Five Classic Cases


This is the case with which Professor Kingsfleld opens his harrowing contracts course in the novel and movie The Paper Chase. And it’s a good first case, for the real issue in it is one of the most basic matters of contract law. The lower-court judge had instructed the jury to fix restitution on the basis of “what pain and suffering [Hawkins] has been made to endure and what injury he has sustained over and above the injury that he had before.” That might have been a proper charge in a torts case—torts are wrongs like negligence; in Rembar’s words, torts are “essentially what’s left when you take away criminal law, contract law, divorce law, property law, and every other field of law that bears a name of its own.” Hawkins v. McGee, since it concerns the doctor’s promise as a legal guarantee, is a contract matter. And in a contract dispute, in American and English law, the only proper basis for fixing recovery is the difference in value between what was promised and what, if anything, was delivered. Suffering is irrelevant.

In this case, the question ultimately was academic. Hawkins and McGee settled out of court.


Charles Summers, Harold Tice, and Ernest Simonson went hunting. Tice and Simonson shot simultaneously at a quail in Summers’s direction, and one of their bullets hit Summers in the eye. He sued them for negligence and won; they appealed, claiming that they could not both be guilty for one bad shot. On appeal, the judgment against them was affirmed.

“This case is on the surface illogical,” says Rembar “If two or more people act in concert in committing’ tort, you can sue either or both for the full amount. But here the defendants, though each was negligent, acted independently. Yet the court applies the ‘concert’ rule. What it is really doing is invoking what one might call the counter-principle principle. If the settled law leads to what the court feels is an outrageous result, it will sometimes disregard principle. The ‘sometimes’ is important, though. In general, principles are followed, even when the result is harsh. Otherwise the law would be chaotic. Just how outrageous the result must be to lead a court to abandon a principle is part of the art of judging, and part of the art of the lawyer in giving advice to his client.”

This case has become a well-known legal precedent, establishing what is called the Doctrine of Summers v. Tice. Recently there have been efforts to apply it to cases in which it is impossible to determine what brand of a dangerous medication a victim took decades before. However, almost all courts have declined to extend the doctrine that far.


Brian Dailey, age five, was visiting Naomi and Ruth Garratt, adults. Ruth Garratt prepared to sit down in a lawn chair, and Brian pulled it away and sat in it himself. She fell and broke her hip and sued him for battery. The trial court dismissed her case; she appealed. On appeal, the case was remanded to the trial court for clarification.

“Undoubtedly this case is taught partly because the pulled chair is a classic symbol of sadistic humor,” says Rembar. “But also it brings up the problem of intent that comes up so often both in the field of torts and in criminal law. It’s a good case for a professor to play around with by varying the facts.” The lower court had accepted Brian’s testimony that he had no intention of actually hurting the arthritic Ruth Garratt, that she hadn’t begun to sit down when the incident began, and that he had even tried to put the chair back under her as she sat. The appeals court—after confirming that “when a minor has committed a tort with force he is liable to be proceeded against as any other person would be”—explained that under common law, Brian did not have to intend to hurt Ruth Garratt to be liable; he had only to know with “substantial certainty” that his intentional action would cause her to hit the ground, which would be a harmful result. Thus the issue was not Brian’s motivation or timing, but simply whether he knew that the frail Ruth Garratt would try to sit.

When the case was returned to the trial judge for real consideration of the facts, he entered a judgment of eleven thousand dollars against Brian.