Torts – Supplemental Materials Part II

Professor Gregory Dolin Section 608-339

Fall 2011

ROBERT RIGHT v. KIMBERLY BREEN

SC 17439

SUPREME COURT OF CONNECTICUT

277 Conn. 364; 890 A.2d 1287; 2006 Conn. LEXIS 55

November 28, 2005, Argued February 28, 2006, Officially Released

defendant--a 1989 head-on collision, an incident in the KATZ, J. The issue in this certified appeal is early 1990s in which he backed a vehicle into a pole, and whether a plaintiff in a negligence action must be a 1995 high impact collision in which the plaintiff's awarded nominal damages, thereby making the vehicle was hit from behind on the highway--as well as defendant potentially liable for costs, when the defendant accidents that occurred after the May, 2000 collision--a admits liability but denies having caused the alleged 2001 rear impact collision, and a 2002 low impact injury, and the fact finder thereafter concludes that the collision. Using a verdict form provided by the plaintiff, plaintiff failed to prove that he suffered any injury as a the jury returned a verdict of zero economic damages and result of the defendant's conduct. This case affords us an zero noneconomic damages, and the trial court accepted opportunity to address this court's statement in Keller v. the verdict. Carone, 138 Conn. 405, 406-407, 85 A.2d 489 (1951), that a defendant's admission of liability establishes that the plaintiff has suffered a "legal injury" and therefore is The plaintiff then filed motions to set aside the entitled to "at least nominal damages." verdict and for additur, arguing that, under Connecticut case law, he was entitled to at least nominal damages *** because he had suffered a technical legal injury that The record discloses the following relevant facts and admittedly had been caused by the defendant. … The procedural history. In May, 2000, the plaintiff had trial court granted the plaintiff's motions, setting aside stopped his automobile at a red traffic light when it was the jury's verdict and awarding the plaintiff $1, "… struck from behind by a vehicle driven by the defendant. premised upon the defendant's admission of negligence." There was minor damage to the plaintiff's vehicle, but no The plaintiff filed a bill of costs … The trial court physical injuries were reported at the accident scene. awarded the plaintiff the $ 467.10 in nonmedical costs, in Thereafter, the plaintiff brought this action, alleging that, addition to the $ 1 nominal damage award…. 4 as a result of the defendant's negligence, he had suffered bodily injury leading to both economic and noneconomic 4 In light of the jury's verdict in her favor; see damages. In her answer, the defendant admitted that the footnote 3 of this opinion; the defendant also vehicle she was operating had struck the plaintiff's filed a bill of costs, pursuant to § 52-257, vehicle. She denied, however, the plaintiff's allegation requesting $ 681. The trial court implicitly denied that "the injuries and damages suffered by the plaintiff this request when it awarded costs to the plaintiff. were a result of the negligence and carelessness of the defendant . . . ." The defendant appealed from the judgment of the trial court to the Appellate Court …. At trial, the plaintiff presented evidence concerning his injuries that allegedly had resulted from the impact of *** the collision. Because the defendant contended that the [W]e are not inclined to obliterate the distinction plaintiff's injuries were the result of various other between intentional and unintentional conduct in terms automobile accidents, the plaintiff also presented of legal consequences which it serves to implement. evidence concerning accidents in which he had been Where the plaintiff's right has been intentionally invaded, involved prior to the May, 2000 collision with the its vindication in a court of law and the award of nominal

1 and even exemplary damages serves the policy of deterrence in a real sense. It is difficult to imagine what purpose would be furthered by permitting anyone who is jostled in a crowd or otherwise suffers some unintended contact with his person or injury to his dignity to set in motion the judicial machinery necessary for a recovery of nominal damages. That judges and juries have more important business to occupy them is as true today as it was in ancient times when the rule originated. There is nothing arcane about the wisdom of not cluttering the courts with trivia." Thus, this court clarified our common law to reflect the different treatment accorded to intentional and negligent acts--allowing recovery of nominal damages where a plaintiff's right intentionally has been invaded, but allowing recovery only upon proof of causation and of actual damages where a plaintiff's right negligently has been invaded. *** Such a result is consistent with our case law holding that the "essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." Without proof of each of these elements, a plaintiff's cause fails entirely, and he is not entitled to have the question of damages considered. This is because conduct that is merely negligent, without proof of an actual injury, is not considered to be a significant interference with the public interest such that there is any right to complain of it, or to be free from it. The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case to the trial court with direction to render judgment for the defendant and to modify the order of costs accordingly. In this opinion the other justices concurred.

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SHIRLEY HALE v. ERWIN OSTROW, ET AL.

No. W2003-01256-SC-R11-CV

SUPREME COURT OF TENNESSEE, AT JACKSON

166 S.W.3d 713; 2005 Tenn. LEXIS 612

April 6, 2005, Argued July 1, 2005, Filed

street to check for traffic. As she looked up, she tripped OPINION BY: E. RILEY ANDERSON over a chunk of concrete and fell into the street. Ms. Hale's left hip was crushed in the fall, and she required extensive medical care. We granted review to determine whether the property owners owed a duty to a person injured off the The bushes that had overgrown the sidewalk were owners' property as a result of a hazard existing on the located in front of 1073 Mississippi Boulevard. That owners' property and if so, to determine whether the property, a vacant lot, was owned by the defendants Max hazard was the cause of the injury. The trial court Ostrow, Erwin Ostrow, and Rose Ostrow (collectively, granted summary judgment to the defendant property "the Ostrows" or "defendants"). The crumbled sidewalk, owners, and the Court of Appeals affirmed. After and the spot where Ms. Hale actually fell, were located carefully reviewing the record and applicable authority, in front of 1063 Mississippi Boulevard. That property we conclude that the defendants owed a duty of care to was not owned by the defendants. the plaintiff to ensure that the sidewalk was not Ms. Hale filed suit against the Ostrows in the Circuit obstructed by overgrown bushes and was passable. Court for Shelby County, Tennessee, on theories of Viewing the evidence in the light most favorable to the premises liability and public nuisance. The Ostrows plaintiff, there are genuine issues of material fact as to moved for summary judgment on the negligence claim, whether the defendants' breach caused her injury. We arguing that a property owner owes no duty of care to a therefore reverse and remand for further proceedings. person injured on another's property. Because Ms. Hale's

injury occurred when she tripped on the sidewalk located Background in front of 1063 Mississippi Boulevard, rather than in The record on summary judgment contains the front of the Ostrows' property at 1073 Mississippi following facts, which we consider in the light most Boulevard, the Ostrows argued that they owed no duty to favorable to the plaintiff, the nonmoving party. On May Ms. Hale because she never entered their property. 27, 1998, plaintiff Shirley Hale ("Ms. Hale") was Moreover, they argued that her injury was caused by the walking home from a bus stop in Memphis, Tennessee. defective sidewalk, not by the overgrown bushes. She had taken a different bus than usual and so was The trial court granted summary judgment to the walking a route along a sidewalk that she did not Ostrows without stating any grounds, and the Court of normally travel. As she proceeded south on Mississippi Appeals affirmed. The Court of Appeals held that Ms. Boulevard, a busy street, she noticed that the sidewalk Hale could not succeed on either a theory of premises ahead was blocked. Bushes protruding from 1073 liability or of public nuisance because she could not Mississippi Boulevard had overgrown the sidewalk and establish that the overgrowth was a proximate cause of had grown around a telephone pole located on the her injury. The intermediate appellate court relied on the sidewalk, blocking Ms. Hale's way. Ms. Hale determined fact that Ms. Hale never actually reached the bushes that she had to leave the sidewalk and enter the street in before she fell. Judge Kirby dissented from the Court of order to bypass the obstruction. She noticed that the Appeals' opinion, arguing that there existed a genuine sidewalk was "crumbled." As she left the sidewalk, but issue of material fact as to whether Ms. Hale had left the before she reached the bushes, Ms. Hale looked into the

3 sidewalk and tripped because of her need to avoid the Conclusion bushes.

We granted review. ***

Analysis Viewing the evidence in the light most favorable to Ms. Hale, there are genuine issues of material fact as to *** whether the Ostrows' breach of their duty of care caused

her injury. We therefore remand the case to the trial court Causation for further proceedings. As we often recite, a negligence claim requires proof *** of two types of causation: causation in fact and proximate cause. "Causation [in fact] and proximate cause are distinct elements of negligence, and both must be proven by the plaintiff by a preponderance of the evidence." Cause in fact and proximate cause are "ordinarily jury questions, unless the uncontroverted facts and inferences to be drawn from them make it so clear that all reasonable persons must agree on the proper outcome." The defendant's conduct is the cause in fact of the plaintiff's injury if, as a factual matter, it directly contributed to the plaintiff's injury. In a case such as this one, we must ask whether the plaintiff's injury would have happened "but for" the defendants' act. If not, then the defendants' conduct is a cause in fact of the plaintiff's injury. It is not necessary that the defendants' act be the sole cause of the plaintiff's injury, only that it be a cause. Viewing the facts in the light most favorable to Ms. Hale, there is a genuine issue of material fact as to whether the overgrown bushes on the Ostrows' property were a cause in fact of her injury. Ms. Hale stated in her deposition that the bushes had completely overgrown the sidewalk, that she determined that she could not bypass the bushes on the sidewalk, and that she therefore decided to leave the sidewalk and step into the street. As she did so, she looked up to check for traffic and tripped over the broken sidewalk. But for the bushes overgrowing the sidewalk, Ms. Hale would not have looked up to check for traffic, as she would not have needed to step into the street. Might she nevertheless have tripped over the concrete and suffered the same injury? Indeed she might have. Given that the evidence on summary judgment must be viewed in the light most favorable to the plaintiff, however, the issue of causation, as well as the allocation of comparative fault, are determinations of fact to be made by the jury.

*** Viewing the facts in the light most favorable to Ms. Hale, there is a genuine issue of material fact as to whether the bushes were a substantial factor in her fall ….

4

JAMES LEROY JACKSON, Plaintiff-Appellee, v. JOHNS-MANVILLE SALES CORPORATION and RAYBESTOS-MANHATTAN, INC., Defendants-Appellants

No. 82-4288

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

781 F.2d 394; 1986 U.S. App. LEXIS 21866; CCH Prod. Liab. Rep. P10,893

January 22, 1986

PROCEDURAL POSTURE: Defendant companies A. Recovery for Cancer. appealed from a judgment of the United States District Court for the Southern District of Mississippi awarding All parties concede that Jackson does not presently plaintiff worker compensatory and punitive damages in a have cancer. The defendants argue that if Jackson does personal injury action related to plaintiff worker's get cancer, he will be able to sue for compensatory exposure to asbestos manufactured by defendant damages associated with cancer at that time -- that is, companies. once the disease manifests itself. Jackson maintains that recovery is appropriate now since the potential development of cancer represents a future injury based CAROLYN DINEEN RANDALL, Circuit Judge: on a presently existing cause of action. Relatedly, [Plaintiff contracted asbestosis as a result of Jackson also argues that he must recover for cancer now exposure to asbestos manufactures by the defendants. or else the claim will be barred by the statute of Individuals who have asbestosis have a 50% chance of limitations. developing cancer.] *** The three issues left unresolved by this court's en The debate between the parties pivots on a single banc opinion in Jackson II are as follows: question, namely: What is the cause of action on which

Jackson seeks recovery? The defendants contend that *** the existing cause of action is the existence of asbestosis. (2) whether a Plaintiff who does not Jackson's position is that his cause of action is the presently have cancer can state a claim or inhalation of asbestos fibers "and the invasion of his recover damages in an action based upon body by those fibers, thus causing . . . physical damage." strict liability in tort for mental distress *** resulting from his knowledge that he has an increased risk of contracting cancer in "The general rule is that where it is established that the future; future consequences from an injury to a person will ensue, recovery therefor may be had, but such future (3) whether a Plaintiff who does not consequences must be established in terms of reasonable presently have cancer can state a claim or probabilities." Defendants respond that cancer does not recover damages in an action based upon develop from asbestosis, that it can never be a future strict liability in tort for the reasonable consequence of asbestosis. Cancer is presumably a medical probability of contracting cancer separate injury, and recovery must therefore await in the future. manifestation. This assertion is medically sound, but

legally awry. In a sense, the injury in this case is the

inhalation of asbestos fibers. It was not an actionable We now answer each question affirmatively, and affirm injury, however, meaning it was not legally cognizable, the judgment of the district court. until at least one evil effect of the inhalation became *** manifest. There was no cause of action at all, in other words, until the asbestosis appeared. In this case, the III. COMPENSABLE INJURIES effects of inhaling asbestos manifested themselves initially as asbestosis. In a different plaintiff, they may *** have manifested themselves as something as innocuous

5 as asbestos callouses or as lethal as mesothelioma. But in knowledge causes him anguish, or that this anguish is any event, once the injury becomes actionable -- once reasonable? Certainly not this court and, in our view, not some effect appears -- then the plaintiff is permitted to the Mississippi Supreme Court. 27 recover for all probable future manifestations as well. *** Under Mississippi law, damage awards for mental distress may be rendered when either of two conditions is Of course, a plaintiff who sues with nothing more satisfied: when the plaintiff's mental suffering is than hand callouses may have a significantly lower accompanied by a physical injury, or when the plaintiff likelihood of developing cancer than does a plaintiff who establishes the defendant's misconduct to have been exhibits asbestosis. That would be a question for the jury, wilful, gross, or wanton. "There can be no recovery for to be decided by listening to and evaluating conflicting mental pain and suffering from the mere negligent act of medical testimony. This plaintiff, however, has another unaccompanied by physical or bodily injury. asbestosis; and evidence adduced at trial indicates that he However, damages are recoverable for mental pain and has a greater than fifty percent chance of getting cancer. anguish by a wilful, wanton, malicious, or intentional Recovery for that possibility is permissible under wrong even though no bodily injury was sustained". Mississippi law. *** B. Fear. The record in this case supports either ground of recovery. In Part II, supra, we adverted to the jury's Jackson also maintains that the cancer evidence ostensible conclusion in awarding punitive damages that introduced at trial was relevant insofar as it elucidates the the defendants' conduct had been egregious. That same basis of the mental distress he has suffered due to the predicate justifies an award for injuries arising out of knowledge that he will probably get cancer. The mental distress. In addition, Jackson's distress is defendants repeat their earlier argument: that "since there accompanied by a present physical injury: He has is no evidence that cancer 'develops from' asbestosis asbestosis. there can be no recovery for fear of an injury which has not occurred, and does not 'develop from' any of *** Jackson's presently existing injuries."

*** IV. CONCLUSION. Jackson's fear is plainly a present injury. It is a fear *** which he experiences every day and every night. It is Accordingly, the judgment of the district court is fear which is exacerbated each time he learns that AFFIRMED. another victim of asbestos has died of lung cancer. It is fear which, regardless of whether Jackson actually gets cancer, will haunt him for the rest of his life. Jackson's claim is not merely that he might get cancer, or that there is a remote possibility that he will. Jackson has established that there is a greater than fifty percent chance that he will get cancer. Who can gainsay that this

6

ROGER MAURO AND LOIS MAURO, HIS WIFE, PLAINTIFFS-APPELLANTS, v. RAYMARK INDUSTRIES, INC., CELOTEX CORPORATION, GAF CORPORATION, SOUTHERN TEXTILE CORPORATION, PACOR, INC., OWENS-ILLINOIS GLASS COMPANY, H.K. PORTER COMPANY, INC., GARLOCK, INC., CERTAINTEED PRODUCTS CORPORATION, FIBREBOARD CORPORATION, AND JOHN DOE, DEFENDANTS, AND OWENSCORNING FIBERGLAS CORPORATION, PITTSBURGH CORNING CORPORATION, EAGLE-PICHER INDUSTRIES, INC., AND KEENE CORPORATION, DEFENDANTS-RESPONDENTS

No. A-100

Supreme Court of New Jersey

116 N.J. 126; 561 A.2d 257; 1989 N.J. LEXIS 100; 14 OSHC (BNA) 1161; CCH Prod. Liab. Rep. P12,234

February 15, 1989, Argued August 1, 1989, Decided

PROCEDURAL POSTURE: Plaintiff appealed examination and lung function test were the order of the Superior Court, Appellate "normal," he had bilateral thickening of both Division (New Jersey), affirming the trial court's chest walls and calcification of the diaphragm. rejection of plaintiff's enhanced risk of cancer Dr. Gann's letter informing plaintiff of his claim in a case involving personal injury claims condition stated: "[Y]our exposure to asbestos against private-entity defendants asserted by has been significant and there is some evidence plaintiff with present injuries attributed to that this exposure may increase the risk of asbestos exposure. development of lung cancer."

Mauro testified that when informed of his OPINION BY: STEIN condition, he became "very angry, very upset."

He feared contracting cancer because his mother *** and a prior employer had died of the disease. He subsequently consulted a pulmonary specialist, I. by whom he has been examined every six months since 1982. Mauro has also had annual Plaintiffs, Roger Mauro (hereinafter chest x-rays. He testified that the reason for his plaintiff) and Lois Mauro, his wife, instituted medical surveillance is "to find out if I'm going this action against several manufacturers of to get cancer and when I'm going to get it." asbestos products based on injuries allegedly sustained as a result of inhalation of asbestos *** fibers in the course of Mauro's employment at In its charge to the jury at the conclusion of Ancora State Psychiatric Hospital. the trial, the trial court rejected Mauro's claim for *** enhanced risk of developing cancer. The court explained: In 1981 plaintiff and his co-workers participated in tests conducted by the New Jersey There's no testimony that the Department of Health to determine the Plaintiff Roger has cancer or that prevalence of asbestos-related disease among he likely will get cancer. In New plumbers and steamfitters in state institutions. Jersey damages may not be Plaintiff was informed by Dr. Peter Gann, the awarded for any future injury department's Chief of Occupational Medicine, which is merely possible but not that although the results of his physical probable.

7

The reason for this rule is more or less permanent in nature simple. In this state, if the * * * he is entitled to recover Plaintiff were to get cancer damages not only for harm sometime in the future and claim already suffered, but also for that same to have been due to an which probably will result in the alleged asbestos exposure, at that future. [Restatement (Second) of point he could file a new lawsuit Torts § 912 comment e (1979).] seeking damages for that cancer.

Accordingly, even if you conclude that the plaintiff has an The long-standing rule in New Jersey is that enhanced risk of developing prospective damages are not recoverable unless cancer, you may not award any they are reasonably probable to occur. The damages for that risk. rationale for adopting this standard was explained by Justice Francis, then sitting in the Appellate Division, in Budden v. Goldstein, 43 N.J.Super. 340, 346-47 (1957): However, the court permitted the jury to consider Mauro's claim for damages caused by In the admeasurement of emotional distress relating to his fear of damages, it is well known that no developing cancer, provided the jury found that recovery can be allowed for Mauro sustained an asbestos-related injury. The possible future consequences of court also permitted the jury to consider Mauro's an injury inflicted by a claim for damages caused by his present medical wrongdoer. In order for condition, as well as the cost of future medical suggested future results to be surveillance. includible as an element of The jury returned a verdict of $ 7,500 in damage, it must appear that they favor of plaintiff Roger Mauro and against are reasonably certain or defendants Owens-Corning, Pittsburgh Corning, reasonably probable to follow. and Eagle-Picher Industries. Defendant Keene * * * [M]any of the Corporation was found not liable on all counts. authorities throughout the country The jury found against Lois Mauro on her claim use the expression "reasonably for loss of companionship and consortium. certain" or "reasonable certainty" *** as the test and consider "reasonably probable" or II. "reasonable probability" inadequate and erroneous; others *** accept the latter statement. Our cases do not seem to have dealt It is important to recognize at the outset that the specifically with the question of rule of law advocated by plaintiffs, i.e., that tort whether the two have the same victims should have a present cause of action for significance in relation to a significant but unquantified enhanced risk of quantum of proof, and so may be future injury, represents a significant departure used interchangeably. It seems to from traditional, prevailing legal principles. The us that in a resolution of the general rule is that set forth in the Restatement: conflicting interests involved, reasonable probability is the just When an injured person seeks to yardstick to be applied. recover for harms that may result Basically, our view comes down in the future, he is entitled to to this: a consequence of an injury damages based upon the which is possible, which may probability that harm of one sort possibly ensue, is a risk which the or another will ensue and upon its injured person must bear because probable seriousness if it should the law cannot be administered so ensue. When a person has as to do reasonably efficient suffered physical harm that is justice if conjecture and

8

speculation are to be used as a chemicals. Defendant contends measure of damages. On the that the claim for medical other hand, a consequence which surveillance damages cannot be stands on the plane of reasonable sustained, as a matter of law, if probability, although it is not the plaintiffs' enhanced risk of [***13] certain to occur, may be injury is not sufficiently probable considered in the evaluation of to be compensable. In our view, the damage claim against the however, recognition of the defendant. In this way, to the medical surveillance claim is not extent that men can achieve necessarily dependent on justice through general rules, a recognition of the enhanced risk just balance of the warring claim. [106 N.J. at 590-91.] interests is accomplished. [Citations omitted]. ***

Nor is there any question concerning the *** right of a plaintiff who has sustained physical

injury because of exposure to toxic chemicals to

recover damages for emotional distress based on In Ayers, we also explained the significant a reasonable concern that he or she has an distinctions between a claim for damages based enhanced risk of further disease. on enhanced risk of injury and a claim for *** medical-surveillance damages. We first observe that the decided cases The enhanced risk claim seeks a throughout the country that have considered the damage award, not because of any question, … are almost uniform in their expenditure of funds, but because conclusion that in order to recover damages, plaintiffs contend that the plaintiff must prove that the prospective disease unquantified injury to their health is at least reasonably probable to occur. and life expectancy should be presently compensable, even Although the weight of authority compellingly argues against recognition of an though no evidence of disease is manifest. Defendant does not enhanced-risk-of-cancer claim by a plaintiff with dispute the causal relationship an asbestos-related injury absent proof that between the plaintiffs' exposure to satisfies the standard of reasonable medical toxic chemicals and the plaintiffs' probability, our analysis would be incomplete without consideration of policy arguments that increased risk of diseases, but contends that the probability that oppose the general rule. Foremost among these plaintiffs will actually become ill is the concern that deferral of the prospective- injury claim may preclude any recovery when from their exposure to chemicals is too remote to warrant the disease eventually occurs because of the compensation under principles of substantial difficulties inherent in attempting to prove causation in toxic-tort cases. If the tort law. enhanced-risk claim is deferred, a plaintiff By contrast, the claim for asserting the claim when the second injury medical surveillance does not occurs will inevitably confront the defense that seek compensation for an the injury did not result from exposure to toxic unquantifiable injury, but rather chemicals but was "the product of intervening seeks specific monetary damages events or causes." measured by the cost of periodic medical examinations. The Recognition of a claim for significantly invasion for which redress is enhanced risk of disease would also enhance the tort-law's capacity to deter the improper use of sought is the fact that plaintiffs have been advised to spend toxic chemicals and substances, thereby money for medical tests, a cost addressing the contention that tort law cannot they would not have incurred deter polluters who view the cost of proper use absent their exposure to toxic

9 or disposal as exceeding the risk of tort liability. If the disease never occurs, presumably there Id. at 604. will be no claim and no recovery. If it does occur, the resultant litigation will involve a *** tangible claim for present injury, rather than a Equally persuasive to this Court, however, is speculative claim for future injury. Hence, juries the availability of a future opportunity to assert will be better able to award damages in an such claims if and when the disease occurs, amount that fairly reflects the nature and severity combined with the present availability of of the plaintiff's injury. medical surveillance and emotional distress damages in appropriate cases. In our view, III. removal of the statute-of-limitations and single- *** controversy doctrines as a bar to the institution of suit when the disease for which plaintiff is at Judgment affirmed. risk ultimately occurs enhances the quality of the remedy that tort law can provide in such cases.

10

Mindy Hymowitz, Respondent, v. Eli Lilly and Company et al., Appellants, et al., Defendants. Attorney-General of the State of New York, Intervenor-Respondent; Elizabeth Tigue et al., Respondents, v. E. R. Squibb & Sons, Inc., et al., Appellants, et al., Defendants; Jane Dolan et al., Respondents, v. Eli Lilly and Company et al., Appellants. (And Other Actions.); Barbara Hanfling et al., Respondents, v. Eli Lilly and Company et al., Appellants, et al., Defendants

[NO NUMBER IN ORIGINAL]

Court of Appeals of New York

73 N.Y.2d 487; 539 N.E.2d 1069; 541 N.Y.S.2d 941; 1989 N.Y. LEXIS 389; CCH Prod. Liab. Rep. P12,182

February 15, 1989, Argued April 4, 1989, Decided

OPINION BY: WACHTLER offspring of mothers who took the drug. Specifically, tests indicated that DES caused vaginal adenocarcinoma, Plaintiffs in these appeals allege that they were a form of cancer, and adenosis, a precancerous vaginal or injured by the drug diethylstilbestrol (DES) ingested by cervical growth. their mothers during pregnancy. They seek relief against defendant DES manufacturers. While not class actions, Although strong evidence links prenatal DES these cases are representative of nearly 500 similar exposure to later development of serious medical actions pending in the courts in this State; the rules problems, plaintiffs seeking relief in court for their articulated by the court here, therefore, must do justice injuries faced two formidable and fundamental barriers and be administratively feasible in the context of this to recovery in this State; not only is identification of the mass litigation. With this in mind, we now resolve the manufacturer of the DES ingested in a particular case issue twice expressly left open by this court, and adopt a generally impossible, but, due to the latent nature of DES market share theory, using a national market, for injuries, many claims were barred by the Statute of determining liability and apportioning damages in DES Limitations before the injury was discovered. cases in which identification of the manufacturer of the The identification problem has many causes. All drug that injured the plaintiff is impossible. … DES was of identical chemical composition. Druggists

usually filled prescriptions from whatever was on hand. I. Approximately 300 manufacturers produced the drug, *** with companies entering and leaving the market continuously during the 24 years that DES was sold for In 1941, the Food and Drug Administration (FDA) pregnancy use. The long latency period of a DES injury approved the new drug applications (NDA) of 12 compounds the identification problem; memories fade, manufacturers to market DES for the treatment of records are lost or destroyed, and witnesses die. Thus various maladies, not directly involving pregnancy. In the pregnant women who took DES generally never 1947, the FDA began approving the NDAs of knew who produced the drug they took, and there was no manufacturers to market DES for the purpose of reason to attempt to discover this fact until many years preventing human miscarriages; by 1951, the FDA had after ingestion, at which time the information is not concluded that DES was generally safe for pregnancy available. use, and stopped requiring the filing of NDAs when new manufacturers sought to produce the drug for this *** purpose. In 1971, however, the FDA banned the use of The present appeals are before the court in the DES as a miscarriage preventative, when studies context of summary judgment motions. In all of the established the harmful latent effects of DES upon the

11 appeals defendants moved for summary judgment relatively high, so that forcing them to exonerate dismissing the complaints because plaintiffs could not themselves, or be held liable, is not unfair. identify the manufacturer of the drug that allegedly In DES cases, however, there is a great number of injured them. … The trial court denied all of these possible wrongdoers, who entered and left the market at motions. … The Appellate Division affirmed in all different times, and some of whom no longer exist. respects and certified to this court the questions of Additionally, in DES cases many years elapse between whether the orders of the trial court were properly made. the ingestion of the drug and injury. Consequently, DES We answer these questions in the affirmative. defendants are not in any better position than are

plaintiffs to identify the manufacturer of the DES II. ingested in any given case, nor is there any real prospect In a products liability action, identification of the of having all the possible producers before the court. exact defendant whose product injured the plaintiff is, of Finally, while it may be fair to employ alternative course, generally required. In DES cases in which such liability in cases involving only a small number of identification is possible, actions may proceed under potential wrongdoers, that fairness disappears with the established principles of products liability. The record decreasing probability that any one of the defendants now before us, however, presents the question of actually caused the injury. This is particularly true when whether a DES plaintiff may recover against a DES applied to DES where the chance that a particular manufacturer when identification of the producer of the producer caused the injury is often very remote. specific drug that caused the injury is impossible. Alternative liability, therefore, provides DES plaintiffs no relief. A. Nor does the theory of concerted action, in its pure [T]he accepted tort doctrines of alternative liability form, supply a basis for recovery. This doctrine, seen in and concerted action are available in some personal drag racing cases, provides for joint and several liability injury cases to permit recovery where the precise on the part of all defendants having an understanding, identification of a wrongdoer is impossible. However, express or tacit, to participate in "a common plan or we agree with the near unanimous views of the high design to commit a tortious act." [D]rug companies were State courts that have considered the matter that these engaged in extensive parallel conduct in developing and doctrines in their unaltered common-law forms do not marketing DES. There is nothing in the record, however, permit recovery in DES cases. beyond this similar conduct to show any agreement, tacit The paradigm of alternative liability is found in the or otherwise, to market DES for pregnancy use without case of Summers v Tice. In Summers, plaintiff and the taking proper steps to ensure the drug's safety. Parallel two defendants were hunting, and defendants carried activity, without more, is insufficient to establish the identical shotguns and ammunition. During the hunt, agreement element necessary to maintain a concerted defendants shot simultaneously at the same bird, and action claim. Thus this theory also fails in supporting an plaintiff was struck by bird shot from one of the action by DES plaintiffs. defendants' guns. The court held that where two In short, extant common-law doctrines, unmodified, defendants breach a duty to the plaintiff, but there is provide no relief for the DES plaintiff unable to identify uncertainty regarding which one caused the injury, "the the manufacturer of the drug that injured her. This is not burden is upon each such actor to prove that he has not a novel conclusion; in the last decade a number of courts caused the harm.” The central rationale for shifting the in other jurisdictions also have concluded that present burden of proof in such a situation is that without this theories do not support a cause of action in DES cases. device both defendants will be silent, and plaintiff will Some courts, upon reaching this conclusion, have not recover; with alternative liability, however, declined to find any judicial remedy for the DES defendants will be forced to speak, and reveal the plaintiffs who cannot identify the particular manufacturer culpable party, or else be held jointly and severally liable of the DES ingested by their mothers. Other courts, themselves. Consequently, use of the alternative liability however, have found that some modification of existing doctrine generally requires that the defendants have doctrine is appropriate to allow for relief for those better access to information than does the plaintiff, and injured by DES of unknown manufacture. that all possible tort-feasors be before the court. It is also recognized that alternative liability rests on the notion We conclude that the present circumstances call for that where there is a small number of possible recognition of a realistic avenue of relief for plaintiffs wrongdoers, all of whom breached a duty to the plaintiff, injured by DES. These appeals present many of the the likelihood that any one of them injured the plaintiff is same considerations that have prompted this court in the past to modify the rules of personal injury liability, in

12 order "to achieve the ends of justice in a more modern Summers v Tice (supra) alternative liability rationale in context" and we perceive that here judicial action is two ways. It first loosened the requirement that all again required to overcome the "'inordinately difficult possible wrongdoers be before the court, and instead problems of proof'" caused by contemporary products made a "substantial share" sufficient. The court then and marketing techniques. held that each defendant who could not prove that it did not actually injure plaintiff would be liable according to Indeed, it would be inconsistent with the reasonable that manufacturer's market share. The court's central expectations of a modern society to say to these plaintiffs justification for adopting this approach was its belief that that because of the insidious nature of an injury that long limiting a defendant's liability to its market share will remains dormant, and because so many manufacturers, result, over the run of cases, in liability on the part of a each behind a curtain, contributed to the devastation, the defendant roughly equal to the injuries the defendant cost of injury should be borne by the innocent and not actually caused. the wrongdoers. This is particularly so where the Legislature consciously created these expectations by In the recent case of Brown v Superior Ct., the reviving hundreds of DES cases. Consequently, the California Supreme Court resolved some apparent ever-evolving dictates of justice and fairness, which are ambiguity in Sindell v Abbott Labs., and held that a the heart of our common-law system, require formation manufacturer's liability is several only, and, in cases in of a remedy for injuries caused by DES (see, Woods v which all manufacturers in the market are not joined for Lancet, 303 NY 349, 355; see, also, Kaye, The Human any reason, liability will still be limited to market share, Dimension in Appellate Judging: A Brief Reflection on a resulting in a less than 100% recovery for a plaintiff. Timeless Concern, 73 Cornell L Rev 1004). Finally, it is noteworthy that determining market shares under Sindell v Abbott Labs. proved difficult and [*508] We stress, however, that the DES situation engendered years of litigation. After attempts at using is a singular case, with manufacturers acting in a parallel smaller geographical units, it was eventually determined manner to produce an identical, generically marketed that the national market provided the most feasible and product, which causes injury many years later, and which fair solution, and this national market information was has evoked a legislative response reviving previously compiled. barred actions. Given this unusual scenario, it is more appropriate that the loss be borne by those that produced Four years after Sindell v Abbott Labs., the the drug for use during pregnancy, rather than by those Wisconsin Supreme Court followed with Collins v Lilly who were injured by the use, even where the precise & Co. Deciding the identification issue without the manufacturer of the drug cannot be identified in a benefit of the extensive California litigation over market particular action. We turn then to the question of how to shares, the Wisconsin court held that it was prevented fairly and equitably apportion the loss occasioned by from following Sindell due to "the practical difficulty of DES, in a case where the exact manufacturer of the drug defining and proving market share.” Instead of focusing that caused the injury is unknown. on tying liability closely to the odds of actual causation, as the Sindell court attempted, the Collins court took a B. broader perspective, and held that each defendant is The past decade of DES litigation has produced a liable in proportion to the amount of risk it created that number of alternative approaches to resolve this the plaintiff would be injured by DES. Under the Collins question. Thus, in a sense, we are now in an enviable structure, the "risk" each defendant is liable for is a position; the efforts of other courts provided examples question of fact in each case, with market shares being for contending with this difficult issue, and enough time relevant to this determination. Defendants are allowed, has passed so that the actual administration and real however, to exculpate themselves by showing that their effects of these solutions now can be observed. With product could not have caused the injury to the particular these useful guides in hand, a path may be struck for our plaintiff. own conclusion. The Washington Supreme Court, writing soon after *** Collins v Lilly & Co., took yet another approach. The Martin court first rejected the Sindell market share A narrower basis for liability, tailored more closely theory due to the belief (which later proved to be to the varying culpableness of individual DES producers, erroneous in Brown v Superior Ct.) that California's is the market share concept. First judicially articulated approach distorted liability by inflating market shares to by the California Supreme Court in Sindell v Abbott ensure plaintiffs of full recovery. The Martin court Labs., variations upon this theme have been adopted by instead adopted what it termed "market share alternative other courts. In Sindell v Abbott Labs (supra), the court liability," justified, it concluded, because "[each] synthesized the market share concept by modifying the defendant contributed to the risk of injury to the public,

13 and, consequently, the risk of injury to individual perhaps the most daunting is the spectre that the plaintiffs." particular case could require the establishment of a separate market share matrix. We feel that this is an Under the Washington scheme, defendants are first unfair, and perhaps impossible burden to routinely place allowed to exculpate themselves by proving by the upon the litigants in individual cases. preponderance of the evidence that they were not the manufacturer of the DES that injured plaintiff. Nor do we believe that the Wisconsin approach of Unexculpated defendants are presumed to have equal assessing the "risk" each defendant caused a particular market shares, totaling 100%. Each defendant then has plaintiff, to be litigated anew as a question of fact in each the opportunity to rebut this presumption by showing case, is the best solution for this State. Applied on a that its actual market share was less than presumed. If limited scale this theory may be feasible, and certainly is any defendants succeed in rebutting this presumption, the the most refined approach by allowing a more thorough liability shares of the remaining defendants who could consideration of how each defendant's actions threatened not prove their actual market share are inflated, so that the plaintiff. We are wary, however, of setting loose, for the plaintiff received a 100% recovery.1 The market application in the hundreds of cases pending in this State, shares of defendants is a question of fact in each case, a theory which requires the fact finder's individualized and the relevant market can be a particular pharmacy, or and open-ended assessment of the relative liabilities of county, or State, or even the country, depending upon the scores of defendants in every case. Instead, it is our circumstances the case presents. perception that the injustices arising from delayed recoveries and inconsistent results which this theory may 1 The actual operation of this theory proved produce in this State outweigh arguments calling for its more mathematically complex when the court adoption. was presented with the question of what to do Consequently, for essentially practical reasons, we about unavailable defendants. Recognizing that adopt a market share theory using a national market. We the possibility of abuse existed when defendants are aware that the adoption of a national market will implead unavailable defendants, who would then likely result in a disproportion between the liability of be assumed to have had an equal share of the individual manufacturers and the actual injuries each market, the court placed the burden upon manufacturer caused in this State. Thus our market share appearing defendants to prove the market share of theory cannot be founded upon the belief that, over the the absent ones. If this can be proved, the plaintiff run of cases, liability will approximate causation in this simply cannot recover the amount attributable to State. Nor does the use of a national market provide a the absent defendant, and thus recovery in the reasonable link between liability and the risk created by a case is less than 100%. If the market share of the defendant to a particular plaintiff. Instead, we choose to absent defendant cannot be shown, the remaining apportion liability so as to correspond to the over-all defendants who cannot prove their market shares culpability of each defendant, measured by the amount of have their shares inflated to provide plaintiff with risk of injury each defendant created to the public-at- full recovery. Finally, if all appearing defendants large. Use of a national market is a fair method, we can prove their market shares, their shares are believe, of apportioning defendants' liabilities according never inflated, regardless of whether the market to their total culpability in marketing DES for use during share of a nonappearing defendant can be proved pregnancy. Under the circumstances, this is an equitable or not; thus, in this situation, the plaintiff again way to provide plaintiffs with the relief they deserve, will not recover her full damages. while also rationally distributing the responsibility for Turning to the structure to be adopted in New York, plaintiffs' injuries among defendants. we heed both the lessons learned through experience in To be sure, a defendant cannot be held liable if it did other jurisdictions and the realities of the mass litigation not participate in the marketing of DES for pregnancy of DES claims in this State. Balancing these use; if a DES producer satisfies its burden of proof of considerations, we are led to the conclusion that a market showing that it was not a member of the market of DES share theory, based upon a national market, provides the sold for pregnancy use, disallowing exculpation would best solution. As California discovered, the reliable be unfair and unjust. Nevertheless, because liability here determination of any market smaller than the national is based on the over-all risk produced, and not causation one likely is not practicable. Moreover, even if it were in a single case, there should be no exculpation of a possible, of the hundreds of cases in the New York defendant who, although a member of the market courts, without a doubt there are many in which the DES producing DES for pregnancy use, appears not to have that allegedly caused injury was ingested in another caused a particular plaintiff's injury. It is merely a State. Among the thorny issues this could present, windfall for a producer to escape liability solely because

14 it manufactured a more identifiable pill, or sold only to Thus summary judgment cannot at this time be certain drugstores. These fortuities in no way diminish granted on this issue as to any defendants. the culpability of a defendant for marketing the product, Finally, we hold that the liability of DES producers which is the basis of liability here. 2 is several only, and should not be inflated when all

participants in the market are not before the court in a 2 Various defendants argue here that although particular case. We understand that, as a practical matter, they produced DES, it was not sold for pregnancy this will prevent some plaintiffs from recovering 100% use. If a defendant was not a member of the of their damages. However, we eschewed exculpation to national market of DES marketed for pregnancy, prevent the fortuitous avoidance of liability, and thus, it is not culpable, and should not be liable. equitably, we decline to unleash the same forces to Consequently, if a particular defendant sold DES increase a defendant's liability beyond its fair share of in a form unsuitable for use during pregnancy, or responsibility. if a defendant establishes that its product was not

marketed for pregnancy use, there should be no liability. From the record before the court here, *** however, the facts are not developed well enough to establish that any defendants were not in the Accordingly, in each case the order of the Appellate national market of DES sold for pregnancy use. Division should be affirmed, with costs, and the certified question answered in the affirmative.

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HOUSE OF LORDS HUGHES (A.P.) v. LORD ADVOCATE 21st February 1963

LORD GUEST fell or broke, were such that a reasonable man would not have "ignored them." My Lords, ***

In November, 1958, some Post Office employees had In dismissing the Appellant's claim the Lord Ordinary opened a manhole in Russell Road, Edinburgh, for the and the majority of the Judges of the First Division purpose of obtaining access to a telephone cable. The reached the conclusion that the accident which manhole from which the cover had been removed was happened was not reasonably foreseeable. In order to near the edge of the roadway. A shelter tent had been establish a coherent chain of causation it is not erected over the open manhole. The manhole was some necessary that the precise details leading up to the nine feet deep, and a ladder had been placed inside the accident should have been reasonably foreseeable: it is manhole to give access to the cable. Around the area sufficient if the accident which occurred is of a type of. the site had been placed four red warning paraffin which should have been foreseeable by a reasonably lamps. The lamps were lit at 3.30 p.m. About 5 p.m. or careful person or as Lord Mackintosh, at p. 172, 5.30 p.m. the Post Office employees left the site for a expressed it in Harvey, the precise concatenation of tea break, for which purpose they went to an adjoining circumstances need not be envisaged. Concentration Post Office building. Before leaving (they removed the has been placed in the Courts below on the explosion ladder from the manhole and placed it on the ground which it was said could not have been foreseen because beside the shelter and pulled a tarpaulin cover over the it was caused in a unique fashion by the paraffin entrance to the shelter, leaving a space of two feet to forming into vapour and being ignited by the naked two feet, six inches between the lower edge of the flame of the wick. But this, in my opinion, is to tarpaulin and the ground. The lamps were left burning. concentrate on what is really a non-essential element in the dangerous situation created by the allurement. The After they left, the Appellant, aged eight, and his uncle, test might better be put thus:—Was the igniting of aged ten, came along Russell Road and decided to paraffin outside the lamp by the flame a foreseeable explore the shelter. According to the findings of the consequence of the breach of duty? In the Lord Ordinary, the boys (picked up one of the red circumstances there was a combination of potentially lamps, (raised up the tarpaulin sheet and entered the dangerous circumstances against which the Post Office shelter. They brought the ladder into the shelter with a had to protect the Appellant. If these formed an view to descending into the manhole. They also allurement to children it might have been foreseen that brought a piece of rope which was not the Post Office they would play with the lamp, that it might tip over, equipment, tied (the rope to the lamp and, with the that it might be broken, and 'that when broken the lamp, lowered themselves into the manhole. They both paraffin might spill and be ignited by the flame. All came out carrying the lamp. Thereafter, according to these steps in the chain of causation seem to have been the evidence, the Appellant tripped over the lamp, accepted by all the Judges in the Courts below as which fell into the hole. There followed an explosion foreseeable. But because the explosion was the agent from the hole with flames reaching a height of thirty which caused the burning and was unforeseeable, feet. With the explosion the Appellant fell into the hole therefore the accident, according to them, was not and sustained very severe burning injuries. reasonably foreseeable. In my opinion this reasoning is fallacious. An explosion is only one way in which *** burning can be caused. Burning can also be caused by the contact between liquid paraffin and a naked flame. The next step in the Lord Ordinary's reasoning was that In the one case paraffin vapour and in the other case it was reasonable to anticipate that danger would be liquid paraffin is ignited by fire. I cannot see that these likely to result from the children's interference with the are two different types of accident. They are both red lamps and their entrance to the shelter. He has burning accidents and in both cases the injuries would further held that in these circumstances "the normal be burning injuries. Upon this view the explosion was dangers of such children" falling into the manhole or an immaterial event in the chain of causation. It was being in some way injured by a lamp, particularly if it simply one way in which burning might be caused by 16 the potentially dangerous paraffin lamp. I adopt with friend, Lord Guest. respect Lord Carmont's observation in the present case [from the court below]: "The defender cannot, I think, *** escape liability by contending that he did not foresee all the The defenders are therefore liable for all the possibilities of the manner in which allurements—the foreseeable consequences of their neglect. When an manhole and the lantern—would act upon the childish accident is of a different type and kind from anything mind." that a defender could have foreseen he is not liable for it. … The obvious risks were burning and *** conflagration and a fall. All these in fact occurred, but unexpectedly the mishandled lamp instead of causing I have therefore reached the conclusion that the an ordinary conflagration produced a violent explosion. accident which occurred and which caused burning Did the explosion create an accident and damage of a injuries to the Appellant was one which ought different type from the reasonably to have been foreseen by the Post Office misadventure and damage that could be foreseen? In employees and that they were at fault in failing to my judgment it did not. The accident was but a variant provide a protection against the Appellant entering the of the foreseeable. It was, to quote the words of shelter and going down the manhole. Denning, L.J. in Roe v. Minister of Health and Another "within the risk created by the negligence." … The I would allow the appeal. resulting damage, though severe, was not greater than or different in kind from that which might have been LORD PEARCE produced had the lamp spilled and produced a more normal conflagration in the hole. My lords, I would therefore allow the appeal. I agree with the Opinion of my noble and learned

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[1962 D. No. 521]; [1964] 2 W.L.R. 240

*518 Doughty v Turner Manufacturing Co. Ltd.

Court of Appeal

L.JJ. Lord Pearce, Harman, and Diplock

1963 Oct. 16, 17; Nov. 29;

APPEAL from Stable J., sitting at Stafford Assizes. withdrew from the neighbourhood of the bath. Two men actually moved closer to peer into the bath and see The following statement of facts is taken substantially what had happened. After an interval of between one from the judgment of Lord Pearce. The plaintiff, and two minutes the molten liquid erupted from the William James Doughty, was employed by the bath, injuring the bystanders by its great heat and defendants, Turner Manufacturing Co. Ltd., in their setting fire to objects on which it fell. The plaintiff was factory, and on October 10, 1960, had been sent to at that moment standing by the side of the foreman not deliver a message to the foreman who was working in far from the bath, and suffered personal injuries as a the heat treatment room. In that room there stood two result of the eruption. baths or cauldrons 3 ft. 10 ins. high and 3 ft. 4 ins. square. They had thick walls intended to resist great The reason for the eruption was discovered by heat so that the internal area of each bath was only 1 ft. experiments which Imperial Chemical Industries Ltd., 6 ins. by 2 ft. 7 ins. Into those baths was placed sodium which had installed similar covers, carried out as a cyanide powder. Two upright electrodes, lowered by result of this accident. It then appeared that whenever chains into the bath, passed an electric current through any cover made of compound asbestos cement was the powder which became a molten liquid and attained immersed in the molten liquid and subjected to a the very great heat of 800 degrees centigrade, eight temperature of over 500 degrees centigrade it created times the heat of boiling water. The process consisted such an eruption. At that temperature the compound, of subjecting metal parts to heat by immersing them in which contained hydrogen and oxygen, underwent a the liquid. In order to conserve the heat in each bath chemical change which either created or released there were two loose covers which rested side by side water. This water turned to steam and produced an over it. Those covers were made of a compressed explosion or eruption which threw some of the hot compound of asbestos and cement known as sindanyo molten liquid out of the bath. Thus the immersion of which, at that time, was thought to be a safe and the cover in the bath was inevitably followed by an suitable material for such a purpose. It had been so eruption of liquid from the bath. The same result would used in England and the United State for over 20 years. occur if something that contained actual moisture in it The defendants bought the covers for the particular (as opposed to what might be called the potential purpose from the reputable manufacturers of the baths. moisture which was thus precipitated by great heat) was immersed; if, for instance, this cover, which was Immediately before the accident the subject-matter of porous and capable of holding water, had been the action, the electrodes in the bath were being immersed when wet. But it was not suggested that this changed by a workman standing on the side of the bath. particular cover contained actual moisture at the time He, or some other of the four workmen in the vicinity, of the accident, since it had been standing in the hot must have inadvertently knocked the loose asbestos room for some days beforehand. cement cover so that it slid into the bath and disappeared from sight beneath the molten liquid. The plaintiff sued the defendants for damages in Nobody regarded that as a dangerous matter or respect of his injuries on the ground of negligence. The

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judge held that the defendants did not appreciate that constituted by a red lamp, a hole in the ground and a the immersion of the cover in the liquid would produce tarpaulin tent caused an unforeseeable explosion and an explosion and he held that they were not to blame injury by burns. Their Lordships held, however, that for not appreciating it. He said: "The result simply is although the exact chain of events was unforeseeable, this, that if, for example, the bath contained an amount the type of accident and the injuries "though perhaps of this substance and it exploded whilst it was being different in degree, did not differ in kind from injuries used in the ordinary way, I think the defendants would which might have resulted from an accident of a have escaped liability." That was clearly right. foreseeable nature ..." (See Lord Reid's speech. "Of course, the pursuer has to prove that the defender's He went on to hold, however, that it must have been fault caused the accident, and there could be a case common knowledge that there were substances which, where the intrusion of a new and unexpected factor if dropped into such immense heat, would produce an could be regarded as the cause of the accident rather explosion, although not all substances would do so; and than the fault of the defender. But that is not this case. that, therefore, "every possible precaution should be The cause of this accident was a known source of taken to see that nothing was dropped into the bath danger, the lamp, but it behaved in an unpredictable which could have that result." He, therefore, held that way." He concluded with these words: "This accident the inadvertence of one of the defendants' workmen in was caused by a known source of danger, but caused in upsetting the cover into the bath was "negligent in the a way which could not have been foreseen, and, in my true sense of the word; that is to say, it constituted an judgment, that affords no defence." actionable wrong." He accordingly held the defendants liable in negligence and awarded the plaintiff £150 In the present case the potential eruptive qualities of damages. the covers when immersed in great heat were not suspected and they were not a known source of danger, The defendants appealed. but Mr. James argues that the cause of injury was the escape of the hot liquid from the bath, and that injury November 29. The following judgments were read. through the escape of liquid from the bath by splashing was foreseeable. The evidence showed that splashes LORD PEARCE caused by sudden immersion, whether of the metal objects for which it was intended or any other extraneous object, were a foreseeable danger which *** should be carefully avoided. The falling cover might In the present case the evidence showed that nobody have ejected the liquid by a splash and in the result it supposed that an asbestos cement cover could not did eject the liquid, though in a more dramatic fashion. safely be immersed in the bath. The judge took the Therefore, he argues, the actual accident was merely a view, which Mr. James concedes was correct, that if variant of foreseeable accidents by splashing. It is the defendants had deliberately immersed this cover in clear, however, both by inference and by one explicit the bath as part of the normal process, they could not observation, that the judge regarded splashes as being have been held liable for the resulting explosion. The in quite a different category. Moreover, according to fact that they inadvertently knocked it into the bath the evidence, it seems that the cover never did create a cannot of itself convert into negligence that which they splash: it appears to have slid into the liquid at an angle were entitled to do deliberately. In the then state of of some 45 degrees and dived obliquely downwards. their knowledge, for which the judge, rightly on the Further, it seems somewhat doubtful whether the cover evidence, held them in no way to blame, the accident falling only from a height of four or six inches, which was not foreseeable. In spite of Mr. James' able was the difference in level between the liquid and the argument, I am of opinion that they cannot, therefore, sides, could have splashed any liquid outside the bath. be held liable for negligence. and when (if ever) the plaintiff was in the area in which he could be hit by a mere splash (apparently the liquid Mr. James has further argued that, in spite of the being heavy, if splashed, would not travel further than judgment in Overseas Tankship (U.K.) Ltd. v. Morts a foot from the bath) the cover had already slid into the Dock and Engineering Co. Ltd. (The Wagon Mound), liquid without splashing. Indeed, it seems from the the defendants are liable on grounds similar to those on plaintiff's evidence that when he first came on to the which the House of Lords, while following the scene the cover was already half in and half out of the reasoning of The Wagon Mound, upheld a judgment liquid. On broader grounds, however, it would be quite for the infant plaintiff in Hughes v. Lord Advocate. In unrealistic to describe this accident as a variant of the that case an allurement to children in the roadway perils from splashing. The cause of the accident, to

19

quote Lord Reid's words, was "the intrusion of a new were left unguarded, boys would enter and tamper with and unexpected factor." There was an eruption due to the lamp, and it was not unlikely that serious burns chemical changes underneath the surface of the liquid might ensue for the boys. Their Lordships' House as opposed to a splash caused by displacement from distinguished The Wagon Mound case on the ground bodies falling on to its surface. In my judgment, the that the damage which ensued, though differing in reasoning in Hughes v. Lord Advocate cannot be degree, was the same in kind as that which was extended far enough to cover this case. foreseeable. So it is said here that a splash causing burns was foreseeable and that this explosion was I have great sympathy with the plaintiff who suffered really only a magnified splash which also caused burns injury through no fault of his own. But, in my and that, therefore, we ought to follow Hughes v. Lord judgment, the defendants cannot, on the evidence, be Advocate and hold the defendants liable. I cannot held guilty of negligence, and I would accordingly accept this. In my opinion, the damage here was of an allow the appeal and enter judgment for the defendants. entirely different kind from the foreseeable splash. Indeed, the evidence showed that any disturbance of HARMAN L.J. the material resulting from the immersion of the hard- board was past an appreciable time before the *** explosion happened. This latter was caused by the disintegration of the hard-board under the great heat to which it was subjected and the consequent release of The plaintiff's argument most persuasively urged by the moisture enclosed within it. This had nothing to do Mr. James rested, as I understood it, on admissions with the agitation caused by the dropping of the board made that, if this lid had been dropped into the into the cyanide. I am of opinion that it would be cauldron with sufficient force to cause the molten wrong on these facts to make another inroad on the material to splash over the edge, that would have been doctrine of foreseeability which seems to me to be a an act of negligence or carelessness for which the satisfactory solvent of this type of difficulty. defendants might be vicariously responsible. Reliance was put upon Hughes v. Lord Advocate, where the exact consequences of the lamp overturning were not I would allow the appeal. foreseen, but it was foreseeable that, if the manhole

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Walker D. Hines, Director General of Railroads, v. Julia Mae Garrett

SUPREME COURT OF VIRGINIA

131 Va. 125; 108 S.E. 690; 1921 Va. LEXIS 11

September 22, 1921

PROCEDURAL POSTURE: In an action of trespass request, and he thereupon forcibly carried her across on the case, defendant Director General of Railroads the track and down a high embankment to an obscure (Director) appealed a judgment of the Circuit Court of spot, where he pushed her to the ground and ravished Fairfax County (Virginia), which was entered in favor her. After accomplishing his fiendish purpose, he left of plaintiff passenger. her, and has never been identified. Within a few moments thereafter, and while she was still trying to Kelly, P., delivered the opinion of the court. arise from the ground, a man dressed in citizen's clothes, described by her as a civilian, appeared and ravished her the second time. He likewise disappeared, The plaintiff is a young girl, between eighteen and and has never been identified. nineteen years of age, and the object of the suit is to hold the defendant, director general of railroads, liable *** in damages for two acts of rape upon her person, The point at which the plaintiff left the train was committed by two men shortly after she had been, as about four-fifths of a mile from the flag-station known she alleges, negligently required to leave the as Seminary, and there was abundant evidence to show defendant's train in a dangerous and unprotected place. that on the right-hand side of the railroad track, leading The evidence was in some material respects back from that point to Seminary, there was a ravine or conflicting, but substantially the following facts were depression, locally known as "Hoboes' Hollow," either conclusively established or supported by "Tramps' Hollow," and "Tramps' Den," which was evidence which would have justified the jury in then, and had been for at least a year (during the whole accepting them as true. The occurrences complained of of the regime of the director general of railroads), transpired in daylight, but very shortly before dark, on habitually frequented and infested by hoboes, tramps the 2nd day of February, 1919. The plaintiff was a and questionable characters. The attractiveness of the passenger on the defendant's train and held a ticket place for such characters is fully explained in the from the city of Washington, D. C., to a station called record. Seminary, in Fairfax county. The train failed to stop at There was a verdict and judgment for the plaintiff, Seminary . . . [Miss Garrett] asked the conductor what and the defendant brings the case here for review. he intended to do . . . .He then said that . . . she would [] have to go on through and be sent back to Seminary [The court first discusses the question of whether on the next train, or else get off at that point. She the plaintiff voluntarily left the train.] testified that the conductor's manner was very rough, 2. Coming now to the second question, and and that he seemed indifferent to what happened to her; and it is fairly inferable from the evidence (if his assuming in this discussion that the plaintiff did not, in testimony in conflict be rejected) that she understood legal contemplation, voluntarily leave the train and thus end the relationship of carrier and passenger him to mean that if she did not get off at that point he would carry her on all the way through to Richmond between her and the defendant, could the jury, under before starting her on the return journey, which would the evidence as to the character of the place, have been permitted to find that the assaults to which she was involve a long trip in the night and much discomfort and inconvenience. Thereupon, she said to him: "Let subjected were proximately caused by her wrongful me off," and he stopped the train and she left the car. ejection from the train? About the same time, a man wearing a United States With this question we have no difficulty; it is army uniform, generally referred to in the record as a clearly to be answered in the affirmative. . . . "The soldier, got off the train on the opposite side. The 'foreseeableness,' or reasonable anticipation of the plaintiff started back in the direction of Seminary, consequences of a wrongful or negligent act is not the walking alongside the track. The soldier followed, and measure of liability of the guilty party, though it may shortly overtook her, taking hold of her arm and asking be determinative of the question of his negligence. if he might accompany her home. She denied this When once it has been determined that the act is

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wrongful or negligent, the guilty party is liable for all is clear that there was a view of the evidence under the consequences which naturally flow therefrom, which the defendant was liable for the injuries which whether they were reasonably to have been anticipated she sustained as having been proximately caused by its or not, and in determining whether or not the breach of duty. consequences do naturally flow from the wrongful act *** or neglect, the case should be viewed retrospectively; that is to say, looking at the consequences, were they In view of the evidence, it is difficult to see how so improbable or unlikely to occur that it would not be the defendant could have failed to know the general fair and just to charge a reasonably prudent man with reputation of this place. But it was not incumbent upon them. If not, he is liable. This is the test of liability, the plaintiff to show such knowledge. A carrier, in the but when liability has been established, its extent is to discharge of the very high duty which it owes to its be measured by the natural consequences of the passengers, is bound to know the character of the place negligent or wrongful act. The precise injury need not at which it wrongfully discharges them; and if the have been anticipated. It is enough if the act is such defendant wrongfully required the plaintiff to get off at that the party ought to have anticipated that it was a dangerous place without knowing it, it did so at its liable to result in injury to others. peril. Applying the rule above quoted, bearing in mind Nor can it be said that the plaintiff assumed the the high degree of care due by a carrier to its risk of the danger. That depended upon whether she passengers, and assuming that the plaintiff did not acted deliberately and voluntarily; and under the voluntarily leave the train, but was coerced or present branch of the case we are assuming, that which persuaded to do so at an improper and dangerous place, the jury might under proper instructions have found, the case, to say the least of it, was clearly one in which that she was in effect ejected from the train by having the jury might have properly found in her favor. It to act hastily and without reasonable opportunity for requires no resort to a retrospective view of the facts to thought or deliberation in an emergency which was reach this conclusion. The consequences which wrongfully brought about and improperly dealt with by overtook this young woman were sufficiently probable the defendant. to charge any responsible party with the duty of The chief defense under this branch of the case guarding against them. No eighteen-year-old girl should be required to set out alone, near nightfall, to seems to be based upon the proposition that even if the walk along an unprotected route, passing a spot which plaintiff was negligently required to leave the train, the assaults upon her cannot be regarded as the proximate is physically so situated as to lend itself to the perpetration of a criminal assault, and which is infested result of that negligence, because they resulted from an by worthless, irresponsible and questionable characters independent act of third persons over whom the known as tramps and hoboes; and no prudent man, defendant had no control and with whom it had no charged with her care, would willingly cause her to do relation. so. The very danger to which this unfortunate girl fell *** a victim is the one which would at once suggest itself to the average and normal mind as a danger liable to We do not wish to be understood as questioning overtake her under these circumstances. It is no the general proposition that no responsibility for a answer to the proposition to say that the presumption is wrong attaches whenever an independent act of a third that crimes of this character will not be committed. person intervenes between the negligence complained The presumption applies under ordinary circumstances, of and the injury. But ... this proposition does not but it is not to be indulged, and ordinarily prudent men apply where the very negligence alleged consists of do not indulge it, to the extent of regarding it safe to exposing the injured party to the act causing the injury. expose a young woman to such a risk as the plaintiff in It is perfectly well settled and will not be seriously this case incurred in passing "Hobo Hollow" as the denied that wherever a carrier has reason to anticipate shades of night were approaching. The fact that there the danger of an assault upon one of its passengers, it were numerous houses within a few hundred yards of rests under the duty of protecting such passenger the place does not relieve the situation, if the jury against the same. believed, as it might have done, that the place itself *** was dangerous and unprotected. And when it is recalled that the care which the carrier owed to her, [The court remanded the matter for a new trial on assuming that she was still a passenger, was not merely the question of whether plaintiff voluntarily ordinary care and prudence, but the highest degree of disembarked the train.] care which could be expected from human foresight, it

22

HERMAN BROWER AND ANOTHER, RESPONDENTS, v. NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, APPELLANT Court of Errors and Appeals of New Jersey 91 N.J.L. 190; 103 A. 166; 1918 N.J. LEXIS 155; 1 A.L.R. 734

July 9, 1917, Submitted March 4, 1918, Decided

PROCEDURAL POSTURE: Appellant railroad plaintiff of the protection which the presence of the company sought review of an order from the Hudson driver in his right senses would have afforded. "The County Circuit Court (New Jersey), which entered a act of a third person," said the Supreme Court of judgment for respondent owners of a horse and wagon Massachusetts, "intervening and contributing a in their negligence action. condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen." A The opinion of the court was delivered by railroad company which found it necessary or desirable SWAYZE, J. This is a case of a grade-crossing to have its freight train guarded by two detectives collision. … The complaint avers that the horse was against thieves is surely chargeable with knowledge killed, the wagon and harness, and the cider and barrels that portable property left without a guard was likely to with which the wagon was loaded, were destroyed. be made off with. Again, strictly speaking, the act of What happened was that as a result of the collision, the thieves did not intervene between defendant's aside from the death of the horse and the destruction of negligence and the plaintiff's loss; the two causes were the wagon, the contents of the wagon, consisting of to all practical intent simultaneous and concurrent; it is empty barrels and a keg of cider, were scattered and rather a case of a joint tort than an intervening cause. probably stolen by people at the scene of the accident. *** The driver, who was alone in charge for the plaintiff, was so stunned that one of the railroad detectives found The judgment is affirmed, with costs. him immediately after the collision in a fit. There were two railroad detectives on the freight train to protect GARRISON, J. (dissenting). The collision the property it was carrying against thieves, but they afforded an opportunity for theft of which a thief took did nothing to protect the plaintiff's property. The advantage, but I cannot agree that the collision was controversy on the question of damages is as to the therefore the proximate cause of loss of the stolen right of the plaintiff to recover the value of the barrels, articles. Proximate cause imports unbroken continuity cider and blanket. … It is now argued that the between cause and effect, which, both in law and in defendant's negligence was not in any event the logic, is broken by the active intervention of an proximate cause of the loss of this property since the independent criminal actor. This established rule of act of the thieves intervened. The rule of law which law is defeated if proximate cause be confounded with exempts the one guilty of the original negligence from mere opportunity for crime. A maladjusted switch may damage due to an intervening cause is well settled. be the proximate cause of the death of a passenger who The difficulty lies in the application. Like the question was killed by the derailment of the train, or by the fire of proximate cause, this is ordinarily a jury question. or collision that ensued, but it is not the proximate *** cause of the death of a passenger who was murdered by a bandit who boarded the train because of the We think these authorities justified the trial judge opportunity afforded by its derailment. This clear in his rulings as to the recovery of the value of the distinction is not met by saying that criminal barrels, cider and blanket. The negligence which intervention should be foreseen, for this implies that caused the collision resulted immediately in such a crime is to be presumed and the law is directly condition of the driver of the wagon that he was no otherwise. longer able to protect his employer's property; the natural and probable result of his enforced There should be a new trial upon the question of abandonment of it in the street of a large city was its damages, to which end the judgment should be disappearance; and the wrongdoer cannot escape reversed. making reparation for the loss caused by depriving the

23

CENTRAL OF GEORGIA RAILWAY CO. v. PRICE.

SUPREME COURT OF GEORGIA

106 Ga. 176; 32 S.E. 77; 1898 Ga. LEXIS 46

November 15, 1898, Argued December 14, 1898, Decided

PROCEDURAL POSTURE: Defendant railroad It is argued that, whether or not the proprietor of sought review of a decision from the Macon Superior the hotel was the agent of the company, the contract of Court (Georgia), which entered judgment in favor of carriage was not completed, and it was the duty of the plaintiff passenger and which denied the railroad's company, by its agents, safely to care for the passenger motion for a new trial in the passenger's personal injury until they had delivered her at her destination. action. Admitting, for the sake of the argument, that this is

true, we still think that the company would not be SIMMONS, C. J. liable for the consequences of the landlord's negligence. The negligence of the company consisted The record discloses that Mrs. Price was a in passing the station where the passenger desired to passenger on a train of the defendant company, and alight, without giving her an opportunity to get off. that her destination was Winchester, Georgia. Through Taking her version of the manner in which she was the negligence of the conductor, she was not put off at injured, the injury was occasioned by the negligence of Winchester, but was carried on to Montezuma. Upon the proprietor of the hotel or his servants in giving her her arrival at the latter place, the conductor advised her a defective lamp. The negligence of the company in to go to the hotel and spend the night, he agreeing to passing her station was, therefore, not the natural and carry her back to Winchester in the morning when his proximate cause of her injury. There was the train made the return trip. He accompanied her to a interposition of a separate, independent agency, the hotel where a room was assigned her, the conductor negligence of the proprietor of the hotel, over whom, agreeing with the proprietor to pay her expenses. She … the railway company neither had nor exercised any was taken to her room by the proprietor or his servants, control. The injuries to the plaintiff were not the and furnished with a kerosene lamp which she left natural and proximate consequences of carrying her burning after she had retired to bed. Sometime during beyond her station, but were unusual and could not the night the lamp, she claims, exploded and set fire to have been foreseen or provided against by the highest a mosquito net which covered the bed, and in her practicable care. The plaintiff was not entitled to efforts to extinguish the flames her hands were badly recover for such injuries, and the court erred in burned. She sued the railway company for damages, overruling the motion for new trial. and, under the charge of the court, the jury returned a verdict in her favor for $ 400. Judgment reversed. ***

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PITTSBURG REDUCTION COMPANY v. HORTON.

SUPREME COURT OF ARKANSAS 87 Ark. 576; 113 S.W. 647; 1908 Ark. LEXIS 122 November 2, 1908, Opinion Delivered

PROCEDURAL POSTURE: Appellants, company case, we are first met with the proposition of whether and foreman, sought review of the decision of the or not the negligence of appellants in leaving the Saline Circuit Court (Arkansas), which entered a dynamite caps near the spur track, which was judgment for appellee child in his negligence action. frequented by children, was the proximate cause of the injury. [T]here must be a direct connection between the STATEMENT BY THE COURT. neglect of the defendant and the injury. That its *** connection must be something more than one of a series of antecedent events without which the injury The Pittsburg Reduction. Company was engaged would not have happened. in mining bauxite at the town of Bauxite in Saline County, Arkansas. [During such mining the company It is a well settled general rule that if, subsequent used dynamite caps. One of such caps was negligently to the original negligent act, a new cause has discarded by the company] intervened, of itself sufficient to stand as the cause of the injury, the original negligence is too remote. The The cap which did the damage was picked up by difficulty arises in each case in applying the principle Charlie Copple, a boy about 10 years of age . . . .He to a given state of facts. lived with his parents about 1/4 of a mile distant. His father was an employee of another company, which *** had a plant for mining bauxite near that of appellant In the present case the facts are practically company. Charlie Copple kept the caps at home for undisputed. Charlie Copple's father was an employee about one week, playing on the floor with them in the of a company engaged in a similar business to that of presence of his parents. When he would leave them on appellant company. Naturally, his avocation and the the floor, his mother said she would pick them up. She proximity of his residence to the mines made both said she did not know what they were. She said that himself and his wife familiar with the nature of Charlie Copple had them there in the house, and that explosives. True, Mrs. Copple says that she did not she supposed her husband noticed him with them. The know what the shells contained, but she did know that father denied knowing that his boy had the caps until they were shells for some kind of explosives, that her he heard of it after the accident happened. Charlie son brought them home, and that he played with them. Copple said that when not playing with them they were She admits that when he would leave them on the floor left on the clock shelf. About one week after he had she would pick them up and lay them away for him. found them, Charlie carried them to school and traded This continued for a week, and then, with her them to Jack Horton for some writing paper. Jack knowledge, he carried them to school. Her course of Horton was a boy 13 years old. He was in the school conduct broke the causal connection between the house at the time he was hurt. He said he thought it was original negligent act of appellant and the subsequent a shell of a 22 cartridge that had been shot. That he was injury of the plaintiff. It established a new agency, and picking the dirt out of it with a match when it the possession by Charlie Copple of the caps or shells exploded, and tore up his hand. His hand was torn so was thereafter referable to the permission of his that it had to be amputated. parents, and not to the original taking. Charlie Copple's *** parents having permitted him to retain possession of the caps, his further acts in regard to them must be There was a jury trial and a verdict against both attributable to their permission, and were wholly appellants for $ 2,000. They have appealed to this independent of the original negligence of appellants. court. This is but an application of the well established

general rule that, to charge a person with liability for HART, J., (after stating the facts). It is a well damages, the negligence alleged must be found to have settled general rule that when a defendant has violated been the proximate cause of the injury to the plaintiff. a duty imposed upon him by the common law he The judgment is therefore reversed, and the cause should be held to be liable to every person injured dismissed. whose injury is the natural and probable consequence of the misconduct. Hence, in our consideration of this 25

1 of 5 DOCUMENTS

DAN BOYLES, JR., PETITIONER v. SUSAN LEIGH KERR, RESPONDENT

NO. D-0963

SUPREME COURT OF TEXAS

855 S.W.2d 593; 1993 Tex. LEXIS 58; 36 Tex. Sup. J. 874

May 5, 1993, Delivered

PRIOR HISTORY: ON APPLICATION FOR WRIT activity that was to follow. They left with the camera OF ERROR TO THE COURT OF APPEALS FOR THE running, and the ensuing activities were recorded. Boyles SIXTH DISTRICT OF TEXAS. took possession of the tape shortly after it was made, and subsequently showed it on three occasions, each time at a OPINION BY: THOMAS R. PHILLIPS private residence. Although he showed the tape to only ten friends, gossip about the incident soon spread among many of Kerr and Boyles' friends in Houston. Soon many *** students at Kerr's school, Southwest Texas State This is a suit for the negligent infliction of emotional University, and Boyles' school, the University of Texas distress. We hold that there is no general duty in Texas at Austin, also became aware of the story. Kerr did not not to negligently inflict emotional distress. A claimant learn of the video until December 1985, long after she may recover mental anguish damages only in connection and Boyles had stopped seeing each other. After she with defendant's breach of some other legal duty. confronted him, Boyles eventually admitted what he had Because Respondent proceeded below only on the theory done and surrendered the tape to Kerr. No copies had of negligent infliction of emotional distress, we reverse been made. the judgment of the court of appeals in her favor. Kerr alleges that she suffered humiliation and severe However, in the interest of justice, we remand for a new emotional distress from the videotape and the gossip trial. surrounding it. At social gatherings, friends and even On August 10, 1985, Petitioner Dan Boyles, Jr., then casual acquaintances would approach her and comment seventeen, covertly videotaped nineteen-year-old about the video, wanting to know "what [she] was going Respondent Susan Leigh Kerr engaging in sexual to do" or "why did [she] do it." The tape stigmatized intercourse with him. Although not dating steadily, they Kerr with the reputation of "porno queen" among some had known each other a few months and had shared of her friends, and she claimed that the embarrassment several previous sexual encounters. Kerr testified that and notoriety affected her academic performance. Kerr she had not had sexual intercourse prior to her also claimed that the incident made it difficult for her to relationship with Boyles. relate to men, although she testified to having had subsequent sexually-active relationships. Eventually, she Kerr and Boyles, who were both home in Houston sought psychological counselling. for the summer, had made plans to go out on the night of the incident. Before picking Kerr up, Boyles arranged Kerr sued Boyles, Broesche, Widner and with a friend, Karl Broesche, to use the Broesche house Tamborello, alleging intentional invasion of privacy, for sexual intercourse with Kerr. Broesche suggested negligent invasion of privacy, and negligent (but not videotaping the activity, and Boyles agreed. Broesche intentional) infliction of emotional distress. Before the and two friends, Ray Widner and John Paul Tamborello, case was submitted to the jury, however, Kerr dropped hid a camera in a bedroom before Kerr and Boyles all causes of action except for negligent infliction of arrived. After setting up the camera, the three videotaped emotional distress. The jury returned a verdict for Kerr themselves making crude comments and jokes about the on that claim, assessing $500,000 in actual damages. The

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jury also found that all defendants were grossly this state to insure the public is free from negligent, awarding an additional $ 500,000 in punitive unwarranted restrictions on the right to damages, $ 350,000 of which was assessed against seek redress for wrongs committed Boyles. The trial court rendered judgment in accordance against them. . . . Thus, we hold that with the jury's verdict. Only Boyles appealed to the proof of physical injury resulting from court of appeals. 1 That court affirmed the judgment mental anguish is no longer an element of against him, concluding that Kerr established negligent the common law action for negligent infliction of emotional distress under the facts of this infliction of mental anguish. case. The court of appeals also affirmed based on negligent invasion of privacy, even though Kerr abandoned this theory prior to submission of the case to *** the jury and did not brief or argue it as a basis for The liability standard under this new tort, however, affirmance in the court of appeals. was never entirely clear. Garrard seemed to indicate that

"trivial" emotional distress should not be compensated, 1 Broesche settled with Kerr after the judgment and similarly that the law should protect against "severe" was rendered; Widner and Tamborello did not emotional distress. Rather than articulating any threshold appeal. level of severity, however, the Court concluded that II "jurors are best suited to determine whether and to what extent the defendant's conduct caused compensable Initially, we must determine whether negligent mental anguish by referring to their own experience." infliction of emotional distress constitutes an independent cause of action in Texas. Kerr claims that While the holding of Garrard was correct, we we recognized a broad right to recover for negligently conclude that its reasoning was based on an erroneous inflicted emotional distress in St. Elizabeth Hospital v. interpretation of Hill v. Kimball, and is out of step with Garrard, 730 S.W.2d 649 (Tex. 1987). Boyles contends most American jurisdictions. Therefore, we overrule the that the Garrard holding is limited to the particular facts language of Garrard to the extent that it recognizes an of that case. independent right to recover for negligently inflicted emotional distress. Instead, mental anguish damages In Garrard, a hospital negligently disposed of the should be compensated only in connection with Garrards' stillborn baby in an unmarked, common grave defendant's breach of some other duty imposed by law. without the plaintiffs' knowledge or consent. The This was the basis for recovery prior to Garrard, which Garrards sued for negligent infliction of emotional expanded the scope of liability based on a distress, without alleging that they suffered any physical misconstruction of Hill v. Kimball. injury. This Court nonetheless concluded that they had stated a cause of action. We determined that "Texas first In Hill, a pregnant woman suffered a miscarriage recognized the tort of negligent infliction of mental when she witnessed the defendant severely beating two anguish in Hill v. Kimball, 76 Tex. 210, 13 S.W. 59 men in her yard. The woman sued for her physical (1890)." This tort, we said, had been administered under injuries under negligence, claiming that the emotional traditional tort concepts, subject only to a refinement on trauma of witnessing the beatings produced the the element of damages: the mental suffering is not miscarriage and that the defendant should have compensable unless it manifests itself physically. After reasonably anticipated the danger to her. The Court determining that the physical manifestation requirement found that the plaintiff had stated a cause of action. The was arbitrary because it "denies court access to persons basis, however, was the physical injury she had suffered, with valid claims they could prove if permitted to do so," together with her allegation of foreseeability. The Court we proceeded to abolish it. reasoned as follows:

The Court then proceeded, we believe, to create a That a physical personal injury may be general duty not to inflict reasonably foreseeable produced through a strong emotion of the emotional distress. The Court said: mind there can be no doubt. The fact that

it is more difficult to produce such an Clearly, freedom from severe emotional injury through the operation of the mind distress is an interest which the law than by direct physical means affords no should serve to protect. . . . Having sufficient ground for refusing recognized that an interest merits compensation, in an action at law, when protection, it is the duty of this court to the injury is intentionally or negligently continually monitor the legal doctrines of inflicted. . . . Here, according to the

27

allegations of the petition, the defendant Most other jurisdictions do not recognize a general has produced a bodily injury by means of duty not to negligently inflict emotional distress. Many that emotion, and it is for that injury that limit recovery by requiring proof of a physical the recovery is sought. manifestation. Others allow recovery where the claimant establishes the breach of some independent duty. A few The Court considered only whether the plaintiff jurisdictions recognize a general right to recover for could recover for her physical injuries, not whether she negligently inflicted emotional distress, but these could otherwise recover for her emotional distress or jurisdictions are squarely in the minority. mental anguish caused by witnessing the beatings. Furthermore, the Court noted that liability would depend We find the experience in California to be on "whether, under the circumstances, and with the lights instructive. In Molien v. Kaiser Foundation Hospitals, before him, a reasonably prudent man would have the California Supreme Court abolished the physical anticipated the danger to her or not." In other words, the injury requirement, apparently creating an independent defendant was negligent if he should have known that he cause of action for negligently inflicted "serious" was imposing an unreasonable risk of physical injury to emotional distress. Nine years later, however, the court the plaintiff, not if he merely should have anticipated that declared that "the negligent causing of emotional distress the plaintiff would suffer emotional distress. is not an independent tort ....", and that damages are Hill, therefore, did not recognize a cause of action recoverable only where there is a "breach of a duty owed for negligent infliction of emotional distress. It merely the plaintiff that is assumed by the defendant or imposed recognized the right to recover for physical injuries on the defendant as a matter of law, or that arises out of a under standard negligence principles, notwithstanding relationship between the two." In another case decided that the physical injury is produced indirectly through shortly after Marlene F., the California Supreme Court emotional trauma. further explained as follows:

*** It is clear that foreseeability of the By overruling the language of Garrard, we hold injury alone is not a useful "guideline" or only that there is no general duty not to negligently a meaningful restriction on the scope of inflict emotional distress. Our decision does not affect a the [negligent infliction of emotional claimant's right to recover mental anguish damages distress] action. The Dillon experience caused by defendant's breach of some other legal duty. confirms, as one commentator observed, that "foreseeability proves too much. . . . Also, our holding does not affect the right of Although it may set tolerable limits for bystanders to recover emotional distress damages most types of physical harm, it provides suffered as a result of witnessing a serious or fatal virtually no limit on liability for accident. Texas has adopted the bystander rules nonphysical harm." It is apparent that originally promulgated by the California Supreme Court reliance on foreseeability of injury alone in Dillon v. Legg. … The policy concerns that require in finding a duty, and thus a right to limiting the emotional distress cause of action in the recover, is not adequate when the direct victim case generally do not apply in the bystander damages sought are for an intangible case. Before a bystander may recover, he or she must injury. In order to avoid limitless liability establish that the defendant has negligently inflicted out of all proportion to the degree of a serious or fatal injuries on the primary victim. defendant's negligence, and against which *** it is impossible to insure without imposing unacceptable costs on those We also are not imposing a requirement that among whom the risk is spread, the right emotional distress manifest itself physically to be to recover for negligently caused compensable. As explained in Garrard, the sole purpose emotional distress must be limited. of the physical manifestation rule is to ensure the genuineness of claims for emotional distress. Garrard criticized this requirement as both under- and *** overinclusive, and we agree. Where emotional distress is a recognized element of damages for breach of a legal Some courts have recognized an independent cause duty, the claimant may recover without demonstrating a of action for "serious" or "severe" emotional distress. physical manifestation of the emotional distress. This has This standard, however, fails to delineate meaningfully long been the rule, even before Garrard.

28

those situations where recovery should be allowed. As attempt to provide redress for every instance of rude, one commentator has explained: insensitive or distasteful behavior, even though it may result in hurt feelings, embarrassment, or even It is difficult to imagine how a set of humiliation." We made clear, however, that we did not rules could be developed and applied on a consider Boyles' conduct to fall into that category, stating case-by-case basis to distinguish severe in part as follows: from nonsevere emotional harm. Severity is not an either/or proposition; it is rather The tort system can and does provide a a matter of degree. Thus, any attempt to remedy against those who engage in such formulate a general rule would almost conduct. But an independent cause of inevitably result in a threshold action for negligent infliction of requirement of severity so high that only a emotional distress would encompass handful would meet it, or so low that it conduct far less outrageous than that would be an ineffective screen. A middle- involved here, and such a broad tort is not ground rule would be doomed, for it necessary to allow compensation in a would call upon courts to distinguish truly egregious case such as this. between large numbers of cases factually too similar to warrant different treatment. Such a rule would, of course, be arbitrary *** in its application. VI We therefore reverse the judgment of the court of Kerr cannot recover based on the cause of action appeals in favor of Kerr on the ground of negligent under which she proceeded. It may well be, however, infliction of emotional distress. that she failed to assert and preserve alternative causes of

action because of her reliance on our holding in Garrard. *** We have broad discretion to remand for a new trial in the interest of justice where it appears that a party may have V proceeded under the wrong legal theory. … We therefore In rejecting negligent infliction of emotional distress reverse the judgment of the court of appeals and remand as an independent cause of action, we stated in the this cause to the trial court for a new trial. original opinion that "tort law cannot and should not

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Gladon, Appellee and Cross-Appellant, v. Greater Cleveland Regional Transit Authority, Appellant and Cross-Appellee.

No. 94-1063

SUPREME COURT OF OHIO

75 Ohio St. 3d 312; 1996 Ohio 137; 662 N.E.2d 287; 1996 Ohio LEXIS 188

September 13, 1995 and December 13, 1995, Submitted March 6, 1996, Decided

PRIOR HISTORY: Appeal and Cross-Appeal from to a stop "after the point she perceived or should have the Court of Appeals for Cuyahoga County, No. 64029. perceived the Plaintiff's peril prior to her striking the Plaintiff." The trial court granted RTA summary Greater Cleveland Regional Transit Authority judgment as to the negligent security claim and the ("RTA") appeals from a jury verdict awarding Robert case proceeded to trial on the negligent operation M. Gladon $ 2,736,915.35 in damages arising from claim. RTA's operation of a rapid transit train. The trial court overruled RTA's motion for a Gladon purchased a passenger ticket and boarded directed verdict at the close of Gladon's case-in-chief. an RTA rapid transit train at Terminal Tower after The court instructed the jury that "as a matter of law attending a Cleveland Indians' night game with friends. that the only evidence produced by either side indicates During the baseball game, Gladon consumed about five that the plaintiff was an invitee." The court further 16-ounce beers. He left his friends at the stadium in informed the jury that "the driver of a rapid transit car search of a restroom, and ended up traveling alone on with the right of way must use ordinary care. the RTA trains. Because there were no witnesses, the Therefore, to avoid colliding with a person found on jury only heard Gladon's account of events. According the tracks, the defendant is required to use ordinary to Gladon, he mistakenly exited the train at the West care to discover and to avoid danger." The jury 65th Street Station and, once on the platform, was returned a verdict for Gladon and overruled RTA's chased and attacked by two unknown males. Gladon motion for judgment notwithstanding the verdict. The testified that he remembered being "rolled up in a ball" court of appeals affirmed. on the tracks but he could not recall if he had jumped onto the tracks or had been pushed onto the tracks. This cause is now before this court upon the While there, however, he did recall being kicked in the allowance of a discretionary appeal and cross-appeal. head.

While Gladon lay on the tracks with his legs draped over the rail, an RTA rapid train approached the Cook, J. West 65th Street Station. Mary Bell, the train's *** operator, had the train in braking mode when she observed first a tennis shoe and then Gladon's leg on I. the tracks. The operator pulled the cinestar, or control handle, back and hit the "mushroom," or emergency DUTY CLASSIFICATIONS brake. Unfortunately, the train struck Gladon causing Ohio adheres to the common-law classifications of him serious and permanent injuries. invitee, licensee, and trespasser in cases of premises Gladon sued RTA and the operator alleging liability. Although there was a movement in many negligence in the security of RTA's premises and in the jurisdictions in the 1970s to abolish these traditional duty classification schemes, it quite abruptly lost its operation of the train. Specifically, Gladon alleged that the operator was negligent by failing to bring the train steam late in that decade. Prosser hypothesizes that the retreat may reflect a "fundamental dissatisfaction with

30

certain developments in accident law that accelerated will be the same regardless of the manner of entry, so during the 1960s---the reduction of whole systems of long as the entry itself is not privileged." legal principles to a single, perhaps simplistic, standard In determining whether the person is a trespasser of reasonable care, the sometimes blind subordination within the meaning of this section, the question of other legitimate social objectives to the goals of whether his entry has been intentional, negligent or accident prevention and compensation, and the purely accidental is not material, except as it may bear commensurate shifting of the decisional balance of on the existence of a privilege. Without the consent or power to the jury from the judge. At least it appears privilege to enter the area of the tracks, the law views that the courts are gaining a renewed appreciation for such entry from the aspect of the landowner whose the considerations behind the traditional duty duties to the entrant flow from the parameters of his limitations toward trespassing adults, and that they are permission to be there. As a result, "the determining acquiring more generally a healthy skepticism toward fact is the presence or absence of a privilege to enter or invitations to jettison years of developed jurisprudence to remain on the land, and the status of an accidental in favor of a beguiling legal panacea." trespasser is still that of a trespasser." In Ohio, the status of the person who enters upon The illustration employed by the Restatement to the land of another (i.e., trespasser, licensee, or invitee) explain the duties owed to a trespasser is remarkably continues to define the scope of the legal duty that the similar to Gladon's situation. "Without any negligence landowner owes the entrant. Invitees are persons who on his part A, standing on the platform of a subway rightfully come upon the premises of another by station of the X Company, slips and falls onto the invitation, express or implied, for some purpose which tracks. While there he is run over by the train of X is beneficial to the owner. Company, and injured. A is a trespasser, and the The status of an invitee is not absolute but is liability to him is determined by the rules stated in limited by the landowner's invitation. " The visitor has sections 333 and 336, notwithstanding the accidental the status of an invitee only while he is on part of the character of his intrusion." 2 land to which his invitation extends -- or in other Furthermore, whether Gladon was privileged to words, the part of the land upon which the possessor enter the tracks is immaterial. A person privileged to gives him reason to believe that his presence is desired enter the land is owed the same duties as a licensee. for the purpose for which he has come If the invitee Because the duties owed to a licensee and trespasser goes outside of the area of his invitation, he becomes a are the same, whether Gladon was privileged to enter trespasser or a licensee, depending upon whether he the land does not change the standard of care RTA goes there without the consent of the possessor, or with owed to him. such consent."

In the present case, Gladon was an invitee when 2 Section 333 states generally that "a he purchased an RTA ticket, rode the rapid transit train possessor of land is not liable to trespassers for and waited at RTA's platform. However, RTA's physical harm caused by his failure to exercise invitation to Gladon to use their premises did not reasonable care (a) to put the land in a condition extend to the area on or near the tracks. In fact, Gladon reasonably safe for their reception, or (b) to acknowledged that RTA did not permit the public in carry on his activities so as not to endanger the area on or near the tracks. them." Section 336 generally prescribes the duty of ordinary care from a possessor of land Although the result seems harsh, the common law who knows or has reason to know of the on this subject is well grounded and we are not inclined presence of another who is trespassing on the to reject it. Accordingly, we hold that where an entrant land. Again, the example cited by the upon another's land exceeds the scope of the Restatement for this duty is identical to the landowner's invitation, the entrant will lose the status situation when the train driver saw Gladon and of an invitee, and become either a licensee or his shoe on the tracks. "The engineer of the X trespasser. &Y Railroad Company sees lying upon the Gladon contends that he retained his invitee status track a pile of clothing such as would give a because there was no evidence that he "intentionally or reasonable man cause to suspect that it might purposely entered upon the track area." contain a human being. Under these circumstances the engineer is not entitled to According to the Restatement, "so far as the assume that it is not a human being but is liability of the possessor of the land to the intruder is required to keep the engine under control until concerned, however, the possessor's duty, and liability, he is certain that it is not."

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Even though his entry may have been Having instructed the jury as a matter of law that unintentional and against Gladon's wishes, once on the Gladon was an invitee, the trial court assigned RTA a tracks, Gladon exceeded the scope of his invitation and duty of ordinary care "to discover and to avoid danger." lost his status as an invitee. Because Gladon then These instructions erred in two respects. First, the became either a licensee or a trespasser for purposes of instructions imposed upon RTA a duty to use ordinary determining the duty RTA owed to him, the trial court care to discover Gladon's presence. To the contrary, erred in instructing the jury that he was an invitee as a RTA was under no duty to anticipate trespassers and matter of law. could only be liable for injuries resulting from willful or wanton conduct. Second, the instructions imposed We now turn to the duty owed to Gladon by RTA upon RTA a duty to use ordinary care to avoid injuring as a result of Gladon's change in status from invitee to Gladon prior to the operator's discovery of him. Rather, either licensee or trespasser. A landowner owes a duty RTA's duty to use ordinary care to avoid injuring to an invitee to exercise ordinary care for the invitee's Gladon did not arise until RTA knew or should have safety and protection. Conversely, a landowner owes known that Gladon was on the tracks. Whether the no duty to a licensee or trespasser except to refrain operator knew or should have known a person was on from willful, wanton or reckless conduct which is the tracks upon observing the tennis shoe remains a likely to injure him. Furthermore, a railroad owes no question for the jury. duty to anticipate or prevent the presence of licensees or trespassers. Given that the instructions were erroneous and prejudicial, we reverse the judgment of the court of When a trespasser or licensee is discovered in a appeals and remand this cause for a new trial. position of peril, a landowner is required to use ordinary care to avoid injuring him. The duty to *** exercise ordinary care arises after the landowner Judgment reversed and cause remanded. "knows, or from facts within his knowledge should know or believe," that a trespasser or licensee is on the land.

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BENNETT, ADMR., APPELLANT, v. STANLEY ET AL., APPELLEES.

No. 00-108

SUPREME COURT OF OHIO

92 Ohio St. 3d 35; 2001 Ohio 128; 748 N.E.2d 41; 2001 Ohio LEXIS 1524

October 18, 2000, Submitted June 13, 2001, Decided

PRIOR HISTORY: APPEAL from the Court of Rickey and Cher Bennett were married in 1995. Appeals for Washington County, No. 98CA36. They had two daughters, born in 1993 and 1995. Cher

brought her son, Chance Lattea, into the marriage. The PFEIFER, J. In this case we are called upon to Bennetts rented the house next to the Stanleys. The determine what level of duty a property owner owes to a houses were about one hundred feet apart. There was child trespasser. We resolve the question by adopting the some fencing with an eight-foot gap between the two attractive nuisance doctrine set forth in Restatement of properties. the Law 2d, Torts (1965), Section 339. We also hold that The Stanleys were aware that the Bennetts had an adult who attempts to rescue a child from an attractive moved next door and that they had young children. They nuisance assumes the status of the child, and is owed a had seen the children outside unsupervised. Stacey duty of ordinary care by the property owner. Stanley had once called Chance onto her property to Factual and Procedural Background retrieve a dog. The Stanleys testified, however, that they never had any concern about the children getting into the When Rickey G. Bennett, plaintiff-appellant, arrived pool. They did not post any warning or "no trespassing" home in the late afternoon of March 20, 1997, he found signs on their property. his two young daughters crying. The three-year-old, Kyleigh, told him that "Mommy" and Chance, her five- Rickey Bennett testified that he had told his year-old half-brother, were "drowning in the water." children to stay away from the pool on the Stanleys' Bennett ran next door to his neighbors' house to find property. He also stated that he had never seen the mother and son unconscious in the swimming pool. Both children playing near the pool. died. Kyleigh told her father that she and Chance had The Bennetts had moved next door to defendants- been playing at the pool on the afternoon of the tragedy. appellees, Jeffrey and Stacey Stanley, in the fall of 1996. The sheriff's department concluded that Chance had gone The Stanleys had purchased their home the previous to the pool to look at the frogs and somehow fell into the June. At the time of their purchase, the Stanleys' property pool. His mother apparently drowned trying to save him. included a swimming pool that had gone unused for three Bennett, in his capacity as Administrator of the years. At that time, the pool was enclosed with fencing Estate of Cher D. Bennett, as Administrator of the Estate and a brick wall. After moving in, the Stanleys drained of Chance C. Lattea, and as custodial parent of Kyleigh the pool once but thereafter they allowed rainwater to D. Bennett, filed a wrongful death and personal injury accumulate in the pool to a depth of over six feet. They suit against the Stanleys. The complaint alleged that removed a tarp that had been on the pool and also appellees had negligently maintained an abandoned removed the fencing that had been around two sides of swimming pool on their property and that appellees' the pool. The pool became pond-like: it contained negligence proximately caused the March 20, 1997 tadpoles and frogs, and Mr. Stanley had seen a snake drowning of Chance and Cher. Appellant averred that swimming on the surface. The pool contained no ladders, appellees had created a dangerous condition by and its sides were slimy with algae. negligently maintaining the pool and that appellees reasonably should have known that the pool posed an

33

unreasonable risk of serious harm to others. Appellant that required to discharge a duty owed to an adult under specifically alleged that appellees' pool created an the same circumstances. This is the approach long unreasonable risk of harm to children who, because of followed by this court and we see no reason to abandon their youth, would not realize the potential danger. it. 'Children of tender years, and youthful persons Appellant further asserted that appellees' conduct in generally, are entitled to a degree of care proportioned to maintaining the pool constituted willful and wanton their inability to foresee and avoid the perils that they misconduct such as to justify an award of punitive may encounter. * * * The same discernment and damages. foresight in discovering defects and dangers cannot be reasonably expected of them, that older and experienced Appellant sought damages for the beneficiaries of persons habitually employ; and therefore the greater the deceased, for Kyleigh's mental anguish for precaution should be taken, where children are exposed witnessing the drownings, for mental anguish for Cher to them.' " before her death, and for punitive damages. Appellees denied any negligence and asserted affirmative defenses Recognizing the special status of children in the law, of contributory negligence and assumption of the risk. this court has even accorded special protection to child trespassers by adopting the "dangerous instrumentality" Appellees filed a motion for summary judgment, doctrine: which the trial court granted on September 4, 1998. The trial court found that Chance and Cher were trespassers "The dangerous instrumentality exception [to on appellees' property and that appellees therefore owed nonliability to trespassers] imposes upon the owner or them only a duty to refrain from wanton and willful occupier of a premises a higher duty of care to a child misconduct. The trial court further rejected appellant's trespasser when such owner or occupier actively and argument that appellees' maintenance of the swimming negligently operates hazardous machinery or other pool amounted to a dangerous active operation that apparatus, the dangerousness of which is not readily would create for them a duty of ordinary care pursuant to apparent to children." Coy v. Columbus, Delaware & Marion Elec. Co. As the *** complaint alleged that appellees had violated a duty of ordinary care, the court found for the Stanleys as a matter " 'Certainly a deadly, hidden force, as in this case, of law. should not be left easily accessible to children whose frequent presence in this vicinity was known to the On appeal, the appellate court affirmed the trial defendant, and acquiesced in by it, and this without so court's granting of summary judgment. … much as a danger sign anywhere thereabout. * * * The The cause is now before this court upon the care must be commensurate with the danger.' " allowance of a discretionary appeal. Thus, the court adopted as early as 1932 some of the Law and Analysis hallmarks of the attractive nuisance doctrine. Elements such as knowledge of children's presence, the Ohio has long recognized a range of duties for maintenance of a potentially dangerous force, and an property owners vis-a-vis persons entering their property. exercise of care by the owner commensurate with the A recent discussion of Ohio's classification system can danger are a part of the attractive nuisance doctrine in be found in Gladon v. Greater Cleveland Regional most states, as reflected in Section 339 of the Transit Auth. Currently, to an invitee the landowner Restatement of Torts. owes a duty "to exercise ordinary care and to protect the invitee by maintaining the premises in a safe condition." Despite the fact that in premises liability cases a To licensees and trespassers, on the other hand, "a landowner's duty is defined by the status of the plaintiff, landowner owes no duty * * * except to refrain from and that children, even child trespassers, are accorded willful, wanton or reckless conduct which is likely to special protection in Ohio tort law, this court has never injure [the [*39] licensee or trespasser]." Today, we adopted the attractive nuisance doctrine. The doctrine as face the issue of whether child trespassers should adopted by numerous states is set forth in Restatement of become another class of users who are owed a different the Law 2d, Torts (1965), Section 339: duty of care. "A possessor of land is subject to liability for This court has consistently held that children have a physical harm to children trespassing thereon caused by special status in tort law and that duties of care owed to an artificial condition upon land if: children are different from duties owed to adults: "(a) the place where the condition exists is one upon "The amount of care required to discharge a duty which the possessor knows or has reason to know that owed to a child of tender years is necessarily greater than children are likely to trespass, and

34

"(b) the condition is one of which the possessor "presented no compelling reasons meriting the adoption knows or has reason to know and which he realizes or of the attractive nuisance doctrine." Elliott was a should realize will involve an unreasonable risk of death swimming pool case. However, in that case, the child or serious bodily harm to such children, and who perished in the pool was visiting her grandparents, who lived one hundred to three hundred feet from the "(c) the children because of their youth do not neighbor who owned the pool. Rather than rejecting the discover the condition or realize the risk involved in doctrine of attractive nuisance, this court simply declined intermeddling with it or in coming within the area made to apply it in Elliott, finding that the neighbors could not dangerous by it, and have foreseen that a nineteen-month-old child would be "(d) the utility to the possessor of maintaining the visiting her grandparents and wander into their yard. The condition and the burden of eliminating the danger are court held in its syllabus: slight as compared with the risk to children involved, and "The attractive nuisance doctrine will not extend tort "(e) the possessor fails to exercise reasonable care to liability to the owner of a residential swimming pool eliminate the danger or otherwise to protect the where the presence of a child who was injured or children." drowned therein was not foreseeable by the property owner." This court has never explicitly rejected the Restatement version of the doctrine, which was adopted That ruling is not contradictory to the attractive in 1965. Instead, Ohio's tradition in this area of the law is nuisance doctrine as set forth in the Restatement of based upon this court's rejection in 1907 of the "turntable Torts. One of the key elements of the doctrine as defined doctrine" in Wheeling & Lake Erie RR. Co. v. Harvey. In in the Restatement is that "the place where the condition Harvey, this court held in paragraph one of the syllabus exists is one upon which the possessor knows or has that "it is not the duty of an occupier of land to exercise reason to know that children are likely to trespass." care to make it safe for infant children who come upon it Section 339(a). The Elliott court quite obviously without invitation but merely by sufferance." withheld from ruling on whether the attractive nuisance doctrine would apply where the presence of a child is The "turntable doctrine" was a somewhat foreseeable. controversial doctrine wherein railroads could be liable to children for injuries suffered on unguarded railroad *** turntables. The theory of liability was established in In this case, there is at least a genuine issue of fact Sioux City & Pacific RR. Co. v. Stout and had been regarding the foreseeability of one of the Bennett adopted by many states as of 1907. The burning question children entering onto the Stanley property. In Elliott, the for many years was whether to apply the doctrine to non- injured child was a visitor; here, the child resided next turntable cases. Many of the states that adopted the door. Reasonable minds could conclude that it was turntable doctrine refused to apply it to cases not foreseeable that one of the Bennett children would involving turntables. explore around the pool. However, the theory of liability has evolved since *** 1907. The Restatement of the Law, Torts (1934) and Restatement of the Law 2d, Torts (1965) removed legal The Restatement's version of the attractive nuisance fictions and imposed balancing factors to consider on doctrine balances society's interest in protecting children behalf of landowners. Ohio's refusal to recognize the with the rights of landowners to enjoy their property. turntable doctrine in 1907 was not a serious anomaly at Even when a landowner is found to have an attractive the time; today, our failure to adopt the attractive nuisance on his or her land, the landowner is left merely nuisance doctrine is. with the burden of acting with ordinary care. A landowner does not automatically become liable for any Ohio is one of only three states that have not either injury a child trespasser may suffer on that land. created a special duty for trespassing children or done away with distinctions of duty based upon a person's The requirement of foreseeability is built into the status as an invitee, licensee, or trespasser. Drumheller, doctrine. The landowner must know or have reason to Maryland's Rejection of Attractive Nuisance Doctrine know that children are likely to trespass upon the part of (1996), 55 Md.L.Rev. 807, 810, and fn. 32. the property that contains the dangerous condition. See Section 339(a). Moreover, the landowner's duty "does In more recent years, this court has failed to address not extend to those conditions the existence of which is the issue of attractive nuisance head-on. In Elliott v. obvious even to children and the risk of which should be Nagy this court avoided the opportunity to adopt the fully realized by them." Also, if the condition of the attractive nuisance doctrine, stating that the case at hand

35

property that poses the risk is essential to the landowner, this case, that finding would also affect the duty of care the doctrine would not apply: the appellees owed to Cher Bennett if Cher entered the property to rescue her son. The appellate court held that "The public interest in the possessor's free use of his even if it is assumed that Cher entered the Stanleys' land for his own purposes is of great significance. A property to rescue Chance, her status was still that of a particular condition is, therefore, regarded as not licensee. The court reasoned that in that instance, Cher involving unreasonable risk to trespassing children would possess a privilege to enter the property, and that a unless it involves a grave risk to them which could be person privileged to enter the land is owed the same obviated without any serious interference with the duties as a licensee. possessor's legitimate use of his land." On remand, the evidence may establish that Cher's We are satisfied that the Restatement view status was that of a rescuer. This court has held effectively harmonizes the competing societal interests pertaining to rescuers that "if the rescuer does not rashly of protecting children and preserving property rights. In and unnecessarily expose himself to danger, and is adopting the attractive nuisance doctrine, we injured, the injury should be attributed to the party that acknowledge that the way we live now is different from negligently, or wrongfully, exposed to danger, the person the way we lived in 1907, when Harvey was decided. We who required assistance." While the attractive nuisance are not a rural society any longer, our neighbors live doctrine is not ordinarily applicable to adults, it "may be closer, and our use of our own property affects others successfully invoked by an adult seeking damages for his more than it once did. or her own injury if the injury was suffered in an attempt Despite our societal changes, children are still to rescue a child from a danger created by the defendant's children. They still learn through their curiosity. They negligence." Therefore, we hold that if Cher Bennett still have developing senses of judgment. They still do entered the Stanleys' property to rescue her son from an not always appreciate danger. They still need protection attractive nuisance, the Stanleys owed her a duty of by adults. Protecting children in a changing world ordinary care. requires the common law to adapt. Today, we make that Accordingly, we reverse the judgment of the court change. of appeals and remand the cause to the trial court. Finally, we add that on remand should the facts Judgment reversed and cause remanded. establish that the attractive nuisance doctrine applies in

36

JOSEPH J. O'SULLIVAN vs. NORMAN SHAW & another. 1

1 Betty Shaw.

SJC-08081

SUPREME JUDICIAL COURT OF MASSACHUSETTS

431 Mass. 201; 726 N.E.2d 951; 2000 Mass. LEXIS 169

January 3, 2000, Argued April 13, 2000, Decided

SUBSEQUENT HISTORY: As Amended June 14, vinyl liner and there is no underwater lighting, so that the 2000. bottom of the pool is not visible at night.

The plaintiff, who was a friend of the defendants' LYNCH, J. The plaintiff seeks to recover for injuries granddaughter, had swum in the pool at least once prior he sustained when he dived, headfirst, into the shallow to the night of the accident, during daylight hours. He end of a swimming pool owned by the defendants and had observed various swimmers dive into the pool's deep located on their residential property. His complaint end from the diving board. He also saw swimmers dive alleges that the defendants were negligent in allowing into the pool from the shallow end by performing a flat visitors to dive into the shallow end of the pool and in or "racing dive," i.e., diving headfirst, with arms failing to warn of the danger associated with this activity. outstretched over their heads, landing in the water at an A judge in the Superior Court allowed the defendants' angle roughly parallel to the bottom of the pool gliding motion for summary judgment, reasoning that diving into just beneath the water's surface and eventually surfacing the shallow end of a swimming pool is an open and in the deep end. The plaintiff himself had previously obvious danger which was known to the plaintiff, and dived into the pool's deep end from the diving board two that the defendants therefore did not owe the plaintiff a or three times, and had made one dive into the shallow duty of care. The plaintiff timely appealed, and we end. Although he did not know the exact dimensions of transferred the case here on our own motion. We affirm. the pool, the plaintiff was aware of approximately where the shallow part ended. Moreover, he was aware of the 1. Facts. The undisputed record before the motion shallow end's approximate depth, having observed other judge, viewed in the light most favorable to the plaintiff, swimmers standing in that part of the pool and having establishes the following material facts: subsequently stood next to these people outside the pool. The pool in question is an in-ground type, measuring On the evening of July 16, 1996, the plaintiff, then eighteen feet in width by thirty-six feet in length, with twenty-one years of age, was a guest of the defendants' both shallow and deep ends. The bottom of the pool is granddaughter at the defendants' residence. The level in the shallow end, for approximately ten feet of the defendants were out of town, but their granddaughter had pool's length, after which it slopes gradually toward the permission to be on the premises and to use the deep end, the sides of which are tapered. When filled to swimming pool. Sometime between 9 and 9:30 P.M. the capacity, the pool is four feet deep at its shallowest point plaintiff suffered injuries to his neck and back when he and eight feet at its deepest. There are no markers, either dived into the shallow end of the pool. At the time, he in the pool or on its exterior surround, to indicate the was attempting, in racing dive fashion, to clear the ten- pool's depth at various points along its length or to foot expanse of the shallow end and surface in the deep demarcate the separation of its shallow and deep ends. end, but he entered the water at too steep an angle and However, a diving board is affixed to the exterior of the struck his head on the pool bottom, resulting in a fracture pool at its deep end. The pool's interior is covered with a of his cervical vertebrae. By his own admission, the

37 plaintiff knew that he could be injured if he were to hit applying statutorily mandated principles of comparative his head on the bottom of the pool when diving, and his fault. We reject this argument. purpose in trying to clear the shallow end was to avoid Although we have not previously addressed this the sort of accident that occurred. The plaintiff's injury precise issue, Massachusetts courts have continued to caused immediate paralysis in his lower extremities and apply the open and obvious danger rule in cases decided required a two-day stay in the hospital, but the paralysis after the Legislature's abolition of the assumption of risk was not permanent. defense, thereby at least implicitly recognizing the rule's *** continuing viability. Assumption of risk, along with contributory negligence, was an affirmative defense to 3. Survival of the open and obvious danger rule. negligence for which the defendant bore the burden of "Before liability for negligence can be imposed, there proof at trial. A plaintiff assumed the risk of harm when must first be a legal duty owed by the defendant to the he voluntarily exposed himself to a known danger which plaintiff, and a breach of that duty proximately resulting had been caused by the defendant's negligence; the focus in the injury." Whether a defendant has a duty of care to of the inquiry was thus on the plaintiff's own carelessness the plaintiff in the circumstances is a question of law for or negligence in failing to avoid a hazard which he knew the court, to be determined by reference to existing social about and appreciated. By contrast, the open and obvious values and customs and appropriate social policy. danger doctrine arises in connection with the separate An owner or possessor of land owes a common-law issue of a defendant's duty to protect others from duty of reasonable care to all persons lawfully on the dangerous conditions about which the defendant knows premises. This duty includes an obligation to "maintain[] or should know. Rather than evaluating a particular his property in a reasonably safe condition in view of all plaintiff's subjective reasonableness or unreasonableness the circumstances, including the likelihood of injury to in encountering a known hazard, the inquiry is an others, the seriousness of the injury, and the burden of objective one that focuses, instead, on the reasonableness avoiding the risk," and "to warn visitors of any of the defendant's conduct: it presumes a plaintiff's unreasonable dangers of which the landowner is aware or exercising reasonable care for his own safety and asks reasonably should be aware." However, a landowner is whether the dangerous condition was, objectively "not obliged to supply a place of maximum safety, but speaking, so obvious that the defendant would be only one which would be safe to a person who exercises reasonable in concluding that an ordinarily intelligent such minimum care as the circumstances reasonably plaintiff would perceive and avoid it and, therefore, that indicate." Moreover, it is well established in our law of any further warning would be superfluous. negligence that a landowner's duty to protect lawful Thus, the superseded common-law defense of visitors against dangerous conditions on his property assumption of risk goes to a plaintiff's failure to exercise ordinarily does not extend to dangers that would be due care for his own safety, whereas the open and obvious to persons of average intelligence. Landowners obvious danger rule concerns the existence of a are relieved of the duty to warn of open and obvious defendant's duty of care, which the plaintiff must dangers on their premises because it is not reasonably establish as part of his prima facie case before any foreseeable that a visitor exercising (as the law comparative analysis of fault may be performed. Because presumes) reasonable care for his own safety would "[a] statute is not to be interpreted as effecting a material suffer injury from such blatant hazards. Stated otherwise, change in or repeal of the common law unless the intent where a danger would be obvious to a person of ordinary to do so is clearly expressed," we conclude that the perception and judgment, a landowner may reasonably Legislature's express abolition of "the defense of assume that a visitor has knowledge of it and, therefore, assumption of risk" does not alter the plaintiff's burden in "any further warning would be an empty form" that a negligence action to prove that the defendant owed him would not reduce the likelihood of resulting harm. a duty of care in the circumstances, and thus leaves intact The plaintiff argues on appeal that the open and the open and obvious danger rule, which operates to obvious danger rule was implicitly abolished by the negate the existence of a duty of care (emphasis added). comparative negligence statute, which expressly abolishes "the defense of assumption of risk," because, 4. Application of open and obvious danger rule. The he maintains, the former is a corollary of the latter. remaining issue concerns whether the judge, in granting Accordingly, he argues, the judge erred in concluding summary judgment for the defendants, correctly that the defendants owed no duty to the plaintiff due to concluded that the open and obvious danger rule the obvious nature of the risk, for it properly belongs to a obviated any duty to warn the plaintiff not to dive jury to decide the issue of the defendants' liability by headfirst into the shallow end of the defendants' swimming pool. Plain common sense, bolstered by the

38 weight of authority in other jurisdictions where this issue prior experience and ostensible skill as a swimmer, and has been addressed, convince us that this conclusion is his awareness that serious injury could result if he were indisputably correct. to strike his head on the bottom of the defendants' swimming pool while diving -- bear on this particular *** plaintiff's subjective state of mind and actual knowledge [U]nder our law of premises liability, the standard of the danger of engaging in this activity, and thus should for determining whether a landowner is relieved of a have been excluded from an objective inquiry concerning duty to warn is whether the dangerous condition whether the risk of injury was obvious to a hypothetical complained of would be obvious to a person of average "person of average intelligence." However, even when intelligence, that is, a visitor with ordinary perception such subjective factors are excluded from the analysis, and judgment exercising reasonable care for his own sufficient undisputed evidence remains to support the safety. That many people might engage in objectively judge's conclusion. hazardous conduct on the basis of a belief that it can be It would be obvious to a person of average done safely does not affect our analysis of a defendant's intelligence that a swimming pool must have a bottom. duty of care under this standard if, in light of the obvious We have no doubt that an ordinarily intelligent adult in risks entailed by the activity, the belief in question, our society would be aware that the bottom of a however prevalent it may be, must nonetheless fairly be swimming pool is a hard surface, liable to cause injury if judged unreasonable, if not foolhardy. one were to strike it with one's head. Moreover, the *** design and layout of the defendants' pool would have indicated to a person of average intelligence that the end The plaintiff argues, however, that the judge, in into which the plaintiff dived was not intended for this reaching this conclusion at the summary judgment stage activity: the diving board was affixed to the opposite end of litigation, improperly drew inferences from the of the pool, making it apparent that the pool's deepest undisputed factual record that were adverse to the water was located at that end and that diving was plaintiff. The "adverse inference" about which he intended to take place there. Finally, the plaintiff complains, however, appears to be nothing other than the attempted his dive late in the evening, when there was judge's legal conclusion that the danger of diving into the little if any natural light, and the defendants' pool had no defendants' pool in the manner and circumstances underwater lighting, such that its bottom was not visible described in the record was open and obvious, thus to someone standing outside the water. The water into negating the defendants' duty to warn of this danger. The which the plaintiff dived, then, was of uncertain depth. A plaintiff's argument, then, must be that such a person of average intelligence would clearly have determination is a matter of fact properly left to the trier recognized that diving head first into shallow water in of fact, applying principles of comparative negligence. these circumstances posed a risk of suffering injury by Thus construed, it is but a variant of his argument striking the bottom of the pool. concerning the Legislature's implicit abolition of the open and obvious danger rule, which we have already 5. Conclusion. We conclude that, because the danger adequately addressed. of diving into the shallow end of a swimming pool is open and obvious to a person of average intelligence, the Finally, the plaintiff argues that, in concluding that defendants had no duty to warn the plaintiff of this the danger was open and obvious, the judge improperly danger as a matter of law and, therefore, they could not considered subjective factors particular to this plaintiff, be found liable for his injuries. The defendants' motion thus revealing that, under the guise of performing an for summary judgment was correctly allowed. objective inquiry about the defendant's duty, he was in reality performing an assumption of risk analysis, in Judgment affirmed. violation of G. L. c. 231, § 85. Admittedly, certain of the factors relied on by the judge -- such as the plaintiff's

39

Restatement of the Law — Torts Restatement (Second) of Torts Liability of Possessors of Land to Persons on the Land

§ 329. Trespasser Defined

A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise.

§ 330. Licensee Defined

A licensee is a person who is privileged to enter or remain on land only by virtue of the possessor's consent.

§ 332. Invitee Defined

(1) An invitee is either a public invitee or a business visitor.

(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.

(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.

§ 339. Artificial Conditions Highly Dangerous To Trespassing Children

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

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Louisville & Nashville Railroad Co. v. Scruggs & Echols.

SUPREME COURT OF ALABAMA

161 Ala. 97; 49 So. 399; 1909 Ala. LEXIS 120

April 16, 1909, Decided

PROCEDURAL POSTURE: Defendant railroad property rights. To illustrate: If, in the present case, the sought review of a judgment from the Morgan Circuit fire hose had been laid from the hydrant, across the Court (Alabama), which found in favor of plaintiff tracks of the defendant, to the fire, and the defendant's owners in their action for damages. servants, with knowledge of the existing conditions as to the fire and the laying of the hose, had willfully or negligently run the train of cars over the hose, DOWDELL, C. J destroying it, and thereby prevented the extinguishing *** of the fire, a legal liability for such conduct would have arisen. That would have been an active use of one's The undisputed evidence is that, when the property in violation of the maxim, "Sic utere tuo ut defendant's servants moved the locomotive and train of alienum non laedas" [so use your property as not to 24 freight cars, from the company's yards to the point injure others]. On the other hand, if (as was the case intervening between the hydrant or water plug and the here) the defendant's train of cars was already plaintiff's property that was on fire, it was without any rightfully standing on its tracks intervening the hydrant knowledge or notice on the part of the defendant or of and the plaintiff's burning house, and the defendant its servants of any purpose or intention of the fire merely failed or refused to promptly move its train out department, or of any one else, of laying a hose across of the way when requested so to do, in order that the the defendant's track, from said water plug to the hose might be laid across its tracks, there would be no plaintiff's property. The movement of the train of cars case for the application of the above-quoted legal was in the orderly course of the defendant's business. maxim. In the latter instance the use would be merely The place at which the train of cars was stopped, near passive. The law imposes no duty on one man to aid the dispatcher's office, was its customary and usual another in the preservation of the latter's property, but place for stopping to receive orders and clearance card only the duty not to injure another's property in the use from the dispatcher, before it could proceed . . . . of his own. *** The judgment appealed from will be reversed, and In respect to legal responsibility to a third person, one here rendered in favor of the defendant. there is, we think, a distinction to be drawn between an Reversed and rendered. active and a passive use, in the enjoyment of one's

41

DUSTIN SOLDANO, a Minor, etc., Plaintiff and Appellant, v. HOWARD O'DANIELS, Defendant and Respondent Court of Appeal of California, Fifth Appellate District

141 Cal. App. 3d 443; 190 Cal. Rptr. 310; 1983 Cal. App. LEXIS 1539; 37 A.L.R.4th 1183

March 28, 1983

PROCEDURAL POSTURE: In a wrongful death (hereafter cited as Restatement), which provides in claim, appellant, whose father was killed in a bar fight, section 314: "The fact that the actor realizes or should challenged the order of the Superior Court of San Luis realize that action on his part is necessary for another's Obispo County (California), which entered summary aid or protection does not of itself impose upon him a judgment for respondent, the employer of a bartender duty to take such action." … The distinction between who refused to let a good samaritan use respondent's malfeasance and nonfeasance, between active phone to summon police to stop the fight. misconduct working positive injury and failure to act to prevent mischief not brought on by the defendant, is OPINION BY: ANDREEN founded on "that attitude of extreme individualism so typical of anglo-saxon legal thought." *** Does a business establishment incur liability for wrongful death if it denies use of its telephone to a good The refusal of the law to recognize the moral samaritan who explains an emergency situation obligation of one to aid another when he is in peril and occurring without and wishes to call the police? when such aid may be given without danger and at little cost in effort has been roundly criticized. Prosser This appeal follows a judgment of dismissal of the describes the case law sanctioning such inaction as a second cause of action 1 of a complaint for wrongful "[refusal] to recognize the moral obligation of common death upon a motion for summary judgment. The motion decency and common humanity" and characterizes some was supported only by a declaration of defense counsel. of these decisions as "shocking in the extreme . . . . [para. Both briefs on appeal adopt the defense averments: ] Such decisions are revolting to any moral sense. They "This action arises out of a shooting death occurring have been denounced with vigor by legal writers." A on August 9, 1977. Plaintiff's father [Darrell Soldano] similar rule has been termed "morally questionable" by was shot and killed by one Rudolph Villanueva on that our Supreme Court. date at defendant's Happy Jack's Saloon. This defendant *** owns and operates the Circle Inn which is an eating establishment located across the street from Happy We turn now to the concept of duty in a tort case. Jack's. Plaintiff's second cause of action against this The Supreme Court has identified certain factors to be defendant is one for negligence. considered in determining whether a duty is owed to third persons. These factors include: "the foreseeability "Plaintiff alleges that on the date of the shooting, a of harm to the plaintiff, the degree of certainty that the patron of Happy Jack's Saloon came into the Circle Inn plaintiff suffered injury, the closeness of the connection and informed a Circle Inn employee that a man had been between the defendant's conduct and the injury suffered, threatened at Happy Jack's. He requested the employee the moral blame attached to the defendant's conduct, the either call the police or allow him to use the Circle Inn policy of preventing future harm, the extent of the phone to call the police. That employee allegedly burden to the defendant and consequences to the refused to call the police and allegedly refused to allow community of imposing a duty to exercise care with the patron to use the phone to make his own call. resulting liability for breach, and the availability, cost, Plaintiff alleges that the actions of the Circle Inn and prevalence of insurance for the risk involved." employee were a breach of the legal duty that the Circle Inn owed to the decedent." We examine those factors in reference to this case. (1) The harm to the decedent was abundantly *** foreseeable; it was imminent. The employee was There is a distinction, well rooted in the common expressly told that a man had been threatened. The law, between action and nonaction. It has found its way employee was a bartender. As such he knew it is into the prestigious Restatement Second of Torts foreseeable that some people who drink alcohol in the

42

milieu of a bar setting are prone to violence. (2) The insurance for the risk, but note that the liability which is certainty of decedent's injury is undisputed. (3) There is sought to be imposed here is that of employee arguably a close connection between the employee's negligence, which is covered by many insurance policies. conduct and the injury: the patron wanted to use the (7) The extent of the burden on the defendant was phone to summon the police to intervene. The minimal, as noted. employee's refusal to allow the use of the phone prevented this anticipated intervention. If permitted to *** go to trial, the plaintiff may be able to show that the We conclude that the bartender owed a duty to the probable response time of the police would have been plaintiff's decedent to permit the patron from Happy shorter than the time between the prohibited telephone Jack's to place a call to the police or to place the call call and the fatal shot. (4) The employee's conduct himself. displayed a disregard for human life that can be characterized as morally wrong: 9 he was callously It bears emphasizing that the duty in this case does indifferent to the possibility that Darrell Soldano would not require that one must go to the aid of another. That die as the result of his refusal to allow a person to use the is not the issue here. The employee was not the good telephone. Under the circumstances before us the samaritan intent on aiding another. The patron was. bartender's burden was minimal and exposed him to no risk: all he had to do was allow the use of the telephone. *** It would have cost him or his employer nothing. It could We conclude there are sufficient justiciable issues have saved a life. (5) Finding a duty in these to permit the case to go to trial and therefore reverse. circumstances would promote a policy of preventing future harm. A citizen would not be required to summon the police but would be required, in circumstances such as those before us, not to impede another who has chosen to summon aid. (6) We have no information on the question of the availability, cost, and prevalence of

43

JOSEPH BLACK v. NEW YORK, NEW HAVEN, AND HARTFORD RAILROAD COMPANY

Supreme Judicial Court of Massachusetts, Suffolk

193 Mass. 448; 79 N.E. 797; 1907 Mass. LEXIS 1200

November 16, 1906 January 2, 1907

PROCEDURAL POSTURE: Plaintiff injured person balanced himself there just a minute and then fell challenged the judgment of the trial court completely backward. He turned a complete somersault (Massachusetts) for defendant railroad in the injured and struck on the back of his head. The railroad men just person's action to recover for an injury alleged to have had time to get down to the foot of the steps. There was been caused by the negligence of the railroad's a railing that led up those steps and the steps were about employees. ten feet wide. Mr. Black was upon the right hand side going up and he was left right near the railing. When he OPINION BY: KNOWLTON fell, he did not seize hold of anything, his arms were at his side." This action was brought to recover for an injury On this testimony the jury might find that the alleged to have been caused by the negligence of the plaintiff was so intoxicated as to be incapable of defendant's servants. The plaintiff was a passenger on the standing, or walking, or caring for himself in any way, defendant's train which ran from Boston through and the defendant's servants, knowing his condition, left Ashmont on the evening of February 7, 1903. He him half way up the steps where they knew, or ought to testified to having become so intoxicated that he had no have known, that he was in great danger of falling and recollection of anything that occurred after leaving a being seriously injured. They were under no obligation cigar store in Boston, until he awoke in the Boston City to remove him from the car, or to provide for his safety Hospital, about four o'clock the next day. . . .At after he left the car. But they voluntarily undertook to Ashmont, … [t]he conductor and brakeman took Black help him from the car, and they were bound to use out of the car, with one on each side. The distance from ordinary care in what they did that might affect his the steps of the car to the steps that lead up to the station safety. Not only in the act of removal, but in the place was twenty-five feet. As they went along the platform, where they left him, it was their duty to have reasonable the conductor and trainman were on each side of him. regard for his safety in view of his manifest condition. They tried to stand him up, but his legs would sink away The jury might have found that they were negligent in from him. They sort of helped him up and carried him to leaving him on the steps where a fall would be likely to the bottom of the steps. When they went to the bottom do him much harm. of the steps, they continued, one on each side of him.

Then one of the men got on one side with his arm around him and the other back of him sort of pushing him, and *** they took him up about the fifth or sixth step, and after they got him up there, they turned right around and left [Reversed] him and went down the steps. Mr. Black sort of

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DeSHANEY, a minor, by his guardian ad litem, et al. v. WINNEBAGO COUNTY DEPARTMENT OF SOCIAL SERVICES et al. No. 87-154 SUPREME COURT OF THE UNITED STATES 489 U.S. 189; 109 S. Ct. 998; 103 L. Ed. 2d 249; 1989 U.S. LEXIS 1039; 57 U.S.L.W. 4218 November 2, 1988, Argued February 22, 1989, Decided

PRIOR HISTORY: CERTIORARI TO THE immediately obtained an order from a Wisconsin UNITED STATES COURT OF APPEALS FOR THE juvenile court placing Joshua in the temporary custody SEVENTH CIRCUIT. of the hospital. Three days later, the county convened an ad hoc "Child Protection Team" -- consisting of a pediatrician, a psychologist, a police detective, the CHIEF JUSTICE REHNQUIST delivered the county's lawyer, several DSS caseworkers, and various opinion of the Court. hospital personnel -- to consider Joshua's situation. At Petitioner is a boy who was beaten and this meeting, the Team decided that there was permanently injured by his father, with whom he lived. insufficient evidence of child abuse to retain Joshua in Respondents are social workers and other local the custody of the court. The Team did, however, officials who received complaints that petitioner was decide to recommend several measures to protect being abused by his father and had reason to believe Joshua, including enrolling him in a preschool that this was the case, but nonetheless did not act to program, providing his father with certain counselling remove petitioner from his father's custody. Petitioner services, and encouraging his father's girlfriend to sued respondents claiming that their failure to act move out of the home. Randy DeShaney entered into a deprived him of his liberty in violation of the Due voluntary agreement with DSS in which he promised to Process Clause of the Fourteenth Amendment to the cooperate with them in accomplishing these goals. United States Constitution. We hold that it did not. Based on the recommendation of the Child I Protection Team, the juvenile court dismissed the child protection case and returned Joshua to the custody of The facts of this case are undeniably tragic. his father. A month later, emergency room personnel Petitioner Joshua DeShaney was born in 1979. In called the DSS caseworker handling Joshua's case to 1980, a Wyoming court granted his parents a divorce report that he had once again been treated for and awarded custody of Joshua to his father, Randy suspicious injuries. The caseworker concluded that DeShaney. The father shortly thereafter moved to there was no basis for action. For the next six months, Neenah, a city located in Winnebago County, the caseworker made monthly visits to the DeShaney Wisconsin, taking the infant Joshua with him. There home, during which she observed a number of he entered into a second marriage, which also ended in suspicious injuries on Joshua's head; she also noticed divorce. that he had not been enrolled in school, and that the The Winnebago County authorities first learned girlfriend had not moved out. The caseworker dutifully that Joshua DeShaney might be a victim of child abuse recorded these incidents in her files, along with her in January 1982, when his father's second wife continuing suspicions that someone in the DeShaney complained to the police, at the time of their divorce, household was physically abusing Joshua, but she did that he had previously "hit the boy causing marks and nothing more. In November 1983, the emergency [was] a prime case for child abuse." The Winnebago room notified DSS that Joshua had been treated once County Department of Social Services (DSS) again for injuries that they believed to be caused by interviewed the father, but he denied the accusations, child abuse. On the caseworker's next two visits to the and DSS did not pursue them further. In January 1983, DeShaney home, she was told that Joshua was too ill to Joshua was admitted to a local hospital with multiple see her. Still DSS took no action. bruises and abrasions. The examining physician suspected child abuse and notified DSS, which

45

In March 1984, Randy DeShaney beat 4-year-old liberty, and property of its citizens against invasion by Joshua so severely that he fell into a life-threatening private actors. The Clause is phrased as a limitation on coma. Emergency brain surgery revealed a series of the State's power to act, not as a guarantee of certain hemorrhages caused by traumatic injuries to the head minimal levels of safety and security. It forbids the inflicted over a long period of time. Joshua did not die, State itself to deprive individuals of life, liberty, or but he suffered brain damage so severe that he is property without "due process of law," but its language expected to spend the rest of his life confined to an cannot fairly be extended to impose an affirmative institution for the profoundly retarded. Randy obligation on the State to ensure that those interests do DeShaney was subsequently tried and convicted of not come to harm through other means. Nor does child abuse. history support such an expansive reading of the constitutional text. Like its counterpart in the Fifth Joshua and his mother brought this action under 42 Amendment, the Due Process Clause of the Fourteenth U. S. C. § 1983 in the United States District Court for Amendment was intended to prevent government "from the Eastern District of Wisconsin against respondents abusing [its] power, or employing it as an instrument of Winnebago County, DSS, and various individual oppression.” Its purpose was to protect the people employees of DSS. The complaint alleged that from the State, not to ensure that the State protected respondents had deprived Joshua of his liberty without them from each other. The Framers were content to due process of law, in violation of his rights under the leave the extent of governmental obligation in the latter Fourteenth Amendment, by failing to intervene to area to the democratic political processes. protect him against a risk of violence at his father's

hands of which they knew or should have known. The Consistent with these principles, our cases have District Court granted summary judgment for recognized that the Due Process Clauses generally respondents. confer no affirmative right to governmental aid, even The Court of Appeals for the Seventh Circuit where such aid may be necessary to secure life, liberty, affirmed, … we granted certiorari. We now affirm. or property interests of which the government itself may not deprive the individual. As we said in Harris II v. McRae: "Although the liberty protected by the Due

Process Clause affords protection against unwarranted The Due Process Clause of the Fourteenth government interference . . ., it does not confer an Amendment provides that "[n]o State shall . . . deprive entitlement to such [governmental aid] as may be any person of life, liberty, or property, without due necessary to realize all the advantages of that freedom." process of law." contend that the State deprived Joshua If the Due Process Clause does not require the State to of his liberty interest in "free[dom] from . . . unjustified provide its citizens with particular protective services, intrusions on personal security," by failing to provide it follows that the State cannot be held liable under the him with adequate protection against his father's Clause for injuries that could have been averted had it violence. The claim is one invoking the substantive chosen to provide them. As a general matter, then, we rather than the procedural component of the Due conclude that a State's failure to protect an individual Process Clause; petitioners do not claim that the State against private violence simply does not constitute a denied Joshua protection without according him violation of the Due Process Clause. appropriate procedural safeguards, but that it was categorically obligated to protect him in these circumstances. Petitioners contend, however, that even if the Due Process Clause imposes no affirmative obligation on the State to provide the general public with adequate , argued to the Court of Appeals as a protective services, such a duty may arise out of certain ground for reversing the District Court, or "special relationships" created or assumed by the State raised in the petition for certiorari. We with respect to particular individuals. Petitioners argue therefore decline to consider it here. See that such a "special relationship" existed here because Youngberg v. Romeo, 457 U.S., at 316, n. 19; the State knew that Joshua faced a special danger of Dothard v. Rawlinson, 433 U.S. 321, 323, n. 1 abuse at his father's hands, and specifically proclaimed, (1977); Duignan v. United States, 274 U.S. 195, by word and by deed, its intention to protect him 200 (1927); Old Jordan Mining & Milling Co. against that danger. Having actually undertaken to v. Societe Anonyme des Mines, 164 U.S. 261, protect Joshua from this danger -- which petitioners 264-265 (1896). concede the State played no part in creating -- the State But nothing in the language of the Due Process acquired an affirmative "duty," enforceable through the Clause itself requires the State to protect the life, Due Process Clause, to do so in a reasonably 46

competent fashion. Its failure to discharge that duty, so *** the argument goes, was an abuse of governmental power that so "shocks the conscience," as to constitute The people of Wisconsin may well prefer a system a substantive due process violation. of liability which would place upon the State and its officials the responsibility for failure to act in situations We reject this argument. It is true that in certain such as the present one. They may create such a limited circumstances the Constitution imposes upon system, if they do not have it already, by changing the the State affirmative duties of care and protection with tort law of the State in accordance with the regular respect to particular individuals. lawmaking process. But they should not have it thrust upon them by this Court's expansion of the Due *** Process Clause of the Fourteenth Amendment.

Affirmed. But these cases afford petitioners no help. Taken together, they stand only for the proposition that when the State takes a person into its custody and holds him JUSTICE BLACKMUN, dissenting. there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for Today, the Court purports to be the dispassionate his safety and general well-being. "When a person is oracle of the law, unmoved by "natural sympathy." But, in this pretense, the Court itself retreats into a institutionalized -- and wholly dependent on the State[,] . . . a duty to provide certain services and care sterile formalism which prevents it from recognizing does exist." The rationale for this principle is simple either the facts of the case before it or the legal norms that should apply to those facts. As Justice Brennan enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it demonstrates, the facts here involve not mere passivity, renders him unable to care for himself, and at the same but active state intervention in the life of Joshua DeShaney -- intervention that triggered a fundamental time fails to provide for his basic human needs -- e. g., food, clothing, shelter, medical care, and reasonable duty to aid the boy once the State learned of the severe safety -- it transgresses the substantive limits on state danger to which he was exposed. action set by the Eighth Amendment and the Due The Court fails to recognize this duty because it Process Clause. The affirmative duty to protect arises attempts to draw a sharp and rigid line between action not from the State's knowledge of the individual's and inaction. But such formalistic reasoning has no predicament or from its expressions of intent to help place in the interpretation of the broad and stirring him, but from the limitation which it has imposed on Clauses of the Fourteenth Amendment. Indeed, I his freedom to act on his own behalf. submit that these Clauses were designed, at least in part, to undo the formalistic legal reasoning that *** infected antebellum jurisprudence, which the late Professor Robert Cover analyzed so effectively in his It may well be that, by voluntarily undertaking to significant work entitled Justice Accused (1975). protect Joshua against a danger it concededly played no part in creating, the State acquired a duty under state Like the antebellum judges who denied relief to tort law to provide him with adequate protection fugitive slaves, the Court today claims that its decision, against that danger. But the claim here is based on the however harsh, is compelled by existing legal doctrine. Due Process Clause of the Fourteenth Amendment, On the contrary, the question presented by this case is which, as we have said many times, does not transform an open one, and our Fourteenth Amendment every tort committed by a state actor into a precedents may be read more broadly or narrowly constitutional violation. A State may, through its depending upon how one chooses to read them. Faced courts and legislatures, impose such affirmative duties with the choice, I would adopt a "sympathetic" reading, of care and protection upon its agents as it wishes. But one which comports with dictates of fundamental not "all common-law duties owed by government justice and recognizes that compassion need not be actors were . . . constitutionalized by the Fourteenth exiled from the province of judging. Amendment." Because, as explained above, the State Poor Joshua! Victim of repeated attacks by an had no constitutional duty to protect Joshua against his irresponsible, bullying, cowardly, and intemperate father's violence, its failure to do so -- though father, and abandoned by respondents who placed him calamitous in hindsight -- simply does not constitute a in a dangerous predicament and who knew or learned violation of the Due Process Clause. what was going on, and yet did essentially nothing except, as the Court revealingly observes, "dutifully

47

recorded these incidents in [their] files." It is a sad Joshua and his mother, as petitioners here, deserve -- commentary upon American life, and constitutional but now are denied by this Court -- the opportunity to principles -- so full of late of patriotic fervor and proud have the facts of their case considered in the light of proclamations about "liberty and justice for all" -- that the constitutional protection that 42 U. S. C. § 1983 is this child, Joshua DeShaney, now is assigned to live meant to provide. out the remainder of his life profoundly retarded.

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K.H., through her next friend and guardian ad litem, PATRICK T. MURPHY, Plaintiff-Appellee, v. GARY T. MORGAN, Guardianship Administrator, Department of Children and Family Services, et al., Defendants-Appellants

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

914 F.2d 846; 1990 U.S. App. LEXIS 16899

April 18, 1990, Argued September 24, 1990, Decided

PROCEDURAL POSTURE: Defendants, the came to light, K.H. was transferred to an institution Director of the Illinois Department of Children and that provides safe and professional care. But that care Family Services and related individuals, appealed the is expensive. The complaint seeks $ 300,000 in order of the United States District Court for the damages to help defray the psychiatric treatment Northern District of Illinois, Eastern Division, which needed to alleviate the consequences of the defendants' rejected their immunity defense in plaintiff minor's irresponsible discharge of their duty to provide foster action for damages to defray the psychiatric treatment care for K.H. We do not know whether, if the suit fails, needed to alleviate the consequences of the there is any source of public or private funds for irresponsible discharge of the duty to provide foster defraying these expenses. care. In 1987, when at last K.H. was placed in an

adequate facility, she was not yet six years old. She had POSNER, Circuit Judge. changed homes nine times in four years. The defendants argue from the juvenile court transcript that *** there were good reasons for each of the moves and -- The complaint paints an ugly picture of official inconsistently -- that none of K.H.'s foster parents neglect of human misery. K.H., the plaintiff, is a black abused her. As confession and avoidance, this girl born in Chicago in 1981. When she was seventeen argument leaves more to be desired than consistency. months old she was discovered to have gonorrhea To change an infant's parents nine times in four years contracted in vaginal intercourse. The juvenile court of not only is suggestive of profound disarray in the state's Cook County ordered her removed from the custody of system of caring for abused and neglected children; her parents. Pursuant to this order, the Department of more to the point, it may -- though this depends on the Children and Family Services placed her with a foster state of mind with which the authors of this shuttle, the parent. This was placement number one. Two weeks defendants, acted -- bespeak violations by these state later the Department transferred her to another foster actors of their constitutional obligations. parent, with whom she remained for four months. At *** the end of that time she was transferred to a third foster parent, with whom she remained for ten months before Once the state assumes custody of a person, it being transferred to foster parent number four. She owes him a rudimentary duty of safekeeping no matter remained for more than a year with that foster parent how perilous his circumstances when he was free. The and then was returned to her natural parents. Three distinction follows the lines of tort law. There is no months after that, however, she was again removed duty to rescue a bystander in distress, but having from her parents' custody on grounds of parental rescued him from certain death you are not privileged neglect and placed with her sixth parental custodian to kill him. This is not to say that you assume (counting her parents as the fifth). She was now three responsibility for his future welfare. You do not. Our years old. Shortly after this transfer K.H. was shifted to point is only that the absence of a duty to rescue does yet another foster parent -- who beat her; in addition, a not entitle a rescuer to harm the person whom he has neighbor of this foster parent abused K.H. sexually. rescued. The hospital staff that discovered this outrage advised The complaint in this case focuses on the the Department that K.H. needed psychotherapy, but penultimate placement -- the placement of K.H. in none was administered and instead she was shunted to 1986 with a foster parent who was incompetent to care another foster parent, who, far from having the training for an emotionally disturbed child and who physically or ability to care for what had become an emotionally abused K.H. into the bargain. The complaint alleges disturbed child, abused her physically. After this abuse

49

that the two caseworkers who are defendants knew that We emphasize that the issue is not whether the the foster parent was incompetent and that the state's duty follows the child into the private home in administrator defendants, although they did not know which he is placed. We may assume, without having to about K.H.'s case specifically, knew that mindless decide, that it does not, that the foster parents, even if shuttling of the Department's wards among paid by the state, are not state agents for constitutional incompetent foster parents was rampant, and indeed purposes. Certainly if the state decides to return a child had, without justification, formulated and approved the whom it has taken custody of to the child's natural departmental policies that caused such shuttling to parents, those parents do not become state agents. … occur. It could be argued, consistent with the previous The only right in question in this case is the right of a suggestion to compare a plaintiff's current condition child in state custody not to be handed over by state with the condition he would have been in had the state officers to a foster parent or other custodian, private or not intervened, that the real injurers in this case are the public, whom the state knows or suspects to be a child natural parents, who by their initial abuse of K.H. abuser. Only in this case thus narrowly described can doomed her to wander among foster homes. No doubt the foster parent be fairly considered an instrument of they are joint tortfeasors with the defendants, but this the state for child abuse. does not excuse the defendants. If, as the complaint *** alleges, the defendants must have known they were placing K.H. in a sequence of foster homes that would AFFIRMED IN PART, AND IN PART be destructive of her mental health, the ingredients of a REMANDED WITH DIRECTIONS. valid constitutional claim are present. ***

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MITCHELL M. ISEBERG, Indiv. and as an Officer and Director of the Leikam Farm Development Corporation, et al., Appellants, v. SHELDON GROSS, Indiv. and as an Officer, Director, Partner, Agent, and/or Joint Adventurer of the Vernonshire Auto Laundry Group, Inc., et al., Appellees.

Docket No. 103332.

SUPREME COURT OF ILLINOIS

227 Ill. 2d 78; 879 N.E.2d 278; 2007 Ill. LEXIS 1160; 316 Ill. Dec. 211

September 20, 2007, Opinion Filed

PRIOR HISTORY: Appeal from the Appellate Court In October 1996, VAL and LFD entered into a for the First District. partnership agreement, with each contributing funds JUSTICE BURKE delivered the judgment of the toward the purchase of the Leikam Farm property. court, with opinion. *** In this interlocutory appeal, plaintiffs, Mitchell [I]n February 1999, Slavin was forced to surrender Iseberg (Iseberg) and his wife, Carol, seek reversal of the his interest in the property, losing his entire investment. order dismissing with prejudice count I of their third amended complaint, brought against defendants, Sheldon Plaintiffs alleged that Slavin's financial demise Gross (Gross) and Henry Frank (Frank). In count I, caused him to become mentally unbalanced and that plaintiffs alleged that Gross and Frank were negligent Slavin focused his anger on Iseberg, whom he blamed because they failed to warn Iseberg that a former mutual for his financial situation. According to statements Gross business partner, Edward Slavin (Slavin), had made gave to the Lake County police, Slavin spoke to Gross on threats against Iseberg's life. Slavin later acted on his several occasions between the fall of 1998 and the early threats and shot Iseberg, rendering him a paraplegic. months of 1999 about wanting to harm Iseberg. In the beginning, Slavin talked about punching Iseberg in the *** face with brass knuckles. But as time passed and Slavin For reasons that follow, we affirm the judgment of became more agitated, he talked about wanting to find a the appellate court. "hit man" and, later, he outlined a plan for killing Iseberg himself and then committing suicide. Slavin told Gross BACKGROUND that, once the suicide exemption clause in his life The facts of this case are taken from plaintiffs' insurance policy was no longer in effect, he would go to complaint and the documents attached thereto. They are Iseberg's home, ring the doorbell, shoot Iseberg, and then not materially in dispute. kill himself so his family could collect his insurance. On at least one occasion, Slavin spoke about a plan that In 1995, Slavin and Gross formed the Vernonshire included killing Frank as well. Slavin also told Gross that Auto Laundry Group, Inc. (VAL), an Illinois corporation he had purchased a gun and asked whether the caliber created for the purpose of developing Slavin's idea of was large enough to kill someone. building a car wash in the Vernon Hills-Lincolnshire area. Thereafter, Gross contacted Iseberg, an attorney Gross contacted Slavin's brother, Earl, to express his and real estate broker, who Gross had learned was in the concerns about Slavin's threats. Gross suggested, more process of purchasing land in the Vernon Hills area (the than once, that Earl obtain psychiatric help for his Leikam Farm property). Iseberg planned to purchase the brother. Earl always demurred, assuring Gross that Leikam Farm property and develop it into a strip mall. Slavin would never act on his threats. Gross told Frank To that end, Iseberg had joined with Frank to form the about the threats, but neither Gross nor Frank told Leikam Farm Development Corporation (LFD). Iseberg.

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*** Because of the procedural posture of this case, the only issue before us is whether a legal duty existed. On January 24, 2000, Slavin rang the doorbell at Plaintiffs do not allege that defendants owed a duty by Iseberg's residence. When Iseberg answered the door, virtue of any contract or statute. Rather, they seek to hold Slavin shot him four times. Iseberg was not killed, but defendants liable for negligence under common law was rendered a paraplegic. principles. In October 2001, Mitchell and Carol Iseberg filed a This case presents a question of "duty" in its most complaint, which was later amended to include claims basic or "primary" sense, i.e., duty as obligation. What against Gross and Frank. The third amended complaint, we must decide is whether Iseberg and defendants stood which is at issue here, sought recovery from Gross and in such a relationship to one another that the law Frank for negligence …. imposed on defendants an obligation of reasonable In the negligence count, it was alleged that Iseberg conduct for the benefit of Iseberg. Under common law, was "a former partner and joint adventurer" of both the universally accepted rule, articulated in section 314 Gross and Frank and that he was "the current agent, of the Restatement (Second) of Torts, and long adhered to attorney, and co-adventurer" of the Leikam Farm Joint by this court, is that a private person has no duty to act Venture "with respect to the sale and/or development of affirmatively to protect another from criminal attack by a the Leikam Farm property." It was not alleged, however, third person absent a "special relationship" between the that a duty arose because of these relationships. Rather, parties. Historically, there have been four "special the complaint alleged that Gross and Frank had "actual, relationships" which this and other courts have independent and superior knowledge" that Slavin blamed recognized, namely, common carrier-passenger, Iseberg for Slavin's financial demise, that Slavin had innkeeper-guest, business invitor-invitee, and voluntary threatened to kill Iseberg, and that he had purchased a custodian-protectee. When one of these special gun. It was further alleged that, based on this knowledge, relationships exists between the parties and an Gross and Frank "were in a unique position to prevent unreasonable risk of physical harm arises within the the harm done to Iseberg" by either communicating the scope of that relationship, an obligation may be imposed threats to Iseberg or by contacting the police. Plaintiffs on the one to exercise reasonable care to protect the other then asserted that, because of this knowledge, Gross and from such risk, if the risk is reasonably foreseeable, or to Frank owed a duty to warn and protect Iseberg, which render first aid when it is known that such aid is needed. they breached by failing to tell Iseberg about Slavin's The existence of one of these four "special relationships" threats. has typically been the basis for imposing an affirmative duty to act where one would not ordinarily exist. 4 In an order dated August 13, 2004, the trial court dismissed with prejudice the counts alleging 4 We note that the Restatement (Third) of Torts: negligence…. Liability for Physical Harm § 40, Proposed Final *** Draft No.1 (April 6, 2005), has added employer- employee, school-student, and landlord-tenant as We granted plaintiffs' petition for leave to appeal. additional "special relationships." *** In the case at bar, plaintiffs do not allege that one of ANALYSIS the above-listed "special relationships" existed. Nor do they contend in this court, as they did in their third- Before this court, plaintiffs' only challenge is to the amended complaint, that a duty arose from defendants' dismissal of count I, the claim charging Gross and Frank "superior knowledge" of Slavin's threats. Instead, with negligence for their failure to warn Iseberg of plaintiffs ask us to find, as did the dissenting appellate Slavin's threats. justice, that the facts alleged in the third amended *** complaint, viewed in a light most favorable to them, are sufficient to bring this case within an exception to the To state a legally sufficient claim of negligence, the no-affirmative-duty rule. Specifically, plaintiffs now complaint must allege facts establishing the existence of claim that the facts alleged in the third amended a duty of care owed by the defendants to the plaintiffs, a complaint sufficiently establish that, at the time of the breach of that duty, and an injury proximately caused by shooting, Iseberg was an agent of both Gross and Frank that breach. with respect to the Leikam Farm Property Venture and, *** as a result of this relationship and in accordance with section 471 of the Restatement (Second) of Agency,

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Gross and Frank owed a duty to warn Iseberg of Slavin's period, it would not alter our determination with regard threats. to the duty to warn. Plaintiffs also advance a second argument. Plaintiffs The duty to warn, identified in section 471 of the contend that decisions of this court have demonstrated Restatement (Second) of Agency, does not arise unless that the "special relationship" doctrine is no longer the the unreasonable risk of harm is "involved in the sine qua non for determining whether to impose an employment." affirmative duty to protect against the tortious acts of a *** third party. Rather, plaintiffs contend, in situations where some type of relationship exists between the parties (i.e., In the case at bar, plaintiffs do not suggest that where the parties are not mere strangers), whether an Iseberg encountered a risk of harm because of any task affirmative duty may be imposed will be decided based Iseberg was directed to perform by defendants. Nor was upon consideration of the four traditional negligence Iseberg injured while he was performing any tasks for factors: foreseeability, likelihood of injury, magnitude of defendants. Slavin attacked Iseberg at Iseberg's home. As the burden, and consequences of placing the burden on noted above, the complaint alleged that the reason for the the defendants. Plaintiffs urge us to clarify that this is the attack was that Slavin blamed Iseberg for the financial current status of the law of this state and to apply this losses Slavin experienced. Those financial losses were analysis to find a duty in this case. Alternatively, the result of the inability to sell the Leikam Farm plaintiffs argue that, if we find that the "special property. Plaintiffs do not allege that the inability to sell relationship" analysis has not already been discarded, we the property was due to anything Iseberg did in his should take this opportunity to do so now because the capacity as the purported agent of Gross and Frank. no-affirmative-duty rule is out of step with modern Based on the facts alleged in plaintiffs' complaint, notions of morality. the risk of harm to Iseberg which Slavin posed did not Principal-Agent Relationship and the Duty to Warn "arise from the particular nature" of Iseberg's alleged agency relationship with Gross and Frank. *** *** Section 471 provides as follows: Abandoning the "Special Relationship" Doctrine "A principal is subject to liability in an *** action of tort for failing to use care to warn an agent of an unreasonable risk Plaintiffs urge us to abandon the "special involved in the employment, if the relationship" framework for determining whether to principal should realize that it exists and impose an affirmative duty to protect against third-party that the agent is likely not to become attacks and to find a duty in the case at bar by applying aware of it, thereby suffering harm." the above four-factor negligence test. Restatement (Second) of Agency § 471, at 405 (1958). Earlier in this opinion, we noted this court's long history of adherence to the rule that private persons owe no duty to act affirmatively to protect others from *** criminal attack by a third persons absent a "special relationship" between the parties. Applying this rationale, courts which have found a duty to warn in reliance on section 471 of the *** Restatement (Second) of Agency have treated the duty as Plaintiffs only remaining argument for abandoning an extension of an employer's general obligation to the "special relationship" doctrine is that the doctrine and provide a safe workplace for his employees. the no-duty rule, in general, are antiquated and out-of- *** step with today's morality. While it is true that the no- duty rule has suffered criticism from a number of legal [The Court concludes that the complaint does not scholars, criticism of the rule is not new. Legal pundits establish an a principal-agent relationship, because of the have assailed the rule, citing its lack of social conscience, terms of the partnership agreement]. for as long as it has existed. Even if the allegations in plaintiffs' complaint Plaintiffs cite Soldano v. O'Daniels, in support of supported a finding that Iseberg had been, in some their position that the current trend in the law is toward capacity, defendants' agent during the relevant time the abandonment of the no-duty rule and "special relationship" exceptions. … Soldano, though not

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overruled, has not been well received. Subsequent setting up a rule of universal application." California courts have criticized the Soldano opinion, W. Keeton, Prosser & Keeton on Torts § limiting it to its specific facts. 56, at 376 (5th ed. 1984). Contrary to plaintiffs' assertions, the no-affirmative- In Rhodes, we said, "the impracticality of imposing a duty rule, as a common law tort principle, has been legal duty to rescue between parties who stand in no retained in every jurisdiction. Some states have special relationship to each other would leave us hesitant legislatively created narrow exceptions to the no- to do so." That statement is no less true today. affirmative-duty rule, imposing criminal sanctions if a *** person who is present when certain violent crimes are taking place fails to notify police or, in some instances, In the case at bar, plaintiffs have not provided good fails to render assistance to the victim. However, none of cause or compelling reasons to judicially abandon the these statutes provide for a civil cause of action. Thus, "special relationship" doctrine for finding an exception to given the wide acceptance of the no duty rule and the the no-affirmative-duty rule. We will continue to adhere "special relationship" doctrine, it cannot be said that they to its principles. are "antiquated" or "outmoded." CONCLUSION

Moreover, abandonment of the no-duty rule would The no-affirmative-duty rule and the "special create a number of practical difficulties-defining the relationship" doctrine stand as the law of this state. Accordingly, an affirmative duty to warn or protect parameters of an affirmative obligation and enforcement, to name just two. As noted by Prosser and Keeton, against the criminal conduct of a third party may be imposed on one for the benefit of another only if there exists a special relationship between them. In the case at "the difficulties of setting any standards of unselfish service to fellow men, and of bar, no such relationship existed between the defendants making any workable rule to cover and Iseberg. Nor was it shown that a principal-agent relationship existed between the parties which gave rise possible situations where fifty people might fail to rescue one, has limited any to a duty to warn as provided in section 471 of the tendency to depart from the rule to cases Restatement (Second) of Agency. For these reasons, we affirm the judgment of the appellate court. where some special relation between the parties has afforded a justification for the creation of a duty, without any question of Appellate court judgment affirmed.

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Deborah D. Kircher et al., Appellants, v. City of Jamestown, Respondent; Deborah D. Kircher et al., Appellants, v. Bruce Carlson, Respondent

[NO NUMBER IN ORIGINAL]

Court of Appeals of New York

74 N.Y.2d 251; 543 N.E.2d 443; 544 N.Y.S.2d 995; 1989 N.Y. LEXIS 1003

May 31, 1989, Argued July 13, 1989, Decided

ALEXANDER, Judge in" and returned to the scene of the assault where they obtained plaintiff's name and address from the drug We have only recently reaffirmed the well-settled store pharmacist. They then drove by plaintiff's house rule that in order for liability to be imposed upon a two or three times "to see if the car was there", but municipality for the failure to provide police protection made no further effort to make any additional report to to a particular individual, there must be proof of a the police, believing that the report to Carlson would "special relationship" between that person and the suffice. As it happened, however, Carlson never municipality. This rule is based upon sound policy reported the incident and had taken no further action on considerations which justify its existence, explain its the matter. evolution and demonstrate its appropriate application to the facts of this case. Meanwhile, Blanco had driven plaintiff to the Town of Gerry, New York, where he repeatedly raped I and assaulted her, fracturing her larynx and inflicting The following salient facts as revealed by the numerous other injuries. After brutalizing her, Blanco record are undisputed. On April 20, 1984, as she was locked plaintiff in the trunk of her car from which she entering her car in a drug store parking lot, plaintiff, was rescued some 12 hours later. In her affidavit Deborah Kircher, was accosted by one Brian Blanco, opposing summary judgment, plaintiff states that she assaulted and pulled into the car by Blanco, who then observed Skinner and Allen in the parking lot and sped off. These events were witnessed by Karen Allen during their rescue attempt but that at some point she and Richard Skinner, who heard plaintiff's screams as realized "the automobile being operated by Mr. Skinner they were entering their car which was parked in front was no longer in pursuit of my vehicle". Additionally, of the Kircher vehicle. As that car sped off, Allen and she states that throughout her abduction her assailant Skinner gave chase. Skinner lost sight of plaintiff's car operated her automobile "on main thoroughfares in a block or so from the parking lot, but in trying to heavy traffic". relocate it came upon a Jamestown police officer, Plaintiff commenced separate actions against the Bruce Carlson, who was giving assistance to the driver City of Jamestown and Carlson, later consolidated by of a disabled municipal vehicle. Skinner, who was Supreme Court, charging that Carlson was negligent in acquainted with Carlson, told him what they had failing to render assistance at the time of the incident observed, giving him a description of Blanco and the and that the City was vicariously liable for Carlson's license plate number and description of plaintiff's negligent conduct. Defendants moved to dismiss the automobile. Skinner also indicated to Carlson that he complaints for failure to state a cause of action or, wasn't sure whether it was a "domestic scene or alternatively, for summary judgment, contending that girlfriend/boyfriend scene" but that there was plaintiff had not demonstrated the existence of a "something really wrong with it". Skinner and Allen left after Carlson advised them that he would "call it

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"special relationship" between herself and the on the municipality's affirmative undertaking". On the municipality. facts of the instant case, neither the requirement of direct contact nor of justifiable reliance has been Supreme Court denied defendants' motion. … The satisfied. Plaintiff, by virtue of her unfortunate Appellate Division reversed and granted defendants' circumstances, could not communicate with the police motion for summary judgment. … We granted leave to and thus obviously could not rely on their assurances of appeal and now affirm. assistance. Notwithstanding the sympathetic II circumstances of this case, however, these requirements cannot simply be overlooked in order to The decisions of this court requiring the existence permit this particular plaintiff to recover as the of a "special relationship" between the claimant and the dissenters seem to suggest. To the contrary, the municipality before the latter may be held liable to the reasons for requiring direct contact and reliance by the former for the negligent exercise of a governmental injured party are rooted in policy considerations that function such as providing police protection are legion compel the denial of recovery here. Our consistent refusal to impose liability in the absence of such a relationship rests primarily upon the The requirement of direct contact, which is closely commonly recognized principle that a municipality's related to the element of reliance, serves to rationally duty to provide police protection ordinarily is one limit the class of persons to whom the municipality's owed to the public-at-large and not to a specific person duty of protection runs and exists "as a natural or class. Moreover, "a municipality's provision of corollary of the need to show a 'special relationship' police protection to its citizenry has long been regarded between the claimant and the municipality.” as a resource-allocating function that is better left to the Generally, this contact must be between the injured discretion of the policy makers". As was recognized in party and the municipality. Though we have shown Riss v City of New York, "[the] amount of protection some flexibility in applying this requirement -- for that may be provided is limited by the resources of the example permitting contact between the mother of an community and by a considered legislative-executive injured infant and the police to substitute for contact decision as to how those resources may be deployed". directly between the police and the infant -- we conclude this requirement is not satisfied here where Nevertheless, where a municipality voluntarily Skinner and Allen, although admittedly acting solely undertakes to act on behalf of a particular citizen who out of a sense of compassion, were complete strangers detrimentally relies on an illusory promise of to plaintiff and plaintiff, in turn, was completely protection offered by the municipality, we have unaware of the assurances given her would-be rescuers. permitted liability because in such cases the municipality has by its conduct determined how its *** resources are to be allocated in respect to that In addressing the reliance element of the four-part circumstance and has thereby created a "special test, we have very recently stressed that "the injured relationship" with the individual seeking protection. party's reliance is as critical in establishing the Correspondingly, it has limited the class of persons to existence of a 'special relationship' as is the whom it owes a duty of protection. In such municipality's voluntary affirmative undertaking of a circumstances, the municipality's liability is not that of duty to act" because it is that element that "provides the an insurer for failing to protect from harm a member of essential causative link between the 'special duty' the general public, but rather liability is based upon the assumed by the municipality and the alleged injury". It municipality's own affirmative conduct which, having is readily apparent that this requirement is not satisfied induced the citizen's reasonable reliance, must be on these facts since the helpless and isolated plaintiff considered to have progressed to a point after which could not even communicate with the police, much less the failure to provide the promised protection will rely on any promise of protection the police might have result not "'merely in withholding a benefit, but offered. Yet, although plaintiff's failure to rely can be positively or actively in working an injury'". directly attributed to her dire circumstances, this does As articulated by this court in, "[the] elements of not, as the dissenters urge, provide a justification for this 'special relationship' are: (1) an assumption by the ignoring the reliance requirement altogether. While we municipality, through promises or actions, of an would agree that no rule should be so unyielding that it affirmative duty to act on behalf of the party who was is mechanically applied without regard for its injured; (2) knowledge on the part of the municipality's underlying purpose, a rule is simply not a rule if it can agents that inaction could lead to harm; (3) some form be summarily dismissed in order to achieve a desired of direct contact between the municipality's agents and result not in keeping with that purpose. the injured party; and (4) that party's justifiable reliance 56

*** legislative determination that that should be the scope of public responsibility". Requiring that there be such reliance is consistent with the purpose of the special duty rule to place *** controllable limits on the scope of the municipality's Thus, in the absence of facts showing that the City duty of protection and to prevent the exception from of Jamestown, through its police force, affirmatively swallowing the general rule of governmental immunity. undertook to protect plaintiff and plaintiff Absent this requirement, a municipality would be detrimentally relied on the municipality's assurances of exposed to liability every time one of its citizens was protection, there is nothing to distinguish this victimized by crime and the municipality failed to take unfortunate plaintiff from the numerous other crime appropriate action although notified of the incident -- victims for whom, tragically, police assistance has so vast an expansion of the duty of protection should arrived too late. not emanate from the judicial branch. "Before such extension of responsibilities should be dictated by the Accordingly, the order of the Appellate Division indirect imposition of tort liabilities, there should be a should be affirmed, with costs.

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TANJA H., Plaintiff and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents

Court of Appeal of California, First Appellate District, Division Two

228 Cal. App. 3d 434; 278 Cal. Rptr. 918; 1991 Cal. App. LEXIS 228; 91 Cal. Daily Op. Service 1809; 91 Daily Journal DAR 2978

March 12, 1991

PROCEDURAL POSTURE: Appellant student appellant down the interior stairs of the building, to a sought review from a judgment of the Superior Court dark landing where a light bulb had been shattered; of Alameda County (California), dismissing her claims Ronald forced appellant to orally copulate him and against respondent university and its officials in a tort have intercourse with him. action based on vicarious liability and premises Ronald then took appellant to a room occupied by liability for an assault by a third party. John and Christian, where appellant's friend Donald

soon joined them. Appellant said she was upset and OPINION BY: PETERSON wanted to go back to her own room. Donald suggested

they go to his room instead, and appellant agreed. Appellant Tanja H. contends respondents, a At Donald's room, appellant was compelled to university and its officials, are liable because orally copulate Ronald, John, and Christian; appellant's appellant's fellow students raped her in a university friend Donald encouraged this. When appellant dormitory after a party. Despite the outrageous and became more forceful in asserting her lack of consent, reprehensible conduct of the perpetrators, we must Donald told the others to leave but told appellant that if affirm the trial court's action in dismissing appellant's she didn't stop yelling he would beat her. Donald then claims against respondents, the university and its forced appellant to have intercourse with him. officials. A university is not liable as an insurer for the Donald's friends reentered and watched, laughing. crimes of its students. Appellant was then permitted to leave.

I. Facts and Procedural History The four perpetrators were all members of the university football team and were much stronger, For purposes of this appeal, we assume the truth of bigger, and heavier than appellant. Appellant was the facts as appellant has pleaded them; they do not intimidated by them and feared they would harm her portray activities at an elite institution of higher further if she did not comply with their demands. learning in a favorable light. In September 1987, exactly one year after these Appellant was a young person in her first year of events, appellant filed an action asserting numerous college in September of 1986; she had been assigned to tort claims against the four perpetrators and against live in a dormitory in the Clark Kerr Campus of the respondents, the Regents of the University of University of California at Berkeley. Despite California and various university officials. university regulations forbidding the use of alcohol by minors in university dormitories, and the requirement *** that students residing in dormitories sign an agreement to abide by this policy, there were parties in appellant's In May 1989, respondents filed a demurrer. After building where appellant and other students did opposition and hearing, the trial court granted the demurrer as to respondents without leave to amend and substantial drinking. University officials or residence hall staff stopped some parties where persons under 21 entered a judgment of dismissal, from which this had access to liquor, but not all of them. After one appeal proceeds. such party where appellant and other partygoers drank alcohol unhindered by university employees, she II. Discussion walked to the room of an acquaintance, Donald, at Relevant authority indicates universities are not around midnight to borrow a cassette tape. She generally liable for the sometimes disastrous encountered Donald's twin brother, Ronald, who made consequences which result from combining young sexual overtures. Appellant decided she wanted to go students, alcohol, and dangerous or violent impulses. back to her own room. Ronald, however, forced

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*** generally responsible for their own actions and welfare? We note in this context it has even been held College students are generally young adults who by one court that university officials cannot interfere do not always have a mature understanding of their with the private lives of students in order to prevent own limitations or the dangers posed by alcohol and illegal substance abuse. In these circumstances, the violence. However, the courts have not been willing to courts can establish the criminal and civil liability of require college administrators to reinstitute curfews, the perpetrators of crimes; but the courts with good bed checks, dormitory searches, hall monitors, reason have been unwilling to shift moral and legal chaperons, and the other concomitant measures which responsibility away from student perpetrators and onto would be necessary in order to suppress the use of the heads of college administrators. intoxicants and protect students from each other. "Given these realities of modern college life, the *** university does not undertake a duty of care to Further, on appeal, appellant attacks the university safeguard its students from the risks of harm flowing for allowing males, including football players, and from the use of alcoholic beverages . . . . Moreover, females to have their rooms on the same floor of the imposition of such a duty would be unwarranted and dormitory; she contends that dorms which have coed impracticable . . . . We agree with the assessment of floors are more likely to be the sites of sexual assaults [the university] that it could 'not have prevented this by students. This propinquity argument fails, however, [violent] incident from taking place except possibly by because (1) no court has held that a university has a posting guards in each dorm room on a 24-hour, 365- legal duty to segregate students in dormitories, day per year basis.' All these factors militate against the according to their sex or any other personal imposition of a legal duty upon [the university] under characteristic; and (2) in this specific case, segregation these circumstances." by floor would plainly not have helped. Appellant's *** assailants obviously knew how to use the stairs; appellant could just as easily have gone to her friend's We agree with appellant that it may be -- in some room where the assaults began if the room had been on sense not relevant here -- foreseeable that a group of another floor; and there was no meaningful causal football players could rape a fellow student after a connection between the assaults and the layout of the party where alcohol was served. The problem of gang premises. rape, rape by acquaintances, and alcohol abuse on campuses is heinous. It is also foreseeable that there *** will always be criminals among us. The relevant issue We conclude the trial court correctly sustained the here, however, is the one posed by the courts in demurrer of respondents, since they were not bound by Baldwin, Crow, and Bradshaw: Should a duty be a legal duty which would make them responsible here imposed which would make colleges liable for for the crimes of students. damages caused by third parties, unless colleges impose onerous conditions on the freedom and privacy *** of resident students -- which restrictions are incompatible with a recognition that students are now

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Annie Lee Turner et al. v. Big Lake Oil Company et al.

No. 6626

Supreme Court of Texas

128 Tex. 155; 96 S.W.2d 221; 1936 Tex. LEXIS 398

July 15, 1936, Decided

PRIOR HISTORY: Error to the Court of Civil water to overflow from their salt ponds and lakes down Appeals for the Eighth District, in an appeal from Garrison draw and on to the land of the plaintiffs in Reagan County. error. However, the jury acquitted the defendants in error of negligence in the premises. The questions and CURETON, Justice answers are shown in the opinion of the Court of Civil Appeals, and will not be here repeated. The primary question for determination here is Various questions are raised in this Court, but we whether or not the defendants in error, without are well satisfied with the opinion of the Court of Civil negligence on their part, may be held liable in damages Appeals, and will take occasion to discuss only two for the destruction or injury to property occasioned by issues. the escape of salt water from ponds constructed and The plaintiffs in error in their application say that used by them in the operation of their oil wells. The the Court of Civil Appeals in its opinion has held that facts are stated in the opinion of the Court of Civil in order for plaintiffs in error to recover because the Appeals and will be but briefly noted in this opinion. defendants in error permitted salt water to overflow The defendants in error in the operation of certain their land, kill the vegetation, and pollute the water of oil wells in Reagan County constructed large artificial their live stock, "they must allege and prove some earthern ponds or pools into which they ran the specific act of neglect or must allege and prove that the polluted waters from the wells. On the occasion water polluted was a water course." In this conclusion complained of, water escaped from one or more of we think the Court of Civil Appeals stated the correct these ponds, and, passing over the grass lands of the rule. plaintiffs in error, injured the turf, and after entering The Court of Civil Appeals quite correctly Garrison draw flowed down the same into Centralia determined that the rules of law applicable to the draw. In Garrison draw there were natural water holes, pollution of streams and water courses or public waters which supplied water for the livestock of plaintiffs in were not applicable here, for reasons which that court error. The pond, or ponds, of water from which the salt stated. So the immediate question presented is whether water escaped were, we judge from the map, some six or not defendants in error are to be held liable as miles from the stock-water holes to which we refer. insurers, or whether the cause of action against them The plaintiffs in error brought suit, basing their action must be predicated upon negligence. We believe the on alleged neglect on the part of the defendants in error question is one of first impression in this Court, and so in permitting the levees and dams, etc., of their we shall endeavor to discuss it in a manner in keeping artificial ponds to break and overflow the land of with its importance. plaintiffs in error, and thereby pollute the waters to which we have above referred and injure the turf in the Upon both reason and authority we believe that the pasture of plaintiffs in error. The question was conclusion of the Court of Civil Appeals that submitted to a jury on special issues, and the jury negligence is a prerequisite to recovery in a case of this answered that the defendants in error did permit salt character is a correct one. There is some difference of

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opinion on the subject in American jurisprudence Texas the situation is different. Texas has many great brought about by differing views as to the correctness oil fields, tens of thousands of wells in almost every or applicability of the decision of the English courts in part of the State. Producing oil is one of our major Rylands v. Fletcher, L. R. 3 H. L. 330. industries. One of the by-products of oil production is salt water, which must be disposed of without injury to *** property or the pollution of streams. The construction While the rule has been followed to some extent in of basins or pounds to hold this salt water is a this country, in general the American courts base necessary part of the oil business. In Texas much of liability, where dams have broken, on negligence, our land was granted without mineral reservation to the either in the original construction of the reservoir or in State, and where minerals were reserved, provision has failing properly to provide against all such contingent usually been made for leasing and operating. It damages as might reasonably be anticipated. follows, therefore, that as to these grants and leases the right to mine in the usual and appropriate way, as, for This Court long since repudiated the general rule example, by the construction and maintenance of salt announced in Rylands v. Fletcher. water pools such as here involved, incident to the *** production of oil, were contemplated by the State and all its grantees and mineral lessees, that being a use of In Texas we have conditions very different from the surface incident and necessary to the right to those which obtain in England. A large portion of produce oil. Texas is an arid or semi-arid region. West of the 98th meridian of longitude, where the rainfall is From the foregoing it is apparent that we decline approximately 30 inches, the rainfall decreases until to follow and apply in this case the rule of absolute finally, in the extreme western part of the State, it is liability laid down in Rylands v. Fletcher, because: … only about 10 inches. This land of decreasing rainfall (c) the conditions which obtain here are so different is the great ranch or live stock region of the State, from those of England that the rule should not be water for which is stored in thousands of ponds, tanks, applied here; (d) and because the rule of negligence, and lakes on the surface of the ground. The country is instead of absolute liability, while not obtaining almost without streams; and without the storage of universally in the United States, is of such general water from rainfall in basins constructed for the application as to constitute, as Thompson says, the purpose, or to hold waters pumped from the earth, the "American Rule," in effect the common law rule as great live stock industry of West Texas must perish. applied in America, which is the common law which No such condition obtains in England. With us the we follow rather than that declared by the English storage of water is a natural or necessary and common courts. use of the land, necessarily within the contemplation of *** the State and its grantees when grants were made, and obviously the rule announced in Rylands v. Fletcher, The judgments of the Court of Civil Appeals and predicated upon different conditions, can have no of the District Court are affirmed. application here. Opinion delivered July 15, 1936. Again, in England there are no oil wells, no Rehearing overruled October 21, 1936. necessity for using surface storage facilities for impounding and evaporating salt waters therefrom. In

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HONDA OF AMERICA MANUFACTURING, INC. AND HONDA R&D CO., LTD., Appellants v. BRIAN NORMAN, INDIVIDUALLY AND AS SOLE ADMINISTRATOR OF THE ESTATE OF KAREN LESLIE VIVIENNE NORMAN, DECEASED, AND MARY NORMAN, INDIVIDUALLY, Appellees

NO. 01-00-01263-CV

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

104 S.W.3d 600; 2003 Tex. App. LEXIS 1263; CCH Prod. Liab. Rep. P16,518

February 6, 2003, Opinion Issued

PROCEDURAL POSTURE: In their products calm and did not appear scared. As Woods was liability suit, plaintiff parents sued defendants, the car's swimming to the ramp, she heard Karen say, "Help me. manufacturer and corporation, alleging that a design I can't get my seatbelt undone." Woods testified that, defect in the car's seatbelt was the producing cause of after she reached the ramp, she heard Karen yell to her the drowning of the parents' daughter. The 56th District again that she could not get out of her setbelt. 2 Court, Galveston County, Texas, awarded the parents $ 38 million in actual damages and denied the corporation's motion for remittitur. The corporation A dive team located Karen's car at 8:53 a.m. All appealed. of the windows were rolled up, including the one

Woods testified she had escaped through, and all the OPINION BY: Evelyn V. Keyes doors were closed. Karen's body was found in the back

seat. An autopsy revealed Karen's blood-alcohol level This is a products liability suit. A jury awarded was .17. Brian Norman, individually and as sole administrator of the estate of Karen Leslie Vivienne Norman, The Car deceased, and Mary Norman, individually, (the Normans) $65 million in compensatory damages in a At the time of the accident, Karen's four-door 1991 suit the Normans brought against Honda of America Honda Civic was equipped with a two-point passive Manufacturing, Inc. and Honda R&D Co., Ltd., after restraint system--an automatic seatbelt that was the Normans' daughter, Karen Norman, drowned in her mechanically drawn up over the shoulder when the Honda Civic automobile. The jury found that a design door was closed--supplemented with a manual lap belt. defect in the car's seatbelt was the producing cause of The automatic seatbelt fastened itself with no action on Karen's death. behalf of the occupant. Robert Hellmuth, a former National Highway Traffic Safety Administration Honda argues … (2) the evidence was legally and employee, testified that, in 1990, all cars were required factually insufficient to prove a safer alternative to have either a passive belt system or an air bag. design; …. We reverse and render a take-nothing Hellmuth also testified that a two-point passive judgment. restraint system was the most expensive seatbelt

system in use at the time Karen's car was Facts and Procedural Background manufactured. The Accident The shoulder belt on both front seats was attached At approximately 2:00 a.m. on December 2, 1992, to a "mouse" that ran along a rail above the door. When Karen attempted to back her car up to turn around, and the door was closed, the mouse moved from its starting she accidentally backed down a boat ramp into the position, near the front of the car, along the length of water in Galveston Bay. Her passenger, Josel Woods, the door and then part-way down the pillar between the was not wearing a seatbelt and was able to get out of front and back doors, pulling the belt over the shoulder the car by crawling out the passenger side window. of the driver. When the door was opened or the ignition After escaping, Woods reached back into the sinking was turned off, the mouse moved forward, allowing the car to get her purse. Woods testified that Karen was occupant to get out of the car. The shoulder belt could

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be manually disengaged by pressing an emergency release button located at the juncture of the belt and the Evidence of Safer Alternative Design mouse. Like most seatbelts, the shoulder belt was In its second point of error, Honda argues that the naturally taut across the body, but it was easy to spool judgment should be reversed because there was out more belt to allow the occupant to lean forward insufficient evidence of a safer alternative design to the and/or sideways. If the car experienced rapid seatbelt restraint system used in the Honda. deceleration (such as that encountered here when the

car hit the water) or substantial tilting of the vehicle, however, the belt's emergency locking retractor would *** engage, preventing spooling of the belt and holding the occupant in her seat. Safer Alternative Design Honda argues that the Normans failed to meet their The Lawsuit threshold statutory burden because they failed to prove The Normans sued Honda, alleging that the there was a safer alternative design to the Honda's seatbelt system in Karen's car was defectively designed seatbelt restraint system. To prove a design defect, the Normans had to show, among other things, that (1) and prevented her from getting out of the sinking car. The case was retried after the original trial resulted in a there was a safer alternative; (2) the safer alternative hung jury. would have prevented or significantly reduced the risk of injury, without substantially impairing the product's The Normans contend that the emergency locking utility; and (3) the safer alternative was both retractor locked as Karen backed down the ramp and technologically and economically feasible when the that she pulled on the door latch, causing the mouse to product left the control of the manufacturer. The move and then stall and the seatbelt to pin her to her Normans had the burden of demonstrating by a seat. Because she was pinned to the seat, Karen was preponderance of the evidence that a safer alternative unable to reach the emergency release button located design existed at the relevant time. In addition, a over her left shoulder. The Normans argue that the plaintiff complaining of a design defect is required to evidence showed the seatbelt system was defectively show that "the safety benefits from its proposed design designed because (1) the mouse was able to move even are foreseeably greater than the resulting costs, when the retractor was locked, allowing the seatbelt to including any diminished usefulness or diminished pin an occupant in the seat; (2) the seatbelt, when fully safety" -- that is, that the alternative design not only extended, could not be released easily and rapidly by would have reduced the risk of harm in the instant case, pressing the emergency release button; and (3) the but also would not, "under other circumstances, impose emergency release button was improperly located, in an equal or greater risk of harm." Thus, the Normans that Honda failed to provide an easy and rapid way to had to prove that an economically and technologically get out of the seatbelt under conditions it knew would feasible alternative seat belt and release system was occur. available and would have prevented or significantly reduced the risk of Karen's death without substantially The jury found that Karen was 25% contributorily reducing the utility to the "intended users" of the negligent, awarded Karen's parents $60 million in product--namely, all automobile drivers. If no evidence actual damages, and awarded $5 million to Karen's is offered that a safer design existed, a product is not estate. The trial court reduced the award to $20 million unreasonably dangerous as a matter of law. for Karen's mother and $18 million for Karen's father, and it denied Honda's motion for remittitur as to the *** estate. A "design defect" is a condition of the product that renders it unreasonably dangerous as designed, taking Design Defect into consideration the utility of the product and the risk The Civil Practice and Remedies Code prescribes involved in its use. For a design defect to exist[,] there two elements--a safer alternative design and producing must have been a safer alternative design. cause--that must be proved, but are not alone sufficient, "Safer alternative design" means a product to establish liability for a defectively designed product. A claimant not only must meet the proof requirements design[,] other than the one actually used[,] that in of the statute but must show, under the common law, reasonable probability - that the product was defectively designed so as to be 1. would have prevented or significantly reduced unreasonably dangerous, taking into consideration the the risk of the occurrence in question without utility of the product and the risks involved in its use. substantially impairing the product's utility and

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2. was economically and technologically feasible designs were available at the time Honda manufactured at the time the product left the control of Honda acting Karen's car. Horton did not identify any such available by and though [sic] its agents and/or employees by the design, nor did he discuss the economic or application of existing or reasonably achievable technological feasibility of such a hypothetical scientific knowledge. alternative design. *** Nor did Horton give any testimony to support a finding that, considering all relevant risks, his The Normans elicited testimony from several alternative design would be safer than the one experts, but only two of these experts commented on employed by Honda in that it would not "under other alternative designs for the seatbelt. Although they did circumstances impose an equal or greater risk of harm." not agree about the feasibility of the various alternative Horton further testified that he was not critical of designs, two of the Normans' experts, Thomas Horton, Honda for the location of the emergency release button. a mechanical engineer, and Kenneth Ronald Laughery, In fact, he testified that he was "not going to express a human factors expert, testified that there were three [an opinion] in this case" with respect to the location or potential alternative seatbelt system designs: (1) the functioning of Honda's emergency release button. mouse could be on a timer; (2) the release button could be located on the hip level, as in Toyota cars; and (3) We conclude, based on the record, that the there could be two release buttons - one near the hip Normans failed to prove that a timer- controlled mouse and one over the shoulder. was a safer alternative design to the seatbelt system in Karen's Honda. (1) Mouse timer (2) Toyota alternative--right hip release only Horton was the only witness who testified about a "mouse timer." Horton testified that his main criticism The Normans contend that, because of her small of the Honda seatbelt system was the tightening of the frame, Karen positioned the driver's seat close to the belt. In the Honda system, the belt could be disengaged steering wheel, which made it difficult, if not by manually pressing an emergency release button impossible, for her to activate the release button found located at the juncture of the belt and the mouse on the over her left shoulder on the car frame. rail above the door. Horton stated that he would modify The Normans argue that Kenneth Laughery the system by using a "timer mechanism." He testified that placing a release button over the left explained that if the mouse, as it moved from front to shoulder of the driver was not sufficient. Laughery rear, did not reach its position within a few seconds, it testified that, before 1991, at the same time the Honda should be assumed that the mouse was stuck. Instead of system in Karen's car was designed, Toyota was using the mouse stopping in its place and losing power, as a release mechanism in the form of a lever control at allegedly occurred here, Horton suggested the mouse the lower right side of the driver that released the could have been programmed to reverse direction and emergency locking retractor. The Normans argue that return to its forward position, releasing tension on the Laughery concluded that Honda could have adopted belt. A timer could have been programmed so that, if this as an alternative design, because it was the mouse did not travel its entire cycle within a certain technologically and economically feasible. In fact, period of time, it would reverse and return to its Laughery testified as follows: original position. Horton explained that it would have been "simple within the electronics" to have created *** such a system. While the use of an alternative design by another To prove that the mouse timer constituted a safer manufacturer may establish technological feasibility, alternative design to the overhead manual seatbelt we have held that, as a matter of law, it does not release in the Honda, the Normans had to show that (1) establish economic feasibility. The existence of a a mouse timer existed or that the scientific knowledge technological advancement goes to technological to produce it was reasonably achievable, and (2) a feasibility, while the cost of applying that technology mouse timer was economically and technologically to a particular design goes to economic feasibility. feasible at the time Karen's car left Honda's control. On Evidence of use in the marketplace alone is not cross-examination, however, Horton admitted that he sufficient to establish economic feasibility under Texas had never drawn up schematics for a mouse timer law. To establish economic feasibility, the plaintiff system. The Normans argue that Horton testified that must introduce proof of the "cost of incorporating this this design was feasible. He did not. Instead, he simply technology." answered "yes" to the general question of whether, in his opinion, economically and technologically feasible 64

The Normans argue that several of the witnesses could reasonably find that the Toyota hip-release testified that the Honda seatbelt was the most design would have prevented or significantly reduced expensive seatbelt ever produced; therefore, by the risk of Karen's death without imposing an equal or implication, the Toyota design must have been greater risk of harm under all relevant circumstances. economically feasible because it was less expensive All of the responsive testimony from the Normans' own than the existing Honda design. However, even if the expert witness--as from Honda's--was to the contrary. Normans presented more than a scintilla of evidence The Normans, therefore, failed to prove that the right- from which the jury could reasonably have inferred hip release system was a safer alternative than the that the Toyota passive-restraint system was shoulder-release system in Karen's Honda. technologically and economically feasible, they did not (3) Two release buttons establish that the right hip release would have prevented or significantly reduced the risk of Karen's Finally, Laughery testified that having two release death without "under other circumstances, imposing an mechanisms, one over the shoulder and one near the equal or greater risk of harm." The Normans refer us to hip, was another possibility. Laughery admitted, two of Honda's experts, Terry Thomas, a mechanical however, that he did not know whether his proposed engineer and Honda's automobile testing expert, and design--which he conceded had never been used in any Masaaki Tanahashi, Honda's chief engineer and vehicle--was technologically feasible. When Laughery seatbelt expert, who both testified that the Toyota was asked how it would work, he replied, "That's an system was "an alternative design" to the Honda engineering question. I don't know the answer to that. I system. Both then agreed that, although the Toyota don't have engineering design opinions." Horton, the system, which has the lever release for the retractor at Norman's engineering expert, explained that having the console, is not a bad or defective system, Honda two release mechanisms was not technologically decided to use a different system. Tanahashi testified feasible. that Honda chose a release mechanism located over the We conclude, on the basis of the record, that the driver's left shoulder, instead of one located by the driver's right hip, to make it easier for third parties Normans failed to prove that a two- release-button outside the vehicle to free trapped drivers--who might design was technologically and economically feasible and thus a safer alternative design. be unconscious or immobile--in an emergency. Neither Thomas nor Tanahashi testified that the Toyota right No Evidence hip release design would have saved more lives than the Honda system. The Normans failed to show that the mouse timer, the hip release design used by Toyota, or the two- Horton, the Normans' expert and a mechanical release-button system [**21] existed, were engineer, testified that he had no problem with the technologically and economically feasible, and were location of the Honda release mechanism, and he safer under relevant circumstances than the seat belt expressly disavowed any intention to testify that one release system present in the Honda. There was, design was better or worse than the other. And therefore, no evidence that a reasonably safer Laughery, the Norman's human factors expert, alternative design existed for Honda's passive restraint specifically stated he "didn't give [the Toyota design] system when [*609] the car was manufactured. as the alternative design." In fact, Laughery preferred Having failed to present such evidence, the Normans Honda's release button's association with the belt and failed to carry their threshold statutory burden of testified that it was appropriate that Honda used a proving a safer alternative design. We hold that the button instead of a lever. He noted that Honda's button evidence was legally insufficient to support the jury's was easily accessible to emergency personnel, that finding that there was a design defect in Karen's there was contrasting red color on Honda's release Honda. button, and that when one entered a Honda vehicle, the seatbelt release mechanism was in one's field of vision. We sustain Honda's second point of error. In addition, Laughery was impeached with his Having determined that the evidence was legally testimony from an earlier, unrelated proceeding insufficient to support the jury's design defect finding, involving a man who had drowned when his seatbelt which is a threshold condition of a finding of liability, did not release. The seatbelt system was one of the we need not address Honda's remaining issues on Toyota design and Laughery had offered his opinion in appeal. that case that the Toyota system design was defective. We reverse and render a take-nothing judgment. We conclude, based on the record, that the Normans presented no evidence from which the jury

65

BOWLING, ADMX., APPELLANT, v. HEIL COMPANY, APPELLEE

No. 86-823

Supreme Court of Ohio

31 Ohio St. 3d 277; 511 N.E.2d 373; 1987 Ohio LEXIS 332; 31 Ohio B. Rep. 559; CCH Prod. Liab. Rep. P11,509

July 15, 1987, Decided

Brashear was able to move out from under the dump Appellant, Emma K. Bowling, brought this action bed just before Bowling reached for the control lever, against appellee, the Heil Company ("Heil"), among thereby avoiding injury. others, in her representative capacity as the administratrix of the estate of her husband, David B. Appellant's complaint named Heil, [and other Bowling, seeking to recover damages for his alleged paties] defendants. [Other parties settled and were] wrongful death. Bowling died when he was crushed dismissed. between the chassis of a truck and the dump bed Appellant proceeded against Heil on theories of mounted onto it. negligence and strict liability in tort …. The jury Heil is engaged in the business of manufacturing returned a verdict in favor of appellant against Heil … and selling dump truck beds and hydraulic dump hoist and assessed damages at $ 1.75 million. Upon written systems designed to be installed on the chassis of interrogatories, the jury determined that Heil was both trucks produced by various truck manufacturers. Heil negligent and strictly liable, that Bowling was does not install its dump beds and hoist systems; rather, contributorily negligent but that he had not assumed a it sells them to authorized distributors who install them known risk, and that the following percentages of fault onto the chassis of trucks selected by their customers. were attributable … to Heil, forty percent; to Bowling, thirty percent; and to [other settling party] thirty In May 1979, Ralph Rogers purchased the dump percent. truck at issue from Jake Sweeney Chevrolet, Inc. ("Sweeney"), for use in his backhoe business. Based on the jury's findings, the trial court entered judgment against Heil … for $ 1.75 million plus *** funeral costs, less those amounts previously received On April 26, 1980, one of Rogers' employees by appellant by way of settlement with the other made the truck available to Timothy Brashear for his defendants. On appeal by Heil, the court of appeals personal use. Brashear's brother, David, learned that affirmed the jury's verdict, but remanded the case with Timothy had use of the truck for the day and called his directions to enter judgment against Heil in the amount friend, David Bowling, knowing that Bowling needed of $ 700,000 only, representing forty percent of $ 1.75 gravel for his driveway. All three men went to a gravel million. bed and purchased five tons of gravel, which they This cause is now before this court upon the loaded into the truck. When they arrived at the allowance of a motion to certify the record. Bowling residence, Timothy Brashear backed the dump truck into the driveway and then slowly drove forward OPINION BY: BROWN with the bed raised, spreading the gravel.

When the truck reached the end of the driveway, Two related issues are presented in this case: first, Timothy Brashear pushed the in-cab control lever whether principles of comparative negligence or forward to lower the dump bed, but due to the failure comparative fault are applicable to a products liability of Robco's weld, the bed would not come down. action based upon strict liability in tort; and second, Bowling and David Brashear leaned over the chassis, whether the enactment of Ohio's Contribution Among underneath the raised bed, to investigate the problem. Joint Tortfeasors Act, R.C. 2307.31 and 2307.32, Bowling reached in with his hand and grabbed the abolished the doctrine of joint and several liability. For control lever on the pump valve assembly, and when he the reasons that follow, we answer both questions in manually manipulated it the dump bed rapidly the negative. descended upon him, killing him instantly. David 66

I someone, and the proper persons to afford it are those who market the products." The court of appeals below held that Ohio's comparative negligence statute, does not apply to a Dean Prosser has expressed this idea in slightly products liability action grounded upon strict liability different terms: in tort because that statute is limited to negligence "The costs of damaging events due to defectively actions. We agree. dangerous products can best be borne by the

enterprisers who make and sell these products. Those *** who are merchants and especially those engaged in the manufacturing enterprise have the capacity to Nevertheless, the court below held that distribute the losses of the few among the many who contributory negligence, when it amounts to purchase the products. It is not a 'deep pocket' theory "affirmative action" as opposed to a passive failure to but rather a 'risk-bearing economic' theory. The discover a defect in a product or to guard against the assumption is that the manufacturer can shift the costs possibility of such defect, constitutes a defense to a of accidents to purchasers for use by charging higher products liability action. The court of appeals further prices for the costs of products." held that principles of "pure" comparative negligence1 apply so as to result in an apportionment between the Under negligence principles, on the other hand, respective degrees of fault of a strictly liable defendant liability is determined according to fault. In and a contributorily negligent plaintiff. We believe the negligence, we seek to make the person or persons court of appeals failed to recognize fundamental responsible for causing a loss pay for it. In other differences between the policies and goals underlying words, we "blame" the loss on the negligent party or the case law in negligence actions and the policies and parties because it was they who could have avoided the goals underlying strict liability in tort actions. loss by conforming to due care.4 Conversely, in strict liability in tort we hold the manufacturer or seller of a 1 [HN2]"Pure" comparative negligence allows defective product responsible, not because it is a plaintiff who is ninety-nine percent negligent "blameworthy," but because it is more able than the to recover the remaining one percent of his consumers to spread that loss among those who use and damages, while the "modified" comparative thereby benefit from the product. negligence … bars recovery if the plaintiff's negligence exceeds the negligence of all other 4 We hasten to add that legal fault under persons from whom recovery is sought. negligence principles is not the same as moral fault. *** We recognize that strict liability cannot be C absolutely divorced from traditional concepts of fault. The definitive statement of the policy and goals In a sense we "blame" the loss on the manufacturer or underlying the application application of strict liability seller because it introduced the defective product into in tort to cases involving defective products is provided the marketplace. However, it must be reemphasized in Comment c to Section 402A, at 349-350: that strict liability is at odds with traditional notions of due care. … "The rule … applies although the seller "On whatever theory, the justification for the strict has exercised all possible care in the preparation and liability has been said to be that the seller, by sale of his product, and the user or consumer has not marketing his product for use and consumption, has bought the product from or entered into any contractual undertaken and assumed a special responsibility toward relation with the seller." any member of the consuming public who may be injured by it; that the public has the right to and does In sum, the public policy and goals underlying expect, in the case of products which it needs and for strict liability differ in important respects from those which it is forced to rely upon the seller, that reputable underlying the law of negligence. sellers will stand behind their goods; that public policy *** demands that the burden of accidental injuries caused by products intended for consumption be placed upon Accordingly, the judgment of the court of appeals those who market them, and be treated as a cost of is reversed and the judgment of the trial court is production against which liability insurance can be reinstated. obtained; and that the consumer of such products is Judgment accordingly. entitled to the maximum of protection at the hands of

67

ANDRE REMY 1 vs. CHRISTINE MacDONALD.

1 By her father and next friend, Reginald Remy.

SJC-09049

SUPREME JUDICIAL COURT OF MASSACHUSETTS

440 Mass. 675; 801 N.E.2d 260; 2004 Mass. LEXIS 11

November 4, 2003, Argued January 12, 2004, Decided

injuries. The plaintiff contends that a jury could find her PROCEDURAL POSTURE: Plaintiff child sought mother liable in negligence for the injuries she has review of the judgment of the Superior Court incurred, and, therefore, the judge improperly allowed Department, Worcester (Massachusetts), granting summary judgment. summary judgment in favor of defendant mother in the In order to succeed on a claim of negligence, a child's action seeking to recover damages for the plaintiff first must establish that the defendant owed a mother's alleged negligence in a car accident that legal duty of care. We must decide whether a pregnant occurred while the child was in utero. woman owes a legal duty of care to her unborn child to refrain from negligent conduct that may result in physical harm to that child. If no such duty exists, a GREANEY, J. This case presents the issue whether claim of negligence cannot be brought. a child, born alive, can maintain a cause of action in tort against her mother for personal injuries incurred before Whether a duty exists is a question of common law, birth because of the mother's negligence. The plaintiff to be determined by "reference to existing social values seeks to recover damages based on the alleged and customs and appropriate social policy." As a general negligence of her mother, the defendant Christine principle of tort law, every actor has a duty to exercise MacDonald, in connection with a two-car automobile reasonable care to avoid physical harm to others. There accident that occurred when the plaintiff was in utero. A are a limited number of situations, however, in which the judge in the Superior Court concluded, as matter of law, other legal requirements of negligence may be satisfied, that there could be no liability on the part of the but the imposition of a precautionary duty is deemed to defendant and allowed her motion for summary be either inadvisable or unworkable. This is such a case. judgment. The plaintiff appealed, and we transferred the *** case to this court on our own motion. We now affirm the judgment. We begin by taking judicial notice of the fact that, during the period of gestation, almost all aspects of a woman's life may impact, for better or for worse, on her At approximately 12:45 P.M. on January 7, 1999, developing fetus. A fetus can be injured, not only by Christine MacDonald was operating a motor vehicle at physical force, but by the mother's exposure, unwitting the intersection of Institute Road and Wachusett Street in or intentional, to chemicals and other substances, both Worcester, when her vehicle was struck by a motor dangerous and nondangerous, at home or in the vehicle owned by Dennis Ellis and operated by Anna workplace, or the mother's voluntary ingestion of drugs, Ellis. MacDonald was thirty-two weeks pregnant with alcohol, or tobacco. A pregnant woman may place her the plaintiff at that time, and the plaintiff was born, by fetus in danger by engaging in activities involving a risk emergency caesarian section, four days later. The of physical harm, or by engaging in activities, such as plaintiff was hospitalized for twenty-three days and most sports, that are generally not considered to be experienced multiple breathing difficulties associated perilous. A pregnant woman may jeopardize the health of with her premature birth. In the first few years of her life, her fetus by taking medication (prescription or over-the- she has had, and continues to suffer from, respiratory counter), or, in other cases, by not taking medication. distress and asthma. The plaintiff alleges (and we accept She also may endanger the well-being of her fetus by not as fact, for purposes of this decision) that her mother's following her physician's advice with respect to prenatal negligent driving caused the accident that led to the plaintiff's premature birth and subsequent related

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care or by exercising her constitutional right not to jurisdictions, logic demands that a child's mother should receive medical treatment. bear the same liability for injurious, negligent conduct to a fetus as would any third party. The courts undertook no Recognizing a pregnant woman's legal duty of care serious analysis of the unique relationship between a in negligence to her unborn child would present an pregnant woman and the fetus she carries. The courts almost unlimited number of circumstances that would also failed to address the collateral social and other likely give rise to litigation. Courts would be challenged impacts of the imposition of a legal (as opposed to a to refine the scope of such a duty, including the degree of moral) obligation that would hold a pregnant woman to a knowledge expected of a mother in order to pinpoint standard of care towards her unborn child. Because it is when such a duty would arise (e.g., at the point of on these considerations that our decision rests, we find pregnancy; at the point of awareness of pregnancy; or at these cases unpersuasive. the point of awareness that pregnancy is a possibility) or the particular standard of conduct to which a reasonably careful pregnant woman, in a single case, should be held. 2. The plaintiff contends that her mother, as the There is no consensus on if and when a duty such as the operator of a motor vehicle, had an existing duty of care one sought by the plaintiff should be imposed, and there that extended to all other persons to operate her is considerable debate with respect to a mother's civil automobile in a reasonably careful and prudent manner, liability for injuries to her unborn fetus, including and argues that, based on this existing duty, there is no disagreement over whether the rights of the child should legal reason, particularly in the context of motor vehicle supersede the legal rights of the mother. No set of clear negligence, to distinguish between an unborn fetus and a existing social values and customs exist, and no settled child already born. We do not agree. social policy can be identified, to justify the maintenance This court has recognized the right of a plaintiff to of the present lawsuit. Two appellate courts in other maintain an independent cause of action for prenatal jurisdictions, considering the broad question before us, injuries sustained as the result of the negligence of have declined to recognize a mother's duty of care another. "If the tortious conduct and the legal causation toward her unborn child. In the Stallman decision, the of the harm can be satisfactorily established, there may Supreme Court of Illinois reviewed the modern trend of be recovery for any injury occurring at any time after case law allowing a child to bring an action for prenatal conception." Moreover, a viable fetus, whether or not injuries inflicted by third persons and acknowledged in born alive, is considered a "person" for purposes of our the cases some articulation of a principle that a child has wrongful death statute. a "legal right to begin life with a sound mind and body."

The court concluded, however, that "logic does not It is true that, had the plaintiff been injured while demand that a pregnant woman be treated in a court of MacDonald was a passenger in an automobile law as a stranger to her developing fetus. It would be a negligently operated by another, the plaintiff (whether or legal fiction to treat the fetus as a separate legal person not she survived) would have been able to recover with rights hostile to and assertable against its mother." damages against the operator of the vehicle. There is also That fiction, we add, could have profound social no question that, had the plaintiff been born at the time implications and far reaching unforeseen legal of the accident, even if only one hour of age, she would consequences. have been able to recover against MacDonald for injuries The Texas Court of Appeals, in Chenault v. Huie, sustained as a result of her mother's negligence. Our agreed with the result in the Stallman case. The court cases affirm the principle that "children enjoy the same suggested that the asserted duty could have a detrimental right to protection and to legal redress for wrongs done impact on women's activities before pregnancy. The them as others enjoy." There is nothing in our statutes or court also noted that creation of such a duty would case law, however, that addresses the situation before us. confront a jury "with questions calling for answers that are inherently value laden and, therefore, not subject to We reject the plaintiff's argument that a rule objective or convincing resolution." permitting a child to recover for negligent injuries

inflicted before birth by the child's mother could be There are three appellate decisions in jurisdictions restricted solely to a viable fetus claiming negligence in that have allowed a claim brought against one's mother an automobile accident. Massachusetts law provides that for negligently inflicted prenatal injuries. … These there is nothing special about injuries incurred in decisions uniformly were premised on the assumption automobile accidents that sets them apart from other that, because an unborn child, after birth, may recover negligently caused injuries, and the limitation sought by for prenatal injuries negligently inflicted by another, and the plaintiff would be inconsistent with that law. The because parental immunity had been abolished in those presence of automobile liability insurance does not create

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liability where none previously existed. Further, and legal right, never before recognized in law, for a fetus to more importantly, there is no meaningful way to limit bring a claim of negligence against its own mother. As such a rule to automobile accidents cases. It would be was stated in the Stallman case,: "The recognition of [a only a matter of time before the rule could be extended to legal duty on the part of the mother towards her fetus] a myriad of situations that would make pregnant women would create a new tort: a cause of action assertable by a liable to their viable fetuses for all manner of allegedly fetus, subsequently born alive, against its mother for the negligent conduct. unintentional infliction of prenatal injuries." We have said that "the evolution of the law of negligence has We agree with the general principle expressed in always required courts to make hard (and often fine) Restatement (Second) of Torts § 869 that "one who distinctions, and to assess and determine, in considering tortiously causes harm to an unborn child is subject to the existence of a duty, contemporary attitudes and liability to the child for the harm if the child is born public policy." We conclude that there are inherent and alive." The quoted language emphasizes that it is not just important differences between a fetus, in utero, and a a pregnant woman alone who may be harmed by the child already born, that permits a bright line to be drawn tortious act of a third party, but also the fetus, whose around the zone of potential tort liability of one who is injuries become apparent at its birth. There is nothing in still biologically joined to an injured plaintiff. the Restatement text, or in comments to the text, to indicate that the drafters of § 869 intended to suggest a Judgment affirmed.

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KENNETH R. CHAFFEE, M.D., Appellant-Defendant, vs. HEATHER L. SESLAR, Appellee-Plaintiff.

No. 17A03-0011-CV-418

COURT OF APPEALS OF INDIANA, THIRD DISTRICT

751 N.E.2d 773; 2001 Ind. App. LEXIS 1188

July 13, 2001, Filed

SUBSEQUENT HISTORY: This interlocutory appeal ensued. Superseded by, Cause remanded by Chaffee v. Seslar,

2003 Ind. LEXIS 331 (Ind., Apr. 15, 2003) Discussion and Decision

Dr. Chaffee contends that child-rearing damages PROCEDURAL POSTURE: Appellant doctor sought are not recoverable for the subsequent birth of a review of the judgment of the Dekalb Circuit Court normal, healthy child as a result of the negligent (Indiana) which held in a motion for preliminary performance of a sterilization procedure. We disagree. determination that appellee mother could recover damages for the costs of raising a child resulting from the negligence in performing a sterilization procedure. ***

II. Right Not to Procreate ROBB, Judge We note initially that the United States Kenneth R. Chaffee, M.D., appeals the trial court's Constitution protects the right of privacy including preliminary determination in favor of Heather L. one's rights to family planning and birth control. The Seslar. We affirm. United States Supreme Court has provided that the right to choose not to have a child is at the "very heart" Issue of a group of constitutionally protected choices, including the decisions relating to marriage, family Dr. Chaffee raises the following consolidated and relationships, child rearing and education. The choice restated issue for our review: whether the costs whether to bear or begat a child is central to these involved in raising a normal, healthy child conceived Fourteenth Amendment privacy rights. The Court has subsequent to an allegedly negligent sterilization stated that "if the right of privacy means anything, it is procedure are recoverable. the right of the individual, married or single, to be free

from unwarranted governmental intrusion into matters Facts and Procedural History so fundamentally affecting a person as the decision of The facts reveal that on March 26, 1998, Dr. whether to bear or begat a child." Chaffee performed an abdominal bilateral partial The United States Supreme Court has reversed salpingectomy upon Seslar's request for the purpose of convictions based upon state statutes making it a crime rendering her sterile. Thereafter, Seslar became to use any device to prevent contraception. The court pregnant and gave birth to a healthy child on August 5, has also held that restrictions which impede access to 1999. contraceptives unacceptably impair the right to privacy *** because such access is "essential to the exercise" of constitutionally protected reproductive rights. In Following a hearing, the trial court on October 24, addition, the Court has provided that the right of 2000, entered an order which provides in pertinent part privacy "is broad enough to encompass a woman's that: decision whether or not to terminate her pregnancy." This Court, . . . hereby rules that [Seslar] may Therefore, individuals have a constitutional right to properly seek recovery of monetary damages for future limit the size of their family, regardless of whether that costs of rearing her child including, but not limited to, decision is based upon a lifestyle choice, financial, medical costs and educational costs. health, or social concern.

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III. Claim of "Wrongful Pregnancy" procedures indicated that many individuals do not consider parenthood a "net positive circumstance." A. Cause of Action More than a decade ago, this court in Garrison v. Foy recognized that the cause of action labeled "wrongful "Wrongful pregnancy" is a label attached to a pregnancy" existed in Indiana. Although this cause of cause of action alleging that but for a third party's action still exists in Indiana, we will no longer utilize negligence, the plaintiff-parents would not have the label "wrongful pregnancy" and will treat such a conceived or given birth to an unplanned yet healthy claim as any other medical malpractice action, as child. "An action for 'wrongful conception or instructed by Bader v. Johnson. pregnancy' refers to a claim for damages sustained by the parents of an unexpected child alleging that the Recently, the Indiana Supreme Court in Bader v. conception of the child resulted from negligent Johnson was confronted with the issue of whether a sterilization procedures or a defective contraceptive cause of action labeled "wrongful birth" existed in product." The claim itself appears to be the offspring of Indiana. In Bader, father and mother's first child was earlier existing claims of "wrongful birth" and born with congenital birth defects. When mother "wrongful life."5 Claims for "wrongful pregnancy" became pregnant for a second time, the parents sought typically are predicated on the unsuccessful tubal consultation with healthcare providers in order to ligation or cauterization, unsuccessful vasectomy, the ensure that the child was healthy. Testing showed that failure to properly diagnosis a pregnancy or perform an the pregnancy was normal and the parent's second child abortion, negligence in the insertion or removal of an was born healthy. When mother became pregnant for IUD or dispensing contraception prescriptions, or the the third time, the parents again sought consultation failure of a contraceptive pill or condom. The damages with the healthcare providers. The healthcare providers sought in a "wrongful pregnancy" action are those administered an ultrasound which revealed that the owing to the parents, not the unplanned healthy child, fetus had a larger than expected cavity within the brain due to the unsuccessful medical procedures and the and an unusual head shape. Due to office error, follow- resulting birth of a child. up testing was not performed in a timely manner and 5 The medical malpractice action labeled the child was born with multiple birth defects and as a "wrongful birth" refers to claims generally result died four months later. described as causes of action brought by the *** parents of a child born with birth defects alleging that due to the negligent medical The Indiana Supreme Court stated that the injury advice or testing they were precluded from to the parents was one of lost opportunity and ability to making an informed decision about whether to terminate the pregnancy and that such a cause of action conceive a potentially handicapped child, or in existed in Indiana. However, the court refused to the event of a pregnancy, to terminate it. A characterize the action as "wrongful birth," explaining cause of action based upon the same type of that "labeling the [parents'] cause of action as 'wrongful negligent conduct that seeks damages on behalf birth' adds nothing to the analysis, inspires confusion, of the child rather than the parents is often and implies that the court has adopted a new tort." referred to as "wrongful life." A claim of Thus, our supreme court treated a "wrongful birth" "wrongful pregnancy" has been noted as action like any other medical malpractice case, refusing differing from a claim of "wrongful birth" or to give it special status or imply it was recognizing a "wrongful life" in two important respects. First, new tort. We will follow our supreme court's lead with "wrongful pregnancy" does not rest on the regard to a cause of action labeled "wrongful claim that the mother had a right to terminate pregnancy." Although many jurisdictions have found the pregnancy. Second, the "wrongful this label useful, we believe that the phrase "wrongful pregnancy" claim differs because it does not pregnancy," like the phrase "wrongful birth," does necessarily involve an unhealthy or genetically nothing but creates confusion and implies that Indiana damaged child. recognizes a prenatal tort which is separate and distinct from other medical malpractice causes of action. Historically, courts denied recovery for claims of Therefore, we will treat Seslar's claim as any other "wrongful pregnancy" based upon the "blessings medical malpractice case and will disregard the label or doctrine," which provides that the birth of a human term "wrongful pregnancy." being is not a harm but rather a blessing. However, the principle slowly emerged "that the birth of a child may Medical malpractice actions are no different from be something less than [a] 'blessed event.'" The current other kinds of negligence actions regarding the extensive use of birth control and sterilization elements which must be proven by a plaintiff. The

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plaintiff must prove: (1) duty owed to plaintiff by performance of a sterilization procedure that results in defendant; (2) breach of duty by allowing conduct to the birth of a normal, healthy child. Assuming Seslar fall below the applicable standard of care; and (3) has proven duty and breach, in order to obtain damages compensable injury proximately caused by defendant's from the healthcare provider, she must satisfy the third breach of duty. If the plaintiff proves the elements of element of a medical malpractice action: compensable negligence, she is entitled to all damages naturally injury proximately caused by the breach. Seslar argues flowing from the healthcare provider's breach of duty. that as a result of the healthcare provider's negligent Although Dr. Chaffee concedes that Seslar is entitled to performance of the abdominal bilateral partial a cause of action for the negligent performance of a salpingectomy, she became pregnant and conceived a sterilization procedure, he challenges Seslar's assertion normal, healthy child. According to Seslar, she that a successful plaintiff may recover child-rearing underwent the sterilization procedure to specifically expenses for such medical malpractice. avoid the conception of any child, not just a child with birth defects or abnormalities. B. Damages Available An indispensable element of a negligence claim is It is well established that damages are awarded to that the act complained of be the proximate cause of fairly and adequately compensate an injured party for the plaintiff's injuries. A negligent act is the proximate his or her loss, and the proper measure of damages cause of the injury if the injury is a natural and must be flexible enough to fit the circumstances. In probable consequence, which in light of the tort actions, typically all damages directly related to the circumstances, should have been foreseen or wrong arising without an intervening agency are anticipated. The policy underlying proximate cause is recoverable. In negligence actions, the injured party is that we, as a society, only assign legal responsibility to entitled to damages proximately caused by the those actors whose acts are closely connected to the tortfeasor's breach of duty. In order for a negligent act resulting injuries, such that imposition of liability is to be a proximate cause of injury, the injury need only justified. Stated another way, proximate cause sets the be a natural and probable result thereof, and the parameters in which an actor "can expect the law to consequence be one which in light of the circumstances provide . . . protection to his activity." should reasonably have been foreseen or anticipated. In the present case, we are faced with a Three views have emerged regarding whether and preliminary determination by a trial court that child- to what extent a plaintiff may recover the costs rearing expenses are available in a claimed "wrongful associated with rearing an unplanned child, these pregnancy" suit; the medical review panel has not being: (1) the full recovery rule7 -the parent may rendered a decision nor has there been a trial on the recover all costs of rearing the child; (2) the benefit merits. We believe that child-rearing expenses are rule8 -the parent may recover the [*781] cost of available to Seslar if she carries her burden of proof at rearing the child offset by the benefits the parent will trial that these damages are a natural and probable incur as a result of having the child; and (3) the no consequence of the healthcare provider's breach. At a recovery rule9 -the parent may not recover the costs of minimum, proximate cause requires that the injury rearing the child. … would not have occurred but for the defendant's conduct. The "but for" test presupposes that absent the 7 Four jurisdictions adhere to the full recovery defendant's conduct, a plaintiff would have been spared rule. suffering the claimed injury. Seslar's claimed injury is 8 Five jurisdictions [including Maryland] that but for the healthcare provider's negligent subscribe to the benefits rule. performance of the sterilization procedure, she would not have conceived the unplanned child and incur the 9 Thirty-one jurisdictions subscribe to the no attendant child-rearing expenses. recovery rule regarding child-rearing expenses, Seslar is faced with the cost of raising the limiting recovery to pregnancy and child- unplanned child. Child-rearing expenses are the costs bearing expenses. Seslar was attempting to avoid by undergoing the

sterilization procedure. Seslar sought to prevent *** conception and the birth of the normal, healthy child 2. Applicability resulted from the healthcare provider's breach. The healthcare provider's sole purpose in performing the [W]e will utilize traditional notions of causation to procedure was to comply with Seslar's wishes to determine whether child-rearing damages naturally prevent conception. Certainly the costs associated with flow from a healthcare provider's negligent raising a child are foreseeable and unavoidable. The

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proximate cause doctrine utilized by our supreme court 19 It has been suggested that this view is in Bader allows recovery of all damages which flow rooted in a time when society was largely from the healthcare provider's breach. We believe that agricultural, and children were actively child-rearing expenses are a natural and probable involved in those activities that ultimately consequence of the healthcare provider's breach. generated an economic benefit for their parents. However, "in a post-industrial society, the cost 3. Other Considerations for Limiting Damages of raising a child usually exceeds the economic However, it has been asserted that child-rearing benefit, if any, the family derives from the damages should be prohibited because these expenses child." We agree with the belief expounded by are too speculative. We reject this argument. Juries are another jurisdiction that in the modern age, a often called upon to make more complex damage child brings little economic benefit to his assessments in other medical malpractice actions such parents. as those involving pain and suffering and mental Moreover, it has been expounded that child- anguish. Furthermore, damages are often awarded for rearing damages should not be recoverable because future care and medical treatment in the personal injury society places such high value on human life that the context but are not considered speculative despite the birth of a normal, healthy child cannot be a legal wrong fact that the money may not be needed or utilized for for which damages may be recovered. This concept such care and treatment in the future.12 Moreover, there embodies the belief that the sanctity of human life are means by which child-rearing expenses may be would be undermined if child-rearing damages are calculated, such as economic demographers, recoverable against a healthcare provider for the government studies, actuarial and insurance company negligent performance of a sterilization procedure. One statistics, and population studies. Such costs are easily jurisdiction has provided that: understandable and appreciated by the average citizen

through their own experience of raising children. As a matter of public policy, the birth Although the damage awards cannot be based upon of a normal and healthy child does not mere speculation or guesswork, no degree of constitute a legal harm for which mathematical certainty is required in the damage damages are recoverable. We recognize calculation. Generally, a jury has liberal discretion in wrongful death actions because of the assessing damages where they cannot be calculated great value we place on human life . . . . with mathematical certainty. Thus, we reject the The birth of a normal, healthy child may argument that child-rearing damages are too be one of the consequences of a speculative. negligently performed sterilization, but

we hold that it is not a legal wrong for 12 For example, when the patient has an early which damages should or may be death, is cured, or elects not to undergo such awarded. treatment.

Moreover, several policy arguments have been asserted regarding why this court should draw a line We believe that a parent's injury is not the birth of her limiting the damages available to a parent in a claim of child, but rather is the invasion of her interest in the "wrongful pregnancy" to those directly incident to the financial security of her family and the attendant desire pregnancy. It has been argued that the birth of a to limit her family size, and the deprivation of her right healthy, normal child cannot constitute a legal harm for to limit procreation. Also, the sanctity of life is more which damages are recoverable.19 This is based on the undermined by a parent being financially unable to concept that there exists no injury because the benefits provide the basic necessities of life than allowing the of a healthy child substantially outweigh any child- recovery of child-rearing expenses. Therefore, we rearing expenses. One jurisdiction has explained that reject these policy arguments for denying child-rearing the "bond and affection between child and parent, the expenses. pride in a child's achievement, and the comfort, The "emotional bastard" argument has also been counsel, and society of a child are incalculable asserted as a reason to deny child-rearing expenses. It benefits, which should not be measured by some has been argued the award of child-rearing damages misplaced attempt to put a specific dollar value on a will harm the emotional health of the unplanned child. child's life." Parents who attempt to prove that the burdens of the unplanned child outweigh his "worth" will be encouraged to deny the child's "value" to them. Upon

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learning that another is providing his upbringing, the negligence. The amount of money needed to raise a child may feel unwanted, an "emotional bastard." child to majority emphasizes the economic impact an unplanned child has upon a family, and this cost should We refuse to subscribe to this argument for be shifted to the entity more able to bear the cost, the limiting damages. A parent does not seek damages healthcare provider whose negligence resulted in the because he or she does not love or want to keep the birth of the unplanned child. Furthermore, concepts of unplanned child, rather because the healthcare fairness and equity dictate to this court that we not shift provider's negligence has resulted in the imposition of the burden of raising the unplanned child to the parent financial burdens which the parent desired to avoid. who underwent the medical procedure to avoid Essentially, a parent seeks child-rearing damages to conception. In addition, the Act expressly limits the stabilize the family's finances, not to disparage the amount of money recovered in a medical malpractice worth of the child. Moreover, child-rearing damages action, regardless of the nature of the damages. are not for the unplanned child or so-called "emotional Therefore, we refuse to adhere to the policy argument bastard," "but to replenish the family exchequer so that that child-rearing expenses are disproportionate to the the new arrival will not deprive the other members of healthcare provider's negligence and that the public the family of what was planned as their just share of policy of limiting the liability of healthcare providers the family income." The award of child-rearing embedded in the Act directs this court to prohibit the expenses acknowledges the costliness of raising a recovery of child-rearing damages. child, as well as the possible disruptive effect of the unplanned child on the finances of the family. Another policy argument against awarding child- rearing damages is that the healthcare provider would Furthermore, a parent's claim against a healthcare be responsible for all of the financial costs of raising provider may be viewed as an indication of their the child, while the parents would reap all of the emotional bond to the newborn; having initially chosen benefits of a lifetime with the child. Essentially, the not to have a child the parents now desire the means to allowance of child-rearing damages would shift the properly raise the child. Many children are unplanned entire cost of raising the child to the healthcare but secure in their family's love; the parent's litigation provider, creating a new category of "surrogate parent." does not indicate rejection of or hostility to the We do not believe that these damages shift the burden unplanned child, but instead an effort to finance his of parenting to the healthcare provider. The child well-being. Besides, any psychological harm the child remains the parent's responsibility and it is the parent, may suffer will surely be less harmful than growing up not the healthcare provider, who has the responsibility underfed, ill-clothed, and ill-educated. Therefore, we for providing time, energy, discipline, love, and hold that child-rearing damages enhance the unplanned guidance to the unplanned child. In addition, it is the child's life, not disparage it, and we refuse to prohibit parent, not the healthcare provider, who will incur the the recovery of such expenses based upon the stress and heartache which typically accompanies the "emotional bastard" policy argument. raising of a child into adulthood. Consequently, we do Another policy argument for prohibiting the not find the "surrogate parent" policy argument as a recovery of child-rearing damages is that such awards sound basis for prohibiting the recovery of child- tend to be very large and out of proportion to the rearing damages. culpability of the healthcare provider. … We [do not] Following our supreme court's guidance in Bader, agree with this argument. Indiana Code places a limit we hold that the costs involved in raising a normal, on the amount of damages a plaintiff may recover for healthy child conceived subsequent to an allegedly injury due to negligent conduct of healthcare providers negligent sterilization procedure are recoverable if the in rendering their services. The prohibition of child- parent satisfies all of the elements of negligence. In rearing damages would place an addition limitation of addition, we hold that no public policy warrants the liability in medical malpractice actions not preclusion of child-rearing expenses from the list of contemplated by the Indiana General Assembly. Our available damages to a successful plaintiff in a medical legislature has not expressly limited child-rearing malpractice action based upon a healthcare provider's damages and we see no reason to further hamper the negligent performance of a sterilization procedure recovery of a plaintiff in a medical malpractice action. which ultimately results in the birth of a normal, We do not dispute the contention that the cost of healthy child. raising a child is significant. However, we do not believe that the potential size of the damage award is a III. Mitigation of Damages reasonable basis on which to immunize a healthcare Generally, the non-liable party must mitigate its provider from the foreseeable results of his or her damages, but the burden lies with the liable party to

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prove that the non-liable party has not used reasonable child up for adoption is unreasonable. We see no diligence to mitigate its damages. "The principle of reason why a parent who is threatened by future harm mitigation of damages addresses conduct by an injured by a tortious act should subject herself to emotional or party that aggravates or increases the party's injuries. physical pain of a different kind in order to prevent The principle does not address the measure of damages future harm. resulting from injuries occasioned by the tortfeasor's conduct." It has been explained that: Furthermore, the choice of abortion or adoption is

a personal and private choice involving deeply Failure to minimize damages does not religious and moral convictions. Moreover, requiring bar the remedy, but goes only to the mitigation of damages in a claim of "wrongful amount of damages recoverable. pregnancy" would affront the United States Supreme Otherwise stated, if the act of the Court's protection of procreation decisions under the injured party does not operate in causing Constitutional right of privacy. Furthermore, the public the injury from which all damages policy of this State favors life over abortion. Therefore, ensued, but merely adds to the resulting we hold that neither abortion nor adoption is an damages, its only effect is to prevent the ordinary or reasonable measure in the law relating to recovery of those damages which mitigation of damages. reasonable care would have prevented.

The "avoidable consequence" doctrine has been However, we believe that healthcare provider is utilized by several jurisdictions to prohibit a parent's entitled to present evidence to limit the amount of the claim for child-rearing damages. This doctrine is recovery of child-rearing damages by the benefits rooted in section 918 of the Restatement (Second) of resulting from the child's birth. According to the Torts which provides in that: Restatement (Second) of Torts:

(1) Except as stated in Subsection (2), When the defendant's tortious conduct one injured by the tort of another is not has caused harm to the plaintiff or to his entitled to recover damages for any property and in so doing has conferred a harm that he could have avoided by the special benefit to the interest of the use of reasonable effort or expenditure plaintiff that was harmed, the value of after the commission of the tort. the benefit conferred is considered in mitigation of damages, to the extent that (2) One is not prevented from this is equitable. recovering damages for a particular harm resulting from a tort if the tortfeasor intended the harm or was In simplest terms, the value of any specific benefit aware of it and was recklessly conferred on the plaintiff by the defendant's tort must disregardful of it, unless the injured be considered for purposes of mitigation of damages person with knowledge of the danger of when equitable. Damages are to be reduced only to the the harm intentionally or heedlessly extent that the benefit received by the plaintiff is the failed to protect his own interests. "same interest" that was harmed by the defendant's tort. In addition, benefit can offset the damage only to the The doctrine of "avoidable extent that it is equitable. Also, a tortfeasor should not consequences" only requires that be permitted to force a benefit on the plaintiff against "reasonable" efforts be made by the the plaintiff's will. plaintiff. Id. [W]e refuse to articulate the benefits, if there are in fact any, that may be offset against child-rearing damages recovered as a result of a healthcare provider's The only forms of mitigation available to a parent negligent performance of a sterilization procedure in a claim of "wrongful pregnancy" are abortion and which ultimately results in the birth of a normal, adoption. It has been asserted that by a parent failing to healthy child. We merely provide that a healthcare mitigate, he or she admits that they are accepting all the provider should not be precluded from presenting this obligations of raising the child, including the costs such type of mitigation evidence to the fact finder as in any as child-rearing expenses. We believe that the other negligence claim. requirement of considering an abortion or placing the

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provider faced with the award of child-rearing damages Conclusion should be permitted to produce evidence of mitigation as in any other damage award in a negligence action. Based on the foregoing, we hold that the trial court properly determined that the costs involved in Affirmed. raising a normal, healthy child conceived subsequent to DARDEN, J., and RILEY, J., concur an allegedly negligent sterilization procedure are recoverable. In addition, we hold that a healthcare

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Andrew John Bruggeman, a minor by and through his natural mother and next friend, Gina Marie Bruggeman, Appellant, v. Robert Neil Schimke, M.D., State of Kansas, State Board of Regents and University of Kansas Medical Center, Appellees

No. 58,565

Supreme Court of Kansas

239 Kan. 245; 718 P.2d 635; 1986 Kan. LEXIS 330

May 2, 1986, Opinion Filed

PROCEDURAL POSTURE: Plaintiff, a minor by and future extraordinary expenses for medical, surgical, through his natural mother, sought review of an order nursing and hospital services. from the Wyandotte District Court (Kansas), which The trial court, in a comprehensive memorandum, sustained the motion to dismiss of defendant physician reviewed cases from other jurisdictions and current for failure to state a claim upon which relief could be articles in legal and medical journals on the subject. granted. The minor had brought an action for damages There is no Kansas case directly in point. The court for wrongful life. concluded that a geneticist who has been consulted on

the question of possible hereditary or congenital defects

occurring in a second child owes a duty to his patients, OPINION BY: MILLER which duty extends to yet unborn children of the

patients, to exercise reasonable care. Whether the duty This is an action for damages for "wrongful life," exists, the court held, was a question of law which the brought by a three-year-old boy against a physician, court decided in the affirmative. Whether the defendants Robert Neil Schimke; the State of Kansas; the State had breached that duty was a question of fact, but for the Board of Regents; and the Kansas University Medical purpose of ruling upon the motion the court held the Center. The plaintiff, Andrew John Bruggeman, appeals allegations of the petition were sufficient. On the issue from an order of the district court of Wyandotte County of causation, however, the court observed that the infant sustaining defendants' motions to dismiss for failure to plaintiff does not claim that the defendants caused his state a claim upon which relief can be granted under defects. His claim is that they caused his birth and his Kansas law. life, when they knew or should have known that he would be born with congenital defects. The court said: *** "Being born is not a compensable injury. Being The petition, in substance, alleges that in 1979 born with a defect is not compensable unless the defect is plaintiff's mother gave birth to a daughter, Amy, who caused by another's negligence. This plaintiff's claim is was born with multiple congenital anomalies. Plaintiff's based on his being born with a defect, and that the mother and father then sought genetic counseling at the defendants are negligent in not preventing his birth. University of Kansas Medical Center in regard to the risk There is no claim that defendants' negligence caused his of birth defects or hereditable impairments in future defect, only that the negligence caused his birth. children. They were advised by the defendants that Amy's condition was not due to a known chromosomal "The question of causation is one of fact, and under or measurable biochemical disorder. Defendants were most circumstances, a question for the jury. Only where negligent in so advising plaintiff's parents. The parents the causation question could not cause reasonable men to relied upon the advice and, but for the inadequate and differ does it become a question of law. negligent counseling, plaintiff would not have been born "The court concludes that while the petition states a to experience the pain and suffering attributable to his cause of action for the breach of a duty owed to this genetic deformities. Plaintiff claims that as a result of infant plaintiff, it fails to do so on causation and defendants' negligence plaintiff has been caused to damages. suffer, and will suffer in the future, injuries, pain and mental anguish as a result of being born as an impaired "While the averments establish for the purpose of person, and that he has incurred and will incur in the the motion that defendants are negligent, there is no

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connection between that negligence and the plaintiff's … The issue presented is one of first impression for this defect. There is no right not to be born. court. "Damages for the defect are not assessable against The majority of American jurisdictions have refused the defendants since their negligence is not the proximate to recognize an action for wrongful life. cause of the damages, and damages for being born and The courts which follow the majority rule, and achieving life itself are contrary to public policy." which have refused to recognize an action for wrongful *** life, have generally been reluctant to find that the child plaintiff has suffered a legally cognizable injury by being "At the outset, wrongful life must be distinguished born impaired rather than not being born at all. The from other birth-related claims with which it is often Idaho court in Blake v. Cruz, 108 Idaho 253, noted that confused, namely 'wrongful pregnancy,' and 'wrongful the majority of states have refused to recognize the birth.' Wrongful pregnancy refers to those cases where wrongful life action. The court then stated: parents of a healthy child bring a claim on their own behalf for the monetary and emotional damages they "This judicial reticence stems partially from the fact that suffered as a result of giving birth to an unwanted child. the theory amounts to a repudiation of the value of Wrongful birth claims are brought by parents who claim human life. The contention of wrongful life plaintiffs is that they would have avoided conception or terminated not that they should not have been born without defects, the pregnancy had they been properly advised of the but rather, that they should not have been born at all. risks of birth defects to the potential child. These parents The essence of such claims is that the child's very life is seek recovery for their expenses in caring for the 'wrongful.' deformed child, and for their own pain and suffering. Wrongful pregnancy actions typically involve a healthy, "We also decline to adopt the doctrine which would but unwanted child, whereas wrongful birth actions recognize such a cause of action. Basic to our culture is usually involve planned children who are born deformed. the precept that life is precious. As a society, therefore, Both actions, however, are brought by the parents on our laws have as their driving force the purpose of their own behalf. protecting, preserving and improving the quality of human existence. To recognize wrongful life as a tort "Wrongful life actions, on the other hand, are suits would do violence to that purpose and is completely brought by the impaired child. The child alleges that but contradictory to the belief that life is precious. The fact for the defendant doctor or health care providers' that Dessie Blake will live in a severely disabled negligent advice to, or treatment of, the parents, the child condition is unquestionably a tragedy; nevertheless, we would not have been born. The essence of the child's agree with the New Jersey Supreme Court in that 'life -- claim is that the defendants wrongfully deprived the whether experienced with or without a major physical parents of information which would have prevented the handicap -- is more precious than non-life.' Thus, child's birth. In a wrongful life claim, because Dessie Blake has suffered no legally cognizable

wrong by being born, she has no cause of action." 108 'The child does not allege that the Idaho at 259-60. physician's negligence caused the child's

deformity. Rather, the claim is that the [The court then cited a number of other cases that physician's negligence -- his failure to reached the same result] adequately inform the parents of the risk - - has caused the birth of the deformed In the Becker case, the Court of Appeals of New child. The child argues that but for the York, at 46 N.Y.2d at 411-12, said: inadequate advice, it would not have been born to experience the pain and suffering "The remedy afforded an injured party in negligence is attributable to the deformity.' designed to place that party in the position he would have occupied but for the negligence of the defendant. Thus, the damages recoverable on behalf of an infant for *** wrongful life are limited to that which is necessary to The case now before us fits neatly within the restore the infant to the position he or she would have definition of an action for "wrongful life." It is an action occupied were it not for the failure of the defendant to by the child alleging that, but for the negligence of the render advice to the infant's parents in a nonnegligent defendants in giving improper genetic counseling to his manner. The theoretical hurdle to an assertion of parents, he would not have been born to experience the damages on behalf of an infant accruing from a pain and suffering attributable to his genetic deformities. defendant's negligence in such a case becomes at once

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apparent. The very allegations of the complaint state that "Moreover, while our society and our legal system had the defendant not been negligent, the infant's parents unquestionably place the highest value on all human life, would have chosen not to conceive, or having conceived, we do not think that it is accurate to suggest that this to have terminated rather than to have carried the state's public policy establishes -- as a matter of law -- pregnancy to term, thereby depriving the infant plaintiff that under all circumstances 'impaired life' is 'preferable' of his or her very existence. Simply put, a cause of to 'nonlife.'" 31 Cal. 3d at 233. action brought on behalf of an infant seeking recovery The Turpin court denied the child's claim for pain, for wrongful life demands a calculation of damages suffering, or other general damages, giving as its reason dependent upon a comparison between the Hobson's (1) the inability to determine in a rational or reasonable choice of life in an impaired state and nonexistence. This fashion whether the plaintiff has suffered an injury in comparison the law is not equipped to make. being born impaired rather than not being born, and (2) it Similarly, in Goldberg v. Ruskin, 128 Ill. App. 3d at would be impossible to assess general damages in a fair, 1035-36, the Illinois Court of Appeals stated: nonspeculative manner. These reasons, of course, closely resemble the two principal reasons upon which "The primary purpose of tort law is to compensate the majority of states have based their refusal to plaintiffs for the injuries they have suffered wrongfully recognize an action for wrongful life. at the hands of others, and damages for negligence are The Turpin court reached a different conclusion, ordinarily computed by comparing the condition plaintiff however, on the child's claim for the "'extraordinary would have been in but for the tort with plaintiff's expenses for specialized teaching, training and hearing impaired condition as a result of the wrong. In a cause of equipment' that [the plaintiff] will incur during her action seeking recovery for wrongful life, the trier of fact lifetime because of her deafness." 31 Cal. 3d at 237. The would be required 'to measure the difference in value court also noted that in the corresponding "wrongful between life in an impaired condition and "the utter void birth" actions, parents have been permitted to recover of nonexistence."' Such a computation is 'a task that is medical expenses incurred on behalf of the child, and the beyond mortals, whether judges or jurors.' court concluded that it would be illogical to allow only Four states have recognized an action for wrongful the parents and not the child to recover for the costs of life. the child's medical care. 31 Cal. 3d at 328. *** *** We are convinced that an action for wrongful life should The leading case recognizing an action for wrongful not be judicially recognized in Kansas. It has long been life is Turpin v. Sortini. There, in considering earlier a fundamental principle of our law that human life is cases from other states in which recovery had been precious. Whether the person is in perfect health, in ill denied, the California court said: health, or has or does not have impairments or

disabilities, the person's life is valuable, precious, and "[S]ome courts have concluded that the plaintiff has worthy of protection. A legal right not to be born -- to be suffered no legally cognizable injury on the ground that dead, rather than to be alive with deformities -- is a considerations of public policy dictate a conclusion that theory completely contradictory to our law. life -- even with the most severe of impairments -- is, as a matter of law, always preferable to nonlife. The *** decisions frequently suggest that a contrary conclusion would 'disavow' the sanctity and value of less-than- "[D]amages do not create a right or cause of action. The perfect human life. [Citations omitted.]" 31 Cal. 3d at 'cause of action' is the wrong done, not the measure of 232. compensation for it, or the character of relief sought.

Damages are merely a part of the remedy which the law However, the court went on to say: allows for the injury resulting from a breach or wrong."

"[I]t is hard to see how an award of damages to a There being no recognized cause of action for wrongful severely handicapped or suffering child would 'disavow' life, there can be no recovery of damages based thereon. the value of life or in any way suggest that the child is The trial court was correct in sustaining the motion to not entitled to the . . . rights and privileges accorded to dismiss. all members of society. The judgment is affirmed.

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