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A. Supplemental Cases and Materials
  • 1 I.Supp. Supplemental Cases and Materials

    • 1.1 I.B.Supp. Supplemental Cases and Materials for I.B.

  • 2 III.Supp. Supplemental Cases and Materials

    • 2.1 III.Supp.B. Supplemental Cases and Materials for III.B.

      • 2.1.1 Shen v. Leo A. Daly Co.--"The Confined-to-Taiwan Case"

        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)?

        Notes: 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
        222 F.3d 472 (2000)
        2
        Carl SHEN, Appellant/Cross-Appellee,
        v.
        LEO A. DALY COMPANY, a Nebraska Corporation, Appellee/Cross-Appellant.
        3
        Nos. 99-3174, 99-3333.
        4

        United States Court of Appeals, Eighth Circuit.

        5
        Submitted April 12, 2000.
        6
        Filed August 2, 2000.
        7
        Rehearing Denied September 7, 2000. 
        8

        [475] Frederick S. Cassman, argued, Omaha, NE, for appellant.

        9

        Gerald P. Laughlin, argued, Omaha, NE (Michael M. O'Brien, on the brief), for appellee.

        10

        BEFORE: BEAM, ROSS, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

        11
        BEAM, Circuit Judge.
        12

        Carl Shen is a former employee of Leo A. Daly Company's (Daly) Republic of China (Taiwan) office. Daly refused to pay taxes assessed by the Taiwanese government. As a result, Taiwan restricted Shen's travel, forbidding him from leaving the country. Shen then sued Daly on multiple theories of liability for damages and injunctive relief. Shen prevailed in part in the district court. Both he and Daly appeal the judgment. We affirm in part and reverse in part.

        13
        I. BACKGROUND
        14

        Shen is a United States citizen who retains dual Taiwanese citizenship. In 1989, Shen moved to Taiwan to become managing director of Daly's operation there.

        15

        To conduct business in Taiwan, Daly was required to designate a "responsible person," or legal representative in the country, and Shen was so designated. In November 1992, Daly, decided to withdraw from Taiwan because of business setbacks. As a result, Shen was terminated but chose to remain in Taiwan. Daly, however, failed to remove Shen as its responsible person.

        16

        In December 1993; Shen received a notice from the Taiwan Tax Authority that it wanted to audit Daly's 1992 Taiwan tax returns. Shen, in turn, notified Daly's accounting firm in Taiwan and informed them he was concerned he could be held responsible for any deficiency because his "chop," the Taiwanese equivalent of a signature, was affixed to the returns. Daly [476] responded that it was "inconceivable" any tax could be owed because Daly had suffered large losses in Taiwan. In January 1994, Shen asked Daly to indemnify him should the Taiwan Tax Authority impose the tax liability on him directly.

        17

        Following this request and until mid-October 1995, Shen, through a series of letters to Daly personnel and to Mr. Leo A. Daly III himself, implored Daly to resolve the tax dispute and remove him as the responsible person. In May 1994, the Taiwan Tax Authority assessed a tax liability of approximately $80,000 against Daly for 1991 and 1992. Daly did not appeal the assessment, and it became final in June 1995. In October 1995, the Taiwan Ministry of Finance and the Bureau of Entry and Exit informed Shen he was forbidden from leaving the country until resolution of the Daly tax issue.

        18

        Daly's attempt to extricate Shen through diplomatic channels failed. Shen then brought suit for a declaratory judgment in Taiwan to remove himself as Daly's responsible person. Although the court recognized Shen was no longer an employee of Daly, it denied relief because Daly had not replaced him as the responsible person. The Ministry of Finance also denied an appeal by Shen.

        19

        In 1997, Shen sued Daly in the United States District Court for the District of Nebraska. He requested a preliminary injunction to force Daly to pay the taxes. The district court entered such an injunction on December 31, 1997. We assume Daly then paid the taxes because Taiwan lifted the travel restriction. The district court held a bench trial in February 1999 on the issue of a permanent injunction and damages. The district court found a violation of the implied covenant of good faith and fair dealing and granted a permanent injunction. Shen was also awarded attorney's fees and $4760 in damages on his contractual claims. Shen, however, did not prevail on his claims for false imprisonment or intentional infliction of emotional distress. Both sides now appeal and we affirm in part and reverse in part.

        20
        II. DISCUSSION
        21

        This suit was brought under the court's diversity jurisdiction and therefore Nebraska law controls on all the issues presented in this appeal.

        22
        A. Res Judicata
        23

        Daly contends Shen's suit for a declaratory judgment in Taiwan should have preclusive effect in this suit and thus should bar all of Shen's claims for relief. To give the judgment of a foreign country preclusive effect, it must be recognized as a legitimate judgment. See Hilton v. Guyot, 159 U.S. 113, 163, 16 S.Ct. 139, 40 L.Ed. 95 (1895). Nebraska, however, has very little case law on this issue. After reviewing the relevant case law from other jurisdictions, we are persuaded Nebraska would follow the principles laid out by the Supreme Court in Hilton.

        24

        A judgment should be enforced and not retried if the foreign forum: (1) provided a full and fair trial of the issues in a court of competent jurisdiction; (2) ensured the impartial administration of justice; and (3) ensured the trial was without prejudice or fraud. See id. The foreign court must also have proper jurisdiction over the parties and the judgment must not violate public policy. See id.; Weber v. Weber, 200 Neb. 659, 265 N.W.2d 436, 440 (1978). The burden of proof in establishing that the foreign judgment should be recognized and given preclusive effect is on the party asserting it should be recognized. See Bridgeway Corp. v. Citibank, 45 F.Supp.2d 276, 286 (S.D.N.Y. 1999).

        25

        Thus, Daly, the party arguing that the Taiwan judgment should be given preclusive effect, must establish each of these factors. Daly has merely asserted the Taiwanese judgment should be given effect, it has not provided the district court or this court with any authority that guides toward [477] the recognition of foreign judgments. Additionally, Daly did not produce any evidence to support its res judicata defense. Accordingly, it did not provide enough information for us to determine if the Taiwan tribunals are impartial or if Taiwan procedures are compatible with due process. Therefore, we find Daly did not meet its burden of proof, and the Taiwanese court's judgment will not be accorded preclusive effect.

        26
        B. Injunctive Relief
        27

        Daly next asserts the district court erred in granting preliminary and permanent injunctive relief. We review the district court's decision to grant injunctive relief for an abuse of discretion and we will affirm unless the district court "clearly erred in its characterization of the facts, made a mistake of law, or abused its discretion in considering the equities." Brotherhood of Maintenance of Way Employees, Lodge 16 v. Burlington. N.R.R. Co., 802 F.2d 1016, 1020 (8th Cir.1986); see also United States v. Grand Lab., Inc., 174 F.3d 960, 965 (8th Cir.1999).

        28

        The district court held that Daly breached the implied covenant of good faith and fair dealing based on the agency relationship between Daly and Shen. We agree. Under Nebraska law, whether a person is an agent is a question of fact. See McCurry v. School Dist. of Valley, 242 Neb. 504, 496 N.W.2d 433, 439 (1993). The existence of an agency relationship does not depend on the terminology the parties use to characterize their relationship, but depends on the facts underlying the relationship. See Franksen v. Crossroads Joint Venture, 245 Neb. 863, 515 N.W.2d 794, 801 (1994); McCurry, 496 N.W.2d at 439. An agency relationship can be implied from words, conduct or circumstances that evidence an intent to create one. See McCurry, 496 N.W.2d at 439. For example, under agency principles, an agent can be given apparent or ostensible authority to act if the "alleged principal affirmatively, intentionally, or by lack of ordinary care causes third persons to act upon the apparent authority." See Franksen, 515 N.W.2d at 801. That is what happened in this case.

        29

        After Daly terminated Shen in December 1992, Daly did not remove Shen as its responsible person. When Shen entreated Daly to remove him as its responsible person in January 1994, Daly still did not act. In June 1994, Daly tried to have one of the employees of its accounting firm in Taiwan replace Shen and informed Shen that the employee had become Daly's new responsible person. The employee, however, decided not to take the appointment, and Daly failed to inform Shen of this fact for seven months. By the time Shen learned there was no replacement for him, the threat of a travel restriction was looming, and Daly was unable to find anyone willing to take the appointment. The result of Daly's initial inaction and subsequent inability to replace Shen as responsible person was that Shen remained Daly's agent regarding actions taken by Taiwan. Therefore, we find no error in the district court's factual finding of an agency relationship.

        30

        A principal and an agent are in a fiduciary relationship. See Andrews v. Schram, 252 Neb. 298, 562 N.W.2d 50, 54 (1997). Because of the fiduciary relationship, the principal owes the agent a duty of good faith and fair dealing in the incidents of their relationship. See Lawrence Warehouse Co. v. Twohig, 224 F.2d 493, 497 (8th Cir.1955). Moreover, "`[c]orrelative with the duties of the agent to serve loyally and obediently are the principal's duties of compensation, indemnity, and protection.'" See Western Smelting & Ref. Co. v. First Nat'l Bank of Omaha, 150 Neb. 477, 35 N.W.2d 116, 121 (1948) (quoting Restatement of Agency Intro. note, vol. 2, p. 999). Daly breached its duty as a fiduciary in the following ways: (1) Daly did not pay the tax when it was assessed; (2) it chose not to appeal the assessment through proper channels; and (3) Daly did not find [478] a replacement for Shen as responsible person.

        31

        We recognize Daly believes the taxes were unfairly assessed and amounted to little more than extortion. However, its dispute with Taiwan over the "`principle of the thing' took place over the body of its innocent former employee and agent" and, thus, the district court did not abuse its discretion in granting the injunction based on Daly's breach of fiduciary duty. Shen v. Leo A. Daly Co., No. 8:97CV441, Slip Op. at 14 (D.Neb. May 28, 1999).

        32
        C. False Imprisonment
        33

        Shen contends the district court erred when it granted Daly's motion for judgment as a matter of law on the false imprisonment claim. We review the decision to grant judgment as a matter of law de novo, viewing the evidence in the light most favorable to Shen. See DiCarlo v. Keller Ladders, Inc., 211 F.3d 465, 467 (8th Cir.2000). False imprisonment is "the unlawful restraint against his will of an individual's personal liberty." See Herbrick v. Samardick & Co., 169 Neb. 833, 101 N.W.2d 488, 491 (1960). Shen's liberty was restrained in this case—he was not allowed to leave Taiwan. And, as Shen correctly points out, the term false imprisonment is broader than just confinement within a jail or prison. Shen's confinement, however, was to a whole country. He was free to move about Taiwan, and was not restrained in any way in his daily activities. Although it is difficult to define exactly how close the level of restraint must be, in this case the country of Taiwan is clearly too great an area within which to be falsely imprisoned. Therefore, the district court correctly granted judgment as a matter of law.

        34
        D. Intentional Infliction of Emotional Distress
        35

        Shen also asserts the district court improperly dismissed his claim for intentional infliction of emotional distress. We review legal conclusions de novo, and factual findings for clear error. See Simmons v. Cook, 154 F.3d 805, 807 (8th Cir. 1998). To establish a claim for intentional infliction of emotional distress, Shen must prove:

        36
        (1) that there has been intentional or reckless conduct, (2) that the conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community, and (3) that the conduct caused emotional distress so severe that no reasonable person should be expected to endure it.
        37

        Iwanski v. Gomes, 259 Neb. 632, 611 N.W.2d 607, 611 (2000).

        38

        The harms Shen suffered because of Daly's refusal to pay the tax included "missed family occasions, estrangement from his wife, lost business opportunities, shame, depression, insomnia, anxiety, and a variety of health problems for which, he testified, he sought medical attention." Shen, Slip-op. at 15. Although Shen undoubtedly did suffer stress and anxiety in this situation, his suffering does not rise to the level required by Nebraska law. Additionally, Daly's conduct, though unquestionably unfair, did not exceed "all possible bounds of decency." Therefore, we find no error in the district court's dismissal of this claim.

        39
        E. Set-off
        40

        Daly contends it is entitled to setoff $6700 that Shen owes it against the $4670 Shen recovered on contract claims. The district court denied the set-off because it had not been pled and it was not included in the pre-trial order. We review the district court's decision for an abuse of discretion. See Corsica Livestock Sales, Inc. v. Sumitomo Bank, 726. F.2d 374, 377 (8th Cir.1983).

        41

        The pleading rules in the federal courts are very liberal and Federal Rule of Civil Procedure 15 contemplates [479] that courts should allow pleadings to be amended if it is necessary to further justice and will not prejudice the parties. See id. Furthermore, Rule 15(b) provides that "[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Consent may be implied if evidence to support the claim was introduced at trial without objection. See St. Joe Minerals Corp. v. Occupational Safety and Health Review Comm'n, 647 F.2d 840, 844 (8th Cir.1981).

        42

        Although Shen did not expressly consent to try the set-off issue, the issue was tried by implied consent in this case. On cross-examination, Shen, without objection, testified he received the refund from withholding taxes from the Taiwanese government. He testified that it was Daly's money and amounted to $6700. Additionally, Shen acknowledged he owes Daly the money. The fact that the money is owed is not disputed. Therefore, we find the court abused its discretion and Daly is entitled to the set-off.

        43
        F. Attorney's Fees
        44

        Daly asserts the district court erred in awarding Shen attorney's fees for the action in Taiwan and for this action. Under Nebraska law, attorney's fees are only proper if they are permitted by statute or by uniform practice. See Quinn v. Godfather's Inv., Inc., 217 Neb. 441, 348 N.W.2d 893, 894 (1984). Furthermore, "[a]s a general rule of practice in [Nebraska], attorneys' fees are allowed to the successful party in litigation only where such allowance is provided by statute." Id. at 895. There is no Nebraska statute authorizing attorney's fees for a breach of fiduciary duty. Therefore, the district erred in awarding attorney's fees for this action.

        45

        However, the bar on attorney's fees only applies in the very case being litigated. See Zimmerman v. FirsTier Bank, N.A., 255 Neb. 410, 585 N.W.2d 445, 454 (1998). It would not apply to the award of attorney's fees for the action in Taiwan because that award, in essence, is compensatory. Nebraska courts have held that attorney's fees are recoverable as compensatory damages when a person, damaged by a tort, was required to bring a suit against a third person to protect his interests. See Tetherow v. Wolfe, 223 Neb. 631, 392 N.W.2d 374, 379 (1986). A person who commits a breach of fiduciary duty is guilty of tortious conduct. See Restatement (Second) of Torts § 874 cmt. b (1979). Daly's breach of the covenant of good faith and fair dealing is a breach of fiduciary duty. And, although Shen sued Daly in the action in Taiwan, he was required to bring his suit to protect his interest and have the travel restriction lifted. Therefore, the attorney's fees awarded for the suit in Taiwan were proper as an element of damages for breach of fiduciary duty.

        46
        G. Damages
        47

        Shen contends the district court should have awarded him compensatory damages for the breach of the covenant of good faith and fair dealing. We review the district court's damage award for an abuse of discretion. See Johnson v. Cowell Steel Structures, Inc., 991 F.2d 474, 476 (8th Cir.1993). Under Nebraska law, "[t]he amount of damages to be awarded is a determination solely for the fact finder, and its action in this respect will not be disturbed on appeal if it is supported by evidence and bears a reasonable relationship to the elements of the damages proved." Seeber v. Howlette, 255 Neb. 561, 586 N.W.2d 445, 449 (1998). We find the record supports the district court's award of attorney's fees for the action in Taiwan as damages for the breach of the covenant of good faith. Thus, we find no abuse of discretion by the district court.

        48
        III. CONCLUSION
        49

        Accordingly, we affirm the judgment of the district court with respect to injunctive [480] relief and damages. We reverse the judgment of the district court on the issue of set-off and reverse in part on the issue of attorney's fees. This action is remanded to the District Court for an entry of judgment in accordance with this opinion.

    • 2.2 III.Supp.C. Supplemental Cases and Materials for III.C.

      • 2.2.1 Coblyn v. Kennedy's Inc.--"The 'Stolen' Ascot Case"

        Should store owners be allowed to detain suspected shoplifters? If so, to what extent should they be allowed to stop and interrogate customers?

        Notes: 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
        268 N.E.2d 860
        2
        359 Mass. 319, 47 A.L.R.3d 991
        3
        Marius S. COBLYN
        v.
        KENNEDY'S, INC. et al. 

        Supreme Judicial Court of Massachusetts, Suffolk.

        4
        Argued March 4, 1971.
        Decided April 15, 1971.
        5

        Thomas R. Morse, Jr., Boston, for defendants.

        6

        Sumner Z. Kaplan, Boston (Julian Soshnick, Boston, with him) for plaintiff.

        7

        Before TAURO, C.J., and SPALDING, SPIEGEL, REARDON and BRAUCHER, JJ.

        8
        [359 Mass. 320] SPIEGEL, Justice.
        9

        This is an action of tort for false imprisonment.[1] At the close of the evidence the defendants filed a motion for directed verdicts which was denied. The jury returned verdicts for the plaintiff in the sum of $12,500. The case is here on the defendants' exceptions to the denial of their motion and to the refusal of the trial judge to give certain requested instructions to the jury.

        10

        We state the pertinent evidence most favorable to the plaintiff. On March 5, 1965, the plaintiff went to Kennedy's, Inc. [268 N.E.2d 861] (Kennedy's), a store in Boston. He was seventy years of age and about five feet four inches in height. He was wearing a woolen shirt, which was 'open at the neck,' a topcoat and a hat. '(A)round his neck' he wore an ascot which he had 'purchased * * * previously at Filenes.' He proceeded to the second floor of Kennedy's to purchase a sport coat. He removed his hat, topcoat and ascot, putting the ascot in his pocket. After purchasing a sport coat and leaving it for alterations, he put on his hat and coat and walked downstairs. Just prior to exiting through the outside door of the store, he stopped, took the ascot out of his pocket, put it around his neck, and knotted it. The knot was visible 'above the lapels of his shirt.' The only stop that the plaintiff made on the first floor was immediately in front of the exit in order to put on his ascot.

        11

        Just as the plaintiff stepped out of the door, the defendant Goss, an employee, 'loomed up' in front of him with his hand up and said: 'Stop. Where did you get that scarf?' The plaintiff responded, '(W)hy?' Goss firmly grasped the plaintiff's arm and said: '(Y)ou better go back and see the manager.' Another employee was standing next to him. Eight or ten other people were standing around and were staring at the plaintiff. The plaintiff then said, 'Yes, I'll go back in the store' and proceeded to do so. As he and Goss went upstairs to the second floor, [359 Mass. 321] the plaintiff paused twice because of chest and back pains. After reaching the second floor, the salesman from whom he had purchased the cost recognized him and asked what the trouble was. The plaintiff then asked: '(W)hy 'these two gentlemen stop me? " The salesman confirmed that the plaintiff had purchased a sport coat and that the ascot belonged to him.

        12

        The salesman became alarmed by the plaintiff's appearance and the store nurse was called. She brought the plaintiff into the nurse's room and gave him a soda mint tablet. As a direct result of the emotional upset caused by the incident, the plaintiff was hospitalized and treated for a 'myocardial infarct.'

        13

        Initially, the defendants contend that as a matter of law the plaintiff was not falsely imprisoned. They argue that no unlawful restraint was imposed by either force or threat upon the plaintiff's freedom of movement. Wax v. McGrath, 255 Mass. 340, 342, 151 N.E. 317. However, '(t)he law is well settled that '(a)ny genuine restraint is sufficient to constitute an imprisonment * * *' and '(a)ny demonstration of physical power which, to all appearances, can be avoided only by submission, operates as effectually to constitute an imprisonment, if submitted to, as if any amount of force had been exercised.' 'If a man is restrained of his personal liberty by fear of a personal difficulty, that amounts to a false imprisonment' within the legal meaning of such term.' Jacques v. Childs Dining Hall Co., 244 Mass. 438, 438--439, 138 N.E. 843.

        14

        We think it is clear that there was sufficient evidence of unlawful restraint to submit this question to the jury. Just as the plaintiff had stepped out of the door of the store, the defendant Goss stopped him, firmly grasped his arm and told him that he had 'better go back and see the manager.' There was another employee at his side. The plaintiff was an elderly man and there were other people standing around staring at him. Considering the plaintiff's age and his heart condition, it is hardly to be expected that with one employee in front of him firmly grasping [359 Mass. 322] his arm and another at his side the plaintiff could do other than comply with Goss's 'request' that he go back and see the manager. The physical restraint imposed upon the plaintiff when Goss grasped the plaintiff's arm readily distinguishes this case from Sweeney v. F. W. Woolworth Co., 247 Mass. 277, 142 N.E. 50, relied upon by the defendants.

        15

        In addition, as this court observed in the Jacques case, supra, at p. 441, 138 N.E. at p. 844, the 'honesty and veracity (of the [268 N.E.2d 862] plaintiff) had been openly * * * challenged. If she had gone out before * * * (exonerating herself), her departure well might have been interpreted by the lookers on as an admission of guilt, or of circumstances from which guilt might be inferred. The situation was in the control of the defendant. The restraint or duress imposed by the mode of investigation * * * the jury could say was for the accomplishment of the defendant's purpose, even if no threats of public exposure or of arrest were made, and no physical restraint of * * * (the plaintiff) was attempted.' For cases in other jurisdictions, where the evidence tended to support the tort of false imprisonment, see Clark v. Kroger Co., 382 F.2d 562, 563 (7th Cir.); Patrick v. Esso Standard Oil Co., D.C.N.J., 156 F.Supp. 336, 340; Daniel v. Phillips Petroleum Co., 229 Mo.App. 150, 155, 73 .s.W.2d 355; Lukas v. J. C. Penney Co., 233 Or. 345, 354, 378 P.2d 717.

        16

        The defendants next contend that the detention of the plaintiff was sanctioned by G.L. c. 231, § 94B, inserted by St.1958, c. 337. This statute provides as follows: 'In an action for false arrest or false imprisonment brought by any person by reason of having been detained for questioning on or in the immediate vicinity of the premises of a merchant, if such person was detained in a reasonable manner and for not more than a reasonable length of time by a person authorized to make arrests or by the merchant or his agent or servant authorized for such purpose and if there were reasonable grounds to believe that the person so detained was committing or attempting to commit larceny of goods for sale on such premises, it shall be a defence to such action. If such goods had not been purchased and [359 Mass. 323] were concealed on or amongst the belongings of a person so detained it shall be presumed that there were reasonable grounds for such belief.'

        17

        The defendants argue in accordance with the conditions imposed in the statute that the plaintiff was detained in a reasonable manner for a reasonable length of time and that Goss had reasonable grounds for believing that the plaintiff was attempting to commit larceny of goods held for sale.

        18

        It is conceded that the detention was for a reasonable length of time. See Proulx v. Pinkerton's Natl. Detective Agency, Inc., 343 Mass. 390, 392--393, 178 N.E.2d 575. We need not decide wehther the detention was effected in a reasonable manner for we are of opinion that there were no reasonable grounds for believing that the plaintiff was committing larceny and, therefore, he should not have been detained at all. However, we observe that Goss's failure to identify himself as an employee of Kennedy's and to disclose the reasons for his inquiry and actions, coupled with the physical restraint in a public place imposed upon the plaintiff, an elderly man, who had exhibited no aggressive intention to depart, could be said to constitute an unreasonable method by which to effect detention. See Lukas v. J. C. Penney Co., 233 Or. 345, 352, 360, 378 P.2d 717.

        19

        The pivotal question before us as in most cases of this character is whether the evidence shows that there were reasonable grounds for the detention. At common law in an action for false imprisonment, the defence of probable cause, as neasured by the prudent and cautious man standard, was available to a merchant. Standish v. Narragansett S.S. Co., 111 Mass. 512, 517. Jacques v. Childs Dining Hall Co., 244 Mass. 438, 439, 138 N.E. 843. Muniz v. Mehlman, 327 Mass. 353, 358,[2] 99 N.E.2d 37. In enacting G.L. c. 231, § 94B, the Legislature inserted the words, 'reasonable grounds.' Historically, the words 'reasonable grounds' and 'probable [359 Mass. 324] cause' have been given the same meaning by the [268 N.E.2d 863] courts. In the case of United States v. Walker, 7 Cir., 246 F.2d 519, 526, it was said: "Probable cause' and 'reasonable grounds' are concepts having virtually the same meaning.' The following cases have expressly stated that the words may be used interchangeably and without distinction. Draper v. United States, 358 U.S. 307, 310, 79 S.Ct. 329, 3 L.Ed.2d 327. United States v. Vasquez, D.C.N.Y., 183 F.Supp. 190, 193. Smallwood v. Commonwealth, 305 Ky. 520, 524, 204 S.W.2d 945. McKeon v. National Cas. Co., 216 Mo.App. 507, 524, 270 S.W. 707. Adams v. State, 137 Tex.Cr. 43, 46, 128 S.W.2d 41. Stelloh v. Liban, 21 Wis.2d 119, 125, 124 N.W.2d 101. In the case of Lukas v. J. C. Penney Co., supra, at p. 361, 378 P.2d 717, the Oregon Supreme Court construed the meaning of the words 'reasonable grounds' in its 'shoplifting statute' as having the same meaning as they have in a statute authorizing arrest without a warrant and applied the probable cause standard to the facts before it.

        20

        The defendants assert that the judge improperly instructed the jury in stating that 'grounds are reasonable when there is a basis which would appear to the reasonably prudent, cautious, intelligent person.' In their brief, they argue that the 'prudent and cautious man rule' is an objective standard and requires a more rigorous and restrictive standard of conduct than is contemplated by G.L. c. 231, § 94B. The defendants' requests for instructions, in effect, state that the proper test is a subjective one, viz., whether the defendant Goss had an honest and strong suspicion that the plaintiff was committing or attempting to commit larceny.[3]

        21

        [359 Mass. 325] We do not agree. As we have attempted to show, the words 'reasonable grounds' and 'probable cause' have traditionally been accorded the same meaning. In the case of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, involving the question whether a police officer must have probable cause within the Fourth Amendment to 'stop-and-frisk' a suspected individual, the Supreme Court of the United States held that the 'probable cause' requirement of the Fourth Amendment applies to a 'stop-and-frisk' and that a 'stop-and-frisk' must 'be judged against an objective standard: would the facts available to the officer at the moment * * * 'warrant a man of reasonable caution in the belief' that the action taken was appropriate? * * * Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction.' Pp. 21--22, 88 S.Ct. p. 1880.

        22

        If we adopt the subjective test as suggested by the defendants, the individual's right to liberty and freedom of movement would become subject to the 'honest * * * suspicion' of a shopkeeper based on his own 'inarticulate hunches' without regard to any discernible facts. In effect, the result would be to afford the merchant even greater authority than that given to a police officer. In view of the well established meaning of the words 'reasonable grounds' we believe that the Legislature intended to give these words their traditional [268 N.E.2d 864] meaning. This seems to us a valid conclusion since the Legislature has permitted an individual to be detained for a 'reasonable length of time.' This would be at least analogous to a 'stop' within the meaning of the Terry case.[4]

        23

        [359 Mass. 326] We also note that an objective standard is the criterion for determining probable cause or reasonable grounds in malicious prosecution and false arrest cases. Bacon v. Towne, 4 Cush. 217, 238--239. Wax v. McGrath, 255 Mass. 340, 343, 151 N.E. 317. We see no valid reason to depart from this precedent in regard to cases involving false imprisonment.

        24

        Applying the standard of reasonable grounds as measured by the reasonably prudent man test[5] to the evidence in the instant case, we are of opinion that the evidence warranted the conclusion that Goss was not reasonably justified in believing that the plaintiff was engaged in shoplifting. There was no error in denying the motion for directed verdicts and in the refusal to give the requested instructions.

        25

        Exceptions overruled.

        26

        [1] Although there were several other counts in the original and amended declarations we are here concerned with only two counts; one against Kennedy's, Inc. and the other against one Gerald Goss.

        27

        [2] See Carroll v. United States, 267 U.S. 132, 161, 45 S.Ct. 280, 288, 69 L.Ed. 543, where Chief Justice Taft, speaking for the majority of a divided court, said: 'The necessity for probable cause in justifying seizures on land or sea, in making arrests without warrant for past felonies, and in malicious prosecution and false imprisonment cases has led to frequent definition of the phrase.'

        28

        [3] The bill of exceptions recites that '(t)he defendants duly excepted to the failure of the Court to give their requested instructions 1, 2 and 3.' These requests are as follows: '1. If the defendant Goss had a belief to the extent of an honest and strong suspicion that the plaintiff had committed larceny or was attempting to commit larceny of goods for sale on Kennedy's premises, the jury should find that he acted reasonably. * * * 2. If the jury find the ascot * * * was concealed on or amongst the belongings of the plaintiff, they must find that the defendants had reasonable grounds to believe that larceny had been attempted or committed. 3. If the jury find that the defendant Goss reasonably suspected the plaintiff of theft or failing to pay for goods belonging to Kennedy's, they must return verdicts for the defendants on all counts.'

        29

        The defendants' brief refers only to request No. 1 although their argument appears to touch on the periphery of the remaining two requests.

        30

        [4] See Terry v. Ohio, supra, at p. 19, 88 S.Ct. at p. 1879, where the Supreme Court rejects 'the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a 'technical arrest. " At p. 19, fn. 16, 88 S.Ct. at p. 1879, the court states that '(o)nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred.'

        31

        We also note that the Terry case allows 'a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.' Even in such circumstances, however, the court said that 'in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.' P. 27, 88 S.Ct. at p. 1883.

        32

        [5] The test for determining probable cause or reasonable grounds was established long ago in Bacon v. Towne, supra, at pp. 238--239, where Chief Justice Shaw wrote: 'Probable cause is such a state of facts * * * as would lead a man of ordinary caution and prudence to believe, or entertain an honest and strong suspicion, that the person arrested is guilty' (emphasis supplied).

        33

        We also note here that the defendants incorrectly rely on certain language in the case of Pihl v. Morris, 319 Mass. 577, 580, 66 N.E.2d 804, 806, to support their argument that only 'an honest and strong suspicion' is needed rather than 'reasonable grounds.' That case states that "an honest and strong suspicion' is a necessary part of probable cause' (emphasis supplied).

  • 3 VI.Supp. Supplemental Cases and Materials

  • 4 VII.Supp. Supplemental Cases and Materials

  • 5 VIII.Supp. Supplemental Cases and Materials

    • 5.1 VIII.Supp.A. Supplemental Cases and Materials

      • 5.1.1 Ira S. Bushey & Sons, Inc. v. United States

        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
        398 F.2d 167 (1968)
        2
        IRA S. BUSHEY & SONS, INC., Plaintiff-Appellee,
        v.
        UNITED STATES of America, Defendant-Appellant.
        3
        No. 463, Docket 32086.
        4

        United States Court of Appeals Second Circuit.

        5
        Argued April 30, 1968.
        6
        Decided June 19, 1968.
        7

        [168] Philip A. Berns, Washington, D. C., (Edwin L. Weisl, Jr., Asst. Atty. Gen., Joseph P. Hoey, U. S. Atty., Louis E. Greco, Atty. in Charge, New York Office, Admiralty and Shipping Section, Peter M. Klein, Atty., Admiralty and Shipping Section, Dept. of Justice), for the United States, appellant.

        8

        Christopher E. Heckman, New York City, Foley & Martin, New York City, for appellee Ira S. Bushey & Sons, Inc.

        9

        Before WATERMAN, FRIENDLY and KAUFMAN, Circuit Judges.

        10
        FRIENDLY, Circuit Judge:
        11

        While the United States Coast Guard vessel Tamaroa was being overhauled in a floating drydock located in Brooklyn's Gowanus Canal, a seaman returning from shore leave late at night, in the condition for which seamen are famed, turned some wheels on the drydock wall. He thus opened valves that controlled the flooding of the tanks on one side of the drydock. Soon the ship listed, slid off the blocks and fell against the wall. Parts of the drydock sank, and the ship partially did — fortunately without loss of life or personal injury. The drydock owner sought and was granted compensation by the District Court for the Eastern District of New York in an amount to be determined, 276 F.Supp. 518; the United States appeals.[1]

        12

        Before reaching the merits, we must deal with a procedural issue injected by the district judge, since we would have no jurisdiction of the appeal if his decision of the question was correct. Although Bushey, the drydock owner, had brought its libel under the Public Vessels Act, 46 U.S.C. §§ 781-790, and the United States did not dispute the applicability of that statute save for unsuccessfully contending that Bushey must first present its claim to the Coast Guard Board of Contract Appeals,[2] the judge ruled that the damage to the drydock was not "caused by a public vessel of the United States" since "the Tamaroa was not, in a practical sense, a ship causing a 'collision,' but an inert mass." 276 F.Supp. at 523. He then proceeded to hold (1) that sovereign immunity was nevertheless waived under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2674, the exception in § 2680(d) for "any claim for which a remedy is provided by sections 741-752, 781-790 of Title 46, relating to claims or suits in admiralty against the United States" being inapplicable because, as he believed, no such remedy was provided; (2) that Bushey's pleading would be deemed amended to allege a claim under the Tort Claims Act which it had not asserted; (3) that New York law applied, 28 U.S.C. § 1346 (b); (4) that this, however, was the "whole" law of New York; and (5) that New York would, indeed must, determine liability for a tort on navigable waters in accordance with maritime law. Hence, from a substantive standpoint, the chase was thought to have ended where it began, save for a caveat as to the applicability of distinctive admiralty remedies, notably limitation, an issue not practically important here.

        13

        [169] What does remain important is that our powers to review a judgment determining liability but not fixing damages are entirely different if the action was in admiralty as the parties thought or at law as the judge held. If it was the former, we have jurisdiction under 28 U.S.C. § 1292(a) (3) relating to "interlocutory decrees * * * determining the rights and liability of the parties to admiralty cases in which appeals from final decrees are allowed," whereas if it were the latter, we would have none. Beebe v. Russell, 60 U.S. (19 How.) 283, 285, 15 L.Ed. 668 (1856); Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945).

        14

        We perceive no basis for the court's restrictive reading of the Public Vessels Act. It is no strain whatever on the language to say that a public vessel has "caused" any tort damage for which she is legally responsible. Thomason v. United States, 184 F.2d 105 (9 Cir. 1950). The Act speaks of causing "damage"; it says nothing about causing "collision." Such debate as there has been concerning the scope of the Public Vessels Act relates to claims sounding in contract, see Calmar S. S. Corp. v. United States, 345 U.S. 446, 456 n. 8, 73 S.Ct. 733, 738, 97 L.Ed. 1140 (1953), and even as to that "equivocal language should be construed so as to secure the most harmonious results." Id. Furthermore, and decisively, even if the judge's narrow reading of § 1 of the Public Vessels Act had been warranted, the suit could nevertheless be maintained under § 2 of the Suits in Admiralty Act as amended, 46 U.S.C. § 742. This provides, inter alia, that in cases where if any vessel owned by the United States "were privately owned or possessed, * * * a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States * * *." — the language of the 1920 statute restricting the Suits in Admiralty Act to merchant vessels having been stricken in 1960, 74 Stat. 912, for the very purpose of avoiding fruitless jurisdictional controversies and bringing all maritime claims against United States vessels into the admiralty jurisdiction of the district courts. See S.Rep. 1894, 86th Cong. 2d Sess., 2 U.S. Code Cong. & Adm. News, p. 3583 et seq.[3]

        15

        With our appellate jurisdiction under 28 U.S.C. § 1292 (a) (3) thus established, we return to the facts. The Tamaroa had gone into drydock on February 28, 1963; her keel rested on blocks permitting her drive shaft to be removed and repairs to be made to her hull. The contract between the Government and Bushey provided in part:

        16
        (o) The work shall, whenever practical, be performed in such manner as not to interfere with the berthing and messing of personnel attached to the vessel undergoing repair, and provision shall be made so that personnel assigned shall have access to the vessel at all times, it being understood that such personnel will not interfere with the work or the contractor's workmen.
        17

        Access from shore to ship was provided by a route past the security guard at the gate, through the yard, up a ladder to the top of one drydock wall and along the wall to a gangway leading to the fantail deck, where men returning from leave reported at a quartermaster's shack.

        18

        Seaman Lane, whose prior record was unblemished, returned from shore leave a little after midnight on March 14. He had been drinking heavily; the quarter-master made mental note that he was "loose." For reasons not apparent to us or very likely to Lane,[4] he took it into his head, while progressing along the gangway wall, to turn each of three large [170] wheels some twenty times; unhappily, as previously stated, these wheels controlled the water intake valves. After boarding ship at 12:11 A.M., Lane mumbled to an off-duty seaman that he had "turned some valves" and also muttered something about "valves" to another who was standing the engineering watch. Neither did anything; apparently Lane's condition was not such as to encourage proximity. At 12:20 A.M. a crew member discovered water coming into the drydock. By 12:30 A.M. the ship began to list, the alarm was sounded and the crew were ordered ashore. Ten minutes later the vessel and dock were listing over 20 degrees; in another ten minutes the ship slid off the blocks and fell against the drydock wall.

        19

        The Government attacks imposition of liability on the ground that Lane's acts were not within the scope of his employment. It relies heavily on § 228(1) of the Restatement of Agency 2d which says that "conduct of a servant is within the scope of employment if, but only if: * * * (c) it is actuated, at least in part by a purpose to serve the master." Courts have gone to considerable lengths to find such a purpose, as witness a well-known opinion in which Judge Learned Hand concluded that a drunken boatswain who routed the plaintiff out of his bunk with a blow, saying "Get up, you big son of a bitch, and turn to," and then continued to fight, might have thought he was acting in the interest of the ship. Nelson v. American-West African Line, 86 F.2d 730 (2 Cir. 1936), cert. denied, 300 U.S. 665, 57 S.Ct. 509, 81 L.Ed. 873 (1937). It would be going too far to find such a purpose here; while Lane's return to the Tamaroa was to serve his employer, no one has suggested how he could have thought turning the wheels to be, even if — which is by no means clear — he was unaware of the consequences.

        20

        In light of the highly artificial way in which the motive test has been applied, the district judge believed himself obliged to test the doctrine's continuing vitality by referring to the larger purposes respondeat superior is supposed to serve. He concluded that the old formulation failed this test. We do not find his analysis so compelling, however, as to constitute a sufficient basis in itself for discarding the old doctrine. It is not at all clear, as the court below suggested, that expansion of liability in the manner here suggested will lead to a more efficient allocation of resources. As the most astute exponent of this theory has emphasized, a more efficient allocation can only be expected if there is some reason to believe that imposing a particular cost on the enterprise will lead it to consider whether steps should be taken to prevent a recurrence of the accident. Calabresi, The Decision for Accidents: An Approach to Non-fault Allocation of Costs, 78 Harv.L.Rev. 713, 725-34 (1965). And the suggestion that imposition of liability here will lead to more intensive screening of employees rests on highly questionable premises, see Comment, Assessment of Punitive Damages Against an Entrepreneur for the Malicious Torts of His Employees, 70 Yale L.J. 1296, 1301-04 (1961).[5] The unsatisfactory quality of the allocation of resource rationale is especially striking on the facts of this case. It could well be that application of the traditional rule might induce drydock owners, prodded by their insurance companies, to install locks on their valves to avoid similar incidents in the future,[6] while placing the burden on shipowners is much less [171] likely to lead to accident prevention.[7] It is true, of course, that in many cases the plaintiff will not be in a position to insure, and so expansion of liability will, at the very least, serve respondeat superior's loss spreading function. See Smith, Frolic and Detour, 23 Colum.L.Rev. 444, 456 (1923). But the fact that the defendant is better able to afford damages is not alone sufficient to justify legal responsibility, see Blum & Kalven, Public Law Perspectives on a Private Law Problem (1965), and this overarching principle must be taken into account in deciding whether to expand the reach of respondeat superior.

        21

        A policy analysis thus is not sufficient to justify this proposed expansion of vicarious liability. This is not surprising since respondeat superior, even within its traditional limits, rests not so much on policy grounds consistent with the governing principles of tort law as in a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities. It is in this light that the inadequacy of the motive test becomes apparent. Whatever may have been the case in the past, a doctrine that would create such drastically different consequences for the actions of the drunken boatswain in Nelson and those of the drunken seaman here reflects a wholly unrealistic attitude toward the risks characteristically attendant upon the operation of a ship. We concur in the statement of Mr. Justice Rutledge in a case involving violence injuring a fellow-worker, in this instance in the context of workmen's compensation:

        22
        "Men do not discard their personal qualities when they go to work. Into the job they carry their intelligence, skill, habits of care and rectitude. Just as inevitably they take along also their tendencies to carelessness and camaraderie, as well as emotional make-up. In bringing men together, work brings these qualities together, causes frictions between them, creates occasions for lapses into carelessness, and for fun-making and emotional flare-up. * * * These expressions of human nature are incidents inseparable from working together. They involve risks of injury and these risks are inherent in the working environment."
        23

        Hartford Accident & Indemnity Co. v. Cardillo, 72 App.D.C. 52, 112 F.2d 11, 15, cert. denied, 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415 (1940); cf. Robinson v. Bradshaw, 92 U.S.App.D.C. 216, 206 F.2d 435 (1953). Judge Cardozo reached a similar conclusion in Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711, 13 A.L.R. 522 (1920). Further supporting our decision is the persuasive opinion of Justice Traynor in Carr v. Wm. C. Crowell Co., 28 Cal.2d 652, 171 P.2d 5 (1946) [employer liable for violent acts of servant against employee of a subcontractor working on the same construction job], followed in Fields v. Sanders, 29 Cal.2d 834, 180 P.2d 684, 172 A.L.R. 525 (1947) [employer liable for violent acts of driver against another driver in traffic dispute].

        24

        Put another way, Lane's conduct was not so "unforeseeable" as to make it unfair to charge the Government with responsibility. We agree with a leading treatise that "what is reasonably foreseeable in this context [of respondeat superior] * * * is quite a different thing from the foreseeably unreasonable risk of harm that spells negligence * *. The foresight that should impel the prudent man to take precautions is not the same measure as that by which he should perceive the harm likely to flow from his long-run activity in spite of all reasonable precautions on his own part. The proper test here bears far more resemblance to that which limits liability for workmen's compensation than to the test for negligence. The employer should be held to expect risks, to the public also, [172] which arise 'out of and in the course of' his employment of labor." 2 Harper & James, The Law of Torts 1377-78 (1956). See also Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 Yale L.J. 499, 544 (1961). Here it was foreseeable that crew members crossing the drydock might do damage, negligently or even intentionally, such as pushing a Bushey employee or kicking property into the water. Moreover, the proclivity of seamen to find solace for solitude by copious resort to the bottle while ashore has been noted in opinions too numerous to warrant citation. Once all this is granted, it is immaterial that Lane's precise action was not to be foreseen. Compare, for a similar problem in the law of damages, Petition of Kinsman Transit Co., 338 F.2d 708, 721-726 (2 Cir. 1964), cert. denied, Continental Grain Co. v. City of Buffalo, 380 U.S. 944, 85 S.Ct. 1026, 13 L.Ed.2d 963 (1965), but see also 388 F.2d 821 (2 Cir. 1968). Consequently, we can no longer accept our past decisions that have refused to move beyond the Nelson rule, Brailas v. Shepard S.S. Co., 152 F.2d 849 (2d Cir. 1945), cert. denied, 327 U.S. 807, 66 S.Ct. 970, 90 L.Ed. 1032 (1946); Kable v. United States, 169 F.2d 90, 92 (2 Cir. 1948),[8] since they do not accord with modern understanding as to when it is fair for an enterprise to disclaim the actions of its employees.

        25

        One can readily think of cases that fall on the other side of the line. If Lane had set fire to the bar where he had been imbibing or had caused an accident on the street while returning to the drydock, the Government would not be liable; the activities of the "enterprise" do not reach into areas where the servant does not create risks different from those attendant on the activities of the community in general. Cf. Gordon v. United States, 180 F.Supp. 591 (Ct.Cl.1960); Trost v. American Hawaiian S.S. Co., 324 F.2d 225 (2 Cir. 1963), cert. denied, 376 U.S. 963, 84 S.Ct. 1125, 11 L.Ed.2d 981 (1964). We agree with the district judge that if the seaman "upon returning to the drydock, recognized the Bushey security guard as his wife's lover and shot him," 276 F.Supp. at 530, vicarious liability would not follow; the incident would have related to the seaman's domestic life, not to his seafaring activity, cf. Hartford Accident & Indemnity Co. v. Cardillo, supra, 112 F.2d at 17, and it would have been the most unlikely happenstance that the confrontation with the paramour occurred on a drydock rather than at the traditional spot. Here Lane had come within the closed-off area where his ship lay, cf. McConville v. United States, 197 F.2d 680 (2 Cir. 1957), to occupy a berth to which the Government insisted he have access, cf. Restatement, Agency 2d, § 267, and while his act is not readily explicable, at least it was not shown to be due entirely to facets of his personal life. The risk that seamen going and coming from the Tamaroa might cause damage to the drydock is enough to make it fair that the enterprise bear the loss. It is not a fatal objection that the rule we lay down lacks sharp contours; in the end, as Judge Andrews said in a related context, "it is all a question [of expediency,] * * * of fair judgment, always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind." Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 354-355, 162 N. E. 99, 104, 59 A.L.R. 1253 (1928) (dissenting opinion).

        26

        Since we hold the Government responsible for the damage resulting from Lane's turning the wheels, we find it [173] unnecessary to consider Bushey's further arguments that liability would attach in any event because of later inaction of Lane and others on the Tamaroa; and that in libels in rem, whose principles are here applicable by virtue of § 3 of the Suits in Admiralty Act, ordinary rules of agency are inapplicable and the ship is liable for anything ship-connected persons cause it to do. Cf. The China, 74 U.S. (7 Wall.) 53, 19 L.Ed. 67 (1868); Burns Bros. v. Central R.R. of N. J., 202 F.2d 910, 914 (2 Cir. 1953).

        27

        Affirmed.

        28

        [1] The district court also dismissed a libel by the United States against the drydock owner for damage to the vessel; the United States has not appealed from that ruling.

        29

        [2] This contention has not been pressed on appeal.

        30

        [3] The discussion in Gilmore & Black, Admiralty, § 11-11 (1957), which the judge cited, 276 F.Supp. at 523, is thus largely obsolete — a good instance of the compelling need for a revised edition of this indispensable work.

        31

        [4] Lane disappeared after completing the sentence imposed by a courtmartial and being discharged from the Coast Guard.

        32

        [5] We are not here speaking of cases in which the enterprise has negligently hired an employee whose undesirable propensities are known or should have been. See Koehler v. Presque-Isle Transp. Co., 141 F.2d 490 (2 Cir.), cert. denied, 322 U.S. 764, 64 S.Ct. 1288, 88 L.Ed. 1591 (1943).

        33

        [6] The record reveals that most modern drydocks have automatic locks to guard against unauthorized use of valves.

        34

        [7] Although it is theoretically possible that shipowners would demand that drydock owners take appropriate action, see Coase, The Problem of Social Cost, 3 J.L. & Economics 1 (1960), this would seem unlikely to occur in real life.

        35

        [8] The Brailas decision relied on Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299 (1922), which was applied in St. Louis-San Francisco R. Co. v. Mills, 271 U.S. 344, 46 S.Ct. 520, 70 L.Ed. 979 (1926); Atlantic Coast Line R. Co. v. Southwell, 275 U.S. 64, 48 S.Ct. 25, 72 L.Ed. 157 (1927); and Atlanta & Charlotte Air Line R. Co. v. Green, 279 U.S. 821, 49 S.Ct. 350, 73 L.Ed. 976 (1929). However, we agree with Chief Judge Murrah that the Supreme Court would not follow Davis today, despite its author's eminence. Copeland v. St. Louis-San Francisco R. Co., 291 F.2d 119, 121, 123 (10 Cir. 1961) (dissenting opinion).

    • 5.2 VIII.Supp.B. Supplemental Cases and Materials

      • 5.2.1 Konradi v. United States

        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.

        1
        919 F.2d 1207
        2
        Gail D. KONRADI, Personal Representative of the Estate of Glenn J. Konradi, Plaintiff-Appellant,
        v.
        UNITED STATES of America and Robert E. Farringer, Defendants-Appellees.
        3
        No. 89-3532.
        4
        United States Court of Appeals,
        Seventh Circuit.
        5
        Argued Sept. 18, 1990.
        Decided Nov. 29, 1990.
        6

        [919 F.2d 1208] Thomas A. Withrow, David J. Bodle, and Scott S. Morrisson, Henderson, Daily, Withrow & Devoe, Indianapolis, Ind., and Richard K. Levi, Earnest, Foster, Eder, Levi & Northam, Rushville, Ind., for plaintiff-appellant.

        7

        Gerald A. Coraz, Asst. U.S. Atty., Deborah J. Daniels, U.S. Atty., Office of the U.S. Atty., John S. Langan, Davis, Davis & Langan, Indianapolis, Ind., and E. Edward Dunsmore, Knightstown, Ind., for defendants-appellees.

        8

        Before POSNER, RIPPLE and MANION, Circuit Judges.

        9
        POSNER, Circuit Judge.
        10

        While driving to work early one morning Robert Farringer, a rural mailman, struck a car driven by the plaintiff's decedent, Glenn Konradi, killing him. The suit is against the United States under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671 et seq., with a pendent-party claim under state law against Farringer. The basis of both claims is that Farringer's negligence in failing to yield the right of way to Konradi at an intersection was the cause of the accident. The district judge dismissed the suit on the government's motion for summary judgment. He ruled that the accident had not occurred within the scope of Farringer's employment by the Postal Service, which let off the Service; he then relinquished jurisdiction over the pendent party claim.

        11

        The parties agree that the question whether the accident occurred within the scope of Farringer's employment is governed [919 F.2d 1209] by Indiana law, 28 U.S.C. Sec. 1346(b); Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam), that under Indiana law it is a question of fact, Gibbs v. Miller, 152 Ind.App. 326, 329, 283 N.E.2d 592, 594 (1972), and therefore that the judge was right to dismiss the case on summary judgment only if no reasonable jury, presented with the evidence that was before the judge when he ruled, could have answered the question in the plaintiff's favor. One could quarrel with "therefore," since whether a question is one of fact or of law has been held to fall on the procedure side of the substance/procedure divide that Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), established. Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958); Nunez v. Superior Oil Co., 572 F.2d 1119, 1125 (5th Cir.1978); Deland v. Old Republic Life Ins. Co., 758 F.2d 1331, 1335 (9th Cir.1985). Although the present case is not a diversity case, Erie was an interpretation of the Rules of Decision Act, 28 U.S.C. Sec. 1652, and its principles apply to any case in federal court in which state law supplies the rule of decision, Morgan v. South Bend Community School Corp., 797 F.2d 471, 474 (7th Cir.1986); Hernas v. City of Hickory Hills, 507 F.Supp. 103, 105 (N.D.Ill.1981); Wright, Miller & Cooper, Federal Practice and Procedure Sec. 4515 (1982), as it does here by virtue of 28 U.S.C. Sec. 1346(b). Still, circumstances alter cases--or at least may. Byrd and the cases following it rely heavily on the Seventh Amendment, which has no application to the Federal Tort Claims Act, for the proposition that federal law determines when a question is factual, and therefore a jury issue, in a case tried in a federal court; the case for applying federal law to the law-fact issue in this case is therefore weakened. But so is the case for applying state law to the issue. Congress has given the federal courts exclusive jurisdiction over tort claims against the federal government, incorporating local law for the convenience of the federal government rather than to vindicate state policies--though on the other hand the states do have an interest in conduct of federal employees that injures the state's citizens.

        12

        All this is as academic as it is interesting. No party argues in this case that federal law rather than state law should determine whether scope of employment is to be treated as a legal or as a factual question--perhaps believing, plausibly enough, that the question would be decided the same way under either law. Without further ado, therefore, we can turn to the merits.

        13

        The general rule is that an employee is not within the scope of his employment when commuting to or from his job. As the Supreme Court of Indiana put it the last time it addressed the issue, more than three decades ago, "an employee on his way to work is normally not in the employment of the corporation." Biel, Inc. v. Kirsch, 240 Ind. 69, 73, 161 N.E.2d 617, 618 (1959) (per curiam). The rub is "normally," and though omitted in the statement of the rule in Pursley v. Ford Motor Co., 462 N.E.2d 247, 249 (Ind.App.1984), this weasel word is definitely required for the sake of accuracy. In State v. Gibbs, 166 Ind.App. 387, 336 N.E.2d 703 (1975), the employer furnished the employee with a car for use on the job but also allowed him to take it home at night. The accident occurred while he was driving home, and the employer was held liable. In Gibbs v. Miller, supra, the employer was held liable for an accident that occurred when its traveling salesman, who used his own car to make his rounds, was driving home for lunch from an appointment with a customer; he had other appointments scheduled for that afternoon. On the other hand, in City of Elkhart v. Jackson, 104 Ind.App. 136, 10 N.E.2d 418 (1937), which also involved an employee driving the company car at lunch time--this time he was returning to work after lunch when the accident occurred--the accident was held to be outside the scope of employment. Biel, Inc. v. Kirsch, supra, was another company-car case, and again the accident (which occurred while the employee was driving the car to work one morning) was held to be outside the scope of employment--but the employee happened also to be the employer's owner, [919 F.2d 1210] and, it seems, was using the car for her personal convenience rather than on company business. In City of Crawfordsville v. Michael, 479 N.E.2d 102 (Ind.App.1985), the employee was using the company car (actually truck) for personal business on his day off when the accident occurred; he too was held not to have been acting within the scope of his employment.

        14

        It is impossible to find the pattern in this carpet without a conception of what the law is trying to accomplish by making an employer liable for the torts of his employees committed within the scope of their employment and by excluding commuting from that scope--"normally." The Indiana decisions are few and not articulate on these issues, and although there are plenty of cases in other states, they use a similar approach and are similarly reticent about the considerations that animate their decisions. Annot., Employer's Liability for Negligence of Employee in Driving His Own Car, 52 A.L.R.2d 287, 303, 311 (1957); Annot., Employer's Liability for Employee's Negligence in Operating Employer's Car in Going to or from Work or Meals, 52 A.L.R.2d 350, 354, 362-63 (1957). There is however a rich scholarly literature on vicarious liability, specifically of employers, from which clues can be gleaned. Sykes, The Boundaries of Vicarious Liability: An Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines, 101 Harv.L.Rev. 563 (1988), is particularly helpful; we have relied on it previously, in an opinion by Judge Manion, Wilson v. Chicago, Milwaukee, St. Paul & Pac. R.R., 841 F.2d 1347, 1352, 1356 n. 2 (7th Cir.1988), to help decide a scope of employment issue.

        15

        Often an employer can reduce the number of accidents caused by his employees not by being more careful--he may already be using as much care in hiring, supervising, monitoring, etc. his employees as can reasonably be demanded--but by altering the nature or extent of his operations: in a word by altering not his care but his activity. This possibility is a consideration in deciding whether to impose strict liability generally. Anderson v. Marathon Petroleum Co., 801 F.2d 936, 939 (7th Cir.1986); Bethlehem Steel Corp. v. EPA, 782 F.2d 645, 652 (7th Cir.1986); Shavell, Strict Liability versus Negligence, 9 J. Legal Stud. 1 (1980). The liability of an employer for torts committed by its employees--without any fault on his part--when they are acting within the scope of their employment, the liability that the law calls "respondeat superior," is a form of strict liability. It neither requires the plaintiff to prove fault on the part of the employer nor allows the employer to exonerate himself by proving his freedom from fault. The focus shifts from changes in care to changes in activity. For example, instead of dispatching its salesmen in cars from a central location, causing them to drive a lot and thus increasing the number of traffic accidents, a firm could open branch offices closer to its customers and have the salesmen work out of those offices. The amount of driving would be less (an activity change) and with it the number of accidents. Firms will consider these tradeoffs if they are liable for the torts of their employees committed within the scope of their employment, even if the employer was not negligent in hiring or training or monitoring or supervising or deciding not to fire the employee who committed the tort. This liability also discourages employers from hiring judgment-proof employees, which they might otherwise have an incentive to do because a judgment-proof employee, by definition, does not have to be compensated (in the form of a higher wage) for running the risk of being sued for a tort that he commits on his employer's behalf. He runs no such risk; he is not worth suing.

        16

        If it is true that one objective of the doctrine of respondeat superior is to give employers an incentive to consider changes in the nature or level of their activities, then "scope of employment" can be functionally defined by reference to the likelihood that liability would induce beneficial changes in activity. It becomes apparent for example that the employer should not be made liable for a tort committed by the employee in the employee's home, for there is no plausible alteration in the activity of [919 F.2d 1211] the employer that would substantially reduce the likelihood of such a tort. This overstates the case a bit; one can imagine a plaintiff's arguing that if the employer had not made the employee work so hard the employee would have been more alert and therefore more careful and the accident would not have occurred. But the law has to draw some lines for ease of administration, and a rough-and-ready one is between accidents on the job and accidents off the job--including accidents while commuting--in recognition of the fact that the employer's ability to prevent accidents by employees is normally much less when the employees are not at work. Indiana recognizes, however, that the line is indeed a rough one, and it allows juries to cross it when particular circumstances make the line inapt to the purpose that it seeks to implement. Whether it is wise to give juries such discretion is not our business, at least given the parties' agreement that the state rule empowering the jury to decide whether the accident was within the scope of the employment governs this case.

        17

        The Postal Service, Farringer's employer, requires its rural postal carriers to furnish their own vehicle (Farringer's was a pick-up truck) in making their rounds. Postal Operations Manual Sec. 634.21 (1985). The alternative would be for the Service to buy or lease mail trucks for these carriers to use. A possible consequence of the choice it has made is to increase the amount of driving over what it would be if the Service furnished the vehicles. No family with one car (and precious few with two) would want to leave its car at work and thereby have to find an alternative method of commuting. The Postal Service's rule pretty much guarantees that its mailmen will drive to and from work, and by doing this it increases the amount of driving compared to a system in which, since the mailman does not need to have his own car at work, he can take a train or bus or join a car pool. One cost of more driving is more accidents, and this cost can be made a cost to the Postal Service, and thus influence its choice between furnishing its mailmen with vehicles and requiring them to furnish their own, if the scope of employment is defined for purposes of tort law as including commuting in all cases in which the employee is required to furnish a vehicle for use at work. The argument for liability might actually seem stronger than if the employer had furnished the vehicle. But it must be borne in mind that the question of the employer's liability in cases involving a company-owned vehicle arises only when the vehicle is being used outside of work time; and here it can be argued that a person furnished with a company car is apt to drive more, and more carelessly, than if he were using his own car.

        18

        All this is highly speculative. The Postal Service's rule is limited to rural deliverymen, and neither public transportation nor car pooling is common in rural America. Especially since any expansion in tort liability is bound to be a source of litigation costs and judicial burdens, we could not be sufficiently confident concerning the effects of liability to be justified in laying down a general rule that employers who require their employees to use their own vehicle on the job, or permit them to use a company vehicle off the job, are liable for the employees' accidents while commuting in that vehicle; nor would that be a plausible extrapolation from the Indiana cases. But additional evidence in this case points to employer liability. According to testimony that for purposes of this appeal (only) we must take to be true, Farringer's postmaster required the postal carriers to take the most direct route in driving to and from work, and hence not to divagate for personal business. Nor was the carrier to stop for such business, or give anyone a ride. And he was to fasten his seatbelt (this was before Indiana passed a seatbelt law). The record does not reveal the reasons for these requirements. They may just reflect the Postal Service's fear of being held liable for commuting accidents and its concomitant desire to minimize the length of the trip and number of persons in the employee's car in order to reduce the likelihood of accidents. If this is right the plaintiff can do nothing with the requirements, because a person's fear of being held liable is not a reason for the law's [919 F.2d 1212] holding the person liable. An employer should not be held liable, and therefore penalized, for taking steps rationally designed to minimize its liability by increasing the safety of its operations.

        19

        Another possibility, however, is that the Postal Service was trying to minimize time lost by its employees from work and its workers' compensation costs, for the government interprets the federal employees' compensation law to include the commuting accidents of postal workers. U.S. Dept. of Labor, Wage and Labor Standards Administration, Bureau of Employees' Compensation, FECA Memorandum No. 104 (Oct. 24, 1969), interpreting 5 U.S.C. Sec. 8102(a); but see Avasthi v. United States, 608 F.2d 1059 (5th Cir.1979). This is not to suggest that the scope of liability for workers' compensation purposes is identical to that for liability to third-party victims of those workers' torts; in fact it is broader. Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 Yale L.J. 499, 544-45 (1961). The point is different. If the Postal Service insists for time's sake that the carrier always travel to and from work by the most direct route, which may not be the safest route, the Service should be liable for the accidents that result from this directive; it has made them more likely.

        20

        The rules of commuting that the postmaster has imposed upon his carriers may also or instead reflect a belief that the work of a rural deliveryman begins when he gets into his car in the morning and ends when he gets out of it in the evening. For during all that time he has control over an essential instrumentality of postal service--the delivery van--albeit supplied by the deliverer. This underscores the earlier point that the Postal Service has made a choice between buying its own fleet of vans and pressing its employees' vans into service, and may bring the case within the orbit of State v. Gibbs. It is as if the Postal Service had decided to store its vans at night in its employees' garages. But against this is the fact that the mileage allowance which the Service gives its employees when they use their own vehicle on the job does not include the use of the vehicle in commuting. Moreover, there is no general rule making the employer liable for a commuting accident merely because he supplied the vehicle. Biel no doubt is a special case, and so is Michael, where the employer-owned car was being used purely for personal business, since it was the employee's day off; and in State v. Gibbs the employer was held liable. On the other hand Jackson seems indistinguishable from State v. Gibbs, yet was decided in favor of the employer. The analysis sketched above suggests that there is no magic to the employer's supplying the car; the functional argument (promotion of safety) for employer liability is as strong if he makes the employee bring his own car. Gibbs v. Miller imposed liability in such a case. Of course the two Gibbs cases are factually different from our case--every case is factually different from every other case--but that is no warrant for refusing to follow them in this case unless the factual differences between them and this case are connected with a difference in principle.

        21

        After and because of the accident, the Postal Service fired Farringer. This may have been because it feared that he might have a similar accident, for which the Service would incontestably be liable, while on the job; another possibility however is that the Service considered the tort he did commit to have occurred on the job. But this consideration seems merely to duplicate the one discussed in the preceding paragraph, and it is therefore entitled to no weight.

        22

        Not only may the imposition of liability on the Postal Service be consistent with most of the Indiana cases (indeed all but Jackson ); it is consistent with all three of the formulas that courts in Indiana and elsewhere intone when they are trying to generalize about scope of employment. Reed v. House of Decor, Inc., 468 So.2d 1159, 1161 (La.1985). By driving to and from work Farringer conferred a benefit on his employer because he was bringing an essential instrumentality of the employer's business. (True, the employer would not have cared if Farringer had left his truck in the post office parking lot and [919 F.2d 1213] thumbed a ride to work, but few employees would thus forgo all personal use of their vehicle.) The employer exerted substantial control over the employee's commuting, as shown by the regulations discussed earlier. And finally the employee while commuting was in the service of the employer because he was keeping and maintaining the instrumentality.

        23

        These "tests" should not be thought conclusive. Tests divorced from purposes tend not to be useful, let alone conclusive, and the linkage between the tests and what the discussion in this opinion conjectures is the underlying purpose of the scope of employment concept is obscure. The law has drawn a line between at work and at home but treats commuting as an intermediate zone that can be placed within or outside the scope of employment depending on circumstances, though the presumption is in favor of outside. The purpose of a doctrine determines what circumstances are relevant. The purpose of this doctrine may be to induce the employer to consider activity changes that might reduce the number of accidents. One possible change might be to substitute a fleet of postal vans for the employees' personal vehicles driven to and from work daily perhaps over substantial distances.

        24

        In attempting to predict how the Indiana courts would have decided this case had it been brought in such a court (which it could not have been, of course, because the federal government has not consented to be sued in state courts), this court necessarily is speculating. There is no reason to apologize for this acknowledgment. The decision of a federal court in a diversity case, or in any other case in which state law supplies the rule of decision, is an exercise in predicting how the highest court of the state would decide the case if it were presented to it. When the relevant decisions of the state's courts do not articulate the grounds that animate their results, and the issue is not suitable for certification to the state supreme court (perhaps because as here it is highly fact-specific), the federal court has no choice but to speculate as to what the true grounds might be or to supply grounds that it thinks might recommend themselves to the state's courts in the future. It is in that spirit that this opinion has sought to bring modern scholarship to bear on the vexing issue of scope of employment in commuting cases.

        25

        The unavoidably speculative character of the analysis furnishes an additional reason for believing that the district court acted prematurely in granting summary judgment. The more nebulous or unsettled the legal standard, the more difficult it should be to exclude contested facts from consideration on the ground that they are immaterial. If the Indiana rule excluding commuting from the scope of employment were strict, the Postal Service would be right to argue that it is immaterial why it fired Farringer. But as it is not strict, the question may be material. Perhaps the Postal Service fired Farringer because it considers commuting to be part of working and because it has a policy of firing people who kill tortiously in the course of their employment with the Service. The scope of federal employees' compensation may be irrelevant to scope of employment for liability purposes, but then again it may not be. Perhaps as the facts are developed it will become evident that Farringer was not acting within the scope of his employment, but on the basis of the record compiled thus far it cannot be said that no reasonable jury could find that he was.

        26

        It should go without saying that the recitation of facts in this opinion is tentative; the facts may appear quite different after further proceedings. In particular the nature of and authority for the various rules to which the Knightstown Post Office where Farringer worked, as distinct from the Postal Service itself, subjected Farringer are wholly unclear.

        27

        One final point. The plaintiff joined Farringer as a pendent party defendant, and the district court dismissed Farringer from the suit without prejudice after deciding to dismiss the main claim, that is, the claim against the United States. The court did this on the familiar ground that, with immaterial exceptions, when the main claim [919 F.2d 1214] drops out before trial the court should relinquish jurisdiction over all pendent claims. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). The result was right, but not the reasoning. The Supreme Court had held several months before the judgment in this case that there is no pendent party jurisdiction in cases brought under the Tort Claims Act. Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989). The district court never acquired jurisdiction over Farringer (for he and the decedent, whose citizenship is what counts for diversity purposes although his personal representative is the actual party, 28 U.S.C. Sec. 1332(c)(2), are both citizens of Indiana)--against whom, by the way, the plaintiff has filed a parallel suit in state court. Although Finley was decided after the present suit was brought, there is no reason not to apply it to this case; the harm to the plaintiff is slight, since she has another and solvent defendant (the United States) to pursue in this case, and a suit against Farringer in state court.

        28

        The dismissal of Farringer (without prejudice, of course) is affirmed, albeit on a different ground from the district judge's; but the dismissal of the United States is reversed and the case remanded for further proceedings consistent with this opinion. Costs in this court to the plaintiff.

        29

        AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

        30
        RIPPLE, Circuit Judge, concurring.
        31

        I concur in the judgment of the court. The record before us certainly contains a genuine issue of triable fact as to whether Mr. Farringer was in the scope of his employment. It is not at all clear whether, at the time of the accident, Mr. Farringer was acting for and on behalf of the Postal Service or was under the control of the Postal Service. In dealing with this issue on remand, the district court must assess, in my view, the totality of the circumstances--not simply the reason for Mr. Farringer's discharge.

        32
        MANION, Circuit Judge, concurring.
        33

        The majority opinion examines several scenarios of what might have occurred. As with any summary judgment appeal, however, we examine one question--is there any genuine issue as to any material fact that precludes summary judgment as a matter of law? In my view there may be one, and thus I am willing to concur in the remand.

        34

        Indiana law is clear that, with very limited exceptions, an employee is not within the scope of his employment while driving to and from work. The facts in this case present fewer "incidental benefits" than the facts of the Indiana Supreme Court case setting forth this general rule. See Biel, Inc. v. Kirsch, 240 Ind. 69, 161 N.E.2d 617 (1959). Unless we have some exceptional circumstance, a rural postal worker driving to work is on his own and not within the scope of his employment.[1]

        35

        In an attempt to circumvent this rule, the plaintiff alleges that Farringer's postmaster required him and other carriers who drove their own car to conduct no personal business en route to and from work, to take the most direct route, not to carry any passengers, and to fasten their seatbelts. Although these are simply allegations, even if taken as true the majority opinion appropriately minimizes their consequence (ante p. 1212). These allegations are not sufficient to invoke the two narrow factbound exceptions to Biel as established by the Indiana Court of Appeals.

        36

        [919 F.2d 1215] In Gibbs v. Miller, 152 Ind.App. 326, 283 N.E.2d 592 (3d Dist.1972), a salesman was in an accident while returning home for lunch from an appointment with a customer. He was not expected in the office that day. He had another appointment scheduled following lunch, and also planned to do some paperwork at home during lunch. He was being reimbursed for mileage from his home to the morning appointment and back. A jury found the employer liable, and the appeals court, although troubled by the paucity of evidence, refused to overturn the jury verdict as a matter of law.

        37

        In State v. Gibbs, 166 Ind.App. 387, 336 N.E.2d 703 (1st Dist.1975), a jury held the state liable for $100,000 following an accident involving an employee of the Indiana State Highway Commission. The employee's job involved considerable driving, so the state furnished him with a car that was checked out to him at all times. He was allowed to drive it home after work and to lunch during the work day, but was not to use it for other personal business. Although he worked a 7:30 to 5:00 day, he considered himself on call 24 hours a day. He finished conducting tests at 5 p.m. on the night of the accident and drove to the office to speak with his supervisor. The supervisor wasn't there, so after reading notes left on his desk the employee headed for several local restaurants where his supervisor sometimes went after work. He still could not find the supervisor, and eventually drove to another town to eat dinner. The injury occurred after dinner on his way home. Again, the appeals court refused to reverse the jury verdict despite its concern over the slight evidence of employer liability. The court emphasized that the employee was driving a state vehicle home from work so he could return directly to his job in the morning, and that he was on call 24 hours a day. Inexplicably, the Biel case was not even cited.[2]

        38

        Our case is factually different than either of those narrow exceptions to the general rule--there is virtually no evidence that Farringer was in the scope of his employment. Farringer was driving his own car to work, not the government's. He was not providing any benefit to the government while en route; his job did not begin until he reached the post office to sort and pick up his mail for delivery. He was not, as in Gibbs v. Miller, going home for lunch and to do some paperwork in between business appointments, while receiving payment for mileage incurred on the trip.[3] He was not, as in State v. Gibbs, properly driving a state-owned vehicle home from work following the day's activities, while on call 24 hours a day. Rather, he was simply travelling to work. Until he is at work, Indiana does not impose his misdeeds on the employer.

        39

        This case is much closer to Biel. In Biel, a woman who served as president of a corporation was in the habit of driving a company car to and from work. Although the company paid for the oil and gas, taxes and upkeep on the vehicle, the Indiana Supreme Court held that Mrs. Biel was not within the scope of her employment when driving the company car to work. Even if we accept Farringer's unsupported (and illogical) contentions that he was required to follow a certain route, to wear a seat belt, and to not take passengers on his way to work, this case is not factually close to the two state appellate court cases providing narrow exceptions to the rule set out by the Indiana Supreme Court.

        40

        The only pertinent question having some bearing on whether Farringer was in the scope of his employment centers on his termination, supposedly because of the accident. If he was terminated because of some policy regulating his travel to and from work, and if that policy is so encumbering that it puts him in the scope of [919 F.2d 1216] employment even while driving to work, a trial may be warranted to determine if those facts merit an exception under Indiana law. But if that policy is nothing more than a provision that drivers with poor driving records cannot remain as rural postal drivers, or something similarly general, summary judgment would be appropriate. Aside from that one possibility, I do not agree with this court that the "employer exerted substantial control over the employee's commuting, as shown by the regulations discussed...." The opinion acknowledges those tests are not conclusive and that "we necessarily are speculating." Indiana law is clear that "an employee on his way to work is normally not in the employment of the corporation." Biel, 161 N.E.2d at 618. Unless Farringer was terminated for violating some specific driving policy covering rural postal drivers on their way to and from work, the normal rule should apply and summary judgment in favor of the government is entirely appropriate.

        41

        [1] As we recognized in Pace v. Southern Express Company, 409 F.2d 331, 333 (7th Cir.1969), Indiana law is "well settled" that an employee travelling to or from work is not within the scope of his employment. This rule has been applied in a variety of cases under a variety of factual circumstances. See e.g.: City of Crawfordsville v. Michael, 479 N.E.2d 102 (Ind.App. 1 Dist.1985); Pursley for Benefit of Clark v. Ford Motor, 462 N.E.2d 247 (Ind.App. 2 Dist.1984); Pace v. Couture, 150 Ind.App. 220, 276 N.E.2d 213 (1972); Marion Trucking Co. v. Byers, 121 Ind.App. 592, 97 N.E.2d 635 (1951); North Side Chevrolet, Inc. v. Clark, 107 Ind.App. 592, 25 N.E.2d 1011 (1940); Neyenhaus v. Daum, 102 Ind.App. 106, 1 N.E.2d 281 (1936); Haynes v. Stroh, 99 Ind.App. 595, 193 N.E. 721 (1935).

        42

        [2] State v. Gibbs was explicitly narrowed by a later court of appeals case. In City of Crawfordsville, supra, 479 N.E.2d at 104, the court held that "Gibbs is an exception to the well-settled rule" of Biel, and that, "[a]s such, we are hesitant to apply it beyond its specific facts."

        43

        [3] In addition to salary and benefits Farringer did receive an allowance for mileage and maintenance. However, this allowance was based only on the miles covered by the mail carrier during delivery of his route, and not on the distance he travelled to and from work. See Supplemental Appendix of Appellee at 122.

      • 5.2.2 Forster v. Red Top Sedan Service

        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.

        1
        257 So.2d 95
        2
        Vincent FORSTER and Lillian Forster, his wife, Appellants,
        v.
        RED TOP SEDAN SERVICE, INC., etc., Appellee.
        3
        No. 71--561.
        4
        District Court of Appeal of Florida, Third District.
        5
        Jan. 18, 1972.
        Rehearing Denied Feb. 9, 1972.
        6

        [257 So.2d 96] Pozen, Pestcoe, Gold & Gold, Miami, for appellants.

        7

        Preddy, Haddad, Kutner & Hardy, Miami, for appellee.

        8

        Before SWANN, C.J., and PEARSON and HENDRY, JJ.

        9
        HENDRY, Judge.
        10

        Appellants were plaintiffs in an action against the defendants to recover damages for an assault and battery made upon plaintiffs by defendant driver of a bus of Red Top Sedan Service, Inc.

        11

        The amended complaint charged in two of the counts that Red Top's driver, Harvey Breines drove its bus in such a manner as to intentionally run plaintiffs' vehicle off the highway, and that defendant driver assaulted and battered both plaintiffs. Count III alleged that defendant Red Top was negligent in hiring Breines and entrusting him with a dangerous instrumentality in view of his prior propensity for violence of the kind and nature described in the complaint.

        12

        Defendants moved to dismiss the amended complaint for failure to state a cause of action and it was denied. An answer of general denial was filed. The cause was set for jury trial on the issues. At the conclusion of plaintiffs' case the trial judge granted defendant Red Top's motion for directed verdict. The defendant driver was voluntarily dismissed from the suit prior thereto.

        13

        The plaintiffs have appealed from the final judgment in favor of the defendant.

        14

        The evidence adduced showed that Vincent Forster and his wife Lillian, were driving east on the Airport Expressway after having stopped at the airport to let a friend get out of their car. A large bus, previously behind the plaintiffs' vehicle, drove up beside their car. It began driving closer and closer, pushing their car over toward the median strip. The bus then pulled ahead and in front of the plaintiffs' car and came to an abrupt stop. In order to avoid a collision Mr. Forster slammed on his brakes.

        15

        While Mr. Forster was in his car strapped in his seat with the seat belt, the bus driver, Breines, went back to the Forsters' car. He jerked open the door on the side of the driver and swore that no 'old bastard' would delay his schedule and 'hold him up from getting to the Beach.' Thereupon, he reached for the keys and began pushing Mr. Forster in the face. When Mrs. Forster tried to protect her husband's face, Breines struck her also.

        16

        Breines had been employed by Red Top as a driver of its limousines and buses for about one month prior to this incident. It was customary for him to drive Red Top's buses and limousines between the airport and Miami Beach. At the time of this occurrence he was on his way from the airport to Miami Beach to pick up a group of people.

        17

        Plaintiffs' counsel attempted to question Breines, while on the witness stand, regarding his criminal and driving records. Objections to the questions were interposed by the defendant's counsel and sustained by the court. Proffer was made showing convictions of violent crimes and traffic violations.

        18

        The court also sustained objections to questions propounded to officials of Red Top who were witnesses, relating to the hiring practices and procedures of the company.

        19

        Plaintiffs are urging reversal on two grounds: (1) that it was error for the trial court to direct a verdict for the defendant and, (2) that the court erred in sustaining defendant's objections to questions [257 So.2d 97] propounded by plaintiff's counsel to the defendant regarding his record of convictions of violent crimes and traffic violations; that the court further erred in denying the plaintiffs' right to question officials of Red Top regarding its employment practices.

        20

        First, appellants argue in support of reversal that where the bus company's employee forced plaintiffs' vehicle off the road without coming in contact with plaintiffs' vehicle, and then assaulted and battered plaintiffs because he believed they had delayed him in the performance of his duties, the bus company was vicariously liable for its driver's misconduct.

        21

        The trial court disagreed with appellant's contentions in this regard and held that the employee was not acting within the scope of his employment, but was performing an act entirely personal to himself and not in the prosecution of the master's business.

        22

        We have carefully considered the point in the light of the record, briefs and arguments of counsel and have concluded that the trial judge erred in directing a verdict for the defendant in that it is not in accord with the rules enunciated by this court in Hurst v. Krinzman, Fla.App.1970, 237 So.2d 333, and numerous other appellate decisions of the courts of Florida.

        23

        It appears to us that upon consideration of all the testimony and varying inferences and conclusions there were issues of fact which should have been submitted to a jury, under proper instructions. City of Miami v. Simpson, Fla.1965, 172 So.2d 435, 437; Sixty-Six, Inc. v. Finley, Fla.App.1967, 224 So.2d 381, 383 and cases cited; Columbia by the Sea, Inc. v. Petty, Fla.App.1963, 157 So.2d 190, 194.

        24

        Count III of the amended complaint was based upon the alleged negligence and conclusions of Red Top in hiring the defendant driver. It was error for the court to deny plaintiffs the right to submit evidence on this issue. Davis v. Major Oil Company, Fla.App.1964, 164 So.2d 558; Sixty-Six, Inc. v. Finley, supra.

        25

        The judgment appealed is reversed and the cause is remanded for further proceedings.

      • 5.2.3 Reina v. Metropolitan Dade County

        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.

        1
        285 So.2d 648
        2
        Ricardo REINA, Appellant,
        v.
        METROPOLITAN DADE COUNTY, Florida, etc., et al., Appellees.
        3
        No. 73-230.
        4
        District Court of Appeal of Florida, Third District.
        5
        Oct. 30, 1973.
        Rehearing Denied Dec. 7, 1973.
        6

        [285 So.2d 649] Horton & Perse, and Arnold R. Ginsberg; Fuller, Brumer, Moss & Cohen, Miami, for appellant.

        7

        Henry L. Oppenborn, Jr., and Sam Daniels, Miami, for appellees.

        8

        Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.

        9
        PER CURIAM.
        10

        The appellant seeks review of an adverse final judgment, entered pursuant to a directed verdict, in an action to recover damages for an assault and battery committed upon the appellant-plaintiff by a bus driver (defendant's employee).

        11

        The plaintiff boarded a County bus operated by James Koch. He placed a quarter in the fare box and the bus driver exchanged words with him regarding the fare being 30 cents, not 25 cents. Several blocks further, the plaintiff pulled the cord to signal the driver that he wanted to get off the bus, but the driver did not stop. The plaintiff again pulled the cord and the driver stopped in the center of the street. After the plaintiff got off the bus (when he had reached the sidewalk) he made an obscene gesture to the driver. When the driver saw the gesture, he pulled the bus off to the side of the road, stopped, and ran after the plaintiff, yelling at him. The driver kicked and beat the plaintiff, as a consequence of which the plaintiff was hospitalized. The plaintiff sued both the bus driver (Koch) and the County. At the trial of plaintiff's action against the County, both plaintiff and the County moved for directed verdicts at the close of the evidence. The plaintiff's motion was denied and the County's granted. Final judgment was entered on the directed verdict in favor of the County, from which the plaintiff appeals.

        12

        The appellant contends the trial court erred in granting the defendant's motion for directed verdict, when the following evidence existed from which a jury might lawfully find in favor of the plaintiff: That, because of the 'hot pursuit' of plaintiff by the bus driver, the contract of carriage had not terminated when the plaintiff was assaulted and the County could be found liable on the principles regarding the common carrier-passenger relationship; and that, because the bus driver was motivated by a desire to further the interests of his employer when he assaulted the plaintiff and because the assault was a continuation of the verbal altercation on the bus, the County could be found liable on the principles of respondeat superior, citing primarily Columbia By The Sea, Inc. v. Petty, Fla.App.1963, 157 So.2d 190; Forster v. Red Top Sedan Service, Inc., Fla.App.1972, 257 So.2d 95; Anno. 34 A.L.R. 372, and cases cited therein.

        13

        The appellee replies to this argument that Forster v. Red Top Sedan Service, Inc., supra, is inapplicable under the circumstances because in the cited case the conduct on the part of the injured party, which was impeding the progress of the bus towards the beach, was likely to continue as the bus proceeded down the expressway. The facts in the instant case are just the opposite. The passenger had alighted the bus and was across the street when he was attacked. His conduct could not have impeded the progress of the bus as it continued on its route. We believe the trial judge was correct in the entry of his order directing a verdict for the County. See: Weiss v. Jacobson, Fla.1953, 62 So.2d 904; White v. Alleghany Cab Co., Inc., S.Ct.N.Y.1941, 29 N.Y.S.2d 272; George v. Youngstown Municipal Ry. Co., 49 Ohio Law Abst. 412, 86 N.E.2d 916.

        14

        [285 So.2d 650] The other points urged for reversal have been examined and found to be without merit.

        15

        Therefore, for the reasons above stated, the final judgment here under review be and the same is hereby affirmed.

        16

        Affirmed.

      • 5.2.4 Miami Herald Publishing Co. v. Kendall

        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.

        1
        88 So.2d 276
        2
        The MIAMI HERALD PUBLISHING COMPANY, a corporation, Appellant,
        v.
        Mrs. Mary KENDALL, a widow, Appellee.
        3
        Supreme Court of Florida, Special Division B.
        4
        March 7, 1956.
        Rehearing Denied June 7, 1956.
        5

        Dixon, DeJarnette, Bradford & Williams and H. Reid DeJarnette, Miami, for appellant.

        6

        Edward E. Fleming and Nichols, Gaither, Green, Frates & Beckham, Miami, for appellee.

        7
        THOMAS, Justice.
        8

        The appellee was awarded a verdict in her action against the appellant for injuries she received when she was struck by a motorcycle operated by Wayne Molesworth who was, at the time, delivering the morning issue of the Miami Herald.

        9

        There is no dispute about the negligence of Molesworth; in fact, it is conceded that [88 So.2d 277] he was at fault and that the appellee was injured as a result of his wrongdoing.

        10

        The question here for decision is the status of Molesworth at the time of the mishap. The appellant contends he was an independent contractor; the appellee insists he was an employee of the appellant and that appellant is therefore liable for the injury caused her.

        11

        For nearly twenty years newsboys have delivered the Miami Herald under a contract identical with, or similar to, the one involved in this litigation which contains the provision, among others, that 'the NEWSDEALER is a separate, independent contractor and not subject to the exercise of any control by the PUBLISHER over his method of distributing or otherwise handling the delivery of said newspaper within his territory other than as expressly set forth in this contract * * *.' (Italics supplied.)

        12

        The contract between the appellant and Molesworth carried the provisions that the appellant would furnish Molesworth, at a stipulated price, as many copies of daily and Sunday editions as he ordered, would supply him with the names and addresses of all persons wishing the newspaper to be delivered to them in the territory assigned to Molesworth, would credit the carrier for shortages of papers, and would credit Molesworth 'for subscriptions paid in advance * * *.'

        13

        The appellant asserts that the facts in the instant case so closely resemble those with which we dealt in Florida Publishing Co. v. Lourcey, 141 Fla. 767, 193 So. 847, that the present controversy may be determined in its favor on authority of that decision. The appellant also insists that the pivotal question is one of law notwithstanding the circuit judge's action in submitting the issue of Molesworth's status to the jury.

        14

        The appellant reminds us of a familiar criterion by which it may usually be determined whether one performing services is an independent contractor or employee, that is, roughly, if the one securing the services controls the means by which the task is accomplished, the one performing the service is an employee, if not, he is an independent contractor. The contract, says the appellant, by its very terms made the newscarrier an independent contractor, and any control exercised by appellant was directed to the result--not the manner of performance.

        15

        Before turning to the appellee's position, it seems logical to quote from the opinion in Florida Publishing Co. v. Lourcey, supra, the part appellant quoted in its brief because the language we will italicize brings into focus the issue in this appeal:

        16

        'The contract in terms provides that Seig 'shall at all times occupy the position of an independent contractor and control all ways, means, method of conveyance, and distribution relating to the proper performance and completion of the agreement. The corporation looks only to the party of the third part and said carrier to obtain the desired results as herein set out'.

        'These provisions were ample to make Seig an independent contractor if they were not to all intents and purposes vitiated by other provisions of the contract or the practice of the parties under it. * * *

        'The parts of the contract relied on to deprive it of its independent carrier relation are the provisions with reference to its termination, promoting the circulation of the corporation's newspapers, the free distribution of sample copies and the retention of subscription lists from the carrier including the practice of the carrier in the performance of these provisions.

        * * *

        * * *

        'We find nothing in any of these requirements or the practice under them to deprive the contract of its independent character. It was in every respect lawful and normally without danger to others and Seig was subject to the will of the corporation only as to results of his work and he was permitted to perform it according to [88 So.2d 278] his own methods. * * *' (Italics supplied.)

        17

        The appellee contends that there was abundant evidence that the manner of the performance of Molesworth's services supported the conclusion that he was under the control of the appellant to such extent as to be an employee. In Sec. 220, Restatement of the Law of Agency, recognized in Margarian v. Southern Fruit Distributors, 146 Fla. 773, 1 So.2d 858, the important factors bearing on the subject are set forth. So the question, from appellee's standpoint, is whether or not the record supports the jury's finding that the newsboy was an employee because of the 'practice of the parties' under the contract regardless of the caption and language of the instrument.

        18

        We have detailed the provisions of the contract with reference to the obligations of the publisher. We now condense the contents of the contract defining the obligations of the newscarrier. He was to furnish the names of new subscribers, to pay to the appellant within a certain time money collected, to present within 48 hours claims for shortages in papers, to call attention to the appellant within six days to errors in statements, to handle The Miami Herald exclusively, to keep in confidence the names of subscribers, to select a substitute in the event he was unable to make his deliveries and be 'responsible' for the substitute, to bear all costs of enforcing the contract, to give bond for his faithful performance of the agreement, to acquaint any successor with the route and list of subscribers, to secure delivery of papers in good condition, and to undertake to increase the number of subscribers.

        19

        Either party could terminate the contract without cause on fifteen days' notice and the appellant could terminate it for cause without notice.

        20

        Our study of the contents of the contract, and particularly the part we have italicized, leads us to the belief that the instrument was intended by both parties to make Molesworth an independent contractor and we frankly say that we have this view not only because of the express conditions we have abridged but also because of the specific mention of an element we consider important, if not essential, that is, the method Molesworth was to employ in carrying the papers to the subscribers once he had received them from appellant. Not only in the contract but in the practical operation under it, the circumstances of which we will presently describe, it was left entirely to Molesworth to select the conveyance which he would use to transport the papers from the point of origin to the subscribers' front porches.

        21

        We turn now to see, from the testimony favorable to the appellee's contention, the nature of the services actually performed and the supervision the appellant exercised over the manner in which its newspapers reached the subscribers through Molesworth or, as appellee puts it, the supervision of the means by which Molesworth performed his work. The newsboy began his work at 4:30 in the morning by getting the papers and folding them. He then started on his route and at 6:30 he finished. If Molesworth overslept, the appellant's manager would go to his home and rout him out of bed. The newsboy was required to deliver the papers in an 'unwrinkled condition' and to accomplish this could fold the papers 'in threes or fours.' Although nobody described to him the exact way to fold the papers, he was evidently told that he could not fold them in 'biscuits.' The agent of the appellant apparently 'rode herd' on the newsboys to see that deliveries were made to the subscribers and 'that everything was going all right.'

        22

        It was the practice for complaints about the service to be made either to the appellant or the newsboy. If a subscriber did not receive his paper or had got one that was wet, the representative would see that the subscriber received a good paper and Molesworth would be fined ten cents. For each such improper delivery the carrier would get a yellow slip and if ten yellow slips, representing as many complaints, should be issued, the contract could be terminated. In case of a serious complaint the newspaper's representative would take [88 So.2d 279] the newsboy to the customer's home for a conference.

        23

        The appellant fixed the retail price of the paper. If payments for subscriptions were received in advance, the payment could be made either to the appellant or to Molesworth, but Molesworth was obligated to pay the appellant for the papers he received whether he collected from the subscribers or not. The newsboy was furnished with customers' cards and a ring on which to keep them. Weekly meetings were held by the appellant's representative and the newsboys for the general purpose of improving the business of appellant as well as the carriers.

        24

        We do not find that the extra-contractual activities of the contracting parties neutralized the provisions of the agreement which to us were obviously intended to make Molesworth an independent contractor.

        25

        Although we agree with the appellee that the facts peculiar to each case govern the decision, we turn now to Florida Publishing Co. v. Lourcey, supra, to see what supervision was exerted by the publisher over the newspaper distributor who, we decided, was an independent contractor under the contract and evidence in that case.

        26

        The similarity in degree of supervision is striking. For instance, we learn from the original record in the cited case that papers were required to be delivered within certain hours; complaints were made direct to the publisher; the publisher received advance payments for subscriptions; the newscarriers were required to attend promotional meetings; the publisher supplied subscribers with issues of the paper in case of mis-delivery or non-delivery, but the carrier was not fined; the carrier was under bond; and delivery tickets were supplied to the carrier by the publisher. The carrier furnished his own automobile but there was evidence, which we consider significant, that a representative of the publisher examined the vehicle periodically to see that it was in good condition.

        27

        We have studied the 'matters of fact' listed in the Restatement of the Law of Agency, supra, that are to be considered in 'determining whether one acting for another is a servant or an independent contractor.' In this consideration we have not found that every element is so clearly present as to establish beyond argument that the arrangement between the appellant and Molesworth was one of independent contractorship, but when all elements are taken together, we think the conclusion is sound. We have already written our view about 'the extent of control' exercised by the publisher over the details of the work, Sec. 220(2)(a). We have the definite opinion that newspaper boys as they perform their work generally in this country have a place in the pattern of American life that constitutes a 'distinct occupation,' Sec. 220(2)(b), and that the provisions of the contract in this case are harmonious with this idea. True, there was some supervision by the publisher's representative but while the newsboy was actually making his deliveries, he was acting alone and was a specialist, at least to the extent of following his route, remembering the addresses of subscribers who were in good standing, and collecting and properly accounting for funds coming into his hands, Sec. 220(c) and (d). The newscarrier furnished his own instrumentality, a motorcycle, Sec. 220(2)(e). The length of the engagement, or rather the condition for termination of the engagement, was specified in the contract, Sec. 220(2)(f). The method of payment, that is by the subscriber to the newsboy, was the compensation received under the contract, and the newsboy became indebted for papers delivered to him by the publisher whether or not he collected from the subscriber, Sec. 220(2)(g). We do not doubt that distribution of newspapers is a part of the regular business of the publisher but there is no reason that this cannot be done by independent contract, Sec. 220(2)(h). From the contract it is clear to us that the parties believed they were making Molesworth an independent contractor, Sec. 220(2)(i).

        28

        We are satisfied that the salient facts were not in dispute and that the basic [88 So.2d 280] question was one of law. Having concluded that Molesworth was an independent contractor, it follows that the judgment should be----

        29

        Reversed.

        30

        DREW, C. J., and O'CONNELL and BARNS, JJ., concur.

      • 5.2.5 Murrell v. Goertz

        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.

        1
        597 P.2d 1223
        2
        Mrs. C. L. MURRELL, Appellant,
        v.
        Bruce GOERTZ, and the Oklahoma Publishing Company, Appellee.
        3
        No. 52282.
        4
        Court of Appeals of Oklahoma, Division No. 1.
        5
        May 1, 1979.
        Rehearing Denied June 5, 1979.
        Certiorari Denied July 16, 1979.
        Released for Publication by Order of Court of Appeals July 19, 1979.
        6

        [597 P.2d 1224] Appeal from the District Court of Oklahoma County; Carmon Harris, judge.

        7

        AFFIRMED.

        8

        Phillip W. Redwine, Norman, Foliart, Mills & Niemeyer, Oklahoma City, for appellant.

        9

        Harry R. Palmer, Jr., Oklahoma City, for appellee.

        10
        [597 P.2d 1225] REYNOLDS, Judge:
        11

        Mrs. C. L. Murrell, plaintiff in the trial court, appeals the order sustaining the motion for summary judgment in favor of co-defendant Oklahoma Publishing Company (appellee), in a suit for damages resulting from an alleged assault and battery by co-defendant Bruce Goertz.

        12

        On August 27, 1976, Bruce Goertz was making monthly collections for the delivery of appellant's morning newspaper, the Daily Oklahoman, which is published by appellee. Appellant questioned Goertz concerning damage to appellant's screen door caused by the newspaper carrier throwing the newspaper into it. An argument ensued culminating in appellant slapping Goertz who in turn struck appellant. As a result thereof, appellant was allegedly injured, requiring medical treatment and subsequent hospitalization. Appellant filed suit in the District Court of Oklahoma County seeking a total of $52,500 for past and future medical expenses, pain and suffering, and exemplary damages.

        13

        Appellant's petition contends that Goertz was a servant of appellee either by agreement between the co-defendants, or by appellee creating the apparent belief in appellant that Goertz was a servant by allowing Goertz to deliver the paper, advertise that product, and to collect for accounts due. Both appellee and Goertz answered denying that Goertz was appellee's servant.

        14

        Pursuant to District Court Rule 13, appellee filed a motion for summary judgment which was sustained by the trial court. The trial court then denied appellant's motion for new trial and this appeal was perfected.

        15

        A summary judgment is properly granted only where the pleadings, exhibits, admissions, and depositions present no substantial controversy as to material facts or issues. Weeks v. Wedgewood Village, Inc., Okl., 554 P.2d 780 (1976). The movant must show that there is no substantial controversy as to the material facts or issues. Once the movant has accomplished this, the opponent then has the burden of showing that evidence is available that would justify a trial of the issue. Runyon v. Reid, Okl., 510 P.2d 943 (1973).

        16

        The line of demarcation between an independent contractor and a servant is not clearly drawn. An independent contractor is one who engages to perform a certain service for another according to his own methods and manner, free from control and direction of his employer in all matters connected with the performance of the service except as to the result thereof. Miller Construction Co. v. Wenhold, Okl., 458 P.2d 637 (1969). The parties agree that the decisive test for determining whether a person is an employee or an independent contractor is the right to control the physical details of the work. Dodd v. Rush, Okl., 406 P.2d 261 (1965).

        17

        To determine if a person is a servant or an independent contractor, one must look to the facts of each case. Hartwig v. Benham Engineering Co., Okl.App., 519 P.2d 932 (1974). If the evidence concerning the status of a party defendant is reasonably susceptible of but a single inference, the question is one purely to be decided by the court. Coe v. Esau, Okl., 377 P.2d 815 (1963). Where the defendant's status forms a material issue in the case and the facts bearing on that issue are disputed, or where there is room for reasonable difference of opinion as to the proper inference to be drawn from the known facts, the issue is for the jury under proper instructions by the court, Morian v. Lollis, Okl., 371 P.2d 473 (1962), and it is error to withhold the issue from their determination. Texaco, Inc. v. Layton, Okl., 395 P.2d 393 (1964).

        18

        Appellant contends that the distribution of papers and the collection of money therefor is an integral part of appellee's business. Appellant cites the following factors as indicative of the high degree of control appellee possesses over the physical details of the work: ultimate control over [597 P.2d 1226] the territorial boundaries of Goertz's route; appellee set a standard policy that paper deliveries be completed by 6 a. m.; appellee set policy that all papers were to be held by rubber bands; customers who were missed by the carrier called appellee to report it; complaints concerning the service were lodged with appellee; and new subscribers called appellee to initiate newspaper service.

        19

        Appellee submits that the affidavit of Russell Westbrook and Goertz's deposition reveal that Goertz had no contact with appellee. Westbrook stated that he was an independent newspaper distributor for appellee and that he employed Bruce Goertz as an independent carrier salesman. Westbrook further stated that Goertz was responsible only to him for the delivery of the newspapers and was in no way under the supervision, dominion, and control of appellee. By the terms of Westbrook's contract, he was an independent contractor and likewise not subject to the supervision, dominion, and control of appellee as to the manner and method of performing his job. Appellee further cites the statements of Westbrook and Goertz that Goertz was collecting money for Westbrook at the time of the incident with appellant, and that appellee received money only from Westbrook.

        20

        From a review of the record we conclude that the evidence is reasonably susceptible of but one inference. Bruce Goertz was hired as an independent carrier salesman by his friend Russell Westbrook, who was himself an independent contractor. Appellee had no input into the decision to hire Goertz and had no knowledge of his employment. Goertz had no direct contract with appellee in his business operations. While appellee established certain policies and standards to which all distributors and carriers were to adhere, such policies and standards do not rise to that level of supervision, dominion, and control over Goertz's day to day activities as to make him appellee's servant.

        21

        AFFIRMED.

        22

        ROMANG, P. J., and BOX, J., concur.

      • 5.2.6 Baptist Memorial Hospital System v. Sampson

        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?

        1
        969 S.W.2d 945
        2
        41 Tex. Sup. Ct. J. 833
        3
        BAPTIST MEMORIAL HOSPITAL SYSTEM, Petitioner,
        v.
        Rhea SAMPSON, Respondent.
        4
        No. 97-0268.
        5
        Supreme Court of Texas.
        6
        Argued Dec. 2, 1997.
        Decided May 21, 1998.
        Rehearing Overruled July 3, 1998.
        7

        [969 S.W.2d 946] Ruth G. Malinas, George F. Evans, Jr., San Antonio, for Petitioner.

        8

        Oliver S. Heard, Jr., Luis R. Vera, Jr., Clifton F. Douglass, III, Karl E. Hays, San Antonio, for Respondent.

        9

        PHILLIPS, Chief Justice, delivered the opinion of the Court.

        10

        In this case, we decide whether the plaintiff raised a genuine issue of material fact that defendant Hospital was vicariously liable under the theory of ostensible agency for an emergency room physician's negligence. We granted Baptist Memorial Hospital System's application for writ of error to resolve a conflict in the holdings of our courts of appeals regarding the elements required to establish liability against a hospital for the acts of an independent contractor emergency room physician. We hold that the plaintiff has not met her burden to raise a fact issue on each element of this theory. Accordingly, we reverse the judgment of the court of appeals, 940 S.W.2d 128, and render judgment that the plaintiff take nothing.

        11
        I
        12

        On March 23, 1990, Rhea Sampson was bitten on the arm by an unidentified creature that was later identified as a brown recluse spider. By that evening, her arm was swollen and painful, and a friend took her to the Southeast Baptist Hospital emergency room. Dr. Susan Howle, an emergency room physician, examined Sampson, diagnosed an allergic reaction, administered Benadryl and a shot of painkiller, prescribed medication for pain and swelling, and sent her home. Her condition grew worse, and she returned to the Hospital's emergency room by ambulance a little over a day later. This time Dr. Mark Zakula, another emergency room physician, treated her. He administered additional pain medication and released her with instructions to continue the treatment Dr. Howle prescribed. About fourteen hours later, with her condition rapidly deteriorating, Sampson went to another hospital and was admitted to the intensive care ward in septic shock. There, her bite was diagnosed as that of a brown recluse spider, and the proper treatment was administered to save her life. Sampson allegedly continues to have recurrent pain and sensitivity where she was [969 S.W.2d 947] bitten, respiratory difficulties, and extensive scarring.

        13

        Sampson sued Drs. Howle and Zakula for medical malpractice. She also sued Baptist Memorial Hospital System ("BMHS"), of which Southeast Baptist Hospital is a member, for negligence in failing to properly diagnose and treat her, failing to properly instruct medical personnel in the diagnosis and treatment of brown recluse spider bites, failing to maintain policies regarding review of diagnoses, and in credentialing Dr. Zakula. Sampson also alleged that the Hospital was vicariously liable for Dr. Zakula's alleged negligence under an ostensible agency theory. Sampson nonsuited Dr. Howle early in the discovery process. The trial court granted BMHS summary judgment on Sampson's claims of vicarious liability and negligent treatment. The trial court severed those claims from her negligent credentialing claim against BMHS and her malpractice claim against Dr. Zakula. [1] Sampson appealed only on the vicarious liability theory.

        14

        Both parties agree that BMHS established as a matter of law that Dr. Zakula was not its agent or employee. Thus the burden shifted to Sampson to raise a fact issue on each element of her ostensible agency theory, which Texas courts have held to be in the nature of an affirmative defense. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984); Smith v. Baptist Mem'l Hosp. Sys., 720 S.W.2d 618, 622 (Tex.App.--San Antonio 1986, writ ref'd n.r.e.), disapproved on other grounds by St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 509 n. 1 (Tex.1997). Sampson contended that she raised a material fact issue on whether Dr. Zakula was BMHS's ostensible agent. The court of appeals, with one justice dissenting, agreed and reversed the summary judgment. 940 S.W.2d 128. In our review, we must first determine the proper elements of ostensible agency, then decide whether Sampson raised a genuine issue of material fact on each of these elements.

        15
        II
        16

        Under the doctrine of respondeat superior, an employer is vicariously liable for the negligence of an agent or employee acting within the scope of his or her agency or employment, although the principal or employer has not personally committed a wrong. See DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex.1995); RESTATEMENT (SECOND) OF AGENCY § 219 (1958). The most frequently proffered justification for imposing such liability is that the principal or employer has the right to control the means and methods of the agent or employee's work. See Newspapers, Inc. v. Love, 380 S.W.2d 582, 585-86 (Tex.1964); RESTATEMENT (SECOND) OF AGENCY § 220, cmt. d. Because an independent contractor has sole control over the means and methods of the work to be accomplished, however, the individual or entity that hires the independent contractor is generally not vicariously liable for the tort or negligence of that person. See Enserch Corp. v. Parker, 794 S.W.2d 2, 6 (Tex.1990); Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985). Nevertheless, an individual or entity may act in a manner that makes it liable for the conduct of one who is not its agent at all or who, although an agent, has acted outside the scope of his or her authority. Liability may be imposed in this manner under the doctrine of ostensible agency in circumstances when the principal's conduct should equitably prevent it from denying the existence of an agency. [2] [969 S.W.2d 948] See, e.g., Marble Falls Hous. Auth. v. McKinley, 474 S.W.2d 292, 294 (Tex.Civ.App.--Austin 1971, writ ref'd n.r.e.). Ostensible agency in Texas is based on the notion of estoppel, that is, a representation by the principal causing justifiable reliance and resulting harm. See Ames v. Great S. Bank, 672 S.W.2d 447, 450 (Tex.1984); RESTATEMENT (SECOND) OF AGENCY § 267; KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 105, at 733-34 (5 th ed.1984).

        17

        Texas courts have applied these basic agency concepts to many kinds of principals, including hospitals. See Sparger v. Worley Hosp., Inc., 547 S.W.2d 582, 585 (Tex.1977) (explaining that "[h]ospitals are subject to the principles of agency law which apply to others"). A hospital is ordinarily not liable for the negligence of a physician who is an independent contractor. See, e.g., Berel v. HCA Health Servs., 881 S.W.2d 21, 23 (Tex.App.--Houston [1 st Dist.] 1994, writ denied); Jeffcoat v. Phillips, 534 S.W.2d 168, 172 (Tex.Civ.App.--Houston [14 th Dist.] 1976, writ ref'd n.r.e.). On the other hand, a hospital may be vicariously liable for the medical malpractice of independent contractor physicians when plaintiffs can establish the elements of ostensible agency. See, e.g., Lopez v. Central Plains Reg'l Hosp., 859 S.W.2d 600, 605 (Tex.App.--Amarillo 1993, no writ), disapproved on other grounds by Agbor, 952 S.W.2d at 509 n. 1; Nicholson v. Mem'l Hosp. Sys., 722 S.W.2d 746, 750 (Tex.App.--Houston [14 th Dist.] 1986, writ ref'd n.r.e.).

        18
        III
        19

        In this case, the court of appeals held that two distinct theories of vicarious liability with different elements are available in Texas to impose liability on a hospital for emergency room physician negligence: agency by estoppel (referred to in this opinion as ostensible agency), based on the Restatement (Second) of Agency section 267, and apparent agency, based on the Restatement (Second) of Torts section 429. See 940 S.W.2d at 131. Under section 267, the party asserting ostensible agency must demonstrate that (1) the principal, by its conduct, (2) caused him or her to reasonably believe that the putative agent was an employee or agent of the principal, and (3) that he or she justifiably relied on the appearance of agency. RESTATEMENT (SECOND) OF AGENCY § 267 (1958). Although neither party mentioned section 429 in the trial court or in their briefs to the court of appeals, the court of appeals then proceeded to adopt section 429 and hold that under that section, plaintiff had only to raise a fact issue on two elements: (1) the patient looked to the hospital, rather than the individual physician, for treatment; and (2) the hospital held out the physician as its employee. See 940 S.W.2d at 132. Holding that the plaintiff had established a genuine issue of material fact on each element of this latter affirmative defense, the court reversed and remanded to the trial court for trial on the merits. The court of appeals further suggested that a hospital could do nothing to avoid holding out a physician in its emergency room as its employee because notification to prospective patients in any form would be ineffectual:

        20

        [W]e take an additional step in our analysis to consider whether notice provided in consent forms and posted in emergency rooms can ever be sufficient to negate a hospital's "holding out"....

        ....

        ... Because we do not believe hospitals should be allowed to avoid such responsibility, we encourage the full leap--imposing a nondelegable duty on hospitals for the negligence of emergency room physicians.

        21

        940 S.W.2d at 135-136. Thus, the court of appeals would create a nondelegable duty on [969 S.W.2d 949] a hospital solely because it opens its doors for business.

        22

        We first reject the court of appeals' conclusion that there are two methods, one "more difficult to prove" than the other, to establish the liability of a hospital for the malpractice of an emergency room physician. 940 S.W.2d at 132. Our courts have uniformly required proof of all three elements of section 267 to invoke the fiction that one should be responsible for the acts of another who is not in fact an agent acting within his or her scope of authority. As we have explained:

        23

        Apparent authority in Texas is based on estoppel. It may arise either from a principal knowingly permitting an agent to hold herself out as having authority or by a principal's actions which lack such ordinary care as to clothe an agent with the indicia of authority, thus leading a reasonably prudent person to believe that the agent has the authority she purports to exercise....

        A prerequisite to a proper finding of apparent authority is evidence of conduct by the principal relied upon by the party asserting the estoppel defense which would lead a reasonably prudent person to believe an agent had authority to so act.

        24

        Ames v. Great S. Bank, 672 S.W.2d at 450; see also, e.g., Douglass v. Panama, Inc., 504 S.W.2d 776, 778-79 (Tex.1974); Chastain v. Cooper & Reed, 152 Tex. 322, 257 S.W.2d 422, 427 (1953). Thus, to establish a hospital's liability for an independent contractor's medical malpractice based on ostensible agency, a plaintiff must show that (1) he or she had a reasonable belief that the physician was the agent or employee of the hospital, (2) such belief was generated by the hospital affirmatively holding out the physician as its agent or employee or knowingly permitting the physician to hold herself out as the hospital's agent or employee, and (3) he or she justifiably relied on the representation of authority. See, e.g., Drennan v. Community Health Inv. Corp., 905 S.W.2d 811, 820 (Tex.App.--Amarillo 1995, writ denied); Lopez, 859 S.W.2d at 605; Nicholson, 722 S.W.2d at 750. While a few courts of appeals have referred to section 429, it has never before been adopted in this state by any appellate court. See Smith, 822 S.W.2d at 72-73 (mentioning Restatement (Second) of Torts section 429 as additional support, but recognizing that the applicable rule is provided by Restatement (Second) of Agency section 267); Byrd v. Skyline Equip. Co., 792 S.W.2d 195, 197 (Tex.App.--Austin 1990), writ denied per curiam, 808 S.W.2d 463 (Tex.1991) (citing section 429 as an additional reason summary judgment in the case was improper); Brownsville Med. Ctr. v. Gracia, 704 S.W.2d 68, 74 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.) (after stating that section 267 provides the applicable rule, mentions section 429 as additional authority). To the extent that the Restatement (Second) of Torts section 429 proposes a conflicting standard for establishing liability, we expressly decline to adopt it in Texas.

        25

        Next, we reject the suggestion of the court of appeals quoted above that we disregard the traditional rules and take "the full leap" of imposing a nondelegable duty on Texas hospitals for the malpractice of emergency room physicians. 940 S.W.2d at 136. Imposing such a duty is not necessary to safeguard patients in hospital emergency rooms. A patient injured by a physician's malpractice is not without a remedy. The injured patient ordinarily has a cause of action against the negligent physician, and may retain a direct cause of action against the hospital if the hospital was negligent in the performance of a duty owed directly to the patient. See, e.g., Diaz v. Westphal, 941 S.W.2d 96, 98 (Tex.1997); Medical & Surgical Mem'l Hosp. v. Cauthorn, 229 S.W.2d 932, 934 (Tex.Civ.App.--El Paso 1949, writ ref'd n.r.e.).

        26
        IV
        27

        We now examine the record below in light of the appropriate standard. The Hospital may be held liable for the negligence of Dr. Zakula if Sampson can demonstrate that (1) she held a reasonable belief that Dr. Zakula was an employee or agent of the Hospital, (2) her belief was generated by some conduct on the part of the Hospital, and (3) she justifiably relied on the appearance that Dr. Zakula was an agent or employee [969 S.W.2d 950] of the Hospital. See, e.g., Drennan, 905 S.W.2d at 820.

        28

        As summary judgment evidence, BMHS offered the affidavit of Dr. Potyka, an emergency room physician, which established that the emergency room doctors are not the actual agents, servants, or employees of the Hospital, and are not subject to the supervision, management, direction, or control of the Hospital when treating patients. Dr. Potyka further stated that when Dr. Zakula treated Sampson, signs were posted in the emergency room notifying patients that the emergency room physicians were independent contractors. Dr. Potyka's affidavit also established that the Hospital did not collect any fees for emergency room physician services and that the physicians billed the patients directly. BMHS presented copies of signed consent forms as additional summary judgment evidence. During both of Sampson's visits to the Hospital emergency room, before being examined or treated, Sampson signed a "Consent for Diagnosis, Treatment and Hospital Care" form explaining that all physicians at the Hospital are independent contractors who exercise their own professional judgment without control by the Hospital. The consent forms read in part:

        29

        I acknowledge and agree that ..., Southeast Baptist Hospital, ... and any Hospital operated as a part of Baptist Memorial Hospital System, is not responsible for the judgment or conduct of any physician who treats or provides a professional service to me, but rather each physician is an independent contractor who is self-employed and is not the agent, servant or employee of the hospital.

        30

        To establish her claim of ostensible agency, Sampson offered her own affidavits. In her original affidavit, she stated that although the Hospital directed her to sign several pieces of paper before she was examined, she did not read them and no one explained their contents to her. Her supplemental affidavit stated that she did not recall signing the documents and that she did not, at any time during her visit to the emergency room, see any signs stating that the doctors who work in the emergency room are not employees of the Hospital. Both affidavits state that she did not choose which doctor would treat her and that, at all times, she believed that a physician employed by the hospital was treating her. Based on this record we must determine if Sampson produced sufficient summary judgment evidence to raise a genuine issue of material fact on each element of ostensible agency, thereby defeating BMHS's summary judgment motion.

        31

        Even if Sampson's belief that Dr. Zakula was a hospital employee were reasonable, that belief, as we have seen, must be based on or generated by some conduct on the part of the Hospital. "No one should be denied the right to set up the truth unless it is in plain contradiction of his former allegations or acts." Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932 (1952). The summary judgment proof establishes that the Hospital took no affirmative act to make actual or prospective patients think the emergency room physicians were its agents or employees, and did not fail to take reasonable efforts to disabuse them of such a notion. As a matter of law, on this record, no conduct by the Hospital would lead a reasonable patient to believe that the treating emergency room physicians were hospital employees.

        32

        Sampson has failed to raise a fact issue on at least one essential element of her claim. Accordingly, we reverse the judgment of the court of appeals and render judgment that Sampson take nothing.

        33

        [1] Sampson subsequently nonsuited her negligent credentialing claim against BMHS.

        34

        [2] Many courts use the terms ostensible agency, apparent agency, apparent authority, and agency by estoppel interchangeably. As a practical matter, there is no distinction among them. See, e.g., Birmingham-Jefferson County Transit Auth. v. Arvan, 669 So.2d 825, 830-31 (Ala.1995), (Cook, J., dissenting from overruling of application for rehearing); State of Fla. Dep't of Transp. v. Heckman, 644 So.2d 527, 529 (Fla.Dist.Ct.App.1994); Kissun v. Humana, Inc., 267 Ga. 419, 479 S.E.2d 751, 752 (1997); O'Banner v. McDonald's Corp., 173 Ill.2d 208, 218 Ill.Dec. 910, 670 N.E.2d 632, 634 (1996); Deal v. North Carolina State Univ., 114 N.C.App. 643, 442 S.E.2d 360, 362 (1994); Hill v. St. Claire's Hosp., 67 N.Y.2d 72, 499 N.Y.S.2d 904, 490 N.E.2d 823, 827 (1986); Evans v. Ohio State Univ., 112 Ohio App.3d 724, 680 N.E.2d 161, 174 (Ohio Ct.App.1996); Luddington v. Bodenvest Ltd., 855 P.2d 204, 209 (Utah 1993); Hamilton v. Natrona County Educ. Ass'n, 901 P.2d 381, 386 (Wyo.1995). But see Guillot v. Blue Cross of La., 690 So.2d 91, 99 (La.Ct.App.1997) (Saunders, J., concurring and dissenting) (stating apparent authority is based on contract law, whereas agency by estoppel is grounded in tort principles); Houghland v. Grant, 119 N.M. 422, 891 P.2d 563, 568 (1995)(recognizing that although ostensible agency and agency by estoppel are based on slightly different rationales, the theories have been used interchangeably). See also McWilliams & Russell, Hospital Liability for Torts of Independent Contractor Physicians, 47 S.C. L. REV. 431, 445-452 (1996). Regardless of the term used, the purpose of the doctrine is to prevent injustice and protect those who have been misled. See Roberts v. Haltom City, 543 S.W.2d 75, 80 (Tex.1976).

      • 5.2.7 Smalich v. Westfall

        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
        440 Pa. 409 (1970)
        2
        Smalich et al., Appellants,
        v.
        Westfall.
        3

        Supreme Court of Pennsylvania.

        4
        Argued October 6, 1969.
        5
        October 9, 1970. 
        6

        [410] Before BELL, C.J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

        7

        Morton B. DeBroff, with him David R. Gold, for appellant.

        8

        Carl E. Fisher, with him Robinson, Fisher & Long, for appellee.

        9
        OPINION BY MR. JUSTICE EAGEN, October 9, 1970:
        10

        Two automobiles collided in Westmoreland County. One of the vehicles, owned by Julia Smalich, was operated by Felix Rush Westfall. Julia Smalich and her minor son, Michael, were passengers in this automobile at the time. The other vehicle involved was operated by Stephanna Louise Blank. Julia Smalich suffered injuries in the collision which caused her death. Michael Smalich was injured, but recovered.

        11

        This action in trespass was later instituted, naming both Westfall and Blank as defendants. The estate of Julia Smalich sought damages in both a wrongful death action and a survival action. Marco Smalich, the guardian of the minor, claimed damages for the minor's [411] injuries on behalf of the minor and on his own behalf as guardian.

        12

        At trial, the jury returned a verdict in favor of all plaintiffs and against both defendants. Damages were awarded in the wrongful death action in the sum of $1025; in the survival action in the sum of $2000; in the guardian's action in the sum of $166.50; and in the minor's action in the sum of $20,000. Post-trial motions were timely filed by defendant Blank, seeking judgment notwithstanding the verdict in the actions on behalf of the Smalich Estate and a new trial in the actions on behalf of the minor and the guardian. Both motions were granted by the court en banc below. The plaintiffs appealed.

        13
        The Minor's Action
        14

        In this instance, the court below awarded a new trial because it concluded that the verdict was against the weight of the evidence, and was also excessive. We have said many times that the grant of a new trial lies within the inherent power of the trial court, and on appeal we will not interfere with the exercise thereof, unless there has been a clear abuse of discretion or an error of law which necessarily controlled the grant of the new trial: Kralik v. Cromwell, 435 Pa. 613, 258 A. 2d 654 (1969); Getz v. Balliet, 431 Pa. 441, 246 A. 2d 108 (1968); Guzman v. Bloom, 413 Pa. 576, 198 A. 2d 499 (1964). An examination of the record fails to persuade us that the court abused its discretion in awarding a new trial in the actions involving the minor's injuries, and we will, therefore, affirm its order in this respect.

        15
        Actions on Behalf of the Estate
        16

        The trial jury found that Westfall's negligent operation of the Smalich automobile was a proximate [412] cause of the collision. That the trial record amply supports this finding is not and cannot be questioned. After trial, the court en banc ruled that, under the facts, the contributory negligence of Westfall must be imputed to the owner of the automobile as a matter of law, and this precluded recovery by the Smalich Estate against defendant Blank. This conclusion of the court below was based on our ruling in Beam v. Pittsburgh Railways Co., 366 Pa. 360, 77 A. 2d 634 (1951), and admittedly was clearly dictated by that decision.

        17

        In Beam we held that where the owner of an automobile is present while it is being negligently operated by another, there is a presumption that the owner of the vehicle has the power to control it, and, in the absence of evidence to the contrary, a relationship of principal and agent or master and servant exists between the owner and driver, because of which the driver's contributory negligence is imputed to the owner, barring the owner from recovering for injuries caused by the negligence of a third person. In considering the instant case, we have re-examined Beam and conclude that, as to the portion of the holding above set forth, it should be overruled and no longer be recognized as the law of this Commonwealth.

        18

        First, a plaintiff ought not to be barred from recovery against a negligent defendant by the contributory negligence of a third person unless the relationship between the plaintiff and the third person is such that the plaintiff would be vicariously liable as a defendant for the negligent acts of the third person: Prosser, The Law of Torts § 73 (3d ed. 1964). See also, Restatement (Second), Torts §§ 485, 486 and 491 (1965). Placed in the context of this case, a driver's negligence will not be imputed to a passenger, unless the relationship between them is such that the passenger would be vicariously liable as a defendant for the [413] driver's negligent acts: See Beam v. Pittsburgh Railways Co., supra. The relationship between the passenger and the driver is therefore a very critical one, worthy of careful analysis and consideration.

        19

        At least three relationships could exist between an owner-passenger and a driver of an automobile: (1) bailor-bailee; (2) principal-agent; and (3) master-servant.

        20

        A bailment is a delivery of personalty for the accomplishment of some purpose upon a contract, express or implied, that after the purpose has been fulfilled, it shall be redelivered to the person who delivered it, otherwise dealt with according to his directions or kept until he reclaims it: Wright v. Sterling Land Co., 157 Pa. Superior Ct. 625, 43 A. 2d 614 (1945). As a general rule, a bailor is not liable for the negligence of the bailee in the operation of a bailed chattel: Brower v. Employers' Liability Assurance Co., Ltd., 318 Pa. 440, 177 A. 826 (1935); McColligan v. Penna. R.R. Co., 214 Pa. 229, 63 A. 792 (1906); Hajduk v. Fague, 200 Pa. Superior Ct. 55, 186 A. 2d 869 (1962). Therefore in an action in trespass by a bailor to recover for damage to the thing bailed, caused by the negligent act of a third party, the contributory negligence of the bailee is no defense, unless the bailee was at the time acting as the bailor's servant: Commercial Banking Corp. v. P.T.C., 162 Pa. Superior Ct. 158, 56 A. 2d 344 (1948); Restatement (Second), Torts § 486 (1965); Prosser, The Law of Torts § 73 (3d ed. 1964). And the fact that a bailor shares the use of the thing bailed (here, rides as a passenger in the automobile) with his bailee does not necessarily cause a termination of the bailment and create a new relationship: Rodgers v. Saxton, 305 Pa. 479, 158 A. 166, 80 A.L.R. 280 (1931).

        21

        Agency is the relationship which results from (1) the manifestation of consent of one person to another [414] that (2) the other shall act on his behalf and subject to his control, and (3) consent by the other so to act: Chalupiak v. Stahlman, 368 Pa. 83, 81 A. 2d 577 (1951); Restatement (Second), Agency § 1 (1) (1958). Such agency results only if there is an agreement for the creation of a fiduciary relationship with control by the beneficiary: Rosenberg v. Cohen, 370 Pa. 507, 88 A. 2d 707 (1952); Restatement (Second), Agency § 1, comments a and b (1958). "The right of control by the principal may be exercised by prescribing what the agent shall or shall not do before the agent acts, or at the time when he acts, or at both times . . . . Further, the principal has power to revoke the agent's authority, although this would constitute a breach of his contract with him . . . . The control of the principal does not, however, include control at every moment; its exercise may be very attenuated and, as where the principal is physically absent, may be ineffective:" Restatement (Second), Agency § 14, comment a. Since an agent who is not a servant is not subject to any right of control by his principal over the details of his physical conduct, the responsibility rests upon the agent alone, and the principal is not liable, for harm caused by his unauthorized negligent physical conduct: Commonwealth v. Minds Coal Mining Corp., 360 Pa. 7, 60 A. 2d 14 (1948); Restatement (Second), Agency § 250 (1958). Thus it has long been said to be the general rule that there is no vicarious liability upon the principal in such case: Prosser, The Law of Torts § 70 (3d ed. 1964).

        22

        "A master is a species of principal, and a servant is a species of agent:" Restatement (Second), Agency § 2, comment a. "A master is a principal who employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service. A servant [415] is an agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master:" Restatement (Second), Agency § 2 (1) and (2) (Emphasis added.) Thus a master not only controls the results of the work but also may direct the manner in which such work shall be done, and a servant, in rendering the agreed services, remains entirely under the control and direction of the master: Joseph v. United Workers Assn., 343 Pa. 636, 23 A. 2d 470 (1942); McColligan v. Penna. R.R. Co., supra. "Those rendering service but retaining control over the manner of doing it are not servants. They may be agents, agreeing only to use care and skill to accomplish a result and subject to the fiduciary duties of loyalty and obedience to the wishes of the principal. . .:" Commonwealth v. Minds Coal Mining Corp., supra, at 17. Because a master has the right to exercise control over the physical activities of the servant within the time of service, he is vicariously liable for the servant's negligent acts committed within the scope of his employment: Restatement (Second), Agency § 219 (1958); Prosser, The Law of Torts § 69 (3d ed. 1964). Therefore, the master is likewise barred from recovery against a negligent defendant by the contributory negligence of his servant acting within the scope of his employment: Restatement (Second), Torts § 486 (1965); Prosser, The Law of Torts § 73 (3d ed. 1964). Beam, supra, correctly so stated this law applicable to a master.

        23

        In essence, we now recognize that, contrary to what we have said in many prior automobile accident cases,[1] [416] only one of the three relationships discussed above, that of master-servant, gives rise to vicarious liability for negligence.[2] Perhaps many of the harsh results sometimes associated with the imputation of contributory negligence can be attributed to our mistaken assumption that a principal is vicariously liable for the negligent acts of his agent. We therefore now state unequivocally that only a master-servant relationship or a finding of a joint enterprise[3] will justify an imputation of contributory negligence.

        24

        We have serious doubt that, in the ordinary situation, the mutual understanding of the owner-passenger and the driver is that the owner-passenger reserves a right to control over the physical details of driving or that the driver consents to submit himself to the control of a "back-seat driver." It seems more reasonable that the mutual understanding is that the driver will use care and skill to accomplish a result, retaining control over the manner of operation yet subject to the duty of obedience to the wishes of the owner-passenger as to such things as destination. Such would only constitute an agency relationship and not one of master-servant, although there are undoubtedly situations where the understanding might well be such as to constitute [417] a master-servant relationship.[4] All that we now hold is that the character of the relationship created by the parties must be determined from their express agreement or from the circumstances, which may be disclosed at trial. "The mere presence of the owner in an automobile while it is being driven in a negligent manner by another does not necessarily make him liable for an injury caused thereby, or impute to him the driver's negligence:"[5] Beam v. Pittsburgh Railways Co., supra, at 370. Nor will it any longer create a presumption of a master-servant relationship.

        25

        We do not mean, however, that the presence of the owner is entirely irrelevant, or that there is no legal significance that an owner present in his car has the power to control it.[6] These are relevant in determining whether the owner-passenger has been actually negligent himself[7] in failing to control the conduct of the driver. See Restatement of Torts, § 495. Any passenger is required to exercise reasonable care for his own safety, and will be barred from recovery if he unreasonably [418] fails to warn the driver of a danger which he discovers or to make use of an ability to control the negligence which he may possess: Landy v. Rosenstein, 325 Pa. 209, 188 A. 855 (1937); Highton v. Penna. Railroad Co., 132 Pa. Superior Ct. 559, 1 A. 2d 568 (1938); Restatement (Second), Torts § 495 (1965). "Any circumstance which gives the plaintiff reason to believe that his advice, directions, or warnings would be heeded is important in determining whether he is barred from recovery by his failure to attempt to give them.. . . The fact that the plaintiff owns the vehicle or the chattel which to his knowledge is being carelessly used, is . . . of importance, since one who is driving another's vehicle or using his chattel is more likely to pay attention to the owner's directions than he would be to the directions of a guest in his own car:" Restatement (Second), Torts § 495, comment e (1965). This differs from imputed contributory negligence, where due to the relationship between the passenger and driver, the negligence of the driver is in all cases imputed to the passenger. Under this rule, "in order to bar the plaintiff from recovery . . ., it is necessary that the plaintiff know or should know that it is essential for his safety to control the conduct of the third person:" Restatement (Second), Torts § 495, comment d (1965).

        26

        We repeat, the precise nature of the relationship between the owner-passenger and the driver, under the evidence, presents a question of fact which it is the exclusive function of the jury to determine, except where the facts are not in dispute and the evidence is direct and certain, presenting no question of credibility and leaving no sufficient ground for inconsistent inferences of fact: Joseph v. United Workers Assn., supra. In this case, the lower court charged the jury on the issue of imputed contributory negligence in accordance [419] with our decision in Beam, supra, and, in so doing, granted the following specific requests for charge of the plaintiffs: "No. 6: The mere presence of a car owner in that automobile while it is being driven by another, does not necessarily mean that the operation of the car is within the control of the owner. No. 7: If you find that the decedent, Julia Smalich, relinquished her right to control her automobile, either expressly or impliedly, by words, actions or conduct, and at the time of the accident had transferred that right to control the car to the defendant Westfall, then you should find that any conduct by defendant Westfall cannot affect or bar the right of the decedent's personal representative to recover in this case." The jury rendered a verdict for the plaintiffs against defendant Blank, and, therefore, must have determined that Julia Smalich had relinquished her right to control her automobile to defendant Westfall. On the facts, such a conclusion is justified under the law as we have now stated it. Judgments n.o.v. should not, therefore, have been entered in favor of defendant Blank and against the Smalich Estate. These judgments are vacated, and the record remanded with directions to enter judgments in favor of the Smalich Estate and against defendant Blank in accordance with the jury's verdict.[8]

        27

        The order of the court below awarding a new trial in the actions involving the minor is affirmed. Judgments n.o.v. in the actions on behalf of the Smalich Estate are vacated and the record remanded with directions.

        28

        Mr. Chief Justice BELL concurs in the result.

        29
        [420] CONCURRING OPINION BY MR. JUSTICE ROBERTS:
        30

        I am pleased that the Court today partially repudiates the imputed contributory negligence doctrine. I am unable to join the majority's opinion, however, because I believe that in adopting a limited "both ways" test, it falls short of accomplishing the degree of reform necessary in this area. I am particularly disturbed that the majority, in continuing to apply the doctrine to the master-servant relationship, places so much weight on the physical control a master has over a servant. I therefore can only concur in the result.

        31

        The imputed contributory negligence doctrine has been criticized on two grounds. For one, it is quite obvious that the doctrine is based on the absurd fiction that the owner-passenger has the "right" to control the vehicle.[1] In the real world, however, a passenger can in no safe way exercise operational control over the vehicle in which he rides, even if he is the owner.[2] But the imputed contributory negligence doctrine requires the owner-passenger not only to constantly advise the driver, but also to seize the wheel if need be. For if [421] he does not actively seek to pull his negligent driver out of trouble, he will have to shoulder any losses he may suffer in an accident. Of course if he does interfere, he is likely to be found actively negligent.[3] One wonders what the owner should do if he is riding in the back seat;[4] perhaps he should just go to sleep.[5]

        32

        A second weakness in the doctrine of imputed contributory negligence arises from the fact that courts have often failed to discern the difference between using the fiction of control to impute negligence when the owner-passenger is the defendant, and using it to impute contributory negligence when the owner-passenger is the plaintiff. The assumption has been that if the driver's negligence is imputed, it is only logical to likewise impute his contributory negligence. But there is no justification for imputing contributory negligence, other than "the strong psychological appeal of all rules cast in the form of balanced and logical symmetry."[6] Unfortunately, the empty formalism of this approach, an example of what Harper and James have termed the "both-ways test,"[7] even became imbedded in the first [422] Restatement of Torts § 485: "[A] plaintiff is barred from recovery by the negligent act or omission of a third person if, but only if, the relation between them is such that the plaintiff would be liable as a defendant for harm caused to others by such negligent conduct of a third person."

        33

        Courts and commentators have been quick to see these two errors in the doctrine. The fiction was criticized even when applied to a horse-drawn carriage, see Hoag v. New York C. & H.R.R. Co., 111 N.Y. 199, 203, 18 N.E. 648, 649 (1888), and the criticism mounted when the fiction was applied to automobiles: "Any attempted exercise of the right of control by wresting the wheel from the driver would be foolhardy. Equally menacing to the driver's efficient operation of the machine are raucous reproaches, strident denunciations, or even persistent unctuous admonitions from the back seat." Sherman v. Korff, 353 Mich. 387, 395, 91 N.W. 2d 485, 487 (1958). For similar statements, see, e.g., Painter v. Lingon, 193 Va. 840, 848, 71 S.E. 2d 355, 360 (1952); Jenks v. Veeder Contracting Co., 177 Misc. 240, 243, 30 N.Y.S. 2d 278, 281 (1941), aff'd, 264 App. Div. 979, 37 N.Y.S. 2d 230 (1942), appeal dismissed, 289 N.Y. 787, 46 N.E. 2d 848 (1943); cf. Southern Pacific Co. v. Wright, 248 F. 261, 264 (9th Cir. 1918).

        34

        Similarly, the "both-ways test" has been strongly criticized. In 1932 it was written that "[c]ourts seem unaware that the policies involved in granting or denying the defensive plea may be different from those controlling the responsibility in damages of a master for the conduct of his servant, and that the latter are probably concerned simply with providing a financially responsible defendant." Gregory, Vicarious Responsibility and Contributory Negligence, 41 Yale L.J. 831, 833 (1932). In Johnson v. Los Angeles-Seattle Motor Express, [423] Inc., 222 Ore. 377, 387, 352 P. 2d 1091, 1095 (1960), the Supreme Court of Oregon rejected the doctrine stating: "The practical necessity for imposing liability on an owner in the cases which do justify the doctrine of imputed liability is not present in the situation where the owner is an injured passenger in his own car. The two-way test of the Restatement does not commend itself as either useful or necessary. Its only virtue, as pointed out in Harper and James, supra, is that it is logical and symmetrical. Important legal rights ought to have better footing than mere architectural symmetry."

        35

        It should be noted that the majority does not adopt the old "both ways" test but rather the view of the revised Restatement of Torts, for while § 485 partially abolishes the imputed negligence doctrine, that doctrine is retained in the areas of master-servant relations and joint enterprise. See §§ 486, 491 Restatement of Torts (Second). However, I submit that the criticisms I have noted above concerning the imputed contributory negligence doctrine apply with equal force to the two exceptions carved out by the second Restatement.

        36

        In these days of congested travel on high speed highways, the dangers of requiring that someone wrest control of a vehicle from the driver if the latter is negligent certainly are present whether the driver is the bailee, agent or servant of the passenger. The Supreme Court of Minnesota re-examined the whole problem of imputed contributory negligence recently in a well-reasoned opinion that deserves close study. See Weber v. Stokely-Van Camp, Inc., 274 Minn. 482, 144 N.W. 2d 540 (1966). There the court repudiated the application of the doctrine to the master-servant relation in automobile negligence cases, stressing the absurdity of the control argument, and the absence of need for a [424] solvent defendant, unlike vicarious liability cases where the master properly is held accountable for the negligence of his servant.

        37

        I look forward to the day when this Court completes its reform in this area.

        38

        [1] E.g., Beam v. Pittsburgh Railways Co., supra; Mazur v. Klewans, 365 Pa. 76, 73 A. 2d 397 (1950); Von Cannon v. P.T.C., 148 Pa. Superior Ct. 330, 25 A. 2d 584 (1942); and Spegele v. Blumfield, 120 Pa. Superior Ct. 231, 182 A. 149 (1935).

        39

        [2] The necessity of a master-servant relationship seems to have been recognized in the older cases. See, e.g., Lassock v. Bileski, 94 Pa. Superior Ct. 299 (1928); McMahen v. White, 30 Pa. Superior Ct. 169 (1906); and Connor v. Penna. Railroad Co., 24 Pa. Superior Ct. 241 (1904).

        40

        [3] While the existence or absence of a joint enterprise was not raised here or in the court below, we have considered the record with this question in mind. If the proof established such a relationship existed, this would preclude recovery by the Smalich Estate, and if the lower court reached the right result albeit for the wrong reason, its decision would be affirmed. Taylor v. Churchill V. Country Club, 425 Pa. 266, 228 A. 2d 768 (1967). However, we are satisfied that the evidence did not establish a joint enterprise. See Restatement (Second), Torts § 491 (1965).

        41

        [4] For example, if the driver were inexperienced or learning, a prospective purchaser or driving under actual directions.

        42

        [5] Analogous hereto are Restatement (Second), Torts § 487 (husband and wife), § 488 (parent and child), § 489 (bailee) and § 490 (passenger or guest in a vehicle).

        43

        [6] See Beam v. Pittsburgh Railways Co., supra; Mazur v. Klewans, supra headnotes 3 and 6; Von Cannon v. P.T.C., supra headnote 8; and Spegele v. Blumfield, supra headnote 1.

        44

        [7] The statement seems to have actually been intended to apply to this situation. It first appeared in Bell v. Jacobs, 261 Pa. 204, 208, 104 A. 587 (1918) in this context: "It was defendant's car and he acquiesced in what Fink, who was acting for him, did, and cannot be excused because he was not personally at the wheel. A man out riding in his car is not relieved from responsibility for its management because, with his permission, another is acting as driver; and this is especially so where the owner tacitly assents to the manner in which the car is driven. There is a presumption, not here rebutted, that an owner present in his car has power to control it."

        45

        [8] Since the jury rendered a verdict against defendant Blank when the charge was more favorable to her than a charge in accordance with our present opinion would be, defendant Blank has not been harmed hereby.

        46

        __________

        47

        [1] The doctrine of imputed contributory negligence, in the setting involved in this case, has its roots in the 1849 English case of Thorogood v. Bryan, 8 C.B. 115, 137 Eng. Rep. 452. Thorogood was a suit by a passenger of a public omnibus against the owner of another omnibus. The passenger was denied recovery because the driver of her omnibus, as well as the other driver, was negligent. The theory was that the passenger had a measure of control over the driver; he had "employed" the driver and "[i]f he is dissatisfied with the mode of conveyance, he is not obliged to avail himself of it." Id. at 132. As Dean Prosser has written, this was a "nonsensical fiction," which was later abandoned in England and by those states which had followed it in America. See Prosser, Handbook of the Law of Torts 502 (3d ed. 1964) (citing cases).

        48

        [2] The owner can, of course, exercise some degree of control when he selects a driver; or, at times, he may be required to give some kind of directional advice, like "slow down." Improper performance of these duties may be active negligence, but that is not involved in this case.

        49

        [3] "In the usual case the passenger has no physical ability to control the operation of the car, and no opportunity to interfere with it; and any attempt on his part to do so in fact would be a dangerously distracting piece of back-seat driving which might very well amount to negligence in itself." Prosser, Handbook of the Law of Torts 494 (3d ed. 1964).

        50

        [4] Cf. Nutt v. Pennsylvania R.R., 281 Pa. 372, 377, 126 Atl. 803, 805 (1924) ("But an invited guest, and especially one who occupies a rear seat in the car where no opportunity of control exists. . . is not concerned with the operating of the car and cannot be viewed as joining with the driver in its operation . . . .")

        51

        [5] Indeed, it has often been held that a driver's contributory negligence cannot be imputed to an owner-passenger who is asleep when the accident occurs. See, e.g., Stafford v. Roadway Transit Co., 165 F. 2d 920 (3d Cir. 1948) (applying Pennsylvania law); Greyhound Lines, Inc. v. Caster, 216 A. 2d 689 (Del. S. Ct. 1966).

        52

        [6] 2 Harper & James, The Law of Torts 1273 (1956).

        53

        [7] See id. at 1273-77.

  • 6 IX.Supp. Supplemental Cases and Materials

    • 6.1 Oliver v. Stimson Lumber Co.--"The Montana Spoliation Case"

      Plaintiff brings suit for “spoilation of evidence” in a state which has not yet recognized spoliation of evidence as an independent tort claim.

      1
      993 P.2d 11 (1999)
      2
      1999 MT 328
      3
      Byron OLIVER and Camille Oliver, Plaintiffs and Appellants,
      v.
      STIMSON LUMBER COMPANY, and Liberty Northwest Insurance Corporation, an Oregon corporation, Defendants and Respondents.
      4
      No. 98-621.
      5

      Supreme Court of Montana.

      6
      Argued and Submitted June 15, 1999.
      7
      Decided December 22, 1999.
      8

      [13] Lon J. Dale (argued), Milodragovich, Dale, Steinbrenner & Binney; Missoula, Montana, For Appellants.

      9

      L.D. Nybo (argued), Conklin, Nybo, Leveque & Lanning; Great Falls, Montana, Jon P. Stride (argued), Tonkon, Torp, Galen, Marmaduke & Booth; Portland, Oregon, William J. Mattix (argued), Crowley, Haughey, Hanson, Toole & Dietrich; Billings, Montana, For Respondents.

      10
      Justice JIM REGNIER delivered the opinion of the Court.
      11

      Byron and Camille Oliver (Olivers) brought an action against Stimson Lumber Company (Stimson) and Liberty Northwest Insurance Corporation (Liberty Northwest) for negligent and intentional spoliation of evidence, along with a request to void subrogation rights, in the Fourth Judicial District Court, Missoula County. The parties filed cross-motions for summary judgment and following two separate hearings, the District Court granted summary judgment in favor of the Defendants. We affirm in part, reverse in part, and remand.

      12

      We restate the issues raised on appeal as follows:

      13

      1. Did the District Court err when it concluded that the exclusive remedy provisions of the Workers' Compensation Act barred the Olivers from bringing a claim for [14] spoliation of evidence against Mr. Oliver's employer?

      2. Should Montana adopt the torts of negligent and intentional spoliation of evidence as independent causes of action?

      3. Did the District Court err in awarding summary judgment in favor of Liberty Northwest Corporation?

      14

      On appeal, the Olivers have not raised the issue of whether Stimson's subrogation rights should be impacted by its conduct and therefore, we will not address the issue in this appeal.

      15
      FACTUAL BACKGROUND
      16

      Byron Oliver was employed by Champion International Corporation (Champion) at its Bonner mill from 1974 until the time of its sale to Stimson Lumber Company in November 1993. Following the sale by Champion, Byron continued his employment at the Bonner mill as an employee of Stimson.

      17

      On May 9, 1994, Byron Oliver suffered a serious injury as the result of an industrial accident arising out of and in the course of his employment with Stimson. As such, Mr. Oliver's injury fell within the parameters of the exclusivity provisions of the Workers' Compensation Act, entitling him to benefits.

      18

      The Olivers immediately hired an attorney to represent their interests with regard to the work-related injuries sustained by Byron. Shortly thereafter, the Olivers' counsel began investigating the possibility of a third-party action associated with the piece of equipment involved in Mr. Oliver's injury. As part of the investigation, the Olivers' counsel made a request for an inspection of the equipment involved in the injury. Stimson turned to its workers' compensation insurance carrier, Liberty Northwest, for advice regarding this request. A claims adjuster for Liberty Northwest contacted a local attorney, Larry Jones, who had previously represented Liberty Northwest and its insureds, and advised him of the request for an inspection. The claims adjuster requested Jones to be present at the inspection because Stimson personnel wanted Jones to explain the reason for the involvement of an attorney on behalf of the Olivers given that Mr.Oliver's injury was an accepted liability claim under the Workers' Compensation Act.

      19

      An inspection of the equipment took place on May 18, 1994. Counsel for the Olivers, the attorney for Liberty Northwest and Stimson, the claims adjuster from Liberty Northwest, a loss prevention employee from Liberty Northwest, and various Stimson employees were present during the inspection. In addition, nearly everyone who participated in the inspection understood that the purpose of this inspection was so that counsel for the Olivers could decide whether there was any basis for a third-party lawsuit. Photographs and a videotape of the equipment and Mr.Oliver's work area were taken by the Olivers' counsel during this inspection.

      20

      After the inspection, on May 20, 1994, counsel for the Olivers wrote a letter to Larry Jones, the attorney for Liberty Northwest and Stimson, requesting information concerning the equipment's components, copies of design drawings, wiring diagrams, a description of the assembly of the equipment and the as-built plans for the equipment. On May 23, 1994, Jones sent a letter to the claims adjuster at Liberty Northwest enclosing the request from counsel for the Olivers. In this letter, Jones directed the claims adjuster to forward the request from the Olivers' counsel to the human resource manager at Stimson's Bonner mill so that they could then discuss how much information Stimson wanted to provide voluntarily. In addition, Jones explained in this letter the nature of the third-party claims counsel for the Olivers was interested in pursuing on behalf of the Olivers.

      21

      On May 25, 1994, Jones responded to the request by the Olivers' counsel by stating that he had forwarded it to the claims adjuster for transmittal to Stimson personnel for review. In the meantime, counsel for the Olivers sent a letter to Jones on May 24, 1994, asking for a commitment from Stimson that the equipment involved in the injury remain intact to allow an expert to examine it. Counsel for the Olivers also reiterated [15] their request for a copy of the as-built plans for the equipment.

      22

      On June 13, 1994, Jones forwarded the May 24, 1994, letter from the Olivers' counsel to the claims adjuster at Liberty Northwest, recommending that the claims adjuster handle this request directly by talking with the human resource manager at Stimson's Bonner mill. On that same date, Jones sent a letter to the Olivers' counsel advising that he had sent the May 24, 1994, letter to Liberty Northwest for transmittal to Stimson for consideration.

      23

      On June 22, 1994, the human resource manager for Stimson initiated a conference call involving Jones and the director of human resources at Stimson's corporate office in Portland. During this conference call, the requests contained in the letters from the Olivers' counsel dated May 20 and 24, 1994, were discussed to determine how much information Stimson wanted to supply to the Olivers voluntarily.

      24

      On June 24, 1994, Jones responded to the requests for information contained in the May 20 and 24, 1994, letters from the Olivers' counsel. This letter did not specifically address the Olivers' request for preservation of the equipment and its components, contained in the May 24, 1994, letter from the Olivers' counsel. However, this letter stated that Stimson management had decided that it was unable to accommodate their request at this time due to the amount of time Stimson personnel would be required to spend away from their employment duties to provide the information. The Olivers' counsel responded by offering to pick up the information, have it copied and returned to Stimson and to pay for any reasonable employee costs involved. On July 13,1994, Jones forwarded this offer on to Liberty Northwest and Stimson for consideration.

      25

      Frustrated by the lack of response from Stimson regarding the information requested, the Olivers' counsel wrote to Jones on October 24, 1994, advising that if the previously requested information was not received within ten days, they would initiate a third-party action against Stimson and proceed to depose Stimson personnel and subpoena production of the requested information. On October 26, 1994, Jones forwarded this letter directly to the human resource manager at Stimson's Bonner mill, requesting that the manager contact him to discuss how to proceed.

      26

      On December 8, 1994, counsel for the Olivers filed a petition pursuant to Rule 27, M.R.Civ.P., to obtain prelitigation discovery with respect to the Olivers' potential third-party claims. Upon deposing Stimson personnel in March 1995 pursuant to a court order, counsel for the Olivers learned that the equipment involved in Mr. Oliver's injury had been completely rewired and the programmable logic controller as well as other components had been replaced and discarded over Labor Day weekend in September 1994.

      27

      As a result of this discovery, the Olivers filed a complaint against Stimson on July 17, 1996, for intentional and negligent spoliation of evidence and to void any subrogation rights Stimson might have. The Olivers later amended their complaint to include Liberty Northwest as a Defendant. After a period of discovery, the parties moved for summary judgment.

      28

      Following two separate hearings on the motions, the District Court entered an opinion and order granting the Defendants' motions for summary judgment on all claims. In its opinion, the District Court determined that the Defendants' conduct, under any interpretation, simply could not support a claim for intentional spoliation of evidence. The court further concluded that it need not reach the question of whether to recognize the tort of negligent spoliation since the Olivers were unable to develop a factual basis to establish any duty on the part of the Defendants to preserve the equipment.

      29

      The Olivers appeal from the District Court's decision.

      30
      STANDARD OF REVIEW
      31

      Our standard of review in appeals from summary judgment rulings is de novo. See Motarie v. Northern Mont. Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156 (citing Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, [16] 785). When we review a district court's grant of summary judgment, we apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. See Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we set forth our inquiry:

      32
      The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.
      33

      Bruner, 272 Mont. at 264-65, 900 P.2d at 903 (citations omitted).

      34

      At the outset, it is important to note that this is an appeal from a grant of summary judgment in favor of the Defendants. In a summary judgment proceeding, the evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences will be drawn therefrom in favor of the party opposing summary judgment. See Joyce v. Garnaas, 1999 MT 170, ¶ 8, 295 Mont. 198, ¶ 8, 983 P.2d 369, ¶ 8, 56 St.Rep. 661, ¶ 8. Consequently, we will view the evidence in the light most favorable to the Olivers and all reasonable inferences will be drawn in their favor.

      35
      ISSUE 1
      36

      Did the District Court err when it concluded that the exclusive remedy provisions of the Workers' Compensation Act barred the Olivers from bringing a claim for spoliation of evidence against Mr. Oliver's employer?

      37

      As a threshold matter we shall address the District Court's decision that the Olivers' negligence claims are barred by the exclusivity provisions of the Workers' Compensation Act (Act). The District Court concluded that since the Olivers could not show that any of the Defendants deliberately destroyed evidence to prevent the Olivers from pursuing a third-party claim, the Olivers were barred by the exclusivity provisions of the Act from bringing a negligence action against Mr. Oliver's employer and/or his employer's workers' compensation insurance carrier. Stimson sides with the District Court in its conclusion that the Act bars the Olivers' claim against it. The Olivers assert that a cause of action for spoliation of evidence is an interference with a property interest rather than a personal injury, which falls outside the exclusivity provisions of the Act. We agree with the Olivers.

      38

      The applicable provision of the Act provides:

      39
      For all employments covered under the Workers' Compensation Act or for which an election has been made for coverage under this chapter, the provisions of this chapter are exclusive ....an employer is not subject to any liability whatever for the death of or personal injury to an employee covered by the Workers' Compensation Act or for any claims for contribution or indemnity asserted by a third person from whom damages are sought on account of such injuries or death.
      40

      Section 39-71-411, MCA (1993) (emphasis added). We have previously stated the rationale for the adoption of workers' compensation legislation was to "guarantee workers with work-related injuries some form of compensation in exchange for relinquishing any potential tort claims against their employers." Stratemeyer v. Lincoln County (1996), 276 Mont. 67, 74, 915 P.2d 175, 179. This quid pro quo between employers and employees is central to the Act and it is axiomatic that the employee have some possibility of recovery for the compromise to hold. Stratemeyer, 276 Mont. at 75, 915 P.2d at 179.

      41

      A compensable injury under the Act is defined as follows:

      42

      (1) "Injury" or "injured" means:

      (a) internal or external physical harm to the body;

      ....

      (c) death.

      (2) An injury is caused by an accident. An accident is:

      [17] (a) an unexpected traumatic incident or unusual strain;

      (b) identifiable by time and place of occurrence;

      (c) identifiable by member or part of the body affected; and

      (d) caused by a specific event on a single day or during a single work shift.

      43

      Section 39-71-119, MCA (1993). Thus, injuries that trigger an exclusive remedy under the Act are internal or external harm to a worker's body. The loss or impairment of a person's ability to bring an action against a third party for spoliation of evidence is not an injury covered by the Act. Accordingly, we hold that an employee's claim against his employer for spoliation of evidence is not barred by the Act's exclusivity provisions. Therefore, we conclude that the District Court erred when it determined that the Olivers were barred by the exclusivity provisions of the Workers' Compensation Act from bringing a negligence action against Mr. Oliver's employer and/or his employer's workers' compensation insurance carrier.

      44
      ISSUE 2
      45

      Should Montana adopt the torts of negligent and intentional spoliation of evidence as independent causes of action?

      46

      As previously stated, the District Court concluded that it need not reach the question of whether the torts of intentional or negligent spoliation of evidence should be recognized in Montana. The District Court held that the Defendants did not engage in the type of conduct that could give rise to intentional spoliation of evidence. The court further concluded that given the relationship of the parties, there was no duty on the part of the Defendants to preserve the evidence, thus any negligence action would fail under any circumstances.

      47

      Nonetheless, the Olivers urge this Court to adopt the torts of negligent and intentional spoliation of evidence. Stimson contends that we need not decide whether to recognize either tort because the Olivers could not prove such a claim. As for Liberty Northwest, it asserts that the Olivers' complaint fails to state a claim against it upon which relief could be granted.

      48

      This is a case of first impression in Montana. However, we have previously upheld an award of exemplary damages against an owner of a vehicle who had destroyed critical physical evidence at the scene of an accident. This destruction of evidence resulted in the inability of the officer to conduct visibility and illumination tests as part of his investigation and determination of fault. In that situation, we stated that an identifiable basis for actual damages exists, which arises from the plaintiff's deprivation of the illumination tests. See Lauman v. Lee (1981), 192 Mont.84, 89, 626 P.2d 830, 833.

      49

      Relevant evidence is critical to the search for the truth. The intentional or negligent destruction or spoliation of evidence cannot be condoned and threatens the very integrity of our judicial system. There can be no truth, fairness, or justice in a civil action where relevant evidence has been destroyed before trial. Historically, our judicial system has fostered methods and safeguards to insure that relevant evidence is preserved. Ultimately, the responsibility rests with both the trial and appellate courts to insure that the parties to the litigation have a fair opportunity to present their claims or defenses.

      50

      Remedies already exist for parties to an action who have suffered a loss as a result of the spoliation of evidence by another party. See Cedars-Sinai Med. Ctr. v. Superior Court (1998), 18 Cal.4th 1, 74 Cal.Rptr.2d 248, 954 P.2d 511, 517-18; Stefan Rubin, Tort Reform: A Call for Florida to Scale Back its Independent Tort for the Spoliation of Evidence, 51 Fla. L.Rev. 345, 357-59 (1999); Montana Rules of Civil Procedure. We see no reason to recognize a new tort theory to provide relief to litigants when evidence is intentionally or negligently destroyed by a party to the litigation. Trial judges are well equipped under the Montana Rules of Civil Procedure to address the problem as it occurs and deal with it accordingly, even entering default when the circumstances justify such relief.

      51

      When evidence is in the possession of a third party, however, the various sanctions [18] available to the trial judge are inapplicable and other considerations arise. For instance, the property in question may be owned by the third party. A property owner normally has the right to control and dispose of his property as he sees fit. The owner of the property may legitimately question what right a plaintiff has to direct control over such property. Yet, the importance of evidence preservation and the critical importance it plays in the civil justice system cannot be ignored.

      52

      We are also mindful that some courts that have carefully considered this question have determined that there is no need to recognize the spoliation torts since existing remedies suffice. In the final analysis, however, we have concluded that it is necessary to recognize the tort of spoliation of evidence, which may be negligent or intentional, as an independent cause of action with respect to third parties who destroy evidence. In doing so, we are sensitive to the legitimate interests and rights of third parties who are in the possession of such evidence. Thus, we have attempted to craft a balanced remedy which will serve as a deterrent to any potential spoliator and provide suitable punishment against an actual spoliator as well as fair compensation to the victim of spoliation without creating a windfall.

      53

      A brief survey of a few of the jurisdictions that have previously recognized the tort of spoliation of evidence as an independent cause of action is relevant to our analysis. The California Court of Appeal for the Second District was the first court to adopt spoliation of evidence as an independent tort. See Smith v. Superior Court (1984), 151 Cal. App.3d 491, 198 Cal.Rptr. 829, 837. In that case, the plaintiff was injured when a wheel and tire flew off an oncoming van and smashed into the windshield of her car. After the accident, the van had been towed for repairs to the dealership that had originally installed the van's customized wheels. The dealership agreed to maintain certain parts pending further investigation by plaintiff's counsel. However, some time thereafter, the dealership destroyed, lost, or transferred the physical evidence. See Smith, 198 Cal.Rptr. at 831. In determining whether to recognize a new tort for the intentional spoliation of evidence, the court focused on the evolving nature of tort law. Relying on the basic premise that "for every wrong there is a remedy," the court established the tort of intentional spoliation of evidence as an independent cause of action. See Smith, 198 Cal.Rptr. at 832. In doing so, the court acknowledged that the extent and amount of damages in a spoliation case are highly speculative. See Smith, 198 Cal.Rptr. at 835-36. Finally, the court analogized the new tort of spoliation to the tort of interference with prospective business advantage already recognized by the State of California. The court concluded that a prospective civil action is a valuable probable expectancy that public policy dictates the court must protect from interference even though damages cannot be stated with certainty. See Smith, 198 Cal.Rptr. at 836-37. In addition, the court referenced the California Supreme Court decision of Williams v. State of California (1983), 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137, issued the previous year, which implied that a cause of action for negligent spoliation of evidence might be established if the spoliator were under a duty to preserve the evidence. See Smith, 198 Cal.Rptr. at 833; see also Rubin, 51 Fla. L.Rev. at 349-50.

      54

      Approximately six months later, the Florida District Court of Appeal for the Third District recognized negligent spoliation of evidence as an independent cause of action. See Bondu v. Gurvich (Fla.Dist.Ct. App.1984), 473 So.2d 1307, 1313. In that case, the plaintiff's husband died while under anesthesia administered during triple bypass surgery. The plaintiff subsequently sued the hospital and the anesthesiologists claiming, as part of her multi-count complaint, the hospital intentionally interfered with her right of action by purposely and intentionally losing and/or destroying the anesthesiology records associated with her husband's surgery, which frustrated her ability to prove her case. See Bondu, 473 So.2d at 1309-10. Relying on the California decisions mentioned previously, the Florida court recognized that an action for negligent spoliation could only be maintained if the defendant owed a duty to the plaintiff to preserve the evidence. See Bondu, 473 So.2d at 1312. [19] Under Florida law, the hospital had both an administrative and statutory duty to preserve the anesthesiology records and provide them to the plaintiff upon her request. Based on the hospital's breach of this duty, which resulted in the loss of a medical negligence lawsuit, the court concluded that the plaintiff's complaint stated a cause of action. See Bondu, 473 So.2d at 1312-13.

      55

      In 1986 the Appellate Court of Illinois also considered whether to recognize the tort of spoliation of evidence. See Petrik v. Monarch Printing Corp. (1986), 150 Ill. App.3d 248, 103 Ill.Dec. 774, 501 N.E.2d 1312. In that case, the court ultimately concluded that it need not decide whether Illinois law would recognize such a tort due to the fatal lack of an indispensable element of the tort: the plaintiff failed to adequately plead a nexus between the failure of his suit and the destruction of evidence. See Petrik, 103 Ill.Dec. 774, 501 N.E.2d at 1321.

      56

      In 1995 the Supreme Court of Illinois was presented with a certified question from a trial court, which assumed that Illinois courts had previously recognized spoliation of evidence as an independent cause of action. See Boyd v. Travelers Ins. Co. (1995), 166 Ill.2d 188, 209 Ill.Dec. 727, 652 N.E.2d 267, 269. The supreme court pointed out that it had never done so, but in response to the posed question it held that an action for negligent spoliation could be stated under existing negligence law without creating a new tort. See Boyd, 209 Ill.Dec. 727, 652 N.E.2d at 269-70. The supreme court went on to state:

      57

      To state a cause of action for negligence, a plaintiff must plead the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, an injury proximately caused by the breach, and damages.

      58

      The general rule is that there is no duty to preserve evidence; however, a duty to preserve evidence may arise through an agreement, a contract, a statute or another special circumstance. Moreover, a defendant may voluntarily assume a duty by affirmative conduct. In any of the foregoing instances, a defendant owes a duty of due care to preserve evidence if a reasonable person in the defendant's position should have foreseen that the evidence was material to a potential civil action.

      59

      Boyd, 209 Ill.Dec. 727, 652 N.E.2d at 270-71 (citations omitted).

      60

      Most recently, the United States Court of Appeals for the District of Columbia certified questions involving the availability of a cause of action for spoliation of evidence and the causation standard to be applied to the tort, to the District of Columbia Court of Appeals. See Holmes v. Amerex Rent-A-Car (D.C.1998), 710 A.2d 846, 847. In Holmes, the District of Columbia Court of Appeals held that negligent or reckless spoliation of evidence was an independent tort, set forth the elements of the tort, determined the standard for causation, and established an equitable system for calculating damages.

      61

      After a review of the decisions in those jurisdictions that have recognized the tort of spoliation of evidence, we adopt the torts of both intentional and negligent spoliation. A brief description of the elements of the torts is appropriate because of the unique nature of the torts, especially with respect to causation and damages.

      62
      I. NEGLIGENT SPOLIATION OF EVIDENCE
      63

      We agree with the states that have recognized the tort of negligent spoliation of evidence as an independent cause of action, which consists of the following elements:

      64

      (1) existence of a potential civil action;

      (2) a legal or contractual duty to preserve evidence relevant to that action;

      (3) destruction of that evidence;

      (4) significant impairment of the ability to prove the potential civil action;

      (5) a causal connection between the destruction of the evidence and the inability to prove the lawsuit;

      (6) a significant possibility of success of the potential civil action if the evidence were available; and

      (7) damages

      65

      See Holmes, 710 A.2d at 854; see also Rubin, 51 Fla. L.Rev. at 354-55. Generally, in order to prevail in a tort action, a plaintiff must [20] show by a preponderance of evidence that the defendant breached a legal duty to the plaintiff and that the breach was the cause of the plaintiff's damages. See Gentry v. Douglas Hereford Ranch, Inc., 1998 MT 182, ¶ 24, 290 Mont. 126, ¶ 24, 962 P.2d 1205, ¶ 24.

      66
      A. Duty
      67

      A duty to preserve evidence may arise in relation to a third-party spoliator where:

      68

      (1) the spoliator voluntarily undertakes to preserve the evidence and a person reasonably relies on it to his detriment;

      (2) the spoliator entered into an agreement to preserve the evidence;

      (3) there has been a specific request to the spoliator to preserve the evidence; or

      (4) there is a duty to do so based upon a contract, statute, regulation, or some other special circumstance/relationship.

      69

      See Johnson v. United Servs. Auto. Ass'n (1998), 67 Cal.App.4th 626, 79 Cal.Rptr.2d 234, 239-41.

      70

      Here, the Olivers claim that a duty to preserve the equipment was established by virtue of their specific request to retain the machinery. The Defendants aptly point out that in order to trigger such a duty under the Johnson requirements, the request must be accompanied by an offer to pay the reasonable costs of preservation. See Johnson, 79 Cal.Rptr.2d at 240.

      71

      Here, we deviate to some extent from the elements set forth in Johnson. We see no need to require the requesting party to include an offer to pay reasonable costs of preservation in the request. In many instances, particularly where the evidence is small in size and manageable, there will be no costs associated with the preservation. However, after receiving such a request, the third party may demand the reasonable costs of preservation from the requesting party. Of course, the person requesting preservation would have the option of deciding whether or not to incur such costs. This condition places the burden of preservation where it rightfully belongs, on the person or entity requesting preservation.

      72

      In the present case, giving the Olivers the benefit of all favorable inferences, there are material facts in dispute with regard to whether Stimson received the request to preserve the evidence. Loren Hartman, the claims adjuster for Liberty Northwest, testified that his usual and customary procedure was to telefax copies of important letters, such as the May 24, 1994, request to preserve letter from the Olivers' attorney, to Stimson. He stated he had no reason to believe that he did not follow the custom in this instance. Furthermore, Mr. Jones, who considered himself the attorney for both Liberty Northwest and Stimson, testified that he participated in a telephone conference call which included key Stimson employees, wherein he discussed the letter point by point.

      73

      Given this testimony, we conclude that a jury may very well determine that Stimson had actual notice of the Olivers' request to preserve the evidence. Therefore, the District Court erred in awarding summary judgment to Stimson on the issue of duty.

      74
      B. Causation
      75

      After thorough review of the authorities from other jurisdictions, we agree with the District of Columbia Court of Appeal's determination of causation in Holmes v. Amerex Rent-A-Car. A third-party spoliator should not be forced to pay damages to a plaintiff who had only a frivolous underlying claim. Thus, some threshold showing of causation and damages is required. See Holmes, 710 A.2d at 850.

      76

      Recovery for the loss of a plaintiff's ability to prove the underlying case and a third party's interest in only compensating the plaintiff for the third party's harmful conduct must be balanced in determining the standard of proof for causation in an independent cause of action for negligent or intentional spoliation of evidence. Balancing of such interests requires the plaintiff to show a nexus between the destroyed evidence and the impairment of proving the underlying suit.

      77

      [21] While we agree that bringing an action for the underlying tort with the action for spoliation would be the most efficient approach, to require a plaintiff to either pursue and lose the underlying claim or demonstrate that the underlying claim is precluded is too harsh. Requiring plaintiffs to pursue futile lawsuits or to withhold relief from plaintiffs whose lawsuits have been severely hampered, but not precluded, by spoliation of evidence ignores the plaintiffs' interest in securing a reasonable recovery for a lost or impaired expectancy. Therefore, we hold that in order to prove causation, a plaintiff must show that: (1) the underlying claim was significantly impaired due to the spoliation of evidence; (2) a causal relationship exists between the projected failure of success in the underlying action and the unavailability of the destroyed evidence; and (3) the underlying action would enjoy a significant possibility of success if the spoliated evidence still existed. See Holmes, 710 A.2d at 851-52.

      78

      With respect to the third prong of causation, the standard of "significant possibility of success," is lower than the standard of "preponderance of the evidence." As such, a plaintiff must demonstrate a substantial and realistic possibility of succeeding, but need not demonstrate that such success was more likely than not. See Holmes, 710 A.2d at 852.

      79
      C. Damages
      80

      Generally, a plaintiff is required to prove damages with reasonable certainty. See Smith v. Zepp (1977), 173 Mont. 358, 370, 567 P.2d 923, 930. However, we have previously stated that when there is strong evidence of the fact of damage, a defendant should not escape liability because the amount of damage cannot be proven with precision. See Johnson v. Murray (1982), 201 Mont. 495, 506, 656 P.2d 170, 175 (citation omitted). In this regard, the United States Supreme Court noted early on that the speculative nature of damages should not bar recovery:

      81
      Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his act.
      82

      Story Parchment Co. v. Paterson Parchment Paper (1931), 282 U.S. 555, 563, 51 S.Ct. 248, 250, 75 L.Ed. 544, 548.

      83

      The speculative nature of damages is inherent in the uncertainties of proof relevant to the tort of spoliation of evidence. Thus, the interest of the plaintiff to recover the entire amount of damages that he would have received if the underlying action had been pursued successfully must be balanced with the defendant's interest in not providing the plaintiff with a windfall. The plaintiff should not be allowed to benefit more from the spoliation than he would have in the underlying suit. On the other hand, the defendant should be adequately punished for his offending conduct and should be required to adequately compensate the plaintiff for the loss of his ability to pursue the underlying suit. See Holmes, 710 A.2d at 853.

      84

      In taking these interests into consideration, it is necessary for the damages to be discounted to account for the uncertainties. Therefore, we hold that damages arrived at through reasonable estimation based on relevant data should be multiplied by the significant possibility that the plaintiff would have won the underlying suit had the spoliated evidence been available. For example, if a jury determined that the expected recovery in the underlying suit was $200,000 and that there was an estimated 60 percent possibility that the plaintiff would have recovered that amount in the underlying suit had it not been impaired by the spoliated evidence, then the award of damages would be $120,000 (60 percent of $200,000). See Holmes, 710 A.2d at 853-54.

      85
      II. INTENTIONAL SPOLIATION OF EVIDENCE
      86

      The District Court concluded that it did not need to reach the question of whether to recognize a claim for intentional spoliation of evidence in Montana. The reasoning employed by the District Court was that the intent of the spoliator goes to whether the intentional acts of the spoliator were [22] designed to disrupt the plaintiff's case. The District Court pointed out that the Olivers had not shown any facts that would support the conclusion that Stimson had destroyed the evidence for the purpose of disrupting the Olivers' third-party suit.

      87

      The intentional destruction of evidence to disrupt or defeat another person's right of recovery is highly improper and cannot be justified. See Coleman v. Eddy Potash, Inc. (1995), 120 N.M. 645, 905 P.2d 185, 189. Thus, we would be willing to recognize the tort of intentional spoliation of evidence if such a case so warranted it. However, this is not such a case. The District Court correctly determined that the Olivers had not presented any facts that indicated either Defendant had destroyed evidence for the purpose of disrupting their third-party suit. Accordingly, we affirm the District Court's award of summary judgment in favor of the Defendants with regard to the Olivers' claim of intentional spoliation of evidence.

      88

      Nonetheless, we agree with the courts and commentators that intentional spoliation of evidence consists of the following elements:

      89

      (1) the existence of a potential lawsuit;

      (2) the defendant's knowledge of the potential lawsuit;

      (3) the intentional destruction of evidence designed to disrupt or defeat the potential lawsuit;

      (4) disruption of the potential lawsuit;

      (5) a causal relationship between the act of spoliation and the inability to prove the lawsuit; and

      (6) damages

      90

      See Coleman, 905 P.2d at 189 (citing Philip A. Lionberger, Interference with Prospective Civil Litigation by Spoliation of Evidence: Should Texas Adopt a New Tort?, 21 St. Mary's L.J. 209, 222 (1989); Smith v. Howard Johnson Co. (1993) 67 Ohio St.3d 28, 615 N.E.2d 1037, 1038); see also Steffen Nolte, The Spoliation Tort: An Approach to Underlying Principles, 26 St. Mary's L.J. 351, 361-62.

      91

      The elements with regard to causation and damages for intentional spoliation of evidence are the same as those for negligent spoliation of evidence. A plaintiff bringing a claim for intentional spoliation of evidence is still required to prove a causal relationship between the act of spoliation and the inability to prove the lawsuit and damages. Therefore, we conclude that the standard of proof required for causation and the methodology for determining damages is the same for both negligent and intentional spoliation of evidence.

      92
      ISSUE 3
      93

      Did the District Court err in awarding summary judgment in favor of Liberty Northwest Corporation?

      94

      The Olivers allege that the agency relationship between Stimson and Liberty Northwest results in both Stimson and Liberty Northwest being responsible to the Olivers for spoliation of evidence. Liberty Northwest counters by pointing out that the Olivers' Second Amended Complaint contains four separate causes of action, none of which contains any allegation of wrongdoing on the part of Liberty Northwest. As a result, the District Court granted summary judgment in favor of Liberty Northwest.

      95

      The Olivers stated the following purported basis for their claim against Liberty Northwest:

      96

      In recent depositions and in pleadings, Stimson contends that certain correspondence from the Plaintiffs' attorney, specifically Exhibit B, the May 24 correspondence from Plaintiffs' attorneys to ... the attorney for Stimson, was never received by Stimson, even though it was received by [the attorney] and Liberty Northwest. Therefore, since the tort of spoliation in the context of a third-party claim emanating from a workers' compensation claim is undecided in Montana, the status of Liberty Northwest and the potential independent culpability of Liberty Northwest necessitates that Liberty Northwest be brought in as a party to this litigation for determination of the culpability, if any, in the Plaintiffs' litigation seeking redress for Stimson's spoliation of evidence.

      97

      [23] In this regard, the District Court stated that the Olivers' claims against Liberty Northwest were at a minimum dependent upon the success of the Olivers' claims against Stimson and proof that Liberty Northwest's agents were also acting as actual or ostensible agents for Stimson as it relates to shuffling correspondence between the Olivers' counsel, Liberty Northwest's actual agents, and Stimson's actual agents during the days following Mr. Oliver's accident.

      98

      It is the burden of the plaintiff to adequately plead a cause of action. See Ryan v. City of Bozeman (1996), 279 Mont. 507, 512, 928 P.2d 228, 231. In addition, we have stated that a complaint is sufficient if it concisely states facts upon which relief can be granted upon any legally sustainable basis. However, with this premise in mind, we emphasized that:

      99

      [A] complaint must state something more than facts which, at the most, would breed only a suspicion that plaintiffs have a right to relief. Liberality does not go so far as to excuse omission of that which is material and necessary in order to entitle relief.

      100

      Ryan, 279 Mont. at 512, 928 P.2d at 231 (citation omitted).

      101

      With regard to Liberty Northwest, the Olivers have failed to meet their burden. The Olivers have failed to concisely state facts upon which relief could be granted in relation to their claims for spoliation of evidence against Liberty Northwest. Therefore, we conclude that the District Court did not err in granting summary judgment in favor of Liberty Northwest.

      102

      Accordingly, we affirm in part and reverse in part the decision of the District Court. We affirm the District Court's grant of summary judgment in favor of Liberty Northwest and the District Court's grant of summary judgment in favor of the Defendants with regard to the Olivers' claim for intentional spoliation of evidence. We reverse the District Court's conclusion that the exclusivity provisions of the Montana Workers' Compensation Act bar the Olivers' claims against Mr. Oliver's employer for spoliation of evidence and the District Court's grant of summary judgment in favor Stimson with regard to the Olivers' claim for negligent spoliation of evidence. In light of our decision to recognize the tort of negligent spoliation of evidence as an independent cause of action against third parties who destroy evidence, we remand this cause to the District Court for further proceedings consistent with this opinion.

      103

      J.A. TURNAGE, C.J., JAMES C. NELSON, TERRY N. TRIEWEILER, WILLIAM E. HUNT, SR., and W. WILLIAM LEAPHART, JJ., concur.

      104
      Justice KARLA M. GRAY, concurring in part and dissenting in part.
      105

      I concur in the Court's opinion on issues one and three and in that portion of the opinion on issue two which generally adopts the tort of negligent spoliation of evidence by a third party. I dissent from the duty element of that tort as defined by the Court and from the application of that duty in this case. Finally, I dissent from the Court's definition of the tort of intentional spoliation of evidence by a third party. I would affirm the District Court on issue two.

      106

      In large part, the Court adopts the Johnson approach to when a duty to preserve evidence may arise in relation to an alleged third-party spoliator. It departs from that approach, however, in one particular. I would not do so.

      107

      In Johnson, the California Court of Appeals defined the "specific request" duty basis as a specific request to preserve "accompanied by an offer to pay the cost or otherwise bear the burden of preserving." Johnson, 79 Cal.Rptr.2d at 241. As that court observed, "[w]e do not think a tort duty to preserve should be created simply by someone specifically requesting a third party to preserve something. Preservation may entail significant burdens." Johnson, 79 Cal. Rptr.2d at 241 (citation omitted). I agree.

      108

      I also agree with the California court that it is this added condition that "places the burden of preservation rightfully where it belongs—on the person or entity requesting preservation." See Johnson, 79 Cal.Rptr.2d at 241. A simple request to a third party to preserve that party's property for what [24] might be a significant period of time strikes me as an inadequate and unfair basis upon which to premise the existence of a legal duty. Indeed, I am aware of no other court which has imposed a legal duty on a third party to preserve its property for another's benefit on the basis of a mere request. I would adopt the "specific request accompanied by an offer to pay" basis for the existence of a duty to preserve set forth by the Johnson court, apply it here, and conclude that—since no offer to pay was made—no duty to preserve arose.

      109

      Instead of doing so, the Court states that there is no need to require the requesting party to include the offer to pay in the request because, in many instances, there will be no costs associated with the preservation. So, it places the obligation with regard to the subject of payment of costs on the alleged spoliator, by allowing the spoliator to demand the payment of costs associated with the preservation after a duty to preserve has come into existence. But the question is not whether, or to what extent, there will be costs for preserving the property. The question is where the obligation with regard to payment—and raising the payment issue— properly belongs. If there are no associated costs, the requesting party ultimately will pay no costs whether or not the obligation to offer to pay is a required part of the basis for the existence of the duty to preserve. The point, though, is that the obligation to offer to pay before a legal duty arises seems to me to be the proper balance and it, rather than the approach adopted by the Court, places the burden where it properly belongs—on the party making the request. See Johnson, 79 Cal.Rptr.2d at 241.

      110

      The upshot of the Court's approach to duty, of course, results in this case going forward on the basis that Stimson had a duty to preserve evidence—assuming the notice issue is resolved in the Olivers' favor—on the basis of the Olivers' mere request that it do so, notwithstanding that Stimson has forever lost the right to demand payment of the reasonable costs of preservation. This is simply not fair to Stimson and, indeed, it significantly undermines the Court's statement that appellate courts must insure that the "parties" to litigation have a fair opportunity to present their claims or defenses. It is true that the Olivers now have a fair opportunity to present their claim. Stimson does not have a corresponding opportunity. Had Stimson had the opportunity to demand the reasonable costs of preservation—an opportunity on which the Court places much importance—it may be that the Olivers would have declined to incur such costs and this action never would have been filed. The fact is that, at least in this case, the Court's placing of the burden of preservation "where it rightfully belongs, on the person or entity requesting preservation[,]" is an illusion.

      111

      Finally, I would not define the elements of the tort of intentional spoliation of evidence in the case presently before us. The Court properly notes that this case does not warrant the adoption or recognition of such a tort due to the total absence of any facts which would support such a cause of action. For the Court to then define the elements of an as yet unrecognized and unadopted tort results in an advisory opinion on a subject admittedly not before us. That portion of the Court's opinion is purely and totally dicta and, for that reason, I cannot join it.

      112

      I join the Court in reversing the District Court on issue one and affirming it on issue three. I dissent from the Court's reversal of the District Court on issue two.

  • 7 X.Supp. Supplemental Cases and Materials

    • 7.1 Hubbard-Hall Chemical Co. v. Silverman--"The Killer Pesticide Case"

      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
      340 F.2d 402 (1965)
      2
      HUBBARD-HALL CHEMICAL COMPANY, Defendant-Appellant,
      v.
      Charles L. SILVERMAN, Administrator, et al., Plaintiffs-Appellees.
      3
      No. 6398.
      4

      United States Court of Appeals First Circuit.

      5
      January 25, 1965.
      6

      [403] Paul R. Frederick, Boston, Mass., with whom Badger, Parrish, Sullivan & Frederick, Boston, Mass., was on brief, for appellant.

      7

      Melvin S. Louison, Taunton, Mass., with whom Walter J. Hurley, Boston, Mass., was on brief, for appellees.

      8

      Before ALDRICH, Chief Judge, and SWEENEY and WYZANSKI, District Judges.

      9
      WYZANSKI, District Judge.
      10

      In this personal injury case brought within the diversity jurisdiction of the United States District Court, the chief issue is whether there was sufficient evidence of the alleged negligence of the defendant manufacturer of insecticides to permit a jury to hold it liable for the death of two decedents of whose estates plaintiffs are administrators.

      11

      On the view of the evidence most favorable to plaintiffs, who are seeking to sustain jury verdicts returned in their favor, these are what a jury could reasonably have found to be the facts.

      12

      Defendant is a manufacturer and seller of 1.5% Parathion dust. Defendant labeled its product, because of its poisonous character, as follows:

      13
      "CAUTION: May Be Fatal If Swallowed, Inhaled or Absorbed Through Skin. Rapidly Absorbed Through Skin. Do not get in eyes or on skin. Wear natural rubber gloves, protective clothing and goggles. In case of contact wash immediately with soap and water. Wear a mask or respirator of a type passed by the U.S. Department of Agriculture for parathion protection. Keep all unprotected persons out of operating areas or vicinity where there may be danger of drift. Vacated areas should not be re-entered until drifting insecticide and volatile residues have dissipated. Do not contaminate feed and foodstuffs. Wash hands, arms and face thoroughly with soap and water before eating or smoking. Wash all contaminated clothing with soap and hot water before re-use."
      14

      In 1957 defendant forwarded to the U.S. Department of Agriculture its application, under the Federal Insecticide, Fungicide, and Rodenticide Act, [codified in 7 U.S.C. ch. 6 §§ 135 through 135k] for registration of 1.5% Parathion dust, and annexed a copy of the above-quoted label. May 20, 1957 the Department granted registration with the understanding that in the label "the word `WARNING' should be substituted for the heading word `CAUTION'."

      15

      Defendant sold bags of this Parathion dust to Viveiros, the operator of a farm in Taunton, Massachusetts. He employed plaintiffs' intestates. Both of the employees were natives of Puerto Rico. One could read some English; the other could not read any. As of August 1959, the former had been for one year, the latter for two years, in Viveiros' employ. During their employment, they, in their capacity as laborers and farm hands, had often used various chemicals for dusting and spraying. They had dusted with Parathion on several occasions, and indeed [404] four times in the week ending August 14, 1959.

      16

      Viveiros, knowing the dangerous character of Parathion and the other insecticides used on his farm, kept available for his employees gas masks, rubber raincoats, and rubber boots. Viveiros says he told the intestates and his other laborers that the chemicals including Parathion were dangerous, and that if they did not use the masks and coats and follow instructions they were likely to die. But it is to be borne in mind that plaintiffs' intestates, being dead, were unable to confirm or deny those statements; and the statements themselves came from a person who was, in the lower court, one of the parties defendant against plaintiffs' claims.

      17

      August 14, 1959 the intestates went to work dusting with Parathion. At 9:15 A.M. Viveiros observed them without masks or coats; but they were then resting and eating. After a full day of dusting, both intestates were sick. After 6 P.M. they were taken in a semi-comatose condition to a hospital. They died almost immediately after arrival. There was adequate evidence that in each case the cause of death was the effect upon them of having used Parathion in dusting operations on the Viveiros farm on the day of their death.

      18

      In his characteristically explicit charge to the jury, Judge Ford drew to their attention that each plaintiff had alleged that defendant "was negligent in failing to properly, openly and conspicuously label its said parathion products so as to sufficiently warn anyone supplying or using parathion of the inherent danger in its use." The judge then noted that a manufacturer "who supplies * * * a product for another to use is subject to liability to those whom the supplier would expect to use the product, for bodily harm caused by "the use of the product in a manner for which and by a person for whose use it is supplied, if the manufacturer: (a) knows from the facts supplied to him that the chattel, the product, is likely to be dangerous for the use for which it is supplied; (b) has no reason to believe that those for whose use the product is supplied will realize its dangerous condition; and (c) fails to exercise, commensurate with the risk involved, reasonable care to inform them by adequate instructions or warnings of its dangerous condition."

      19

      "An adequate warning, members of the jury, is one calculated to bring home to a reasonably prudent person, a reasonably prudent user of the product, the nature and extent of the danger of the product involved."

      20

      Then, having reminded the jury that he was commenting on the evidence "only in an advisory capacity", Judge Ford drew to the jury's attention the cautionary label defendant had affixed to its product, informed them that if defendant had substantially complied "with the requirements of the Federal Insecticide Act * * * it is some evidence that * * * they exercised reasonable care", reminded them that plaintiff's counsel had suggested "that there should be a skull and crossbones on the warning", and then (certainly well within his rights as a trial judge, but nonetheless making fairly clear his personal position on the issue of liability) asked the jury the question whether defendant "should * * *, for example, put a coffin on the notice?"

      21

      Thereafter Judge Ford charged the jury with respect to issues of contributory negligence. In the course of so doing he told them: "You could find members of the jury, and I do not say you should but you could find it to be contributory negligence if you find that a user, here the deceased, of an inherently dangerous product such as parathion were adequately warned of the risk involved in its use and provided with adequate protection, failed to use the protection against its dangers and the failure to use the protection was the proximate cause of their injuries."

      22

      Responding to Judge Ford's accurate and admirable instructions of law, but declining to follow the rather broad hints in the judge's advisory comments on the evidence, (and undoubtedly not appreciating the probable reason why Judge [405] Ford, instead of taking general verdicts, laid before the jury special questions,) the jury, in its special verdicts, answered "no" to each of the following interrogatories:

      23

      "1. Did the defendant Hubbard-Hall Chemical Company exercise reasonable care in giving the deceased Velez-Velez and Ramos-Sanchez adequate warning of the dangerous nature of Parathion and instructions as to its use?"

      "2. Did either Manuel Velez-Velez or Jaime Ramos-Sanches fail under the circumstances to exercise the care of an ordinarily prudent person in the use of the Parathion?"

      24

      The jury also assessed damages; and on the special verdicts as a whole, Judge Ford entered judgments for plaintiffs, from which defendant has appealed.

      25

      The appeals must be dismissed.

      26

      We are of opinion that the jury could reasonably have believed that defendant should have foreseen that its admittedly dangerous product would be used by, among others, persons like plaintiffs' intestates, who were farm laborers, of limited education and reading ability, and that a warning even if it were in the precise form of the label submitted to the Department of Agriculture would not, because of its lack of a skull and bones or other comparable symbols or hieroglyphics, be "adequate instructions or warnings of its [Parathion's] dangerous condition."

      27

      The approval of the label given by the Department of Agriculture merely satisfied the conditions laid down by Congress for the shipment of the product in interstate commerce. Neither Congress nor the Department explicitly or implicitly provided that the Department's approval of the label carried with it as a corollary the proposition that defendant had met the possibly higher standard of due care imposed by the common law of torts applied under the local state law of Massachusetts in actions of tort for negligence. Cf. Spruill v. Boyle-Midway, 4th Cir., 309 F.2d 79; Tampa Drug Co. v. Wait, (Fla.), 103 So.2d 603. Nor is it argued that in enacting the Federal Insecticide, Fungicide, and Rodenticide Act, Congress had occupied the whole field of civil liability between private parties in tort actions founded on negligence, so that federal rules of law governed such actions and, by virtue of the supremacy clause of U.S. Constitution Article VI, ousted state law from its normal area of coverage. Indeed all counsel at our bar assumed, as we do, the contrary; that is, we have all proceeded on the premise that, defendant's product having had its impact in Massachusetts upon plaintiffs' intestates, the governing law is the local common law of this Commonwealth.

      28

      Even if it be assumed that contributory negligence is an available defense in an action premised on the alleged breach of a duty to warn the plaintiff, [a point not free from doubt, See Dillard and Hart, Product Liability: Directions for Use and the Duty to Warn, 41 Virginia L.R. 145, 177-178 (1955),] it cannot be ruled as a matter of law that on the evidence in this case defendant, beyond effective challenge, maintained its burden of proving that plaintiffs' intestates were contributorily negligent in not having used masks and raincoats. Defendant had the burden of convincing the jury that the intestates had received oral adequate warnings from Viveiros. To be sure, he said he gave such warnings. But he was an interested party. The jury may not have credited his testimony. If they did not, then defendant failed to bear its burden of proving contributory negligence.

      29

      While Judge Ford seems to have thought that defendant deserved to prevail, he in the exercise of a sound judicial discretion, did not choose to exercise his prerogative to set aside the verdicts as against the weight of the evidence. We cannot upset the judgments entered thereon on the alleged ground of want of sufficient evidence to sustain them.

      30

      Judgment will be entered affirming the judgment of the District Court.

      31
      [406] ALDRICH, Chief Judge (concurring).
      32

      I concur in the court's opinion in substantial measure, but with one caveat. Strictly, I do not think the question need be one of contributory negligence. If a party has a duty to warn, and fails adequately to perform, as could be found here, it may nonetheless be that the other party in fact possessed the knowledge which a proper exercise of the duty would have conveyed. In such event there can be no recovery. New York Central R.R. v. Moynihan, 1 Cir., 1964, 338 F.2d 644. A plaintiff might, in fact, have understood the notice given by the defendant in spite of its inadequacy, or might have received sufficient warning from other sources. However, the burden of proof should be upon the defendant to show that the plaintiff did have such knowledge. The very reason that the law imposes a duty to give notice in a particular case is the assumption that, because of the danger not commonly known to users, "a warning is needed." See Cadogan v. Boston Consolidated Gas Co., 1935, 290 Mass. 496, 500, 195 N.E. 772. That the plaintiff fell outside the common class should be the defendant's burden, not the plaintiff's.

      33

      While the Massachusetts cases do not appear to have dealt explicitly with the burden of proof in this situation, I do observe that in Thornhill v. Carpenter-Morton Co., 1915, 220 Mass. 593, 108 N.E. 474, in permitting recovery for failure to warn of the dangerous characteristics of a product, the court remarked, at p. 598, 108 N.E. at p. 492 that the plaintiff "is not shown to have had" the information which the defendant had failed to disclose. This must have meant not shown by the defendant.

      34

      This difference in principle leads to no difference in result. Even if the test for contributory negligence might, in some instances, be more severe than simply whether a user in fact possessed the knowledge which a proper notice from the defendant would have given him, the court here put to the jury a special question inquiring whether each intestate assumed the risk of injury. In its charge it explained that this meant whether intestates knew "the facts which created the danger * * * and appreciated the risk of personal injury that was involved in such facts." The jury answered in the negative as to each.

      35

      The jury has found that the defendant did not use an adequate form of warning. It has found that the intestates did not in fact receive warning. The defendant has no present complaint.

  • 8 XI.Supp. Supplemental Cases and Materials

    • 8.1 XI.Supp.B. Supplemental Cases and Materials for XII.B.

  • 9 XII.Supp. Supplemental Cases and Materials

    • 9.1 XII.Supp.A. Supplemental Cases and Materials for XII.A.

      • 9.1.1 Conboy v. Mogeloff

        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?

        1
        567 N.Y.S.2d 960
        2
        172 A.D.2d 912
        3
        James W. CONBOY, as Guardian ad Litem of David Dillenbeck, et al., Infants, Respondent,
        v.
        Jeffrey S. MOGELOFF, Appellant.
        4
        Supreme Court, Appellate Division,
        Third Department.
        5
        April 4, 1991.
        6

        [567 N.Y.S.2d 961] Maynard, O'Connor & Smith (Edwin J. Tobin, Jr., of counsel), Albany, for appellant.

        7

        Vincent E. Vicinanzo, Amsterdam, for respondent.

        8

        Before MAHONEY, P.J., and MIKOLL, YESAWICH, CREW and HARVEY, JJ.

        9
        CREW, Justice.
        10

        Appeal from an order of the Supreme Court (Best, J.), entered June 1, 1990 in Montgomery County, which denied defendant's motion for summary judgment dismissing the complaint.

        11

        On September 1, 1983 Ruth Dillenbeck, the mother of David, Russell and George Dillenbeck (hereinafter collectively referred to as the children), consulted with defendant because of persistent headaches and occasional episodes of unconsciousness. Defendant diagnosed Dillenbeck's condition as migraine and prescribed Fiorinal. In response to her inquiry, defendant advised Dillenbeck that she could drive a car. On September 6, 1983 at about 9:30 A.M. Dillenbeck experienced a headache and took a Fiorinal tablet. At about 10:30 A.M. Dillenbeck was operating her car, in which the children were passengers, when she lost consciousness and collided with a bridge abutment. As a result of injuries sustained in the accident, plaintiff commenced this action on behalf of the children against defendant seeking money damages for his negligence and malpractice in treating Dillenbeck. Specifically, plaintiff alleged that defendant was negligent in that, contrary to his advice that Dillenbeck could drive a car, he should have directed her not to drive knowing that Fiorinal had a sedative effect. After issue was joined, defendant moved for summary judgment dismissing the complaint on the ground that the complaint failed to state a cause of action. Supreme Court denied the motion and this appeal ensued.

        12

        [172 A.D.2d 913] Defendant claims that he owed no legal duty to the children, which is essential to a recovery in negligence (Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 344, 162 N.E. 99). As a general rule, a defendant has no legal duty to control the conduct of third persons so as to prevent them from harming others (see, Pulka v. Edelman, 40 N.Y.2d 781, 783, 390 N.Y.S.2d 393, 358 N.E.2d 1019). However, certain relationships may give rise to such a duty, but then only when the defendant has the ability and authority to control the third persons' conduct (see, Purdy v. Public Adm'r of County of Westchester, 72 N.Y.2d 1, 8, 530 N.Y.S.2d 513, 526 N.E.2d 4). The threshold inquiry here, therefore, is whether defendant had sufficient ability and authority to control the conduct of Dillenbeck so as to give rise to a duty on his part to protect the children. We hold that he did not. Dillenbeck consulted with defendant for headaches. The services rendered by defendant were examination, diagnosis, prescription and advice. Dillenbeck was free to accept [567 N.Y.S.2d 962] or reject defendant's diagnosis and advice and she was at liberty to seek a second opinion. In short, she had the right to decide what treatment and advice she would accept or reject (cf., Fogal v. Genesee Hosp., 41 A.D.2d 468, 473, 344 N.Y.S.2d 552). Contrary to plaintiff's contentions, advice does not equate to control.

        13

        Plaintiff contends, however, that a legal duty does exist by reason of the fact that defendant knew or had reason to know that the children were relying on him to give appropriate advice to their mother. In support of that position plaintiff cites Eiseman v. State of New York, 70 N.Y.2d 175, 518 N.Y.S.2d 608, 511 N.E.2d 1128. While the Court of Appeals in Eiseman discussed the concept of a physician's duty to persons other than the patient, it should be noted that the discussion was obiter dictum. Accepting the case as indicative of what the court may determine in futuro, we observe that the court, in suggesting the potential for a legal duty owing from a physician to a third party, stated that "we have further required actual privity, or something approaching privity, such as conduct on the part of defendant linking defendant to plaintiff which evinces defendant's understanding of plaintiff's reliance" (id., at 188, 518 N.Y.S.2d 608, 511 N.E.2d 1128). In this case, there are no allegations in the complaint or the bill of particulars of the children's reliance on defendant's conduct or of knowledge by defendant of any such reliance. In view of the fact that defendant's motion was for summary judgment dismissing the complaint for failure to state a cause of action, and in view of plaintiff's failure to allege reliance and knowledge thereof, the motion should have been granted.

        14

        Order reversed, on the law, without costs, motion granted, summary judgment awarded to defendant and complaint dismissed. [172 A.D.2d 914]

        15

        MAHONEY, P.J., and MIKOLL, YESAWICH and HARVEY, JJ., concur.

      • 9.1.2 Kline v. 1500 Massachusetts Avenue Apartment Corp.

        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?

        1
        439 F.2d 477 (1970)
        2
        Sarah B. KLINE, Appellant,
        v.
        1500 MASSACHUSETTS AVENUE APARTMENT CORPORATION et al.
        3
        No. 23401.
        4

        United States Court of Appeals, District of Columbia Circuit.

        5
        Argued April 10, 1970.
        6
        Decided August 6, 1970.
        7
        Petition for Rehearing Denied September 8, 1970.
        8

        [478] Mr. Albert J. Ahern, Jr., Washington, D. C., for appellant.

        9

        Mr. Laurence T. Scott, Washington, D. C., for appellee.

        10

        Before TAMM, MacKINNON and WILKEY, Circuit Judges.

        11
        WILKEY, Circuit Judge:
        12

        The appellee apartment corporation states that there is "only one issue presented for review * * * whether a duty should be placed on a landlord to take steps to protect tenants from foreseeable criminal acts committed by third parties". The District Court as a matter of law held that there is no such duty. We find that there is, and that in the circumstances here the applicable standard of care was breached. We therefore reverse and remand to the District Court for the determination of damages for the appellant.

        13
        I
        14

        The appellant, Sarah B. Kline, sustained serious injuries when she was criminally assaulted and robbed at approximately 10:15 in the evening by an intruder in the common hallway of an apartment house at 1500 Massachusetts Avenue. This facility, into which the appellant Kline moved in October 1959, [479] is a large apartment building with approximately 585 individual apartment units. It has a main entrance on Massachusetts Avenue, with side entrances on both 15th and 16th Streets. At the time the appellant first signed a lease a doorman was on duty at the main entrance twenty-four hours a day, and at least one employee at all times manned a desk in the lobby from which all persons using the elevators could be observed.[1] The 15th Street door adjoined the entrance to a parking garage used by both the tenants and the public. Two garage attendants were stationed at this dual entranceway; the duties of each being arranged so that one of them always was in position to observe those entering either the apartment building or the garage. The 16th Street entrance was unattended during the day but was locked after 9:00 P.M.

        15

        By mid-1966, however, the main entrance had no doorman, the desk in the lobby was left unattended much of the time, the 15th Street entrance was generally unguarded due to a decrease in garage personnel, and the 16th Street entrance was often left unlocked all night. The entrances were allowed to be thus unguarded in the face of an increasing number of assaults, larcenies, and robberies being perpetrated against the tenants in and from the common hallways of the apartment building. These facts were undisputed,[2] and were supported by a detailed chronological listing of offenses admitted into evidence. The landlord had notice of these crimes and had in fact been urged by appellant Kline herself prior to the events leading to the instant appeal to take steps to secure the building.[3]

        16

        [480] Shortly after 10:00 P.M. on November 17, 1966, Miss Kline was assaulted and robbed just outside her apartment on the first floor above the street level of this 585 unit apartment building. This occurred only two months after Leona Sullivan, another female tenant, had been similarly attacked in the same commonway.

        17
        II
        18

        At the outset we note that of the crimes of violence, robbery, and assault which had been occurring with mounting frequency on the premises at 1500 Massachusetts Avenue, the assaults on Miss Kline and Miss Sullivan took place in the hallways of the building, which were under the exclusive control of the appellee landlord. Even in those crimes of robbery or assault committed in individual apartments, the intruders of necessity had to gain entrance through the common entry and passageways.[4] These premises fronted on three heavily traveled streets, and had multiple entrances. The risk to be guarded against therefore was the risk of unauthorized entrance into the apartment house by intruders bent upon some crime of violence or theft.

        19

        While the apartment lessees themselves could take some steps to guard against this risk by installing extra heavy locks and other security devices on the doors and windows of their respective apartments, yet this risk in the greater part could only be guarded against by the landlord. No individual tenant had it within his power to take measures to guard the garage entranceways, to provide scrutiny at the main entrance of the building, to patrol the common hallways and elevators, to set up any kind of a security alarm system in the building, to provide additional locking devices on the main doors, to provide a system of announcement for authorized visitors only, to close the garage doors at appropriate hours, and to see that the entrance was manned at all times.

        20

        The risk of criminal assault and robbery on a tenant in the common hallways of the building was thus entirely predictable; that same risk had been occurring with increasing frequency over a period of several months immediately prior to the incident giving rise to this case; it was a risk whose prevention or minimization was almost entirely within the power of the landlord; and the risk materialized in the assault and robbery of appellant on November 17, 1966.

        21
        III
        22

        In this jurisdiction, certain duties have been assigned to the landlord because of his control of common hallways, lobbies, stairwells, etc., used by all tenants in multiple dwelling units. This Court in Levine v. Katz, 132 U.S.App.D.C. 173, [481] 174, 407 F.2d 303, 304 (1968), pointed out that:

        23
        It has long been well settled in this jurisdiction that, where a landlord leases separate portions of property and reserves under his own control the halls, stairs, or other parts of the property for use in common by all tenants, he has a duty to all those on the premises of legal right to use ordinary care and diligence to maintain the retained parts in a reasonably safe condition.
        24

        While Levine v. Katz dealt with a physical defect in the building leading to plaintiff's injury, the rationale as applied to predictable criminal acts by third parties is the same.[5] The duty is the landlord's because by his control of the areas of common use and common danger he is the only party who has the power to make the necessary repairs or to provide the necessary protection.

        25

        As a general rule, a private person does not have a duty to protect another from a criminal attack by a third person. We recognize that this rule has sometimes in the past been applied in landlord-tenant law, even by this court.[6] Among the reasons for the application of this rule to landlords are: judicial reluctance to tamper with the traditional common law concept of the landlord-tenant relationship; the notion that the act of a third person in committing an intentional tort or crime is a superseding cause of the harm to another resulting therefrom; the oftentimes difficult problem of determining foreseeability of criminal acts; the vagueness of the standard which the landlord must meet; the economic consequences of the imposition of the duty; and conflict with the public policy allocating the duty of protecting citizens from criminal acts to the government rather than the private sector.

        26

        But the rationale of this very broad general rule falters when it is applied to the conditions of modern day urban apartment living, particularly in the circumstances of this case. The rationale of the general rule exonerating a third party from any duty to protect another from a criminal attack has no applicability to the landlord-tenant relationship in multiple dwelling houses. The landlord is no insurer of his tenants' safety, but he certainly is no bystander. And where, as here, the landlord has notice of repeated criminal assaults and robberies, has notice that these crimes occurred in the portion of the premises exclusively within his control, has every reason to expect like crimes to happen again, and has the exclusive power to take preventive action, it does not seem unfair to place upon the landlord a duty to take those steps which are within his power to minimize the predictable risk to his tenants.

        27

        This court has recently had occasion to review landlord-tenant law as applied to multiple family urban dwellings. In Javins v. First National Realty Corporation,[7] the traditional analysis of a lease as being a conveyance of an interest in land — with all the medieval connotations this often brings — was reappraised, and found lacking in several respects. This court noted that the value of the lease to the modern apartment dweller is that it gives him "a well known package of goods and services — a package which includes not merely walls and ceilings, but also adequate heat, light and ventilation, serviceable plumbing facilities, secure windows and doors, proper sanitation, and proper maintenance."[8] It does not give him the land itself, and to the tenant as a practical matter this is supremely [482] unimportant. Speaking for the court, Judge Wright then went on to state, "In our judgment the trend toward treating leases as contracts is wise and well considered. Our holding in this case reflects a belief that leases of urban dwelling units should be interpreted and construed like any other contract."[9]

        28

        Treating the modern day urban lease as a contract, this court in Javins, supra, recognized, among other things, that repair of the leased premises in a multiple dwelling unit may require access to equipment in areas in the control of the landlord, and skills which no urban tenant possesses. Accordingly, this court delineated the landlord's duty to repair as including continued maintenance of the rented apartment throughout the term of the lease, rightfully placing the duty to maintain the premises upon the party to the lease contract having the capacity to do so, based upon an implied warranty of habitability.[10]

        29

        In the case at bar we place the duty of taking protective measures guarding the entire premises and the areas peculiarly under the landlord's control against the perpetration of criminal acts upon the landlord, the party to the lease contract who has the effective capacity to perform these necessary acts.

        30

        As a footnote to Javins, supra, Judge Wright, in clearing away some of the legal underbrush from medieval common law obscuring the modern landlord-tenant relationship, referred to an innkeeper's liability in comparison with that of the landlord to his tenant. "Even the old common law courts responded with a different rule for a landlord-tenant relationship which did not conform to the model of the usual agrarian lease. Much more substantial obligations were placed upon the keepers of inns (the only multiple dwelling houses known to the common law)."

        31

        Specifically, innkeepers have been held liable for assaults which have been committed upon their guests by third parties, if they have breached a duty which is imposed by reason of the innkeeper-guest relationship. By this duty, the innkeeper is generally bound to exercise reasonable care to protect the guest from abuse or molestation from third parties, be they innkeeper's employees, fellow guests, or intruders, if the attack could, or in the exercise of reasonable care, should have been anticipated.[11]

        32

        Liability in the innkeeper-guest relationship is based as a matter of law either upon the innkeeper's supervision, care, or control of the premises,[12] or by reason of a contract which some courts have implied from the entrustment by the guest of his personal comfort and safety to the innkeeper. In the latter analysis, the contract is held to give the guest the right to expect a standard of treatment at the hands of the innkeeper which includes an obligation on the part of the latter to exercise reasonable care in protecting the guest.[13]

        33

        Other relationships in which similar duties have been imposed include landowner-invitee, businessman-patron, employer-employee, [483] school district-pupil, hospital-patient, and carrier-passenger.[14] In all, the theory of liability is essentially the same: that since the ability of one of the parties to provide for his own protection has been limited in some way by his submission to the control of the other, a duty should be imposed upon the one possessing control (and thus the power to act) to take reasonable precautions to protect the other one from assaults by third parties which, at least, could reasonably have been anticipated. However, there is no liability normally imposed upon the one having the power to act if the violence is sudden and unexpected provided that the source of the violence is not an employee of the one in control.[15]

        34

        We are aware of various cases in other jurisdictions following a different line of reasoning, conceiving of the landlord and tenant relationship along more traditional common law lines, and on varying fact situations reaching a different result from that we reach here. Typical of these is a much cited (although only a 4-3) decision of the Supreme Court of New Jersey, Goldberg v. Housing Authority of Newark, supra relied on by appellee landlord here. There the court said:

        35
        Everyone can foresee the commission of crime virtually anywhere and at any time. If foreseeability itself gave rise to a duty to provide "police" protection for others, every residential curtilage, every shop, every store, every manufacturing plant would have to be patrolled by the private arm of the owner. And since hijacking and attack upon occupants of motor vehicles are also foreseeable, it would be the duty of every motorist to provide armed protection for his passengers and the property of others. Of course, none of this is at all palatable.[16]
        36

        This language seems to indicate that the court was using the word foreseeable interchangeably with the word possible. In that context, the statement is quite correct. It would be folly to impose liability for mere possibilities. But we must reach the question of liability for attacks which are foreseeable in the sense that they are probable and predictable. Thus, the United States Supreme Court, in Lillie v. Thompson[17] encountered no difficulty in finding that the defendant-employer was liable to the employee because it "was aware of conditions which created a likelihood" of criminal attack.

        37

        In the instant case, the landlord had notice, both actual and constructive, that the tenants were being subjected to crimes against their persons and their property in and from the common hallways. For the period just prior to the time of the assault upon appellant Kline the record contains unrefuted evidence that the apartment building was undergoing a rising wave of crime. Under these conditions, we can only conclude that the landlord here "was aware of conditions which created a likelihood" (actually, almost a certainty) that further criminal attacks upon tenants would occur.

        38

        Upon consideration of all pertinent factors, we find that there is a duty of protection owed by the landlord to the tenant in an urban multiple unit apartment dwelling.

        39

        Summarizing our analysis, we find that this duty of protection arises, first of all, from the logic of the situation itself. If we were answering without the benefit of any prior precedent the issue as posed [484] by the appellee landlord here, "whether a duty should be placed on a landlord to take steps to protect tenants from foreseeable criminal acts committed by third parties," we should have no hesitancy in answering it affirmatively, at least on the basis of the facts of this case.

        40

        As between tenant and landlord, the landlord is the only one in the position to take the necessary acts of protection required. He is not an insurer, but he is obligated to minimize the risk to his tenants. Not only as between landlord and tenant is the landlord best equipped to guard against the predictable risk of intruders, but even as between landlord and the police power of government, the landlord is in the best position to take the necessary protective measures. Municipal police cannot patrol the entryways and the hallways, the garages and the basements of private multiple unit apartment dwellings. They are neither equipped, manned, nor empowered to do so. In the area of the predictable risk which materialized in this case, only the landlord could have taken measures which might have prevented the injuries suffered by appellant.

        41

        We note that in the fight against crime the police are not expected to do it all;[18] every segment of society has obligations to aid in law enforcement and to minimize the opportunities for crime. The average citizen is ceaselessly warned to remove keys from automobiles and, in this jurisdiction, may be liable in tort for any injury caused in the operation of his car by a thief if he fails to do so, notwithstanding the intervening criminal act of the thief, a third party. Gaither v. Myers, 131 U.S.App.D.C. 216, 404 F.2d 216 (1968). In addition, auto manufacturers are persuaded to install special locking devices and buzzer alarms, and real estate developers, residential communities, and industrial areas are asked to install especially bright lights to deter the criminally inclined. It is only just that the obligations of landlords in their sphere be acknowledged and enforced.[19]

        42

        [485] Secondly, on the rationale of this court in Levine v. Katz, Kendall v. Gore Properties, and Javins v. First National Realty Corporation, supra, there is implied in the contract between landlord and tenant an obligation on the landlord to provide those protective measures which are within his reasonable capacity. Here the protective measures which were in effect in October 1959 when appellant first signed a lease were drastically reduced. She continued after the expiration of the first term of the lease on a month to month tenancy. As this court pointed out in Javins, supra, "Since the lessees continue to pay the same rent, they were entitled to expect that the landlord would continue to keep the premises in their beginning condition during the lease term. It is precisely such expectations that the law now recognizes as deserving of formal, legal protection."[20]

        43

        Thirdly, if we reach back to seek the precedents of common law, on the question of whether there exists or does not exist a duty on the owner of the premises to provide protection against criminal acts by third parties, the most analogous relationship to that of the modern day urban apartment house dweller is not that of a landlord and tenant, but that of innkeeper and guest. We can also consider other relationships, cited above, in which an analogous duty has been found to exist.

        44
        IV
        45

        We now turn to the standard of care which should be applied in judging if the landlord has fulfilled his duty of protection to the tenant. Although in many cases the language speaks as if the standard of care itself varies, in the last analysis the standard of care is the same — reasonable care in all the circumstances.[21] [486] The specific measures to achieve this standard vary with the individual circumstances. It may be impossible to describe in detail for all situations of landlord-tenant relationships, and evidence of custom amongst landlords of the same class of building may play a significant role in determining if the standard has been met.

        46

        In the case at bar, appellant's repeated efforts to introduce evidence as to the standard of protection commonly provided in apartment buildings of the same character and class as 1500 Massachusetts Avenue at the time of the assault upon Miss Kline were invariably frustrated by the objections of opposing counsel and the impatience of the trial judge. At one point during appellant's futile attempts, the judge commented with respect to the degree of proof required to show a custom: "I think the old proverb that one swallow does not make a summer applies. If you can get 100 swallows, you say this must be summertime."

        47

        Later, but still during appellant's efforts on this point, the judge commented to opposing counsel,

        48
        [M]ay I remind you that it is very dangerous to win a case by excluding the other side's testimony because the Court of Appeals might say that testimony should have been admitted even though you might have won the case with the testimony in.
        49

        Appellant then attempted to offer evidence of individual apartment houses with which she was familiar. The trial judge became impatient with the swallow by swallow approach, and needled by opposing counsel's objections, disregarded his own admonition and cut short appellant's efforts in this direction. The record as to custom is thus unsatisfactory, but its deficiencies are directly chargeable to defendant's counsel and the trial judge, not appellant.

        50

        We therefore hold in this case that the applicable standard of care in providing protection for the tenant is that standard which this landlord himself was employing in October 1959 when the appellant became a resident on the premises at 1500 Massachusetts Avenue. The tenant was led to expect that she could rely upon this degree of protection. While we do not say that the precise measures for security which were then in vogue should have been kept up (e.g., the number of people at the main entrances might have been reduced if a tenant-controlled intercom-automatic latch system had been installed in the common entryways),[22] we do hold that the same relative degree of security should have been maintained.

        51

        The appellant tenant was entitled to performance by the landlord measured by this standard of protection whether the landlord's obligation be viewed as grounded in contract or in tort. As we have pointed out, this standard of protection was implied as an obligation of the lease contract from the beginning. Likewise, on a tort basis, this standard of protection may be taken as that commonly provided in apartments of this character and type in this community, and this is a reasonable standard of care on which to judge the conduct of the landlord here.[23]

        52
        V
        53

        Given this duty of protection, and the standard of care as defined, it is clear [487] that the appellee landlord breached its duty toward the appellant tenant here.[24] The risk of criminal assault and robbery on any tenant was clearly predictable, a risk of which the appellee landlord had specific notice, a risk which became reality with increasing frequency, and this risk materialized on the very premises peculiarly under the control, and therefore the protection, of the landlord to the injury of the appellant tenant. The question then for the District Court becomes one of damages only. To us the liability is clear.

        54

        Having said this, it would be well to state what is not said by this decision. We do not hold that the landlord is by any means an insurer of the safety of his tenants. His duty is to take those measures of protection which are within his power and capacity to take, and which can reasonably be expected to mitigate the risk of intruders assaulting and robbing tenants. The landlord is not expected to provide protection commonly owed by a municipal police department; but as illustrated in this case, he is obligated to protect those parts of his premises which are not usually subject to periodic patrol and inspection by the municipal police. We do not say that every multiple unit apartment house in the District of Columbia should have those same measures of protection which 1500 Massachusetts Avenue enjoyed in 1959, nor do we say that 1500 Massachusetts [488] Avenue should have precisely those same measures in effect at the present time. Alternative and more up-to-date methods may be equally or even more effective.

        55

        Granted, the discharge of this duty of protection by landlords will cause, in many instances, the expenditure of large sums for additional equipment and services, and granted, the cost will be ultimately passed on to the tenant in the form of increased rents. This prospect, in itself, however, is no deterrent to our acknowledging and giving force to the duty, since without protection the tenant already pays in losses from theft, physical assault and increased insurance premiums.

        56

        The landlord is entirely justified in passing on the cost of increased protective measures to his tenants, but the rationale of compelling the landlord to do it in the first place is that he is the only one who is in a position to take the necessary protective measures for overall protection of the premises, which he owns in whole and rents in part to individual tenants.

        57

        Reversed and remanded to the District Court for the determination of damages.

        58
        MacKINNON, Circuit Judge (dissenting):
        59

        I respectfully dissent from the panel decision that the plaintiff has proved liability as a matter of law. My inability to join in that disposition of the case is based primarily in my disagreement as to what facts were proved at the trial of that issue by the court without a jury. In my view the panel opinion errs by overstating the facts which might be construed as being favorable to appellant and by failing to recognize gross deficiencies in appellant's proof, thereby applying a more strict standard of responsibility to the landlord than the opinion actually states to be the law.

        60

        One difficulty here is that the trial court sitting without a jury held as a matter of law that there was no rule requiring the operator of the apartment building to use due care to exclude intruders by locking doors or posting doormen at entrances so as to protect tenants against crimes committed by intruders and others. It never considered whether the facts proved liability if the duty did exist. Against such a procedural background the panel opinion here comes to a different conclusion on the duty owed by the landlord to its tenants and then proceeds to find defendant liable on the facts as a matter of law. This necessarily involves a de novo consideration of the facts on a cold record and subjects the result to all the imperfections inherent in any decision arrived at under such handicaps. Here, those handicaps are magnified by the fact that the case was tried to the court without a jury and this necessarily had some tendency to steer the facts toward the issues that became uppermost in the court's mind as the case progressed and away from the issues upon which the court now reverses the trial court. The result in my view is a record that cannot support the panel decision.

        61

        The central issue here is what are the obligations incident to a landlord-tenant relationship at 1500 Massachusetts Avenue, N.W., near downtown Washington. Involved is a large building of 585 units composed of a combination of business offices and apartments on the first floor and the next level and of residential apartments above.[1]

        62

        [489] Central to the conclusion of the panel opinion is its frequent assertion, directly and inferentially stated, that numerous "assaults and robberies" had been occurring in the hallways of the building and hence "the risk of criminal assault and robbery on a tenant in the common hallways of the building was thus entirely predictable. * * *" (Emphasis added). In support of this conclusion the opinion states that "the same risk had been occurring with increasing frequency over a period of several months immediately prior to the incident giving rise to this case. * * *" (Emphasis added) and refers to 20 police reports of alleged offenses which had occurred in the building in the first ten months of 1966. But an examination of all 20 of these reports indicates that only one of them involved an assault and robbery. The rest were chiefly thefts. So the panel opinion is incorrect in basing its conclusion on the allegation that the landlord had "notice of repeated criminal assaults and robberies."[2] (Emphasis added.) The sole prior instance of an assault and robbery occurred on September 6, 1966 at 8:10 P.M. in front of apartment #125 involving one Leona Sullivan. It was attempted by two men who fled when another tenant came out of an adjoining apartment. It seems elementary that one solitary instance of an assault and robbery is an insufficient base to support a finding that assaults and robberies are a "predictable risk" from which the landlord would have "every reason to expect like crimes to happen again." (Emphasis added.) One swallow just does not make a summer. Assaults of this character are not predictable from clandestine thefts. It is accordingly my conclusion that the panel opinion concludes too much from too little.

        63

        Also, in my view the record is deficient on the matter of notice to the landlord of any assaults. The landlord had notice of some thefts (inaccurately sometimes referred to as robberies) but the record does not support any notice of any assault. A stipulation as to the offenses only went to the fact that they were committed in the building, not that the landlord had notice of all of them. He did admit notice of some of them but there is no proof that the landlord had notice of the assault committed in the building upon Leona Sullivan. This was the only prior assault committed on the premises. Proof of notice was central to appellant's case and the absence of proof of notice I consider to be fatal. I find no proof the appellee had actual notice of such fact. As for constructive notice, that could have been proved by showing the knowledge of some of the employees, which was not done. Clearly, knowledge of some offenses by appellant was not notice to appellee (App.54). Neither were requests for improved security.

        64

        The evidence introduced by the plaintiff is also deficient in my opinion in not proving that the alleged negligence was the proximate cause of the assault or that it contributed to it in any way. Plaintiff's evidence did not negate that it was a tenant, guest or person properly on the property who committed the offense, and while the panel opinion throughout asserts that an "intruder" committed the offense, there is no proof of that fact. So plaintiff's evidence failed to prove a nexus between the alleged deficiencies of the appellee and the cause of any damage to appellant.

        65

        The panel opinion also fails to recognize that 1500 Massachusetts Avenue is not a luxury type apartment, but instead is a combination office building and apartment building with some commerical [490] and professional offices interspersed with apartments located on the ground and second floor of the building (where subject offense occurred).[3]

        66

        At the trial the court and counsel took frequent notice of well known factors affecting the quality of the accommodations in this and other areas of the city and of their effect on 1500 Massachusetts Avenue. It was recognized that Washington is a crime ridden city,[4] that the area around 1500 Massachusetts Avenue in 1966 was different from areas on Connecticut and Wisconsin Avenues where "maybe the crime wave had not yet extended" (App.91) and that those "down in the center of town * * * were put on rather quick and active notice" of the crime wave. (App.92). In fact this thesis was central to appellant's case and it was so argued (App.105). All this indicated that the character of the surrounding area had been deteriorating, a fact of which the appellant was well aware as her testimony indicated she had knowledge of increasing crime in the area, that "as the years went by they were putting more and more offices into the building" and reducing the personnel services to tenants.

        67

        Obviously since a number of business offices occupied the lower floors, the fortress type security precautions the panel opinion finds to be required would be wholly out of the question because such offices require free public access. The degree of protection appellant seeks could only be afforded by the equivalent of policemen patrolling the corridors which even if it were practical for the upper apartment areas would be impractical for the floors housing business offices where this assault occurred.

        68

        The panel opinion attempts to liken the law involving this combination office-apartment building to the law relating to hotels and innkeepers,[5] but even with respect to hotels the law recognizes that the reasonable care which an innkeeper must exercise for the safety and comfort of his guests varies with the grade and quality of the accommodation offered by the hotel.[6] The panel cites the note in 70 A.L.R.2d 621 (1960) in support of its claim. That note revolves around a Minnesota case deciding that the operator of a beer establishment owes a duty to its patrons to exercise reasonable care to protect them from injury at the hands of an intoxicated patron on the premises. Such law has no application to the facts here. The A.L.R. note cited by the panel does make minor reference to hotels and assault and battery but the cases discussed therein give little or no support to the thesis of negligence advanced by the panel opinion. Kingen v. Weyant, 148 Cal.App.2d 656, 307 P.2d 369 (1957) is cited for the principle that an innkeeper's duty is limited to the exercise of reasonable care and he is "liable only when he was negligent in receiving or harboring guests of known violent or vicious propensities." (Emphasis added). Annot., 70 A.L.R.2d, supra at 646. Gurren v. Casperson, 147 Wash. 257, 265 P. 472 (1928) is a similar case holding that a guest in a hotel assaulted by another guest who was intoxicated, after the guest had expressly warned the landlord and requested protection from this specific person, may recover his damages from the hotel owner. Fortney v. Hotel Rancroft, 5 Ill.App.2d 327, 125 N.E.2d 544 (1955) is another case described in the note. Therein, a new trial was ordered to determine the hotel's responsibility where an intruder, found in the guest's room when he returned after being out several hours, struck the guest and caused the loss of an eye. At issue was how the intruder had gained admission [491] to the room with the key in the possession of the night clerk and without being noticed by the night clerk. These cases obviously have little or no application here.

        69

        Actually the obligation of innkeepers toward their guests is the exercise of reasonable care for their safety.[7] The present status of the law in this respect is well stated in Coca v. Arceo, 71 N.M. 186, 376 P.2d 970, 973 (1962):

        70

        Naturally, an innkeeper is not and cannot be an insurer of a guest or patron against personal injuries inflicted by another person on the premises, other than his servants or agents. Nevertheless, the proprietor of a place of business who holds it out to the public for entry for his business purposes, is subject to liability to guests who are upon the premises and who are injured by the harmful acts of third persons if, by the exercise of reasonable care, the proprietor could have discovered that such acts were being done or about to be done, and could have protected against the injury by controlling the conduct of the other patron. 2 Restatement, Torts, § 348 (1934 ed.); Central Theatres v. Wilkinson, 1944, 154 Fla. 589, 18 So.2d 755; Hill v. Merrick, 1934, 147 Or. 244, 31 P.2d 663; 29 Am.Jur. 50, Innkeepers, § 62; Rawson v. Massachusetts Operating Co., 1952, 328 Mass. 558, 105 N. E.2d 220, 29 A.L.R.2d 907; Gartner v. Lombard Bros. (3d Cir. 1952), 197 F.2d 53.

        Illustrative of the weight of authority on this duty of care is Peck v. Gerber, 1936, 154 Or. 126, 59 P.2d 675, 106 A.L.R. 996, in which the court stated:

        A guest or patron of such an establishment has a right to rely on the belief that he is in an orderly house and that the operator, personally or by his delegated representative, is exercising reasonable care to the end that the doings in the house shall be orderly.

        See also Gurren v. Casperson, 1928, 147 Wash. 257, 265 P. 472; Reilly v. 180 Club, Inc., 1951, 14 N.J.Super. 420, 82 A.2d 210. In addition, there are extensive annotations (106 A.L.R. 1003, and 70 A.L.R.2d 628, at 645). (Emphasis added).

        71

        The italicized portion of the quotation is indicative of the true holding of these cases with respect to innkeepers. It is that the landlord is liable if by the exercise of reasonable care he could have discovered that the offensive acts were being done or were about to be done and he could have protected against the injury by controlling the offender and failed to do so. The predictability of the offensive acts in the cited cases is much more immediate than is here present. Actually, the holding in the panel opinion extends the rule applicable to innkeepers to inordinate lengths and in my view to an unreasonable extent based as it is here upon a single assault and robbery over two months before.

        72

        Another deficiency I find in appellant's case is that she failed to prove the prevailing security standard for similar type apartments in the community at the time. This is another fatal defect in her proof. The panel opinion attempts to gloss over this deficiency by saying that it was caused by appellee's objections to the evidence and by the impatience of the judge. But the transcript indicates (App.55-62) that the proffered testimony was improper, largely hearsay, based on an insufficient foundation and that appellant's lawyer, after being helpfully advised by the court as to the proper procedure and the proper type of witnesses to prove such facts purposely waived any right to introduce such evidence when he stated, "I do not think it [the evidence of the practice in the area] is that material to the issue here, Your Honor." Also, the appellant who was her only witness on the point indicated that she only had personal knowledge of the practices at one other apartment at the time in 1966 when this assault occurred, [492] and that was obviously insufficient to prove the necessary standard prevailing in the area. The court also stated, "I will allow the question" as to the practice in the building where appellant was then residing and she so testified as to this single location; but that was obviously insufficient to prove the prevailing standard in the area. So appellant's case is deficient in this vital respect since the absence of any evidence (or proffer thereof) is not corrected by trying to blame the defendant and the court for not admitting what was obviously improper (hearsay) evidence. A negligence case must still be based on some evidence or proffer thereof.

        73

        As for the claim that appellant was led to believe she would get the same standard of protection in 1966 that was furnished in 1959, there is obviously nothing to this point. She was not led to expect that. She personally observed the changes which occurred in this respect. They were obvious to her each day of her life. And since her original lease had terminated and her tenancy in 1966 was on a month to month basis, whatever contract existed was created at the beginning of the month and since there was no evidence of any alteration in the security precautions during the current month, there is no basis for any damage claim based on contract.

        74

        The panel opinion is an excellent argument for a high degree of security in apartments and many of its contentions have considerable weight to them but in my opinion they overstate the security that can reasonably be afforded. The hysteria of apartment dwellers in an inner city plagued with crime[8] is understandable but they are not any more exposed there than they are on the streets or in office buildings and they cannot expect the landlord to furnish the equivalent of police protection that is not available from the duly constituted government in the locality.[9] In my opinion the decision in Goldberg v. Housing Authority of Newark, 38 N.J. 578, 186 A.2d 291, 10 A.L.R.2d 595 (1962) answers all appellant's arguments. It is just too much, absent a contractual agreement, to require or expect a combination office-apartment building such as is involved here to provide police patrol protection or its equivalent in the block-long, well-lighted passageways. Yet nothing short of that will meet the second guessing standard of protection the panel opinion practically directs. If tenants expect such protection, they can move to apartments where it is available and presumably [493] pay a higher rental, but it is a mistake in my judgment to hold an office-apartment building to such a requirement when the tenant knew for years that such protection was not being afforded.

        75

        In its overzealous attempt to assist the apartment dweller, the panel opinion is forcing a contrary result. The panel opinion calls for "protection" of the tenant by the landlord without describing the degree thereof. The stated standard is thus vague, but in the light of the facts of this case (see footnote 2 relying upon plaintiff's allegation that appellee "failed to hire sufficient number of guards"), it is an extremely high standard that borders on insuring tenants that the corridors of office-apartment buildings (and hence many apartment buildings) will not be used for the commission of criminal offenses. Owners of apartments in their own self interest will be required to view this standard, particularly in light of our jury trial practices, as being incapable of assured compliance and thus be forced to contract against such unreasonable liability (both as to character and amount) by contracting for exculpatory provisions in leases.[10] Thus tenants will get less instead of more protection and the panel opinion by imposing an unreasonable standard in this case is not rendering any real service to reasonable landlord-tenant relations.

        76

        Finally, I find absolutely no basis for the panel to conclude on the record below that negligence has been proved as a matter of law and to order a trial on the question of damages only. If the court wanted to absolve appellant from responsibility for his failure to produce competent evidence in the trial of the case the most that it could properly do, in my opinion, would be to remand the entire case for a new trial on the new rules of law here espoused for the first time. In such a trial appellant would also be required to introduce some evidence to overcome the rule of law that a private person does not owe a duty to protect another person from a criminal attack by a third person unless such attack was both foreseeable and arose from the private person's negligent conduct.[11]

        77

        It is my conclusion that appellant did not sustain her burden of proof that the [494] owner of the apartment building failed to exercise reasonable care and I would affirm the decision of the very distinguished and learned trial judge. Accordingly, I dissent.

        78

        [1] Miss Kline testified that she had initially moved into the building not only because of its central location, but also because she was interested in security, and had been impressed by the precautions taken at the main entrance.

        79

        [2] At trial, the allegations of paragraph 8 of the Complaint — except as they related to the question of notice to the landlord — were stipulated as true. Paragraph 8 reads as follows:

        80

        8. Plaintiff says unto the Court that prior to this assault upon your plaintiff the defendants had been on notice of a series of assaults, robberies and other criminal offenses being perpetrated upon its tenants, and yet said defendants while on notice of this dangerous condition negligently failed to hire a sufficient number of guards to impose any of the normal security requirements that in the exercise of due care they owed to plaintiff in her capacity as a tenant, when said defendants were on actual notice of complaints filed by other tenants prior to the assault on your plaintiff, said complaints occurring on the following dates and involving the following apartments:

        (citing 25 individual instances).

        81

        (Emphasis added.)

        82

        During trial, when plaintiff's counsel attempted to pursue the question of the frequency of assaults or other crimes with his witness, the court cut off his examination, since it felt that the point had already been conceded. Vis, the following:

        83

        Q. Now in your talks with Miss Bloom were you aware between January of 1966 and November of 1966 when you were assaulted of any other assaults or crimes within this apartment house other than what you have already testified to about police cars being present?

        A. It is hard to pin them down to the specific date but there were so many happening. My girl friend's apartment was broken into, five of them within an hour. I don't know what date that was.

        Q. I am not asking for dates. I am asking were you generally aware of offenses and crimes being committed in this apartment complex between January —

        The Court: You allege that in Paragraph 8 of your complaint and that was conceded. (Emphasis added.)

        Mr. Ahern: I stand corrected, Your Honor.

        84

        We also note that on brief, and at oral argument, 1500 Massachusetts Avenue never challenged the assertions of the appellant regarding the frequency of assaults and other crimes being perpetrated against the tenants on their premises. With the record in this posture, we can only conclude that what was alleged and stipulated was what actually occurred.

        85

        [3] Appellant Kline testified that one could hardly fail to notice the police cars about the building after each reported crime. She further testified that in 1966, before her assault, she herself had discussed the crime situation with Miss Bloom, the landlord's agent at the premises, and had asked her "why they didn't do something about securing the building". Moreover, the record contains twenty police reports of crimes occurring in the building in the year 1966, showing that in several instances these crimes were an almost daily occurrence. Such reports in themselves constitute contructive notice to the landlord.

        86

        [4] The plaintiff testified that she had returned to her apartment after leaving work at 10:00 PM. We are in agreement with the trial court that her assailant was an intruder. See the court's comment in note 24, infra.

        87

        That such intruders did enter apartments from the hallways is substantiated by the Police reports which appear in the Record. In a number of instances doors are described as having been forced; in another instance, a tenant surprised a man standing in his front hallway; and there are still more instances of female tenants being awakened in the early morning hours to find an intruder entering their front doors. We also take notice of the fact that this apartment building is of the high rise type, with no easily accessible means of entry on the floors above the street level except by the hallways.

        88

        [5] Kendall v. Gore Properties, 98 U.S.App. D.C. 378, 236 F.2d 673 (1956).

        89

        [6] Applebaum v. Kidwell, 56 App.D.C. 311, 12 F.2d 846 (1926); Goldberg v. Housing Authority of Newark, 38 N.J. 578, 186 A.2d 291, 10 A.L.R.3d 595 (1962); but see Ramsay v. Morrissette, D.C.App., 252 A.2d 509 (1969) and Kendall v. Gore Properties, supra, note 5.

        90

        [7] 138 U.S.App.D.C. 369, 428 F.2d 1071 (1970).

        91

        [8] Id. 138 U.S.App.D.C. at 372, 428 F.2d at 1074, (emphasis added).

        92

        [9] Id. 138 U.S.App.D.C. at 373, 428 F.2d at 1075.

        93

        [10] The landlord's duty to repair was held to include the leased premises in Whetzel v. Jess Fisher Management Co., 108 U.S.App.D.C. 385, 282 F.2d 943 (1960). In that case, we held that the Housing Regulations altered the old common law rule, and further, that the injured tenant had a cause of action in tort against the landlord for his failure to discharge his duty to repair the premises. Our recent decision in Kanelos v. Kettler, 132 U.S.App.D.C. 133, 406 F.2d 951 (1968), reaffirms the position taken in Whetzel.

        94

        [11] An excellent discussion of the innkeeper's duty to his guest, including citations to relevant case material, is found in: Annot., 70 A.L.R.2d 621 (1960).

        95

        [12] Gurren v. Casperon, 147 Wash. 257, 265 P. 472 (1928). See also Fortney v. Hotel Rancroft, Inc., 5 Ill.App.2d 327, 125 N.E.2d 544 (1955).

        96

        [13] McKee v. Sheraton-Russell, Inc., 268 F.2d 669 (1959) (applying New York law).

        97

        [14] Cases involving these relationships are collected and summarized in Goldberg v. Housing Authority of Newark, 38 N.J. 578, 186 A.2d 291, 10 A.L.R.3d 595 (1962).

        98

        [15] See: Central of Georgia R. Co. v. Hopkins, 18 Ga.App. 230, 89 S.E. 186 (1916); Martincich v. Guardian Cab Co., 10 N.Y.S.2d 308 (1938, City Ct. N.Y.); and Callender v. Wilson, La.App., 162 So.2d 203, writ refused 246 La. 351, 164 So.2d 352 (1964).

        99

        [16] 38 N.J. 578, 186 A.2d 291, 293, 10 A.L.R.3d 595, 601 (1962).

        100

        [17] 332 U.S. 459, 68 S.Ct. 140, 92 L.Ed. 73 (1947).

        101

        [18] In this regard, we observe that in some of the relationships in which a duty of protection has been found, the courts display no compunction in requiring the use of security guards or special police, where their use is reasonably necessary to see to the safety of those under the control of another, Thus, in Dilley v. Baltimore Transit Co., 183 Md. 557, 39 A.2d 469 (1944), the court said:

        102

        Carriers are not required to furnish a police force sufficient to overcome all violence of other passengers or strangers, when such violence is not to be reasonably expected; but the carrier is required to funish sufficient police force to protect its passengers from the assaults or violence of other passengers or strangers which might reasonably be expected, and to see that its police perform their duty. (Emphasis supplied.)

        103

        See also Amoruso v. New York City Transit Authority, 12 A.D.2d 11, 207 N.Y.S.2d 855 (1960); and Dean v. Hotel Greenwich Corp., 21 Misc.2d 702, 193 N.Y.S.2d 712 (1959).

        104

        [19] In Kendall v. Gore Properties, supra, note 3, this court recognized that the obligation of the landlord to his tenant includes the duty to protect him against criminal acts of third parties. The District of Columbia Court of Appeals, noting this in Ramsay v. Morrissette, supra, said of the imposition of this duty on the landlord:

        105

        Such a duty was found in Kendall v. Gore Properties, 98 U.S.App.D.C. 378, 236 F.2d 673 (1956), where the landlord's employee, alleged to be of unsound mind, strangled to death a tenant whose apartment he was painting. The negligence in Kendall, however, was the failure to make any investigation whatever of the employee before hiring him to work, without supervision, in the apartment of a young woman, living alone. The court did say that the tenant, under her lease, paid both for shelter and protection. It said further:

        "We have heretofore made clear as to apartment houses, the reasons which underlie the landlord's duty under modern conditions and which, as to various hazards call for at least 'reasonable or ordinary care, which means reasonably safe conduct, but there is no sufficient reason for requiring less.' True, the landlord does not become a guarantor of the safety of his tenant. But, if he knows, or in the exercise of ordinary care ought to know, of a possibly dangerous situation and fails to take such steps as an ordinarily prudent person, in view of existing circumstances, would have exercised to avoid injury to his tenant, he may be liable. (citations omitted)"

        106

        The court also stressed that `particular conduct, depending upon circumstances, can raise an issue for the jury to decide in terms of negligence and proximate cause'. Id. at 384, 236 F.2d at 679. (Footnotes omitted)

        107

        The language that the District of Columbia Court of Appeals quoted from Kendall signals the extension of a rule theretofore applied only to injuries caused by defects or obstacles in areas under the landlord's control (see Levine v. Katz, supra), to criminal acts of third parties. By our decision today, we merely amplify and refine our reasoning in Kendall.

        108

        [20] Javins v. First National Realty Corp., supra, note 7, 138 U.S.App.D.C. 377, 428 F.2d 1079. With reference to some duties imposed by law upon the landlord for the benefit of the tenant, it may not be possible for landlords to contract out of their obligations. It has been held that a lease clause is invalid if it would insulate landlords "from the consequences of violations of their duties to the public under both the common law and the District of Columbia Building Code * * *." Tenants Council of Tiber Island — Carrolsburg Square v. DeFranceaux, 305 F. Supp. 560, 563 (D.C.D.C.1969).

        109

        [21] Kermarec v. Compagnie Generale, 358 U.S. 625, 631, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959); Hecht Co. v. Jacobsen, 86 U.S.App.D.C. 81, 83, 180 F.2d 13, 15 (1950).

        110

        To refer to only one factor as illustrative, we recognize that the obligations to which landlords of various types of property are held may well increase as the individual tenant's control over his own safety on the landlord's premises decreases; conversely, as the tenant's control over his own safety increases, the landlord's obligations should decrease. Possibly because of the great degree of control exercised by a carrier over a passenger, many courts have held carriers to the exercise of the greatest measure of care with respect to the safety of their passengers, and in some instances, have held carriers to have the liability of insurers. Yet when the passenger is injured at a terminal or station (where the passenger has more, and the carrier has less, control over the safety of his person), the obligations of the carrier are less. In this regard compare McPherson v. Tamiami Trail Tours, 383 F.2d 527 (5 Cir. 1967) with Neering v. Illinois Central Railway Co., 383 Ill. 366, 50 N.E.2d 497, conformed to 321 Ill.App. 625, 53 N.E.2d 271 (1943). See also Federal Insurance Company v. Colon, 392 F.2d 662, 665 (1968), where the U.S. Court of Appeals for the First Circuit, upon referring to the plaintiff's assertion that a public carrier owes its patrons the greatest measure of care, said:

        111

        [T]his applies only to passengers who are in the actual course of travel or who are boarding or alighting. The overwhelming majority rule is that it does not apply to the carrier's premises generally. * * * (citing cases)

        112

        For the imposition of more stringent obligations constituting a standard of reasonable care in the innkeeper-guest relationship, see Fortney v. Hotel Rancroft, Inc., 5 Ill.App.2d 327, 125 N.E.2d 544 (1955).

        113

        [22] See text at 478, supra.

        114

        [23] The record indicates that just prior to the poor people's campaign, the landlord caused an electric security system to be installed at the subject apartment building.

        115

        [24] In an apparent attempt to show that, regardless of the amount of care exercised, the landlord here could not possibly have prevented an assault such as that which had befallen the plaintiff, the following cross examination of Miss Kline was undertaken:

        116

        Q. Is it also correct that this apartment building also houses office apartments?

        A. As the years went by they were putting more and more offices into the building, yes, sir.

        Q. What type of offices would they be?

        A. Well, I understood they were supposed to be professional offices because I tried to get my name listed once.

        Q. Irrespective of whether you tried to get your name listed or not, did you observe the offices?

        A. Yes, I worked for some of them.

        Q. What type of organizations had their offices there?

        A. Manufacturing representatives; there was a lawyer's office, maybe two; there were some engineers; there were some tour salesmen. That is all I can think of right now.

        Q. So that there would be then in the course of a normal day clients going in and out of the lawyers' offices or customers going in and out of the other type offices, would that be correct?

        A. Yes.

        Q. And they would be able to walk in even if there was a doorman there?

        A. Yes.

        Q. And one would only speculate as to whether or not anyone could ever leave or not leave, isn't that also correct?

        A. What do you mean, speculate if one could leave or not leave?

        117

        To which the trial court commented:

        118

        THE COURT: Well, we assume the general public would come into any office building or in any big apartment house.

        * * * * *

        THE COURT: The point is though that an intruder who commits this kind of an assault is apt to act a little different from the rest of the public although it does not always follow, you never know. Of course an intruder is not likely to come in through a public entrance either.

        119

        To this we add our own comment that it is unlikely in any case that a patron of one of the businesses, even if disposed to criminal conduct, would have waited for five hours after the usual closing time to perpetrate his crime — especially one of a violent nature. Further, although it is not essential to our decision in this case, we point out that it is not at all clear that a landlord who permits a portion of his premises to be used for business purposes and the remainder for apartments would be free from liability to a tenant injured by the criminal act of a lingering patron of one of the businesses. If the risk of such injury is foreseeable, then the landlord may be liable for failing to take reasonable measures to protect his tenant from it.

        120

        We note parenthetically that no argument regarding any change in the character of the building or its tenants was pursued on appeal.

        121

        __________

        122

        [1] At oral argument in the trial court plaintiff's attorney pointed out that the building did not have tenants exclusively but also had law offices, some business offices and establishments and the public had a right to park in the garage and that all kinds of people came into the building because they had business there. Defense counsel also made the uncontested statement at oral argument in this court that the building "was at the time she rented and is now more than just an apartment house. There are business offices throughout at least on the first floor and I believe on the level above. * * * No matter how many guards you have people will be going into or can say they are going into, business offices." Plaintiff Kline lived on the "level above" the ground floor and at one time had requested defendant's permission to have her apartment listed as a professional office. She was a qualified public stenographer. It is concluded from the foregoing that some businesses were on the same floor as appellant's apartment outside of which the assault occurred.

        123

        [2] In this particular the panel opinion ignores the actual police reports to which the stipulation referred and which speak for themselves. They were all admitted in evidence and only one reported an assault; that on Leona Sullivan.

        124

        [3] See note 1 supra.

        125

        [4] The court remarked: "I think we ought to take for granted we live in a crime ridden city and that people are attacked on the street and in hallways of apartment houses and hallways of office buildings." (App. 71.)

        126

        [5] Actually the security precautions the majority finds appellant was entitled to would exceed the security precautions available in Washington hotels.

        127

        [6] McKee v. Sheraton-Russell, Inc., 268 F. 2d 669 (2d Cir. 1959); 40 Am.Jur.2d Hotels, Motels, etc. § 82 (1968).

        128

        [7] 40 Am.Jur.2d Hotels, Motels, etc. § 82 n. 16 (1968).

        129

        [8] This court is well aware of the high level of crime in various areas of Washington. About two-thirds of our cases on appeal presently involve criminal offenses. Also the daily newspapers are full of the details of various crimes. The Washington Post of June 19, 1970, p. B 5, stated: "Asleep in rooms, 5 guests robbed in downtown hotel." The story referred to three rooms on the ninth floor of the Statler Hilton Hotel, one of the most prestigious in the city. This is five times as many robberies as had occurred at 1500 Massachusetts Avenue prior to this case. Under the panel opinion, now the Statler Hilton Hotel would practically be required to patrol the upper hotel rooms. The Post news story also reported 21 daylight robberies, 4 assaults and 8 thefts, all of which occurred before 6 P.M. This is a fairly typical day in Washington.

        130

        [9] Plaintiff's complaint here is partly based on the claim that the landlord was required to maintain a reasonable number of guards. The allegation of the complaint alleged that appellee was negligent in not "taking reasonable precautions in the evening hours of maintaining a reasonable number of guards upon the premises so as to protect your plaintiff in her person and in her property." (Emphasis added.) To require apartment landlords to employ guards to protect tenants against criminal depredations would be very costly and raise many troublesome questions. How much training should they have? Should such guards be armed? What would be their liability and that of the landlord if they killed an alleged offender in the commission of a criminal act? When duly appointed and trained city policemen are subjected to grand jury indictment for killing criminals caught in the act, the liability and exposure of an apartment house guard and his landlord to criminal and civil process under similar circumstances could be very substantial.

        131

        [10] The parties contract on substantially an equal footing and since the panel opinion stresses the contractual base for its decision, it follows that the base could be altered by contract. See 38 Am.Jur. Negligence § 8 (1941). Certainly the added protection of a private police force is not a service that goes with every apartment building in a metropolitan area. Or in the alternative, the tenants could be given an option to pay the cost of private police protection which would include salary, training, equipment, liability insurance, protection devices, office space, etc., and if they declined the option the landlord would be absolved from any liability. The option in such case serves to put the parties artificially on the same level. 38 Am.Jur. Negligence § 8 n. 5.5 (1969), citing 175 A.L.R. 17.

        132

        Tenants Council v. DeFranceaux, 305 F.Supp. 560 (D.C.D.C.1969) is not to the contrary. It dealt with an exculpatory clause for swimming pool facilities which had been represented by the landlord to be available to prospective tenants without additional charge. Under such circumstances the District Court found the requirement that tenants agree to the exculpatory clause in order to gain the use of the pool facilities to be contrary to public policy and without consideration.

        133

        [11] See 38 Am.Jur. Negligence §§ 70, 71, pp. 726-729 (1941), and 2 Restatement of Torts 2d § 448 (1965) where the rule is stated as follows:

        134

        The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.

        135

        I fail to see that the conduct of the appellee created any temptation to third persons to commit criminal acts on the premises. What the panel talks about as risk in the building is nothing more than a reduction of the general risk that prevails in the community.

      • 9.1.3 Jacobsma v. Goldberg's Fashion Forum

        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.

        1
        303 N.E.2d 226
        2
        14 Ill.App.3d 710
        3
        Henry JACOBSMA, Plaintiff-Appellee,
        v.
        GOLDBERG'S FASHION FORUM, Defendant-Appellant.
        4
        No. 57176.
        5
        Appellate Court of Illinois, First District, First Division.
        6
        Sept. 24, 1973.
        7

        [14 Ill.App.3d 711] [303 N.E.2d 227] Medard M. Narko and James B. Sparrow, Chicago, for defendant-appellant.

        8

        Fred Lambruschi, Chicago, for plaintiff-appellee; Herbert P. Veldenz, Chicago, of counsel.

        9
        [303 N.E.2d 228] BURKE, Presiding Justice.
        10

        This is an appeal from a judgment in a personal injury action for damages suffered by the plaintiff when he attempted to stop a shoplifter who was running out of the defendant store. The case was tried before a jury, which rendered a verdict in favor of the plaintiff. The defendant appeals on the grounds that there was no breach of its duty to the plaintiff and that the introduction of prejudicial testimony and comment requires reversal.

        11

        On January 15, 1966, the plaintiff and his wife entered the defendant store in the Ford City shopping center. At a point about 20 feet inside the store, the plaintiff observed a man later identified as the floor manager, standing at the end of a straight aisle, about 75 feet from him. The manager shouted 'Stop thief' and pointed in the direction of the plaintiff. There was another man about 50 feet from the plaintiff, between him and the manager, running toward the plaintiff. The plaintiff [14 Ill.App.3d 712] pushed his wife aside and grabbed the running man. The two men fell to the floor, with the plaintiff landing on his left shoulder, underneath the other man. No one came to the assistance of the plaintiff while he struggled with the man. In the struggle some ladies' garments fell from under the man's coat. The man got up and ran out of the store. He was pursued unsuccessfully by the manager.

        12

        The plaintiff could not rise unassisted. He was helped to a back room, where he waited for an ambulance. When the plaintiff arrived at Christ Community Hospital, he was informed that he had dislocated his left shoulder and was admitted to the hospital. He was placed in a body cast in which he remained for about four weeks. Medical bills were introduced in evidence. Evidence of lost earnings was also introduced. The doctor who treated the plaintiff was deceased at the time of trial, but the plaintiff presented testimony of a medical expert as to the plaintiff's present condition.

        13

        In order to recover in an action for negligence, the plaintiff must establish that the defendant owed him a duty which was breached and that the breach was the proximate cause of injury to him. (Neering v. I.C.R.R. Co., 383 Ill. 366, 50 N.E.2d 497.) Our first inquiry is whether the defendant owed some duty of care to the plaintiff and, if so, the extent of that duty.

        14

        It is conceded that the plaintiff was a business invitee upon entering the clothing store. Thus, the defendant owed him a duty to exercise ordinary care for his safety. (Bogovich v. Schermer, 16 Ill.App.2d 197, 147 N.E.2d 711.) But his injury occurred because of his attempt to restrain the shoplifter, an activity outside the normal business invitation. The defendant contends that the plaintiff was at that point a volunteer to whom the defendant owed only the duty not to wilfully or wantonly cause him injury.

        15

        In refusing to instruct the jury on the issue of whether the plaintiff was a volunteer, the trial court determined that he was not a volunteer as a matter of law. Whether an invitee has lost that status is generally a question of fact for the jury. (Jones v. Granite City Steel Co., 104 Ill.App.2d 379, 244 N.E.2d 427.) But where all the facts and inferences therefrom lead to only one conclusion, the matter may be decided without recourse to a jury. (Johnson v. Shell Oil Co., 131 Ill.App.2d 1032, 264 N.E.2d 278.) The plaintiff's agent, the manager who called for help, testified that he had the authority to do so. Even if he did not have the express authority, this would be the kind of emergency in which such authority would be implied. (Lambert v. Senne Funeral Home, Inc., 343 Ill.App. 136, 98 N.E.2d 519.) That the call for help was an invitation to the plaintiff is also borne out by the record. [14 Ill.App.3d 713] The manager called 'Stop thief,' and his testimony indicates that this was a general call for assistance:

        16

        'Q. And did you as a matter of fact call and ask for assistance when this [303 N.E.2d 229] shoplifter started to run with the merchandise under his coat?

        A. If I recall, I called out to my girls to. I think the exact words were, 'Stop thief.'

        Q. Will, where were your girls?

        A. Throughout the store.

        Q. You mean you're telling us that you told the girls to stop the thief?

        A. No, I pursued him, but he had a good head start on me. And as a means of attracting attention, I yelled, 'Stop thief,' which means that anybody, any of my girls in the vicinity--perhaps the police if they used it, just--just struck me as being the proper thing to do.'

        17

        The fact that the manager also testified that he did not see the plaintiff at the time he called is immaterial, in view of the general nature of the cry, the fact that it was admittedly a call for assistance, and the fact that to the plaintiff it appeared that the manager was speaking directly to him. The physical positions of the three, the plaintiff, the shoplifter and the manager, who was pointing in the direction of the plaintiff, justified the plaintiff's conclusion that he was requested to assist in stopping the thief. This conclusion is further buttressed by the facts that the plaintiff was physically larger than the shoplifter and that the plaintiff was the only man other than the shoplifter and the manager in the store, which had few customers at the time. Finally, the plaintiff's purpose in attempting to restrain the shoplifter was to benefit the defendant, a purpose which has been found to be sufficient to sustain invitee status. (Augsburger v. Singer, 103 Ill.App.2d 12, 242 N.E.2d 436.) The court did not err, therefore, in refusing the instructions on volunteer status.

        18

        The defendant makes much of the fact that before the incident the plaintiff had not been in the store and could not have known of the manager's position with the defendant. Hence, the defendant concludes, the plaintiff could not have believed he was undertaking to assist the defendant. The facts, however, establish the plaintiff's basis for such a belief. The incident occurred in January, with the weather such that the plaintiff and his wife wore coats. The manager wore no coat. The manager was at the rear of the store behind a counter when the plaintiff first saw him. The plaintiff would not logically assume that the manager was a customer trying on clothes (to explain his being coatless), because [14 Ill.App.3d 714] the defendant sells ladies' clothes exclusively. Even with events moving as swiftly as they did, the plaintiff could reasonably believe that the manager had authority to request help of him in stopping the fleeing man.

        19

        Having determined that the plaintiff was not a volunteer as a matter of law, we are left with the question whether the defendant breached its duty of ordinary care for the plaintiff. It has been held that there is no breach of the duty of reasonable care owed to one lawfully on premises for injuries caused by the criminal acts of third persons, where there was no knowledge of previous incidents or special circumstances which would charge the owners with knowledge of the dangers and the duty to anticipate them. (O'Brien v. Colonial Village, Inc., 119 Ill.App.2d 105, 255 N.E.2d 205.) In the case before us, the defendant had actual knowledge through its sales staff that the shoplifter who caused the injury had three days previously attempted to steal clothing from the defendant. With the knowledge of this man's prior crime, the defendant became charged with the responsibility to protect its invitees from other illegal acts by him. Neering v. Illinois Central R.R. Co., 383 Ill. 366, 50 N.E.2d 497.

        20

        Whether that obligation was met was a question for the jury in this case. Their verdict in the plaintiff's favor is supported by the record. The defendant had no security force of its own. Ford City policemen patrolled all the stores in [303 N.E.2d 230] the shopping center at intervals, less frequently than the manager wished. The defendant had no security devices on the order of mirrors or alarm systems to thwart shoplifters. Although in this appeal an attempt was made to construe the manager's shout as a warning, the manager's testimony indicates it was a request for assistance. No other attempt to warn the plaintiff is alleged. On these facts the jury could and did find the defendant negligent. As this court has said, the exposure of another to an unreasonable risk of harm is the critical element in a charge of negligence. (Boyd v. Racine Currency Exchange, Inc., 8 Ill.App.3d 140, 289 N.E.2d 218.) The evidence in this case supports the jury's finding that such a risk was present here.

        21

        The defendant's next contention is that prejudicial testimony denied him a fair trial. We find no merit in the first argument of the defendant that testimony of the plaintiff's medical expert regarding the term 'subcoracoid subluxation' was prejudicial because it was taken from a paid bill presented by the plaintiff. As the trial court found, substantially all of the expert's testimony was based on X-rays taken of the plaintiff's shoulders shortly before trial. The expert testified that the impaired condition of the plaintiff's left shoulder could have been caused by a dislocation some years earlier. The trial judge prevented any potential [14 Ill.App.3d 715] prejudice when he instructed the jury to disregard any testimony concerning the disputed term.

        22

        The second argument concerns comments made in the opening statement of plaintiff's attorney that the defendant's agents had agreed to pay the plaintiff's medical bills when the plaintiff's wife called them from the hospital. The court later ruled inadmissible any such conversation on the ground that it constitued an offer of settlement. The defendant now argues that the opening statement thus prejudiced the defendant's case, as did a later reference to the person with whom the phone conversation took place. Regardless of whether the testimony was properly excluded, we find no prejudice resulting from the comments in question. There was no testimony as to the telephone conversation on which the plaintiff apparently relied for payment from the defendant. The jury was told that the attorneys' statements were not evidence in the case, and there is no indication that the verdict was influenced by the statements challenged.

        23

        The defendant's final argument under this contention is that the plaintiff's attorney's closing argument contained prejudicial statements. In particular, the defendant refers to comments by the attorney on the plaintiff's public-spirit and virtue as the motivation for his act. This is not the kind of inflammatory and prejudicial statement which we would find merits reversal. Bruske v. Arnold, 100 Ill.App.2d 428, 241 N.E.2d 191.

        24

        The evidence presented a fact issue as to the breach of defendant's duty to the plaintiff. Applying the rule of Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504, we hold that the trial court correctly submitted this issue to the jury and did not err in denying the defendant's post-trial motions.

        25

        For the reasons stated, the judgment is affirmed.

        26

        Judgment affirmed.

        27

        GOLDBERG and EGAN, JJ., concur.

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