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CASE 8-3
PALSGRAF v. LONG ISLAND RAILROAD CO.
Court of Appeals of New York, 1928 248 N.Y. 339, 162 N.E. 99
http://www.nycourts.gov/reporter/archives/palsgraf_lirr.htm
Cardozo, C. J.
Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to
Rockaway Beach. A train stopped at the station, bound for another place. Two men ran
forward to catch it. One of the men reached the platform of the car without mishap, though
the train was already moving. The other man, carrying a package, jumped aboard the car, but
seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached
forward to help him in, and another guard on the platform pushed him from behind. In this
act, the package was dislodged, and fell upon the rails. It was a package of small size, about
fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there
was nothing in its appearance to give notice of its contents. The fireworks when they fell
exploded. The shock of the explosion threw down some scales at the other end of the
* * *
If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless,
at least to outward seeming, with reference to her, did not take to itself the quality of a tort
because it happened to be a wrong, though apparently not one involving the risk of bodily
insecurity, with reference to someone else. “In every instance, before negligence can be
predicated of a given act, back of the act must be sought and found a duty to the individual
complaining, the observance of which would have averted or avoided the injury.”
[Citations.]
* * *
beneath the waste? If not, is the result to be any different, so far as the distant passenger is
concerned, when the guard stumbles over a valise which a truckman or a porter has left upon
the walk? The passenger far away, if the victim of a wrong at all, has a cause of action, not
derivative, but original and primary. His claim to be protected against invasion of his bodily
security is neither greater nor less because the act resulting in the invasion is a wrong to
another far removed. In this case, the rights that are said to have been violated, the interests
said to have been invaded, are not even of the same order. The man was not injured in his
person nor even put in danger. The purpose of the act, as well as its effect, was to make his
person safe. If there was a wrong to him at all, which may very well be doubted, it was a
wrong to a property interest only, the safety of his package. Out of this wrong to property,
which threatened injury to nothing else, there has passed, we are told, to the plaintiff by
derivation or succession a right of action for the invasion of an interest of another order, the
Superseding Cause — If an event occurs after the defendant’s negligent
conduct and helps to cause the plaintiff’s injury, that event may be judged a
superseding cause. A superseding cause prevents the defendant’s
negligence from being the proximate (nearest) cause of an injury.
Accordingly, a superseding cause relieves the defendant of liability for harm
to the plaintiff.
C. HARM
The plaintiff has the burden of proving that the defendant’s negligent
conduct proximately caused the harm to a legally protected interest in a
negligence case. The courts traditionally have been reluctant to allow
recovery for negligently in#icted emotional distress, but this view is changing
and most courts now hold a person liable for causing emotional distress if
reaction to the danger even though the negligent conduct did not cause any
impact or bodily harm to the other.
D. DEFENSES TO NEGLIGENCE
Even if a plaintiff can prove all of the elements of a negligence action, he
may still not recover damages if the defendant proves a valid defense.
Generally, defenses to intentional torts can also be used in lawsuits alleging
negligence. In addition, three special defenses may be available in
negligence cases: contributory negligence, comparative negligence, and
assumption of risk.
*** Chapter Outcome ***
Identify the defenses that are available to a tort action in negligence.
Contributory Negligence
An act or failure to act on the part of the plaintiff that is also negligent and
contributes toward the resulting injury. In other words, the plaintiff helped
to harm himself. In the few states following this rule, it is a complete
defense and prevents any recovery by the plaintiff.
Comparative Negligence
Has replaced contributory negligence in almost all states. Under this rule,
damages are divided between the parties in proportion to the degree of fault
or negligence found against them. In most states the plaintiff recovers
proportionally unless her contributory negligence was “as great as” or
“greater than” that of the defendant, in which case the plaintiff recovers
nothing. The rule was adopted to mitigate the harsh results contributory
negligence imposed on plaintiffs who were slightly negligent.
Assumption of Risk
Applicable if a plaintiff understands a risk exists and voluntarily places
himself in the zone of danger. In express assumption of the risk, the plaintiff
expressly agrees to assume the risk of harm from the defendant’s conduct.
Usually, but not always, such an agreement is by contract. In implied
CASE 8-4
MOORE v. KITSMILLER
Court of Appeals of Texas, Twelfth District, Tyler, 2006
201 S.W.3d 147, review denied
http://scholar.google.com/scholar_case?
q=201+S.W.3D+147&hl=en&as_sdt=2,34&case=5663712118613187322&scilh=0
Worthen, C. J.
In the spring of 2001, Kitsmiller purchased a house in Van Zandt County to use as rental
property. In mid-June, he hired B&H Shaw Company, Inc. (“B&H”) to install a replacement
septic tank in the back yard. The septic tank was located about two or three feet from a
concrete stoop at the back door of the garage. B&H mounded dirt over the septic tank and
the lateral lines going out from it upon completion. Sometime after B&H installed the septic
tank, Kitsmiller smoothed out the mounds of dirt over the septic tank and lateral lines using
On August 7, the Moores moved in. On August 11, Moore and his wife ventured into the
back yard for the first time, carrying some trash bags to a barrel. Moore testified that his
wife led the way and he followed her about a foot and a half behind. Moore testified that at
the time, his right arm was in a sling and a bag of trash was in his left hand. He stated that as
he stepped of the stoop, he was unable to see the ground and could only see his wife and the
bag of trash in his left arm. His wife testified that the ground looked flat as she walked
toward the barrel. Moore testified that he had only taken a few steps off the stoop when his
left leg sank into a hole, causing him to fall forward into his wife. As he tried to steady
himself with his right foot, it hung and then sank, causing him to fall backward on his head
and back. Moore testified that the injury to his back required surgery and affected his ability
to earn a living.
Moore filed suit against Kitsmiller and B&H. He sought damages for past and future
pain and suffering, past and future mental anguish, past and future physical impairment, and
over the tank and lines. On August 13, Moore asked Ken Martin to inspect the site of the fall
(the “occurrence”). Martin is an on-site septic tank complaint investigator for both the Texas
Commission on Environmental Quality and Van Zandt County. Martin testified that dirt
should have been mounded over the septic tank and lateral lines, so that when the dirt
settled, there would be no holes in the ground around the septic tank or lateral lines.
However, there was no dirt mounded over the septic tank or lines when he inspected the site.
Martin’s photographs of the site also indicated that there were no mounds of dirt over the
septic tank. Further, the photographs showed sunken ground around the septic tank,
The first question for the jury was whose negligence caused the occurrence. The jury
responded that both Kitsmiller and Moore were negligent, but B&H was not. In the second
question, the jury determined that Kitsmiller was 51% negligent and Moore was 49%
negligent. In the third question, the jury determined that Moore was entitled to $210,000.00
in damages. On September 29, 2004, the trial court entered a judgment in favor of Moore
and against Kitsmiller in the amount of $210,000.00 plus interest and costs.
On October 14, 2004, Kitsmiller asked that the trial court modify the judgment to
$107,100.00 based upon Moore’s contributory negligence. The trial court entered a modified
* * *
* * * Moore contends the evidence is legally insufficient to support the judgment. Moore
argues that his wife and Kitsmiller testified that the back yard was flat at the time of the
occurrence. He contends that no one could have anticipated any danger from walking into
the yard. Therefore, Moore argues that there is no evidence in the record to support the
jury’s determination that he was contributorily negligent.
Contributory negligence contemplates an injured person’s failure to use ordinary care
cause requires proof of both cause in fact and foreseeability. [Citation.] The test for cause in
fact is whether the negligent act or omission was a substantial factor in bringing about an
injury without which the harm would not have occurred. [Citation.] Foreseeability requires
that a person of ordinary intelligence should have anticipated the danger created by a
negligent act or omission. [Citation.]
Because comparative responsibility involves measuring the party’s comparative fault in
causing the plaintiff’s injuries, it necessitates a preliminary finding that the plaintiff was in
fact contributorily negligent. [Citation.] The standards and tests for determining contributory
negligence ordinarily are the same as those for determining negligence, and the rules of law
When attacking the legal sufficiency of an adverse finding on an issue on which the
party did not have the burden of proof, that party must demonstrate there is no evidence to
support the adverse finding. [Citation.] To evaluate the legal sufficiency of the evidence to
support a finding, we must determine whether the proffered evidence as a whole rises to a
level that would enable reasonable and fair minded people to differ in their conclusions.
[Citation.] We sustain a no evidence issue only if there is no more than a scintilla of
* * *
Moore testified that when he stepped off the stoop into the back yard for the first time on
August 11, 2001, he could only see his wife and the plastic bag of trash he was carrying in
his left hand. The jury was allowed to draw an inference from this evidence that Moore was
not watching where he was walking. An individual must keep a proper lookout where he is
walking, and a jury is allowed to make a reasonable inference that failure to do so was the
proximate cause of his injuries. [Citation.] It was reasonable for the jury to make an
inference from Moore’s testimony that his failure to keep a proper lookout where he was
walking contributed to the occurrence.
showed the depressions could have been present at the time of the occurrence could have led
the jury to believe that Moore’s contention was not a reasonable inference. We conclude that
the jury made a reasonable inference from the evidence in finding Moore contributorily
negligent.
* * *
* * * [T]he judgment of the trial court is affirmed.
II. STRICT LIABILITY
In some instances a person may be held liable for injuries he has caused
even though he has not acted intentionally or negligently. Such liability is
called strict liability, absolute liability, or liability without fault. The doctrine
of strict liability is not based on fault of the defendant, but rather on the
nature of the activity in which he is engaged.
*** Chapter Outcome ***
Identify and discuss those activities giving rise to a tort action in strict liability.
A. ACTIVITIES GIVING RISE TO STRICT LIABILITY
Abnormally Dangerous Activities
Involve a high degree of risk of serious harm that cannot be eliminated by
the exercise of reasonable care and are not a matter of common usage.
Activities judged abnormally dangerous include storing explosives or
#ammable liquids in large quantities; blasting or pile driving; crop dusting;
drilling for or re5ning oil in populated areas; and emitting noxious gases or
fumes into a settled community.
CASE 8-5
KLEIN v. PYRODYNE CORPORATION
Supreme Court of Washington, 1991
117 Wash.2d 1, 810 P.2d 917, as corrected 817 P.2d 1359
http://scholar.google.com/scholar_case?case=7983277736024137446&q=810+P.2d+917&hl=en&as_sclt=2,34
Guy, J.
[Pyrodyne Corporation contracted to conduct the fireworks display at the Western
Washington State Fairgrounds in Puyallup, Washington, on July 4, 1987. During the
fireworks display, one of the five-inch mortars was knocked into a horizontal position. A
shell inside ignited and discharged, flying five hundred feet parallel to the earth and
Analysis
Fireworks Displays as Abnormally Dangerous Activities
The Kleins contend that strict liability is the appropriate standard to determine the
culpability of Pyrodyne because Pyrodyne was participating in an abnormally dangerous
activity. * * *
The modern doctrine of strict liability for abnormally dangerous activities derives from
Fletcher v. Rylands, [citation], in which the defendant’s reservoir flooded mine shafts on the
plaintiff’s adjoining land. Rylands v. Fletcher has come to stand for the rule that “the
The basic principle of Rylands v. Fletcher has been accepted by the Restatement
(Second) of Torts (1977). [Citation.] Section 519 of the Restatement provides that any party
carrying on an “abnormally dangerous activity” is strictly liable for ensuing damages. The
test for what constitutes such an activity is stated in section 520 of the Restatement. Both
Restatement sections have been adopted by this court, and determination of whether an
activity is an “abnormally dangerous activity” is a question of law. [Citations.]
Section 520 of the Restatement lists six factors that are to be considered in determining
whether an activity is “abnormally dangerous.” The factors are as follows: (a) existence of a
high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that
Any one of them is not necessarily sufficient of itself in a particular case, and ordinarily
several of them will be required for strict liability. On the other hand, it is not necessary
that each of them be present, especially if others weigh heavily. 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.
Restatement (Second) of Torts §520, Comment f (1977). Examination of these factors
persuades us that fireworks displays are abnormally dangerous activities justifying the
imposition of strict liability.
possibility that a shell or rocket will malfunction or be misdirected. Furthermore, no matter
how much care pyrotechnicians exercise, they cannot entirely eliminate the high risk
inherent in setting off powerful explosives such as fireworks near crowds.
* * *
The factor expressed in clause (d) concerns the extent to which the activity is not a
matter “of common usage.” The Restatement explains that “[a]n activity is a matter of
common usage if it is customarily carried on by the great mass of mankind or by many
people in the community.” Restatement (Second) of Torts §520, Comment i (1977). As
examples of activities that are not matters of common usage, the Restatement comments
* * *
The factor stated in clause (e) requires analysis of the appropriateness of the activity to
the place where it was carried on. In this case, the fireworks display was conducted at the
Puyallup Fairgrounds. Although some locations—such as over water—may be safer, the
Puyallup Fairgrounds is an appropriate place for a fireworks show because the audience can
be seated at a reasonable distance from the display. Therefore, the clause (e) factor is not
present in this case.
The factor stated in clause (f) requires analysis of the extent to which the value of
fireworks to the community outweighs its dangerous attributes. We do not find that this
In sum, we find that setting off public fireworks displays satisfies four of the six
conditions under the Restatement test; that is, it is an activity that is not “of common usage”
and that presents an ineliminably high risk of serious bodily injury or property damage. We
therefore hold that conducting public fireworks displays is an abnormally dangerous activity
justifying the imposition of strict liability.
* * *
Conclusion
We hold that Pyrodyne Corporation is strictly liable for all damages suffered as a result of
the July 1987 fireworks display. Detonating fireworks displays constitutes an abnormally
dangerous activity warranting strict liability * * *. This establishes the standard of strict
liability for pyrotechnicians. Therefore, we affirm the decision of the trial court.
Keeping of Animals
Strict liability for harm caused by animals existed at common law and
continues today with some changes. As a general rule, people who possess
animals do so at their peril and must protect against harm to other people
and their property.
Trespassing Animals — Owners and possessors of animals are subject to
strict liability for physical harm done if their animals trespass. Three
exceptions to this rule: 1) keepers of cats and dogs are liable only for
negligence; 2) keepers of animals are not strictly liable for animals, such as
sheep, straying from a highway on which they are being lawfully driven,
Nontrespassing Animals — Owners and possessors of wild animals are
strictly liable for harm caused by such animals, whether or not they are
trespassing. Wild animals are defined as those that are known to be likely
to in#ict serious damage and that cannot ever be considered safe; includes
bears, lions, elephants, monkeys, tigers, deer, and raccoons. Keepers of
domestic animals are liable if they know, or should have known, of the
animal’s dangerous propensity, which is the cause of the harm. Examples of
domestic animals include dogs, cats, horses, cattle, and sheep.
CASE 8-6
PALUMBO v. NIKIRK
Supreme Court, Appellate Division, Second Department, New York, 2009
59 A.D.3D 691, 874 N.Y.S.2D 222, 2009 N.Y. SLIP OP. 01454
http://scholar.google.com/scholar_case?
case=7266290354304468850&q=2009+NY+Slip+Op+1454&hl=en&as_sdt=2,34
Per Curiam
The plaintiff, a mail carrier, sustained injuries when he allegedly was bitten and attacked by
a dog on the front steps of the defendants' house as he attempted to deliver the mail. The
plaintiff, who crossed over the defendants' lawn and driveway from the house next door, and
whose view of the dog was obstructed by a bush, did not see the dog or hear it bark until he
[citations]. “Vicious propensities include the ‘propensity to do any act that might endanger
the safety of the persons and property of others in a given situation’” [citations].
Here, the defendants established their prima facie entitlement to judgment as a matter of
law by presenting evidence that the dog had never bitten, jumped, or growled at anyone
prior to the incident in question, nor had the dog exhibited any other aggressive or vicious
behavior [citations]. In opposition, the plaintiff failed to come forward with any proof in
*** Chapter Outcome ***
Identify the defenses that are available in a tort action in strict liability.
B. DEFENSES TO STRICT LIABILITY
Contributory Negligence
Contributory negligence is not a defense. The strict liability for one who
carries on an abnormally dangerous activity, keeps animals, or sells
defective products that are unreasonably dangerous is not based on his
negligence, so the ordinary contributory negligence of the plaintiff is not a
defense. The full responsibility for preventing harm is on the defendant.
Comparative Negligence
Comparative negligence is a defense in some states. Despite the rationale
that disallows contributory negligence as a defense to strict liability, some
states apply the doctrine of comparative negligence to strict liability,
particularly products liability.
Assumption of Risk
Under the Second Restatement of Torts voluntary assumption of risk is a
defense to an action based upon strict liability.
The more recent Third Restatement of Torts: Apportionment of Liability has
abandoned the doctrine of implied voluntary assumption of risk in tort
actions generally: it is no longer a defense that the plaintiff was aware of a
