Zittrain Torts Playlist Spring 2016 | Samantha Bates | January 18, 2016

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Zittrain Torts Playlist Spring 2016

Original Creator: Jonathan Zittrain Current Version: Samantha Bates Show/Hide
  1. 1 Show/Hide More Assault and Battery: Reconciling Harm with Culpability
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates

    What’s a tort? It’s a wrong that a court is prepared to recognize, usually in the form of ordering the transfer of money (“damages”) from the wrongdoer to the wronged. The court is usually alerted to wrong by the filing of a lawsuit: anyone can walk through the courthouse doors and, subject to the limits explored in civil procedure, call someone else (or, if a company, something) to account.

    The first section of our course deals with that group of torts known as intentional. We’ll review the spectrum of intent that marks the sometimes-fuzzy boundaries among wrongs that are done intentionally, those done merely “negligently,” and others in between, and also have a chance to think about what kinds of damages should be on the table once a wrong is established. What happens when an act that’s only a little bit wrongful, even while intentional, results in unexpectedly large harm?

    We’ll also discuss the sources that courts turn to in order to answer such questions. Rarely, in tort cases, are those sources the ones laypeople expect: statutes passed by legislatures. Without statutes to guide them, what are courts left with?

      1. 1.1.1 Show/Hide More Vosburg v. Putney--"The Schoolboy Kicker"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should defendants be liable for unforeseeable injuries?
        Notes:
        The plaintiff and defendant are schoolmates. Plaintiff kicked the defendant's leg in a classroom, during school hours. After the kick, the defendant's leg—which had nearly recovered from a prior injury—became inflamed. The plaintiff was likely unaware of the defendant's previous injury, and therefore unable to foresee the extraordinary harm the kick would inflict.
      2. 1.1.2 Show/Hide More Alcorn v. Mitchell--"The Angry Spitter"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should damages for battery encompass indignities as well as physical injuries? Should juries be able to assign extra damages for particularly malicious or bad-natured conduct?
        Notes:
        Defendant spat in plaintiff's face at the close of an earlier trial, in front of a large number of people. Plaintiff was awarded $1,000 ($17,980.86 in 2010 dollars). Defendant appeals the verdict as excessive.
      1. 1.2.1 Show/Hide More Picard v. Barry Pontiac-Buick, Inc.--"The Camera Toucher"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should intentional contact with an object attached to the plaintiff constitute battery? For the tort of assault, should we consider if defendant intended to cause apprehension in the plaintiff?
        Notes:
        Plaintiff received contradictory results from safety inspections conducted by defendant and another automobile service provider. When plaintiff attempted to photograph the defendant for a local news “troubleshooter” report, defendant touched the camera and protested the picture-taking.
      2. 1.2.2 Show/Hide More Garratt v. Dailey--"The Chair-Pulling Five Year Old"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should defendants be liable if they knowingly expose the plaintiff to a near certainty of harmful contact? If so, should liability still be assigned even if the defendant did not act for the purpose of hurting the plaintiff?
        Notes:
        As plaintiff prepared to sit, defendant—a five-year-old boy—pulled out the chair from beneath her. Plaintiff fell and fractured her hip. Defendant argued that he had no intent to hurt the plaintiff nor cause her to fall, and that he took the chair to seat himself on it and for no other purpose.
  2. 2 Show/Hide More Assault and Battery: Intent and Autonomy
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates

    In the absence of statutes that clearly delineate acceptable from unacceptable behavior – that’s the realm of criminal law, and still plenty complicated – tort law often requires a court to draw boundaries on the fly as individual cases come up. Here we look at a cluster of problems arising generally from situations in which society might say the wrongness of an act may be minimal or entirely lacking – yet a victim steps forward to earnestly claim that his or her wishes about bodily integrity have been disrespected.

    The rough and tumble of daily life – “the implied license of the playground” – allows some license for those who offend with physical contact, including against the especially sensitive. When does that license end, particularly if a plaintiff’s special sensitivities are known to a defendant? Are there any larger principles at work to help us resolve conflicts in this zone, or that at least capture the instincts that might find themselves in opposition?

        1. 2.1.1.1 Show/Hide More Wishnatsky v. Huey-- “The Overly-Sensitive Intruder”
          Original Creator: Jonathan Zittrain Current Version: Samantha Bates
          Should findings of offensive-contact-battery be based on a plaintiff’s level of sensitivity, or a more general standard?
        2. 2.1.1.3 Show/Hide More Letters Between Litigants
          Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        3. 2.1.1.4 Show/Hide More Crary's Affidavit
          Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      1. 2.1.2 Show/Hide More O'Brien v. Cunard--"The Silent Vaccine Objector"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should we expect actors to respect the inner wishes of others, even when those desires contradict—or at least fail to be reflected in—external behavior?
        Notes:
        Plaintiff stood in a vaccination line on a ship. When plaintiff reached the ship’s surgeon, she claimed to have been vaccinated before. However, because no vaccination mark was visible, the surgeon insisted that she be vaccinated again. Plaintiff voluntarily raised her arm to be vaccinated and took a ticket which certified her vaccination and avoid quarantine upon leaving the ship. Nevertheless, the plaintiff’s suit alleged that she did not consent to the vaccination.
      1. 2.2.1 Show/Hide More Leichtman v. WLW Jacor Communications, Inc.--"The Smoke in the Face Case"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should a smoker's license to freely blow his smoke be limited by the sensitivity of non-smokers?
        Notes:
        Plaintiff—a known anti-smoking advocate—was invited to appear on a radio talk show to talk about the harmful effects of smoking and breathing secondhand smoke. During the show, one of the hosts lit a cigar and repeatedly blew smoke directly into the plaintiff’s face.
      2. 2.2.2 Show/Hide More Werth v. Taylor--"The Blood-Transfusion-Refusing Jehovah's Witness"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should health care professionals be allowed to administer life-saving, emergency treatment when there is a possibility that the patient would have refused?
        Notes:
        Plaintiff, a Jehovah’s Witness, underwent severe bleeding following the birth of her twins. Despite knowing that plaintiff’s religious beliefs prohibited blood transfusions, defendant ordered a blood transfusion to avoid her death. Consent could not be obtained at the time from the plaintiff because she was under general anesthesia and her condition was rapidly deteriorating.
      1. 2.3.1 Show/Hide More Womack v. Eldridge--"The Distressing Accusation of Molestation"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should we hold people accountable for causing severe distress in others, even if no physical contact—or the threat thereof—was involved?
        Notes:
        The defendant deceitfully took plaintiff's photograph under the guise of conducting an interview with the plaintiff. The photograph was obtained on behalf of defendant's employer—an attorney—who then used the photograph as part of a client's defense in a sexual molestation case. Because the defense tactic implied the plaintiff was the actual molester, plaintiff was dragged into the client's ongoing trial despite lacking any real connection to the case. Plaintiff alleged extreme anxiety, loss of sleep, shock, and depression due to his unwarranted involvement in the case.
  3. 3 Show/Hide More False Imprisonment: Taking Charge of Others
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates

    Assault and battery are broad torts: they can be used to cover many different situations, perhaps including ones in which barriers or the threat of force are used to force someone to go where he or she doesn’t want to go, or to keep a person in one place without assent. Yet tort law has evolved a more specific tort to cover that particular set of situations: false imprisonment.

    What, if anything, does false imprisonment accomplish as a category that assault and battery cannot? What plausible situations could arise that would test a colloquial notion of what counts as false imprisonment, and how can we best sort those out? Are there “good” imprisonments that can come up in everyday life that should be excused from the tort’s reach?

    1. 3.1 Show/Hide More The Clashing of Wills
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      1. 3.1.1 Show/Hide More Lopez v. Winchell's Donut House--"The Accused Employee Who Freely Left"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should a defendant be liable for false imprisonment when it did not apply force, use the threat of force, nor assert its authority to confine the plaintiff?
        Notes:
        Plaintiff—an employee of defendant—was suspected of “shorting” the cash register. The plaintiff voluntarily entered the back room of the store at her supervisor’s request. In the back room, the supervisor and another man questioned her regarding the alleged “shorting”. No threats of any kind were made during the interrogation, and plaintiff left the room and went home when she first decided to do so.
      2. 3.1.2 Show/Hide More Parvi v. City of Kingston--"The Dropped Off Drunk"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Can an otherwise-consented-to action become false imprisonment if the plaintiff no longer wants it?
        Notes:
        Police transported the drunken plaintiff to an abandoned golf course outside of the city so he could “dry out”. During the car ride to the golf course, plaintiff requested to be let out at a different location. Plaintiff was severely injured when he walked out onto the highway, still intoxicated, in an attempt to return home. At trial, plaintiff admitted that he could no longer recall the car ride.
      1. 3.2.1 Show/Hide More Shen v. Leo A. Daly Co.--"The Confined-to-Taiwan Case"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        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.
      2. 3.2.2 Show/Hide More Peterson v. Sorlien--"The Unsuccessfully Deprogrammed Daughter"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should we regard individuals as “falsely imprisoned” when they are provided with many opportunities to escape?
        Notes:
        Plaintiff joined a cult while in college. As a result, her grades fell, she became increasingly alienated from her family, and she sold her car and took on a part-time job to increase her payments to the cult. Afraid for their daughter, the plaintiff’s parents took her to the house of a self-styled professional deprogrammer. For two days, the plaintiff violently resisted the deprogramming and was forcibly confined. However, over the next thirteen days, plaintiff’s demeanor changed considerably; she became “friendly and vivacious”. Subsequently, plaintiff was no longer confined by force and was free to participate in outdoor activities, take solitary walks, and even fly to another city with another former cult member who had shared her experiences in the former week. At the end of the deprogramming period, plaintiff refused to sign a waiver releasing her parents from liability for the past weeks’ actions, and returned to the cult and her fiance—who was also a member.
      1. 3.3.1 Show/Hide More Eilers v. Coy--"The Falsely Consenting Cultist"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should we recognize false imprisonment in situations where the confinement is arguably for the plaintiff’s own good? Should consent excuse the defendant’s liability for false imprisonment, even if it is feigned?
        Notes:
        Plaintiff and his wife were members of a cult. Relatives of the plaintiff hired the defendant to abduct and deprogram the plaintiff. For five and one-half days, plaintiff was held at defendant’s deprogramming center. Security guards and handcuffs were used to forcibly restrain the plaintiff. Several days into his confinement, the plaintiff feigned consent to the deprogramming in hopes of gaining an opportunity to escape. The plaintiff finally escaped from defendant’s custody by jumping out of a car while being transported to another city for further deprogramming.
  4. 4 Show/Hide More Defenses: Overriding the Choices of Others
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates

    Nearly any defined pattern of wrongdoing is likely to admit exceptions. That’s in part what can make it so difficult to simply stipulate by legal text ahead of time what behavior is allowed and what is not. But we can try. Efforts to taxonomize carve-outs from legal rules or standards can be worked into the prima facie – “at first glance” – case for a wrong. For example, we might start by defining a battery as an “…unconsented touching… .” Exceptions can also be enshrined as affirmative defenses: all the requirements of a prima facie case might be met, but a defense may then be invoked against it. In this configuration, a battery could be a mere “touching,” but a case for damages would be derailed if the defendant can show consent by the plaintiff. Is there any meaningful difference between defining a tort in a way that captures exceptions in the definition itself, compared to a simpler definition accompanied by a set of defenses?

    Here we look at some of the most common defenses to a range of intentional torts, and their limits. When, for example, should consent of the victim not be enough to eliminate liability for a wrongdoer? What happens when someone hurts someone else in an act of self-defense, but has made a mistake about the intentions of the person acted against? At what point should one’s personal or property rights yield to an emergency in which someone else’s life or property is at stake? This last question also offers us an opportunity to think in a more nuanced way about “plaintiffs” and “defendants” – in many situations the parties are interacting with one another, and each is prepared to claim wrong by the other. A court, then, might find each party as both plaintiff and defendant against the other, and one could imagine a range of actions that ought to be demanded or incented in order to reach a just outcome. Part of the nuance here is to recognize that the law can indeed alternatively “demand” and “incent”: the first, even in civil tort, could be backed up by a threat of jail time or crippling fines; the second, imposed as a carefully calibrated “cost of doing business.” By charging the “right” amount of damages for a harm, is it sensible to then speak of achieving the proper – “efficient,” even – level or amount of such harm in society?

    1. 4.1 Show/Hide More Consent
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      1. 4.1.1 Show/Hide More Hart v. Geysel--"The Fatal Prize Fight"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should a tort be recognized when both parties agreed to engage in harmful contact?
        Notes:
        Plaintiff died as the result of a blow received in a prize fight with defendant. Plaintiff’s estate sued the defendant for wrongful death.
      2. 4.1.2 Show/Hide More Hackbart v. Cincinnati Bengals--"The No-Foul-But-Severe-Harm Case"
        Original Creator: Samantha Bates Current Version: Samantha Bates
        Does the nature of a rough-and-tumble activity like professional football excuse potential tort liability arising from the game?
      1. 4.2.1 Show/Hide More Courvoisier v. Raymond--"The Mistaken Self-Defender"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should the common law excuse harmful contact made in self-defense? If so, how do we decide which harmful acts fall within the scope of self-defense?
        Notes:
        Defendant was woken one night by parties who were trying to break into his jewelry store. After the group gained entry, defendant scared them away by shots into the air. Plaintiff—a policeman—approached the defendant, identified himself as an officer, and called out for the defendant to stop shooting. The defendant mistook the plaintiff as one of the trespassing parties and shot him.
      1. 4.3.1 Show/Hide More Ploof v. Putnam -- "The Private Island in a Storm"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        In order to accommodate plaintiff’s need to protect his/her own life or property, should society privilege him/her with the right to interfere with another’s property?
        Notes:
        Plaintiff, his wife, and children were out on a lake in plaintiff’s boat during sudden storm. In order to avoid the risk of harm to his family and property, the plaintiff moored his boat to the defendant’s private island in the middle of the lake. Defendant’s servant unmoored the boat, causing the boat to be destroyed and casting the plaintiff, his wife, and children into the water.
      2. 4.3.2 Show/Hide More Vincent v. Lake Erie Transp. Co.--"The Boat-Slamming-Against-the-Dock Case"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should defendants be privileged in protecting their own property at the expense of another’s property? If so, does the court “demand” anything from the plaintiff in exchange for the privilege?
        Notes:
        Defendant’s vessel was trapped in a harbor due to a violent storm. Rather than risk his boat being destroyed, defendant repeatedly tied and retied his boat to the plaintiff’s dock, despite an awareness that his boat was smashing into and damaging the dock.
      1. 4.4.1 Show/Hide More Barbara A. v. John G.--"The Lying, Impregnating Attorney"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        How should the court evaluate defenses that come from different sources of law?
        Notes:
        Defendant—an attorney—represented the plaintiff in matters related to a divorce. During his representation of the plaintiff, defendant tricked the plaintiff into engaging in sexual intercourse by suggesting that he was sterile. Plaintiff became pregnant, and eventually underwent surgery to save her life when the pregnancy was discovered to have severe complications. As a result of the surgery, plaintiff’s Fallopian tube was removed and she was thereby rendered sterile.
  5. 5 Show/Hide More Trespass to Chattels: The Limits of Self-Help
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates

    Lawsuits are expensive and unwieldy. They take a lot of time – years, even. They are emotionally draining, sometimes devastating – even for winners. And a court and its enforcement mechanisms may not be available in an exigently-unfolding situation. In light of this, the law might contemplate that private actors faced with perceived wrongdoing might be given license to take matters into their own hands. Recognizing the defense of self-defense in battery is one way that the law understands that it can be better, or at least acceptable, for people to help themselves. What about less dire situations than defense of life or bodily integrity? Is it OK to chase after someone who has stolen something? To set a trap on one’s own property to deter or incapacitate wrongdoers, especially if the trap is only sprung against people who are manifestly in a place where they have no permission to be? How much should barriers to effective legal enforcement grant license to individual action, even vigilantism?

    This section’s cases look at these questions through some classic formulations – a spring-gun, for example – and through some more recent ones: the problems arising from spam. In the latter case, we look both at how this new and vexing phenomenon might be worked into the canon of tort, in particular, trespass to chattel, and also how the law should view acts of self-help taken against spammers.

    1. 5.1 Show/Hide More Glidden v. Szybiak--"The Dog Ear Puller"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      To what extent should the law protect an owner from minimal interference with his or her property?
      Notes:
      Plaintiff—a four-year-old—encountered a dog belonging to the defendant. While playing with the dog, the plaintiff climbed on the dog and pulled its years. The dog then bit the plaintiff's nose. A state statute allowed for recovery from injury by a dog, unless the injured party was engaged in the commission of a trespass or another tort while injured.
    2. 5.2 Show/Hide More Katko v. Briney--"The Spring-Gun Case"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should an individual be allowed to use force to protect his or her real property? Should it matter if the property is uninhabited?
      Notes:
      Defendants inherited an extra house in which they did not live. After a series of trespasses onto the uninhabited property, defendants posted ‘no trespass' signs, boarded up the doors and windows, and set a spring-gun trap that would shoot trespassers who opened the bedroom door. No warning of the trap's presence was posted. Plaintiff—who had previously trespassed on the property and taken old bottles and fruit jars as antiques—returned to the property in hopes of further scavenging the premises. When the plaintiff opened the bedroom door, the shotgun blew off much of his leg.
    3. 5.3 Show/Hide More CompuServe v. CyberPromotions--"The Damaging Spam Case"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should tort law recognize spamming as trespass against an individual's property? If so, should there be some limits on who may sue spam senders?
      Notes:
      Defendants were in the business of sending spam to Internet users, many of whom were subscribers to plaintiff's network and Internet service. Despite efforts by the plaintiff to stop the spam and the defendant's awareness that the plaintiff did not want spam to be sent to its subscribers, defendant continued spamming activities. The plaintiff claimed that the large amounts of spam burdened plaintiff's mail processing computer equipment and damaged the plaintiff's business reputation and goodwill with its customers.
    4. 5.4 Show/Hide More Intel Corp. v. Hamidi (Court of Appeal)--"The Critical Emails Case"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should tort law protect against a company's loss of productivity due to unsolicited emails?
      Notes:
      Defendant—a former employee of the plaintiff company—helped form an organization to disseminate information and views critical of plaintiff's employment and personnel policies and practices. As the spokesperson for this organization, the defendant sent six mass emails to as many as 35,000 employees of the plaintiff. There was no evidence that the defendant breached plaintiff's security, nor any evidence that the distribution or receipt of the emails impaired the functioning of plaintiff's computer systems. However, plaintiff argued that its interest in employee productivity had been harmed due to the content of the emails.
  6. 6 Show/Hide More Negligence: The Standard of Reasonable Care
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates

    We now shift gears away from intentional wrongdoing and its defenses and toward what many consider to be the heart of tort law, both in volume of cases (and damages) and in conceptual challenge: negligence. Under what circumstances should someone’s actions be deemed careless enough to warrant damages, while falling short of the level of riskiness (or even certainty of harm) associated with intentional tort? At the core of negligence is a deceptively simple-sounding standard: act reasonably.

    Negligence law naturally draws in a group of defendants rarely seen in intentional tort: corporations. Can a standard of reasonableness be as intuitively grasped by a jury for judgment of a firm’s behavior as for a person’s actions? How much of the application of that standard should be left to a jury, and how much to a judge, who can decide whether a fact pattern – even one most sympathetic to a plaintiff – merits a jury’s look at all?

    The cases in these sections look at how the law conceives of a negligence standard by examining cases in which judges had to decide whether a jury should hear the case – or, if they heard it, whether they applied the standard correctly. Included is a case famed among legal scholars but typically unknown to senior practitioners: U.S. v. Carroll Towing. Carroll Towing introduces a formula by which one judge thought negligence might be further fleshed out – “unreasonable” behavior unpacked. How helpful is Judge Hand’s formula of b<pl? When, if ever, should a jury be exposed to it? Are there elements of unreasonable behavior not always captured by those three variables?

      1. 6.1.1 Show/Hide More Topps v. Ferraro--"The Unintentional Punch in the Face"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        How should courts weigh wrongful acts in determining intent?
        Notes:
        Plaintiff and defendant stepped outside in order to discuss something. Once outside, the defendant confronted plaintiff about earlier statements allegedly made by plaintiff about defendant's girlfriend. The conversation grew heated and argumentative. According to the defendant, the plaintiff shoved him in the shoulder, and he responded by punching plaintiff in the face. As a result of the punch, plaintiff's eye was permanently damaged and his vision impaired. At trial, defendant testified that the punch was &#8220;a matter of reflexes&#8221; and that it wasn't &#8220;thought out&#8221;.
      1. 6.2.1 Show/Hide More Chicago, B. & Q. R. Co. v. Krayenbuhl--"The Foot-Severing Turntable"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        When ruling on negligence, should courts consider factors unrelated to the potential harm of an activity (such as the activity’s usefulness to society)?
        Notes:
        The defendant railroad company operated a turntable in the plaintiff child’s neighborhood. It was common practice for children of the neighborhood to revolve the turntable and ride on it. Defendant was aware of this practice. While playing on the turntable with his friends, the plaintiff’s foot was caught between the rails and severed at the ankle joint.
      2. 6.2.2 Show/Hide More United States v. Carroll Towing Co., Inc.--"The Learned Hand Formula Case"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should we attempt to reduce the standard of reasonable care into forms that seem more empirical—like an algebraic formula?
        Notes:
        Defendant’s negligent towing caused all the ships it was towing to break free. A ship carrying the plaintiff’s cargo of flour sank in the aftermath of defendant’s negligence. However, defendant claims that the charterer of plaintiff’s boat was negligent for failing to have an additional bargee on board, as the sole bargee&#8212;a person employed on or in charge of a barge&#8212;hired was gone ashore at the time of the accident.
      3. 6.2.3 Show/Hide More Adams v. Bullock--"The Swinging Wire Case"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should reasonable care protect against all conceivable harm, no matter how unlikely?
        Notes:
        Defendant operated a trolley line, using an overhead wire system to supply power to the trolleys. Plaintiff—a young boy—ran across a bridge while swinging an eight-foot wire of his own. The defendant’s trolley wire ran beneath the edge of the bridge. In swinging his wire, the plaintiff’s wire made contact with defendant’s trolley wire, shocking and burning the plaintiff.
      1. 6.3.1 Show/Hide More Pokora v. Wabash Railway Co.--"The Driver Who Failed to Step Out and Look Around"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should judges impose strict rules defining reasonable conduct in dangerous or unusual situations or should they defer to the jury?
      2. 6.3.2 Show/Hide More Andrews v. United Airlines, Inc.--"The Baggage May Have Shifted During Flight Case"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        When should judges determine reasonable care at summary judgment and when should they defer to juries?
      3. 6.3.3 Show/Hide More Akins v. Glen Falls--"The Blinding Foul Ball"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        What level of guidance may a judge give the jury with respect to reasonable care?
  7. 7 Show/Hide More Negligence: Adjusting the Standard?
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates

    Although “reasonable care” may sound like a simple, straightforward standard, its simplicity is also its problem: there may be situations in which we wish there were more guidance to settle upon a judgment of negligence, even with the facts clearly presented. Suppose a six-year-old playing a game of tag in the local park knocks over a responsibly-behaving passerby. Does reasonable care naturally scale to meet a six-year-old's capacities? Should it?

    How to judge a six-year-old opens the door to a broader question that as the ring of applied philosophy to it: to what extent should society forgive, and reflect in its standards, the infirmities and limitations of a defendant? How much should expectations be raised for those with extra abilities?

      1. 7.1.1 Show/Hide More Vaughan v. Menlove--"The Unreasonable Hay Stacker"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        How does the reasonable person standard account for variations in human intelligence?
        Notes:
        Plaintiff’s property caught on fire due to the spontaneous combustion of hay stacked by the defendant nearby. The facts showed that plaintiff had explicitly warned defendant of the risk of fire; defendant responded by saying that “he would chance it.” Defendant insisted, throughout trial, that his stack did not carry a risk of igniting. However, the potential for hay stacks to spontaneously combust may have been common knowledge at the time.
      2. 7.1.2 Show/Hide More Wood v. Groh--"The Gun from the Cabinet"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Does the reasonable person standard require increased care for dangerous instrumentalties?
        Notes:
        Defendant, age fifteen, obtained his father’s gun and accidentally shot the plaintiff while intoxicated. He had retrieved the gun from his father’s locked gun cabinet after using a screwdriver to force it open.
      3. 7.1.3 Show/Hide More Ellis v. D'Angelo-- "The 4-Year-Old Bone Breaker"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Does a defendant's age alone justify adjusting his or her standard of care?
        Notes:
        Plaintiff was hired as a babysitter for the 4-year old defendant. On the plaintiff’s first day of work, the defendant pushed the plaintiff violently to the ground, fracturing her arms and wrists. The defendant child was sued for both battery and negligence in harming the plaintiff.
      1. 7.2.1 Show/Hide More McCarty v. Pheasant Run--"The Chained, But Unlocked, Sliding Door"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Does a plaintiff's lack of care elevate the care expected of the defendant?
        Notes:
        Plaintiff was a guest at defendant’s hotel. Plaintiff’s room had a sliding glass door equipped with a lock and safety chain. An intruder forced his way past the chained door—which was closed but not locked—and threatened to rape the plaintiff before she fought him off. During trial, plaintiff did not prove the existence of cost-effective safety measures that the hotel could have implemented to avert the incident.
      2. 7.2.2 Show/Hide More Bashi v. Wodarz--"The Driver Who Wigged Out"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Does mental illness count as a “sudden affliction” as defined in Roberts?
        Notes:
        Defendant was involved in two automobile accidents in fairly quick succession. The plaintiffs were involved in the second accident. The traffic report stated that defendant engaged in “bizarre” behavior before and after the collision with the plaintiffs. Defendant stated that she had little recollection of either accident. She claimed that she had no control of her actions, and believed that she had “wigged out” or “freaked out” at the time. She also claimed a family history of mental illness. Unrebutted medical expert evidence described the defendant as suffering a “[s]udden, unanticipated onset of mental illness” shortly before colliding with plaintiffs.
      3. 7.2.3 Show/Hide More Miller v. Reilly--"The Defective Brakes Case"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should an actor's standard of care be relaxed by exigent circumstances—such as her car's brakes failing while the actor is driving downhill?
        Notes:
        Defendant's car brakes failed while she was driving downhill. Despite her efforts to maintain control of her car, defendant's car jumped the median strip and struck the plaintiffs' automobile. Defendant's car was equipped with an emergency brake, but she failed to use it before the collision occurred.
  8. 8 Show/Hide More Res Ipsa Loquitur
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates
    Civil procedure concerns itself with what levels of proof and persuasion must be elicited from a plaintiff before a jury can hear a claim – and rule favorably on it. What happens when there isn’t sufficient evidence for a plaintiff to meet that burden, in part perhaps because the defendant’s behavior – the negligence itself, even – has made it difficult to gather such evidence? Res ipsa evolved before modern discovery rules to allow cases to get to juries where negligence by the defendant might be readily inferred. The cases in this section show the development of the doctrine and explore its rationales and limits.
      1. 8.1.1 Show/Hide More Byrne v. Boadle--"The Falling Flour Barrel"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should courts be willing to presume negligence in situations where the plaintiff's injury implies negligence has occurred?
        Notes:
        A barrel of flour rolls from the window of defendant’s shop and flattens the plaintiff, who was on the sidewalk below. Defendant admitted he was a dealer in flour. However, none of the witnesses saw anyone nearby who could have been responsible for the falling barrel. Neither was the plaintiff able to produce any evidence to support a claim of negligence.
      1. 8.2.1 Show/Hide More Larson v. St. Francis Hotel--"The Falling Armchair"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should courts still apply the doctrine of res ipsa loquitur when a defendant does not have exclusive control over the object which harms the plaintiff?
        Notes:
        Plaintiff was struck on the head and knocked unconscious by a heavy, overstuffed armchair. At the time of impact, plaintiff was walking on the sidewalk near the defendant’s hotel. No witnesses saw the chair until it was a few feet from plaintiff’s head, nor was there any evidence identifying the chair as belonging to the hotel.
      2. 8.2.2 Show/Hide More Connolly v. Nicollet Hotel--"The Chaotic Convention"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should courts be willing to apply res ipsa loquitur principles to defendants who acquiesce to conditions which made the wrongful injury likely?
        Notes:
        Defendant hosted an incredibly rowdy convention, in which gunfire in the lobby, destruction of hotel fixtures, and defenestrations were common. However, defendant did not make any attempts to reign in the behavior of its guests: no complaints were made to the organization running the convention, nor to the police. Plaintiff was walking on the sidewalk near defendant’s hotel while the convention was ongoing. After looking upward to ascertain the source of an explosion, plaintiff was struck in the left eye by a mud-like substance. She lost sight in her left eye due to the impact. The only building from which the material could have fallen was defendant’s hotel.
      1. 8.3.1 Show/Hide More Ybarra v. Spangard--"The Unconscious, but Injured Patient"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Are there situations where courts should apply res ipsa loquitur despite a plaintiff’s failure to satisfy the technical requirements of the doctrine?
        Notes:
        Plaintiff was placed under anesthesia for appendectomy. After waking the following morning, plaintiff felt a sharp pain near his right shoulder—an area unrelated to his surgery. Despite treatments for the pain, plaintiff developed paralysis and muscle atrophy. Expert testimony corroborated the plaintiff’s claim that the paralysis was due to trauma suffered during the surgery. Due to a lack of evidence, plaintiff’s suit applied res ipsa loquitur against a number of parties.
      2. 8.3.2 Show/Hide More Fireman's Fund American Insurance Cos. v. Knobbe--"The One-of-Four Smokers Case"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should res ipsa loquitur be applied to a group of defendants when plaintiff has submitted no direct evidence that they had control over the dangerous instrumentality or were involved in the harm?
        Notes:
        Defendants were four guests who were smoking in a hotel room. After they had departed, a fire broke out in their room. The cause of the fire was determined to be a cigarette. However, plaintiff insurance company provided no evidence indicating which of the four guests had control of the cigarette which started the fire.
  9. 9 Show/Hide More Negligence Per Se
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates

    This section explores yet another way in which – sometimes – the vague negligence standard of reasonableness can be supplemented: negligence per se. In those rare (and happy?) occasions in which a rule of behavior is laid down by the law – for the purpose of safety, and perhaps as part of the criminal canon – we see courts willing to adopt the law itself as the standard of care. When this is done, it does not merely provide a basis for inference as res ipsa does, but rather substitutes for the standard itself. If the conditions for NPS are met and the law can be shown to be broken, the defendant is liable (or, if contributory negligence is claimed as the candidate for NPS, the plaintiff’s case is lost).

    The cases here provide good examples of when the doctrine works – and when exceptions to its application are sought and granted.

    1. 9.1 Show/Hide More The Basic Doctrine
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      1. 9.1.1 Show/Hide More Martin v. Herzog--"The Buggy Without Lights"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        To what extent, if any, should courts allow the violation of a statute to inform their analysis of negligence?
        Notes:
        Plaintiff and her husband were driving a buggy on a highway in the darkness. During the drive, their buggy collided with the defendant’s automobile, killing the plaintiff’s husband. Plaintiff claimed the defendant was negligent for crossing the center line of the highway. The defendant claimed that he should not be at fault because plaintiff’s husband was driving without lights. There was a statute which required lights on cars when traveling in the dark.
      1. 9.2.1 Show/Hide More Platz v. City of Cohoes--"The Sunday Carriage Accident"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should courts consider the objective of the statute when negligence per se is invoked?
        Notes:
        Plaintiff was riding with her husband in a carriage on Sunday. City workers left a pile of dirt on the street, directly in the way of traffic. The plaintiff’s carriage was overturned when it encountered the pile. Plaintiff sued for her injuries on a theory of negligence. The city asserted that the plaintiff’s violation of a a “Sunday law”—which prohibited riding on the streets in observance of Sunday—barred her from recovery.
      2. 9.2.2 Show/Hide More Brown v. Shyne--“The Unlicensed, Paralyzing Chiropractor”
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        If an unlicensed actor causes harm, should the fact that the actor lacked a license be evidence enough for negligence per se?
      3. 9.2.3 Show/Hide More Rushink v. Gerstheimer--"The Key in the Ignition Case"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        How should the court determine the class of individuals that the legislature aimed to protect through statute?
        Notes:
        While running an errand, the defendant left her car unattended with the keys in the ignition. The plaintiff’s decedent—a resident patient in a nearby psychiatric facility—drove away in the vehicle and hit a nearby tree soon after. The collision with the tree resulted in his death.
      4. 9.2.4 Show/Hide More Robinson v. District of Columbia--"The Jaywalking Custom Case"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        If a particular statute is flouted by the custom of the public, should courts still rely upon the statute for the purposes of NPS?
        Notes:
        Plaintiff was struck by a police van while jaywalking. Traffic regulations required all pedestrians to use crosswalks when crossing the road. However, plaintiff argued that it was customary for local pedestrians to cross the street at the unmarked location where the accident occurred.
      5. 9.2.5 Show/Hide More Tedla v. Ellman--"Walking on the Other Side of the Highway"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should the doctrine of NPS apply when obeying the statute would go against the intention of the statute?
        Notes:
        Plaintiff and her brother were walking eastward on a highway, on the right side of the center line. The defendant’s automobile struck both plaintiff and her brother as it passed by. The plaintiff was injured and her brother was killed. A statute provided that ‘pedestrians shall keep to the left of the center line’. However, at the time there was very heavy traffic heading westward, and only a few cars going east.
  10. 10 Show/Hide More Duty: Action vs. Inaction; Special Relationships
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates

    We now look at a conceptually distinct (at least most of the time) inquiry in a negligence case from that of reasonableness and the standard of care: did the defendant owe a duty to the plaintiff? This question can be asked independently of whether the defendant acted reasonably. Imagine it in this form: “Suppose all you say is true and I behaved unreasonably. You still don’t have a case.”

    Why wouldn’t the plaintiff have a case? Circularly, because the defendant is said not to bear a duty to the plaintiff. The circumstances in which this is true are numerous and often unrelated. For example, a lack of duty can be found in cases of immunity, such as when the “sovereign immunity” of government is found to preclude any claims from being lodged against it. Certain types of negligently inflicted harm, standing alone, have traditionally been thought to be unsuitable for resolution in tort: purely emotional harm, for example, or purely economic harm. (Now that you think about, consider how each of the cases in the preceding section involved at least some claimed physical harm as an anchor for the case.) Cases in which harm is mediated through another person are sometimes thought to fall within a no-duty rule for the upstream wrongdoer, e.g. should a bartender not face an inquiry for serving drinks to someone who ends up causing a car accident.

    We will examine each of these situations. But we start with yet another example of I-might-be-wrong-but-you-can’t-sue-me: cases in which the wrong arises from inaction rather than action. Is it possible to be held liable for just sitting around? Couch potatoes, take heart: you may not owe a duty to anyone as you unreasonably take in the Jersey Shore while pleas for help and assistance coalesce right next to you.

    1. 10.1 Show/Hide More Action Versus Inaction
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      1. 10.1.1 Show/Hide More Moch Co. v. Rensselaer Water Co.--"The Failure to Supply Water During a Fire"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        In questions of duty, should courts draw a distinction between inaction that has the consequence of harm, and positive action that creates harm?
        Notes:
        The defendant water company contracts with a city to supply the city with water. While the contract was still in force, a fire broke out and spread to the plaintiff’s warehouse, destroying it and its contents. The plaintiff alleges that the destruction of his warehouse was caused by defendant’s negligence in failing provide an adequate supply of water to combat the fire, despite prompt notification of the fire, the capacity to properly supply the water, and the contractual obligation to supply water in the manner needed.
      2. 10.1.2 Show/Hide More Strauss v. Belle Realty Co.-- "The Man who Tripped Down the Stairs"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        If a plaintiff is harmed by a public utility's breach of contract to a third-party, should the public utility be liable?
        Notes:
        Plaintiff lived in an apartment managed by the defendant realty company. During a blackout caused by the defendant electric-power company, plaintiff was injured while going down stairs located in the apartment's common area. The plaintiff had a contract with the defendant power company for electricity in his apartment unit. However, power to the apartment's common areas was provided under a separate contract between the defendant power company and defendant realty company.
      3. 10.1.3 Show/Hide More Union Pacific Railway v. Cappier--"The Railroad that Ran Over a Man and Let Him Bleed to Death"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should non-negligent owners and operators of an instrumentality have a duty to assist individuals who are harmed by the instrumentality?
        Notes:
        Plaintiff’s son was run over by a freight car operated by the defendant, severing an arm and a leg. The collision was held to be the fault of plaintiff’s negligence alone. However, after the impact, the employees manning the car did not stop and attempt to administer any emergency care.
      1. 10.2.1 Show/Hide More Harper v. Herman--"The Boat Owner Who Failed to Warn"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Does being a social host create additional duties to guests? Should an individual’s superior knowledge of a dangerous condition require him or her to disclose that danger?
        Notes:
        Defendant—an experienced boat owner—invited his friends on a boat outing. Plaintiff was brought along the outing by one of the invited guests. Prior to the outing, plaintiff and defendant did not know each other. The defendant took the group out to a spot where he knew the water was deep enough for swimming but too shallow for diving. After asking if the defendant was going into the water and receiving an affirmative, the plaintiff dove into the water without warning. As a result of the dive, plaintiff struck the bottom of the lake and severed his spinal cord, rendering himself a quadriplegic.
      2. 10.2.2 Show/Hide More Farwell v. Keaton--"The Fatal Pickup Attempt"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should we expect partners in a joint activity—in this case, chasing after girls—to have a duty to protect and aid each other? If someone provides aid, should courts impose a duty on the aiding party to provide a certain standard of care for the injured party?
        Notes:
        Plaintiff and the defendant on appeal were friends. Their attempt to approach two girls resulted in six boys chasing the pair back to the parking lot and severely beating the plaintiff. Defendant escaped unharmed, but returned later for his friend. Rather than take the plaintiff to the hospital, defendant applied ice to his head, drove him around for approximately two-hours and eventually left the plaintiff in the driveway of his grandparents’ house. Plaintiff’s grandparents discovered him the next morning and took him to the hospital. The plaintiff died three days later of an epidural hematoma (bleeding inside the skull).
      3. 10.2.3 Show/Hide More Randi W. v. Muroc Joint Unified School District--"The Alleged Sexual Predator's Recommenders"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should courts recognize a broader rule for creating a duty, capable of encompassing wrongful communications?
        Notes:
        Plaintiff was molested by a school administrator. The administrator had a past history of sexual misconduct. This history was known to individuals who had recommended him for the position he occupied when the incident with the plaintiff occurred. However, those individuals did not include this information in their letters. In her lawsuit, the plaintiff sued the recommenders, on the theory that it was negligent for them to withhold information which could foreseeably lead to harm.
  11. 11 Show/Hide More Duty to Control Others
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates

    At common law, a person does not generally have an affirmative duty to control the conduct of another. An exception to this rule exists when a special relationship between parties is sufficient to establish a duty of care. Such a duty can be symmetrical (husband-wife) or asymmetrical (adult-minor, doctor-patient), and the nature of the relationship determines the nature of the duty owed. The special relationship can be with either the person whose conduct needs to be controlled (where the plaintiff would be an injured party not in a special relationship with the defendant) or a foreseeable victim (and future plaintiff) of that conduct.

    “Tarasoff” lays out the doctrine and arguments for and against the rule. “Broadbent” focuses on whether parents have a duty to protect their children from hurting themselves. “Hawkins” shows the bounds of a doctor’s duty to her patient, including the recurring theme of foreseeability of harm to a known plaintiff. “Cuppy” illustrates the special relationship analysis for finding a duty to control. The contrasting approaches in “Charles” and “Kelly” show the majority and minority (New Jersey) rules for social host liability. “Einhorn” discusses the landlord-tenant relationship and the limits of the duty within it. The extent to which the owner-invitee relationship requires protecting invitees from third party criminal acts is explored in “Boyd”.

      1. 11.1.1 Show/Hide More Tarasoff v. Regents of University of California--"The Psychiatrist's Failure to Warn the Murder Victim"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Do therapists have a duty to control their patients? If so, how far does this duty extend, and how may it be discharged?
        Notes:
        A mentally unstable individual murders a young woman. Before the murder, he confided his intention to kill the woman to his therapist. The police were notified of this danger, but no attempt was made to inform the victim or those close to her. The therapists also chose not to confine the murderer, despite his plan to kill.
      2. 11.1.2 Show/Hide More Broadbent v. Broadbent--"The Elimination of Parental Immunity Case"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should children be allowed to sue if their parents’ failure to supervise them led to harm?
        Notes:
        Plaintiff—a two-and-a-half year old boy—nearly drowned in a pool and suffers severe brain damage. The defendant—his mother—had left him by the pool unattended for 5 to 10 minutes in order to answer a phone call.
      3. 11.1.3 Show/Hide More Hawkins v. Pizarro--"The Failure to Correctly Report Hepatitis C Test Results"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should doctors be liable to a third party if their failure to warn a patient about their disease leads to harm?
        Notes:
        A doctor screens the plaintiff for hepatitis C, and erroneously tells her that the results were negative. While unaware of her infection, plaintiff marries and unknowingly transmits the virus to her husband. At no time was the doctor ever aware of the plaintiff’s (eventual) husband. Plaintiff argued that had she been informed of her disease, she and her husband could have taken steps to prevent its transmission.
      4. 11.1.4 Show/Hide More Einhorn v. Seeley--"The Locksmith's Failure to Properly Install a Lock"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should third parties employed to complete a service be liable for crimes committed due to their negligence?
        Notes:
        Plaintiff brought suit against a locksmith for failing to properly install the outside door lock of her financee’s apartment building. She was raped in the building by an intruder, who may have entered through the defectively-locked front door.
      5. 11.1.5 Show/Hide More Boyd v. Racine Currency Exchange--"The Non-Compliant Bank Teller and the Murdered Hostage"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Does an owner’s duty to prevent harm against invitees require them to comply with criminal threats?
        Notes:
        A robber entered the bank, put a gun to the head of plaintiff’s husband, and demanded the teller “give him money or open the door”. Instead of complying with either choice, the teller ducked to the ground. The robber then shot and killed the husband.
      1. 11.2.1 Show/Hide More Kelly v. Gwinnell--"The Don't let Friends Drink and Drive Case"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        How does this court interpret the duty of social hosts to prevent the intoxicated from driving?
        Notes:
        A social host allowed a guest at his home to drink alcohol until the point of visible and severe intoxication. The host then allowed the guest to drive home. The intoxicated guest then got into a car accident with the plaintiff.
      2. 11.2.2 Show/Hide More Charles v. Seigfried--"The Tragic Fate of the Minor Guest"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Does the host who serves alcohol have a duty to prevent the intoxicated from driving?
        Notes:
        Defendant hosted a social gathering at his home. Minors were served alcohol by the defendant. Plaintiff is suing on behalf of one of the minors, who became intoxicated at the gathering and died in a car accident while driving away from defendant’s home.
  12. 12 Show/Hide More Duty: Governmental Liability
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates

    Government entities perform unique functions for, and perhaps accrue responsibilities to, their citizenries. When they are said to bungle them, can they be called to answer in tort for resulting harm? The answer, of course, is complicated. An early posture of sovereign immunity, drawn from a king’s being above (or at least the source of) the law, meant that without more, suits alleging negligence by government actors might flatly fail. Exceptions to sovereign immunity have been created piecemeal, sometimes by judges acting at common law, and sometimes by statute, whether state or Federal for their respective jurisdictions.

    One typical dividing line for liability is whether a government is acting in a “proprietary” capacity – i.e. as a private actor. If I slip on a freshly mopped but unmarked floor in the post office, why should sovereign immunity kick in for the Postal Service when a regular shopkeeper would have to answer for negligence? Another tends to invoke our previous duty analysis of action vs. inaction: police protection may not be proprietary (the existence of private security firms notwithstanding), but a failure to respond to a 911 call may count as “inaction” rather than action. At the very least, we must explore, as a matter of law, the extent of legal duty accepted by a municipality when it undertakes to offer policing services. (Indeed, would a failure to offer any services at all, as compared to offering them poorly, be subject to suit?) Our first cluster of readings examines some of these problems, along with the rationales for shielding some acts or omissions in policing from suit. It may be that act/omission isn’t really the key distinction. Rather, concern about the courts’ intrusion into budgeting and planning by the executive and legislative branches may be the touchstone.

    1. 12.1 Show/Hide More Riss v. City of New York--"The Lye in the Face Case"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should the government pay for a failure to protect an individual citizen from harm?
      Notes:
      For six months, a rejected suitor threatened to kill or maim the plaintiff if she did not give herself to him. Plaintiff pleaded with the police for protection, to no avail. After plaintiff became engaged to another man, she received a phone call warning her that it was her ‘last chance.’ The plaintiff begged the police for help once more, but was refused. The next day, a hired thug threw lye in the plaintiff’s face, blinding one eye, partially blinding her in the other eye, and permanently scarring her face.
    2. 12.2 Show/Hide More Schuster v. City of New York-- "The Death of the Police Informant"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should the government have a duty to protect citizens who are endangered by their assistance of the police?
      Notes:
      Plaintiff’s son died soon after being threatened for supplying information that lead to the arrest of a wanted criminal. Prior to his death, the plaintiff’s son had requested protection from the police department but had been refused. The plaintiff sued the police department for negligence, on the theory that the police’s failure to provide protection lead to his son’s death.
    3. 12.3 Show/Hide More Weiner v. Metro. Transit Authority--"The Unmanned Train Station"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should non-police, government agencies—such as transit authorities—have a duty to protect the individuals they service?
      Notes:
      Defendant transit authority was aware of a history of armed robberies and assaults at a particular subway station, many of which occurred during time periods where the station was unmanned by transit police or employees. The plaintiff suffered a knife wound when a robber slashed through the strap of her handbag. At the time of her robbery, no transit police or employees were scheduled to be present at the station.
    4. 12.4 Show/Hide More Garcia v. Superior Court of Santa Clara County--"The Fatally Wrong Parole Officer"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should the government compensate individuals who rely upon the statements of government officials and are subsequently injured?
      Notes:
      While on parole, Napoleon Johnson—a convicted murderer—began a relationship and cohabiting with Grace Morales. After Morales moved out, the ex-convict repeatedly threatened her, attempted to stab her, sexually assaulted her at knife-point, and falsely imprisoned her. While Johnson was undergoing psychiatric treatment for threatening behavior, Johnson’s parole officer tried calling Morales to reconcile the relationship between the two. During the phone call, the parole officer insisted that Morales should not be worried about Johnson finding and hurting her. Soon after, Johnson kidnapped and killed Morales. Morales’ children sue on the theory that Morales would have taken safety measures to protect herself if it wasn’t for the statements of the parole officer.
    5. 12.5 Show/Hide More Florence v. Goldberg--"The Police-Manned Crosswalk"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should government agencies pay when a plaintiff is injured by the agency’s failure to provide services to a specific group of citizens?
      Notes:
      The plaintiff is a six-year-old child who was struck by a taxicab while crossing the street near his school. The infant’s mother had allowed him to walk to and from school without an escort because she had previously observed the daily presence of a crossing guard. However, on the day of the incident, the regularly assigned crossing guard was ill. Furthermore, the police department failed to follow their standard operating procedure when crossing guards are unavailable; the department neither assigned a substitute patrolman nor notified the school principal of of the absence of a crossing guard.
  13. 13 Show/Hide More Duty: Emotional and Economic Harm
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates
    A background feature in our cases so far has been physical harm to the plaintiff. Our breakdown of the cause of action for Negligence (“big-N”) comprises duty, breach (“little-n negligence”), cause-in-fact, proximate cause, and harm. So if there are ways in which courts don’t wish to consider non-physical harm, why not save that for the fifth element instead of our current exploration of the first? The answer lies in the catch-all function that duty plays: it’s meant to be an on/off gate, something determined as much as possible as a matter of law and early in a case, to see whether a case can be dismissed – even if the facts are as the plaintiff alleges. Traditionally, claims for purely emotional harm, with no corresponding physical element, were dismissed in just this fashion. Thus a review of claimed harm is analytically parked in the duty category, even as it becomes, awkwardly, a “no” answer to the ungainly question: “Does a defendant have a duty not to inflict purely emotional harm upon someone?” However awkward, the initial rule was simple: if there were no physical element to the defendant’s behavior towards the plaintiff (at least harm, and sometimes more broadly no physical “impact”), then there’s no case. Today’s situation is much more nuanced, as courts overcame a reluctance to entertain such cases and started, in common law fashion, to consider fact patterns in which a case could go forward despite no physical element. (But note: we are speaking here of purely emotional harm. Oddly, it’s been uncontroversially common for defendants to compensate plaintiffs for emotional harm so long as there is an initial physical hook. If someone’s negligence breaks my foot, I can sue not only for doctors’ bills to mend the break, but also pain and suffering – emotional harm – and lost wages – economic harm.) The cases in this section explore the patchwork of exceptions as various jurisdictions have permitted them, one state at a time. The result, of course, is not a coherent whole that can be represented by a simple or even complicated flow chart. A case from one jurisdiction might flatly contradict the result in another jurisdiction. The aim is to come away with an understanding of some of the exceptions that have been entertained and the rationales behind them (as well as the arguments against them). And then to be in a position, more generally, when confronted with fact patterns in other doctrinal areas that you think cry out for a day in court, to argue in a legal mode for why an exception should or shouldn’t be made. The history of the doctrine of purely emotional harm is a history of boundary pushing, with lessons perhaps transferrable to any area in which the law is thought to be ripe for expansion. As you’ll see, some of the exceptions have to do with allowing mere physical impact as a gateway, rather than actual physical harm. Others have to do with being in a “zone of danger,” with physical harm a possibility, even though it didn’t come about. (Indeed, in intentional tort, isn’t that what assault is?) Intentional wrongdoing may seem less worthy of solicitude, so we also glimpse, outside of negligence entirely, the willingness of some courts to forge a new wrong of “intentional infliction of emotional distress.” We see exceptions for the highly specific category of contemporaneously witnessing at close range the death of a family member. And finally, we see some attempts to avoid the highly specific and instead craft a more general standard for the negligent infliction of (purely) emotional distress. -— Purely economic harm has faced barriers similar to purely emotional harm: without a physical hook, such cases fail at the outset. Here the policy reasons behind the barrier may emphasize the unbounded nature of liability – too many negligent acts implicate the affairs of too many people, in ways that other elements of negligence (such as the proximate cause limitations we will learn about) might not be able to well contain. In this refreshingly brief section, we look to see how some courts have handled pleas for exceptions to a bar on purely economic harm.
    1. 13.1 Show/Hide More Emotional Harm
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      1. 13.1.1 Show/Hide More Falzone v. Busch--"The Almost Automobile Accident"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should plaintiffs be allowed to sue for emotional distress which is not connected to any physical injury?
        Notes:
        Plaintiff was seated in her husband's automobile when she saw a negligently driven automobile strike her husband&#8212;who was standing nearby. The plaintiff was almost struck by the negligent driver as well. She sued for the distress felt while apprehending a collision between the defendant and herself.
      2. 13.1.2 Show/Hide More Portee v. Jaffee--"The Child Dying in the Elevator"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should plaintiffs be able to recover damages solely for the emotional distress they feel while watching a loved one suffer and die?
        Notes:
        A seven-year-old boy became trapped between the outer door of an elevator and the wall of the elevator shaft. The elevator is activated and drags the boy's body up three stories. A child sees the trapped boy and runs to find help. Soon after, his mother&#8212;the plaintiff&#8212;and police officers arrive. Officers tried to free the boy for four hours, to no avail. Throughout the ordeal, the boy cried out and flailed his arms. His mother was restrained from touching him, to prevent interference with the rescue efforts. The boy died while still trapped, his mother a helpless observer. After her son's death, the plaintiff became depressed and unsuccessfully attempted suicide by slitting her own wrist. The plaintiff sued the defendant property owner for negligence in failing to provide a safe elevator.
      3. 13.1.3 Show/Hide More Pizarro v. 421 Port Associates--"The Decapitating Elevator"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should plaintiffs be allowed to recover for the emotional distress they feel when they witness a nearby stranger getting hurt?
        Notes:
        An elevator malfunctions, decapitating one of the passengers. The head landed near the feet of the plaintiff, who was also a passenger of the elevator.
      4. 13.1.4 Show/Hide More Gammon v. Osteopathic Hospital of Maine, Inc.--"The Severed Leg in the Bodybag"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should the plaintiff be able to recover for emotional distress, despite the lack of risk of physical harm nor the mishandling of a relative's corpse?
        Notes:
        Plaintiff was accidentally given a severed leg along with the personal effects of his deceased father. He initially mistook the leg as belonging to his father, but eventually discovered the leg was a pathology specimen removed from another body and returned it. Plaintiff alleged that the incident caused him to experience nightmares for the first time in his life, his personality to change, and his relationship with his family to deteriorate.
    2. 13.2 Show/Hide More Economic Harm
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      1. 13.2.1 Show/Hide More People Express Airlines, Inc. v. Consolidated Rail Corp.--"The Evacuated Airport"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should courts support a negligence cause of action where the injury is purely economic? If so, how far should courts extend the boundaries of the negligent actor's liability?
        Notes:
        The defendants' negligence led to the risk of a tank car exploding. The business operations of plaintiff's airline&#8212;which was within a one-mile radius of the tank car&#8212;was interrupted due to a forced evacuation by municipal authorities. Ultimately, no explosion resulted and there was no property damage suffered by the plaintiff. However, plaintiff sued the defendants on the theory that their negligence resulted in economic loss due to the disruption of plaintiff's business activities.
      2. 13.2.2 Show/Hide More Koch v. Consolidated Edison Co.-- "The New York Blackout Case"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        When a public utility fails to provide its services, should it be liable for possible economic harm flowing from the disruption in service?
        Notes:
        Defendant electric-power company negligently caused a blackout. Plaintiff municipality sued for the increased overtime wages of police, fire, sanitation and hospital personnel as a consequence of the blackout; other plaintiffs sued for lost sales, transfers, transactions, tolls and fares not paid; and lastly, some plaintiffs sued for property damage resulting from looting and vandalism by rioters.
  14. 14 Show/Hide More Causation
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates

    There’s no tort of “attempted negligence.” In order for ultimate liability to accrue, a defendant must not only breach a duty owed to a harmed plaintiff, but that breach must be the cause-in-fact of the harm. Someone speeding through the pedestrian stop light in Harvard Square isn’t held responsible for harm done a few minutes later when a carefully driven car just so happens to independently get into an accident with a pedestrian, even though it was mere fortuity that the careless driver didn’t hurt anyone.

    If I carelessly spill oil on the floor and wander away, and you fall as you turn the corner, causation is pretty clear. But what if you were running so quickly over the area that I can show you would have taken a spill irrespective of the oil? That’s not so easy to prove, but in theory it could defeat causation, just as a negligently maintained dam collapsing in a big storm could be thought of as mere “accident” if the storm were so large that even a well maintained dam would have buckled. Causation can be tricky to prove in other contexts, such as establishing that a particular chemical causes cancer. To what level of certainty must a causal link be determined? Again, the usual answer is “more likely than not,” but other formulations might better capture the moral instinct that requires causation, and even small changes in phrasing can affect a jury’s deliberations.

    Once we understand that causation is a required element, there are still questions about what exactly it means to say that X caused Y. Should the presence of other causes matter? One common formulation, good enough for most purposes, is “but-for” causation: without the defendant’s negligence, the harm would not have arisen. But what happens when there are two negligent parties, with each party’s act sufficient to cause the harm? Can each point the finger at the other, since one alone is sufficient to have harmed, and therefore neither is a “but for” cause? Not to bury the lede: the answer there tends to be “no”; we can’t allow a surfeit of negligence across multiple parties to perversely result in no liability. When else might “but-for” causation be loosened?

    When there is more wrongdoing than there is harm to go around, the law runs into the issue of how to allocate liability among defendants. One simple route is “joint and several liability,” where each wrongdoer can be found liable for up to 100% of the harm, and the plaintiff may elect from whom to collect what, so long as no overcollection takes place. Should this be the rule, for example, when intentional and negligent acts combine, such as an assailant hurting someone thanks to a hotel’s negligently maintained lock?

    1. 14.1 Show/Hide More Theories of Causation
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      1. 14.1.1 Show/Hide More Howard v. Wal-mart Stores, Inc.--"The 'More-Likely-Than-Not' Standard for Causation"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should courts hold that a defendant cannot be proved to “cause” the harm, if the evidence merely supports that it was “more likely than not” that the defendant caused the harm?
        Notes:
        Plaintiff slipped and fell in a puddle of liquid soap on the floor of a Wal-mart store. The plaintiff sued Wal-mart for negligence; however, the evidence&#8212;at best&#8212;could only support an inference that it was <em>more likely than not</em> that a Wal-mart employee is to blame for the spill. Nevertheless, the jury returned a verdict for the plaintiff.
      2. 14.1.2 Show/Hide More Stubbs v. City of Rochester--"The Sewage in the Drinking Water Case"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        When there are multiple possible causes of the plaintiff’s harm—only some of which the defendant is responsible for—should the plaintiff be required to disprove all other possible causes in order to prevail?
        Notes:
        For several months, the defendant waterworks failed to keep sewage-infested water from mingling with the city’s potable water. During this period, the plaintiff drank contaminated tap water and contracted typhoid fever. The plaintiff sued the city on the theory that the polluted water was the cause of his illness. However, typhoid fever was known to have at least eight different causes, many of which are independent from contaminated drinking water. At trial, the plaintiff produced much evidence that supported contaminated drinking water as the likely cause of his affliction. However, he does not provide evidence which eliminates all the other possible causes.
      3. 14.1.3 Show/Hide More Anderson v. Minneapolis, St. P. & S. St. M. R.R. Co.--"The Multiple Fires Case"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should courts regard a defendant’s conduct as a liable cause of the plaintiff’s harm if the harm would have occurred irrespective of the defendant’s conduct?
        Notes:
        The plaintiff alleged that defendant’s locomotive started a fire which eventually spread and destroyed some of the plaintiff’s property. However, the defendant contended that the damage was caused by nearby, independent fires of unknown origin. At trial, it was unclear if the plaintiff’s property was damaged by the fire caused by the defendant, the independent fires of unknown origin, or some combination of the two.
      4. 14.1.4 Show/Hide More Brown v. Wal-Mart--"The Phantom Tortfeasor"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should a defendant’s liability be excused if the action of an unknown intervening party seems to be a more substantial cause of the plaintiff’s injury?
        Notes:
        Plaintiff is a young boy who slipped on ice and water in the vestibule of defendant’s store. The evidence suggested that another customer had caused the spill; however, defendant was unable to provide any evidence identifying a specific customer. There is also evidence that the defendant’s business practice created a distinct possibility of customers spilling drinks in the entrance-ways of the store.
      1. 14.2.1 Show/Hide More Summers v. Tice--"The Simultaneously Negligent Shooters"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        If several defendants act negligently and one among them must have caused the harm, but the plaintiff is unable to prove which defendant did so, should courts hold the defendants liable?
        Notes:
        Plaintiff goes out hunting with the two defendants. After plaintiff flushed a quail out of hiding, both defendants shot at the quail, in the plaintiff’s direction, despite being aware of the bird’s proximity to the plaintiff. Plaintiff was struck in the eye and lip with shotgun pellets. At trial, it was not possible to link the wounding pellets to a particular gun.
      2. 14.2.2 Show/Hide More Garcia v. Joseph Vince Co.--"Two Manufacturers, One Sabre"
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        When the wrongful act must have been committed by one defendant in a group of defendants, but there is no evidence proving that all members of the group acted negligently, should courts refuse to hold the group liable?
        Notes:
        Plaintiff’s eye was injured during a fencing match by a sabre which was defectively manufactured. There was evidence which narrowed the identity of the sabre’s manufacturer to one of the two defendants, but insufficient evidence to link the sabre to a single manufacturer.
    2. 14.3 Show/Hide More Ravo v. Rogatnick--"The Indivisible Brain Damage"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      If each member of a group of defendants negligently contributes to an indivisible injury, should courts impose liability upon the entire group?
      Notes:
      Plaintiff was severely and permanently retarded due to brain damage suffering at birth. Evidence proved that defendant obstetrician had committed eight separate acts of medical malpractice during the birth, and that the defendant pediatrician had committed three separate acts of medical malpractice after the birth. Expert witnesses maintained that the brain damage could have been caused by either one of the defendants’ negligence, or by the combined negligence of both. However, the experts did not believe that they could accurately tell what “percentage” of the plaintiff’s brain damage was due to obstetrician’s wrongful acts, as opposed to the pediatrician’s.
  15. 15 Show/Hide More Proximate Cause
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates

    Proximate cause tends to be the least understood element of the case for negligence. It may be best to think of it as a catch-all: even with every other element satisfied, there might be philosophical or policy reasons to ask a plaintiff to show more. The “duty” element of negligence, as we have seen, has also served this role – a way of circumscribing liability through fiat, as a matter of law, and therefore early in a case. Proximate cause is harder to pin down; whether it’s been met can become a jury issue when a judge thinks it’s not an easy call. (Indeed, in the celebrated Palsgraf case for today, the dueling opinions differ on whether the hiccup found within the fact pattern is best categorized as one of duty (Cardozo) or proximate cause (Andrews).)

    Perhaps the best way to capture the essence of proximate cause is in a single word: fortuity. Sometimes only the barest fortuity ends up linking the other elements of negligence, and in those cases we stop to consider whether there should be liability. Our opening case of the year, Vosburg, saw the prospect of major harm from a simple kick to the leg in a classroom. Fair to have the defendant pay all? The law’s answer tends to be yes.

    Suppose I’m speeding recklessly, and a falling boulder strikes the car spontaneously from above, injuring my passenger. My negligence – represented by the speeding – was a but-for cause of the harm, since if I’d been going slower (or faster, for that matter), the boulder would have missed us. But it’s a mere fortuity that my negligent act caused the harm in question; the harm is not anticipated from the undue risk that makes my behavior negligent. Fair for me to pay for my passenger’s harm, if I wouldn’t be responsible if the boulder hit us when we were driving normally? The law’s answer tends to be no.

    Proximate cause comes up when fortuity is at work, and the cases we review today seek patterns in the spectrum from Vosburg’s “eggshell plaintiff” rule to the no-liability outcome of the boulder hypothetical.

    1. 15.1 Show/Hide More In re Polemis--"The Plank that Exploded a Ship"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should defendants be directly liable for their negligence, even if the type of damage was not reasonably foreseeable?
      Notes:
      Stevedores (dockworkers) employed by the defendant accidentally knocked over a wooden plank while moving cargo on plaintiff's ship. The fallen plank somehow created a spark, which ignites the ship's flammable cargo. Plaintiff's entire ship is destroyed as a result.
    2. 15.2 Show/Hide More Wagner v. International Railway Co.--"The Injured, Would-Be-Rescuer"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should defendants be liable for a rescuer who is hurt when attempting to aid victims of defendant's wrongful conduct?
      Notes:
      Plaintiff's cousin was thrown from defendant's rail car after the car rounded a sharp corner. The conductor employed by the defendant had failed to close the doors of the car. At the time the cousin was thrown, the car was on tracks raised twenty-five feet high and near a bridge. The plaintiff was injured when he slipped and fell from the rail tracks while looking for his cousin's body.
    3. 15.3 Show/Hide More Palsgraf v. Long Island Railroad Co.--"The Fireworks on the Train Platform"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates

      Should courts only impose liability when a duty to the victim exists prior to the injury; or should courts extend liability to all victims whose injuries are closely linked to the defendant's wrongful act, even if harms suffered were not foreseeable?

      A Comic of Palsgraf— http://i.imgur.com/6KnoA.jpg

      Notes:
      A man&#8212;carrying a package and running to catch a train&#8212;jumped aboard the moving car. When the man appeared as if he might fall back off, defendant's guard pushed the man from behind to help him keep his balance. During this act, the man's package fell to the rails and exploded. The explosion threw down some scales on the other end of the platform, many feet away, injuring the plaintiff. Nothing in the appearance of the package suggested that it contained explosives.
    4. 15.4 Show/Hide More Benn v. Thomas--"The Time-Delayed Heart Attack"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should a negligent actor be liable for the unforeseeably severe injuries of unusually sensitive victims?
      Notes:
      Defendant rear-ended a vehicle in which the plaintiff was a passenger. As a direct result of the collision, plaintiff suffered a bruised chest and fractured ankle. Six days later, he died of a heart attack. One medical expert testified that the car accident had set off the fatal heart attack; other experts disagreed.
    5. 15.5 Show/Hide More Steinhauser v. Hertz Corp.--"The Sudden Schizophrenia Case"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should a defendant be liable if their wrongful act that triggers a harmful state in a latent condition?
      Notes:
      Defendant got into a car accident with plaintiff's family. Before the collision, the plaintiff had a predisposition to schizophrenia. After the collision, plaintiff's mental condition swiftly deteriorated. Plaintiff was diagnosed with schizophrenia and hospitalized after a suicide attempt. Expert medical testimony suggests that the car crash was a &#8220;precipitating factor&#8221; in the plaintiff's outbreak of schizophrenia, but not the sole cause.
    6. 15.6 Show/Hide More Gibson v. Garcia--"The Rotten Telephone Pole and the Car"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should courts allow intervening, wrongful acts to “supersede” a defendant's negligence, and thereby cut off his liability?
      Notes:
      Plaintiff was injured by the falling of the defendant transit line company's rotten&#8212;and thus, negligently maintained&#8212;wooden pole. However, the pole had fallen after defendant Garcia had negligently crashed into the pole with his car.
    7. 15.7 Show/Hide More Darby v. National Trust--"The Rat Urine as Proximate Cause Case"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should defendants be liable for a failure to warn, if the plaintiff's harm was not the type to be warned against? What if the warning would have, nevertheless, diverted the plaintiff away from the harm?
      Notes:
      Defendant owned a pond which was actively used and known as a place of recreation for the local community. Due to the presence of rat urine in the water, swimmers faced a risk of contracting Weils disease. However, the defendant did not post any signs warning the community of the risk. While the plaintiff's husband played hide-e-boo with his children, he accidentally slipped underwater due to the depth and drowned. Plaintiff sued the defendant on the theory that the existence of warning signs for Weils disease would have caused the plaintiff's husband to refrain from entering the water; thereby avoiding th