Cay v.

State of Louisiana, DOTD

FACTS: The plaintiff after coming home from work escorted his sister to obtain hunting and
shotgun shells for a hunting trip the next day. The plaintiff cashed a check for sixty dollars and
paid for the hunting items. Π later decided to stay and around 10 entered a barroom and stayed to
11pm. He declined a ride offer to his house. The Π’s body was later found five days later at the
bottom of a bridge. Evidence collected at the scene indicate the Π had fell from the bridge, no
apparent foul play or suicide, had been walking on the wrong side, and Π was intoxicated.

The Π’s parent filed a wrongful death action against the DOTD, seeking recovery on the
basis that the guard railing on the sides of the bridge was too low and therefore unsafe for
pedestrians whom DOTD knew were using the bridge, and DOTD failed to provide pedestrian
walkways or signs warning pedestrians about the hazardous condition. The trial court rendered
judgment for the plaintiff claiming the Π’s accidently fell from the bridge due in part by the
inadequate railing and in part by the Π’s intoxication and also that DOTD breached its duty to
pedestrians for failing to build the bridge railings to its height of thirty-six inches, as required by
the AASHTO. The court of appeals affirmed concluding the inadequate railing was a cause-in-
fact of the accident, stating the accident might not have occurred had the railing been higher.

ISSUE: Whether the plaintiffs proved that DOTD’S construction of the bridge railing at a height
lower than the minimum standard for pedestrian traffic was a cause-in-fact of the Π’s fall from
the bridge and (2) Whether that failure caused the Π’s fall or, conversely, whether the fall would
have been prevented if DOTD had constructed the railing at least thirty-six inches high.

RULE: For the purpose of negligence, the burden of prove is on the Π and proof is sufficient to
constitute a preponderance when the entirety of the evidence, both direct and circumstantial,
establishes that the fact or causation sought to be proved is more probable than not.

APPLICATION: Here, the circumstantial evidence was not establish to prove the cause the Π’s
fall from the bridge, but there is more than likely that the Π did not go over the bridge intentional
because (1) Π did not commit suicide due to plans and preparation made for the hunting trip (2)
Π had little money or values on it to suggests being push by another (3) barroom patron testified
of no hostility toward him or by him to another (4) wasn’t struck by a vehicle and knocked over
the rails suggesting Π must have accidently fall over the bridge. Second, whether the Δ’s failure
to build the railings to its minimum requirement was the cause of the Π’s death is unknown,
what is known is that the DOTD’s failed to built the railings according to the AASHTO
minimum specifications and one could reasonably concluded that a railing built to a person
center of gravity could have possibly prevent an accidental fall.

CONCLUSION: A railing built to the AASHTO’s standard would have prevented the Π’s death
when he approached the railings at a sharp angle.
Lyons v. Midnight Sun Transportation Services, Inc

FACTS: The Π’ wife was killed when her car was struck broadside by the Δ’s truck. The Π’s
wife had pulled out of a parking lot into the traffic lane when Δ noticed her braked and steered to
the left, but the Π’s wife continued to pull out further into the traffic lane. The Δ’s truck collided
with the car.

The Π filed suit, asserting that the Δ had been speeding and driving negligently. Experts
testimonies were introduced in court and the jury was given the sudden emergency doctrine. The
jury found for the Δ, even thou he had been negligent, but his negligence was not the cause of the
accident. Π appeals, arguing that the court should not have given the sudden emergency
instruction.

RULE: Duty, breach of duty, causation, and harm are the separate and distinct elements of a
negligence claim, all of which must be proven before a Δ can be held liable for the Π’s injuries.

APPLICATION: Here, the Δ was speeding and driving negligently, when he struck the Π’s car.
Experts testimonies revealed the accident would have happened regardless because the Π’s wife
abruptly pull out of the parking lot into oncoming traffic lane. Since all elements of a negligence
claim is needed to find fault, the Δ’s negligence was not the not the proximate cause of the
accident and causation is needed to prove negligence.

CONCLUSION: Therefore, the Δ’s negligence was not a contributing factor.

Kingston v. Chicago & Northwestern Railroad Co.

FACTS: The Π’s property was destroyed by a northeast fire set by sparks from the Δ’s
locomotive and a northwest fire of an unknown origin. The jury found both fire to be the
proximate cause of the Π’s property.

ISSUE: Whether the Δ’s company, which is found to have been responsible for the origin of the
northeast fire, escapes liability, because the origin of the northwest fire is unknown.

RULE: Where one of two or two or more joint tort-feasors, or one of two or more wrongdoers
whose concurring acts of negligence results in injury, are each individually responsible for the
entire damage resulting from their joint or concurrent acts of negligence.

APPLICATION: Here, the northeast fire was set by sparks omitting from the Δ’s locomotive
while this fire is part of a two-part fire that the destroyed the Π’s property. Each individual act of
negligence will be treated as separate entities for which the cost is then apportion to them. In this
case, while the origin of the northwest fire is unknown, the origin of the northeast fire was
caused by the Δ, subsequently, is the proximate cause of the accident and liable for the damage.

CONCLUSION: Therefore, the northeast fire was a proximate cause of the Π damage and
sufficient to affirm the judgment of the court.
Brisboy v. Fireboard Paper Products Corporation

FACTS: The Π alleged that her husband died as a result of lung cancer caused by asbestosis
contracted during his 26 yrs career as an asbestos insulation worker. Π seeks damages for the
wrongful death of her husband. Plaintiff named nine other defendants but settled with all except
the defendant. Testimonies showed that (1) Π had worked for Δ between six-nine month (2)
during those period was expose to air that was “very, very dusty” while working with no way to
prevent breathing it in and (3) Π was a heavy cigarette smoker, who smoked two packs per day
for 30 years.

The jury verdict found the Δ’s negligence in failing to warn the Π’s husband of the
danger of working with asbestos products to be the proximate cause of his death. Δ appealed
claiming there was insufficient evidence to establish (motion for direct verdict) the Π’s exposure
to asbestos product was a proximate cause of his death.

ISSUE: Whether the Π’s six-nine months career with the Δ exposure to asbestos product was
not the proximate cause of his death, but rather it is the two packs of cigarette per day smoke by
the Π.

RULE: An actor will not be held liable for his negligent conduct unless that conduct was a legal
or proximate cause of the harm to the plaintiff. There may be more than one proximate cause of
an injury, and thus the mere fact that some other cause concurs, contributes, or cooperates to
produce the injury does not relieve any of the parties whose negligent conduct was one of the
causes of the plaintiff’s harm

An actor’s negligent conduct will not be a legal or proximate cause of the harm unless
that conduct was a substantial factor in bringing about the harm. One of the considerations in
determining whether an actor’s conduct was a substantial factor in bringing about the harm to
another is the “number of other factors which contribute in producing the harm and the extent of
the effect which they have in producing it.”

APPLICATION: Here, the Π had (1) worked with asbestos for 26 years (2) Π had worked for Δ
between six-nine month and during those period was expose to air that was “very, very dusty”
while working with no way to prevent breathing it in and (3) Π was a heavy cigarette smoker,
who smoked two packs per day for 30 years. In light of this evidence, autopsy suggests the Π
died from cancer resulting from the asbestos and there was a massive amount of it in his lungs
whether the fibers that caused the death came from the Δ was established, but what was
established is that exposure to asbestos need not be extensive and, in fact, even one month of
exposure may cause asbestosis and ultimately caused death. The Π worked for the Δ between six
–nine month and considering the other possible caused of the Π’s death, the exposure from
asbestos is more than likely the predominant effect.

CONCLUSION: Therefore, there was sufficient evidence in plaintiff’s favor to withstand a

motion for directed verdict because the Π was heavily exposed to Δ’s product for six to nine
months.
Shinn v. Allen

FACTS: The Δ was picked up by his friend, who supposedly is not a close buddy but
nevertheless decided to hang out. Both were under 21 bought some beers. The Δ did not buy the
beer or arrange for the purchase of the beer. They both had couple of bottles at the friend’s house
at which point the Δ asked the friend to take him home. The vehicle was driven by the friend, in
which the Δ was a passenger, collided with the Π’s car. The Π’s husband was killed and the Π
was also seriously injured.

The Π sued the Δ for negligence, alleging the Δ substantially assisted or encouraged an
intoxicated person to drive an automobile on public roads that resulted in the collision that killed
her husband and injured her. The Δ moved for a summary judgment contending he owed no duty
to the Π and was granted. The Π appealed alleging the trial court erred in granting the motion for
summary judgment because the evidence established the existence of both a duty and a question
of material fact under the concert-of-action theory of liability.

ISSUE: Whether the evidence presented was sufficient to establish that Δ substantially assisted
or encouraged a tortuous act and therefore breached the concert-of-action theory of duty.

RULE: For harm resulting to a third person from the tortuous conduct of another, one is subject
to liability if he (a) does a tortuous act in concert with the other or pursuant to a common design
with him (b) knows the other’s conduct constitutes a breach of duty and gives substantial
assistance or encouragement to the other in accomplishing a tortuous result (c) gives substantial
assistance to the other in accomplishing a tortuous result and his own conduct, separately
considered, constitutes a breach of duty to the third person. Five factors determine whether the
defendant substantially assisted the wrongdoer: (1) the nature of the wrongful act (2) the kind
and amount of the assistance (3) relation of the parties (4) presence or absence of the defendant
at the occurrence of the wrongful act (5) defendant’s state of mind

APPLICATION: Here, the Δ was in the car that collided with the Π’s car. Five factors are
looked at to determine what substantial assistance or encouragement was offer by the Δ. First,
the nature of the wrongful act, which was deter or antisocial behavior that is likely to cause
serious injury to a person or certain harm to a large number of people. In this instant case,
driving while intoxicated is an antisocial and dangerous behavior likely cause serious injury.
Second, the kind and amount of the assistance, the Δ did not arrange, buy, paid, or encourage the
friend in anyway. Third, relation of the parties, the Δ was not a close friend to faggard and had
only decided to meet up that one day. Four, presence and absence of the defendant, The Δ was
presence in the car at the time of collision but mere presence that the time of occurrence and
failure to object is not prove of fault. Fifth, defendant’s state of mind, there is contested facts as
to whether the Δ knew about the friend intoxication. And, also in regards to the plaintiff
additional cases to support her claim, the court held that there are factual distinguishable in those
cases particularly to the fact that there was more direct assistance.

CONCLUSION: Therefore, after reviewing the summary judgment in the context of the five
factors, evidence conclusively disproves that the Δ substantially assisted or encourage the driver
or breached the concert of action theory.
Summers v. Tice

FACTS: The defendants and the plaintiff were hunting quail with a shotgun on the open range.
One of the defendants flushed out a quail which rose attempting to fly at that point both
defendant shot at the quail, shooting in the plaintiff’s direction. One shot struck the plaintiff in
his eye and the other in his upper lip.
The judge (bench trial) found against the defendants and each defendant appealed the
case from the judgment against them in an action for personal injuries.

ISSUE: Whether both defendants are negligent and equally liable for the injury regardless of
whose gun the shot originated from.

RULE: For the purpose of negligence, where a group of persons are on a hunting party, or
otherwise engaged in the use of firearms, and two of them are negligent in firing in the direction
of a third person who was injured thereby, both of those so firing are liable for the injury
suffered by the third person, although the negligence of only one of them could have caused the
injury.

APPLICATION: Here, both defendants shot at the direction of the plaintiff with one shot
hitting him his eye and another hitting in his upper lips. While the major injury occurred from the
shot to the eye, trying to distinguish which gun the shot came from can be difficult. For the
plaintiff to prove that is unfair because it put the plaintiff in the position of pointing out which
defendant caused the harm. Since, both independently shot towards the plaintiff, they both can
be held independently has being negligent. Subsequently, deciding what shot can from what
bullet is apportioned to both defendants to figure out among them.

CONCLUSION: Therefore, if defendants are independent tort feasors and thus each liable for
the damage caused by him alone, and, at least, where the matter of apportionment is incapable of
proof, the innocent wronged party should not be deprived of his right to redress.
Burke v. Schaffner

FACTS: The defendant was pinned down when a pickup truck suddenly accelerated causing the
plaintiff to sustain serious injuries. The plaintiff filed a complaint against the defendant has a
lone defendant.
The defendant filed a motion for summary judgment, but was denied by the trial court
holding there existed a genuine issue of material fact as to who hit the accelerator. Jury returned
a verdict in favor of the defendant has not been negligent. The plaintiff appealed arguing the
court erred in failing to grant their motion for a directed verdict.

ISSUE: Whether the doctrine of alternative liability is applicable in this case when there is a sole
defendant.

RULE: Under the doctrine of alternative liability, plaintiff must still prove that (1) two or more
defendants committed tortuous acts (2) plaintiff was injured as a proximate result of the
wrongdoing of one of the defendants. Only then will the burden shift to the defendant to prove
that his action did not the cause of the plaintiff’s injuries and then shift to the liability to the other
party

APPLICATION: Here, the plaintiff could not establish which of the two people in the car
stepped on the accelerator. And having settled with the potential tort-feasor, they nevertheless
brought suit against the lone defendant because the rule of alternative liability required that two
or more defendants committed the tortuous act, there is only one defendant and only one tortuous
act in this case. And, also both defendant must be included in the suit. As a result there is no
other defendant for the burden to shift.

CONCLUSION: Therefore, the trial court properly ruled that alternative liability was
inapplicable under these circumstances subsequently the court did not erred in dismissing the
motion for a directed verdict, since a reasonable minds could differ in conclusion who, if anyone,
was negligent.
Hymowitz v. Eli Lilly and Company

FACTS: The plaintiff’s were injured by DES ingested by their mothers during pregnancy.
Records indicate DES is a synthetic substance that mimics the effect of estrogen. It was later
approved to treat various maladies, not directly involving pregnancy. It was later approved for
preventing miscarriages, and finally, accepted as generally safe for pregnancy. Evidence later
surfaced indicating latent effects of the drug upon the offspring of the mother who took the
drugs. Test indicated that DES caused vaginal adenocarcinoma, a form of cancer, and adenosis, a
precancerous vaginal or cervical growth.
Plaintiffs seek relief against the defendants. The defendants appealed moving for
summary judgment dismissing the complaints because plaintiffs could not identify the
manufacturer of the drug that allegedly injured them. The trial court denied all motions and the
appellate court affirmed that the decision.

ISSUE: Whether a DES plaintiff may recover against a DES manufacturer when the
identification of the producer of the specific drug that caused the injury is impossible.

RULE: Is the modification to the alternative liability called the Market Share Theory using the
national market, which is based on the overall risk produced, and is not causation in a single
case, there should be no exculpation of a defendant who, although not a member of the market
producing DES for pregnancy use, appears not to have caused a particular plaintiff’s injury.
It is more appropriate that the loss be borne by those that produced the drugs for the use
during pregnancy, rather than by those who were injured by the use, even where the precise
manufacturer of the drug cannot be indentified in a particular action.

APPLICATION: Here, the plaintiffs seek remedy for the injuries caused by the DES drug and
this situation the plaintiffs are unable to locate the precise manufacturer of the drug taken by
their mothers because there are too many of manufacturers. This lead the court to established a
new test that loosened the requirement that all defendants be present in court and instead made a
substantial share sufficient and that each manufacturer must proven its drugs did not caused the
harm and those that are unable to do that will be liable.
CONCLUSION: Therefore, it is merely a windfall for a producer to escape liability solely
because it manufactured a more identifiable pill, or sold only to certain drugstores. These
fortuities in no way diminish the culpability of a defendant for the marketing the product.
Liability of DES producers are several only, and should not be inflated when all participants in
the market are not before the court in a particular case
Black v. Abex Corp

FACTS: The plaintiff’s husband was auto mechanic who died of lung cancer.
The plaintiff sued forty-eight asbestos asserted that her husband died due to occupational
exposure to asbestos-containing products. Included in her complaint were the claims based upon
market share and alternative liability. The court dismisses her claim because the plaintiff failed
to raise a genuine issue of material fat which would preclude summary judgment. Π appealed
from a summary judgment dismissing her wrongful death and survival claims premised on
market share and alternative liability.

ISSUE: Whether the Π has raised a genuine issue of material fact on the issue of fungibility.

RULE: The requirements for market share liability is: (1) injury or illness occasioned by the
fungible product (identical type product) made by all the defendants joined in the lawsuit; (2)
injury or illness due to a design, with each having been found to have sold the same type of
product in a manner made it unreasonably dangerous; (3) inability to identify the specific
manufacturer of the product or products that brought about the plaintiff’s injury or illness; and
(4) joinder of enough of the manufacturers of the fungible or identical product to represent a
substantial share of the market.

APPLICATION: Here, the plaintiff relying on the wheeler case asserts that the product does not
have to be identical as long as the maintained roughly the same qualities of a type of asbestos
fiber. The plaintiff could not demonstrate that the defendants’ products created a singular risk
factor which is a requirement of the market share liability the fungibility of the manufacturers’
products. In this case, the product were not the same, therefore the risk caused was not the same

CONCLUSION: Therefore, the Π failed to present competent, admissible evidence from which
a fact finder could determine the friction products her husband was exposed to carried equivalent
risks of harm and were fungible under Sindell.