Mohr v Williams

Fact pattern and procedural history

Defendant physician was asked to evaluate a condition of the plaintiff patient’s right ear and determined it to be in need of surgical treatment. After the patient was anesthetized and prepped for surgery, the physician found that the condition of her right ear did not in fact require immediate intervention but the left ear did. The physician consulted with a family doctor, who confirmed the diagnosis, and the physician completed an ossiculectomy. Upon resumption of consciousness, plaintiff sued for hearing loss and battery. A jury found for the plaintiff but the award was set aside as excessive and both parties appealed.

Questions of law

Can an action for assault and battery be sustained if there was no evil intent on the part of the defendant and the plaintiff has previously consented to a similar operation? Is the finding of a diseased condition during one operation constitute an emergency defense?



The court refused to overturn the jury’s finding of no emergency, ruling that the physician should have sought the plaintiff’s consent. Moreover, the court held that the lack of wrongful intent or negligence did not preclude a finding of assault and battery, and that there was no implied consent. Being unauthorized, the alternate surgical intervention was therein unlawful (unlike in a criminal case, in which unlawful intent would be an element). The court did note that the degree of damages need be limited to actual injuries and that the benefit she received would be a factor.


More recent courts have interpreted implied consent more broadly, and this question has become generally moot due to the explicit consent to treatment forms which have become customary in hospitals and other medical settings.

Dougherty v Stepp

Fact pattern and procedural history

A defendant entered the property of another with a surveyor under the auspices of identifying his own property line. There were no posted signs or fencing. Damage to the property was minimal. Plaintiff sued for trespass quare clausum fregit and the judge directed the jury to find no trespass, leading to appeal by plaintiff.

Questions of law

Can an action for trespass qcf be maintained if there is no signage or boundary to identify the property line? Does the degree of property damage make the difference between a trespass and non-trespass? Can the same action be maintained if the trespasser believes it to be his own property?


The court found for the appellant plaintiff, holding that “the entry constitutes the trespass” and that the degree of damage to the property is immaterial to the presence of the intentional tort. The existence of marked or erected boundaries is similarly inconsequential, as are any inaccurate beliefs about property lines held by the trespasser.

Vosburg v Putney

Fact pattern and procedural history

During class, minor defendant lightly kicked minor plaintiff on the shin. Plaintiff subsequently succumbed to an infection associated with a former injury which left him without the further use of that limb. The trial court held for the plaintiff and it was reversed on appeal.


Questions of law

Did the defendant’s lack of intent to cause harm, as determined by the jury, render his act non-tortious?


The court held that an intentional tort in this context required either an unlawful touching or an intent to cause harm, but that the defendant’s lack of apprehension of serious harm was not a factor. Had the act happened on a playground or other area where contact was commonplace, it would have required an additional level of harmful intent, but because it took place after the class was called to order, the touching was out of order and was therefore unlawful battery, making the minor defendant responsible for the consequences of his actions regardless of whether those consequences were reasonably foreseeable.


The advent of modern medical science would likely have caused a modern jury to render a different verdict, given the severity of the permanent injury. It is unlikely that the described pathology was asymptomatic or benign prior to the unlawful touching, and therefore a modern jury would have likely held that the damages were nominal.

Stambovsky v Ackley

Fact Pattern

The case involves two parties, a buyer and a seller, who entered into a contract for the purchase of real property. Prior to the sale, the seller had been made aware that the property had a reputation in the community as a haunted house, and took steps to encourage this belief. The buyer, who was out of state, was unaware and was not notified. Thereafter, the buyer sued for rescission of the contract and recovery of his deposit, claiming the hauntedness of the property was adversely affected its value and should have been disclosed. The seller sued for specific performance, and the lower court held in favor of the seller.



Question of Law

The question before the court was whether the seller, having actual knowledge of an adverse condition associated with the property, voids the contract by failing to disclose the same to the unsuspecting buyer. The law within that jurisdiction generally held caveat emptor, placing the responsibility on the buyer to find any defects in the property, and so the court needed to determine whether caveat emptor relieved seller of responsibility.

The majority opinion held that because the actual or potential hauntedness of the property could not be reasonably determined by inspection on the part of the buyer, caveat emptor did not apply. Moreover, as the seller was clearly aware of the property’s status and had taken steps to promote it, the seller was aware that it could affect the value of the property and had failed to disclose it. The lower court’s decision was reversed.
Defendant seller deliberately fostered the public belief that her home was possessed. Having undertaken to inform the public-at-large, to whom she has no legal relationship, about the supernatural occurrences on her property, she may be said to owe no less a duty to her contract vendee. It has been remarked that the occasional modern cases which permit a seller to take unfair advantage of a buyer’s ignorance so long as he is not actively misled are “singularly unappetizing” . . . Where, as here, the seller not only takes unfair advantage of the buyer’s ignorance but has created and perpetuated a condition about which he is unlikely to even inquire, enforcement of the contract (in whole or in part) is offensive to the court’s sense of equity.
Additional Notes
The dissenting opinion held that because the sale had taken place at arm’s length, the seller did not have an obligation to disclosure and thus the contract was not void.