篇一：美国侵权法案例1(英文)
Question #1
Every Saturday morning, Peter takes his six-year-old daughter to swimming lessons at Briarwood Fitness Center. He and his daughter are not members of the Center: he has merely bought a series of swimming lessons given in the Center’s teaching pool by Center staff. Normally, Peter sits beside the swimming pool while his daughter’s lesson proceeds. One Saturday morning, he leaves the side of the pool while his daughter is swimming. He wanders around the Center, inspecting the facilities. He watches some racketball games, looks into the beauty shop and cafeteria, then goes into the weight room. He decides to try out one of the weight machines.
Remembering his healthy youth, Peter selects a very heavy weight. He releases the brake on the machine, which sustains the weight until the user is ready to exercise. He rapidly discovers that he cannot sustain the weight that he has selected. His body crumples under the weight. Peter finds that he can only get out from underneath the weight by twisting and falling out of the machine. In doing so, he severely injures his back.
The weight machine in question is manufactured by DominaFlex, Inc. It bears a warning sticker next to the place where the user selects the weight to be lifted. The warning says: “WARNING. Always use spotters when you lift. Do not use this equipment without first receiving instruction or reading the information booklet.”
A “spotter” is someone who stands by the machine while the user is using it, to watch, encourage and give assistance if needed. Peter says he did not know what the term means.
Members of the Center are given instruction in how to use the weight machines before they are allowed to use the weight room. Although use of the weight room is supposed to be confined to Center members, there is no sign on the door of the weight room to that effect, nor has the Center put up any warning sign of its own by the machine. The instruction booklet was not left by the machine.
Peter wishes to sue both Briarwood Fitness Center and DominaFlex, Inc. Advise Peter about the issues that would be raised in these actions.
(Assume that the incident occurred in a jurisdiction that has not modified the traditional rules of occupier’s liability in any way, and where the law of products liability is based on the Restatement (Second) of Torts, Section:402A.)
. Peter v. Briarwood
1. Occupier’s liability
Because Peter was injured in a jurisdiction that has not modified the traditional rules of occupier’s liability, the first question must be what kind of entrant he was, because Briarwood’s duty as occupier of the premises in question is different for different classes of entrant.
The highest duty of care is owed to invitees. An invitee is either someone who uses a public space made generally available to the public at large (a public invitee) or someone who enters private premises to engage in some kind of business transaction that might benefit the occupier (a business invitee). Although many entrants use it, Briarwood Fitness Center is not a public building,
so Peter cannot be a public invitee. Like many businesses, the Center is open to any member of the public who wishes to enter, but it is privately owned. If Peter is to be classed as an invitee, he can only be a business invitee.
Peter is in the Center building to attend his daughter’s swimming lessons. He has paid the Center for those lessons, so he is plainly a business invitee when attending the lessons, even though he is not a member of the Center. However, Peter’s injuries were not sustained in the pool area. It is quite possible for a person’s entrant status to change from one part of a building to another. For example, if a hotel guest walks through a door clearly marked “No Entry: Staff Only”, he or she would cease to be an invitee and would become a trespasser.
In the present case, Peter has left the part of the Center where he was clearly a business invitee and has gone into a part of the building that was only open to members. The fact that Peter was not a member does not necessarily mean that he became a trespasser when he entered the weight room. There was no sign on the door stating that the weight room was only open to members. Other parts of the Center, such as the beauty shop and cafeteria, were obviously operating as businesses with a general invitation to members of the public to go inside and do business. There was no visible sign to distinguish the weight room from those other businesses.
A person can be a business invitee without actually conferring a benefit on the occupier, if the circumstances are such that the occupier’s premises are open to anyone who might confer a benefit. For example, any person who walks into a store during regular business hours is a business invitee whether or not he or she intends to buy a particular item and whether or not he or she actually buys anything. Peter would plainly have been a business invitee in the beauty shop and cafeteria. If he entered the weight room to check it out, possibly with a view to becoming a member, then he would be a business invitee in the same way. The Center’s rule is that the weight room should only be used by members; it does not preclude non-members from even entering the room. Peter may well have remained a business invitee when entering the weight room. At the very least, it seems likely that he was a licensee, which is someone who enters premises with the permission of the occupier but for his or her own purposes, without the intention to confer a benefit on the occupier. The door of the weight room was open and there was no sign indicating that it was any more private than any of the other spaces in the Center. That should be enough to establish the Center’s permission for entrants like Peter to enter the room. Implied permission to use the machines in the room would be slightly more difficult to find, but in the circumstances it seems unlikely that Peter would be considered a trespasser. That is a possibility, however. He did not actually have permission to use the machines. The mere fact that he could walk freely into the room would not automatically create the impression that he could freely use the machines in the room.
2. Occupier’s standard of care
If Peter was a business invitee in the weight room, then Briarwood owed him a duty of reasonable care, which would extend to warning him of any of the dangers of the property and also to making reasonable efforts to determine whether any such dangers existed. The machine had no warning
signs and there is nothing to indicate that Briarwood had made any effort to determine whether passers-by like Peter were using the machines. It may, however, have been an “open and obvious danger”, in which case Briarwood would have owed no duty to take protective steps in relation to it. The heaviness of the weights was obvious and the risk of lifting them should have been clear to Peter as well as Briarwood.
If Peter was merely a licensee in the weight room, Briarwood’s duty would be confined to one of warning him about concealed dangers known to it but not him. As noted above, the dangerousness of the machine does not seem to be particularly concealed. An occupier is not liable to a licensee who is injured by a condition of the premises of which both are aware.
If Peter was a trespasser when using the weight machine, Briarwood’s duty is only to avoid willful and wanton misconduct designed deliberately to harm him. Peter’s action against Briarwood would obviously fail if he fell into this category. There is nothing about the presence of the machine that amounts to a deliberate attempt by Briarwood to harm trespassers.
3. Comparative fault
If Peter is entitled to recover from Briarwood for a breach of any of the occupier’s duties, his recovery may be reduced on account of his own contributory negligence. His decision to lift without a spotter was unwise, even though he says that he did not know what the warning sign about “spotters” meant. A reasonable person would realize the dangers in lifting a heavy weight without practice or training. It seems likely that Peter failed to take reasonable care for his own safety. If the injury occurred in a jurisdiction with a modified comparative fault regime, which denies recovery altogether if the plaintiff’s fault is greater than the defendant’s, Peter’s action may fail completely.
II. Peter v. Dominaflex
1. Design defect
Because Peter suffered his injury in a state where products liability is governed by Section:402A of the Restatement (Second) of Torts, his action against Dominaflex will allege that the weight machine was a product “in a defective condition ueasonably dangerous to the user”. There is nothing to indicate that the machine was badly manufactured, so his action would have to allege that it was poorly designed. It operated exactly as intended: the whole purpose of the machine is to put some amount of stress on the user’s muscles. The design defect, if any, could only be the absence of some kind of fail-safe mechanism to take the place of a “spotter” for lone users, supporting the weight if the user could no longer handle it.
Some Section:402A states test the defectiveness of product design by reference to the expectations of “ordinary consumers”, some by reference to a “risk-utility” standard, and some by a combination of both for different kinds of product (”ordinary consumer expectation” for simple
everyday products, “risk-utility” for more complex ones). We do not know what test is applied in the jurisdiction where Peter was injured.
The question whether an “ordinary consumer” would expect the machine to have a fail-safe mechanism would be one for the jury to answer applying common sense standards. Some weight machines do have foot-operated levers that support the weight, so an “ordinary consumer” might have the expectation that all machines should be equipped with something similar.
If the “risk-utility” standard is applied, it will be necessary to determine whether the risks posed by the machine could have been reduced without lessening its utility. That will involve consideration of the cost of installing a fail-safe mechanism and its effect on the operation and ease of use of the machine.
2. Effect of warning
Warning labels can be sufficient to render safe a product that carries some inherent risk of harm. The weight machine in the present case bore such a warning label. However, that label used a rather technical term (”spotters”) and it referred to an instruction booklet. There was an obvious risk that the instruction booklet would not be kept with the machine at all times and that the machine might be used by users who would not able to consult the booklet first. In the circumstances, it seems unlikely that the warning would be sufficient to relieve Dominaflex from liability if the design of the machine were to be held to be defective.
3. Comparative fault
Lastly, it is necessary again to consider the possibility that Peter may have failed to take reasonable care for his own safety. Any comparative fault on his part would have a different effect in the action against Dominaflex than it would in the action against Briarwood. In General Motors v. Sanchez (Tex, 1999), it was held that comparative negligence of a product user should only operate to reduce recovery if it goes beyond a failure to discover and guard against the defect in the product. Peter’s mistake was to use the machine without realizing that it could harm him if he chose too heavy a weight, because there was no fail-safe device. If the Dominaflex machine was defectively unsafe, Peter’s fault therefore seems to have been only a failure to recognize and guard against the defect. Applying the Sanchez test, that would not lead to a reduction of his recovery. His recovery would only be reduced if he had used the machine in some way that went beyond a failure to identify the dang
er created by its defect.
篇二：英文案例的案号
第一部分案例通常由下列几个部分组成
一、案例名称（Case Name）；例如：Marbury v. Madison （马伯里诉麦迪逊）, v is short for versus.是“诉”的意思。
二、判决法院（Court rendering the opinion）；例如：New Jersey Supreme Court （新泽西最高法院）。
三、卷宗号；案号（Citation）；例如：93 N.J324, 461 A. 2d 138 （1983），这说明该案出自《新西汇编》第93卷，第324页，以及《大西洋汇编》第二辑第138页，该案判决于1983年。此处，A 是Atlantic Reporter的缩写。像这种指明两个或两个以上出处的卷宗号叫作：“平行卷宗号”，其英语表达为“parallel citation”，意思是“An additional reference to a case that has been reported in more than more reporter.”广义上卷宗号包括上述一、案例名称；二、判决法院。
四、主审法官姓名（Justice wrote the opinion）。
五、判决书 （opinion: stating the issue raised, describing the parties and facts, discussing the relevant law, and rendering judgment.）判决书是整个案例的主体部分，其中包括法律争议（Issue）、双方当事人情况、事实经过、判决采用的相关法律以及判决结果。
判决书的阅读过程之中，要注意以下几点：1. 时态主审法官的意见用现在时态；前审法院的意见用过去时态。2. 主审法官的意见是法院意见。3除法院意见外还有两种意见，它们被称为“反对意见”（dissenting opinion or dissent）与“配合意见”（concurring opinion）。Dissenting opinion: opinion offered by a judge disagreeing with the majority panel of judges' conclusion; “反对意见”指不同意大多数法官判决结论之某一法官的意见；Concurring opinion: opinion written by a judge agreeing with the majority's conclusion but not its reasoning. “配合意见”是指同意大多数法官的意见，但是不同意判决结论的推理之某一法官的意见。
六、法庭投票（Votes of the court）例如在七名大法官审理的情况下，有几名法官的意见是“维持原判”（affirmance），有几名法官的意见是“撤销原判、发回重审”（reversal and remandment）。
第二部分
一、什么是citation?
由于卷宗号这一块涉及内容庞杂，这里再逐一特别说明一下。我们首先来看一下《布莱克法律字典》中citation的定义：A reference to a legal precedent or authority, such as a case, statute, or treatise, that either substantiates or contradicts a given position. （p.237） 7th edition. 由于a citation is a reference to a legal authority，因此，citation必须要有一个标准，这样以后的参考者才容易检索得到。正如《布莱克法律字典》所指出的一样，Citation formats exist for many different types of legal
sources including cases, statutes and secondary legal materials. Understanding the basic format for each of these different types of sources will enable the researcher to more independently locate materials in the law library.7 l1
案例之中的卷宗号通常包括下列几个部分：
a. 案件双方当事人姓名（the names of the parties involved in the lawsuit）；b. 包含案件全文的汇编卷号（ the volume number of the reporter containing the full text of the case）；
c. 该案例汇编的缩写名称（the abbreviated name of that case reporter）；d. 案例开始的页码数（the page number on which the case begins）；
e. 案件判决年份（the year the case was decided）；有时还包括
f. 案件判决法院（the name of the court deciding the case）。
举例说明: Hebb v. Severson, 201 P.2d 156 （Wash. 1948）. 在这个例子当中，Hebb是原告（plaintiff），Severson 是被告（defendant）。我们可以在《太平洋汇编》第二辑201卷第156页（volume 201 of the Pacific Reporter Second Series beginning on page 156）找到这一案例。该案是由华盛顿州最高法院（Washington State Supreme Court）于1948年判决的。
二、 如何阅读案例（cases）之中的citation?
确定卷宗号之中的缩略码。请对照下列列表，找出缩略码（abbreviation）的汇编全称（full reporter title）.
Abbreviation Title 汉语汇编名称）
EA. Atlantic Reporter 大西洋汇编
A. 2d. Atlantic Reporter, 2d Series 大西洋汇编第二辑
Cal. Rep. California Reporter 加利福尼亚州汇编
F. Federal Reporter 联邦汇编
F. 2d. Federal Reporter, 2d Series 联邦汇编第二辑
F. 3d. Federal Reporter, 3d Series 联邦汇编第三辑
F. Supp. Federal Supplement 联邦补充案例
L. Ed. U.S. Supreme Court Decisions, Lawyers' Edition 美国最高法院案例汇编，律师版
L. Ed. 2d. U.S. Supreme Court Decisions, Lawyers Edition, 2d Series 美国最高法院案例汇编，律师版第二辑
N. E. Northeastern Reporter 东北汇编
N. E. 2d. Northeastern Reporter, 2d Series 东北汇编第二辑
N. W. Northwestern Reporter 西北汇编
N. W. 2d. Northwestern Reporter, 2d Series 西北汇编第二辑
N. Y. S. New York Supplement 纽约补充案例
N. Y. S. 2d. New York Supplement, 2d Series 纽约补充案例第二辑
Pacific Reporter 太平洋汇编
2d. Pacific Reporter, 2d Series 太平洋汇编第二辑
S. Ct. Supreme Court Reporter 最高法院案例汇编
S. E. Southeastern Reporter 东南汇编
BS. E. 2d. Southeastern Reporter, 2d Series 东南汇编第二辑
So. Southern Reporter 南方汇编
So. 2d. Southern Reporter, 2d Series 南方汇编第二辑
QS. W. Southwestern Reporter 西南汇编
S. W. 2d. Southwestern Reporter, 2d Series 西南汇编第二辑
U. S. United States Reports 美国案例汇编
再举两例说明，例如：Morgan v. United States, 298 U.S.468, 56 S. Ct 906, 80L.Ed. 1288 （1936） 表示：摩根诉美国，收集在美国案例汇编第298卷，468页开始；最高法院案例汇编第56卷906页开始；美国最高法院案例汇编律师版第80卷，1288页开始，1936年判决。 For example, a popular name for a Supreme Court case is:
Which translates as Plaintiff versus Defendant
原告 罗 诉 被告魏德
The official citation for this Supreme Court decision is:
410 U.S. 113
Which translates as Volume 410 United Stated Reports Page 113
410卷 美国案例汇编 113页
There are several different publishers for legal documents such as court decisions. （Libraries usually only carry one of these published versions.） These publishers may be referred to in parallel citations for this case.
例如，该案的平行汇编是：
93 S. Ct. 705
Which translates as Volume 93 Supreme Court Reporter Page 705, g7
第93卷 最高法院案例汇编 705页4 ]
Or
35 L. Ed. 2d 147
Which translates as Volume 35 U.S. Supreme Court Reports, Lawyers Edition, 2nd Series Page 147第35卷 美国最高法院案例汇编律师版第二辑 147页
该案完整的卷宗号（full citation）就是：
Roe v. Wade 410 U.S. 113 93 S. Ct. 705 35 L. Ed. 2d.147 1972
Case name Official citation Parallel citation parallel citation Date of opinion
篇三：如何阅读英文案例
如何阅读英文案例
第一部分案例通常由下列几个部分组成
一、案例名称（Case Name）；例如：Marbury v. Madison （马伯里诉麦迪逊）, v is short for versus.是“诉”的意思。
二、判决法院（Court rendering the opinion）；例如：New Jersey Supreme Court （新泽西最高法院）。
三、卷宗号；案号（Citation）；例如：93 N.J324, 461 A. 2d 138 （1983），这说明该案出自《新西汇编》第93卷，第324页，以及《大西洋汇编》第二辑第138页，该案判决于1983年。此处，A 是Atlantic Reporter的缩写。像这种指明两个或两个以上出处的卷宗号叫作：“平行卷宗号”，其英语表达为“parallel citation”，意思是“An additional reference to a case that has been reported in more than more reporter.”广义上卷宗号包括上述一、案例名称；二、判决法院。
四、主审法官姓名（Justice wrote the opinion）。
五、判决书 （opinion: stating the issue raised, describing the parties and facts, discussing the relevant law, and rendering judgment.）判决书是整个案例的主体部分，其中包括法律争议（Issue）、双方当事人情况、事实经过、判决采用的相关法律以及判决结果。
判决书的阅读过程之中，要注意以下几点：1. 时态主审法官的意见用现在时态；前审法院的意见用过去时态。2. 主审法官的意见是法院意见。3除法院意见外还有两种意见，它们被称为“反对意见”（dissenting opinion or dissent）与“配合意见”（concurring opinion）。Dissenting opinion: opinion offered by a judge disagreeing with the majority panel of judges' conclusion; “反对意见”指不同意大多数法官判决结论之某一法官的意见；Concurring opinion: opinion written by a judge agreeing with the majority's conclusion but not its reasoning. “配合意见”是指同意大多数法官的意见，但是不同意判决结论的推理之某一法官的意见。
六、法庭投票（Votes of the court）例如在七名大法官审理的情况下，有几名法官的意见是“维持原判”（affirmance），有几名法官的意见是“撤销原判、发回重审”（reversal and remandment）。
第二部分
一、什么是citation?
由于卷宗号这一块涉及内容庞杂，这里再逐一特别说明一下。我们首先来看一下《布莱克法律字典》中citation的定义：A reference to a legal precedent or authority, such as a case, statute, or treatise, that either substantiates or
contradicts a given position. （p.237） 7th edition. 由于a citation is a reference to a legal authority，因此，citation必须要有一个标准，这样以后的参考者才容易检索得到。正如《布莱克法律字典》所指出的一样，Citation formats exist for many different types of legal sources including cases, statutes and secondary legal materials. Understanding the basic format for each of these different types of sources will enable the researcher to more independently locate materials in the law library.7 l1
案例之中的卷宗号通常包括下列几个部分：
a. 案件双方当事人姓名（the names of the parties involved in the (本文来自：wwW.xIaocAofanwEn.coM 小草 范文 网:美国案例,英文)lawsuit）；b. 包含案件全文的汇编卷号（ the volume number of the reporter containing the full text of the case）；
c. 该案例汇编的缩写名称（the abbreviated name of that case reporter）；d. 案例开始的页码数（the page number on which the case begins）；e. 案件判决年份（the year the case was decided）；有时还包括f. 案件判决法院（the name of the court deciding the case）。
举例说明: Hebb v. Severson, 201 P.2d 156 （Wash. 1948）. 在这个例子当中，Hebb是原告（plaintiff），Severson 是被告（defendant）。我们可以在《太平洋汇编》第二辑201卷第156页（volume 201 of the Pacific Reporter Second Series beginning on page 156）找到这一案例。该案是由华盛顿州最高法院（Washington State Supreme Court）于1948年判决的。
二、 如何阅读案例（cases）之中的citation?
确定卷宗号之中的缩略码。请对照下列列表，找出缩略码（abbreviation）的汇编全称（full reporter title）.
Abbreviation Title 汉语汇编名称）
EA. Atlantic Reporter 大西洋汇编
A. 2d. Atlantic Reporter, 2d Series 大西洋汇编第二辑
Cal. Rep. California Reporter 加利福尼亚州汇编
F. Federal Reporter 联邦汇编
F. 2d. Federal Reporter, 2d Series 联邦汇编第二辑
F. 3d. Federal Reporter, 3d Series 联邦汇编第三辑
F. Supp. Federal Supplement 联邦补充案例
L. Ed. U.S. Supreme Court Decisions, Lawyers' Edition 美国最高法院案例汇编，律师版
L. Ed. 2d. U.S. Supreme Court Decisions, Lawyers Edition, 2d Series 美国最高法院案例汇编，律师版第二辑
N. E. Northeastern Reporter 东北汇编
N. E. 2d. Northeastern Reporter, 2d Series 东北汇编第二辑
N. W. Northwestern Reporter 西北汇编
N. W. 2d. Northwestern Reporter, 2d Series 西北汇编第二辑
N. Y. S. New York Supplement 纽约补充案例
N. Y. S. 2d. New York Supplement, 2d Series 纽约补充案例第二辑Pacific Reporter 太平洋汇编
2d. Pacific Reporter, 2d Series 太平洋汇编第二辑
S. Ct. Supreme Court Reporter 最高法院案例汇编
S. E. Southeastern Reporter 东南汇编
BS. E. 2d. Southeastern Reporter, 2d Series 东南汇编第二辑
So. Southern Reporter 南方汇编
So. 2d. Southern Reporter, 2d Series 南方汇编第二辑
QS. W. Southwestern Reporter 西南汇编
S. W. 2d. Southwestern Reporter, 2d Series 西南汇编第二辑
U. S. United States Reports 美国案例汇编
再举两例说明，例如：Morgan v. United States, 298 U.S.468, 56 S. Ct 906, 80L.Ed. 1288 （1936） 表示：摩根诉美国，收集在美国案例汇编第298卷，468页开始；最高法院案例汇编第56卷906页开始；美国最高法院案例汇编律师版第80卷，1288页开始，1936年判决。 For example, a popular name for a Supreme Court case is:
Which translates as Plaintiff versus Defendant
原告 罗 诉 被告魏德
The official citation for this Supreme Court decision is:
410 U.S. 113
Which translates as Volume 410 United Stated Reports Page 113410卷 美国案例汇编 113页
There are several different publishers for legal documents such as court decisions. （Libraries usually only carry one of these published versions.） These publishers may be referred to in parallel citations for this case.例如，该案的平行汇编是：
93 S. Ct. 705
Which translates as Volume 93 Supreme Court Reporter Page 705, g7第93卷 最高法院案例汇编 705页4 ]
Or
35 L. Ed. 2d 147
Which translates as Volume 35 U.S. Supreme Court Reports, Lawyers Edition, 2nd Series Page 147第35卷 美国最高法院案例汇编律师版第二辑 147页
该案完整的卷宗号（full citation）就是：
Roe v. Wade 410 U.S. 113 93 S. Ct. 705 35 L. Ed. 2d.147 1972
Case name Official citation Parallel citation parallel citation Date of opinion