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INTRODUCTION & INTENTIONAL TORTS

I. Overview: Aims & Approaches

II. Reading Torts Cases: Trial Procedures

III. Intentional Torts

A. Battery

1. Requiring Fault

Van Camp v. McAfoos Child riding tricycle hits pedestrian. No Fault – NOT LIABLE.

2. Elements of BatterySnyder v. Turk

Dr. pulls nurse’s face towards incision. Offensive touching - BATTERY.

Cohen v. Smith Women in labor. Informed hospital doesn’t want to be seen naked or touched b/c religious beliefs.

Nurse sees her naked and touches her. Offensive touching and lack of consent - BATTERY.

Mullins v. Parkview Hospital Came in for hysterectomy. Wanted privacy, so crossed off presence of health care learners on

consent form. Dr. left EMT student in when patient was unconscious. EMT student lacerated esophagus while intubating. Must intend to cause harmful contact.

Harmful contact, but no intent – NO BATTERY

A.R.B. v. Elkin Male and female sexually abused by father, including physical touchings. Harmful touching and lack of consent - BATTERY

3. Defining IntentGarratt v. Dailey

Child pulls chair out from under P. Even if he didn’t desire harm, if D knows: Substantial certainty that P will be harmed (intent) - BATTERY

White v. Muniz Dementia patient strikes caregiver in the jaw. Not only intend to contact another person, but must intend that contact be harmful or offensive

(dual intent) – NOT BATTERYo Depends on if state requires dual intent. CO did.

Wagner v. State

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Waiting in check-out line when attacked from behind by mentally disabled patient in care of state. Utah statute says state not liable if patient committed battery.

Intended to make contact, may not have intended for contact to be harmful or offensive (single intent) – BATTERY

o Depends on if state requires single intent. UT did.

Stoshak v. East Baton Rouge Parish School Principal tried to break up a fight, was accidentally struck in the head. Ds intended to hurt each other, Transferred Intent - BATTERY

Baska v. Scherzer Fight broke out between Ds. P went to break it up and was accidentally punched. Ds punching was intentional towards one another, Transferred Intent - BATTERY

B. AssaultCullison v. Medley

P meets 16yr old girl, invites her to house but declines. Family comes that night to his house; surrounds him, threatens verbally with bodily harm, and shows revolver.

No contact, but creates the reasonable apprehension of imminent danger - ASSAULT

Koffman v. Garnett Football coach showing technique by tackling D and accidentally breaks D’s collar bone. Unaware of imminent danger - NO ASSAULT

C. False ImprisonmentMcCann v. WalMart

Family not allowed to leave store because son was thought to be a shoplifter. No actual physical restraint, but threat of physical force – FALSE IMPRISONMENT

D. Torts to Property

1. Trespass to Land

2. Conversion of Chattels

4. Trespass to ChattelsSchool of Visual Arts v. Kuprewicz

D is a former employee of school. Caused large volumes of porn email and job applications to be sent to P, resulting in depleted hard disk space.

Intentional, w/o consent or justification, physically interfered w/ use and enjoyment of personal property, P was harmed – TRESPASS TO CHATTEL

E. Forcible Harms as Civil Rights Violations

1. The § 1983 ClaimYang v. Hardin

2 police officers enter shop. One steals, when confronted uses forcible harm against store owner. Other cop does nothing to stop him.

Deprived civil rights by not interfering, under color of law - § 1983 VIOLATION

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2. Exemplars of Constitutional ViolationsMeals v. City of Memphis

Officer in pursuit of car. Car speeding, blew through intersection, went up a one way, and struck and killed 2 men. City had policy to discontinue unsafe pursuits.

No Intent to Injure – NO § 1983 UNDER DUE PROCESS VIOLATION OF 14TH AMENDMENT

Alexander v. DeAngelo Cops induced woman to pose as prostitute in sting operation and offer oral sex. Threatened her

with arrest and 40yr prison term. Deprived civil rights by using threats to procure sex, under color of law - § 1983 VIOLATION

UNDER DUE PROCESS CLAUSE

Brown v. Muhlenberg Township Cop shot a dog that was in a parking lot. Dog was not aggressive and owner yelled not to shoot. Deprived civil rights by destroying property, under color of law - § 1983 VIOLATION UNDER

UNREASONABLE SEIZURES OF 4TH AMENDMENT

Graham v. Connor Diabetic man rushed into store for sugar, line too long, so rushed out. Cop was suspicious so

pulled him over. Cops didn’t believe him and threw him against car face first. Deprived civil right by excessive force, under color of law - § 1983 VIOLATION UNDER

UNREASOABLE SEARCH AND SEIZURES OF 4TH AMENDMENT

Hudson v. McMillian Prisoner was beaten by guards. There was no significant injuries. No significant injury, wanton & unnecessary force - § 1983 VIOLATION UNDER CRUEL AND

UNUSUAL PUNISHMENT OF 8TH AMENDMENT

IV. Defenses to Intentional Torts—Privileges

A. Protecting Against the Apparent Misconduct of the Plaintiff

1. Self-Defense

2. Defense of Third Persons

3. Arrest and DetentionPeters v. Menard Inc.

Store security guard saw man shoplift drill, questioned man who fled by foot. Guards pursued, man ran into river and drowned.

Allowed to detain when reasonably believes one shoplifted – NOT LIABLE

4. Defense and Repossession of PropertyKatko v. Briney

Sets up rigged shotgun to shoot intruder. Intruder shot in leg. Person not present, no threat of bodily harm, only threat to property – LIABLE

o Restatements – human life outweighs possession of land

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Brown v. Martinez 3 boys go into garden to steal watermelons. Man comes out with shotgun and shoots warning shot,

hitting a boy in the leg. No threat of bodily harm, only threat to property - LIABLE

5. Discipline

6. Observing Privileges

B. ConsentRobins v. Harris

Prison guard raped prisoner in shower There is no consent claim when one party has a position of power over of the other - LIABLE

Ashcraft v. King Child needed surgery with blood transfusion. Parents told doctor to only use family’s blood.

Instead used blood from general supply and contracted HIV. Gave consent, put condition on consent – LIABLE

o Disregard of P’s rights = intent for battery

Kennedy v. Parrott Doctor performing surgery on patient for appendicitis. Doctor founds cysts that were potentially

harmful, so treated them. Patient became sick, claims she gave no consent to treat cysts. No consent, within scope of operation – NOT LIABLE

D. Privileges Not Based on Plaintiff’s ConductSurocco v. Geary

Fire spreading, police chief blows up P’s house to avoid spread of fire. Reasonable, Public Necessity, Imminent Danger – NOT LIABLE

Wegner v. Milwaukee Mutual Ins. Co. Drug dealer hid in person’s house to avoid cops. Cops fired tear gas and flash bang grenades,

causing extensive damage to the house No public necessity, no imminent danger, taking of land - LIABLE

Ploof v. Putnam During dangerous storm, family lands boat on D’s island. D’s servant unmoored boat, causing

damage to boat and injury to family. Trespass but Private Necessity – D IS LIABLE

Vincent v. Lake Erie Transportation Co. Steamship docked to unload cargo, heavy storm comes so it stays moored. Caused $500 damage to

dock. Private Necessity, Allowed to Trespass, Damaged Property – ALLOWED TO STAY UNDER

PRIVATE NECESSITY BUT MUST COMPENSATE FOR DAMAGESo Don’t need to compensate when it is public necessity, only private necessity

NEGLIGENCE: DUTY & BREACH OF DUTY

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I. Negligence

A. Duty

1. Negligence and Fault

2. Institutions and Elements of Negligence

3. The General Duty of Care: The Prudent Person StandardStewart v. Motts

Man injured when helping mechanic work on car fuel tank. NEGLIGENT

o Reasonable care standard, but degree of care required increases with danger and risk.

Bjorndal v. Weitman Woman driving down highway looking for father. D is driving behind her, he saw father waving

hands, then woman slowed down rapidly and turned left at same time as D did to avoid her, and he collided into her. Trial jury given emergency instructions.

NO EMERGENCY INSTRUCTIONSo Normal negligence jury instructions ok. What reasonable person would do in all

circumstances, including emergencies

Shepherd v. Gardner Wholesale Man with cataracts tripped over raised concrete slab in front of a business. NEGLIGENT

o Man was not required to exercise higher degree of care to avoid his injury

Creasy v. Rusk Patient with Alzheimer’s at medical facility kicked nurse. NEGLIGENT (except not here because nurse was caregiver)

o Mentally disabled people held to same standard of care as reasonable people in same circumstances

Hill v. Sparks Man killed sister when he operated hill scraper machine, had her get on ladder, hit mound of dirt,

bounced her off, and ran her over. Did not meet required standard of care - NEGLIGENT

o When a professional in field, must exercise superior qualities in a manner reasonable under the circumstances.

Robinson v. Lindsay P on back of snowmobile driven by 13yr old and was injured. Adult Standard of Care when an inherently dangerous activity - NEGLIGENT

Hudson-Connor v. Putney 11yr old driving golf cart, accidentally hit gas instead of break and ran into P. Child Standard because not an adult activity – NOT NEGLIGENT

5. Specification of Particular Standards or Duties

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Marshall v. Southern Railway Co. Train tracks had supports by the road, P ran into one because claims he was distracted by bright

lights of another care. NOT NEGLIGENT

o Car driver must exercise reasonable care while driving.

Chaffin v. Brame Driving at night, blinded by other car’s high beams, hit truck stopped with no lights which was the

blocking the entire right lane. Driving safely, Collision not reasonably foreseeable – NOT CONTRIBUTORY NEGLIGENCE

Martin v. Herzog D was driving at night, crosses center of road on a curve and struck buggy, killing the person on it.

P did not have lights on. Statute says vehicles must have lights on when sun is down P IS CONTRIBUTORILY NEGLIGENT

o Negligence per se (defined by statute)

O’Guin v. Bingham County While walking home from elementary school, children went through unlocked gate through

schoolyard through private empty field to landfill, which had no fence. Landfill open one day a week, was closed that day. No employees were present. Children were killed in when wall in landfill collapsed.

Negligence per se if:o 1. Statute must clearly define required standard of conduct (said to block access)o 2. Statute must have been intended to prevent type of harm D’s act caused (said to ensure

protection of health)o 3. P must be a member of class of persons that statute was designed to protect (included

unauthorized persons)o 4. Violation must have been the proximate cause of the injury. (caused injuries)

NEGLIGENT

Impson v. Structural Metals Inc. Driver tried passing within 100ft of intersection, struck car in front which was making a left,

causing a death. Statute says no passing within 100ft of an intersection. Driver says he is excused b/c of multiple reasons (i.e. forgot about intersection, no “no passing” signs, etc.)

Negligence per se - NEGLIGENT

B. Breach of Duty

1. Assessing Reasonable Care by Assessing Foreseeable Risks and CostsPipher v. Parsell

While driving, passenger in back seat grabbed steering wheel, causing it to veer onto shoulder. He did it again 30 seconds later, causing truck to hit tree and causing injury to another passenger.

Harmful actions are foreseeable, Duty of care – DRIVER IS NEGLIGENT

Indiana Consolidated Insurance Co. v. Mathew Started lawn mower in brother’s garage, caught fire. Tried to extinguish it, but couldn’t. Ran home

to call Fire Department. Came back, garage was engulfed in flames. Not reasonably foreseeable, Acted as ordinary person would in emergency – NOT NEGLIGENT

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Stinnett v. Buchele Farm employee injured when fell off roof. Sued employer alleging that he did not supply a safe

working area. Cannot guarantee absolutely safe environment – NOT NEGLIGENT

Bernier v. Boston Edison Co. Car hits light pole, which strikes and injures pedestrians. They sue company that made and put up

pole. Duty of Care, foreseeable - NEGLIGENT

US v. Carroll Towing Co. Barge sank when bargee was not on board Failure to have bargee on board - NEGLIGENT

o If B<PL is then is negligent; when… B = ’s costs of accident preventing precautions

o P = probability of accident occurring if no precaution is takingo L = How “bad” the injury is… (in $s)

2. Assessing Responsibility When More Than One Person Is Negligent

3. Proving and Evaluating Conduct

a. Proving ConductSantiago v. First Student

P was passenger on school bus, claims she was injured when bus hit vehicle. Couldn’t remember where, didn’t see accident, no police report

Preponderance of evidence on P – NOT NEGLIGENT

Upchurch v. Rottenberry Driver lost control of car, hit tree, killing passenger. She claims a large animal darted out and

caused her to lose control. She was the only witness. UP TO THE JURY TO DETERMINE CREDIBILITY

Forsyth v. Joseph P in his car and hit by D’s truck. D admitted to be going 55mph when collision occurred. Had to

have been speeding before since tried to stop. Inference that D was speeding - NEGLIGENT

b. Evaluating ConductThoma v. Cracker Barrel

P slipped in fell on wet spot in restaurant. Never saw anything spilled. Must show D caused it or had knowledge of it – NOT NEGLIGENT

WalMart v. Wright Slipped on puddle of water in WalMart. Employee handbook held employees to higher standard

than the reasonable care standard. Not bound by higher standard, still use reasonable care – NOT NEGLIGENT

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Duncan v. Corbetta P injured when walking down wooden stairs at P’s house and step collapsed. D did not build stair

and it was a commonly used type. Proof of General Custom and Usage – NOT NEGLIGENT

The TJ Hooper Tugboat sank in a storm, could have been avoided if it had a radio (not customary). Reasonable Person Standard - NEGLIGENT

4. Proving Unspecified Negligence: Res Ipsa Loquitur

a. Origins and Basic FeaturesByrne v. Boadle

Barrel rolled off warehouse roof hitting P NEGLIGENT

o Where an accident could not have happened in the absence of a defendant’s negligence, a plaintiff does not have to prove the defendant’s negligence.

b. Is Negligence More Probable Than Not?Koch v. Norris Public Power District

Power line fell and broke onto P’s property causing fire. res ipsa loquitur is applied in the absence of a substantial, significant, or probable explanation -

NEGLIGENT

Cosgrove v. Commonwealth Edison Co. Power line sparking in alley behind P’s house. Line fell and started fire injuring P. Leak in buried

gas line ignited the sparks. POWER COMPANY NOT NEGLIGENT

o Gas company is negligent. Leak is result of negligence. Down line can come from other things (wind, storm, etc.).

Warren v. Jeffries P’s family borrowed D’s car. As children were waiting in car, began to roll backwards, one

jumped out and was crushed by wheel. NOT NEGLIGENT

o Car was not examined after. All allegations are speculation (didn’t keep good brakes, didn’t put on hand brake)

c. Attributing the Fault to Defendant Rather Than OthersGiles v. City of New Haven

P was elevator operator, injured when elevator fell. D testifies that P was operating it and had control, only way it could have malfunctioned the way it did was misoperation by P.

REMANDED FOR JURY TRIAL TO LOOK AT FACTSo Just because a person uses the instrumentality of harm (the elevator), that doesn’t

automatically preclude a finding of res ipsa loquitur.

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Collins v. Superior Ambulance Bedridden mother lives with daughter. Daughter has to go away for a few days, so ambulance

takes mother to and from health care center while she’s gone. When back discovers mother is dehydrated and has broken leg. Sues health care center and ambulance. Ambulance company contends they can’t prove who is responsible.

NEGLIGENTo Court concludes that where there are only 2 Ds who had consecutive control over P, and

either one could have caused P’s injuries, and both are named in the complaint, the complaint is sufficient for pleading purposes to raise the inference of negligence under the doctrine of res ipsa loquitur.

C. Actual HarmRight v. Breen

P rear ended at stop light. Did not complain of any bodily injury. There must be proof of actual harm and causation for a negligence claim to succeed even if only

for nominal damages.

D. Cause in Fact

1. The But-for Test of CausationHale v. Ostrow

Walking home from bus stop. D’s bushes went far into sidewalk, so had to walk out into road to go around. When she did, she tripped on crack in sidewalk and was injured.

D’s actions need not be sole cause, just a cause – NEGLIGENTo If it weren’t BUT FOR THE BUSHES, would not have walked out into road and been

injured.

Salinetro v. Nystrom Goes for x-rays, she was pregnant (but didn’t yet know it). Dr never asked. Baby dies. NOT NEGLIGENT

o Even if he did ask, P would have said no. It was not but for Dr’s actions that caused baby’s death.

2. Problems With and Alternatives to But-for TestsLanders v. East Texas Salt Water Disposal Co.

Landers owned a lake that he kept full of fish. A pipeline owned by East Texas ruptured and saltwater flowed into the lake, poisoning the fish (and causing other damages). At the same time, a different pipeline owned by Sun Oil Company ruptured and more saltwater and oil entered Landers' lake. Sued both.

Jointly and Severally Liable – BOTH NEGLIGENT

Anderson v. Minneapolis, St. Paul Railway One of D’s engines started fire in bog near west end of P’s land. Another fire had started (not by

D). P’s land caught on fire. NEGLIGENT

o Even if D’s fire combined with other fire to destroy land, still liable

3. Proof: What Was Caused?Summers v. Tice

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Hunting, both Ds had shotguns. Both knew where P was standing. Both shot at quail in direction of where P was. P injured, one of Ds shot him, but not both.

Acting in concert (same activity), negligent act – BOTH NEGLIGENT

Lord v. Lovett Suffered broken neck in auto accident. Hospital misdiagnosed her, claims deprived her of a better

recovery. NEGLIGENT

o Can only recover lost opportunity to obtain a better degree of recovery (1 of 3 approaches)

Alexander v. Scheid Dr did x-ray and saw density in brain, but never followed up. Months later, P found out from other

dr she had advanced cancer. Chances of long-term survival were reduced because of delay. Loss of Opportunity – NEGLIGENT

o Loss of chance can be type of injury (decreased life expectancy)

Dillon v. Evanston Hospital Had surgery, as catheter was being taken out, part broke off and stayed in body. Hospital did not

tell her. Eventually, pieces got into her heart. NEGLIGENT

o May be able to collect damages for increased risk of future harm. Must look at evidence and the damages proportioned to the probability future harm will materialize.

PROXIMATE CAUSE

E. Proximate Cause

1. The Principle: Scope of RiskMedcalf v. Washington Heights Condo Ass’n

P and friend visit other friend at condo complex. P parked car at street level parking lot and walked to lobby doors, lighting was dim. Used intercom, friend tried to buzz her in, but it didn’t work, so friend has to come down. While waiting for friend, attacked by man and suffered injuries.

No proximate cause, not reasonably foreseeable – NOT NEGLIGENTo Substantial factor test: whether harm which occurred was of the same general nature as the

foreseeable risk created by the D’s negligence.

Abrams v. City of Chicago P suing city for herself and estate of deceased child bc alleged D was negligent in failing to send

an ambulance to take her to hospital for delivery of child when contractions were 10mins apart. Friend had to take her in car, drove through red light with horn sounding, and struck by Greg Jones who was going 75mph who was under influence of alcohol and cocaine. P in coma for 2 weeks and child died.

No proximate cause, not reasonably foreseeable – NOT NEGLIGENTo City couldn’t reasonably anticipated refusal to send ambulance for labor w/ 10 min

contractions would lead to what happened.

Palsgraf v. Long Island Railroad Co. P was standing on D’s railroad platform waiting for train. Another train arrived, 2 men rushed to

get on it as it started to move, 2 train guards helped them get on. One man dropped box of

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fireworks (box was unmarked) on track which exploded, which threw down scales, some of which fell on P and injured her.

No proximate cause, not reasonably foreseeable – NOT NEGLIGENTo Not foreseeable there would be an explosion.

2. Assessing the Scope of the Risk

a. Is Harm Outside the Scope of the Risk Because of the Manner in Which It Occurs?

Hughes v. Lord Advocate Workers left manhole unguarded along with their kerosene lanterns while on a break. 2 boyswent

into manhole with a lantern. Once back up, one of them accidentally dropped lantern into manhole, causing an explosion.  This gaseous form of kerosene came into contact with the lantern’s flame and created a large explosion. One boy fell into manhole as a result and was severely burned.

Plaintiff’s burns were foreseeable, even though the manner in which they occurred was not – NEGLIGENT

Doughty v. Turner Manufacturing Co. Molten liquid was used at D’s plant. Covers were set beside it, to be put on as needed to conserve

heat. Worked knocked cover in accidentally, there was no splash but after 1-2mins molten liquid erupted and injured P.

D only owed duty to foreseeable risk of the splash not the explosion – NOT NEGLIGENT

b. Is Harm Outside the Scope of the Risk Because Its Extent Is Unforeseeable?

Hammerstein v. Jean Development West P, about 70yrs old, was guest at D’s hotel. Hotel knew he was diabetic and walking up and down

stairs was bad for him, but no 1st floor rooms available. There was an elevator. In the AM, fire alarms went off and elevators locked. P had to walk down stairs. He twisted his ankle and got a blister which became a gangrenous infection probably bc of his diabetes. There was no fire and fire alarms had done this in the past but were never fixed.

Injury was foreseeable – NEGLIGENTo If fire alarm system was unreasonably faulty, harm to a certain type of P (i.e. one of its

guests) could result. Injuring a foot on way down stairwell is foreseeable.

c. Is Harm Outside the Scope of the Risk Because It Results Most Directly From an Act or an Intervening Person or Force?

i. Introduction: Scope of Risk and Natural and Continuous Sequence

ii. Intentional or Criminal Intervening ActsWatson v. Kentucky & Indiana Bridge & Railroad

D’s railroad negligently derailed a gasoline tank car and it sprung a leak. A man named Duerr threw a match into the area and an explosion resulted, causing P injury.

DEPENDS ON INTENT OF DUERRo If Duerr threw match for the purpose of causing an explosion, D is not liable. If Duerr did

not intend that, D is liable.

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Delaney v. Reynolds P began to live with D, a cop. D routinely stored a loaded and unlocked gun in his bedroom. D

knew that P knew where the gun was stored. D also knew P was depressed and had substance abuse problems. P was smoking crack and drinking heavily, so D told her to move out. P grabbed gun, went into living room, and shot 2x at window, did not go off. She ran back upstairs pursued by D, put the gun under her chin and pulled trigger. This time it went off and she was seriously injured.

Not a superseding cause – NEGLIGENTo Depends on the state, some say suicide is a superseding cause

iii. Negligent Intervening ActsDerdiarian v. Felix Contracting

P was burned by vat of hot sealing liquid when D insisted he setup his operation on a part of the highway facing traffic and the D afforded him little protection from that traffic; Dickens suffered an epileptic seizure crashed through Felix’s barricade and P was burned by liquid.

D’s actions a substantial cause, Dickens not a superseding cause, foreseeable a car could crash through the barrier – NEGLIGENT

o The precise manner of the event need not be anticipated.

Ventricelli v. Kinney System Rent A Car Defective trunk lid on rent a car caused P to try to close lid when a 3rd person ran into P while he

stood behind the rental car in a parking spot. D not proximate cause, collision between 2 parked cars not foreseeable – NOT NEGLIGENT

Marshall v. Nugent P was passenger in Harriman’s car. Highway had ice and snow. When got to top of hill, a truck

was coming toward him (driven by Prince), partly in his lane. H went off the road. Prince (D) stopped to help pull car back on road. Road was partly blocked by them, so P walked to top of hill to wave on motorists. Before he got there, Nugent drove over hill, saw truck blocking part of road, and attempted to avoid it. N skidded into P.

Proximate cause, foreseeable that someone would go to wave on motorists – NEGLIGENTo Scope of proximate cause tends to be broader with car accidents

DEFENSES

I. Contributory / Comparative Fault

A. Contributory Negligence: The Common Law RuleButterfield v. Forrester

P riding violently crashed into D’s pole on the road, causing him to fall from his horse Contributory Negligence, P didn’t use common and ordinary care – D NOT LIABLE

o For Plaintiff to recover two things must occur: (1) an obstruction in the road by the fault of Defendant; and (2) no want of ordinary care to avoid it on the part of plaintiff.

o When case was decided, contributory negligence was complete bar from recovery.

B. Adopting and Applying Comparative Fault RulesWassell v. Adams

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Woman staying in hotel. Someone knocks at 1am and she opens the door and is attacked. Alleges hotel did not warn her.

Jury says hotel was proximate cause, but comparative negligence. 97% woman, 3% hotel. Only need to pay 3% of alleged damages.

C. All-or-Nothing Judgments after Comparative Fault

C. Allocating Full Responsibility to the Defendant in the Interests of Policy or JusticeBexiga v. Havir Manufacturing Corp.

P, a minor, was operating a power punch machine for D, his employer. Right hand was crushed by machine. P’s expert witness said device had no safety devices. There were currently 2 types of devices that could have been on the machine.

CONTRIBUTORY NEGLIGENCE NOT A DEFENSE. REMANDED.o D has special duty to protect P from his own fault.

Christensen v. Royal School District No. 160 13 year old P engaged in sexual activity with teacher. Family sues the school for hiring him.

School asserts contributory fault to child for consenting. Child does not have duty to protect themselves from sexual abuse - NEGLIGENT

Leroy Fibre Co. v. Chicago, Milwaukee & St. Paul Railway Co. P’s flax destroyed when sparks from RR ignited it. D argues contributory negligence for stacking

flax too close to RR. Plaintiff’s use of the land was a proper use, not contributory negligence – D IS NEGLIGENT

E. Traditional Exceptions to the Contributory Negligence Bar

1. The Rescue Doctrine

2. Last Clear Chance or Discovered Peril

3. Defendant’s Reckless or Intentional Misconduct

4. Plaintiff’s Illegal ActivityBarker v. Kallash

15 year old injured making pipe bomb where materials were from firecracker sold to him from 9 year old.

Illegal activity by P – D NOT NEGLIGENT

III. Defenses Not on the Merits

A. Statutes of LimitationCrumpton v. Humana

Woman was patient at a hospital, claims she was injured when nurse lowered bed. She brought suit over 3yrs later, she claims delay was b/c of ongoing settlement negotiations with the hospital.

Clock starts when injury occurred, doesn’t stop for negotiations – STATUTE OF LIMITATIONS EXPIRED

Shearin v. Lloyd

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Surgeon left sponge in patient during surgery. Both worked to fix it for 3yrs. Patient then ended relationship and brought suit.

Clock starts when right institute an action arises – STATUTE OF LIMITATIONS EXPIRED

Schiele v. Hobart Corp. P worked in meat packing plant. Plant got new machine that used a chemical. P began to get sick

and didn’t know why. Dr told her 2yrs later that the chemical is a possible cause of her sickness. She filed suit 2yrs after that.

Mere knowledge of symptoms is insufficient - STATUTE OF LIMITATIONS DID NOT EXPIRE

McCollum v. D’Arcy P, now 50, sues parents for sexual abuse from 35yrs ago. Alleges repressed all the memory until

recent flashbacks during a therapy workshop. Time starts when injury is discovered (discovery rule) – STATUTE OF LIMITATIONS DID

NOT EXPIREo Ds can argue P discovered or should have discovered the facts earlier.

Doe v. Maskell 2 Ps allege were physically & sexually abused by school chaplains during late 60s and early 70s.

Bring suit in 1994. Ps claim they repressed the memories until they came back in 1992. Repression and forgetting same thing in eyes of court, does not activate discovery rule –

STATUTE OF LIMITATIONS EXPIRED

Dasha v. Maine Medical Center Dr diagnoses P with fatal brain tumor. On that diagnosis, surgery plus radiation would prolong life

for short time, P chooses to do this. Tx caused severe brain damage. 2yrs later, another doctor saw it was a small tumor and did not require that type of Tx. Sued (it was over 3yrs since original misdiagnosis).

P did not purposely estop D from waiting 2yrs to get another opinion – STATUTE OF LIMITATIONS EXPIRED