Torts Outline

Torts Cases

1-12-04

Hossenlopp v. Cannon (S.C. 1985)
General Facts: 4 year old (H) was bitten by dog (C’s) and sustained 19 puncture wounds which required stitches, surgery, and hospitalization. H and friend were at a babysitters watching sitter’s dogs inside a fence. C’s dog charged. Boys tried to climb fence. Dog grabbed H, and he fell to ground where he was injured. C said that the dog had been violent once, but the injury to the 6 year old then was only a minor scratch. C also said that dog could not be bound by a fence (would climb over it), and that the only way to truly constrain the dog was using a chain.
Case History: Liability assessed for H by summary judgement (federal-like standard). Damages were left to the jury.
Cause of Action: Negligence (later converted by S.C. S.Ct to strict liability)
Negligence: (1) Duty of reasonable care; (2) Breach of that duty; (3) Causation (both factual and proximate); (4) Resulting Damages.
Strict Liability: (1) Behavior covered by Strict Liability; (2) Causation; (3) Resulting Damages.
Law: Dog-bite law (old and new for S.C.)
Old dog-bite law: Domestic animals are not considered inherently dangerous. Duty of care must be established by the dangerousness of the animal that was known or should have been known by the owner. “The negligence that imposes liability upon the owner is the keeping of a dangerous animal with knowledge of its dangerous tendencies, or in the failure to restrain it from injuring persons…”
New dog-bite law: The owner of any dog (dangerous or not) that bites a person either on public property or private property that the victim is lawfully upon (including the dog owner’s own property) is liable for those injuries. UNLESS, the victim knowingly and voluntarily invites attack upon themselves OR without reasonable necessity, exposes himself to the danger. From CA law.
Other Opinions: Justice Harwell would prefer the old law requiring knowledge of dog’s dangerousness until such time that the legislature changed the law. NOTE: The CA provision cited by the majority was derived by statute, not common law.
Justice Gregory would not use this case to change the law. NOTE: The S.C. S.Ct is changing the dog-bite law by affirming a judgment that was reached under the old law soundly.

Crisi v. Security Insurance Co. of New Haven(CA 1967)
General Facts: Mrs. Crisi owned an apartment building in which Mr. and Mrs. DiMare lived. Mrs. DiMare fell through an outside staircase and sustained injuries and developed a psychosis from the fall. DiMares sued C for physical and mental injuries for 400K. C had general liability insurance from Security for 10K. The insurance policy required that S defend C and handle the claim. Lawyers for S and DiMares agreed that IF a jury found for Ds on psychosis, then the damages would be at least 100K. Psychologists were found both supporting and not supporting the mental claim as the result of the fall. Ds proposed to settle for 10K, but was rejected. S was willing to pay no more than 3K for physical injuries and nothing for mental. S later rejected a 9K settlement offer for which C agreed to pay 2.5K.
A jury awarded Ds a total of 101K (Mrs. 100; Mr. 1). S paid 10K. The remaining was settled by C by 22K, a 40% interest in the property, and the assignment of C’s claim against S. Later, C became indigent. C worked as a babysitter and rent was paid by grandchildren. C became depressed and attempted suicide. C also suffered a general decline in health. C is said to be a 70 year old immigrant widow. C then brought this claim against S for insurance co. bad faith.
Case History: At trial, jury awarded C 91K for the adverse judgment and 25K for pain and suffering.
Cause of Action: Insurance Co. Bad Faith
Insurance Co. Bad Faith: (1) Insurance Policy Covered by Claim; (2) Bad Faith by Co.; (3) Resulting Damages.
Law: I. Rejection of settlement offer within policy limits as bad faith and existence of a bad faith cause of action.
Rule from Comunale v. Traders & General Ins. Co.: (1) There is an implied covenant of good faith in every contractual relationship including insurance Ks. Neither party will do anything to injure the other’s ability to receive the benefits of the K. (2) One of the common benefits and practices under insurance Ks is to promote and effectuate settlements. (3) Although not covered by express terms, the insurer must settle appropriate cases pursuant to the implicit good faith agreement. (4) In determining whether to settle, the insurer must consider his own interests as well as the interests of the insured. (5) When there is a great risk of judgment beyond the policy limits and settlement is a reasonable way to keep the judgment within the policy limits, the insurer must settle the claim.
Another formulation of Comunale rule: “Liability based on an implied covenant exists whenever the insurer refuses to settle in an appropriate case and that liability may exist when the insurer unwarrantedly refuses and offered settlement where the most reasonable manner of disposing of the claim is by accepting the settlement.”
Standard for appropriate settlement: “Whether a prudent insurer without policy limits would have accepted the settlement offer.”
Suggested rule from amicus curiae: Whenever an insurer receives an offer to settle within the policy limits and rejects it, the insurer should be liable in every case for the amount of any final judgment whether or not within the policy limits. The court comes up with some pros (simplicity, no more “gambling” with insured’s money, won’t cost any more for insurance companies than present law, and provides simple justice since a conflict of interests exists so the insurer and insured will stay in the same boat together), but does not pass judgment on the suggested rule b/c the existing law covers C’s claim against S.
II. Pain and suffering damages can follow from the bad faith liability.
When case presents both K and Tort COA, P may chose either to pursue.
Every wrong has a remedy, and a victim should be compensated for all proximate harm caused by wrongful acts of D.
Tort damages may exceed injuries which were foreseeable or anticipated.

Lambertson v. U.S. (2d Cir. 1976)
General Facts: L worked for Armour & Co. by unloading meat shipments at the Syracuse plant. On one occasion (8/30/72), L was unloading meat when U.S. Dept. of Ag. meat inspector, William Boslet, jumped on his back, pulled L’s stocking hat over L’s eyes, and rode L piggyback. As a result, L fell forward onto meat hooks which were 6 inches in front of him. L suffered severe injuries to his mouth and teeth.
Case History: Case was dismissed by the District Court for lack of jurisdiction under the Federal Tort Claims Act (28 U.S.C. 2680). L appealed.
Cause of Action: Battery “dressed up as negligence.”
Battery: (1) Bodily Contact; (2) Contact was offensive; (3) D intended to make the contact–an intent to injure is not required, only the intent to make the contact.
Negligence: (1) Duty of due care; (2) Breach of that duty; (3) Causation (both factual and proximate); (4) Resulting injuries.
Law: The requisite intent for battery: The intent required for a battery is not the intent to injure or cause injuries to the victim. Rather, it is the intent to cause the contact which was offensive to the victim.
Intent in general may be shown by either (1) purpose or (2) knowledge with substantial certainty that D’s conduct will cause the prohibited result.

Ranson v. Kitner (Ill. App. 1888)
General Facts: K’s dog was traveling in the woods where R was hunting wolves. The dog appeared to be a wolf and R shot and killed it. R’s defense was that he had a good faith belief that the dog was a wolf because of the dog’s appearance.
Case History: A jury awarded K the value of the dog ($50). R appealed based on a theory that his mistake eliminated liability.
Cause of Action: Conversion
Conversion: (1) Intentional Act; (2) Destruction of property OR interference with ow