Summers v. Tice 两人开枪不知谁的子弹致害，怎么办？ Shift Burden of Proof

In Summers v. Tice, two hunters simultaneously fired their guns and one pellet of shot struck a third member of the party. Instead of dismissing the action against both for lack of conclusive proof against either, the court shifted the burden of proving lack of causation to the two defendants." Thus, the innocent plaintiff was allowed to recover where the negligence of the defendants was clear and only the issue of causation was in doubt.

The holding in Summers was predicated in part upon the celebrated decision in Ybarra v. Spangard. While that case dealt primarily with a res ipsa laquitur situation, the practical difficulties were similar. There the plaintiff sustained an injury while anesthetized on an operating table. The burden of demonstrating which among the many doctors and nurses who had participated in the operation had caused the injury proved to be impossible. In view of the unfairness of this burden, the court came to the plaintiff's aid and held that under the res ipsa loquitur doctrine, plaintiff could maintain his claim against everyone who had any connection with the operation, and the burden was on the individuals to show their non-involvement.

Get The Most Out Of Employee Stock Options

By Gwenaelle Romain | Updated October 24, 2017 — 6:15 AM EDT

An employee stock option plan can be a lucrative investment instrument if properly managed. For this reason, these plans have long served as a successful tool to attract top executives. In recent years, they've become a popular means to lure non-executive employees.
Unfortunately, some still fail to take full advantage of the money generated by their employee stock. Understanding the nature of stock options, taxation and the impact on personal income is key to maximizing such a potentially lucrative perk.

What's an Employee Stock Option?
An employee stock option is a contract issued by an employer to an employee to buy a set amount of shares of company stock at a fixed price for a limited period of time. There are two broad classifications of stock options issued: non-qualified stock options (NSO) and incentive stock options (ISO).
Non-qualified stock options differ from incentive stock options in two ways. First, NSOs are offered to non-executive employees and outside directors or consultants. By contrast, ISOs are strictly reserved for employees (more specifically, executives) of the company. Secondly, nonqualified options do not receive special federal tax treatment, while incentive stock options are given favorable tax treatment because they meet specific statutory rules described by the Internal Revenue Code (more on this favorable tax treatment is provided below).
NSO and ISO plans share a common trait: they can feel complex. Transactions within these plans must follow specific terms set forth by the employer agreement and the Internal Revenue Code.

Grant Date, Expiration, Vesting and Exercise
To begin, employees are typically not granted full ownership of the options on the initiation date of the contract, also know as the grant date. They must comply with a specific schedule known as the vesting schedule when exercising their options. The vesting schedule begins on the day the options are granted and lists the dates that an employee is able to exercise a specific number of shares.
For example, an employer may grant 1,000 shares on the grant date, but a year from that date, 200 shares will vest, which means the employee is given the right to exercise 200 of the 1,000 shares initially granted. The year after, another 200 shares are vested, and so on. The vesting schedule is followed by an expiration date. On this date, the employer no longer reserves the right for its employee to purchase company stock under the terms of the agreement.
An employee stock option is granted at a specific price, known as the exercise price. It is the price per share that an employee must pay to exercise his or her options. The exercise price is important because it is used to determine the gain, also called the bargain element, and the tax payable on the contract. The bargain element is calculated by subtracting the exercise price from the market price of the company stock on the date the option is exercised.

Taxing Employee Stock Options
The Internal Revenue Code also has a set of rules that an owner must obey to avoid paying hefty taxes on his or her contracts. The taxation of stock option contracts depends on the type of option owned.
For non-qualified stock options (NSO):
• The grant is not a taxable event.
• Taxation begins at the time of exercise. The bargain element of a non-qualified stock option is considered "compensation" and is taxed at ordinary income tax rates. For example, if an employee is granted 100 shares of Stock A at an exercise price of $25, the market value of the stock at the time of exercise is $50. The bargain element on the contract is ($50 to $25) x 100 = $2,500. Note that we are assuming that these shares are 100 percent vested.
• The sale of the security triggers another taxable event. If the employee decides to sell the shares immediately (or less than a year from exercise), the transaction will be reported as a short-term capital gain (or loss) and will be subject to tax at ordinary income tax rates. If the employee decides to sell the shares a year after the exercise, the sale will be reported as a long-term capital gain (or loss) and the tax will be reduced.
Incentive stock options (ISO) receive special tax treatment:
• The grant is not a taxable transaction.
• No taxable events are reported at exercise. However, the bargain element of an incentive stock option may trigger alternative minimum tax (AMT).
• The first taxable event occurs at the sale. If the shares are sold immediately after they are exercised, the bargain element is treated as ordinary income.
• The gain on the contract will be treated as a long-term capital gain if the following rule is honored: the stocks have to be held for 12 months after exercise and should not be sold until two years after the grant date. For example, suppose that Stock A is granted on January 1, 2007 (100% vested). The executive exercises the options on June 1, 2008. Should he or she wish to report the gain on the contract as a long-term capital gain, the stock cannot be sold before June 1, 2009.

Other Considerations
Although the timing of a stock option strategy is important, there are other considerations to be made. Another key aspect of stock option planning is the effect that these instruments will have on overall asset allocation. For any investment plan to be successful, the assets have to be properly diversified.
An employee should be wary of concentrated positions on any company's stock. Most financial advisors suggest that company stock should represent 20 percent (at most) of the overall investment plan. While you may feel comfortable investing a larger percentage of your portfolio in your own company, it's simply safer to diversify. Consult a financial and/or tax specialist to determine the best execution plan for your portfolio.

Bottom Line
Conceptually, options are an attractive payment method. What better way to encourage employees to participate in the growth of a company than by offering them to share in the profits? In practice, however, redemption and taxation of these instruments can be quite complicated. Most employees do not understand the tax effects of owning and exercising their options.
As a result, they can be heavily penalized by Uncle Sam and often miss out on some of the money generated by these contracts. Remember that selling your employee stock immediately after exercise will induce the higher short-term capital gains tax. Waiting until the sale qualifies for the lesser long-term capital gains tax can save you hundreds, or even thousands.

Madsen v. East Jordan Irr. Co., (爆炸导致貂杀子 and Contributory Negligence)

 Madsen v. East Jordan Irr. Co., 125 P.2d 794 (Utah 1942)
Utah Supreme Court

This is an appeal from a decree of the lower court sustaining a general demurrer to appellant's amended complaint and entering judgment for the respondent.

The facts, as alleged in the amended complaint, are as follows: Appellant owns the Madsen Mink Farm in Sandy, Utah, using said farm to breed and raise mink for sale. The farm is located 100 yards north of respondent's irrigation canal and, on May 5, 1941, respondent, in repairing its canal, blasted with explosives, causing vibrations and noises which frightened the mother mink and caused 108 of them to kill 230 of their "kittens" (offspring). The appellant further alleges that, by nature, habit and disposition all mink, when with and attending their young, are highly excitable and, when disturbed, will become terrified and kill their young. Appellant places a value of $25 each on said "kittens" and seeks to recover $5,750 as damages.

Respondent filed a general demurrer to the amended complaint, which demurrer was sustained and appellant given five days in which to amend.

Appellant failed to amend and judgment was entered for the respondent. It is from such judgment that this appeal is taken.

Respondent, in his brief, contends that, because the injury in the present case was consequential rather than immediate, the amended complaint does not state facts sufficient to constitute a cause of action in trespass. He further contends that the amended complaint did not state facts sufficient to constitute a cause of action in case.

It is conceded that the rule of absolute liability prevails when one uses explosives and the blasting of said explosives results in hurling of rock, earth or debris which causes injury to another. 22 Am. Jur., Explosions, Page 179, Paragraph 53; 25 C.J. 192. The weight of authority 1, 2 sustains the position that there is no distinction in liability for damage in nonconcussion and concussion cases. *Page 554 This majority rule, led by California, prevails in 14 jurisdictions.

The minority rule, led by New York, holds that negligence must be alleged in concussion cases. These jurisdictions do not concede liability in blasting cases where damage is caused by shock or air vibrations rather than the hurling of rock, earth or debris. This distinction is based upon the historical differences between the common-law actions of trespass and case. There is no practical difference between liability occasioned by blasting which projects rocks on another's property or by creating a sudden vacuum and resultant concussion. 92 A.L.R. 742. Had the concussion in the instant case killed the kittens directly, without the intervention of the mother minks, the majority rule of liability in concussion cases would have been applicable, but the case at bar presents the additional element of the mother minks' independent acts, thereby raising a question of proximate causation. Query: Did the mother minks' intervention break the chain of causation and therefore require an allegation of negligence?

Many years ago (1896) a Maine court held that the intervening act of an animal broke the chain of causation to such extent that blasting could not be considered the proximate cause of injury and negligence on the part of the blaster had to be proved.Wadsworth v. Marshall, 88 Me. 263, 34 A. 30, 32 L.R.A. 588. In the Wadsworth case, the plaintiff was riding along a public highway near which defendant was operating a quarry. He exploded a blast which frightened plaintiff's horse and she (plaintiff) was injured. There was a Maine statute requiring persons engaged in blasting to give reasonable notice of their intention to blast to all persons in the vicinity of the blast. The trial court excluded testimony as to the viciousness and nervousness of plaintiff's horse, proceeding upon the ground that defendant violated the statute by failing to give the required notice and therefore he was liable regardless of the character of the horse or any negligence of the plaintiff. The appellate court reversed the lower court's decision, holding that it would be a harsh construction of the statute to hold that the negligence of the quarry-man in not giving notice subjected him to liability for damages largely, if not wholly, resulting from the negligence of the traveler in riding an unsuitable horse. The court ruled that "the established doctrine of contributory negligence, as a defense, applies to this class of actions."

While the above ruling interjects an element — contributory negligence — which is absent in the present case, it impresses one with the thought that he who fires explosives is not liable for every occurrence following the explosion which has a semblance of connection to it. Jake's horse might 3-5 become so excited that he would run next door and kick a few ribs out of Cy's jersey cow, but is such a thing to be anticipated from an explosion? Whether the cases are concussion or nonconcussion, the results chargeable to the nonnegligent user of explosives are those things ordinarily resulting from an explosion. Shock, air vibrations, thrown missiles are all illustrative of the anticipated results of explosives; they are physical as distinguished from mental in character. The famous Squib case does not mitigate what has been said in the preceding lines. That was a case where the mental reaction was to be anticipated as an instinctive matter of self-preservation. In the instant case, the killing of their kittens was not an act of self-preservation on the part of the mother mink but a peculiarity of disposition which was not within the realm of matters to be anticipated. Had a squib been thrown and suddenly picked up by a dog, in fun, and carried near another, it is ventured that we would not have had a famous Squib case, as such a result would not have been within the realm of anticipation.

We are of the opinion that the lower court properly sustained the demurrer.

Judgment affirmed. Costs to respondent. 

MOFFAT, C.J., and LARSON and McDONOUGH, JJ., concur.

Courvoisier v Raymond (骚乱中示警鸣枪误伤警察是侵权吗)

Facts
Defendant was asleep in the second story of a building. He occupied a portion of the lower floor of this building as a jewelry store. Parties shaking or trying to open the door of the jewelry store woke Defendant up. These parties insisted on being admitted into the jewelry store. Upon Defendant’s refusal, the parties broke some signs and entered the building through another entrance. The parties knocked on the door where Defendant’s sister was sleeping. Defendant grabbed his gun and chased the parties out of the building. In order to frighten the parties, Defendant fired a warning shot in the air. The parties were not scared and threw bricks at Defendant. Defendant fired more warning shots. The first warning shot attracted Plaintiff, a police officer. Plaintiff approached Defendant, calling out to him that he was a police officer and to stop shooting. It was dark but the street was well lighted. Defendant took aim of Plaintiff and fired, causing injury to Plaintiff. Plaintiff
claims that Defendant, knowing him to be a police officer, recklessly fired the shot in question. Defendant claims that Plaintiff was approaching in a threatening manner and the surrounding circumstances were such to cause a reasonable man to believe that his life was in danger. The trial court held in favor of Plaintiff. Defendant appealed.

Issue. During a riot, is one justified in shooting another in an act of self-defense if he believes the other person to be one of the rioters?

Held. Yes. Judgment reversed.
* The jury instruction “if plaintiff was not assaulting defendant, then your verdict should be for plaintiff” was erroneous. It excluded from the jury a full consideration of the justification claimed by the defendant. If the jury believed that Defendant would have been justified in shooting one of the rioters and that Defendant mistook Plaintiff for one of the rioters, then Defendant would be entitled to a judgment in his favor, as long as, the circumstances of the shooting were excusable leading up to and surrounding the commission of the shooting. Defendant’s justification did not rest entirely upon the proof of assault by Plaintiff. A riot was in progress. The Defendant claimed he was hit with stones and that he shot Plaintiff thinking he was a rioter. The jury might have ruled in favor of Defendant if the erroneous jury instruction was not submitted to the jury.

Hudson v. Craft (无照经营的拳击比赛中选手受伤，可以索赔?)

Facts 
Plaintiff brought suit against Defendant for injuries sustained in an unlicensed boxing match. Defendant was conducting a carnival where one of the concessions consisted of boxing exhibitions. These boxing exhibitions were in violation of section 412 of the Penal Code and the Business and Professions Code (chap. 2 div. 8), because prizes and prize money was given to boxing contestants and no license had been obtained. Defendant offered Plaintiff $5 to engage in a boxing match. Plaintiff suffered personal injuries as the result of being struck by his opponent. Plaintiff was 18 years old. Plaintiff brought suit against Defendant to recover for the injuries he sustained. The lower court ordered a judgment of dismissal, because of Plaintiff’s failure to amend their complaint, after a demurrer was sustained with leave to amend. Plaintiff appealed.

Issue
Is an unlicensed boxing promoter liable for the injuries of the boxers in the boxing match regardless of the rights and consent of the boxers?

Held. Yes. Judgment reversed.
* The majority view states that when consent is mutual, both parties can recover from the other for battery. The minority view, taken from Restatements of Torts, states that mutual consent prevents a touching from being tortious. The court held that the facts of this case fall under the exception to the rule in the Restatement.
* Under the exception to the rule, when it is a crime to inflict an invasion upon a class of persons and the policy of the law is to protect the interest of such a class of persons from the inability to appreciate the consequences of such an invasion, and is not solely to protect the interest of the public, the assent of such a person to such an invasion is not a consent thereto. In this case, Defendant’s conduct constituted a crime. Many boxing regulations were not followed. One of the chief goals of the rules and regulations of boxing matches is to provide safeguards for the protection of the boxers. In this case, Plaintiff, a boxer, is a member of the class to be protected by the rules and regulations. Thus, under the exception to the rule in the Restatement, Plaintiff’s consent to the boxing match does not relieve Defendant from liability.

Discussion. In this case Plaintiff’s consent did not release Defendant from liability because Defendant did not obtain a license and was in violation of the rules and regulations pertaining to boxing matches. Defendant is liable for the injuries sustained by Plaintiff as a matter of public policy. Public policy protects Plaintiff, a boxer, from the inability to appreciate the consequences of a boxing match.

Hodgeden v. Hubbard (财产被骗，可以武力夺回吗？另一个case brief)

VT Court - 1846

Facts:

• P bought a stove from D's department store on credit.
• P carried the stove away and D immediately realized that P had made a misrepresentation and did not have the credit to buy the stove.
• D chased after P and caught up to him 2 miles away.
• P drew a knife on D, and D had to resort to force to recover the stove.
• P sued D for assault, battery, and trespass to chattel.

Procedural History:

• Lower court found for P, D liable.
• Court reversed, D not liable.

Issues:

• May a person use reasonable force to recover property fraudulently obtained from him?

Holding/Rule:

• A person may use reasonable force to recover property fraudulently obtained from him.

Reasoning:

• The stove did not really pass from D to P since P obtained possession through fraud and misrepresentation.
• Thus, D still retained ownership of the stove, and P's possession was unlawful.
• In recovering the stove, no violence to the P was necessary if P had not resisted. When P drew his knife, P became the aggressor, and D had the right to hold him by force.
• As long as the force was not unnecessary, D was justified.

Dissent:

• None.

Notes:

• One can only recover a chattel immediately after it is unlawfully taken. (fresh pursuit).
• Reasonable force may be used (no serious bodily harm or deadly force).

Ranson v. Kitner (猎狼却猎到了人家的狗)

Facts 

Plaintiff sued Defendants for the value of his dog after they killed it while hunting wolves. Defendants admitted to killing Plaintiff’s dog, but argued that they were not liable because they did so out of a good faith belief that it was a wolf. The jury found them liable for the value of the dog.

Issue

Were Defendants entitled to relief from a jury verdict that they were liable for the value of the dog due to their good faith, mistaken belief that the dog was a wolf?

Held

No. The jury’s verdict was affirmed.

* When one damages another, he is liable for that damage, even if he would not have committed the act causing the damage but for a good faith but mistaken belief.

Discussion

This case focuses upon the intent relevant to liability. Defendants argued that they believed they were merely hunting a wolf, did not intend to kill anyone’s dog, and thus should not be held liable. The Court is unmoved by this argument, because the animal’s wolf status was not relevant to Defendants’ admitted intent to kill it, which is what caused the damages to Plaintiff.