell. Hresil observed a “gob” on the floor where she had slipped. Later, a Sears employee said that “it looked like someone spat on the floor, like it was phlegm.” Under the reasonable person standard, did Sears breach a duty to Hresil by not cleaning up the gob? Hint: Assume that Hresil could prove that the gob was on the floor only for the 10 minutes she spent in the women’s department.
4. Five months after the September 11, 2001, hijackings of airplanes and less than two months after a passenger on a Paris to Miami flight attempted to detonate explosives hidden in his shoe, Bryan and Jennifer Cook took an Atlantic Coast Airlines flight from Indianapolis to New York City. While passengers waited to board, a man later identified as French national Frederic Girard ran toward the gate and abruptly stopped. Mr. Cook observed that the unaccompanied Girard had two tickets in his position and that airline security had detained him at the boarding gate before allowing him to board. Mr. Cook further noticed that Girard’s face was red and that his eyes were bloodshot and glassy. In boarding the 32-passenger plane, Girard ran up the steps and jumped inside. Rather than proceeding to his assigned seat, he attempted to sit in a seat nearest the cockpit. However, the flight attendant instructed him to sit in the back row. After taking a seat there Girard repeatedly pressed the attendant call button and light switch above his head. Prior to takeoff, Mr. Cook approached the flight attendant and expressed concern that Girard was a possible security threat. The attendant acknowledged as much and explained that he had directed Girard to sit in the rear of the plane so he could keep an eye on him.
1. During takeoff, Girard ignored instructions to remain seated. He lit a cigarette, disregarding directives from the flight attendant that smoking onboard was prohibited. Despite this admonition, Girard was
2. permitted to retain his lighter. Mr. Cook approached three male passengers and asked for their assistance in the event that Girard’s behavior grew dangerous. Girard moved about the plane, sat in various empty seats, and finally walked up the aisle toward the cockpit. Mr. Cook blocked his path and instructed him to sit. Without any physical contact with Mr. Cook, Girard returned to his seat and lit another cigarette. The flight attendant again told him to extinguish the cigarette, and in response Girard stood and shouted, “Get back! Get back!” Mr. Cook and other passengers approached Girard and ordered him to sit down. Instead, Girard stomped his feet and shouted, mostly in French. The Cooks were able to discern the words “World Trade Center,” “Americans,” and “New York City.” Eventually, a Delta employee convinced Girard to sit after speaking to him in French. The employee spent the remainder of the flight sitting across from Girard in the rear of the plane. The pilot diverted the flight to Cleveland, where police arrested Girard. The flight then continued to New York City.
Recalling the events of September 11th and reports of the shoe-bomber incident, the Cooks described their ordeal as one in which they “have never been so scared in their entire lives” (quoting a brief they filed in the litigation about to be described). They filed a small claims court action in Marion County, Indiana, naming Atlantic Coast as a defendant. The Cooks sought damages for negligent infliction of emotional distress. After the small claims court entered judgment against the Cooks, they appealed to the Marion County Superior Court, which denied Atlantic Coast’s motion for summary judgment. The Indiana Court of Appeals upheld the Superior Court’s denial of the summary judgment motion. Atlantic Coast then appealed to the Supreme Court of Indiana. Did the lower courts rule correctly in denying Atlantic Coast’s motion for summary judgment?
3. Performance Plumbing and Heating (Performance) was in the business of installing water and sewer plumbing at Denver-area constitution sites. Unless assigned a company vehicle, Performance employees used their own vehicles to commute to and from work. Because employees were sometimes expected to drive for the company during the workday in order to transport job materials and company tools from Performance’s construction trailers to job sites (and vice versa), Performance required employment applicants to hold a valid driver’s license. However, Performance relied on the applicant’s truthfulness in stating whether he held a valid license. Performance checked driver’s licenses and driving records only as required by its insurance company when it assigned an employee a company vehicle to drive.
Performance hired Cory Weese as an apprentice plumber. Weese had completed an employment application in which he stated that he had a valid driver’s license and had not been cited for traffic violations. These statements were untrue. His license had been suspended because of numerous traffic violations, including careless driving and driving without a license. Because he would not be assigned a company vehicle, Performance hired Weese without checking to see whether his statements on the application were true. About a year after hiring Weese, Performance had his personal truck equipped with a rack for transporting pipe from construction trailers to work sites. Therefore, Performance intended that Weese drive during the day for the company, though it evidently did not check on his driving record at that time because he was not being assigned a company vehicle. (Weese’s license apparently had been reinstated before Performance had the pipe rack installed on his truck, however.) On a later date, when Weese’s work hours had ended and he was driving home, his truck collided with two cars. The collision resulted solely from Weese’s negligence. Carolyn Raleigh and her son were severely injured in the collision. They sued Performance. (Weese was liable to the Raleighs, of course, but this question pertains to their claims against Performance.) The Raleighs alleged two theories of recovery against Performance: respondeat superior (the doctrine under which an employer is liable for a tort committed by its employee if the tort was committed within the scope of employment) and negligent hiring. Was Performance liable on respondeat superior grounds? Was Performance liable on negligent hiring grounds?
4. Neal Berberich entered into a contract with Naomi Jack to perform work on her South Carolina home. During the course of the project, a controversy arose regarding Jack’s use of an automatic sprinkler system that came on periodically in various zones in the yard. In connection with an eventual lawsuit brought by Berberich against Jack, Berberich alleged that he asked Jack to shut off the sprinklers because he and his crew were having difficulty working with the sprinklers on. According to Berberich, Jack refused, told him to “make the best of the situation and work around it,” and became upset when Berberich turned the sprinklers off on several occasions. Berberich also stated that Jack threatened to lock the controls if the sprinklers were turned off again. Jack denied this but admitted that she did instruct one of Berberich’s crew members that her sprinkler system was not to be shut off again.

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At a time when Berberich was working alone on the exterior of Jack’s home, he saw the sprinklers come on in an area of the yard. He noticed that the controls had been locked, so he could not turn the system off. Berberich then moved to the front of the house, away from the sprinklers, to work on the windows. He ascended an eight-foot ladder to reach the top of a tall bay window to clean some caulking. As he was working, the sprinklers came on in the zone where his ladder was located. While coming down the ladder, Berberich slipped on a wet rung and fell to the ground, injuring himself. Berberich stated that he told Jack he had fallen and that he asked her to call for an ambulance, but that she ignored his request. As he walked away from Jack’s home, he collapsed in her driveway. Berberich used his cell phone to call for an ambulance, which arrived shortly after his call. He received medical treatment for his injuries, which included a lumbar strain and contusion, abrasions on his back and his left shoulder, and a swollen right ankle. Jack, in contrast, denied that Berberich told her he had fallen and that he had asked her to call an ambulance.
Berberich sued Jack in a South Carolina court, alleging that his injuries “were directly and proximately caused by [Jack’s] negligence . . . and recklessness.” His complaint sought recovery for medical expenses, lost wages, and other actual damages. At trial, Berberich contended that Jack’s actions in locking the controls and refusing to turn off the sprinklers constituted reckless conduct (not merely negligence). He asked the trial judge to charge the jury on the definition of recklessness. He also asked for the jury to be instructed that ordinary negligence is not a defense to a heightened degree of wrongdoing (so that if there were ordinary negligence on his part, it could not be compared to Jack’s allegedly reckless conduct). The trial judge denied the requests, concluding that the requested instructions were relevant only if punitive damages had been at issue (and they were not). The trial court instructed the jury on South Carolina’s comparative negligence rule, but not in the way Berberich requested. The jury returned a verdict for the defense. The jury found Berberich 75 percent negligent and Jack 25 percent at fault in causing the accident, resulting in no recovery for Berberich because South Carolina utilizes a mixed comparative negligence approach. When the trial court denied Berberich’s motions for a judgment notwithstanding the verdict and a new trial, Berberich appealed to the Supreme Court of South Carolina. If Jack’s fault consisted of negligence, was the jury verdict in favor of Jack correct in light of South Carolina’s comparative negligence statute? If the trial judge should have given the requested instruction on recklessness and if a proper instruction in that regard could have caused the jury to conclude that Jack acted recklessly, was Berberich correct in his argument that any negligence on his part should not be compared with Jack’s alleged recklessness?
5. LuAnn Plonski alleged that after shopping at a Kroger Co. grocery store in Indianapolis, Indiana, during afternoon hours, she proceeded to the store’s parking lot (where her car was parked), placed her purse in the shopping cart she was using, opened the trunk of her car, and began loading her groceries into the trunk. She noticed that a man was walking toward her. He did not appear to be a Kroger employee (and, in fact, was not a Kroger employee). The man began running toward Plonski, who grabbed her purse and tried to run away but did not succeed. The man grabbed Plonski and her purse. He then picked her up, threw her in the trunk of the car, and began slamming the trunk lid on her legs. When the man looked away, Plonski jumped out of the trunk and ran into the Kroger store. The man then left the scene with Plonski’s purse.
In an effort to collect damages for her injuries and the loss of her purse, Plonski filed a negligence lawsuit against Kroger in an Indiana court. After completion of discovery in the case, Kroger moved for summary judgment. Kroger argued that it owed no duty to Plonski and that even if it did owe a duty, there was no breach. In connection with its motion, Kroger provided affidavits from its risk manager and safety manager. Those affidavits asserted that the Kroger store in whose parking lot the incident occurred is located in a part of the city that has a reputation for low levels of criminal activity and that in the two-year period before the incident at issue, there had been only one report of criminal activity occurring on the store’s premises. Plonski responded to Kroger’s motion by citing her deposition testimony and other evidence. The trial court denied Kroger’s summary judgment request, and the Indiana Court of Appeals affirmed. Kroger appealed to the Supreme Court of Indiana. How did that court rule on whether Kroger owed a duty to Plonski and on whether Kroger was entitled to summary judgment?
6. On August 24, William Garris III and David Billups flew from Raleigh, North Carolina, to Joplin, Missouri, on a business trip for their employer, Carolina Forge Co. The trip was scheduled to take place from August

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24 to August 27, in Joplin. The primary purpose of the trip was to participate in a golf outing at the invitation of F.A.G. Bearings, a Carolina Forge customer. In advance of the trip, Carolina Forge paid for the airline tickets for Garris and Billups and for their rental car. Carolina Forge also paid for hotel rooms for the men. In addition, Carolina Forge gave Garris and Billups $600 in cash to pay for expenses incurred during the trip. The $600 was intended to pay for entertaining customers and for gas in the rental car. Carolina Forge also had a policy of reimbursing employees for additional out-of-pocket expenses during business trips, including meals, snacks, and alcoholic beverages. Carolina Forge was aware that alcohol would likely be consumed on the particular business trip Garris and Billups would be taking.
Garris and Billups arrived in Joplin on the evening of August 24 and checked into their hotel. The next morning, they visited the F.A.G. Bearings headquarters. Next, Garris and Billups arrived at another F.A.G. facility, where they took a tour and then delivered a presentation to company representatives. Following the presentation, Garris and Billups toured another portion of the facility. Garris and Billups then took three F.A.G. Bearings representatives to lunch in Joplin. After lunch, Garris and Billups played golf with F.A.G. Bearings representatives at a course just outside Joplin. Later, Garris and Billups had dinner and drinks at a Joplin steakhouse. No F.A.G. Bearings representatives joined Garris and Billups for dinner. Garris and Billups then went to a casino located approximately 30 miles west of Joplin. No representatives from F.A.G. Bearings accompanied Garris and Billups to the casino. After spending several hours at the casino (where they used their own money for drinks and for gambling), Garris and Billups decided to return to their hotel in Joplin. Upon leaving the casino, Billups drove the rental car. Because Billups took the wrong appropriate ramp for the relevant interstate highway, he and Garris were going away from Joplin rather than toward it. When Billups attempted to turn around, he negligently caused the rental car to collide with a truck in which Charles and Jennifer Sheffer and their son were riding. All three Sheffers were injured in the collision, as was Garris. Billups died in the accident.
The Sheffers sued Carolina Forge on two theories: respondeat superior, under which an employer is liable for an employee’s tort if it was committed within the scope of employment, and negligent entrustment of a vehicle (the rental car) to Billups and Garris. The trial court granted summary judgment in favor of Carolina Forge on both claims. Was the trial court correct in granting summary judgment to Carolina Forge on the respondeat superior claim? Was the trial court correct in granting summary judgment to Carolina Forge on the negligent entrustment claim?
7. On April 16, 1947, the SS Grandchamp, a cargo ship owned by the Republic of France and operated by the French Line, was loading a cargo of fertilizer grade ammonium nitrate (FGAN) at Texas City, Texas. A fire began on board the ship, apparently as a result of a longshoreman’s having carelessly discarded a cigarette or match into one of the ship’s holds. Despite attempts to put out the fire, it spread quickly. Approximately an hour after the fire was discovered, the Grandchamp exploded with tremendous force. Fire and burning debris spread throughout the waterfront, touching off further fires and explosions in other ships, refineries, gasoline storage tanks, and chemical plants. When the conflagration was over, 500 persons had been killed and more than 3,000 had been injured. The United States paid out considerable sums to victims of the disaster. The United States then sought to recoup these payments as damages in a negligence case against the Republic of France and the French Line. The evidence revealed that even though ammonium nitrate (which constituted approximately 95 percent of the FGAN) was known throughout the transportation industry as an oxidizing agent and a fire hazard, no one in charge on the Grandchamp had made any attempt to prohibit smoking in the ship’s holds. The defendants argued that they should not be held liable because FGAN was not known to be capable of exploding (as opposed to simply being a fire hazard) under circumstances such as those giving rise to the disaster. Did the defendants succeed with this argument?
1. Vera Dyer and her sons owned a Maine home believed to be more than 70 years old. The home had a cement foundation and floor. A stand-alone garage with a cement floor was constructed in the 1980s. In September 2004, Maine Drilling & Blasting distributed a notice informing the Dyers that it would soon begin blasting rock near the home in connection with a construction project to replace a bridge and bridge access roads. The notice stated that Maine Drilling uses “the most advanced technologies available . . . to measure the seismic effect to the area” and assured the Dyers “that ground vibrations associated with the blasting [would] not exceed the established limits that could potentially cause damage.” As offered in the notice, Maine Drilling provided a pre-blast survey of the Dyer home. The survey report recorded the surveyor’s observation of “some concrete deterioration to [the] west wall” and “cracking to [the] concrete floor,” and a slight tilt to a retaining wall behind the garage. Maine Drilling conducted more than 100 blasts between October 2004 and August 2005. The closest blast was approximately 100 feet from the Dyer home. Vera was inside the home for at least two of the blasts and felt the whole house shake. During other blasts, she was not in the home because Maine Drilling employees advised her to go outside. In the early spring of 2005, the Dyers observed several changes from the pre-blasting condition of the home and the garage: (1) the center of the basement floor had dropped as much as three inches; (2) the center beam in the basement that supported part of the first floor was sagging, and as a result, the first floor itself was noticeably un-level; (3) there was a new crack between the basement floor and the cement pad that formed the foundation of the chimney in the basement; (4) new or enlarged cracks radiated out across the basement floor from the chimney foundation; and (5) cracks that had previously existed in the garage floor were noticeably wider and more extensive. The Dyers also noticed that a flowerbed retaining wall that helped to support the rear wall of the garage had moved demonstrably.
The Dyers sued Maine Drilling in a Maine court. They alleged strict liability and negligence causes of action. Following completion of discovery, Maine Drilling moved for summary judgment. The court granted Maine Drilling summary judgment on the strict liability claim because Maine precedents indicated that blasting activities were to be governed by negligence principles rather than those of strict liability. The court also granted the defendant summary judgment on the negligence claim because, in the court’s view, the Dyers had failed to establish the elements of a negligence claim. The Dyers appealed to the Supreme Judicial Court of Maine. Did the lower court rule correctly on which set of legal principles—those of negligence or, instead, those of strict liability— should control the case?
2. Appalachian Power Co. (APCO) owns the Philip Sporn power plant (Sporn), a coal-fired power plant that generates electricity by burning coal to create steam and then passing the steam through a turbine. The power plant’s precipitators remove granular ash particles (“fly ash”) from the gases produced by burning coal. Precipitators generate significant heat, which can cause corrosion to its exterior steel siding and result in fly ash leakage.
Industrial Contractors Inc. (ICI) was hired by APCO to perform general maintenance at Sporn. This included welding metal patches to the exterior of the precipitators to prevent fly ash leakage. Roger Hoschar was a boilermaker employed by ICI from March 2006 to March 2007. During that period, he worked exclusively at Sporn. One of his frequent assignments consisted of hanging from a suspended platform and welding steel patches over corroded portions of the ducts leading into and out of Sporn’s Unit 5 precipitator. Before welding any steel patches, Hoschar and other workers had to remove debris that had built up in the steel channels. Because Unit 5 is an outdoor structure, pigeons sometimes perched on its steel channels and left their droppings behind. Therefore, the debris usually consisted of approximately three- to four-inch accumulations of bird manure and two-inch accumulations of fly ash. Hoschar removed the debris from the steel channels by hand, with a wire brush, or by using compressed air. When removing debris and while welding the steel patches, Hoschar wore a respirator over his face.
In March 2007, Hoschar’s employment with ICI ended. A 2009 chest X-ray revealed the presence of a mass on his right lung. He was diagnosed with histoplasmosis, an infectious disease caused by inhaling the spores of a naturally occurring soil-based fungus called histoplasma capsulatum. The histoplasma capsulatum fungus is endemic in the Ohio Valley region, where Sporn is located, because it grows best in soils with high nitrogen content. Once an individual inhales the fungus, it colonizes the lungs. However, the vast majority of people infected by histoplasmosis do not experience any symptoms of infection or suffer any ill effects. While Hoschar was working at Sporn, the Occupational Safety and Health Administration website maintained a page titled “Respiratory Protection: Hazard Recognition.” One of the reference documents found on that page was a publication by the National Institute for Occupational Safety and Health titled “Histoplasmosis: Protecting Workers at Risk.” This publication explained that the histoplasma capsulatum fungus “seems to grow best in soils having a high nitrogen content, especially those enriched with bird manure or bat droppings.” It further noted that the fungus “can be carried on the wings, feet, and beaks of birds and infect soil under roosting sites or manure accumulations inside or outside buildings.”

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Hoschar and his wife sued APCO for negligence. They alleged that Hoschar contracted histoplasmosis while working at Sporn as a result of inhaling contaminated dust when he swept out the mixtures of bird manure and fly ash that had accumulated in Unit 5’s steel channels. They also alleged APCO did not provide any written or verbal warnings concerning the presence of aged bird manure around Unit 5 or of the health risks associated with accumulations of bird manure, such as histoplasmosis. The court granted APCO’s motion for summary judgment, reasoning that under the circumstances, APCO did not owe Hoschar a duty of reasonable care. Was the court correct in that ruling?
3. Betty Webb ventured out in the rain to shop at a Dick’s Sporting Goods store. Upon her arrival, Webb noticed puddles in the parking lot and proceeded cautiously to the store’s entrance. As she entered the store, she stepped onto floor mats that Dick’s had placed in the entryway to soak up water tracked in by customers. Webb saw that the floor mats had shifted from their customary parallel formation into a “V” shape. A visible pool of water had formed in the center of the “V.” According to Webb, the mats were wet and spongy. There were no signs at the front of the store to warn customers that the floor could be wet. A crowd of other customers entering the store at the same time surrounded Webb. In an attempt to avoid the visible pool of water in the “V,” Webb stepped from one of the mats to a tile that appeared to her to be dry but was, in fact, wet. As she stepped onto the tile, she slipped and fell forward, injuring her knees, arms, and shoulders. A store employee witnessed the fall.
Webb later filed a negligence lawsuit against Dick’s in a Kentucky trial court. In her deposition, she stated that there were a number of fellow customers entering the store at the same time, which made it difficult for her to avoid the pool without pausing and waiting for people to pass. Webb acknowledged that her shoes were wet and that the lighting in the store was bright. Webb also admitted that if Dick’s had placed a sign near the entrance to warn of a wet floor, the warning probably would not have dissuaded her from entering the store.
Dick’s moved for summary judgment, asserting that the wet floor was an open-and-obvious condition that eliminated any duty potentially owed to Webb. The trial court agreed and granted summary judgment in favor of Dick’s. Webb appealed to the Kentucky Court of Appeals, which reversed the lower court’s decision after concluding that according to a precedent decision from the Supreme Court of Kentucky, a property owner may still owe a duty of reasonable care to persons lawfully on the premises even when a danger on the property is open and obvious. The Court of Appeals held that Dick’s had a duty to take reasonable steps to eliminate or reduce the open-and-obvious hazard and that whether Dick’s satisfied its duty was a question for the jury. Dick’s appealed to the Supreme Court of Kentucky. How did the Supreme Court rule? Did Dick’s owe the duty identified by the Court of Appeals?

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