74-557: Ultramares Corporation v. Touche , 174 N.E. 441 (1932) is a US tort law case regarding negligent misstatement , decided by Cardozo, C.J. It contained the now famous line on "floodgates" that the law should not admit "to a liability in an indeterminate amount for an indeterminate time to an indeterminate class." In 1924 auditors Touche Niven gave the rubber importer, Fred Stern and Company, an unqualified audit certificate, having failed to discover that management had falsified entries to overstate accounts receivable. The auditors knew that
148-488: A customer's order number and varied in terms of credit and in other respects from those usual in the business. A mere glance reveals the difference. The December entry of accounts receivable was not the only item that a careful and skillful auditor would have desired to investigate. There was ground for suspicion as to an item of $ 113,199.60, included in the accounts payable as due from the Baltic Corporation. As to this
222-506: A defendant violates a custom that is widespread and itself reasonable. For example, where ten percent of a certain industry does a certain thing, it probably will not be considered a custom for purposes of breach in negligence. Alternatively, if 90 percent of a certain industry does a certain thing, but the thing is inherently unsafe, and it is upholding the custom as a cost-saving measure, violation of that custom (doing something safer) will not constitute breach. As with violation of statute, this
296-416: A defendant's conduct was "wanton," "reckless" or "despicable", rather than merely negligent, can be significant because certain defenses, such as contributory negligence , are often unavailable when such conduct is the cause of the damages. Breach is ordinarily established by showing that the defendant failed to exercise reasonable care. Some courts use the terms ordinary care or prudent care instead. Conduct
370-523: A desire or knowledge to a substantial certainty that someone would get hit in this situation. He may, however, be liable for some other tort, namely negligence. Transferred intent is the legal principle that intent can be transferred from one victim or tort to another. [1] In tort law, there are generally five areas in which transferred intent is applicable: battery, assault, false imprisonment, trespass to land, and trespass to chattels . Generally, any intent to cause any one of these five torts which results in
444-410: A doubt as to the solvency of a business where such conduct was permitted. There was an explanation by Romberg which the defendants accepted as sufficient. Caution and diligence might have pressed investigation farther. If the defendants owed a duty to the plaintiff to act with the same care that would have been due under a contract of employment, a jury was at liberty to find a verdict of negligence upon
518-558: A duty growing out of contract to make it with the care and caution proper to their calling. Fraud includes the pretense of knowledge when knowledge there is none. To creditors and investors to whom the employer exhibited the certificate, the defendants owed a like duty to make it without fraud, since there was notice in the circumstances of its making that the employer did not intend to keep it to himself (Eaton, Cole & Burnham Co. v. Avery, 83 N. Y. 31; Tindle v. Birkett, 171 N. Y. 520). A different question develops when we ask whether they owed
592-408: A duty to these to make it without negligence. If liability for negligence exists, a thoughtless slip or blunder, the failure to detect a theft or forgery beneath the cover of deceptive entries, may expose accountants to a liability in an indeterminate amount for an indeterminate time to an indeterminate class. The hazards of a business conducted on these terms are so extreme as to enkindle doubt whether
666-471: A flaw may not exist in the implication of a duty that exposes to these consequences. We put aside for the moment any statement in the certificate which involves the representation of a fact as true to the knowledge of the auditors. If such a statement was made, whether believed to be true or not, the defendants are liable for deceit in the event that it was false. The plaintiff does not need the invention of novel doctrine to help it out in such conditions. The case
740-400: A halt has not been made without a genuine belief that the search has been reasonably adequate to bring disclosure of the truth? Or does it go farther and involve the assumption of a liability for any blunder or inattention that could fairly be spoken of as negligence if the controversy were one between accountant and employer for breach of a contract to render services for pay? The assault upon
814-510: A harmful contact, for example, it will therefore always suffice as apprehension, but there are other ways to achieve apprehension as well. Assault is notably similar to battery. Indeed, the elements of intent and act are identical. The only difference is the result. A person commits an assault when he acts either intending to cause a harmful or offensive contact with another or intending to cause another imminent apprehension of such contact and when such imminent apprehension results. Therefore, there
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#1732852128312888-407: A harmful or offensive contact with another or intending to cause another imminent apprehension of such contact and when such contact results. Therefore, there is a variety of ways in which a person can commit a battery, as illustrated by the following examples of defendant Dave and plaintiff Paula. Apprehension is a broader term than fear. If a defendant intends to cause the plaintiff to actually fear
962-507: A reasonable person, which failure is the actual cause and proximate cause of damages. That is, but for the tortfeasor's act or omission, the damages to the plaintiff would not have been incurred, and the damages were a reasonably foreseeable consequence of the tortious conduct. Some jurisdictions recognize one or more designations less than actual intentional wrongdoing, but more egregious than mere negligence, such as "wanton", "reckless" or "despicable" conduct. A finding in those states that
1036-432: A showing of a scrutiny so imperfect and perfunctory. No doubt the extent to which inquiry must be pressed beyond appearances is a question of judgment, as to which opinions will often differ. No doubt the wisdom that is born after the event will engender suspicion and distrust when old acquaintance and good repute may have silenced doubt at the beginning. All this is to be weighed by a jury in applying its standard of behavior,
1110-430: A substantial certainty that harm would result. In contrast, if all that can be said about the defendant's state of mind is that he should have known better, he will not be liable for an intentional tort. This situation might occur if, as opposed to the examples above, Dave shoots a gun in a remote part of the desert without looking just for fun, not wanting to hit anyone, but the bullet does hit someone. Dave did not have
1184-527: A thing or third person to enter, land owned or occupied by another. A person commits trespass to chattel when he acts either intending to dispossess the rightful possessor of a chattel or intending to use or intermeddle with the chattel of another and when dispossession of the chattel for a substantial time results, or damage to the chattel results, or physical injury to the rightful possessor results. A person commits conversion when he acts intending to exercise dominion and control and when interference with
1258-439: A valid privilege of defense of property. Ordinarily, for private necessity to be valid, the party attempting to exercise it must not have created the emergency. For example, if Paula intentionally punctures her fuel tank just so she can race over to Dave's dock and tie up, she will not have a valid privilege of private necessity. As such, she would be a trespasser, and Dave would have a valid privilege of defense of property. This
1332-417: Is a complete privilege. A party who has this privilege, typically a public official or governmental entity, is not liable for any damage caused. A famous early case on this privilege involved John W. Geary , the first mayor of San Francisco , who made the decision during a major fire to burn down several private residences to establish a fire break. Amongst unintentional torts one finds negligence as being
1406-402: Is a variety of ways in which a person can commit an assault. A person commits false imprisonment when he acts intending to confine another and when confinement actually results that the confinee is either aware of or damaged by. Confinement must typically be within boundaries that the defendant establishes. For example, a person is not confined when he is refused entry to a building, because he
1480-400: Is an alternative way to show breach. Therefore, just because it cannot be shown, or is attempted to be shown but fails, does not mean that there has been no breach. There may be other ways of showing breach. This is a Latin phrase that means "the thing speaks for itself." It is a rare alternative basis of breach. Ordinarily, it only applies when the plaintiff has little or limited access to
1554-444: Is an element of any tort. The defendant's act must be an actual cause and a proximate cause of the result in a particular cause of action. Actual cause has historically been determined by the "but for" test. If the result would not have occurred but for the defendant's act, the act is an actual cause of the result. Several other tests have been created to supplement this general rule, however, especially to deal with cases in which
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#17328521283121628-437: Is at point A. Dave negligently ignites a fire at point B. Lightning simultaneously strikes point C, starting a second fire. The fire at point B and the fire at point C both burn towards point A. Paula's house burns down. Unlike Summers v. Tice , there is only one defendant in this situation. Most courts will still hold Dave's negligence to be an actual cause, as his conduct was a substantial factor in causing Paula's damage. This
1702-455: Is away, the chickens severely scratch Paula's arms, but she does not wake up. Dave returns, unlocks the barn, and successfully wakes up Paula to tend to her wounds. Even though she was unaware of her confinement, she was damaged by it and will have a claim of false imprisonment against Dave. A person is liable for intentional infliction of emotional distress (IIED) when he intentionally or recklessly engages in extreme and outrageous conduct that
1776-408: Is damaged, and she suffers personal injuries, both as a result of the storm. If Paula had damaged Dave's dock, she would be liable for it, even though she has a valid privilege of private necessity. More importantly, Dave is now liable to Paula for the damage to her boat and for her personal injuries. Because of the private necessity, Paula is not considered a trespasser. So, Dave did not in fact have
1850-490: Is free to leave. In addition, a person is not confined unless the will to leave of an ordinary person in the same situation would be overborne. For example, Dave calls Paula into a room with one door. Dave closes the door and stands in front of it. He tells Paula that if she wants to leave, he will open the door and get out of her way but also threatens to blink twice if she does so. An ordinary person's will to leave would not be overborne by Dave's threat to blink twice. No damage
1924-421: Is highly likely to cause severe emotional distress. This is a notable exception to the general rule given above that for almost all intentional torts only desire or knowledge to a substantial certainty will do. IIED also includes recklessness. This still distinguishes it from negligent infliction of emotional distress, though. Extreme and outrageous conduct refers to the act. Severe emotional distress refers to
1998-502: Is occasionally incorporated into the definition of an intentional tort, such as trespass to land. However, lack of consent is not always an essential element to establish a prima facie case in such situations. Therefore, it is properly treated as an affirmative defense. Self-defense is typically a defense to battery. Similar to self-defense is the defense of others . This is typically a defense to trespass to land or trespass to chattels, as it can refer to realty or personalty. Necessity
2072-403: Is required in false imprisonment, hence the requirement of a result of awareness or damage. For example, Dave calls Paula into a room with one door. Dave closes the door and stands in front of it. He tells Paula that if she wants to leave, he will take out a gun and shoot her. (Note that this would overcome the will of an ordinary person to leave.) An hour later, Dave changes his mind and leaves
2146-473: Is safer or arguably safer to violate than to comply with it. This happened in Tedla v. Ellman . A statute required pedestrians using roadways to walk against traffic. At the time in question, there was heavy traffic going the opposite direction as the plaintiff. Therefore, the plaintiff would have had to walk past many more vehicles, arguably increasing his chances of being hit. So, the plaintiff walked with traffic on
2220-407: Is sailing on a lake when a violent storm suddenly breaks out. She navigates to the nearest dock and quickly ties up her vessel, not damaging the dock at all. The dock belongs to Dave. Dave attempts to exercise the privilege of defense of property, as Paula would ordinarily be committing a trespass to land in this situation, and unties the vessel. Paula therefore drifts back away from the shore. Her boat
2294-410: Is specifically trying to hit someone with a bullet. This element would be satisfied, as David had an actual desire to procure the harm required for this tort. Alternatively, Dave shoots a gun into a crowd of people for some reason and genuinely hopes no one gets hit but knows that it is virtually inevitable that someone will actually get hit. This element would still be satisfied, as David had knowledge to
Ultramares Corp. v. Touche - Misplaced Pages Continue
2368-451: Is typically a defense to trespass to land. There are two kinds of necessity, private and public. This is a partial privilege. A party who has this privilege is still liable for damage caused. This defense is therefore more important when there is a concomitant issue of whether the opposing party has a valid privilege of defense of property. The following example is derived from an actual Vermont case from 1908 called Ploof v. Putnam . Paula
2442-462: Is typically considered to be unreasonable when the disadvantages outweigh the advantages. Judge Learned Hand famously reduced this to algebraic form in United States v. Carroll Towing Co. : Where B < P L {\displaystyle B<PL} which means that if the b urden of exercising more care is less than the p robability of damage or harm multiplied by the severity of
2516-465: The Law of Torts, supra). In either view, however, what is released or set in motion is a physical force. We are now asked to say that a like liability attaches to the circulation of a thought or a release of the explosive power resident in words. Three cases in this court are said by the plaintiff to have committed us to the doctrine that words, written or oral, if negligently published with the expectation that
2590-507: The accounts when certified would be used to raise money and for that purpose supplied 32 certified and serially numbered copies: p. 442. On the faith of one of those copies, given to it on its demand, the plaintiff, Ultramares Corporation, lent Fred Stern and Company money. Stern declared bankruptcy in 1925. Ultramares sued Touche Niven for the amount of the Stern debt, declaring that a careful audit would have shown Stern to be insolvent. The audit
2664-438: The books, he thought the work of audit or verification might come later, and put it off accordingly. The time sheets, which are in evidence, show very clearly that this was the order of time in which the parts of the work were done. Verification, however, there never was either by Siess or by his superiors, or so the triers of the facts might say. If any had been attempted, or any that was adequate, an examiner would have found that
2738-423: The chattel but also is properly considered a forced sale. The plaintiff must tender the defendant the chattel. Therefore, a plaintiff may not elect to pursue this cause of action but instead trespass to chattel, namely when he wants to keep his chattel despite its potential damage. The following are affirmative defenses to intentional torts. Consent can be a defense to any intentional tort, although lack of consent
2812-488: The citadel of privity is proceeding in these days apace. How far the inroads shall extend is now a favorite subject of juridical discussion (Williston, Liability for Honest Misrepresentation, 24 Harv. L. Rev. 415, 433; Bohlen, Studies in the Law of Torts, pp. 150, 151; Bohlen, Misrepresentation as Deceit, Negligence or Warranty, 42 Harv. L. Rev. 733; Smith, Liability for Negligent Language, 14 Harv. L. Rev. 184; Green, Judge and Jury, chapter Deceit, p. 280; 16 Va. Law Rev. 749). In
2886-492: The completion of any of the five tortious acts will be considered an intentional act, even if the actual target of the tort is one other than the intended target of the original tort. The element of an act varies by whatever tort is in question but always requires voluntariness. For example, if Dave has a muscle spasm that makes his arm fling out to his side and hit Paula, who is standing next to him, any case that Paula attempts to bring against Dave for battery will fail for lack of
2960-399: The course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating
3034-520: The defendant desires or knows to a substantial certainty that his act will cause the plaintiff damage. They include battery , assault , false imprisonment , intentional infliction of emotional distress ("IIED"), trespass to land , trespass to chattels , conversion , invasion of privacy, malicious prosecution , abuse of process , fraud, inducing breach of contract, intentional interference with business relations, and defamation of character (libel/slander). The elements of most intentional torts follow
Ultramares Corp. v. Touche - Misplaced Pages Continue
3108-430: The defendants received an explanation, not very convincing, from Stern and Romberg. A cautious auditor might have been dissatisfied and have uncovered what was wrong. There was ground for suspicion also because of the inflation of the inventory. The inventory as it was given to the auditors, was totaled at $ 347,219.08. The defendants discovered errors in the sum of $ 303,863.20, and adjusted the balance sheet accordingly. Both
3182-407: The defendants that Paula names (possibly everyone on the medical staff that was in the room during her surgery) jointly and severally liable. The act of each defendant is likewise said to be an actual cause, even if this is a fiction. Another test deals with cases in which there are two actual causes but only one is negligent. For example, there are three equidistant points, A, B, and C. Paula's house
3256-409: The duty to prevent decreases; if the likelihood of damage or the severity of the potential damage increases, then duty to prevent increases. There are other ways of establishing breach, as well. This is also known as negligence per se . An incident would not have happened if there was not a breach. Breach can be shown in most jurisdictions if a defendant violates a statute that pertains to safety and
3330-421: The entries in the journal, was $ 644,758.17. At some time on February 3, Romberg, an employee of the Stern company, who had general charge of its accounts, placed below that total another item to represent additional accounts receivable growing out of the transactions of the month. This new item, $ 706,843.07, Romberg entered in his own handwriting. The sales that it represented were, each and all, fictitious. Opposite
3404-455: The entry in the ledger was not supported by any entry in the journal. If from the journal he had gone to the book from which the journal was made up, described as "the debit memo book," support would still have failed. Going farther, he would have found invoices, seventeen in number, which amounted in the aggregate to the interpolated item, but scrutiny of these invoices would have disclosed suspicious features in that they had no shipping number nor
3478-426: The entry were placed other figures (12-29), indicating or supposed to indicate a reference to the journal. Siess when he resumed his work saw the entries thus added, and included the new item in making up his footings, with the result of an apparent increase of over $ 700,000 in the assets of the business. He says that in doing this he supposed the entries to be correct, and that his task at the moment being merely to post
3552-412: The evidence of negligent conduct. Res ipsa loquitur requires that the defendant have exclusive control over the thing that causes the injury and that the act be one that would not ordinarily occur without negligence. Likely defendant negligence was responsible and plaintiff was not cause. Causation is typically a bigger issue in negligence cases than intentional torts. However, as mentioned previously, it
3626-406: The expected l oss, and a person fails to undertake the burden, he is not exercising reasonable care and is thus breaching his duty to do so (assuming he has one). In other words, the burden of prevention is less than the probability that the injury will occur multiplied by the gravity of the harm/injury. Under this formula, duty changes as circumstances change—if the cost of prevention increases, then
3700-439: The extent of the discrepancy and its causes might have been found to cast discredit upon the business and the books. There was ground for suspicion again in the record of assigned accounts. Inquiry of the creditors gave notice to the defendants that the same accounts had been pledged to two, three and four banks at the same time. The pledges did not diminish the value of the assets, but made in such circumstances they might well evoke
3774-478: The eye of prudence, the one who launches it is under a duty to keep it within bounds (Moch Co. v. Rensselaer Water Co., supra, at p. 168). Even so, the question is still open whether the potentialities of danger that will charge with liability are confined to harm to the person, or include injury to property (Pine Grove Poultry Farm v. Newton B.-P. Mfg. Co., 248 N. Y. 293, 296; Robins Dry Dock & Repair Co. v. Flint, 275 U. S. 303; American Law Institute, Restatement of
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#17328521283123848-450: The facts of that case more extreme, Paula goes to the hospital for an appendectomy. She wakes up, and finds her left arm has also been amputated for no apparent reason. (Note that this would implicate multiple issues and other causes of action than negligence.) For purposes of actual cause, unless there is evidence or an admission of negligent conduct, Paula will be unable to show an actual cause. In this situation too, most courts will hold all
3922-436: The field of the law of contract there has been a gradual widening of the doctrine of Lawrence v. Fox (20 N. Y. 268), until today the beneficiary of a promise, clearly designated as such, is seldom left without a remedy (Seaver v. Ransom, 224 N. Y. 233, 238). Even in that field, however, the remedy is narrower where the beneficiaries of the promise are indeterminate or general. Something more must then appear than an intention that
3996-402: The general ledger since April, 1923. Siess, a junior accountant, was assigned by the defendants to the performance of that work. On Sunday, February 3, 1924, he had finished the task of posting, and was ready the next day to begin with his associates the preparation of the balance sheet and the audit of its items. The total of the accounts receivable for December, 1923, as thus posted by Siess from
4070-405: The information. (2) Except as stated in subsection (3), the liability stated in subsection (1) is limited to loss suffered (a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and (b) through reliance upon it in a transaction that he intends the information to influence or knows that
4144-473: The law of torts a manufacturer who is negligent in the manufacture of a chattel in circumstances pointing to an unreasonable risk of serious bodily harm to those using it thereafter may be liable for negligence though privity is lacking between manufacturer and user (MacPherson v. Buick Motor Co., 217 N. Y. 382; American Law Institute. Restatement of the Law of Torts, § 262). A force or instrument of harm having been launched with potentialities of danger manifest to
4218-402: The most common source of common law. Most Americans are under the impression that most people can sue for any type of negligence, but it is untrue in most US jurisdictions (partly because negligence is one of the few torts for which ordinary people can and do obtain liability insurance.) It is a form of extracontractual liability that is based upon a failure to comply with the duty of care of
4292-421: The other side of the road, thus violating the statute. There were far fewer vehicles travelling that direction, but the plaintiff was hit anyway. Even though the purpose of the statute was to prevent precisely the result that occurred, the plaintiff nonetheless prevailed because of a valid excuse for violating the statute, namely that it was probably safer not to comply. Breach can be shown in most jurisdictions if
4366-399: The plaintiff no duty of care, there being no sufficiently proximate relationship. The two causes of action will be considered in succession, first the one for negligence and second that for fraud. (1) We think the evidence supports a finding that the audit was negligently made, though in so saying we put aside for the moment the question whether negligence, even if it existed, was a wrong to
4440-500: The plaintiff suffers great harm, yet because multiple acts by multiple defendants, the but for test is unhelpful. This situation occurred in the famous case of Summers v. Tice . For example, Dan and Dave both negligently fire their shotguns at Paula. Paula is struck by only one pellet and it is impossible to determine which gun it was fired from. Using the but for test alone, Dan and Dave can both escape liability. Dan can say that but for his own negligence, Paula still might have suffered
4514-423: The plaintiff. To explain fully or adequately how the defendants were at fault would carry this opinion beyond reasonable bounds. A sketch, however, there must be, at least in respect of some features of the audit, for the nature of the fault, when understood, is helpful in defining the ambit of the duty. We begin with the item of accounts receivable. At the start of the defendant's audit, there had been no posting of
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#17328521283124588-546: The premises. Paula subsequently leaves and is not physically injured at all. Her awareness of confinement is sufficient to satisfy the element of the result in false imprisonment. Alternatively, Paula is a narcoleptic. She suddenly falls into a deep sleep while feeding the chickens in a barn on Dave's farm in a remote area. Not wanting to move her, Dave locks her in the barn from the outside when he needs to go into town, trying to protect her but also knowing that she won't be able to leave (or call for help) if she wakes up. While Dave
4662-399: The promise shall redound to the benefit of the public or to that of a class of indefinite extension. The promise must be such as to "bespeak the assumption of a duty to make reparation directly to the individual members of the public if the benefit is lost" (Moch Co. v. Rensselaer Water Co., 247 N. Y. 160, 164; American Law Institute, Restatement of the Law of Contracts, § 145). In the field of
4736-430: The purpose of which is to prevent the result of the case. Note that this is an alternative way to show breach. A violation of statute will not have occurred in every case. Therefore, just because it cannot be shown does not mean that there has been no breach. Even if it is attempted to be shown but fails, there may be other bases of breach. Occasionally, there is a valid excuse for violating a safety statute, namely when it
4810-488: The reader or listener will transmit them to another, will lay a basis for liability though privity be lacking. These are Glanzer v. Shepard (233 N. Y. 236); International Products Co. v. Erie R. R. Co. (244 N. Y. 331), and Doyle v. Chatham & Phenix Nat. Bank (253 N. Y. 369). A requirement of privity, not of contract but of relationship, was laid down. Information Negligently Supplied for the Guidance of others (1) One who, in
4884-1057: The recipient so intends or in a substantially similar transaction. (3) The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them. Chatfield, Michael. "Utramares Corporation v. Touche, Niven & Company." History of Accounting: An International Encyclopedia, New York: Garland Publishing, 1996. full-text New York (State). Court of Appeals. Ultramares Corporation, vs. Touche, Niven & Co. New York, 1930 Vol.1 full-text Vol. 2 full-text US tort law This article addresses torts in United States law . As such, it covers primarily common law . Moreover, it provides general rules, as individual states all have separate civil codes . There are three general categories of torts: intentional torts , negligence , and strict liability torts. Intentional torts involve situations in which
4958-412: The requisite act (which will be discussed in the section on battery, below). The act was not voluntary. This element typically refers to damage, although damage is not required to prevail on certain intentional torts, such as trespass to land. This element refers to actual cause and proximate cause. It will be treated in its own section. A person commits a battery when he acts either intending to cause
5032-412: The result. This is another intentional tort for which no damage is ordinarily required. However, some jurisdictions require the accompaniment of physical effects. In other words, emotional distress will not be deemed to exist in those jurisdictions unless there are physical manifestations, such as vomiting or fainting. A person commits trespass to land when he wrongfully and intentionally enters, or causes
5106-409: The rightful possessor's control results that is so serious that it requires the actor to pay the full value of the chattel to the rightful possessor. An exercise of dominion and control refers to the act. Serious interference refers to the result. Seriousness is determined by the following factors: The remedy for this cause of action not only requires the defendant to pay the plaintiff the full value of
5180-476: The same harm. Dave can make the same argument. As a matter of public policy, most courts will nonetheless hold Dan and Dave jointly and severally liable. The act of each defendant is therefore said to be an actual cause, even if this is a fiction. A similar situation arises when it is impossible to show that the defendant(s) was/were negligent at all. This almost inevitably arises in cases also involving res ipsa loquitor. See Ybarra v. Spangard . For example, making
5254-406: The same pattern: intent, act, result, and causation. This element typically requires the defendant to desire or know to a substantial certainty that something will occur as a result of his act. Therefore, the term intent, for purposes of this section, always includes either desire or knowledge to a substantial certainty. For an example in battery, Dave shoots a gun into a crowd of people because he
5328-449: The state of mind and conduct of the reasonable man. Even so, the adverse verdict, when rendered, imports an alignment of the weights in their proper places in the balance and a reckoning thereafter. The reckoning was not wrong upon the evidence before us, if duty be assumed. We are brought to the question of duty, its origin and measure. The defendants owed to their employer a duty imposed by law to make their certificate without fraud, and
5402-519: Was found to be negligent, but not fraudulent. The judge set this finding aside based on the doctrine of privity, which protects auditors from third party suits. An intermediate appellate court reinstated the negligence verdict. The case then went to the New York Court of Appeals, Judge Benjamin Cardozo presiding. Cardozo, C.J., held that the claim in negligence failed on the ground that the auditors owed
5476-422: Was submitted to the jury and the verdict was returned upon the theory that even in the absence of a misstatement of a fact there is a liability also for erroneous opinion. The expression of an opinion is to be subject to a warranty implied by law. What, then, is the warranty, as yet unformulated, to be? Is it merely that the opinion is honestly conceived and that the preliminary inquiry has been honestly pursued, that
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