A. Supplemental Cases and Materials | Jonathan Zittrain | December 21, 2012


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A. Supplemental Cases and Materials

by Jonathan Zittrain Show/Hide
      1. 2.1.1 Show/Hide More Shen v. Leo A. Daly Co.--"The Confined-to-Taiwan Case"
        Original Creator: Jonathan Zittrain
        Should we recognize false imprisonment in situations where the boundaries of plaintiff’s ‘confinement’ extend far beyond a single room (for example, if they extend to the boundaries of an entire country)?
        Defendant refused to pay taxes assessed by the Taiwanese government. As the designated “responsible person” for the defendant’s Taiwanese business, plaintiff was directly liable for the taxes. Plaintiff asked the defendant to pay the taxes owed; defendant refused. The country of Taiwan forbade the plaintiff from leaving the country until the tax controversy was resolved. The plaintiff sued the defendant for false imprisonment, among other theories of liability.
      1. 2.2.1 Show/Hide More Coblyn v. Kennedy's Inc.--"The 'Stolen' Ascot Case"
        Original Creator: Jonathan Zittrain
        Should store owners be allowed to detain suspected shoplifters? If so, to what extent should they be allowed to stop and interrogate customers?
        As plaintiff was about to leave the defendant’s store, defendant’s employee stopped him under the mistaken belief that the plaintiff had stolen a scarf. The employee grabbed plaintiff’s arm and insisted he return to the back of the store. Plaintiff complied, but suffered a heart attack due to the embarrassment and stress of the situation.
      1. 5.1.1 Show/Hide More Ira S. Bushey & Sons, Inc. v. United States
        Original Creator: Jonathan Zittrain

        While drunk, a member of the United States Coast Guard opened the valves of plaintiff’s drydock, causing parts of it to sink. The seaman was at the drydock because he was returning to his ship to sleep. The operation of the drydock’s valves had nothing to do with his duties as a seaman. Plaintiff sued the United States government for the damage to the drydock.

        Can employers be liable for their employees’ random acts of drunkenness? Should an employer have broad liability for their employee’s destructive behavior, if it is “foreseeable” that their labor force will cause property damage from time to time? The court wrestles with these questions in this case.

      1. 5.2.1 Show/Hide More Konradi v. United States
        Original Creator: Jonathan Zittrain

        While driving to work, defendant’s employee—a rural mailman—strikes the car of the plaintiff and kills him.

        This case contemplates whether an employee can be within the scope of his employment while commuting, and under what particular circumstances. The court also uses an alternative definition of “scope of employment”, by considering to what extent employer liability would create beneficial (safer) changes in employee activity.

      2. 5.2.2 Show/Hide More Forster v. Red Top Sedan Service
        Original Creator: Jonathan Zittrain

        Plaintiff was driving in front of defendant’s bus, operated by defendant’s employee (Breines). Breines used his bus to force plaintiff’s car to stop or enter a collision. After plaintiff stopped, Breines exited his bus and walked over to the driver’s door of the plaintiff’s car. He then opened the driver’s door, swore at the plaintiff for delaying his schedule, and tried to reach for the car keys while pushing plaintiff in the face. Breines also struck the plaintiff’s wife when she tried to protect her husband’s face from being pushed.

        Can an employee’s overly zealous, violent or aggressive conduct still remain in the scope of their duties? What if that conduct includes intentional torts, such as battery and assault? This case addresses those questions.

      3. 5.2.3 Show/Hide More Reina v. Metropolitan Dade County
        Original Creator: Jonathan Zittrain

        Plaintiff boarded defendant’s bus, operated by an employee (Koch) of the defendant. Because the plaintiff failed to pay the exact fare, Koch let the plaintiff off the bus in an inconvenient fashion. As the plaintiff departed the bus, he made an obscene gesture to Koch. At that point, Koch pulled the bus off to the side of the road, chased after the plaintiff, and beat him.

        This case explores the boundaries of an employer’s liability for their employee’s intentional torts.

      4. 5.2.4 Show/Hide More Miami Herald Publishing Co. v. Kendall
        Original Creator: Jonathan Zittrain

        Plaintiff was struck by a motorcycle. The operator of the motorcycle (Molesworth) was delivering defendant’s newspaper. It is unclear what the employment status of Molesworth was at the time of the accident. Plaintiff insists that Molesworth was an employee and that defendant was therefore vicariously liable for her injuries. Defendant insists that Molesworth was an independent contractor, relieving the company of vicarious liability.

        This case demonstrates how courts determine whether a particular actor is an independent contractor or an employee.

      5. 5.2.5 Show/Hide More Murrell v. Goertz
        Original Creator: Jonathan Zittrain

        Defendant was collecting monthly payments for newspaper subscriptions. Plaintiff, a subscriber, questioned defendant about damage to her screen door due to newspapers being thrown at it. An argument ensued, in which plaintiff slapped the defendant, who then struck back.

        This case discusses the circumstances which render the determination of independent contract status a question of law, and not a question of fact.

      6. 5.2.6 Show/Hide More Baptist Memorial Hospital System v. Sampson
        Original Creator: Jonathan Zittrain

        Appellee was bitten by a venomous spider. She was taken to the emergency room in the appellant's hospital. The emergency room physician misdiagnosed the venomous bite as an allergic reaction. Fourteen hours later, with her condition rapidly deteriorating, appellee went to another hospital where she was admitted to the intensive care unit in septic shock. There, appellee received the proper treatment which saved her life. Appellee sued the appellant on a theory of vicarious liability, as the emergency room physicians were not employees as a matter of law.

        Should hospitals be liable for the misdiagnoses of physicians that they hire as independent contractors?

      7. 5.2.7 Show/Hide More Smalich v. Westfall
        Original Creator: Jonathan Zittrain

        Two automobiles collided. In one car was plaintiff, her son, and Westfall. Plaintiff owned the vehicle, but Westfall was driving. Blank was driving the other car. Westfall’s negligent driving was found to be a proximate cause of the collision.

        Will Westfall’s contributory negligence prevent plaintiff from recovering against Blank? To answer this question, the court made a predicate inquiry: whether plaintiff and Westfall had a relationship which made plaintiff vicariously liable for Westfall’s driving. This case illustrates the doctrine of imputed contributory negligence.

    1. 6.1 Show/Hide More Oliver v. Stimson Lumber Co.--"The Montana Spoliation Case"
      Original Creator: Jonathan Zittrain
      Plaintiff brings suit for “spoilation of evidence” in a state which has not yet recognized spoliation of evidence as an independent tort claim.
    1. 7.1 Show/Hide More Hubbard-Hall Chemical Co. v. Silverman--"The Killer Pesticide Case"
      Original Creator: Jonathan Zittrain

      Plaintiffs are administrators suing on the behalf of two deceased farm workers. The farm workers were natives of Puerto Rico; one could read some English, the other could not read any. The defendant chemical company sold a highly lethal (to human beings) pesticide to the employer of the farm workers. After a full day of dusting, the farm workers died that night due to exposure to the pesticide. Despite evidence showing that the defendant had complied with Department of Agriculture labeling requirements, at trial the jury ruled in favor of the plaintiffs.

      Should federal laws be allowed to set the standard of care for a negligence action through the NPS doctrine? Remember that negligence claims—like much of tort law—arise from a state’s common law.

      1. 9.1.1 Show/Hide More Conboy v. Mogeloff
        Original Creator: Jonathan Zittrain

        A mother falls asleep at the wheel after taking medication prescribed by her doctor. Her children are injured in a subsequent car accident. Prior to the accident, the doctor had told her that she could drive after taking the medication, despite him knowing the drug was a sedative.

        Should giving advice to others be regarded as equivalent to control over them? Should courts expect individuals to control the actions of others, even if they lack the ability to do so?

      2. 9.1.2 Show/Hide More Kline v. 1500 Massachusetts Avenue Apartment Corp.
        Original Creator: Jonathan Zittrain

        Kline was seriously injured when she was assaulted and robbed in the hallway of the apartment building where she lived. The incident occurred two months after another female tenant was attacked in the same hallway. Kline sued the landlord, alleging it had a duty to protect tenants from foreseeable harm by third parties on the premises.

        Should landlords have a duty to keep the common areas of their premises safe?

      3. 9.1.3 Show/Hide More Jacobsma v. Goldberg's Fashion Forum
        Original Creator: Jonathan Zittrain

        Plaintiff tried to restrain a fleeing shoplifter after a store manager yelled “Stop thief”, and pointed in the plaintiff’s direction. The plaintiff suffered a dislocated shoulder while struggling with the shoplifter, who ultimately escaped. The shoplifter had attempted to steal from the store three days earlier. However, the store did not attempt to increase security measures between the two incidents. A lawsuit was filed against the store to recover plaintiff’s medical bills and lost earnings due to his injury.

        If a customer is hurt while trying to assist the employees of a store, should the store compensate him for his injuries? This case also illustrates what kind of knowledge charges a property owner with the responsibility to protect its invitees from criminal acts. The court also touches upon whether an invitee’s voluntary conduct can alter his or her invitee status, and thereby change the duty owed by the owner.

      4. 9.1.4 Show/Hide More Hegel v. Lansam
        Original Creator: Jonathan Zittrain

        A seventeen-year-old college student enrolls in university and becomes involved with criminals and drugs. State law required the university to maintain “law and order” on campus, and made it a crime to “contribute to the delinquency of a child”.

        Do institutions like universities have a duty to regulate the private lives of their students?

      5. 9.1.5 Show/Hide More J.S. and M.S. v. R.T.H.
        Original Creator: Jonathan Zittrain

        Plaintiffs’ children were sexually abused by a neighbor for more than a year. The plaintiffs sue the neighbor’s wife, based on the argument that if she had suspected or should have suspected the abuse, she owed a duty of care to prevent it.

        In this case, the court debates whether a spouse has a duty to prevent his or her partner’s abuse of children, based solely on suspicion of abuse, or circumstances which should have led to that suspicion. To settle the debate, the court engages in a complex analysis that weighs and balances several, related factors.

      6. 9.1.6 Show/Hide More Brosnahan v. Western Air Lines
        Original Creator: Jonathan Zittrain

        Defendant airlines failed to supervise and assist a passenger stowing his carry-on luggage in an overhead compartment. Consequently, the passenger dropped his bag on plaintiff’s head.

        Some courts hold that defendants will not be liable if their negligence merely creates a “condition” which makes it possible for an accident to occur. In this case, the court considers this distinction against the backdrop of the special relationship between the airlines and its passengers.

      1. 9.2.1 Show/Hide More Cuppy v. Bunch--"The Guidance for Drunk Friends Case"
        Original Creator: Jonathan Zittrain
        Is there an actual duty to prevent the intoxicated from driving?
        Bunch and White were friends who were out drinking. Testimony suggested that White knew Bunch was intoxicated and drowsy when they decided to return home. Nonetheless, White suggested that the two drive home in separate cars, with White’s vehicle in the lead. Bunch’s vehicle swerved a number of times, and ultimately hit the plaintiff’s vehicle when Bunch swerved across the center line of the road.
    1. 10.1 Show/Hide More Cestonaro v. United States--"The Questionable Park Policy Case"
      Original Creator: Jonathan Zittrain

      Plaintiff and her husband were returning to their car which was parked in an unofficial parking lot. The couple were confronted by two two armed gun men, who shot and killed plaintiff’s husband. The National Park Service (NPS) owned the lot in which the incident occurred. The plaintiff sued the NPS for failing to adequately light and police the lot.

      The NPS argued that their non-maintenance of the lot was a conscious choice in furtherance of a general aesthetic goal. Should courts treat any coherent, agency objective as a part of policy? Also, should courts mostly defer to an agency’s stated policy goals when assessing the “discretionary activity” exception?

    2. 10.2 Show/Hide More Hoyem v. Manhattan Beach City School District -- "The Student Who Got Hurt Playing Hooky"
      Original Creator: Jonathan Zittrain
      Should public schools pay for the injuries a student suffers while cutting class and off school premises?
    1. 12.1 Show/Hide More Kansas State Bank and Trust Co. v. Specialized Transport. Services Inc.
      Original Creator: Jonathan Zittrain

      The defendant school district contracted with the defendant transportation company to transport special needs students to and from school. The plaintiff alleged that a bus driver for the transportation company molested her daughter during the rides to and from the school. The evidence showed that the bus driver acted suspiciously during his employment, but no history of abuse. The plaintiff sued the school district for negligently retaining a bus driver who they should have known had a propensity to abuse children.

      Should courts regard an employer's retention of a problem-prone employee as sufficiently ‘causing' their employee's intentional tort?

    2. 12.2 Show/Hide More Scott v. County of Los Angeles
      Original Creator: Jonathan Zittrain

      The plaintiff was a four-year-old child whose parents were both incarcerated. The plaintiff was put under the care of her grandmother, under the supervision of county workers. County workers failed to perform their mandatory supervisory duties and did not thoroughly investigate several reports on the grandmother's abuse of the plaintiff. The grandmother's abuse peaked in one episode, where she forcefully immersed the plaintiff's legs in scalding hot water for 30 seconds. The plaintiff suffered burn damage from the skin to the bone, nearly fatal infections of the legs, and permanent disfigurement and disability. The jury returned a verdict assigning 1% of the liability for the injuries to plaintiff's grandmother, and 99% of the liability to the county and its employee.

      How should courts apportion liability between entities that enable the plaintiff's harm through negligence (in this case, the county) and individuals that intentionally cause the harm (in this case, the grandmother)?

    1. 13.1 Show/Hide More Henry v. Houston Lighting and Power Co.
      Original Creator: Jonathan Zittrain

      Employees of the defendant accidentally severed an underground gas line while drilling a hole for a utility pole. The plaintiff was one of the repairmen called to repair the gas line. While the plaintiff was working, one of his fellow employees shouted “Fire” because the area was engulfed in smoke. The plaintiff looked up, saw smoke, and ran into a utility pole while trying to escape. In actuality, the smoke was caused by a mosquito fogger that was pumping fog into a nearby manhole.

      To what extent should the creators of hazards be liable to responders who are injured while trying to eliminate the hazard? Also, should courts automatically treat intervening causes of the plaintiff’s injury as superseding causes that relieve the defendant of liability?

    2. 13.2 Show/Hide More Darby v. National Trust -- "The Rat Urine as Proximate Cause Case"
      Original Creator: Jonathan Zittrain
      Should defendants be liable for a failure to warn, if the plaintiff's harm was not the type to be warned against? What if the warning would have, nevertheless, diverted the plaintiff away from the harm?
      Defendant owned a pond which was actively used and known as a place of recreation for the local community. Due to the presence of rat urine in the water, swimmers faced a risk of contracting Weils disease. However, the defendant did not post any signs warning the community of this risk. While the plaintiff's husband played “hide-e-boo” with his children, he accidentally slipped underwater due to the depth and drowned. Plaintiff sued the defendant on the theory that the existence of warning signs for Weils disease would have caused the plaintiff's husband to refrain from entering the water; thereby avoiding the fatal accident.
    1. 14.1 Show/Hide More Hickey v. Zezulka
      Original Creator: Jonathan Zittrain

      Defendant arrested the plaintiff’s son for driving under the influence. After transporting the intoxicated individual to the police department and leaving him in a holding cell, the defendant did not check back on him for approximately thirty-seven minutes. When defendant returned to the cell, she discovered that the plaintiff’s son had committed suicide by hanging himself with his belt and socks. Despite a written policy to remove “personal articles” from prisoners, defendant did not remove the decedent’s socks or belt. There was also policy stating that officers who bring in detainees are responsible for checking on the detainee.

      Should courts recognize the doctrines of contributory and comparative fault in suicide cases? In deciding this question, should courts factor in custodial relationships between the defendant and the deceased—such as a jailer-detainee relationship?

    2. 14.2 Show/Hide More Ashmore v. Cleanweld Products, Inc. -- "The Oregon Pipe Bomb Case"
      Original Creator: Jonathan Zittrain
      The court's opinion here acts as a pithy counterpoint to the majority opinion in Barker.
      Plaintiff is injured while creating a pipe bomb using a component manufactured by the defendant.
    1. 15.1 Show/Hide More Hector v. Cedars-Sinai Medical Center
      Original Creator: Jonathan Zittrain

      Plaintiff is injured by a defective pacemaker that had been implanted at defendant’s hospital. The plaintiff’s physician had performed the implantation. The defendant had ordered the pacemaker and delivered it to the surgery room; however, the model and type of pacemaker was specified by the plaintiff’s physician.

      Should a hospital be liable for defects in the medical products it furnishes in connection with a patient’s care and treatment?


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