The Triboindenter present many advantages for the measurement of friction and wear at the nanoscale. A reciprocating multi-cycle linear test can be programmed, from where it is possible to obtain simultaneously the friction force and wear rate from the lateral force and vertical displacement sensors, respectively. The friction values have high precision but the wear data is usually wrong in long duration tests because the drift rate is only measured just before the test start. Alternatively, one can program the SPM scanning mode of the instrument with a high load in order to produce the wear of the surface. At the end of the experiment, a squared hole is produced which can be measured using the SPM facility of the system. However, this wear experiment does not allow the simultaneous measurement of the friction coefficient.In this talk I will present a new methodology to measure in-situ the friction and wear of thin films using a Triboindenter TI-950 from Hysitron. I will show how the possible changes of drift rate during long-time tests can be overcome, obtaining simultaneous precise values of friction and wear rate as a function of time. I will discuss how the Triboimage® software can be adapted to this methodology in order to get realistic values of friction and wear. Finally I will show some results for soft (H &lt; 1GPa) Pb films and very hard (H ~ 35 GPa) nitride coating

Broitman, Esteban

English

Duke Law Scholarship Repository

DOG OWNERS' LIABILITY: STATUTORY EFFECTSAT COMMON LAW, one who keeps a dog which he knows to be viciousdoes so at his peril." But the law has traditionally recognized two de-fenses based on the nature of the injured party's conduct:' reckless orunreasonable assumption of risk and wilful provocation." Thus, onewho, with notice of the dangerous propensity of a dog, voluntarily andunnecessarily puts himself in the way of the animal is said to haveassumed the risk and must bear the consequences. Recovery is similarlydenied one who provokes attack by wilfully teasing or abusing a dog.On the other hand, contributing conduct which amounts to mere care-lessness or inadvertence is not recognized as a defense.4A number of states" have enacted statutes making the owner liablefor harms inflicted by his dog, irrespective of whether the animal hadpreviously manifested a vicious disposition and whether the owner hadnotice thereof. The apparent purpose of these so-called "dog-bite"' "The gist of an action for damages by a vicious dog, whose propensities are known,is not negligence in the manner of keeping the dog; it is keeping the dog at all . .. .Hunt v. Hazen, 197 Ore. 637, 639, 254 P.zd 210, 211 (1953). See z HARPER &JAMES, TORTS 833 (i956); PROSSER, ToRTs 324-25 (2d ed. 1955).'At common law the mere fact that the plaintiff is a trespasser at the time of beingbitten by a vicious dog is no defense in an action against the owner. Eberling v.Mutillod, 90 N.J.L. 478, oi Atl. 5i9 (1917)5 Sherfey v. Bartley, 36 Tenn. 21(,856); Brewer v. Furtwangler, x7 Wash. 617, 18 P.ad 837 (I933). But see,Conway v. Grant, 88 Ga. 40, 13 S.E. 803 (i891); Loomis v. Terry, x7 Wend. 496(N.Y. 1837).'Burke v. Fischer, 298 Ky. 157, 18z S.W.2d 638 (1944)i Sandy v. Bushey, 124Me. 320, 128 At. 513 (i925) i Muller v. McKesson, 73 N.Y. 195 (1878); Brown v.Barber, 26 Tenn. App. 534, 174. S.W.2d 298 (1943).' Thus, provocation caused by a mere accident, as stepping upon the dog's tail ornegligence in playing with the dog, will not bar recovery. Kelley v. Killourey, 8xConn. 320, 7o Adt. 1031 (i9o8). It is commonly said that ordinary contributorynegligence is not a defense because the defendant's liability is not based on negligence.See note i sapra; Sandy v. Bushey, supra note 3.'ALA. CODE tit. 3, § 1oz (Supp. 1953)5 ARIZ. REV. STAT. ANN. § 24-521 (1956);CAL. CiV. CODE §33425 CONN. GEN. STAT. §22-357 (1958); FLA. STAT. ANN.§ 767.04 (Supp. 1958)5 ILL. ANN. STAT. ch. 8, § 12d (Smith-Hurd, Supp. 1958);IND. ANN. STAT. § 16-214 (Supp. 1957); IOWA CODE ANN. § 351.28 (.94.9); MASS.ANN. LAWS ch. 140, § 155 (i957)5 MICH. CoMP. LAWS § 287.351 (1948); MINN.STAT. ANN. § 347.22 (1957) ; MONT. REV. CODE ANN. § 17-409 (1955) ; NEB. REv.STAT. § 54-601 (1952)i N.H. REV. STAT. ANN. § 466:19 (x955); N.J. STAT. ANN.§ 4:19-16 (939)5 OHIO REV. CODE ANN. § 955.28 (Page 1954.); OKLA. STAT. ANN.tit. 4, § 42. (.95.); R.I. GEN. LAWS ANN. ch. 4, § 13-x6 (1956); UTAH CODE ANN.§ .8-1-x (953); W. VA. CODE ANN. § ZI52 (1955); WS. STAT. § 174.02 (1955).DOG OWNERS' LIABILITYstatutes is merely to abrogate the common-law scienter doctrine, whichoften imposed upon the injured person a burden of proof tending un-duly to restrict recovery. Even where the owner has no notice of hisdog's vicious propensity, if the injured person's conduct is not of anature which would have afforded the owner a defense at common law,it is considered just that any loss fall upon the owner.Many of these "dog-bite" statutes are so worded as not only toabolish the requirement of scienter, but also ostensibly to deny8 certaincommon-law defenses. Yet, none of the statutes expressly abrogatethese defenses, and there is discernible in the decisions a reluctance toabandon them, a reluctance to hold an owner indiscriminately liable forinjuries caused by his dog.9In the recent case of Gomes v. Byrne,' arising under the Californiastatute,'" the plaintiff, a door-to-door salesman, was bitten as he enteredthe gate of the defendant's fence-enclosed yard. The defendant's dog,of a diminutive variety, had followed along the inside of the fence,barking continuously, as the plaintiff walked along outside. The Su-preme Court of California affirmed a judgment for the defendant, in-voking the theory of assumption of risk. The majority did not feelit was necessary to pass upon the trial court's holding that contributorynegligence was a defense under the statute.'2The California statute provides that an owner shall be liable "fordamages suffered by any person who is bitten by the dog while in apublic place or lawfully in a private place ... regardless of the former' Granniss v. Weber, 107 Conn. 6Z2, 6z5, i4i Atl. 877, 878 (1928) ; Wojewoda. v.Rybarczyk, 246 Mich. 641, 64, 2z5 N.W. 555 (1929).Granniss v. Weber, supra note 6.Many statutes explicitly provide one of the common law defenses, thereby impliedlyexcluding any other defense if the doctrine of inclusio unius est exclusio alterius isdeemed applicable. See note 16 infra."See, e.g., Gagnon v. Frank, 83 N.H. 122, 139 Atl. 373 (927); Schraeder v.Koopman, 190 Wis. 459, 209 N.W. 714 (i9z6).20 333 P.2d 754 (Cal. 1959)."' CAL. CIv. CODE § 334z.1" The trial court denied recovery on the grounds that "(x) plaintiff was not a busi-ness visitor or invitee on the premises; (2) that plaintiff was negligent in entering de-fendants premises; and (3) that plaintiff assumed the risk." 333 P.2d at 755. Themajority in the California Supreme Court said, "Since we have concluded that therecord sustains the finding that plaintiff assumed the risk, it is unnecessary to consider hiscontention that ... contributory negligence is not a bar to recovery under the DogBite Statute." Ibid.The dissenters did not regard the plaintiff's conduct as amounting to assumption ofrisk, and asserted that "ordinary contributory negligence is not a defense to liabilityunder Civil Code section 3342." Id at 756.Vol. i96o: 146]DUKE LAW JOURNALviciousness of the dog or the owner's knowledge of such viciousness."While such terms arguably manifest legislative intent to impose liabilityin all cases except where the injured person is a trespasser, the lowerCalifornia courts"3 have observed a less rigid policy toward owners'liability. Thus, in Smythe v. Schacht,'4 decided under the same statute,the court expressly denied that the legislature intended to make theowner's liability "absolute" and thereby "render inoperative certainprinciples of law such as assumption of risk or wilfully inviting injury,which over a long period of time have been established in our systemof jurisprudence." 5Statutes in a large number of the states expressly recognize twodefenses, wilful provocation and trespass,"" and it is reasonably certainthat- the defense of reckless assumption of the risk 7 will be judiciallyretained. In states where statutes have not expressly retained thecommon-law defense of wilful provocation, the courts have usually givenit effect in actions brought under the statutes. 8 In fact, as previouslystated, no statute has directly abrogated the standard defenses based onthe nature of the injured party's conduct, and only in Ohio" have alldefenses not expressly retained been deemed abrogated. Thus, theinstant case comports with the general policy manifest in other states,in that all the judges recognize assumption of risk as a defense underthe statute, despite the literal language of the California law.Beneath this general attitude of practical liberalism toward recovery,however, there has been a somewhat uneven application of the law."See, e.g., Elsworth v. Elite Dry Cleaners, Dyers and Laundry, 127 Cal. App. 7d479, 274 P.zd 17 (Dist Ct. App. 1954); Smythe v. Schacht, 93 Cal. App. 2d 315, 209P.zd 114. (Dist. Ct. App. 1949).2 Supra note 13. This case was cited by the dissenters in the instant case."3 Id. at 321, 209 P.zd at xiS."e Arizona, Connecticut, Florida, Illinois, Massachusetts, Michigan, Minnesota, Mon-tana, Ohio, and Oklahoma have provided both defenses. Alabama and Indiana haveretained "wilful provocation," and Nebraska, New Hampshire, and New Jersey' havemade "trespass" a defense. In addition, Connectitcut, Massachusetts, and New Hamp-shire have barred recovery to one injured while "committing a tort." In Iowa, aplaintiff is barred if he was "doing an unlawful act directly contributing to said injury. '"See note 5 supra." See Vandercar v. David, 96 So. 2d 2z7 (Fla. Dist. Ct. App. 1957); Raymond v,Hodgson, 161 Mass. 184, 36 N.E. 791 (894); Wojewoda v. Rybarezyk, 246 Mich.641, 225 N.W. 555 (1929); Lavalle v. Kaupp, 240 Minn. 360, 61 N.W.zd zzS(1953); Legault v. Malacher, z66 Wis. 58, x63 N.W. 476 (1917)."See, e.g., Gagnon v. Frank, 83 N.H. 122, 139 Adt. 373 (1927); Legault v.Malacher, supra note 17.9 See Dragonette v. Brandes, 35 Ohio St. 223, 2o N.E.d 367 0939).[Vol. x96o: 146DOG OWNERS' LIABILITYAt least in one state2" the courts have taken the statutory languageliterally and have emphatically refused to place any restrictions what-soever on the owner's liability. At the other extreme, there are courts21which have interpreted the general erosion of statutory language byjudicial decision as granting them license to impose liability even moresparingly than under common-law rules. Thus, the aggregate effect ofthese statutes has been to create an unsettled state of affairs in the law.It is submitted that, of several judicial attitudes, the position as-sumed by the courts of Minnesota2 2 effectuates the most desirable policy.In that state every dog owner is placed in the same position as one whounder the common law knowingly keeps a vicious dog. Accordingly, itis understood that the owner may avail himself of the traditional com-mon-law defenses of assumption of risk and wilful provocation as wellas any other defenses expressly provided by the legislature. Since thisseems consonant with the intention of the several legislatures, it is un-fortunate that the legislatures did not specifically spell out this inten-tion and thus avoid the confusion which has marked judicial applicationof the "dog-bite" statutes.20 See, e.g., Dragonette v. Brandes, supra note r9 ; Hill v. Skinner, &z Ohio App.375, 79 N.E.zd 787 (1947)5 Siegfried v. Everhart, 55 Ohio App. 351, 9 N.E.zd 891(1936)."See, e.g., Raymond v. Hodgson, 161 Mass. i84, 36 N.E. 791 (.894); Gagnon v.Frank, 83 N.H. i22, 139 Ad. 373 (927) 5 Schraeder v. Koopman, 190 Wis. 459, 209N.W. 714 (926).2 See, e.g., Lavalle v. Kaupp, 240 Minn. 360, 6z N.W.zd 228 (1953).Vol. z96o. 1461

Dog Owners’ Liability: Statutory Effects

Digitala Vetenskapliga Arkivet - Academic Archive On-line

A new method for in-situ measurement of nano-friction and nano-wear of thin films by using the Triboindenter TI-950

Publikationer från Linköpings universitet

Academic Archive On-line (Linköping University, Sweden)

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1706&amp;context=dlj

Dog Owners’ Liability: Statutory Effects

Abstract

Similar works

Full text

Available Versions

Duke Law Scholarship Repository

Digitala Vetenskapliga Arkivet - Academic Archive On-line

Publikationer från Linköpings universitet

Academic Archive On-line (Linköping University, Sweden)