Suggested Additional Assignments
Field Work: An Accident Waiting to Happen
Ask students to find a negligence suit waiting to happen and report their findings during class. They
should try to spot some careless maintenance, unsafe condition, or other unreasonable behavior that
invites a problem. Are the school stairs in satisfactory condition? Are the doors in their apartment
secured with a lock and is visitor access controlled with an intercom system? Are sidewalks shoveled free
of snow on their walk to school? Does their employer maintain a safe workplace? At a construction site,
are pedestrians exposed to any dangers? They should be able to find several instances of unreasonable
behavior.
Field Work: How Hot is Hot?
Ask a small group of students—preferably coffee-drinkers—to borrow an instant-read thermometer
(available in home-goods stores for under $10) and visit at least three or four local restaurants that serve
take-out coffee. They should purchase a cup of coffee in a take-out cup, check its temperature, and record
their findings. They should also taste it to determine how comfortable and satisfying it is to drink, and
save the cup. Ask them to compute the average temperature and report to the class the high, low, and
average temperature of the coffee purchased. Was any of the coffee uncomfortably hot? What was its
temperature? Which coffee was most satisfying? Did the cups bear warnings about drinking hot coffee?
If a cup did not bear a warning, what restaurant served it?
Research: Cost of the Tort System
In March 2006 Tillinghast, a consulting unit of Towers, Perrin, issued a report that put the annual cost of
the American tort system at $260 billion—almost equal to the annual sales at Wal-Mart. Critics said the
report’s conclusions are deeply flawed.1 Have students research this report and the resulting controversy,
prepare a brief summary of the positions on both sides, and present them to the class.
Chapter Overview
Chapter Theme
When someone’s person or property is hurt, how far should society extend liability? The law has
struggled for centuries to find compensation for the injured without making every citizen the insurer of all
others.
Quote of the Day
“The life of the law has not been logic; it has been experience.” –Oliver Wendell Holmes, Jr. (1841
1935), Supreme Court justice, in The Common Law.
“Still one thing more, fellow citizens – a wise and frugal government, which shall restrain men from
injuring one another [and] which shall leave them otherwise free to regulate their own pursuits of industry
and improvement.” –Thomas Jefferson (1743-1826), American President, in his first inaugural address.
1 “Match Divides Critics As Startling Toll of Torts Is Added Up” by Liam Pleven, The Wall Street
Journal, March 13, 2006 p. A2
Negligence
We might call negligence the “unintentional” tort because it concerns
harm that arises by accident. Should a court impose liability?
Discussion: The McDonald’s Hot-Co,ee Case
A majority of students are likely to have heard of the lawsuit in which Stella Liebeck sued McDonalds for
burns she suffered after spilling a cup of its take-out coffee in her lap. It is also likely that whatever these
students know about the case is either wrong or, incomplete. Students may also have seen a chain email
about the “Stella” awards, named after Liebeck. Its message is that the tort system is out of control.
Whatever problems exist with the tort system are not revealed by the stories in the Stella awards email,
because none of the stories is true. All are urban legends.2 They have been circulating online for years
As for Liebeck’s suit against McDonald’s, what most people do not realize is that the coffee that burned
Liebeck was 180 degrees, 15-20 degrees hotter than coffee typically served in restaurants. The jury
considered whether McDonald’s acted improperly in selling 180-degree (or hotter) coffee that was
significantly hotter than a consumer would expect from common experience. Stella Liebeck incurred
third-degree burns, received skin grafts, and spent seven days in the hospital. Testimony at trial showed
that before the lawsuit, McDonalds had received over 700 complaints about burns, some of them
third-degree, suffered by customers who spilled coffee on themselves. A McDonalds’ executive testified
that McDonalds knew of the risk of burns caused by its hotter-than-average coffee and knew that most
customers didn’t realize the specific risk posed by coffee at those temperatures, but nevertheless didn’t
intend to warn customers of the risk. The suit was not about a mere failure to warn that coffee is hot; it
was about failure to warn of the danger created by serving materially hotter-than-normal coffee to
customers who knew they were buying something hot, but not THAT hot.3
These facts, of course, cannot be construed only to support a finding that McDonald’s was negligent.
Discussing this case enables students to explore the concept of duty of due care and the cost/benefit
calculus involved in any business decision, and reinforces the important lesson that we should take time
to learn the facts before passing judgment—on anything.
Landmark Case: Palsgraf v. Long Island Railroad 4
Facts: Helen Palsgraf was waiting on a railroad platform. As a train began to leave the station, a man
carrying a package ran to catch it. He jumped aboard but looked unsteady, so a guard on the car
reached out to help him as another guard, on the platform, pushed from behind. The man dropped the
package, which struck the tracks and exploded—since it was packed with fireworks. The shock
knocked over some heavy scales at the far end of the platform, and one of them struck Palsgraf. She
sued the railroad.
Issue: Was the railroad liable for Palsgraf’s injuries?
Excerpts from Judge Cardozo’s Decision: The conduct of the defendant’s guard was not a wrong in
its relation to the plaintiff, standing far away. Relatively to her it was not negligence at all. Nothing in
2 See http://www.snopes.com/autos/techno/cruise.asp;
http://www.overlawyered.com/archives/000479.html; http://www.snopes.com/legal/lawsuits.asp
3 To learn more about the facts of this case (e.g. —Liebeck was not driving when she spilled the coffee), see
http://www.vanfirm.com/mcdonalds-coffee-lawsuit.htm
4 248 N.Y. 339; 162 N.E. 99 Court of Appeals of New York, (1928)
the situation gave notice that the falling package had in it the potency of peril to persons thus
removed. Negligence is not actionable unless it involves the invasion of a legally protected interest,
the violation of a right. Negligence is the absence of care, according to the circumstances.
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 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.
What the plaintiff must show is “a wrong” to herself and not merely a wrong to someone else. We are
told that one who drives at reckless speed through a crowded city street is guilty of a negligent act
because the eye of vigilance perceives the risk of damage. The risk reasonably to be perceived defines
the duty to be obeyed.
Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the
parcel wrapped in newspaper would spread wreckage through the station.
The law of causation, remote or proximate, is thus foreign to the case before us. If there is no tort to
be redressed, there is no occasion to consider what damage might be recovered if there were a finding
of a tort. The consequences to be followed must first be rooted in a wrong.
Question: Was the railroad liable?
Question: Should an individual be held responsible for all injuries of his conduct?
To win a negligence case, a plaintiff must prove five elements. Much of the remainder of the chapter will
examine them in detail. They are:
• Duty of Due Care. The defendant had a legal responsibility to the plaintiff. This is the point from
the Palsgraf case.
• Breach. The defendant breached her duty of care, or failed to meet her legal obligations.
• Factual Cause. The defendant’s conduct actually caused the injury.
• Proximate Cause. It was foreseeable that conduct like the defendant’s might cause this type of
harm.
• Damages. The plaintiff has actually been hurt, or has actually suffered a measureable loss.
Duty of Due Care
We each of us have a duty to behave as a reasonable person would under the circumstances. Most courts
accept Cardozo’s viewpoint in the Palsgraf case. Judges draw an imaginary line around the defendant and
say that she owes a duty to the people within the circle, but not to those outside it. The test is generally
“foreseeability.” If the defendant could have foreseen injury to a particular person, she has a duty to him.
Case: Hernandez v. Arizona Board of Regents5
Facts: At the University of Arizona, the Epsilon Epsilon chapter of Delta Tau Delta fraternity gave a
welcoming party for new members. The fraternity’s officers knew that the majority of its members were
under the legal drinking age, but they permitted everyone to consume alcohol. John Rayner, who was
under 21 years of age, left the party. He drove negligently and caused a collision with an auto driven by
Ruben Hernandez. At the time of the accident, Rayner’s blood alcohol level was .15, exceeding the legal
limit. The crash left Hernandez blind and paralyzed.
5 177 Ariz. 244, 866 P.2d 1330, 1994 Ariz. LEXIS 6 Arizona Supreme Court, 1994
Hernandez sued Rayner, who settled the case based on the amount of his insurance coverage. The victim
also sued the fraternity, its officers and national organization, all fraternity members who contributed
money to buy alcohol, the university, and others. The trial court granted summary judgment for all
defendants and the court of appeals affirmed. Hernandez appealed to the Arizona Supreme CourtIssue:
Did the fraternity and the other defendants have a duty of due care to Hernandez?
Excerpts from Justice Feldman’s Decision:
Before 1983, this court arguably recognized the common-law rule of non-liability for tavern
owners and, presumably, for social hosts. Traditional authority held that when “an able-bodied
man” caused harm because of his intoxication, the act from which liability arose was the
consuming not the furnishing of alcohol.
However, the common law also provides that:
One who supplies [a thing] for the use of another whom the supplier knows or has reason to
know to be likely because of his youth, inexperience, or otherwise to use it in a manner involving
unreasonable risk of physical harm to himself and others is subject to liability for physical harm
resulting to them.
We perceive little difference in principle between liability for giving a car to an intoxicated youth
and liability for giving drinks to a youth with a car. A growing number of cases have recognized
that one of the very hazards that makes it negligent to furnish liquor to a minor is the foreseeable
prospect that the [youthful] patron will become drunk and injure himself or others. Accordingly,
modern authority has increasingly recognized that one who furnishes liquor to a minor breaches
a common-law duty owed to innocent third parties who may be injured.
Furnishing alcohol to underaged drinkers violates numerous statutes. The conduct in question
violates well-established common-law principles that recognize a duty to avoid furnishing
dangerous items to those known to have diminished capacity to use them safely. We join the
majority of other states and conclude that as to Plaintiffs and the public in general, Defendants
had a duty of care to avoid furnishing alcohol to underage consumers.
Arizona courts, therefore, will entertain an action for damages against [one] who negligently furnishes
alcohol to those under the legal drinking age when that act is a cause of injury to a third person. [Reversed
and remanded.]
Ethics: As the Arizona court notes, its decision agrees with the majority of courts that have
considered the issue. In most (but not all) states, anyone serving alcohol to a minor is liable for
injuries that result to a third party. The case raises other important issues:
Should a social host who serves alcohol to an adult be liable for resulting harm? New
Jersey has answered “Yes” to this question. In the Garden State, if a social host pours
drinks for a friend, aware that he is becoming drunk, and the friend injures a third party,
the host is fully liable. The majority of states to consider this issue have reached the
opposite conclusion, holding that a social host is not liable for harm caused by an adult
drinker. Are the majority of states correct to distinguish between adult and underage
guests, holding a social host liable only for serving minors? Or is New Jersey correct to
scrap this distinction?
Many states now have some type of dram act, making liquor stores, bars, and restaurants
liable for serving drinks to intoxicated customers who later cause harm. Dram shop laws
force a financial dilemma on such firms. The more a tavern or café encourages its
customers to drink, the greater its revenue—but also the larger its risk of a liability
lawsuit. Do dram shop laws work? Yes, answer the authors of one economic study. In
states with such statutes, bars monitor underage drinking more aggressively, refuse drinks
earlier to an intoxicated customer, check the references of their own employees more
carefully, and prohibit their workers from drinking on the job. Dram shop laws may be a
promising way to reduce drunk driving accidents.1 But are these laws reasonable? Is
holding a bar responsible more reasonable than holding liable a person hosting a party at
his house?
There are many signs that society is fed up with drunk drivers. Some states have
considered reducing blood alcohol limits for drunk driving to .05, which would place a
typical person “over the limit” after two drinks. Are such proposals reasonable?
Holding: Judgment for defendants reversed and case remanded for trial. Excerpt from the court’s
opinion:
Traditional authority held that when “an able-bodied man” caused harm because of his intoxication,
the act from which liability arose was consuming, not furnishing, the alcohol. However the common
law also provides that:
One who supplies [a thing] for the use of another whom the supplier knows or has reason to know
to be likely because of his youth, inexperience, or otherwise to use it in a manner involving
unreasonable risk of physical harm to himself and others is subject to liability for physical harm
resulting to them.
A growing number of cases have recognized that one of the very hazards that makes it negligent to
furnish liquor to a minor is the foreseeable prospect that the [youthful] patron will become drunk and
injure himself or others. Accordingly, modern authority has increasingly recognized that one who
furnishes liquor to a minor, breaches a common law duty owed to innocent third parties who may be
injured. We join the majority of other states and conclude that as to Plaintiffs and the public in
general, defendants had a duty of care to avoid furnishing alcohol to underage consumers.
Arizona courts, therefore, will entertain an action for damages against [one] who negligently
furnishes alcohol to those under the legal drinking age when that act is a cause of injury to a third
person.
Question: The two lower courts found for all defendants. Why?
Answer: Presumably, they found that the defendants had no duty to Hernandez or the general public.
Question: What is the logic behind the lower courts’ position that a person or organization that pours
alcohol has no duty to the general public?
Answer: Historically, courts have held that it is a drunk driver who brought the harm on himself and
General Questions:
Should an organizational host, such as a fraternity, be liable for an accident caused by an
intoxicated minor? Should this liability extend to all members?
Should a social host be liable for an accident caused by an intoxicated guest?
Teenaged children often host parties while their parents are away in which minors drink alcohol.
Should the host’s parents be liable for an accident caused by an intoxicated minor guest?
Special Duty: Landowners
In most states, a landowner’s duty of due care is to trespassers; often higher to children (especially if there
is some man-made thing on the property that is likely to attract children); higher still to a licensee (anyone
on the land for her own purposes but with the owner’s permission); and highest of all to an invitee
(someone on the property as of right).
Special Duty: Professionals
A person at work has a heightened duty of care. While on the job, she must act as a reasonable person in
her profession.
Breach of Duty
If a legal duty of care exists, then a plaintiff must show that the defendant did not meet it.
Negligence Per Se
When a legislature sets a minimum standard of care for a particular activity, in order to protect a certain
group of people, and a violation of the statute injures a member of that group, the defendant has
committed negligence per se. A plaintiff who can show negligence per se need not prove breach of duty.
Causation
To win, the plaintiff must also show that the defendant’s breach of duty caused the plaintiff’s harm.
Courts look at two separate causation issues: Was the defendant’s behavior the factual cause of the harm?
Was it the proximate cause?
Factual Cause
If the defendant’s breach led to the ultimate harm, it is the factual cause.
Proximate Cause
For the defendant to be liable, the type of harm must have been reasonably foreseeable.
Case: Brumberg v. Cipriani USA, Inc.6
Facts: Cornell professor Joan Jacobs Brumberg attended a university fundraiser catered by Cipriani.
During the event, she feasted on fancy appetizers. About 30 minutes later, she felt intense abdominal pain,
which did not go away. Weeks later, her doctors removed a 1 1/2-inch piece of wood from her digestive
tract. The shard caused internal injuries, which took two surgeries to repair. Brumberg’s physician
believed that her injuries were the result of eating wood at Cornell’s cocktail party. On that day, she had
eaten little else and had experienced no pain until the event, where she ate many appetizers, including
shrimp on wood skewers. The doctor supposed that the wood moved through her digestive system for 30
minutes before becoming caught and causing the pain. But when experts compared Brumberg’s shard
with the wood in Cipriani’s toothpicks and skewers, they found that the two were not the same material,
eliminating direct evidence of causation. Brumberg sued Cipriani USA, Inc. for negligence. A lower court
dismissed her case on a motion for summary judgment, concluding there was not enough proof that
Cipriani caused Brumberg’s injury. The professor appealed, relying on the doctrine of res ipsa loquitur.
Issue: Does re ipsa loquitur apply here?
6 2013 NY Slip Op 06759 Supreme Court of New York, 2013.
Excerpts from Judge Lahtinen’s Decision: Res ipsa loquitur is neither a theory of liability nor a
presumption of liability, but instead is simply a permitted inference—that the trier of fact may
accept or reject—reflecting a common-sense application of the probative value of circumstantial
evidence. Criteria for res ipsa loquitur to apply are that “(1) the event must be of a kind which ordinarily
does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or
instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any
voluntary action or contribution on the part of the plaintiff.” The parties dispute the exclusive control
element. Here, the event occurred at a banquet hall operated by Cipriani. Cipriani prepared and provided
all of the food. Attendees were not permitted to bring food onto the premises. Individuals under Cipriani’s
control acted as captains, servers and bartenders. Cipriani thus exclusively prepared, provided, and served
the food. Although the shard possibly could have been present when the ingredients were purchased from
suppliers, it was not so small as to have been concealed and not visible upon careful preparation.
Defendants point to the fact that other attendees had access to the hors d’oeuvres as reflecting a lack of
exclusive control. Cipriani’s personnel were present in the room serving the food both butler style and at
stations, thus reducing the likelihood of some third party placing the shard unseen in food. There is
sufficient proof under these circumstances to find ample control by defendants for purposes of res ipsa
loquitur. Defendants’ further contention that res ipsa loquitur is foreclosed by their allegation of
contributory negligence by plaintiff in not seeing the shard or discerning it while chewing the food in
which it was located is without merit. Plaintiffs’ set forth ample proof to avoid summary judgment.
Question: What are the criteria for res ipsa loquitor to apply?
Answer: (1) the event must be of a kind which ordinarily does not occur in the absence of someone’s
negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the
defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the
plaintiff.
Question: Which element do the parties dispute in this case?
Answer: The second one, exclusive control.
You Be the Judge: Grith v. Valley of Sun Recovery, Inc.7
Facts: Don Gorney was a “repo man”—someone authorized to find and take cars whose
owners are behind on payments. A repossessor is allowed to drive away in such a car, provided
he can do it peacefully. Gorney worked for Valley of Sun Recovery. He sought a car belonging to
Linda Marsalek and Bob Williams. Gorney knew that there had been other, failed efforts to
repossess the Marsalek car, including a violent confrontation involving attack dogs. He thought
he could do better.
Gorney went to the car at 4:00 in the morning. He unscrewed the bulb in an overhead street
lamp. He unlocked the car, setting off its alarm, and quickly hid. The alarm aroused the
neighborhood. Williams and a neighbor, Griffith, investigated and concluded it was an attempted
theft. They called the police. Gorney watched all of this from his hiding place. When everyone
had gone, Gorney entered the car, again setting off the alarm and arousing the neighborhood.
Williams and Griffith again emerged, as did another neighbor, dressed in his underwear and
carrying a shotgun. They all believed they had caught a thief. Williams shouted for the gun and
the neighbor passed it to him, but it went off accidentally and severely injured Griffith.
7 126 Ariz. 227, 613 P.2d 1283 Arizona Court of Appeals, 1980
Griffith sued Valley of Sun. The trial court granted summary judgment for Valley of Sun, and Griffith
appealed.
You Be the Judge:
• Did Valley of Sun have a duty to Griffith?
• If so, did the company breach its duty?
• If so, was the breach the factual cause of the injury?
• If so, was this type of injury foreseeable?
Argument for Griffith: Your honors, Mr. Griffith should be allowed to make his case to a jury and let it
decide whether Valley of Sun’s repossession led to his injury. Mr. Griffith has demonstrated every element
of negligence. Valley of Sun had a duty to everyone in the area when it attempted to repossess a car. It
could easily have foreseen injury. Car repossessions always involve antagonism between the car owner
and the repo company. Obviously, Gorney breached his duty. He was caught up in some fantasy, dreaming
that he was Harrison Ford in an adventure film. He knew from previous repossession attempts that trouble
was certain. But rather than minimizing the danger, he exacerbated it. He unscrewed a lightbulb,
guaranteeing poor visibility and confusion. He set off the car alarm twice, making the whole
neighborhood jittery.
Factual causation is indisputable. Had it not been for his preposterous game playing, no neighbors would
have been outside, no guns present—and no accidental shooting. And this type of harm is easily
foreseeable. We should have a chance to take our case to a jury.
Argument for Valley of Sun Recovery: Your honors, there are three good reasons to end this case today:
no duty, no breach, no causation. It is preposterous to suggest that Valley of Sun has a legal duty to an
entire neighborhood. Car owners who are behind on their payments live in all parts of all communities. Is
a repossession company to become an insurer of the entire city?
Yes, some danger is involved because delinquent owners are irresponsible and sometimes dangerous.
Should we therefore allow them to keep their cars? Of course not. We must act, and that is what Valley of
Sun does. They do it safely, your honors. Even if there had been a duty, there was no breach. Mr. Gorney
attempted to repossess when it was least likely anyone would see him. What should Mr. Gorney have
done, asked for permission to take the car? That is a recipe for violence. If the owner were reasonable,
there would be no repossession in the first place.
Factual causation? Valley of Sun did not create this situation. The car owners did. They bought the car and
failed to pay for it. Even if there were factual causation, Valley of Sun is not liable because there is a
superseding cause: the negligent use of a firearm by one of Mr. Griffith’s neighbors. No jury should hear
this case, your honors, because there is no case.
Discussion
The case of Griffith v Valley of Sun Recovery often provokes animated discussion and strong reactions.
One effective way to present the case and make a lasting impression about the relationship between duty
of due care and foreseeability is to select one student—preferably one who disagrees vehemently that
Valley of Sun could be liable—and take him or her through the facts step-by-step, asking whether each
step is a reasonably foreseeable result of the previous step. For example: “Was it reasonably foreseeable
that Gorney might encounter violence when repossessing this care?” “Yes.” “Was it reasonably
foreseeable that such violence might be heightened if Gorney was discovered repossessing the car at 4:00
AM?” “Yes.” “Was it reasonably foreseeable that the car’s owner and neighbors might be anxious to
hear a car alarm at 4:00 AM?” (The instructor may need to point out that car alarms were relatively new
and not routinely ignored in the late 1970s, when these events occurred.) “Yes.” “Was it reasonably
foreseeable that their anxiety would be heightened when they came outside to discover a streetlight had
been broken?” “Yes.” Proceed to build the chain of foreseeability in this fashion. Students often balk at
the point when they are asked “Was it reasonably foreseeable that someone would introduce a gun into
this situation?” and “Was it reasonably foreseeable, once a gun is introduced into the situation, that
someone might be shot?” In a country where there are about as many (or more) guns than people,
responding “no” to this question may say more about the student’s socio-economic background than their
understanding of what is reasonably foreseeable. The point of this exercise is to demonstrate both how a
jury could find in favor of Griffith, and how the concept of reasonable foreseeability can lead from one
event to another seemingly distant, which is both the strength—and danger of negligence analysis.
Damages
Finally, a plaintiff must prove that he has been injured, or that he has had some kind of measureable
losses.
Defenses
Contributory and Comparative Negligence
Under contributory negligence, if the plaintiff is even slightly negligent, she recovers nothing. In a
comparative negligence state, a plaintiff may generally recover even if she is partially responsible. Today,
most, but not all, states have adopted some form of comparative negligence.
Assumption of the Risk
Wherever there is an obvious hazard, a special rule applies. Assumption of the risk: a person who
voluntarily enters a situation that has an obvious danger cannot complain if she is injured.
ETHICS
Anyone who has watched an NFL game knows that football is a rough sport. But, did the NFL hide some
of the sport’s risks? In a negligence lawsuit, 4,500 football players with neurological injuries claimed that
the NFL had decades of scientific evidence linking blows to the head to long-term brain damage, but it
chose to bury these risks to make more money. A rougher sport makes for a better show—and more profit
—the players argued. (The NFL makes approximately $10 billion in revenue per year.) Did the NFL owe
a legal duty to the players or should the players just know better? What are the NFL’s ethical duties to its
players, if any.
The NFL reached a $765 million settlement with the ex-football players. It will pay the money over 20
years. Although the players could have won much more in court, they feared the difficulty of proving that
their head injuries were the direct result of their NFL careers.