Today I’m very pleased to share with you the approved cover design for the book, and as you can see I have utilised the red, white and blue of the American flag, which I hope compliments the overall aesthetic and inspires some degree of patriotism when looking at it first hand.
Naturally this is just the first step in several, however it does indicate that publication is not too far away, and needless to say that with two years in the making, it’s a body of work that I am incredibly proud of.
More posts will follow as things progress, but for now I hope you like the final product as it stands right now, and here’s to getting it out to market in the coming weeks…
After working on this final chapter of the book for the past few months, I’m very pleased to announce that it is now finally complete, which has left me feeling a mixture of emotions, particularly as this wonderful and frankly unprecedented project has been the primary focus of my energy since November 2017.
As I have always done with the previous disciplines shown in the forthcoming ‘United States Law’, the final listing is here for you to view, and so I can only hope that you enjoy reading about them as much as I have studying and preparing them for publication.
1. Aetna Health Inc. v. Davila
2. Anderson v. St. Paul & Sault Ste. Marie Railway Co.
3. Beul v. ASSE International Inc.
4. BMW of North America Inc. v. Gore
5. Boim v. Holy Land Foundation for Relief and Development
6. Boomer v. Atlantic Cement Co.
7. Borsheim v. Great Northern Railway Co.
8. Brown v. Kendall
9. Burton v. Cowell Publishing Co.
10. Christensen v. Superior Court
11. Cox Broadcasting Corp. v. Cohn
12. Dillon v. Legg
13. Dillon v. Twin State Gas & Electric Co.
14. Dun & Bradstreet Inc. v. Greenmoss Builders Inc.
15. Earles v. Perkins
16. Escola v. Coca Cola Bottling Co. of Fresno
17. Falcon v. Memorial Hospital
18. Foster v. Preston Mill Co.
19. Garratt v. Dailey
20. Gertz v. Robert Welch Inc.
21. Goldberg v. Florida Power & Light Co.
22. Greenman v. Yuba Power Products Inc.
23. Henningsen v. Bloomfield Motors Inc.
24. Intel Corp. v. Hamidi
25. Jacque v. Steenburg Homes Inc.
26. Katko v. Briney
27. Kline v. 1500 Massachusetts Ave. Apartment Corp.
28. Knight v Jewett
29. MacPherson v Buick Motor Co.
30. Marshall v. Nugent
31. Martin v. Herzog
32. Metro-North Commuter Railroad Co. v. Buckley
33. Mohr v. Williams
34. Nash v. Port Authority of New York and New Jersey
35. New York Times Company v. Sullivan
36. Palsgraf v. Long Island Railroad Co.
37. Philip Morris USA v. Williams
38. Ploof v. Putnam
39. Port Authority of New York and New Jersey v. Arcadian Corp.
40. Riss v. City of New York
41. Robins Dry Dock & Repair Co. v. Flint
42. Rowland v. Christian
43. Scribner v. Summer
44. Sindell v. Abbott Laboratories
45. Sosa v. Alvarez-Machain
46. Soule v. General Motors Corp.
47. Strauss v. Belle Realty Co.
48. Summers v. Tice
49. Tarasoff v. Regents of University of California
Today marks exactly one year to the day that I first started writing the ‘voluminous’ Case Law Compendium: United States Case Law, and its pretty incredible to think that so much time has already passed, particularly given that I’m not even midway through the book yet!
Anyway, needless to say my hard work continues on undaunted, and I’m hoping to share the first half of the criminal law section here in the next couple of weeks, so watch this space if you’re interested to learn more…
Having recently completed this preliminary chapter of the book, I have provided a list of the cases covered in the civil procedure section for those that might be mildly curious. I would also add that it’s been a genuine pleasure reading and analysing these cases, all of which have helped educate me as to the intricate nature of State and Federal legalities, and I can only hope the readers will take as much pleasure in their reading, as I have in their writing.
Today marks the commencement of my writing ‘United States law: A Collection of Case Studies’, the second instalment of ‘The Black Letter’ series of books, and my excitement is quietly simmering away as I begin preparing for the months ahead.
This book covers the principle law modules offered within leading American universities and Law Schools at Juris Doctor level, and will therefore include civil procedure, constitutional law, contract law, criminal law, property law and tort law. While I appreciate there has been a shift towards comparative and international law, particularly within educational institutions such as Harvard University, when similarly examining both Stanford and Yale, there appears an inclination to adhere to the core fields as shown above, hence I have decided to remain true to that ethos for simplicity’s sake.
While consciously adopting a linear approach, I aim to include around 375 case studies – well over twice the number found in ‘The Case Law Compendium: English & European Law’, and although there is perhaps obvious reason for this, particularly given the size and legal structure of American jurisdiction, I feel the end result will provide law students with more than sufficient insight into the mechanics of notable United States case law.
On a personal note, I am very much looking forward to this journey, and estimate that the book should be finished and available for purchase around summer of 2019, adding that I will consciously try to publish new case studies to this website where time permits.
In closing, I would like to say a heartfelt ‘thank you’ to those of you who purchased my first book (or plan to soon) and I sincerely hope that my efforts have been of valued assistance when working towards your chosen vocations.
The amendment of pleadings is an American civil right when free from the misdirection of a jury, and so on this occasion the intermingling of two events resulting in the destruction of property, allowed the claimant to establish reasonable causation before enjoying the benefits of restorative justice.
In August of 1918, it was alleged that sparks emitted from a locomotive engine owned by the defendants caused a bog fire that while unextinguished, continued to burn for an extended period, largely due to the usual drought conditions at the time. During early October, there were winds in excess of 75 miles per hour, which exacerbated the existing fire, while driving it towards the home of the claimant.
It was the subsequent effects of this natural occurrence that left the claimant’s home damaged and thus both the railway company and the Director General of Railroads ended up in the courts as co-defendants, as was permissible under § 10 of the Federal Control Act.
During the trial, there were two options open to the jury for a safe conviction, namely:
“If plaintiff was burned out by fire set by one of defendant’s engines in combination with some other fire not set by one of its engines, then it is liable.”
“If the bog fire was set by one of defendant’s engines, and if one of defendant’s engines also set a fire or fires west of Kettle River, and those fires combined and burned over plaintiff’s property, then the defendant is liable.”
With confusion as to how best to approach the claim, the jury asked for confirmation as to whether liability could be found if it was agreed that the fire caused by the locomotive engine was significant enough to have been the primary contributor to the eventual fire that caused the damage, at which point the court agreed that it would. It was then that the claimant amended his pleading to one where both fires had been the sole cause of destruction to his home, as opposed to that of the bog fire alone.
While returning a verdict in favour of the claimant, the defendants argued that such pleading allowances were unlawful, before appealing to the St. Louis District Court, who denied a motion for a retrial, while allowing for the consideration of the Minnesota Supreme Court.
Here consideration was given to both the discretion of the courts to allow for claim amendments, and the extent to which the Director General of Railroads is lawfully implicated. In the first instance, the Court explained how § 7784 of Ch. 77 of the Minnesota Statutes 1913 noted that:
“No variance between the allegations in the pleading and the proof is material unless it has actually misled the adverse party to his prejudice in maintaining his action or defence on the merits.”
Which on this occasion the court had already established which fires were attributable to the defendants, and at no point had any objection or evidence been shown to prove otherwise, while under § 4426 of Ch. 28 of the Minnesota Statutes 1913 also made it clear that:
“Each railroad corporation owning or operating a railroad in this state shall be responsible in damages to every person and corporation whose property may be injured or destroyed by fire communicated directly or indirectly by the locomotive engines in use upon the railroad owned or operated by such railroad corporation…”
It was further held that within the terms of the Transportation Act of 1920, Congress conferred no express limitations as to the powers of the Federal Control Act, and that evidence of this was available under §§ 202 and 206 of the amended statute, and so it was that for these reasons the Court refused to reverse the original decision and dismissed the appeal.
Manufacturer negligence and the powers of consumer statute are both central to a claim for damages, when a leading retailer is held liable for a loss of earnings through serious physical injury.
In 1990, the respondent’s eye was struck by an elasticated strap forming part of a foot warmer product known as ‘Cosytoes’, which was manufactured under the store’s own brand range. The extent of the damage was unknown at the time, however over the period that followed, the respondent was diagnosed with shallow temporal half-detachment of the retina, which in turn led to virtual blindness and total lack of central vision.
Some ten years later, the respondent sought damages under negligence, and through the powers afforded them under the Consumer Protection Act 1987. In defence, the appellants relied upon the investigative report of a highly qualified consultant engineer, whose notes confirmed:
“I conclude that in 1990 no manufacturer of child care products could reasonably have been expected to have recognised that elastic attachment straps for a cosytoes could pose a hazard to the eyes of children or adults, since the potential risk had not at that time been recognised even by experts in the safety of such childcare products.”
However, the engineer also stressed that:
“I found that for me it was quite easy to fasten the straps correctly from behind the seat unit. Attempting this from the front of the seat was more difficult, because it was not possible to see the fastening. It also required putting my head close to the seat in order for my arms to reach round behind it. I noticed that the elastic did have a tendency to pull the fastener through my fingers, and it could easily have slipped.”
Contrastingly, when transposing the requirements of the 1987 Act, Parliament was obliged to observe the terms of Directive 85/374/EEC in which the preamble outlined:
“Whereas, to protect the physical well-being and property of the consumer, the defectiveness of the product should be determined by reference not to its fitness for use but to the lack of the safety which the public at large is entitled to expect; whereas the safety is assessed by excluding any misuse of the product not reasonable under the circumstances…
[W]hereas a fair apportionment of risk between the injured person and the producer implies that the producer should be able to free himself from liability if he furnishes proof as to the existence of certain exonerating circumstances…”
In the first hearing, the judge found in favour of the respondent on grounds that embraced both manufacturer negligence and the presence of a defect, as described in s.2(1) of the Consumer Protection Act 1987, which reads:
“(1) Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes safety, in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.”
Upon appeal, the Court reexamined the previous decision, and revisited the argument that what was evidentially unsafe in 2000 was not deemed harmful in 1990, in light of there being no recorded incidents of that nature upon which to rely at the time. With reference again to the consultant engineer’s notes, the Court emphasised how he had also stated:
“I conclude that I should have to advise anyone manufacturing such a cosytoes today that the product would have a safety defect unless the potential risk of injury (to the eyes of a child in the pushchair or the person fitting it) was either eliminated by design or that consumers were warned of the possible risks and how to avoid them. Such advice to consumers would need to include instructions for fitting the cosytoes that avoided the obvious difficulties that Mr Abouzaid and his mother were having prior to the accident.”
And that despite a lack of recorded industry data with which to determine the safety of the product, there was little to explain how consumer awareness had remained static over the preceding decade, with particular reference drawn again to s.5.1.2 of his report, which itself remarked:
“[T]he level of safety that consumers can reasonably expect is not necessarily a constant, but will rise over time in small steps, if the state of industry knowledge of hazards and their prevention improves.”
It was for these reasons that the Court agreed with the essence of the earlier judge’s findings, and that the level of damages awarded were an accurate representation of the loss suffered through such a simple error in quality control and user protection.
Proximity and lack of foreseeability, prevent this tragic claim for damages when a grieving husband argues that the owners of a minibus are liable for the death of his wife.
In 1988, a minibus owned and driven by bus company staff, was left parked and unlocked with the keys in the ignition, in the lay by of a nearby public house. It was considered normal practice for the drivers of these vehicles to leave them there in that state, as literally minutes later, it would typically be collected and driven by a replacement driver.
On this occasion, the replacement driver failed to turn up for work due to illness, which left the bus unlocked and clearly vulnerable to theft. During the time between the driver leaving the minibus and the accident taking place, the original driver had noticed it had not been taken as expected, and promptly notified his employers. At 11.15pm that evening, an unknown person took the minibus, and shortly afterwards ran down and killed the appellant’s wife as she was out cycling. This led to action being taken against the bus company, on grounds of breach of duty of care, negligence and foreseeability.
In the first instance, the court dismissed the claim, whereupon the appellant claimed the judge erred in law on three grounds, namely (i) judging the claim unreasonable, (ii) holding that the facts fell outside the scope of award for duty of care, and (iii) not finding the respondents liable for the victim’s death.
In Smith v Littlewoods Organisation Ltd, it was cited by Goff LJ that:
“[E]ven though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do . . . [that] may be read as expressing the general idea that the voluntary act of another, independent of the defender’s fault, is regarded as a novus actus interveniens which, to use the old metaphor, ‘breaks the chain of causation.’”
While in Denton v United Counties Omnibus Co, the court agreed that although an omnibus belonging to the defendants was stolen from an unsecured storage yard before bring driven into the claimant’s car, there was insufficient proximity between the owners, and the party liable for the accident to warrant any duty of care.
This translated that the thief and alleged joy-rider, was clearly in no position to consider the danger his actions posed, and irrespective of whether his identity could be established, and unfortunate as it was to have had his wife killed for no reason, a claim of negligence could not reasonably stand, on grounds of proximity and lack of foreseeability, thus the Court dismissed the appeal while holding that:
“[T]here was in the circumstances of this case a relationship of proximity between the defendants and Mrs. Topp. But I entirely agree with the judge that no duty of care is shown either in principle or having regard to the authority of this court…”
For clarification, there are two types of trespass, namely trespass to the person and trespass to land. As with anything requiring individual expansion, we will begin by looking at trespass to the person.
Trespass to the person
Trespass to the person includes three torts, ranging from (i) battery (ii) assault and (iii) false imprisonment, as first truly defined by Goff LJ in Collins v Warlock when he said:
“An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person. Both assault and battery are forms of trespass to the person. Another form of trespass to the person is false imprisonment, which is the unlawful imposition of constraint upon another’s freedom of movement from a particular place.”
While claiming accidental causes, the defendant in Williams v Humphrey was found liable for battery after pushing the victim into a swimming pool, whereupon the claimant broke his ankle. Given that the intention to push the victim was present, no argument to the contrary could reasonably stand and so damages were awarded.
In R v Ireland, a number of women subjected to continuous psychological damage through repeated abusive phone calls, were given the right to claim for assault, even though they never met the defendant in person. When reaching summary judgment, it was remarked by Hope LJ that:
“If the words or gestures are accompanied in their turn by gestures or by words which threaten immediate and unlawful violence, that will be sufficient for an assault. The words or gestures must be seen in their whole context.”
(iii) False Imprisonment
While reminiscent of physical imposition, this tortious facet involves the restriction of liberty and movement of an individual. As many might expect, there are cases where over extension of a prison sentence will suffice, however mere isolation or deprivation of escape will also apply. It is important to note that while the victim may only fear these actions yet not necessarily fall subject to their physical consequences, psychological harm, where proven, will suffice under a claim. Unlike the tort of negligence, trespass to the person relies upon intention, actual harm and obvious effect, and so victims are compensated not for unintentional damage, but that caused with deliberation.
Trespass to land
Similarly, trespass to land addresses deliberate actions by those subject to it, while primary focus is placed upon the protection and preservation of land or property. Harm is treated as one stemming from interference with a right to privacy and occupation, and so while possession of the land is imperative to a successful claim, there are, as with trespass to the person, four distinct categories of interference, namely (i) crossing a boundary, (i) remaining on land, (iii) exceeding permissions associated with land and (iv) placing objects upon land without express consent of the owner.
(i) Crossing boundaries
Undoubtedly the more common complaint is one of boundary violation, and while often focussed upon overgrown foliage or other such matters, there are also incidents where property intrudes into the airspace of land, such as in Anchor Brewhouse Developments Ltd v Berkley House (Dockland Developments) Ltd where a contractor’s crane overswung into a neighbouring property, thus prompting a supported claim for trespass through ‘airspace’.
(ii) Remaining on land
In Jones v Persons Unknown, the freeholders of unregistered land were forced to serve eviction notices after a group of ‘fracking’ protestors set up residence and refused to leave. While claiming to be protecting the land on which they had become entrenched, the defendants were ultimately evicted under the award of a possession order on grounds of trespass. When outlying the justification for the order, the judge remarked:
“[T]here is simply no evidence that they gave any relevant consent to the occupation of their land which would preclude the claimants from seeking to recover it back…he was in unlawful possession of the claimants’ land, and thus amenable to a claim in trespass and the costs associated with such a claim. It would be to allow him, and others in a similar position, effectively to get away with acts of trespass if they were not required to pay the costs of consequent legal proceedings.”
(iii) Exceeding permissions (trespass ab initio)
When a party enters owned land under agreement, but then proceeds to potentially outstay that welcome through unlawful or abusive actions, the owner is entitled to claim trespass from the point at which the visitor caused offence. In a case called The Six Carpenters, a number of carpenters entered an inn before ordering and paying for wine and bread; however things took a turn for the worse when after ordering more wine they refused to pay for it; thus instigating a unsuccessful claim for trespass damages by the landlord when the court held:
“[F]or not paying for the wine, the defendants shall not be trespassers, for the denying to pay for it is no trespass, and therefore they cannot be trespassers ab initio…”
(iv) Placing objects
In Arthur v Anker, the deliberate placement of an oil tanker and flower pots along a boundary wall caused tensions between neighbours, until a claim for trespass led to an injunction to remove the objects, despite several months between their placement and the litigation. In surmising the judgment, Aldous J emphasised that:
“[T]here is no evidence that such inaction in respect of the oil tank, or any inaction in respect of the flower pots, caused Mr. Stones to believe that he could maintain the tank on the wall situated as it is…He placed the tank upon the wall himself and in my view it could not be seriously suggested that there was detriment in not objecting immediately and now requiring him to remove it.”
‘But for’ causation and the principles of tort, while reminiscent of criminal procedure, can fall foul to policy loopholes when a duty of care is involved. In this matter, the actions (or inactions) of a neurosurgeon left a patient paralysed and angry after full disclosure had not been established prior to her operation.
After suffering for a number of years with lower back pain, the respondent had reached the point that regular injections were no longer of relief, and had now given serious thought to surgical intervention, despite long standing fears around the field of operative medicine. Having consulted her rheumatologist at length, she was confidently advised to procure the services of a Harley Street practitioner with a solid reputation for the proposed kind of operation.
The recommended procedure involved delicate removal of a number of vertebrae that would by extension, bring an end to her pain, but not without associated risks inherent to the work. Upon her first visit with the appellant, the two individuals took time to discuss the course of action, along with the known side-effects and possible nerve damage. Having consented to undergo the surgery, the respondent was treated a few days following the meeting; after which her recovery was less positive than had been anticipated, and which had in fact left the respondent immobile and diagnosed with cauda equina syndrome.
Having sought damages for what the respondent considered to be negligence through a breach of duty to inform her of the known (and well documented) risks associated with the operation, the first judge found that in order to reach a balanced decision, it was important to address both the breach of duty to fully disclose, and the liability for the subsequent injury arising from the procedure. On this occasion, and relying upon the evidence presented, the court took time to debate the principal function of causation, in which the defendant is not required to establish exemption, but that the claimant must take the necessary steps to demonstrate how their breach caused either injury or loss, and that where adherence to policy and procedure had occurred, the results would have prevented any need for legal remedy.
With judgment found in favour of the respondent in the first hearing, the surgeon moved to appeal, before finding his challenge dismissed for the same reasons. It was then after granting permission to appeal to the House of Lords, that the finer details of causation and right to damages became of greater significance.
While the discussion revolved around similar medical cases applying tortious doctrines of causality, the named risk attached to lumbar stenosis removal ran within a very narrow margin of around one to two percent, and it had been proven as well as agreed, that irrespective of the performing surgeon, the potential for the syndrome remained equally viable. This translated that a lack of absolute disclosure by the appellant, while disconcerting in the immediate sense, could not be held as contributory to the injurious outcome experienced by the respondent.
However, the division between the House was such that enough case material had amassed to instigate a reconsideration of the logic of causality; and that when embracing the autonomous rights of the patient, it was simply unethical to allow minimal disclosure and a weakness of causative proximity to remove access to knowledge, which on this occasion might have led to alternative solutions to pain and discomfort. By then mindfully broadening the duty of care principle, the judges found (by a similarly narrow margin) in favour of the respondent and awarded accordingly, while holding that:
“In modern law medical paternalism no longer rules and a patient has a prima facie right to be informed by a surgeon of a small, but well established, risk of serious injury as a result of surgery.”