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West Virginia University School of Law
Cady, Thomas C.


Torts Notes


Case of the Thorns – King's Bench 1466
Guy cuts thorns at property line and then picks up his thorns. He tramples and causes damage to another mans property.
Defendant loses. He walked on the other mans land and caused damage. The guy who went on the other guys land hurt the guys land. He was not justified by the fact that he was just trying to be a good neighbor and clean it up. The court ruled in favor of the victim instead of the prosecutor.
Rule: “He who is injured shall be compensated”

Weaver v. Ward  – Kings Bench 1616
Facts: Soldiers accidentally discharged his musket while cleaning it and hurt and wounded another.
Q: Was Ward guilty of negligence. You can't shoot someone and escape liability. *Contributing liability is when someone does something like jump in front of the gun. This was not the case here.
Rule: “He who was injured shall be compensated.”
Result: Defendant was liable.

Brown v. Kendall – Supreme Massachusetts – 1850
Facts: Two dogs fighting. A man picked up a stick to break them up and struck a man behind him on accident.
Rule: If I raise a stick to hit a man and hit another in the process of doing so the man is not guilty of negligence. The act was inevitable. The defendant took normal care and precaution.
2 things wrong: Instructions to the jury were wrong. This is why the defendant appealed.
Proper act v. necessary act. This was a *necessary act* and the defendant used ordinary care (extraordinary care in this case was not necessary).
Result: New trial – Defendant not found to be guilty, this was just an accident. If he had not exercised ordinary care then he would have been guilty.
This case is significant because it goes against or adds a clause to the rule that “He who is injured shall be compensated”. Life just has risks. People will be compensated only if the other person had acted in the wrong.
Shaw is the name of this judge. Shaw was pretty much changing policy and this should have been done by the Mass state legislature.  

Cohen v. Petty – 1933 – Appeals D.C. pg. 10
Facts: Man fell asleep at the wheel. Said he felt sick right before passing out and crashed the car. Someone was seriously hurt. Four witnesses, all in the car. He had never fainted before. Est. speed 35-45 mph.
Issue: Was the driver negligent.
Result: Defendant won at trial and again at the appeal. Defendant (driver) not found guilty. It was just an accident. When the passengers got in the car it was a risk they were taking. The driver had no history of passing out and took necessary care.
Spano v. Perinin Corp. – Appeals N.Y. 1969 – pg. 13
Facts: Blasting. A garage in Brooklyn was wrecked by a blast 7 years earlier in 1962. 194 sticks of dynamite went off on that day, 125 feet from the garage. Both plaintiffs admitted negligence.
Result: In favor of plaintiffs at trial then reversed by appellate court. Plaintiff eventually won.
Rule: Dynamite is a greater than normal risk so they carry more liability. Can’t prevent all injury even with greatest care.
You are liable for all damage you cause if you use dynamite or like substance.


Protect agai

this should have just been Assault and Battery.
This case was big at looking at Negligence v. Assault and Battery.
Other: *Substantially certain and intended risk*
This case is in here to show that judges can sometimes get it wrong.
This case is showing that the person acted intentionally and is accountable for his actions.

*****Acting intentionally is when you directly do something that could very well most likely hurt them, 99%. (Intentional)
Acting knowingly is when you may not want something to happen but there is a very high change that something will happen 92%. (Intentional)
Recklessly is when there is a like a 50% chance of something happening. (Not intentional)
Negligence is when you do something that you are not aware of. This is when you have to prove that they acted in or not in reasonable care, .01%. (Not intentional) *****

Ranson v. Kitner 1889 – Appellate Court of Illinois pg. 24
Defendant killed dog on accident while searching for wolves. The dog resembled a wolf. Ruling: They had to pay for the value of a new dog, $50. It was a mistake (not accident) nevertheless they are responsible for their mistake.
When you act to get a particular result you are responsible for all of the consequences if you made a mistake.

Fault Principle: