Williams v. Bright Supreme Court of New York, Appellate Division, First Department230 A.D.

2d 548 (1997) Parties and Roles: Gwendolyn Robbins (plaintiff) was a passenger in a car driven by her 70year-old father, Charles Williams (plaintiff), on an upstate highway when it veered off the road and overturned. Dispositive and Material Facts: Gwendolyn Robbins (plaintiff) was a passenger in a car driven by her 70-year-old father, Charles Williams (plaintiff), on an upstate highway when it veered off the road and overturned. Robbins, a practicing Jehovahs Witness, suffered a severely damaged hip and knee. Due to her religious beliefs, she refused to undergo recommended surgeries to alleviate the injuries because it required her to receive blood transfusions. Procedural History: Robbins brought suit against the lessor of the vehicle, Bright (defendant). The jury found Bright negligent and Bright appealed. Bright did not contest liability, but objected to Robbins failure to mitigate damages due to her religious beliefs. Substantive or Procedural Issue: May a jury hear and consider evidence of a plaintiffs religious beliefs in determining whether the plaintiff acted reasonably in an action which otherwise requires a plaintiff to mitigate damages? Holding: A jury may hear and consider evidence of a plaintiffs religious beliefs in determining whether the plaintiff acted reasonably in an action which otherwise requires a plaintiff to mitigate damages. Reasoning: Yes. It is well established in New York that a party claiming to have suffered damage by the negligent conduct of another is bound to use reasonable and proper efforts to make the damage as small as practicable. If an injured party allows the damages to be unnecessarily enhanced, he should be responsible for the incurred loss. The standard jury instruction relating to damage mitigation utilizes the reasonably prudent person standard. Here, the trial court, over the objections of Bright, used the reasonable Jehovahs Witness standard. Consequently, the trial court perceived the issue as involving Robbins fundamental right to the free exercise of her religion as protected by the First Amendment to the U.S. Constitution and held that if the jury were permitted to assess Robbins refusal to accept surgical intervention without total deference to her religious beliefs, it would unlawfully restrain the free exercise of her beliefs. In doing so, the trial court erred. The issue is whether the consequences of Robbins religious beliefs must be paid for by someone other than Robbins. However, the jury never heard evidence related to the rationale or sincerity of Robbins religious convictions, nor how universally accepted they might be. The state has a compelling interest in assuring that civil proceedings are not improperly advantaged or disadvantaged by adherence to a particular set of religious practices. However, the trial courts outright acceptance of Robbins religious beliefs basically amounted to a directed verdict. Decision: Reversed and remanded for new trial. Notes: Eggshell plaintiff rule, or avoidable consequences rule

Coyne v. Campbell Court of Appeals of New York183 N.E.2d 891 (1962) Parties and Roles: Coyne (plaintiff); Campbell (defendant) Dispositive and Material Facts: In 1957, Coyne (plaintiff), a practicing physician and surgeon, sustained a whiplash injury when his vehicle was struck in the rear by a vehicle driven by Campbell (defendant). Thereafter, Coyne received medical treatment, physiotherapy, and care from his professional colleagues and nurse, and incurred no out-of-pocket expenses. Procedural History: Coyne sued Campbell for negligence and requested $2,235 in special damages for the medical expenses and nursing care provided. The trial court held that the amount was not allowable and that Coyne was not entitled to any recovery. Coyne appealed. Substantive or Procedural Issue: Are free medical services provided to a plaintiff recoverable in a negligence action for damages, or do they need to be from some sort of preexisting benefits program such as Social Security? Holding: Free medical services provided to, or on behalf of, a plaintiff are not recoverable in a negligence action for damages. Reasoning: No. In Drinkwater v. Dinsmore, 80 N.Y. 390 (NY Ct. of App. 1880), the court held that a plaintiff seeking recovery for medical expenses was limited to those expenses for which he paid. There, the court stated that the plaintiff must show what he paid the doctor, and can recover only so much as he paid or was bound to pay. Id. at 393. Here, the medical services and nursing care provided to Coyne were provided free of charge. Coyne testified he did not have to pay for the services and any moral obligation the physicians felt to perform the services will not support a claim for legal damages. Decision: The judgment of trial court is affirmed. Concurrence: If Coyne were allowed to recover for free services he would be receiving double recovery, or an undue windfall. Dissent: While monetary damages are awarded in a personal injury action to compensate a plaintiff, a defendant should be required to pay for the incurred medical expenses and not allowed to deduct benefits which the plaintiff may have received from another source. Healy v. Rennert, 173 NE 2d 777 (NY Ct. of App. 1961). There is no real difference between the facts in Healy and the facts here. Moreover, there should really be no distinction between medical services paid for and those provided free of charge. Notes: The Collateral Source Doctrine: The Collateral Source rule mandates that damages awarded in court cannot be reduced by any amount of other sources of income used to cover the damages suffered by the victim.

Ruzzi v. Butler Petroleum Company Supreme Court of Pennsylvania588 A.2d 1 (1991) Parties and Roles: Ruzzi (plaintiff) was servicing a sign at a gas station owned by Zinsser (defendant) and supplied with fuel by Butler Petroleum Company (Butler) (defendant) Dispositive and Material Facts: Ruzzi (plaintiff) was servicing a sign at a gas station owned by Zinsser (defendant) and supplied with fuel by Butler Petroleum Company (Butler) (defendant), when used fuel tanks near the sign exploded. Ruzzi was permanently injured. Procedural History: Ruzzi brought suit against Zinsser, Butler, and Shockey (defendant), the fuel tanks vendor. At trial, Ruzzi called an expert, Jarrell, who testified as to Ruzzis loss of earning capacity. At the time of trial, Ruzzi was employed by AMG Sign Company at a less physically demanding job, but earning the same salary he made prior to his injury. A jury found Butler and Shockey liable and both appealed. The appellate court affirmed and the defendants appealed to the states supreme court. Substantive or Procedural Issue: To determine loss of earning capacity for a permanently injured plaintiff, must the whole span of life be considered to determine whether the plaintiffs economic horizon has been diminished? Holding: To determine loss of earning capacity for a permanently injured plaintiff, the whole span of life must be considered to determine whether the plaintiffs economic horizon has been diminished. Reasoning: Yes. Shockey argues that the trial court erred in imposing liability because, at the time of the trial, Ruzzi was making the same salary he made prior to his injury. However, Shockey fails to understand the difference between actual loss of earnings and loss of earning capacity. In Bochar v. J.B. Martin Motors, Inc., 97 A.2d 813-815 (Pa. 1953), the court held that a defendant was not entitled to a reduction in damages simply because the injured plaintiff was earning the same, or more than, prior to his injuries. It is not a persons current injury status that determines his capacity for gainful employment. Rather, when there is a permanent injury involved, the whole span of life must be considered. A determination must be made whether, due to the injuries sustained, the injured plaintiffs economic horizon has been shortened. The fact that Ruzzi was fortunate enough to earn the same at a new and less physically demanding job does not establish a loss of earning capacity. Additionally, Shockey argues that Jarrells expert testimony is inadmissible because it went beyond the scope of Jarrells pretrial report. More specifically, Shockey claims that because the pretrial report did not address diminished earning capacity it barred Jarrell from providing testimony on that issue. Jarrell stated in his pretrial report that Ruzzi was permanently injured and would never be able to perform work of the type he had performed before the accident. Instead, Ruzzi would be limited to light duty work allowing for frequent position changes. At trial, Jarrell testified that, according to a number of studies, the impaired and handicapped individual suffered a loss of 17 percent earning capacity compared to the earnings of a non-impaired, nonhandicapped employee. Jarrells report described not only the nature of Ruzzis injuries but also, in his opinion, what would happen to him if he was forced to compete in an open job market and predicted that Ruzzi would earn no more than 82 percent of his former salary. Thus, Jarrells trial testimony was within the scope of his pretrial report.

Decision: The judgment of the appellate court is affirmed.

Mauro v. Raymark Industries, Inc. Supreme Court of New Jersey561 A.2d 257 (1989) Parties and Roles: Mauro and his wife Lois (plaintiffs) brought suit against Raymark Industries, Inc. (Raymark) (defendant) and other manufacturers of asbestos products for future damages related to his contracting cancer. Dispositive and Material Facts: Roger Mauro participated in tests conducted by the New Jersey Department of Health to determine the prevalence of asbestos-related disease among plumbers and steamfitters in state institutions. During this time, Mauro was informed by a physician that he had bilateral thickening of both chest walls and calcification of the diaphragm. The physician told Mauro that his exposure to asbestos had been significant and that there was evidence that this exposure may increase his risk of developing lung cancer. Mauro was very upset upon hearing the news and subsequently consulted a pulmonary specialist every six months to find out if and when he was going to get cancer. Procedural History: Mauro and his wife Lois (plaintiffs) brought suit against Raymark Industries, Inc. (Raymark) (defendant) and other manufacturers of asbestos products for future damages related to his contracting cancer. The trial court instructed the jury that there was no evidence at that time to suggest that Mauro would absolutely get cancer and that they could not award damages for the future, enhanced risk of developing cancer. The trial court did permit the jury to consider Mauros claims for damages caused by emotional distress related to his fear of developing cancer and for damages caused by his present medical condition and the cost for future medical surveillance. The jury awarded Mauro $7,500 and he appealed. The appellate court affirmed the trial courts judgment. Mauro appealed to the states supreme court. Substantive or Procedural Issue: In New Jersey, are prospective damages recoverable if they are reasonably probable to occur? Holding: In New Jersey, prospective damages are recoverable only if they are reasonably probable to occur. Reasoning: Yes. In New Jersey, it is well settled that prospective damages are not recoverable unless they are reasonably probable to occur. However, there are policy considerations against imposition of the rule. First, deferring an enhanced-risk claim may result in a plaintiff unable to recover damages due to a defendants claim that intervening events or causes were the cause of a plaintiffs injury. Second, recognition of a claim for significantly enhanced risk of disease might allow courts and companies to deter the improper use of toxic chemicals and substances, thereby addressing the claim that tort law cannot deter polluters who view the cost of proper use or disposal as exceeding the risk of tort liability. The downside, however, is that proof of future disease may result in damages awarded for diseases that will never occur. Such results exact a societal cost in the form of higher insurance premiums and higher product costs. A line must be drawn. Allowing plaintiffs to bring actions for a present injury, not a speculative claim for future injury, allows juries to better award damages in an amount that fairly reflects the severity of a plaintiffs injury. Decision: The judgment of the appellate court is affirmed.

Grayson v. Irvmar Realty Corp. Supreme Court of New York, Appellate Division, First Department7 A.D.2d 436 (1959) Parties and Roles: Grayson (plaintiff), a 21-year-old aspiring opera singer, fell in front of Irvmar Realty Corporations (Irvmar) (defendant) premises, suffering a fractured leg and hearing loss when her head hit the pavement. Dispositive and Material Facts: Grayson (plaintiff), a 21-year-old aspiring opera singer, fell in front of Irvmar Realty Corporations (Irvmar) (defendant) premises, suffering a fractured leg and hearing loss when her head hit the pavement. Grayson brought suit against Irvmar for negligence in its failure to properly light a construction sidewalk bridge and sought damages for loss of future earnings. At the time of her injury, Grayson had graduated from high school and had been studying music and singing since she was a young child. She also had five years of instrumental instruction. In her later years Grayson had a professional voice instructor and studied under an opera coach. She also participated successively in operatic workshops which required her to learn various foreign languages associated with classic opera. At trial, Graysons voice teacher and opera coach testified that she had a superior voice and a bright future. Procedural History: A jury awarded Grayson $50,000 in damages and Irvmar appealed. Substantive or Procedural Issue: May an individual possessing special or rare talent recover damages for loss of future earnings if the damages are measurable and not excessive? Holding: An individual possessing special or rare talent may recover damages for loss of future earnings if the damages are measurable and not excessive. Reasoning: Yes. It is well established that an injured plaintiff may recover damages for lost future earning capacity. However, it is not as well settled whether damages may be awarded based on the future earnings of someone not yet engaged in the particular profession. An individual who possesses rare and special talents is entitled to recover damages for injury to the development of those talents if there was potential for success prior to incurring the injury. Here, while Grayson certainly possessed measurable talents, the jurys award of $50,000 in damages was excessive. Although Grayson has been able to continue studying music and even has had a number of performances, she claims that the impairment to her hearing, specifically pitch, has diminished her abilities and is likely to be permanent. Her claim is supported by testimony provided at trial by her voice instructor and medical expert. Conversely, there was highly credible proof from a physician selected by Irvmar from the court-designated panel to the effect that any impairment of hearing Grayson had was due to a diseased condition which existed before the accident. The jury could have accepted this testimony, but it did not. Any aspiring artist, singer, or actor has a highly speculative future. In determining the amount that should be recovered for loss of future earnings, a jury should consider (1) the gifts attributed to the plaintiff; (2) the training received; (3) the training the plaintiff is likely to receive; (4) the opportunities she is likely to have in the future; (5) the realization that opportunities may be limited to a few; and (6) the realization that there may be many other risks and contingencies that may divert an aspiring vocal artist from her career. Here, Grayson was very serious about her future career as an opera singer, but she had not yet achieved any spectacular or extraordinary recognition for her talents. Based on this, any award in excess of $20,000 is excessive. Decision: The judgment of the trial court is modified with respect to damages and affirmed.

Walters v. Hitchcock Kansas Supreme Court697 P.2d 847 (1985) Parties and Roles: In 1979, a lump was discovered on the neck of Lillian Walters (plaintiff) by her family physician. At the time, Walters was 32-years-old, not employed, and married with four minor children. Thereafter, Walters was seen by surgeon, Dr. C. Thomas Hitchcock (defendant), who recommended a surgical removal of the diseased areas of Walters thyroid gland. Dispositive and Material Facts: Hitchcock informed Walters that the procedure was low risk with an anticipated three-day hospital stay afterwards. Following the procedure, Walters condition rapidly deteriorated: her head swelled, she lost her vision, and she suffered extreme respiratory distress. Walters was taken to the intensive care unit where a breathing tube was inserted. Hitchcock was notified by the hospitals pathology department that a piece of Walters esophagus was connected to the thyroid specimen he had sent to the lab during her surgery. Subsequently, Hitchcock reopened Walters wound and observed a significant hole in her esophagus that was not repairable. Hitchcock permanently closed Walters esophagus. Procedural History: Walters brought a medical malpractice action against Hitchcock and sought $4 million in damages. A jury awarded Walters $2 million in damages, and Hitchcock appealed. Substantive or Procedural Issue: Will an appellate court uphold a jury verdict in a medical malpractice action so long as the award amount does not shock the conscience? Holding: An appellate court will uphold a jury verdict in a medical malpractice action so long as the award amount does not shock the conscience. Reasoning: Yes. After Walters esophagus was permanently closed by Hitchcock, she was only able to obtain nutrition via a tube inserted directly into her stomach. While Walters regained her vision after her second surgery, she was required to undergo a number of surgical procedures and hospitalizations thereafter due to the negligence of Hitchcock. Hitchcock first argues that Walters counsel made inappropriate comments during his closing argument, stating [w]ho would sell their esophagus for $4 million? I would not sell mine. Hitchcock argues that the statement constitutes a prohibited golden rule argument. The term golden rule relates to improper arguments made by counsel that jurors should place themselves in the position of the plaintiff. Walters counsel argues that the remarks were not asking that the jurors place themselves in Walters position, but were merely hypothetical in nature. To constitute reversible error, there must be some likelihood that the improper remarks changed the result of the trial. Here, the remarks were both proper and improper, but the improper remarks are harmless in nature. First, counsels statement beginning with who would sell is a fair argument relative to claimed damages and is not a golden rule argument. However, counsels comment that he would not sell his esophagus is his opinion, is testimonial in nature, and was improper but does

not rise to reversible error. Next, Hitchcock argues that the jurys award of $4 million is excessive. Hitchcock states that Walters did not seek damages for lost wages or diminished future earning capacity and that her medical bills only totaled about $59,000 with no significant medical intervention expected in the future. Although Walters is not expecting to undergo future surgical procedures, that does not mean that the damage done to Walters can be undone. When Walters now swallows food, it does not automatically go into her stomach. Instead, it piles up in bulges in her throat and upper chest. Walters must manually massage the bulges downward to force the food into her stomach. The process is physically painful and will continue for the rest of her life. At trial, her life expectancy was 41.9 years. Walters condition is embarrassing, distasteful to those around her, and is a major obstacle to leading a normal life. The size of the $2 million jury verdict does not shock the conscience and is thus appropriate. Decision: The judgment of the trial court is affirmed. Dissent: The magnitude of the verdict is the result of trial error and possible misconduct by the jurors. The $2 million jury verdict included $1,940,000 in general damages for pain and suffering. That would provide Walters with about $48,000 annually for the remainder of her life. Assuming that one-half of the damage award is paid on expenses and attorneys fees, the remaining $1 million could be invested at 10 percent and provide an annual income of $100,000 without invading the principal sum. In Kirk v. Beachner Construction Co., Inc., 522 P.2d 176 (Kan. 1974), the court ruled that a jurys verdict must be reasonable and not overly compensate a plaintiff. The majority here erred in affirming the excessive jury verdict rendered.

McDougald v. Garber Court of Appeals of New York536 N.E.2d 372 (N.Y. 1989) Parties and Roles: Emma McDougald (plaintiff) underwent a Cesarean section and tubal ligation in 1978. The procedures were performed by Garber (defendant), and anesthesia was performed by Armengol and Kulkarni (defendants). During the surgery, McDougald was deprived of oxygen and suffered brain damage leaving her in a permanent coma. Dispositive and Material Facts: In the P.H. Procedural History: McDougald and her husband brought derivative actions against all defendants alleging malpractice. The jury awarded McDougald a total of $9,650,102 in damages, including $1,000,000 for conscious pain and suffering and a separate award of $3,500,000 for loss of the pleasures and pursuits of life. Her husband received $1,500,000. The remainder damages were awarded for economic losses. In a post-trial motion, the trial judge reduced McDougalds award to $4,796,728 by striking her award for future nursing care and reducing separate awards for conscious pain and suffering and loss of the pleasures and pursuits of life to a single award of $2,000,000. The appellate division affirmed, and the defendants appealed primarily on the issue of the award to McDougald for nonpecuniary damages involving her conscious pain and suffering and loss of the pleasures and pursuits of life. The parties agreed McDougald could not recover for pain and suffering unless she was conscious of her pain. The defendants argued she also could not recover for loss of enjoyment of life unless she was conscious of her loss. The trial court permitted recovery without proof of this consciousness, which is the primary issue raised by the defendants on appeal. Substantive or Procedural Issue: Whether some degree of cognitive awareness of loss by the plaintiff is a prerequisite to recovery for loss of enjoyment of life. Holding: Some degree of cognitive awareness of loss by the plaintiff is a prerequisite to recovery for loss of enjoyment of life. Reasoning: Yes. A new trial is needed to determine whether MacDougald had no cognitive awareness of her loss of enjoyment of life due to her injuries, and thus may not recover damages for this end. Some degree of cognitive awareness of loss by the plaintiff is a prerequisite to recovery for loss of enjoyment of life. However, the finder of fact does not need to determine the level of awareness of loss at which compensation stops. Rather, the finder of fact must find that some level of awareness exists to impose damages based on loss of enjoyment of life. If it is appropriate to award damages for loss of enjoyment of life, the trial court need not impose an award for this amount separate from a general award for pain and suffering. Loss of enjoyment of life can encompass part of the frustration for which pain and suffering damages are appropriate. The primary goal of damages is compensation to the victim, or restoring the victim to the place he or she would have been had the defendants action never occurred. This compensation can include both pecuniary (economic) and nonpecuniary damages. Nonpecuniary damages are those damages awarded to compensate an injured person for the physical and emotional consequences of the injury, such as pain and suffering and the loss of the ability to

engage in certain activities. However, nonpecuniary damages are limited when they cease to serve the tort goals of compensating the victim. When that limit is met, any further nonpecuniary damages assessed become punitive and thus not compensatory in nature. An award of damages based on loss of enjoyment of life to a person whose injuries preclude any awareness of the loss does not serve a compensatory purpose. This is because the award has no meaning or utility to the injured person. If McDougalds condition is so severe that she has no cognitive awareness of her loss of enjoyment of life, she may not recover pain and suffering damages encompassing this measure of recovery. Decision: A new trial is needed to determine whether McDougalds injuries are so severe as to preclude her awareness of her loss of enjoyment of life. Dissent: Loss of enjoyment of life should be treated as an objective measure of damages that is separate from the subjective award of damages for pain and suffering. Thus, the trial court did not commit error in authorizing a separate award for loss of enjoyment of life even in the absence of any awareness of the loss on the part of the injured person. Notes: Non-pecuniary Damages: Compensatory damages intended to compensate the injured party for the physical and emotional consequences resulting from the injury, such as pain and suffering.

Hoyt v. Jeffers Michigan Supreme Court30 Mich. 181 (1874) Parties and Roles: Jeffers (defendant) owned and operated a saw mill. The mill had a chimney from which sparks were seen to escape regularly. The mill was located near a hotel owned and operated by Hoyt (plaintiff). Dispositive and Material Facts: Jeffers (defendant) owned and operated a saw mill. The mill had a chimney from which sparks were seen to escape regularly. The mill was located near a hotel owned and operated by Hoyt (plaintiff). Hoyts hotel caught fire and burned down. No one saw the fire begin or what caused the fire, but Hoyt believed sparks emanating from Jeffers mill through its chimney caused the fire. Jeffers had increased the height of the chimney just prior to the fire, but sparks had been seen to escape both before and after the chimney was changed. Procedural History: Hoyt filed suit and the matter went to trial. Hoyt was permitted to introduce evidence showing that sparks had escaped from the chimney on previous occasions, that there had been previous fires due to the sparks, that the hotel had been set on fire previously due to the sparks, and that clothes hanging on clothes lines near the mill had often had holes burnt in them or were sooty due to the sparks. Jeffers objected to the entry of the evidence, claiming that the chimney had been substantially changed since the incidents referred to in Hoyts evidence. The jury entered a verdict for Hoyt. Jeffers appealed. Substantive or Procedural Issue: May a jury consider and base its decision upon circumstantial evidence of causation when no direct evidence has been introduced? Holding: A jury may consider and base its decision upon circumstantial evidence of causation when no direct evidence has been introduced. Plaintiff does need to prove conditions at the time of the accident need to be the same as at the time of the circumstantial evidence. Reasoning: Yes. A litigant may offer into evidence anything that would tend to prove, or is calculated to produce a reasonable belief, that the facts are as he says they are. It is the jurys duty to weigh this and all of the evidence when making a decision. In the current matter, the evidence produced by Hoyt is sufficiently calculated to produce a reasonable belief that the fire was caused by the sparks emanating from the mills chimney. Decision: Accordingly, the judgment of the trial court is affirmed. Notes: Circumstantial Evidence: Evidence submitted that does not directly establish the existence or non-existence of a fact, but which leads to an inference that a fact does or does not exist.

Smith v. Rapid Transit, Inc. Supreme Judicial Court of Massachusetts58 N.E.2d 754 (Mass. 1945) Parties and Roles: Smith (plaintiff was injured in an accident caused by a bus of Rapid Transit, Inc. (Rapid) (defendant). Dispositive and Material Facts: Smith (plaintiff) was driving her car on Main Street in the town of Winthrop. She saw a bus driving towards her, which she described as a great big, long, wide affair. Smith, trying to get out of the way of the bus, crashed into a parked car. Rapid Transit Inc. (Rapid) (defendant) had been issued a certificate by the city to operate a bus route on Main Street, which was in effect at the time of Smiths accident. Rapids certificate did not preclude private or chartered buses from operating on Main Street. Procedural History: Smith brought suit against the defendant claiming that the bus that injured her belonged to Rapid. Rapid claimed that it could have been a bus operated by someone else that caused the accident. Rapid was the only public franchise running a bus line on the street at the time accident occurred. The trial court issued a directed verdict for Rapid. Smith appealed. Substantive or Procedural Issue: Must a lawsuit be submitted to a jury when the tribunal determines that there is insufficient evidence to establish that the defendant caused the injuries of which it is accused? Holding: The tribunal is not required to submit a lawsuit to the jury when there is insufficient evidence to establish that the defendant caused the injuries of which it is accused. Reasoning: No. A plaintiff must prove his case by a preponderance of the evidence. The tribunal must have an actual belief in the truth of what the plaintiff alleges, which is derived from the evidence he introduces. In the current matter, Smith has merely established that it is likely that the bus that she saw that evening was owned by Rapid. The evidence she submitted did not preclude the possibility that a private or chartered bus could have been the one she encountered. Smith did meet her burden of proof. Decision: Accordingly, the judgment of the trial court is affirmed. Notes: Preponderance of evidence: An evidentiary standard utilized in a civil trial whereby a plaintiff must prove that the facts stated in a complaint are more likely than not to be true. The standard is much less stringent than the beyond a reasonable doubt standard applied in criminal matters. A jury question is not presented by mere mathematical probability

Summers v. Tice California Supreme Court199 P.2d 1 (Cal. 1948) Parties and Roles: Summers (plaintiff), Tice (defendant), and Simonson (defendant) went quail hunting. Dispositive and Material Facts: Summers (plaintiff), Tice (defendant), and Simonson (defendant) went quail hunting. Summers instructed both Tice and Simonson to use care when shooting. Summers walked in front of both men in the field. Tice flushed a quail out of the bushes and both he and Simonson shot at the quail in the direction of Summers. They were using birdshot. One pellet hit Summers eye and one hit his lip. It is unknown which pellet was shot by which man. Procedural History: Summers brought suit for negligence against both Tice and Simonson. The trial court entered judgment for Summers against both Tice and Simonson, and the defendants appealed. Substantive or Procedural Issue: Whether, when two defendants both serve as the proximate cause of a plaintiffs injuries but were not acting together, each defendant may be held liable for the full extent of the damage. Holding: When two defendants not acting together, either of which could be the proximate cause of a plaintiffs injuries, both may be held liable for the full extent of the damage and the burden of proof shifts to each defendant to work out a fair apportionment of damages among themselves. Reasoning: Yes. Both Tice and Simonson may be held fully liable for the extent of Summers injuries, and should determine a fair apportionment of damages among themselves. When two defendants not acting together both serve as a proximate cause of a plaintiffs injuries, both may be held liable for the full extent of the damage and the burden of proof shifts to each defendant to work out a fair apportionment of damages among themselves. When it is impossible to know which defendant was the actual cause of an injury, both must be held liable to protect the plaintiff. Otherwise, the plaintiff risks not receiving full recovery for his injuries. The defendants are usually in a much better position than the plaintiff to present evidence to exonerate themselves, and thus should bear the burden of working out a fair apportionment of damages. Both Tice and Simonson negligently fired guns in the direction of Summers, and it is impossible for Summers to know who actually hit him and caused his injuries. However, this fact should not prevent Summers from being made whole. The best way to protect Summers is to issue judgment against both Tice and Simonson, and allow the two defendants to present additional exculpatory evidence for themselves in later proceedings. Decision: The decision of the trial court holding both Tice and Simonson fully liable for Summers injuries is affirmed. Notes: Concurrent tortfeasor: One of two or more defendants potentially liable for a single injury or claim. The court flipped the burden of proof to the defendants.

Daubert v. Merrell Dow Pharmaceuticals, Inc. United States Supreme Court509 U.S. 579 (1993) Parties and Roles: Jason Daubert and Eric Schuller were minors born with birth defects. Dispositive and Material Facts: In the P.H. Procedural History: The minors and their parents (Daubert) (plaintiffs) brought suit against Merrell Dow Pharmaceuticals (Merrell) (defendant), alleging that its product, Bendectin, caused the defects. Daubert brought forth the testimony of eight scientific experts who had concluded that Bendectin could cause birth defects. However, the district court granted Merrells motion for summary judgment and the United States Court of Appeals for the Ninth Circuit affirmed because Dauberts experts opinions were based on scientific techniques that were not generally accepted in the scientific community and as a result, their testimony was not admissible under Frye v. United States (1923). The United States Supreme Court granted certiorari to determine the proper standard for admitting expert testimony of scientific knowledge. Substantive or Procedural Issue: Must an expert witnesss scientific knowledge be generally accepted in the relevant field to be admissible? Holding: Expert testimony from a qualified expert is admissible if it will assist the jury in comprehending the evidence and determining issues of fact. Reasoning: No. Frye v. United States (1923) held that an expert witnesss scientific knowledge must be generally accepted in the relevant field to be admissible. However, the Court overrules Frye because since-enacted Rule 702 and its legislative history do not mention Frye or the generally accepted test. Rule 702 provides that expert testimony is admissible if it will assist the jury in comprehending the evidence and determining issues of fact. Thus, to determine whether scientific knowledge is admissible as expert testimony, the court must make a preliminary determination under Rule 104(a) that the reasoning behind the testimony is scientifically valid and can be applied to the facts of the case. Such a determination should be made by taking into account a number of factors, including, but not limited to the following: the testability of the theory/methodology; whether the theory has been published and subject to peer review; any potential rate of error; and finally, whether the knowledge has reached general acceptance (the test laid out in Frye). Decision: Because the inquiries of the lower courts focused only on the general acceptance test from Frye, the decision of the United States Court of Appeals for the Ninth Circuit is vacated and the case is remanded for proceedings consistent with this opinion.

Frye v. United States United States Court of Appeals for the D.C. Circuit293 F. 1013 (D.C. Cir. 1923 Parties and Roles: Frye (defendant) was charged with second-degree murder. At trial, Fryes counsel sought to introduce an expert who would testify as to a systolic blood pressure deception test that the expert performed on Frye. Dispositive and Material Facts: Frye (defendant) was charged with second-degree murder. At trial, Fryes counsel sought to introduce an expert who would testify as to a systolic blood pressure deception test that the expert performed on Frye. The test would allegedly show whether Frye was lying when he testified because blood pressure allegedly rises when a person lies but stays the same when the person told the truth. Procedural History: The trial court rejected the testimony of the expert. Frye was convicted and appealed. Substantive or Procedural Issue: May expert scientific evidence be admitted if the science has gained general acceptance in the relevant scientific community? Holding: Expert scientific evidence is only admissible if the science has gained general acceptance in the relevant scientific community. Reasoning: Yes. The standard for admission of expert scientific evidence is that evidence is admissible if the science has gained general acceptance in the relevant scientific community. Here, the systolic blood pressure deception test has not gained such acceptance. Therefore, the trial court correctly excluded such evidence. Decision: Judgment affirmed. Notes: Test for the admissibility of expert testimony which finds expert testimony admissible if the scientific method on which the evidence was based was generally accepted in the relevant scientific community. It has been replaced by the Daubert test based on the Supreme Courts opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Expert scientific evidence is only admissible if the science has gained general acceptance in the relevant scientific community.

Ybarra v. Spangard Supreme Court of California154 P.2d 687 (Cal. 1944) Parties and Roles: Ybarra (plaintiff) consulted Dr. Tilley (defendant) about stomach pains. He diagnosed him with appendicitis and scheduled an appendectomy to be performed by Dr. Spangard (defendant) at a hospital owned by Dr. Swift (defendant). Dispositive and Material Facts: Before the operation, Ybarra was placed on the operating table by Dr. Reser (defendant), an anesthetist. Dr. Reser positioned him against two hard objects that supported her neck and shoulders, and administered anesthesia. After the operation, Ybarra woke up to severe pain in her neck and right shoulder. The pain increased after she left the hospital, resulting in paralysis and loss of function of her right arm. Ybarra was examined by two other doctors who stated the cause of her injury as being trauma from pressure or strain on her neck and right arm. Procedural History: Ybarra brought suit against all doctors involved on a theory of res ipsa loquitur, meaning an inference of negligence on the part of the doctors should arise from the fact of her injury. The doctors argued that where there are several defendants or instrumentalities involved in an injury-producing act, and the injury cannot actually be traced to any one defendant or instrumentality, the doctrine of res ipsa loquitur does not apply. The trial court granted a judgment of nonsuit (directed verdict) for the doctors, and Ybarra appealed. Substantive or Procedural Issue: Whether an action for damages based on the doctrine of res ipsa loquitur may ever be brought when an injury is caused by and not easily traceable to multiple defendants and instrumentalities. Holding: Where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may be held liable in an action based on res ipsa loquitur. Reasoning: Yes. The judgment of nonsuit is improper. Ybarra should not be precluded from bringing an action for res ipsa loquitur simply because multiple defendants and instrumentalities may have been involved in causing her injuries. Where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may be held liable in an action based on res ipsa loquitur. The number of those in whose care the patient is placed should not be a factor in determining whether he is entitled to all reasonable opportunities to recover for negligence. As long as the plaintiff can show an injury resulting from some external force and occurring while he was unconscious in the hospital, he should be entitled to an action based on res ipsa loquitur. An action for res ipsa loquitur states that negligence on the part of a defendant may be presumed from the mere occurrence of an accident if the accident is of a kind which ordinarily does not occur in the absence of someones negligence, is caused by an agency or instrumentality within the exclusive control of the defendant, and is not due to any voluntary action on the part of the plaintiff. Before her operation where the injury to her neck and right

shoulder occurred, Ybarra was made unconscious by Dr. Reser. Thus, any injury occurring during this time could not be due to any voluntary action on the part of Ybarra. Additionally, the injury occurred to a healthy part of her body that was not the subject of her scheduled surgery. Thus, this injury is the type that could not normally occur without some type of negligence on the part of Ybarras doctors or caregivers. The fact that Ybarra was unconscious and thus cannot absolutely identify the defendant responsible for exclusive control over her body when the injury occurred should not preclude her from recovering for damages based on res ipsa loquitur. Such a rigid application of the doctrine defies common sense and may prevent deserving plaintiffs from recovering for their injuries. Ybarra should be able to bring an action for res ipsa loquitur, and the judgment of nonsuit in favor of the doctors is improper. Decision: The judgment of the trial court is reversed and remanded. Notes: Res Ipsa Loquitur: The mere fact of an occurrence of an accident is evidence of negligence. Unlike Summers v. Tice, there is no proof that any of the specific defendants were negligent, just that one of them must have been.

Dillon v. Twin State Gas & Electric Co. New Hampshire Supreme Court163 A. 111 (1932) Parties and Roles: Dillon (plaintiff), Twin State (defendant) Dispositive and Material Facts: A 14-year-old boy and his friends often played on a public bridge, near which there were electrical wires that were owned and maintained by Twin State Gas & Electric Co. (Twin State) (defendant). On one afternoon, the boy lost his balance on the bridge and grabbed an electrical wire to stop himself from falling. The boy was killed by electrocution. Procedural History: Dillon (plaintiff) brought suit for wrongful death on the boys behalf. Twin State moved for a directed verdict. The trial court denied the motion. Twin State appealed to the New Hampshire Supreme Court. Substantive or Procedural Issue: Can one be held liable for negligence when it is possible that the decedent would have died from a different cause? Holding: One can be held liable for negligence when it is possible that the decedent would have died from a different cause. Reasoning: Yes. Damages must be established in order to maintain an action in negligence. Damages in a wrongful death claim are provided by statute and are limited to those damages only. Those statutory damages include pecuniary value of life and earning capacity. In the current matter, Twin State would be found liable if Dillon could establish damages. It was certain that the boy was going to fall from the bridge. It is possible that he could have been grievously injured and, thus, there would have been no possible future earning capacity. In such a case, there would be no damages and Twin State would not be held liable. However, it is also possible that he could have died or suffered only minor injuries from the fall. Either of the latter scenarios would permit Dillon to recover damages. Therefore, different conclusions could have been drawn from the evidence. It was proper for the trial court to deny Twin States motion for a directed verdict. Decision: Accordingly, the ruling of the trial court is affirmed. Notes: Wrongful Death: A civil action, permitted through statute, by which one may bring a negligence action on behalf of another who has died as a result of the alleged negligence.

Kingston v. Chicago & N.W. Ry. Wisconsin Supreme Court211 N.W. 913 (Wis. 1927) Parties and Roles: Kingston (plaintiff), railroad (defendant) Dispositive and Material Facts: Kingston (plaintiff) owned a piece of property. A fire was started from sparks emitted from a locomotive owned by Chicago & N.W. Ry. (railroad) (defendant). This fire was northeast of Kingstons property. At the same time, another fire was started northwest of Kingstons property. It is unknown who or what started this fire. Both fires spread, and merged into one fire north of Kingstons property. They approached and eventually destroyed the property. Procedural History: Kingston brought suit against the railroad for negligent destruction of property. The trial court held the railroad responsible for the full amount of damages and entered judgment for Kingston. The railroad appealed. Substantive or Procedural Issue: Whether, when two or more human entities both proximately caused injury to a plaintiff, the plaintiff may recover for the full amount of the injury from either one. Holding: When two or more human entities both proximately cause injury to a plaintiff, and only one is identified, the plaintiff may recover the full amount of damages suffered from the one known wrongdoer. Reasoning: Yes. The northeast fire was started by the railroad, and this is enough to hold that entity fully liable for the entire amount of Kingstons damages. When two or more human entities both proximately cause injury to a plaintiff, and only one is identified, the plaintiff may recover the full amount of damages suffered from the one known wrongdoer. The known wrongdoer may not be held fully liable, however, when the full extent of injury was also proximately caused by an act of God or natural disaster. In the case of the two fires which destroyed Kingstons property, one was conclusively started by the railroad. There is no evidence suggesting that the other fire could have been started by anything other than a human. No weather conditions or acts of God were reported. Thus, it can be assumed with moral certainty that the property damage was caused by two tortfeasors; one known and one unknown. When two torteafsors are both shown to be the proximate cause of an injury, either may be held liable for the full amount of the injury. Thus, the railroad may appropriately be held liable for all of Kingstons property damage. The railroad may have a defense if it shows that its own actions were not the proximate cause of the damage. However, this burden of proof rests entirely on the railroad. The railroad has not provided sufficient evidence to meet this burden. The northeast fire was started by the railroad and was a proximate cause of Kingstons damages. Decision: The railroad is fully liable for all damages, and the decision of the trial court is affirmed. Notes: Joint and Several Liability: Where multiple acts of negligence combine to directly cause a single harm, each tortfeasor may be held liable for up to the full amount of the damage, but that amount may be reduced proportionately by the other tortfeasor(s) relative liability.

Brown v. Kendall Supreme Court of Massachusetts 60 Mass. 292 (1850)

Parties and Roles: Brown (plaintiff), Kendall (defendant) Dispositive and Material Facts: Two dogs, owned by Brown (plaintiff) and Kendall (defendant), were fighting in front of their masters. Kendall took a large stick and began beating the dogs for the purpose of separating them. Brown was standing behind Kendall watching. Kendall took a step back and raised the stick over his head with the intent to strike the dogs. In doing so, Kendall struck Brown in the eye and caused him severe injury. Procedural History: Brown sued Kendall in an action of trespass for an assault and battery. Substantive or Procedural Issue: Whether a person is liable for injuries he causes to another if his intent is lawful and he is not at fault. Holding: A person will be liable for injuries caused by a trespass only if his intent is unlawful, or he is at fault. Reasoning: No. Kendall is not liable for Browns injuries because he did not act with unlawful intent, and was not at fault. A person will be liable for injuries caused by a trespass only if his intent is unlawful, or he is at fault. If the injury is unavoidable and the person acting does not act in an unlawful manner, there is no liability for injuries occurring incidentally to the action. If the person acting is using ordinary care, he cannot be held liable for injuries caused by his actions. Kendalls actions, in attempting to part fighting dogs, one of which he owned, was lawful. If, in performing this act, he used ordinary care in attempting to avoid injury to others, he cannot be held liable for Browns injuries. The burden of proof of showing that Kendall did not use ordinary care is on Brown. Decision: This is a question that must ultimately be resolved by a jury, and a new trial is ordered.

United States v. Carroll Towing Co. United States Court of Appeals for the Second Circuit159 F.2d 169 (2d Cir. 1947) Parties and Roles: Connors (plaintiff), United States (plaintiff), Grace (defendant), Carroll (defendant). Dispositive and Material Facts: Connors Company (Connors) (plaintiff) owned a barge called the Anna C. The barge carried a load of flour owned by the United States (plaintiff). Connors hired Carroll Towing Co. (Carroll) (defendant) to tow the barge with its tug boat. Carroll chartered its tug boat to Grace Line (Grace) (defendant), another tug company. On January 4, 1944, Connors barge was docked at Pier 51 on the North River. Connors employee who was tasked with watching the barge had gone ashore. Carrolls tug boat attempted a tricky move of the Anna C to another dock, but this maneuver failed and ultimately set loose all other boats at the dock. The boats floated down the river and the Anna C sank. Procedural History: Connors brought suit against Carroll and Grace for damages from the loss of the boat, and the United States brought suit against Carroll for the loss of the flour. At trial, Carroll and Grace defended on the ground that Connors was contributorily negligent because its employee was absent from the barge at the time of the incident. The trial judge found that Carroll, but not Grace was responsible for one-half the damage to the Anna C and for the entire loss of the flour. The parties appealed. Substantive or Procedural Issue: Whether liability for failure to take precautions to avoid harm depends upon the probability of injury and the gravity of any resulting injury. Holding: Liability for negligence due to failure to take safety precautions exists if the burden of taking such precautions is less than the probability of injury multiplied by the gravity of any resulting injury, symbolized by B < PL = negligence liability. Reasoning: Yes. Connors is contributorily negligent for its failure to take safety precautions by having an employee aboard the barge during the daylight hours. Liability for negligence due to failure to take safety precautions exists if the burden of taking such precautions is less than the probability of injury multiplied by the gravity of any resulting injury. This formula may be symbolized mathematically by B < PL = negligence liability, where B is the burden of adequate precautions, P is the probability of injury, and L is the injury itself. The burden of taking precautions for Connors was nothing more than paying its employee to remain on the barge during normal working hours, when the incident occurred. If he had been on board, he could have called for help from the tug boats when the barge broke free and possibly avoided the damage. The likelihood of a barge breaking free is relatively high, especially in instances of severe weather. This likelihood is increased when the employee tasked with manning the barge is absent. The potential injury resulting from a barge breaking free is quite significant and may, as with the Anna C, result in total loss of the barge. Thus, compared with the relatively high risk of injury multiplied by the gravity of the injury, the burden on Connors to take precautions is relatively low. Decision: Connors is thus contributorily negligent for its failure to take safety precautions by having an employee aboard the barge during the daylight working hours.

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Decision: