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Villanova University School of Law
Wertheimer, Ellen

·        Only thing to decide in Torts is who pays damages
·        Brown v. Kendall- Supreme Judicial Court of Massachusetts, 1850 6 Cush (60 Mass.) 292
o    Dogs fight… stick… blinded
o    P must come prepared to show that the intention of D was unlawful or that D is at fault.
o    D performing a lawful act with appropriate level of care is not held liable.
o    Burden of proof lies with P
·        Hammontree v. Jenner- Court of appeal of California, 1971 20 Cal. App 3d, 97 Cal. Rptr. 739
o    Mrs. Hammontree was in her bike shop when a car came crashing into it causing her physical harm. The driver of the car, Jenner, was an epileptic on medication and had been seizure free for 12 years. D had no recollection of the event.
o    Judgment in the trial court was for D based on the instruction from the judge to consider negligence. P appeals wanting a rule of strict liability based on the circumstances.
o    Ruling affirmed
·        Langan v. Valicopters, INC. – Supreme court of Washington, 1977 88 Wash. 2d 855, 567 P. 2d 218
o    Langan are organic food providers. Valicopters in the act of spraying pesticides on an adjoining property sprayed their land as well. The Langans pulled out their crop and suffered the loss of no harvest that year and having their organic membership revoked.
o    Judgment for P by rule of strict liability. Appealed by D.
o    Judgment affirmed.
Privileges- Agree that the tort was committed but claims immunity due to certain privileges.
1.       Consent as a defense to Battery
a.       The Medical Arena
                                    i.            Mohr v. Williams. Minnesota Supreme, 1905.
1.       Surgery was agreed upon for the right ear that required surgery. When the patient was unconscious the doctor decides that the right ear is fine but instead goes snooping in the left ear and finds issues and decides to perform surgery on that ear. Surgery is performed competently and she suffers hearing loss in that ear.  
2.       This is a consent case, not a informed consent.
3.       In an emergency a doctor can perform what a reasonable person would consent to given the circumstances. 
                                  ii.            Pauscher v. Iowa Methodist Medical Center. Iowa Supreme (1987)
1.       Now in the negligence section
2.       Very few informed consent cases are won now. P has to prove that they would have chosen differently given the circumstances.
                                 iii.            Ashcraft v. King. California 2ed Court of Appeals. 1991
1.       P had an operation for scoliosis and insisted that only family blood be used in the operation. D consented and used other blood. P got AIDS. Suing in battery and negligence. Originally dismiss but now over turned.
2.       Patient has right to impose conditions or limits on operation proceedings. 
3.       D acted with a willful disregard to P’s wishes.
4.       Conditional consent was given.
5.       P has to show harm because she was unconscious, don’t want to open the door to bigotry in blood transfusions
b.      The sports Arena
                                    i.            Marchetti v. Kalish. Ohio Supreme, 1990
1.        Kick the can turns into broken leg.
2.       Sues for battery
3.       Held that during sports a person is only liable for damages if they act recklessly or intentionally(here court seams to mean “with intent to hurt her). Neither is the case here, reversed.
4.       Court rejects the restatement of torts because they want evil intent in sports. 
                                  ii.            Hackbart v. Cincinnati Bengals, INC. 10th circuit appeals, 1979
1.       P was a player for the denver broncos. After an interception he tried to bring down D by dropping in from of him. D intentionally hit P (away from the play yet still obstructing D)from behind causing neck damage. Dismissed at trial, reversed and remanded.
2.        Intentional injuries are not immune from prosecution during sports, especially when it is out of the scope of what normally happens in the sport.
c.       Other Arenas
                                    i.            Teolis v. Moscatelli. Rhode Island Supreme, 1923
1.       They agreed to fight and then D Stabbed P with a knife.
2.       You can’t consent to illegal activities. D is liable for injury

d Chattels.
a.       Katko v. Briney. Supreme of Iowa, 1971.
                                    i.            Briney was tired of his abandoned house being broken into that he put a spring-loaded shotgun in a room. Katko upon breaking in to steal stuff was shot in the leg. Kato sued for injury and won .
                                  ii.            You can’t set deadly traps for trespassers. If D would have been home and defending himself it would have been different.
                                 iii.            Fruit Jars v. Life
4.       Necessity
a.       Private Necessity
                                    i.            Ploof v. Putnam. Vermont supreme, 1907.
1.       P was in a storm and tied his boat up to D’s dock. D’s servant untied the boat and it crashed into some rock causing damage to the boat and his family. Suing for trespass and damages. Won.
2.       Suing in trespass and in case
a.       Case is a negligence based tort( Case = Trespass on the case)
3.       Risk to human life v. Damage/ Trespass
4.       In certain cases where there is a private necessity private property can be infringed upon, However the trespasser is liable for the damages caused by their presence there
                                  ii.            Vincent v. Lake Erie Transp. Co. Minnesota Supreme, 1910.
1.       D tied up a boat to unload cargo when a storm arose. Damage was done to the dock and P claims that they do not have to pay the damages under private necessity.
2.       This is not a suit for trespass, there is no tort here.
3.       Fairness requires that payment be made
a.       Fairness has a major role in torts
4.       Court here creates a rental contract.
5.       D is responsible for damages done.