Bowman Torts Outline

Tort Exam Answer Structure1. What torts may have been committed? 2. Who parties are for each tort?

a. Discuss prima facie case for each tort (separately)i. If P has not satisfied the case for each tort, then he loses.

ii. If P has satisfied the case then you move on.b. Defenses – Are there any good affirmative defenses?

i. If there are none and P has satisfied his case, then he wins.

I. Introduction to Tort Liabilitya. Goal

i. Compensate the victim – make him wholeii. Deter tortuous acts

iii. Spread Lossesiv. Fairness (sometimes added) – provide clear rules

b. Categoriesi. Negligence

ii. Strict Liabilityiii. Intentional Torts

c. Hammontree v. Jenner (p. 3) (bike shop car accident)i. Epileptic has accident, P argues for SL because only D would know about the potential

danger he poses to society – he takes the risk.ii. Jury verdict for D.

iii. No S.L. for drivers, not like product liability, no exception for suddenly stricken (knew about epilepsy): still unforeseeable for driver

d. Christensen v. Swenson (p. 18) (security guard car accident)i. Security guard lunch accident, SJ for employer. S.Ct. reverses.

1. Doctrine of Respondeat superior (vicarious liability) – 3 criteriaa. Conduct is of general kind that employee is hired to perform

i. So it’s not just a “personal endeavor”b. Employee’s conduct must occur substantially within hours and ordinary

spatial boundaries of employmentc. Employee’s conduct must be motivated, at least in part, by the purpose of

serving the employer’s interests.II. The Negligence Principle

a. Historical Development of Fault Liabilityi. Tort Law and the Economy in 19th Century

ii. Brown v. Kendall (p. 35) (dog fight)1. dog fight; P wins – reversed

a. ORDINARY CARE. No recovery to P ifi. D & P using ordinary care

ii. D use ordinary care, P no ordinary careiii. Neither D & P using ordinary care

b. Impact for industrial revolution – allow for risks of “progress”c. If D has lawful, unintentional act, w/reasonable care = no recovery for

P.b. The Central Concept

i. The Standard of Care1. Adams v. Bullock (p. 40) (boy swinging wires, electrocuted)

a. P wins – reversed.b. Reasonable Foreseeability is rule used. D has duty to adopt all reasonable

precautions to minimize resulting perils.

Torts Outline – Prof. Cynthia Bowman Adam KingFall ‘06

i. Again, industrial revolution was key to decision.c. Cardozo

2. Braun v. Buffalo (p. 41)a. D had strung electric wires 25ft above vacant lot.b. Insulation of wires expected to last 3 years.c. 15yrs later, man dies from contact.d. Question of fact: was it reasonably foreseeable?

3. Green v. Sibley (p. 42)a. Woman stumbling over mechanic’s foot in store – not reasonably

foreseeable for the mechanic.4. U.S. v. Carroll Towing Co. (p. 44) (B<PL)

a. Recovery for lost barge. b. Bargee should have been aboard the barge – sufficient risk that it would

break free.c. Negligence reasonably foreseeable.d. When the Burden of adequate precautions is less than the gravity of the

injury multiplied by the probability of the resulting injury it is deemed unreasonable. The owner’s duty is to provide reasonable care, under ordinary circumstances, by a standard of care exercised by a reasonable and prudent person.

ii. The Reasonable Person1. Bethel v. NYC Transit Authority(p. 50) (wheelchair seat collapses on bus)

a. Duty of care for common carriers – still extraordinary? NO.b. Reasonable person standard applies

i. Court scraps the whole “highest care” notion.2. Consider deficiencies? NO

a. Vaughan v. Menlovei. Hay stacked by retarded guy – this is NOT a defense

b. Bashi v. Wodarzi. D flips out in her car, going crazy

ii. Mental defectives should pay for mistakes (not like Hammontree-court is suspicious of mental problems)

c. Roberts v. Ramsbottom (p. 56)i. Elderly man has stroke before going out to drive

ii. “if he retained some control, albeit imperfect control, and his driving, judged objectively, was below the required standard, he remains liable.”

3. Subjective Exceptionsa. Ellis v. D’Angelo

i. Four year old charged with shoving babysitter to floor.ii. Common knowledge of mental development of 4yr old is that they

don’t have capacity to foresee possibilities of their conduct – CAN’T be negligent at this age.

b. Dellwo v. Pearsoni. 12yr old drives motorboat

ii. “minors are entitled to be judged by standards commensurate with age, experience, and widom when engaged in activities appropriate to their a, e, and w, it would be unfair to public to permit minor to observe other standards of care in these situations.”

c. Certain disabilities are taken into account: blind, deaf, crippled; essentially becomes “reasonably prudent blind person” std.

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d. Emergency Doctrine exception: Cabbie jumps when gun to his head – car hits pedestrian. Reasonable? Hell yes.

i. Still is essentially RPP std., just in different contextc. The Role of Judge and Jury

i. In General1. Baltimore & Ohio Railroad v. Goodman (p. 60) (run over by train)

a. Man struck at RR crossingb. Nothing to indicate to relieve him of duty to check safety.

i. Contributory negligence usedc. P’s win is reversed.d. Standard is you have to stop and look.

2. Pokora v. Wabash Railway Co. (p. 62) (run over by train on busy hwy)a. Struck at RR crossing, D wins on directed verdict – reversed.b. Question for Jury if reasonable caution forbade going forward in reliance

on the sense of hearing, unaided by sight.c. Cardozo – Holmes shouldn’t be laying down rules –jury Q’s.

3. Andrews v. United Arilines, Inc. (p. 66) (stuff fell from overhead bin)a. Briefcase fell from overhead compartment; dismissed – remandedb. Injury was foreseeable (happened before), UAL took no actionc. B<PL? That’s for the jury to decide! You can make arguments either

way.ii. The Role of Custom

1. Common practice is still not necessarily a conclusive or compelling test of negligence. Jury must be satisfied with its reasonableness.

a. proof of common practice aids in forming society’s general expectations; reflect judgment and experience of many

2. Except in malpractice cases, courts have rejected the argument that a prevailing custom defines the standard of care.

3. Trimarco v. Klein (p. 69) (shower glass doors)a. Man cut by shower door, P wins – reversed.b. Was a custom that established a standard D bound to follow? Don’t need

prior notice or other accident.iii. The Role of Statutes

1. Can also set standard of care: State defined conduct2. 3 standards/procedural approaches to circumstances of statutory violation

set forth:a. Some Evidence : jury can go either way b/c decides which side has

preponderanceb. reubuttable presumption

i. Have to find evidence of negligence unlessii. Considers whether presumption has been rebutted

c. per se negligence (conclusive presumption) :i. Legis. said it, so neg. if don’t comply

ii. judge may decide himself or tell jury they must find negligence

iii. Most states have standards set of per se negligence1. But can be excused depending on situation

iv. Majority ruled. Structure of Analysis for Statutory Violation

i. To protect class to which P belongs?ii. To protect particular interest invaded?

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iii. To protect from kind of harm that resulted?iv. To protect against the particular hazard that occurred?v. Evidence of excuse?

vi. Common law negligence if not under the statute? (fall-back position)

3. Martin v. Herzog (p. 75) (buggy w/o light)a. Jury instruction were wrong

i. Jury instructed to consider the absence of light as some evidence of negligence but wasn’t negligence in itself

1. omission of use of signals was definite negligence according to statute – should’ve been told to jury.

2. can’t leave jury to decide whether no light was culpable or not – jury can’t decide the duty of hwy traveler to another traveler: that’s why we have statute!

4. Tedla v. Ellman (p. 78) (walking on wrong side of street)a. Legislature created statutes to command standard of care when deems

traditional RPP note enoughb. Statute here doesn’t prescribe add’l safeguards which help rpeserve life

nor impose a higher standard of care just provides rules of road for usual circumstances

c. Under unusual circumstances, following statute might not be reasonable! Might even be to own detriment

d. Negligence is failure to exercise care required by law if statute mandates standard of care then it has to be followed

e. On other hand, statutes don’t always give def. Standard of care – just supplement common-law rule or if it regulates conflicting rights in a way to promote public safety then w/o clear language it can’t be construed inflexibly

f. If observance of statute would lead to more danger in situation, then we can’t force people to follow it when it was created to help preserve their lives.

iv. Proof of Negligence1. Evidence – involve questions of proof/facts

a. Constructive Notice – D should’ve knownb. Actual Notice – D did know

2. P’s burden to show that D’s conduct fell below standard of rsnble care3. Negri v. Stop and Shop, Inc. (p. 87) (spilled baby food)

a. P fell in D’s store and injured b/c broken glass and baby food on floor that hadn’t been inspected/cleaned in awhile even though D knew about mess

b. Jury found D liable b/c enough circumstantial evidence to draw inferencec. App. Div. Wrongly dismissed case b/c evidence had to be viewed in light

most favorable to P and it was legit for jury to infer D’s liability4. Gordon v. American Museum of Natural History (p. 88)(hot dog wrapper)

a. No evidence on record that shows D knew about condition so shouldn’t have gone to jury

i. To constitute constructive notice, defect must be visible and apparent and must exist for enough length of time prior to accident so that D could find and remedy it

5. Res Ipsa Loquitora. “The thing speaks for itself” = type of circumstantial evidence which gives

rise to a presumption of negligence just from the fact of the accident aloneb. Applicabale when

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i. The accident wouldn’t have happened in the absence of the negligence

ii. Instrumentality was within D’s controliii. No contributory negligence on the part of P

c. Theories/Bases of Res Ipsai. Probability res ipsa: more likely than not so D must show there

was some other causeii. Access res ipsa: if more info is necessary to explain the accident,

D is likely to have it, not P.d. Way to establish facts and get inference from them

i. We don’t know what led to accidentii. We don’t know exactly what D did that was negligent

e. Certain way a court may treat a statutory violation (states differ)i. Inference states: Majority Rule

1. Plaintiff has made prima facie case for negligence, can’t dismiss

a. Goes to jury, which can either draw the inference of negligence or reject it.

ii. Presumption States: like California1. res ipsa raises presumption of negligence, may formally

shift burden of proofa. so D must present evidence to rebut in order to get

a jury/judge to dismissf. Byrne v. Broadle (p. 92) (flour barrel)

i. Barrel of flour fell on P’s head while walking next to D’s flour shop

ii. An accident alone can be prima facie evidence of negligence1. it is up to D to show facts that would make it inconsistent

w/negligence.g. McDougald v. Perry (p. 95) (spare tire fell off)

i. RIL in an auto case – tires don’t just fly off of trucksii. W/in D’s control to tell what happened – does he have the

evidence?1. no b/c the chain, etc. wasn’t preserved2. when evidence in D’s control and he no longer has it

(unless it blew up) – we’re allowed to infer that the likeliest thing is that it worked against him so it magically “disappeared”

iii. injury can permit inference of negligence if together with strong showing of its immediate cause.

iv. Based on:1. past experience: general knowledge that such events don’t

occur w/o negligence2. expert testimony shows that situation wouldn’t normally

happenv. P not required to eliminate w/certainty all other possible causes or

inferences.h. Ybarra v. Spangard (p. 102) (bunch of Drs/Nurses; med malpractice_

i. RIL needed in malpractice cases b/c otherwise patient can’t recover unless Drs/nurses voluntarily disclose the identity/facts establishing liability in situation

ii. First and Thrid RIL conditions fulfilled

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1. 1st: accident must be kind which doesn’t ordinarily happen w/o someone’s negligence

2. 3rd: must not have been due to any voluntary action/contribute of P

3. 2nd condition:a. D argues that since P can’t show the injury was

caused by instrumentality in D’s control b.c can’t pinpoint which instrumentality and which D

i. S.C. rules that this alone cannot determine whether doctrine applies since P was unconscious, burder of initial explanation is on D.

ii. Test of actual control of instrumentality not strictly followed

iii. Right of control is more imp. Test.iii. If court didn’t hold for P, then P’s would never win when put

unconscious at hands of Drs.i. DEFENSE TO RES IPSA: ATTACK FACTS, PROVE ACTUAL CAUSE

was something elsev. The Special Case of Medical Malpractice

1. Drs get higher standard of care b/c have specialized knowledge and skill2. Whether D acted in conformity w/common practice w/in his profession =

heart of the suita. P must prove what standard is usually used and that D strayed from it

i. Expert witnesses almost always necessary1. only they can explain the intricacies in order for jury to be

able to make a judgment b/c layperson doesn’t know the issues well enough to make it on their own

2. role of custom when dealing w/professionals is hgue b/c est. standard of care

3. Sheeley v. Memorial Hospital (p. 111) (overqualified expert)a. D argued that P’s expert was overqualified, outdated, and not of similar

localityi. Medicine is more nationalized now, so we can’t tolerate this

argument. Rural medicine shouldn’t be held to lower standard than city.

b. Expert will say what the standard is and how this D deviated from it.i. Nothing in statute req. expert to be in same specialty as D

unnecessary burdenc. Hospitals can be negligent for failing to use reasonable care to keep

facilities safe or select/retain competent physiciansd. Still have to understand the limitations of the community, such as

available equipment when considering what is “reasonable.”e. lot of cynicism as to the battle of the experts. Basically a dr.-for-hire.

Though you can cross-examine the expert about all the cases that he testified about.

4. States v. Lourdes Hospital (p. 119)a. Question of whether expert estimony can be used to educate jury as to

likelihood that occurrence would take place without negligence where a basis of common knowledge is lacking.

b. Court holds “yes.” Experts medical testimony to inform the jury’s decision on this element of res ipsa loquitur.

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c. Expert opinion does not negate the jury’s ultimate responsibility as finder of fact to draw the necessary conclusion. Burden of proof is still on P. D could have expert witnesses as well to tell that there might be an inherent risk of the surgery and that it isn’t wholly preventable.

5. Informed Consent a. Type of medical malpractice (negligence) case in most statesb. Issues arise when:

i. Risks in treatmentii. Dr knows of risks and alternatives

iii. Dr does not tell patient about themc. Don’t need expert to testify about custom of what Dr’s do b.c rules deal

w.duty to disclosed. Rely on jury to put themselves in objective position of reasonable patiente. Failure to obtain informed consent – 3 parts to this case:

i. Duty – differs if professional or reasonable patient standardii. Breach

1. need expert to say how person deviated from standard2. failure to inform

iii. Causaution1. reasonable patient standard comes in

a. that it wouldn’t have made nay dif. To decision to undergo the procedure or not

iv. For Doctor Defense, need to show:1. Detrimental to the patient to disclose2. Implied consent

a. Emergency situation or incompetent patienti. Limiting b.c suppose to get consent from

patient or person who can speak for a patient so can only be used when decision needs to be made quickly

3. Unknown risk if risk that led to injury was quite rare/small then a defense

a. E.g. are we really going to make Drs point out every single possible injury that can result from treatments?

4. dispute prima facie case: no risks, patient knew about them, didn’t cause…

f. Matthies v. Mastromonaco (p. 123) (bedrest v. surgery decision)i. Whether informed consent req. a Dr to obtain the patient’s consent

before implementing a nonsurgical treatment?ii. Whether Dr should discuss reasonable alternatives w/the patient if

doesn’t necessarily recommend themiii. Old lady fell and broke hip; Dr said “bedrest” instead of surgery

1. didn’t tell patient about surgery as an alternativeiv. expert said bedrest not advisable unless patient doesn’t expect to

be able to walk again1. patient says wouldn’t have consented to bedrest if knew

about not walking againv. Ct. decided informed consent applies to all procedures b/c patient

should make informed decision after hearing all risks/possibilities1. Dr’s failure to inform is breach of professional

responsibility – medical negligence

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2. what would reasonably prudent patient do if knew the risks in an alternatives??

g. Competing standards regarding informed consenti. Professional standard approach: what RP dr. in that community

would disclose1. Rationales

a. Consistent with medical malpractice ruleb. Protect patients from anxiety.

ii. Reasonable Patient Approach: P must show:1. material risk2. failure to disclose3. disclosure would’ve led reasonable patient to reject

pcoredure/pick dif. Treatment4. duty to disclose, whatever the custom

a. rationalesi. right to control over body

ii. rely on doctor for information but right to chosoe

iii. ideas about bodies may be very indvidualIII. The Duty Requirement: Physical Injuries

a. Introductioni. General Duty of Care exists toward others

1. misfeasance: the commission of a wrongful or unlawful act involving or affecting the performance of one’s duties, i.e. action harms someone

2. nonfeasance: the failure to do something that should be done, esp. something that one is under a duty to do, i.e. non-action harms someone. If accused, can argue no duty of care.

ii. Possible Basis of Duty to Aid1. Special Relationship 2. “Undertaking”

a. start to rescue, then must use reasonable care and/or not leave worse off than when started

3. Reliance a. Cases where assume someone is doing something but they don’t; if not

relying on them, would’ve made other arrangements (ex: sheriff not warning; manager not call re wife in labor)

b. Obligations to Othersi. Harper v. Herman (p. 134) (guest on boat)

1. affirmative duty to act only arises when special relationship btw partiesa. Harper should’ve proved this but he was just on Herman’s boat as a guest

– not special2. Special relationship when duty to warn exists normally = common carriers,

innkeepers, possessors of land open to public, persons who have custody of another person

3. No evidence in this case shows anything to provide duty to warna. Superior knowledge of a dangerous condition by itself w/o duty to

provide protection is insufficient to establish liability in negligenceii. Farwell v. Keaton (p. 140) (companions on social venture)

1. F & Seagrist companions on social venture, so implicit understanding that will render assistance to other when in peril if can w.o endangering himself, otherwise shocking to human norms

2. “undertaking” – voluntarily takes charge over anothera. started taking care of him but he stopped

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c. Obligation to 3rd partyi. Randi W. v. Muroc Joint United School District teacher=molestor (p. 148)

1. Prior employees had duty of reasonable care in recommending teacher for future position

a. Even though no special duty or known specific threat, still had to use ordinary care to prevent others from being injured

i. The prior employers withheld information and made misleading misrepresentations

b. The school district relied on the info given and the prior employers knew they would

ii. Tarasoff v. Regents of University of California (p. 157) (shrink duty to victim)1. If therapist has or should have determined (some states require actual knowledge)

that patient poses serious danger of violence to others then:a. Duty to exercise reasonable care to protect foreseeable victim

i. Victim must be known or identifiableiii. Rowland v. Christian (factors when to impose duty to 3 d Party)

1. Foreseeable harm to IDENTIFIABLE plaintiff2. plaintiff suffered injury3. connection between Defendant’s conduct & injury suffered4. moral blame – not just negligence5. policy of preventing harm6. burden on Defendant7. consequences to community of imposing duty8. availability of insurance

d. Fraud or Negligent Misrepresentation: Elements i. Giving of false information to another

ii. Knowing it is false,iii. Reasonable reliance by another party upon that informationiv. Resulting in damage to them

e. Negligent misrepresentation duty runs to 3rd party only if affirmative misrepresentation that presents foreseeable & substantial risk of physical damage

f. No Duty Based on Policy i. Strauss v. Belle Realty Co. (p. 176) (NYC blackout, fall in apt bldg)

1. NYC power outage case where guy fell in apt. bldg co. not held liable2. Policy Considerations

a. Even though arguably D has duty to P, cts. Have to control legal consequences of wrongs and protect crushing liability

3. Privity of Contracts Cts typically have declined to extend duty of care to noncustomers

g. Landowners and Occupiers i. Common Law Categories of duties owed to those coming onto land

1. Trespasser (no permission)a. No duty or very limited duty owed (unless known trespassers, children,

etc.)b. Can’t willfully/wantonly try to hurt them

2. Licensee (gratuitous license)a. Includes social guests and relativesb. Duty to warn, protect against known danger

3. Invitee (comes in same way related to your interest)a. Duty to use reasonable care to make premises safe

i. To use reasonable care to protect against dangers landowner could discover by inspection and to fix them

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ii. Generally, becomes invitee when possessor invites with the expectation of a material benefit from the visit or extends an invitation to the public generally.

iii. Stitt v. Holland: “prospect of pecuniary gain is a sort of quid pro quo for the higher duty of care owed to invitees

b. Defenses: “open and obvious harm” – courts are mixed on this, so the argument could go either way, but some courts think that no duty is owed since danger was apparent to invitee. Others say that no duty unless possessor should anticipate the harm despite such knowledge or obviousness.

4. The possessor’s intention in offering the invitation determines the status of the visitor and establishes the duty of care the possessor owes the visitor.

ii. Carter v. Kinney (p. 195) (Bible Study)1. Obvious ice on the driveway – had been shoveled the night before – was for a

bible study and general member of the group, NOT an invitee, just a social guest (licensee)

2. don’t have any obligation to make house safer for anyone coming there than it is for you

iii. Heins v. Webster County (p. 201) (fall in front of hospital)1. P denied recovery simply b/c licensee and not invitee

a. Hosptial wouldn’t have undue burden to care for social visitor like P b/c was already exercising reasonable care for its invitees (i.e. everyone uses the same front entrance).

2. 7 factors to consider to evaluate if Reasonable Care has been used:a. foreseeability of harm b. purpose for which entrant entered premisec. time, manner, circumstances under which entrant enteredd. use to which premises are put or expected to pute. opportunity and ease of repair/correction/giving warningf. burden in terms of inconvenience/costs in providing adequate protections

iv. Duty of Landowners to protect others on land from criminal acts of 3rd parties1. Kline v. 1500 Mass Ave (p. 210)

a. Cut back on security precautions and then P was assaulted in hallwayb. Does landlord have duty to protect tenant against Crim acts of 3rd party?

i. Look at foreseeability!ii. Recognized duty on part of landlord based on policy grounds

1. tenant can’t do it for themselves and LL is in situation where they can and the police really aren’t b/c it’s interior bldg security

2. Posecai v. Wal-Mart Stores, Inc. (p. 211) (mugged in parking lot)a. balancing test :

i. If high foreseeability then greater burden Used hereii. Seeks to address interests of both bus. and their customers by

balancing foreseeability of harm against the burden of imposing duty to protect against crim acts of 3rd person

b. Wal-Mart owed no duty. P has burden of proving the duty defendants owed under the circumstances

IV. The Duty Requirement: Non-Physical Harma. Emotional Harm

i. Falzone v. Busch (NEW JERSEY, 1965, p. 264)1. no longer requires physical impact

a. so long as reasonable fear of immediate personal injury

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i. broader than zone of dangerb. provide compensation for emotional distress when

i. the emotional distress is intentionally or reckless inflictedii. when the emotional distress results from phy injury negligently

inflictediii. when negligently inflicted emotional distress results in physical

injury2. Zone of danger test (Bovsun – NEW YORK, 1984, p. 292, note 6)

a. Says that as long as 3rd party is in the zone of danger, there will be liability. But this is a way of limiting liability – immediate family member who is in zone of danger.

b. Allows one who is himself threatened w/bodily harm in consequence of D’s negligence to recover for emotional distress resulting from viewing the deat/serious phy injury of a member of his immediate family

i. Limits liability3. Require consequent physical injury

a. What harm results, serious or trivial?b. What type of proof required?c. Gammon v. Osteopathic Hospital of Medicine ( MAINE, 1987, p. 281)

i. Establishes two new factors – foreseeability and reasonable person.

ii. He didn’t go to Dr, but clearly anyone would suffer from this.

iii. Foreseeability has to do with the “ordinarily sensitive person” not the eggshell plaintiff

4. Direct vs. Indirect Victims – bystander claims allowed by 3rd partiesa. New York Bystander Actions

i. Zone of Danger (3d party could have been injured)ii. Immediate family

iii. Serious and verifiable distressb. California

i. Dillon v. Legg (1968)1. 3 factors determine whether emotional injury is

compensable bc foreseeablea. P near scene of accidentb. Direct emotional impact upon the P from the

sensory and contemporaneous observance of the accident

c. Close relationship b/w victim and P2. Thing v. La Chusa (1989) narrows Dillon b/c

recovery should be limiteda. To relatives residing in same household or

close family relationshipb. Viewing of the consequences of an accident

was insufficient – so have to be at scene and aware that even was causing the injury

c. Distress has to be level beyond disinterested witness, but not abnormal

c. New Jersey

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i. Portee v. Jaffee (1980) – 4 elements1. Death/serious physical injury of another caused by D’s

negligence2. Mairtal or intimate familial relationship b/w P and injured

person3. Observation of the death/injury at the scene of accident4. Resulting severe emotional distress

b. Economic Harmi. Courts haven’t protected econ interest as extensively as phys security of person/property

ii. Glanzer v. Shepard Cardozo1. seller has contracted with P to seel beans

a. D = public weigher who has contract with seller to weigh beans for sale; error in weighing, weighed less than said, so P overpaid and sues D to recover overpayment

2. P can recover b/c D had duty that extended to 3rd party b/c:a. D had knowledge of prosepective use of the informationb. D acted to induce P’s actionc. D made representation directly to P

3. Different from other cases b/c a. Involves finite liability and relationship approaching privity

iii. Test 1:1. Duty to 3rd party case, e.g. D owes duty or service to X, which D performs

negligently, and P, a 3rd party to the K, suffers economic lossiv. Nycal Corp. v. HPMG Peat Marwick (p. 306)

1. P filed civil complaint against D seeking damages and costs incurred as result of alleged reliance on auditors’ report

2. 3 tests to determine duty of care owed by accountants to nonclients for common law or statutes in other jurisdictions

a. foreseeability test broad standard of liability, generally disfavoredi. accountant can be held liable to any person whom the accountant

could’ve reasonably foreseen would obtain his opinion and rely on it

b. near privity testi. limits accountant’s liability to any person whom the accountant is

in privity or in a rel’p sufficiently approaching privityc. test in Statute 552 of restatement (2nd) of torts – test to use

i. accountant is liable for economic loss caused by reliance on negligently inaccurate information supplied if:

1. identified recipient about whom accountant knows2. relies on the information in transaction3. acct. knows about the particular transaction the info is

intended to influencev. Test 2

1. D creates a dangerous condition or physical harm to one party, and as a result P suffers economic harm – no contractual or 3rd party benefiary relationship to D.

vi. 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc. (p. 317)1. Closure of streets as a result of building collapses. Is building liable to stores in

the area?2. Court essentially limits liability to only those who are actually injured.3. “Absent a duty running directly to the injured person there can be no liability in

damages, however careless the conduct or foreseeable the harm.

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a. We want to avoid exposing D’s to unlimited liability to an indeterminate class of persons conceivably injured by any negligence in a D’s act.

V. Causationa. Cause in Fact

i. Introductionii. “But for” cause

1. If the harm would have happened even without D’s negligent conduct, then D’s negligence did not cause it – thus cause of action for negligence must fail.

iii. Statistical Probability 1. Problem All-or-Nothing approach

a. Overompensation ppl compensated even tho would’ve gotten disease anyway

b. Undercompensation no one compensate even though some got disease only b/c circumstances

2. Solution Proportional Recoverya. Mauro: if 50+ chance of getting future disease, get full recovery nowb. Petriello: proportional recovery even if <50%c. Two lawsuits rule: wait until disease develops and sue later

iv. Substantial Factor 1. To prove causation, P must generally show:

a. That the D’s negligent act/omission was a “but for” cause of the injuryb. That the negligence was causally linked to the harmc. That the D’s negligent act/omission was proximate to the resulting injury

v. Stubbs v. City of Rochester (reasonable cause)1. Just need to have reasonable cause that the D caused the harm. If jury/judge

believe so, it’s good. (don’t have to rule out every other possible cause)vi. Zuchowicz v. United States (p. 347) (Daubert Factors and Substantial Factor Causation)

1. Assessment of expers requires looking at 4 Daubert factors outlined by Sup Ct.a. Whether the theory can be/has been tested according to the sci methodb. Whether the theory/technique has been subjected to peer reviewc. In the case of a particular scientific technique, the known potential rate of

errord. Whether the theory is generally accepted

2. Substantial factor causation to prove causation, P must generally show:a. That the D’s negligent act/omission was a “but for” cause of the injury b. That the negligence was causally linked to the harm c. That the D’s negligent act/omission was proximate to the resulting injury

b. Alberts v. Schultz (p. 360) (loss of chance)i. A claims a loss of chance is predicted upon the negligent denial by a healthcare provider of

the most effective therapy for a patient’s med prob1. Under the loss-of-chance theory, the malpractice has obliterated/reduced the odds

of recovery that existed before the malpractice.a. It is the lost chance of avoiding the injury and achieving a better result that

becomes the item of value for which the patient seeks compensation. (not the physical harm itself)

2. Test to est. loss of chance still requires showing: duty, breach, loss/damage, and causation

a. The causal connection b/w the negligence and the resultant injury must be medically probably and est. w/proof will need expert witness

ii. Proportional Damages: % value of P’s chance for better outcome prior to negligent act (% difference from before and after – determined by expert)

c. Joint and Several Liability (Multiple Defendants)i. Cases in which more than one relevant cause may be involvedi n the harm of the P

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1. Join and several liability:a. P can recover the whole amount of damages from either of two (or more)

Di. So if one is bankrupt or absent, P still gets full recovery from the

other2. Several Liability:

a. P may only recover the amt of damages for which that D is responsible under comparative fault

i. So may not receive full recover (D doesn’t have resources)ii. P bears risk of insolvency of any D (whereas joint, the other D’s

bear the burden)3. Comparative Negligence (replaces contributory negligence)

a. Having D’s obtain contribution from each other in proportion to their faultb. Makes less unfair to Ds when one party is insolvent and make less all-or-

nothing for Ps.c. Jury asked to allocate btwn parties how much each was at fault and

allocate damages accordingly4. Dif. States have different remedies (p. 372)

a. Joint and Severalb. Separate Onlyc. Joint and several but reallocate uncollectible among remaining partiesd. Joint if % at fault is 50+; separate if <50%e. Joint and several for economic damages but not for non-economic

damages (California/few others)ii. Multiple Defendants

1. Concert of Action Theorya. Classic example: Drag racing carsb. Everybody has agreed to engage in negligent enterprisec. Whole enterprise is the “but for” cause of the harm

2. Summers v. Tice (p. 375) (gunshots, comparative fault)a. Jumps question of causationb. Finds both Ds negligent and liable for full amount

i. If Ds actually knew who caused what, one would have to disprove ii. Effectively shifts the burden of proof back to D.

c. Ds can split costs among themselves either thru suit or contract b/c P only getting money from one of the D.

d. The policy favors compensation of Ps even if it means breaking loose of trad’l standards of causation.

3. Hymowitz v. Eli Lilly & Co. (p. 379) (market share liability)a. Market Share Liability

i. Latent nature of the injuries and identification of manufacturer was impossible.

ii. Shift the burden to D because no one would recover – Ds would just be silent – they have the info!

iii. D’s can pay damages according to % of nat’l mkt they had at time P’s mother took pills.

1. In both Cal & NY, liability several, not jointa. Shouldn’t be inflated when all participants in the

mkt aren’t before the court in particular caseb. CA: Each pays damages in relation to the

approximate likelihood they caused the harmi. Ds can exculpate self, e.g. prove never

sold in that market

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c. NY: Each pays in relationt o the risk of harm they created rather than the likelihood they caused the harm in this case.

i. Not a defense if D can prove it did not manufacture or market the drug taken by the P – just share of nat’l market

b. Limited to cases when:i. mass tort

ii. manufacturers acting in parallel manneriii. product indentical, generically market products, which

interchangeableiv. causing injury many years later, so can’t identify one of manyv. legis. Showed interest in damage recovery by reviving previously

barred claimsd. Proximate Cause (or “legal causation”)

i. Generic rule = D is liable for foreseeable harm1. but need not foresee exact manner, extent of harm, or victim

ii. Either P made duty, breach, and cause in fact or D can’t est. absence of any as a matter of law

1. D will argue that the admitted/assumed negligence wasn’t the proximate cause of P’s harm

iii. 3 ways to talk about Proximate Cause1. Extent or type of harm

a. Idiosyncratic reactioni. Benn v. Thomas (p. 401) (idiosyncratic reaction)

1. A tortfeasor whose act, superimposed upon a prior latent condition, results in an injury may be liable in damages for the full disability

2. Deems the injury, not the dormant condition the proximate cause of P’s harm

3. aka, eggshell plaintiff – D must take P as he finds him, even if means must compensate for damage much beyond what ordinary person would suffer, or which foreseeable.

a. Exception to foreseeability on proximate cause b. Aggravation of secondary add-on harm

i. Pridham v. Cash & Carry Bldg. Center1. P seriously injured by D’s negligence but died on

ambulance trip bc it crasheda. D held liable for death

c. Unexpected types (or extent) of harm to expected victimsi. 2 lines of precedent

1. Polemis - direct causation – extending liability; (unexpected harm to expected victims)

Type of harm? Ship and Cargo destroyed Manner of harm? D drops wooden plank into hold of ship

that is full of petrol vapor explosion and fire D’s argument against liability? Prox cause: too remote and

unexpected to lose ship from dropping a plank Rule: Liable for all harm that was directly caused2. Wagonmound I – foreseeability – limiting liability Type of harm? Fire burned P’s wharf. Who were D’s? Charterers of ship WM, which spilled oil

in Harbor.

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Manner of harm? Several days after spill, P’s worker dropped molten metal onto cotton waste in water, which started fire which burned P’s wharf.

Rule: Liability must be limited to foreseeable risks.o Here it was not foreseeable that D’s negligence

(oil spill) would result in a fire3. Wagonmound I vs. II Wagonmound I: Wharf owner can’t prove it was

foreseeableo This would amount to proving own cont. neg. b/c

resumed working with torches Wagonmound II: P was owner of Corrimal, boat that

burned at the wharf, so no problem with contributory negligence.

o P pleads that fire was reasonably foreseeable, ando Judge found that it was, so they got their damages

2. Superceding Causes a. Intervening conduct of intervening actor doesn’t supercede orig. neg. of

the 1 st person b. Key = D2’s knowledge of riskc. Derdiarian v. Felix Contracting Corp

i. P = worker at worksite, injured by scaldingii. D1 = negligent employer who did not erect required barrier

iii. D2 = negligent driver (did not take epilepsy medication) drives into worksite, hits kettle, splatters and scalds P.

iv. D1 argues lack of proximate cuasev. Issue: Does D2s negligence “break the chain of causation”?

Superceding cause?vi. H: No – harm is of sort foreseeable

1. manner of occurrence does not mattera. what risk did D take in negligent setup of

worksite?i. That worker would be injured

b. What is hard to foresee? Exactly how it happened, the manner

d. McLaughlin v. Mine Safety Appliances Co.i. Fireman’s intervening gross misconduct – knew to insulate block

– didn’t tell nurseii. Intervening gross misconduct of D2 breaks the chain of

causation and D1 (i.e. the company) is no longer liable.e. Caitlin

i. D1 = supplier of kerosene who’s negligent b/c mixed 2 substancesii. D2 = guy selling it

iii. P – buys it from seller and it blows upiv. D2 knew of the problem b/c 2 deliveries (and first was sent back)v. D1 negligence + D2 knowledge of risk = D1 not liable.

f. Rosebrocki. D1 had shipped transformer to D2 and had negligently failed to

warn that it was being shipped w/wooden blocks that had to be removed

ii. D2 is negligent b/c sold w/them and the P used it w/blocks

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iii. D2 just simply/ordinarily negligent and doesn’t break causation

iv. D1 negligence + D2 negligence = D1 liable (so is D2)g. Hines v. Garrett (Hoboes Hollow”)

i. The “except” of intent Hobos Hollowsii. Rape is intentional crime so should make RR company not

negligent and not liable.1. Ct. held not true b/c harm that occurs is due to risk the

D1 (conductors) creatediii. Intervening Action breaks the chain of causation when:

1. Intentional, maybe even reckless or gross negligencea. B/c = knowledge and conscious disregard of risk

2. NOT if the intervening wrong is botha. Foreseeable, andb. The principal hazard which the original

negligence created (Hobo Hollow)i. D1 is still liable even if the intervening

conduct was criminal.h. Doe v. Manheimer (p. 416) (Rape in Yard)

i. Court won’t extend scope of foreseeable risk presented by “obnoxious overgrowth” or accumulated debris beyond injury produced by physical contact with such conditions.

ii. The yard did not CAUSE the rape.I. Spectrum of Intervening Conduct

II. Negligence Intent 1)intervening negligent (3)Traxler (2)intentionalconduct (d/n matter closer to intent end: D1 usually won’t beto D's liability) knowledge -- could liable (except Hobo) be classified with -breaks chain of causation

3. Who is Hurt – and When? Unexpected Victimsa. Palsgraf v. Long Island Railroad Co. (p. 425) (fireworks at train station)

i. Cardozo: NO question of Prox cause b/c no duty end of caseii. Case should be analyzed as Q of duty:

1. only owe duty to each person to whom a reasonable person would foresee a risk of harm under the circumstance

2. P here was not foreseeable because she was not in apparent zone of danger

iii. Andrews: D owes society at large a duty of care1. more plaintiff-oriented2. broader – so more extended liability

iv. Q of proximate cause1. foreseeability of result just one factor2. also have to take into account:

a. intervening forcesb. remoteness in time, spacec. continuous sequence of events

3. Doesn’t matter if unusual, unexpected, unforeseen, and unforeseeable

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Foreseeability in CourtP describes in general termsD describes in specific terms

General = foreseeableSpecific = unforeseeable


a. One limitation: damages must be so connected w/the negligence that the latter may be said to be the proximate cause of the former.

Look to Kinsman for blending of Polemis, Wagonmound, and Palsgraf.Generally, the manner and extent of an injury do not have to be foreseeable unless there is an intervention that is egregious. E.g. man knowing the gas and kerosene was mixed and under wagonmound and palsgraff, the harm would have to be foreseeable.

b. Petition of Kinsmen Transit Co. I (p. 437)i. D’s:

1. boat: Shiras owners, Kinsman transit – moored negligently in circumstances

2. dock – Continental grain, dock owner – defective device on mooring block

3. city – Buffalo, negligent in not opening bridge into which ships crashed

ii. Liability:1. Court holds Ds liable for property damage from flooding2. Polemis:

a. If harm to P foreseeable, then liable for broader consequences…

b. A marriage of Palsgraf and Polemisi. Harm to P was foreseeable (Cardozo)

ii. Then liable for all the damages (Polemis/Andrews), though unforeseeable

c. Kinsman Transit IIi. P’s = wheat shippers who couldn’t remove & corn transporter who

couldn’t unload.1. suffered economic loss

ii. Denied recover as Question of Proximate Cause b/c no duty to protect Ps from economic loss.

II. Defenses e. The Plaintiff’s Fault

i. Contributory Negligence (440) 1. Trier users an adapted risk calculus to determine reasonableness of P’s conduct

a. Conduct must be an actual cause of P’s harmb. P’s negligence must also be proximate cause of P’s harmc. Negligence by P does not bar recovery for intentional wrongdoing by D

2. Brown v. Kendalla. P had burden of proving freedom from contributory negligence

i. Now, virtually all states have moved burden to D3. Trad’l negligence law operated on all or nothing basis4. Statute: Where statute is intended to protect P, cont. negligence is not available as

a defenseii. Limitations on Contributory Negligence (442)

1. Recklessness (similar to intent – so reckless as intending to cause harm)2. Last Clear Chance

a. Contr. Negligence disregarded under circumstances when P behave carelessly and got into a danger situation that led to injury

3. Refusal to impute Contr. Negligencea. Respondeat superior – vicarious liabilityb. Virtually all imputed contr. Neg. has been eliminated over the years

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4. Jury’s Rolea. Increased frequency with which cts found that reasonable persons could

differ over the characterization of the P’s conduct – so that a jury question was presented.

iii. Comparative Negligence 1. Some states abandoned Cont. Negligence Comparative Negligence

a. Negl. P’s recovery depends on how serious P’s neg. was compared to Dsb. Most states refuse to compare intentional wrongdoing by D with

negligence by Pc. Compare negligence v negligence, neg v reck (in pure), NOT neg v

intentional act (if is neg and is intentional, % neg doesn’t matter)

d. Economic Loss – occasional doubt about whether the principles here apply, but generally they do.

e. 3 Principle Versions of Comparative Negligence i. Pure Comparative Negligence

1. 90% blame, recover 10%ii. Modified System

1. Modified 2 - fault must be < 50%iii. Modified System (2)

1. Modified 2 - fault must be < 50%2. Fritts v. McKinna (dr. can’t avoid liability idiot patient)

a. Dr. can’t avoid liability for negl. treatment by asserting that patient’s injuries were originally caused by his own negl.

i. Patient still entitled to non-negligent med. treatment.b. But, history of substance abuse is relevant to issue of damages.

iv. Avoidable Consequences 1. About damages, not liability2. Even if accident entirely D’s fault, P’s recovery might be reduced by failure to

mitigatea. Ct – crucial line was btwn treatments that involved recognized risk and

those that didn’ti. Duty to mitigate applies in latter, but not former case

3. avoidable consequences versus primary causal contributiona. P smokes and installs asbestos gets cancer = question of causation

i. P gets asbestosis, told not to smoke, smokes anyway1. gets cancer= = avoidable consequences (reduce damages)

4. Anticipatory avoidable consequencesa. Failure to take precaution against injury prior to the accident, rather than

mitigate afteri. Problem: D = negligent driver. P doesn’t wear seat belt. Suffers

$200,000 damages rather than $20,000 b/c not wearing belt.1. instruct jury that must:

a. reduce $20,000 by P’s own negligenceb. Partial reduction of $180,000 (up to 50%)

according to rules of state5. It isn’t the place of the ct/jury to evaluate a patient’s reasons for declining

surgery/treatment if risks are recognized.a. Raises special problems when reasons ppl don’t mitigate by treatment is

b/c of religion.i. Some argue for eggshell plaintiff treatment

ii. Others say should be taken into consideration with everything else

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iii. Others say that you have to look at who suffersf. Assumption of the Risk

i. Voluntariness by P ii. Knowledge of Risk by P

iii. Express Agreements1. Exculpatory or hold-harmless agreement

a. Parties agree in advance that D doesn’t need to exercise due care for P’s safety

b. Validity:i. Was agreement clear and unambiguous? Terms clear?

ii. Did nature of risk and risk encountered fall within terms of agreement?

iii. Does agreement violate policy?1. Tunkl factors

a. Disclaim invalid (against public policy) if:i. Business suitable for public regulation

ii. Service of great importance to publiciii. Open to the publiciv. Party seeking disclaimer has a decisive

bargaining advantagev. Standardized agreement, no way to

bargain over protectionvi. Person or property is subject to risk of

negligence by sellerc. Only ordinary negligence can be waived, not gross negligence or

recklessness2. Dalury v. S-K-I, Ltd. (p. 467) (injured skier)

a. Must consider totality of circumstances against societal expectationsb. Exculpatory agreement shouldn’t be upheld b/c facility is open to publicc. Major pub. Policy implications are those underlying the law of premises

liabilityi. Business owner has a duty of active care to make sure that its

premises are in safe and suitable condition for its customers increases if risks of operations is high

d. Policy rationale:i. Place responsibility for maintenance on those who own/control

with ultimate goal of keeping accidents to min. level possible1. if Ds permitted to obtain broad waivers of their liability,

the incentive for them to manage risk would be removed and public would have to bear those costs.

e. Gross negligence or recklessness can never be disclaimed iv. Implied Assumption of the Risk

1. P must know of risk and voluntarily consent to it2. Murphy v. Steeplechase Amusement Co. (p. 475) (Flopper)

a. RISK was fall, was FORESEEN by PLAINTIFFb. D not negligent, not many other accidents – cannot prove prima facie casec. Volenti non fit injria – person knowingly and voluntarily risks danger.

3. Participants in Sporting Activitiesa. Duty to avoid injury from reckless or intentional conductb. Assume foreseeable or natural risks

4. Sporting Eventsa. Baseball park – foul balls, B>PL costs too high!

i. Fulfill duty by placing limited screen behind home plate

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ii. Some states have statutes disallowing recovery unless willful conduct or negligent screen – encourage sporting activities

b. Hockey rink HYPO – Plaintiff struck by puck, has no knowledge about dangers

i. D duty to post warnings (higher duty than baseball?)ii. Knowledge of risks (P from MN) can sub for posted warnings

5. Roberts v. Vaughn (Firefighter Rule)a. Bars firefighters from recovery for injuries sustained as a result of negl.

that gave rise to their emergency duties. Doesn’t apply to volunteersi. Rationale:

1. firefighters paid to confront dangers & rescue ppl from neg. caused situations

2. they are paid to do that and shouldn’t get more. Originally an assumption of risk case, not considered “no duty” rule

6. Levandoski v. Conea. Police officer case (like firefighter rule)b. Bowman thinks this is a “no duty” case – no duty to professional rescuers.

Or you could say that they assumed the risk in taking the job.VI. Strict Liability (Traditional)

a. Doctrinal Development i. Similar to Res Ipsa Loquitur

1. Res Ipsa a presumption, SL isn’t.2. In SL, you can still challenge cause, proximate cause and damages, but not duty or

breach of duty.ii. Prima Facie case – same as negligence, but duty is absolute

b. Fletcher v. Rylands (p. 506) (coal mine next door to mill)i. D reservoir flooded P’s coal mines

ii. No fault by D, although subcontractor knew (but no respondeat superior)iii. Strict Liability – water not naturally there – escaped

1. character of activity2. place and manner of activity3. relationship of activity to surroundings

iv. Travel on highways different – P takes a riskc. HYPO – 1947 munitions inspector injured, no recovery

i. Not property, no liabilityii. Not unnatural use of land

iii. Nothing “escaped”d. Losee v. Buchanan (p. 512)

i. D’s steam boiler exploded and was catapulted onto P’s land and through several buildingii. Rejected Rylands – importance of industrialized society – no recovery

e. Sullivan v. Dunham (p. 514) (blasted tree on highway)i. P killed by wood from blast while traveling on highway

ii. SL appropriate – opposite of highway thinking in Fletcheriii. Same court as Losee, different outcome, why?

1. Hay precedent, p. 515a. Injury a direct consequence of act (Losee was not)

2. Denison precedenta. Supports Hay – P had right to be there

f. Restatement of Torts i. 1st – Ultrahazardous activities

1. risk of serious harm that cannot be avoided with the utmost use of care2. Not common usage or activity

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3. HYPO – exterminator uses poison to kill bugs, but commonly used; court says common use by public is important

ii. 2nd – Abnormally Hazardous; Factors:1. High Risk2. Harm is greater than3. Can’t eliminate risk with reasonable care4. Not a common usage5. Inappropriate to the area6. Value of Activity to the community\7. Different from Restatement 1 b/c:

a. Added last 2 elementsb. Standard of reasonable care instead of utmost care

i. Poses prob for D b/c if D says could be eliminated w/use of reasonable care and the accident happened, then still negligent

iii. Abnormally Hazardous Activities include flammable liquids, pile driving, crop dusting, poison gas, rocket testing, hazardous waste disposal, oil wells, escaping water

g. Indiana Harbor Belt Railroad Co. v. American Cyanamid Co. (p. 519) (leaky railcar)i. Posner prefers negligence theory of relief, not SL

1. Likes SL when can’t eliminate risk under reasonable care2. Applied 2nd Restatement Factors

i. whether the shipper of hazardous chemical by rail should be strictly liability for the consequences of a spill or other accident to the shipment

ii. not to be held strictly liable and remanded for issue of negligenceiii. no reason can’t be negligence caseiv. no one suggests that the leak was caused by the inherent properties of

the chemical v. it was caused by carelessnessvi. accidents that are due to lack of care can be prevented by taking care

a. when lack of care can be shown in ct such accidents are adequately deterred by the threat of liability for negligence

b. Elements of Cause of Action Based on Traditional Strict Liability i. Abnormally dangerous activity (argue factors)

2. Substitutes for duty and breach of negligence i. Actual Cause

ii. Proximate Causeiii. Damagesiv. Contributory negligence is not a defense to SL except when P’s conduct involves

knowingly and unreasonably subjecting himself to the risk of harm from the activityb. Theoretical Perspectives

i. Enterprise Liability enterprise should bear the risks of accidents it produce b/c:1. Superior risk bearing capacity compared to victims.2. better placed to respond to the safety incentives created by liability rules3. California (under Green)

a. strict liability is imposed b/c the ultrahazardous actor intentionally exposes others to a serious danger – an anti-social act is being redressed

b. but not logical reason for creating a public duty exception when the rationale for subjecting the carrier to absolute liability is the carrier’s ability to distribute the loss

ii. Goals of Strict Liability 1. Loss Spreading

a. Less social and economic disruption if loss is borne collectively, not individually

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b. Have to decide whether the actor engaging in the injurious activity is an appropriate party to incur and then spread the loss

i. Depends on:1. extent to which the actor was able to anticipate/evaluate

the underlying risk,2. take appropriate steps toa ccumulate resources to insure

against loss3. systematically recapture those outlays by passing them on

to consumersc. has no stopping point so need other goals

2. Loss Avoidance (or Risk Reduction)a. Aims at imposing liability in a way that reduces the # and severity of

accidentsb. Seeks to impose accident consts on those who could reduce accident costs

most cheaplyc. Less weighty goal than loss-spreading b/c

i. Contradiction1. finessed by asserting that, under SL, the threat of liability

operates as an incentive to promote safer conduct, not deterrence

ii. Efficacy of general deterrence1. req. unattainable knowledge of relevant risks by decision

makers who don’t have access to that knowledgeiii. threat of liability can over-deter

3. Loss Allocation (or Internalization)a. Internalization rather than externalization of lossb. Induce price-mediated adjustments in production and activity, etc. –

allocate to party whose activities allow to reflect loss in cost of product or activity

i. Price will increase, but then better choices (more informed) by consumers

4. Administrative Efficientya. SL may result in settlement rather than long trials but also may result in

more cases5. Fairness

a. Victim has right to recover for injuries caused by a risk > in degree and different in order from those created by the victim and imposed on the D

i. Belief that b/w 2 innocent persons, the initiator who benefits from the ultimately injurious activity should be liable

1. temporally bounda. no clear understanding of what “fairness” meansb. req. consumers to pay higher prices so accident

victims can be compensated6. Protection of Individual Autonomy7. Reasonableness Paradigm

a. Commitment to the community’s welfare as the criterion for determining who is entitled to receive and who ought to pay compensation

III. Liability for Defective Products h. Introduction

i. Privity doctrine originally shielded manufacturers from liability. Strong movement away from this.

ii. MacPherson v. Buick Motor Co. (p. 550) (defective wheel)

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1. if the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger

a. if added knowledge that that thing will be used by persons other than the purchaser w/o new tests then irrespective of contract, manufacturer is under duty to make it carefully

b. must be knowledge of danger probable, not just possiblec. must be knowledge that in usual course of events that danger will be

shared by others than the buyerd. proximity/remoteness of the relation

2. D was responsible for the finished product had to do inspection/tests.a. B<PL test

3. Torts wins over Contracts! Privity dead.iii. Sales Law

1. Express warranty: statement about the product (“This glass is shatterproof”)2. Implied Warranty of Merchantability:

a. Implication that it as good as any other like it on the market (buy house paint)

3. Implied Warranty of Fitness for Particular Purposea. Seller knowledge of buyer’s purpose or buyer reliance on seller’s

judgmentiv. Escola v. Coca Cola Bottling Co. of Fresno (p. 556) (bottle exploded)

1. Traynor’s concurring opinion:a. Manufactuter incurs an absolute liability when places an article on the mkt,

knowing that it’ll be used w/o inspection, has a defect that causes injury to humans

b. Source of manufacturer’s liability was negligence in manufacturing process or inspection of componenet parts

i. But even if no negligence, public policy demands responsibility to be fixed wherever it will most effectively reduce hazards.

c. Inference of negligence may be dispelled by affirmative showing of proper care

i. But P won’t be in position to refute such evidence1. so negligence approaches rule of strict liability

a. it’s really liability w/o negligence b/c policy demands that manufacturer be responsible for their quality regardless of negligence = SL

d. What P proves under negligence the risk-utility trade-off (i.e. B<PL)i. Did their quality control work or were they careless?

e. What P has to prove under SLi. Bottle defective it exploded and hurt P

f. Since the first buyer is usually a dealer, the warranty of safety given to him by manufacturer should also serve purpose of protecting others beside the dealer

g. Consumers can’t inspect the products, they rely on reputation of manufacturer

v. Bystanders are entitled to same strict liability protections (p. 562)vi. Continuity of Enterprise – SL has been extended on D’s side to include some suppliers too

vii. Usually doesn’t apply SL to used good sellers – goals don’t apply (p. 563)i. Manufacturing Defects (p. 567)

i. Latent v. Patent Defect1. Latent: not obvious; hidden (e.g. crashworthiness)

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a. Originally (still in some states) req. that defect be latent for P to recover under SL

2. Patent: apparent, visible, obviousa. Luque v. McLean

i. Rejected doctrine: to automatically relieve manufacturer’s of SL for patent defects undercuts deterrent effects of SL

b. Trend away from basing SL on latency of defectc. Theory is that consumer can see the patent design defect and chose not to

buy product, can negotiate about safetyi. But bystander can’t, so would have no recourse.

j. Design Defectsi. Can be shown if the jury finds the risk of danger inherent in the challenged design

outweighs the benefits of such designii. in SL cases (compared to negligence action), jury’s focus is on condition of the product

itself, not the reasonableness of the manufacturer’s conductiii. Cronin v. JBE Olsen (569)

1. Bread truck case; Court says “you don’t have to show it was unreasonably dangerous – that’s too much like negligence. Just show defect and harm.”

iv. Barker v. Lull (p. 570)1. doesn’t have to be in “intended manner,” but in “intended OR reasonably

foreseeable manner” – e.g. standing on chair, screwdriver for paint cans2. California’s court solution = 2 prong test.

a. Did product fail to performa as safely as an ordinary consumer would expect when used in intended or reasonably foreseeable manner?

OR, (an alternative, where #1 is inappropriate)b. If P proves design proximately caused the injury, burden shifts to D

to prove the benefits of the design outweighed the danger. (“excessive preventable danger” prong.)

v. Soule v. General Motors Corp. (p. 571) (driver’s ankle injured)1. 2 ways to prove design defect from Barker

a. Consumer expectations: Ordinary users may have reasonable, widely accepted min. expectations about the circumstances in which the product should perform safely

b. Risk-Benefit Analysis: Product defective if its design embodies excessive preventable danger unless benefits of the design outweigh risks of danger inherent in design

i. Jury considers “Excessive preventable danger” by judging:1. gravity of danger posed2. likelihood of the danger to occur3. mechanical freasibility of safer alternative4. financial cost of improved design5. adverse consequences to the product and to the consumer

that would result from an alternative design2. Barker/Soule places burden on D to prove benefits outweigh risks.

vi. Reasonable Alternative Design (p. 579) 1. P must prove that a RAD would’ve reduced the foreseeable risk of harm

a. Can have expert testimony, but some courts require prototype or drawing2. factors considered

a. magnitude and probability of the foreseeable risks of harmb. instructions and warnings accompanying the productc. nature and strength of consumer expectations regarding the product

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d. relative advantages/disadvantages of the product and its proposed altern.e. Evaluation of utility includes relative need for the product

3. Feasibility of the alternatives is the most important factor in cases:a. Ask if design was a reasonable choice among those aware ofb. If comparable products with a dif. Design exists, shows can make it at

lower risk and comparable costvii. Crashworthiness Doctrine

1. need to design autos so reasonably safe for intended use2. foreseeable that autos will be in accidents3. so duty to use reasonable care to minimize effects of a foreseeable collision4. can only compare comparable products

viii. Camacho v. Honda Motor Co. (p. 584) (motorcycle –crashworthiness doctrine)1. Rejects the consumer expectation test of Barker/Soule

a. Fears would create defense whenever risks are open and obvious2. Does not shift burden onto D about factors3. New Factors in determining whether design is unreasonably dangerous:

a. Usefullness/desirability of the productb. Safe aspecs of the product – likelihood of injuryc. Availability of substitute product that’s safer but meets needd. Manufacturer’s ability to eliminate unsafe character w/o impairing its

usefulness/making it too expensivee. User ability to avoid danger by exercise of due caref. Feasibility of manufacturer to spread loss

4. The fact that the dangers of a product are open & obvious doesn’t constitute a defense to a claim alleging that the product is unreasonably dangerous

5. manufacturers have better access to information necessary to reach informed decisions concerning potential safety measures than consumers

6. question under crashworthiness doctrine: a. whether degree of inherent dangerousness could/should’ve been reduced

ix. Irreducibly Unsafe Products 1. NJ: jury might find risk of blow up pool outweighed its utility

a. May be products that are irreducibly unsafe and not socially beneficialb. So SL is appropriate, even if this means they are no longer produced

2. Most states: no liability if disregard explicit warnings/knowledge of dangerk. Safety Instructions and Warnings

i. Irreducible risks could be reduced by instructions to consumer1. product can be found not defective as matter of law when its warnings are

adequate and if they’re followedii. No duty to predict that consumer will violate clear, easily understandable warnings

1. but warnings will not inevitably defeat liability for a product’s defective design2. suppliers have to anticipate uses that are unintended but reasonably foreseeable

iii. Common knowledge may substitute for warningiv. Criteria for determining adequacy of warning:

1. indicate scope of the danger2. reasonably communicate the extent of harm that could result from misuse3. physical aspects of warning must be adequate to alert RPP4. simple directive may be inadequate if consequences aren’t listed5. means to convey warning must be adequate (ex: prominence of language)

v. Heeding Presumption – presume that user would have heeded warning if it weren’t inadequate

1. burden is on D to show would not have heeded it a. prevents D from arguing causation in every case

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vi. Hood v. Ryobi American Corp. (p. 596) (guards on saw)1. P claims warnings affixed to product and manual were inadequate to alert of

dangers of removing guardsa. Wants them to be specific – Maryland doesn’t require encyclopedic warn.

2. Price of more detailed warningsa. Might not cost more $-wise, but less effective when longer and more spec.

3. D’s warnings were clear and easily understooda. Sufficient to give ordinary consumer warning to operate w/care & guards

4. Majority of consumers don’t detach the guards critical safety featurevii. The Learned Intermediary Rule

1. Ordinarily the warning must be addressed to the user of a product2. Exception re prescription drugs:

a. warning to doctor is a substitute, assume he will warn the patient, help the patient decide about whether to take it, or assess those risks for the patient

b. Exceptions:i. Mass inoculation b/c no doctor; warning to patient from

manufacturerii. When FDA mandates a warning be given to consumer

(contraceptives)iii. D markets drugs directly to the consumer – must include

warning in ad3. Edwards v. Basel Pharmaceuticals (p. 607)

a. Nicotine patch=contraceptive so learned intermediary rule doesn’t apply

b. the warnings are needed andi. must adequately inform of dangers associated w/ the

product’s useii. not req. to warn about obvious dangers

viii. Known and Unknown Risks 1. Timing! Should evaluate D’s conduct according to what known at time of trial or

what was known at time of manufacture?a. To hold liable for things didn’t know at time d made prod. Seems unfairb. But it is genuinely SL and may serve its goals

2. Vassallo v. Baxter Healthcare Corp. (p. 612) (silicone breast implants)a. Current Law:

i. Duty to warn presumes manufacturer was fully informed of all risks of the product regardless of the state of the art at the time of the sale

ii. Amounts to SL for failure to warn of these riskb. Majority of states follow “state of the art” rule

i. Manufacturers must warn of dangers known at time of manufacture/distribution of product

ii. Goal: induce conduct that is capable of being performediii. Goal not advanced by imposing liability for failure to warn of

risks that weren’t capable of being knownc. Revise law to say (as under Feldman):

i. D not liable for failure to warn about risks that weren’t reasonably foreseeable at time of sale/couldn’t be discovered by reasonable testing

ii. Ask if had actual/constructive knowledge

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iii. Hold manufacturer to standard of expert in the fieldiv. Not SL standard but CT shifts burden of proof to D to show that

info unavailable at the time.3. Duty to warn past customers or patients at time risk becomes known?

a. Some cts say yes, some no; if duty imposed, negligence rule appliesb. Can be either:

i. State of the art: new, safer technology available that wasn’t beforeii. After-acquired information: info about risks available post

manufacturing and distribution4. Section 10 of Products Restatement – Reasonable Seller would warn if:

a. Seller knows/reasonably should know that product poses a substantial risk of harm to persons/property

b. Those who’d benefit from warning are identifiable & likely unaware of risk

c. Warning can effectively be communicated to & acted upon by recipientsd. Risk of harm is sufficiently great to justify burden of providing warning

ix. Difference Btwn negligence and SL:1. under theory of SL:

a. knowledge of harmful effects of a product will be imputed to a manufacturer on a showing that knowledge of the defect existed w/in the relevant industry.

i. Once proof os such knowledge in the industry has been est., triggering the duty to warn, the P must show that an adequate warning wasn’t provided

2. Under negligence: a. P must show that specific D knew/should’ve known the potential hazards

of the prod.l. Defenses (comparative liability, unintended use)

i. Unintended use1. Burden on the D to show that it was unintended use of the product that was

unforeseeableii. Comparative Liability

1. General Motors v. Sanchez (p. 620)a. Failure to find defect or some other negligence?

i. If failure to find defect, still get full SL awardii. If other negligence, then reduce by % at fault, even in SL

iii. Disclaimers: don’t usually work.

Misuse Spectrum

|-----------------------------------------------------------|------------------------------------------------------|Unintentional & unforeseeable use unintended but foreseeableDiving into 2 feet of water screwdriver on paint can

m. Causation i. Actual Cause: did the product’s defect cause the P’s harm

1. common presentation of this issue:a. tie rod involved in steering breaks in a 3yr old car and runs your client

down2. What do you need to est. in your suit against the manufacturer?

a. Design defect or manufacturing defecti. Either wrong when left factory or cars weren’t designed properly

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ii. Proximate Cause 1. Parallel to negligence doctrine

a. Intervening conduct (Traxler in MSA) or foreseeability of injury2. Chief prox. Cause prob in products liability=unintended use/misuse/product

alterationa. Where is misuse argued?

i. As a defense, thus burden on D and result will simply reduce damages

ii. Part of prima facie case where defect is defined as including no unintended use

1. then P has burden and may never get to jury if can est. this one element

b. An argument against liability is unintended use of product is that consumers who use it properly are made to subsidize those who don’t (higher price)

c. Why should recovery be allowed for foreseeable misuse?i. Safety considerations

1. liability makes manufacturer anticipate and design around or at least warn

ii. Bystanders may be injured by another’s misusen. Work-Related Injuries (Alterations Cases)

i. Should manufacturer be liable when modification made and worker injured?1. majority rule (not in MO and NY):

a. if the modification is foreseeable, then manufacturer is liableii. Jones v. Ryobi, Ltd. (p. 629) (employee removed guard)

1. Employee removes safety guard on piece of dangerous machinery2. Who’s at fault? Employers b/c they took it off3. Ryobi’s defense?

a. Unintended use. Not design or manufacturing defectb. Not liable for injuries that result from modification of the product after it

leaves the manufacturer’s hands – Intervening Actoriii. Liriano v. Hobart Corp. (p. 633) (immigrant injured by meat grinder)

1. P injures self operating meat grinder which the supermkt had removed the safety guard

2. Can manufacturer be sued for defect? Wasn’t defective when left manufacturer.3. Can he sue for failure to warn?

a. Ct holds manufacturer may be liable for failure to warn even if design defect claim is precluded by substantial modification b/c in best position to know

i. Not need foresee all possible modifications and design around huge burden

1. but burden to focus on foreseeability of risk and adequacy of warning

VII. Trespassa. HYPO: Bowman walks up to the wrong house. Trespass? Yes (though nominal damages).

Intent is simply to walk onto land. (as opposed to “I’m lost”)**Unintentional? Need actual damage to have a cause of action.**Intentional? Nominal damages available.Trespass: possession/one shotNuisance: use & enjoyment (continuous)

b. Martin v. Reynolds Metal Co. (p. 670) (small particles kill cows)

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i. P owned farm. Near farm was aluminum reduction plant. P’s farm has cattle. Particulate lands on P’s land and cows eat and die. Cows now don’t eat grass, so land looks bad.

ii. Was this an intrusion within trespass?1. Yes.2. Even though not intentional, it caused direct invasion (look to science!)

VIII. Damages – what we do to make people “whole”a. Compensatory Damages

i. Fundamental Goal of damage award in unintentional tort area is:1. to return P as closely as possible to his condition before the accident

ii. Economic/Pecuniary 1. Medical costs – bills, future predictions of costs, life expectancy2. lost income – past (while hurt), future (prediction, salary times work life

expectancy), and the discount rate (reduce money by whatever necessary so that if you just let it sit, the interest would bring it up to the amount of settlement

iii. Non-Economic/Intangible 1. Pain and Suffering

a. Why award for pain and suffering?i. Justice

ii. Assuage internal feelings of guiltiii. Make them wholeiv. Pay for attorney’s fees

b. Generic objections to pain and sufferingi. Public not at fault, but they have to share costs, like raised bus tix

ii. Not really quantifiable, not equally distributed, and not predictableiv. Set-offs : insurance companies would get windfall; most states don’t allow set-offs.v. Seffert v. Los Angeles Transit Lines (p. 699) (woman dragged by bus)

1. Facts: P entered bus operated by D when she was injureda. Bus door closed on her foot and dragged her a short distanceb. Injuries incl. Permanent disfigurement to her foot, crippling, and

permanent painc. She showed $53,903.75 in medical expenses and loss of earnings

i. She also asks for $134,000 for pain and suffering D thinks this is excessive

d. Jury decided for P the total amount requested2. Can court reduce damages awarded by the jury? No3. Jury makes determination of damages, and court should only overturn if it “shocks

the conscience” and appears to be the result of “passion or prejudice.”4. Dissent (Traynor): would affirm pecuniary loss but not non pecuniary – too

speculative.a. Thought it shocked the conscience – way out of line w/other tort awardsb. Pain and suffering shouldn’t be larger than medical award

5. CAL 1981 – abolished joint and several liability in relation to pain and sufferinga. Allocation of fault

i. 40%ii. 1 10%

iii. 2 50%b. Comparative negligence system where 2 insolventc. Damages

i. Compensatory - $100,0001. 1 stuck with $60,000

ii. Pain and suffering - $1 million1. 1 $100,000 under several liability

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2. Don’t make case – cost too high for recoveryb. Punitive Damages (p. 739)

i. Two aspects1. Punitive: specific deterrence – this driver won’t do it again2. Exemplary: general deterrence – folks in general think twice about driving drunk

ii. Factors to Determine Excessiveness1. Degree of reprehensibility2. Ration btwn punitive damages award and compensatory damages3. Dif btwn punitive damages & other civil/criminal penalties that might be imposed

iii. Taylor v. Superior Court (p. 740) (repeat DUI offender)1. Facts: P sought punitive damages in suit against D after car accident

a. He was allegedly intoxicated, had history of DUI, etc.b. Trial court dismissed punitive damages, P wants court to reinstate

2. Are punitive damages available in negligence cases? Yesa. D’s actions show a disregard for the safety of others

i. Need to deter this type of conduct, so punitive are appropriate3. Concurrence: don’t want to legislate & say all drunk drivers – just this case4. Dissent:

a. Worried about windfall and/or punitive damages might encourage nuisance suits

b. Worried it will make chance of recovery under insurance impossible5. Death Cases

a. Survival Actions – whatever decedent would get, survivor getsb. If D is dead, no punitive damages (wrong to punish estate)

iv. Vicarious Liability1. States differ, some allow punitive to flow to employer, others follow 2nd

restatement on pp. 747v. State Farm Mutual Auto Insurance Co. v. Campbell (p. 749)

1. S.C. basically said that it needs to be within single-digit ration to the compensatory damages.

2. Nevertheless, Oregon recently awarded $75m punitive, so not really holding.IX. Intentional Torts/Harm (p. 884)

a. Spectrum of Mental Statesi. Intent: purpose

ii. Substantially certain intentiii. Recklessness: conscious disregard for risk

1. element of knowledge but not to a substantial certaintyiv. Negligence: create unreasonable risk of harm

b. Common law doesn’t want to look inside mind – at particular intent (what’s substantially certain)c. Typically not compare P’s negligence with D’s intentional tortd. Intent (p. 885)

i. Purpose or Desire Intent: desire to cause the consequences ii. Knowledge Intent: consequences are substantially certain to result

iii. Garratt v. Dailey (p. 995) (5yr old pulling out chair)1. 5 yr old pulled out chair right before P was going to sit and she broke hip, etc.

a. P claims D intended she fall and D says moved chair to sit in it & tried to move itback

2. T.C. discmisses b/c no intent reversed and remanded for clarification3. Issue: Did P have intent to harm?

a. Is substantial knowledge that harm would result sufficient to support an action for assault and battery?

4. Holding: Intent to harm not requireda. A substantial knowledge of the result of harm can sustain liability

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5. Reasoning: battery requires that P show thru either:a. Prong 1: Purpose/Desire Intent (“Today I’m going to get me an old lady”)b. Prong 2: Knowledge Intent (doesn’t specifically intend to hurt lady but

knows w/substantial certainty the act he performed is likely to bring about that result)

c. Mere lack of intent would not spare him liabilityi. Age only relevant to findings about what he knew – experience,

capacity, etc.ii. Subjective standard – what the D knew – not objective RPP like

negligence.d. Battery would be est. if in addition to P’s fall, it was proved that when D

moved the chair, he knew w/substantial certainty that P would try to sit down where the chair was.

e. Assault and Battery (p. 891)i. Elements of Battery (protect bodily integrity)

1. Intentional infliction of a harmful or offensive contactii. Prima Facie Case for Battery

1. Act2. Intent to cause harmful or offensive (i.e. to ordinary person) contact3. harmful or offensive contact occurs4. Cause in fact5. Proximate Cause6. Damages can be nominal; actual damages not required

iii. Case law has defined it as ordinary person, not an ususually sensitive person1. context is very important the way it happened and the relationship of the parties

iv. Not battery:1. sort of implicit license b/c he got on the subway (implied privilege)2. de minimis non curat lex (the law doesn’t cure things that are little)3. unduly sensitive person b/c think about ordinary person

v. Elements of Assault (protect emotional tranquility)1. Intentional or reckless act2. Creates apprehension in P

a. Apprehension has to be that which would normally be aroused in a reasonable person

b. Have to be aware of the apprehensioni. Can’t assault someone sleeping

3. Of harmful or offensive conducta. Apparent but not actual ability to carry out the threat of force is required

vi. Picard v. Barry Pontiac-Buick (p. 891) (camera touching incident)1. P took photos to show D’s bad service2. basically he then pointed at her and touched the camera; maybe lunged at her, spun

her3. she sued for assault and battery for the back injury sustained for spinning around4. PH: trial ct granted $60K comp and $6K punitive5. Issue: If P claims fear, is that enough? Is touching item held by party battery?

Were damages excessive?6. Holding: Yes, Yes, Yes. But remand on issue of damages.

a. If reasonable person could react with fear, assault establishedb. According to restatement – touchings omething held in way as to make

like person can be person (so cane, etc) – camera countsc. BUT – punitive damages may be excessive

i. No proof of injury or bad faith, and not much evidence of causation

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7. Defined battery as an act that was intended to cause, and in fact did cause, “an offensive contact with or unconsented touching of or trauma upon the body of another, thereby generally resulting in the consummation of the assault.

a. An intent to injure P is unnecessary in a situation in which a D willfully sets in motion a force that in its ordinary course cases the injury

f. Transferred Intent i. From victim to victim

ii. From tort to tort among:1. battery, assault, false imprisonment, trespass to land, and trespass to chattel

g. False Imprisonment (p. 902)i. Intent to confine, against P’s will

1. must be limits (can be psychological or physical)2. no escape possible (that P knows about)3. P must be aware of restraint

ii. Lopez v. Winchell’s Donut House (p. 902) (employee questioned)1. Employer held employee to question about stealing money2. Common law revived way of controlling/confining the capacity of the

employer/shop owner to be confining employees/potential shoplifters3. She didn’t try to leave and they never told her she couldn’t

a. Open and shut case summary Judgment against P b/c moral pressure not enough

h. Intentional Infliction of Emotional Distress (protecting emotional tranquility)i. Prima Facie Case::

1. D’s conduct intentional or reckless (knew or should have known cause distress)

2. Conduct outrageous and intolerable3. Causal connection b/w D’s conduct and P’s emotional distress4. P’s Emotional distress severe

ii. Traynor opinion in Siliznoff1. Jury can figure out emotional distress and doesn’t have to be attached to

physical injuryiii. Womack v. Eldridge

1. Facts: a. D took P’s photo and used it as part of case in defense of possible

child molesterb. P was subsequently called into court, questioned by police, had to

serve as witness etc. c. He suffered shock and distress for being associated with the trial,

lost sleep, etc.2. PH: jury found for P, granted $45k

a. Judge dismissed because IIED couldn’t hold without accompanying physical harm.

3. Issue: Can extreme and outrageous conduct support tort w/o phys. harm? Does it here?

4. Holding: Sure if it hasa. - reckless/intentional act -conduct outrageousb. - distress caused by act -distress extreme

iv. Hustler v. Falwell1. Hustler published parody of ad campaign that discussed the first time using

Falwell

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2. He sued for libel, invasion of privacy, and IIEDa. invasion of privacy and libel verdict for Hustler b. IIED Plaintiff [$100,000 + $50,000 punitive]

3. Issue: Can public figure get damages for IIED from parody when harmful but not truthful?

4. Holding: Noa. First Amendment rights extend to parody, esp. when presented as

falsei. Have right to exchange ideas and isn’t a clear way to

distinguish between political parody that offends someone because of politics and something really outrageous

b. New York Times v Sullivan: i. Public figures cant recover for the tort of IIED w/o showing

in addition that the publication contains a false statement of fact which was made w/ actual malice

ii. Malice= w/ knowledge that statement was false or w/ reckless disregard as to whether or not it was true

5. Concurring (White): jury found no assertion of fact so why bring in NYT v. Sullivan?

v. Defamation: Publication of False information that’s Damaging to Pvi. Defenses to defamation

1. Truth2. Opinion, not fact3. Public figure: actual malice standard, i.e., D made statement “with

knowledge that it was false or with reckless disregard of whether it was false or not” (NYT v. Sullivan)

2. Defenses and Privileges a. How defend against intentional torts?

i. prima facie case is wrong b/c the facts are the implications are wrongii. not intentional tort b/c the conduct was privileged which negates existence of

intent. tortb. Privileges:

i. Consent 1. can be expressed or implied

a. They say so (written or verbal)b. Silence? People’s actions?

i. Ellis Island Mass Inoculation case1. Doctor has defense of implied consent b/c she was in

the line and raised her arm and she saw what was going on so consent implied from her conduct

ii. Hart v. Geysel1. Reminded of the Flopper case but don’t say assumption of risk here b/c it’s

consent2. The Defense/Privilege to battery=consent

a. Ex: surgery3. Facts: P decedent died in fight w/ D

a. complaint asserts no claims of anger, malice, etc4. Issue: Can P recover damages from consented to illegal fight? No

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5. Reasoning:a. he consented to fight and accepted the risks of the fight

i. don’t let the one who lost get compensatedb. Majority view: if in anger, each civilly liable

i. voluntary action no defensec. Minority view: if in anger, unlawful

i. no remedy in cases where D didn’t use excessive force/malicious intent

d. Neither of these apply, but notice that they are exceptions to the general rules:

i. if you consent, suck it up and no profiting from wrongdoingc. Self Defense

i. Requires: 1. Reasonable belief that you’re in danger of death/great bodily harm and2. force you use has to be proportionate

ii. What if you’re mistaken? If reasonable mistake then will be protectediii. Courvoisier v. Raymond

1. Some rowdy men entered the D’s building and with his gun drawn D kicked them out but they hung around outside

2. D shot at member of the crowd who was advancing who turned out to be a deputy

3. Issue: Can earlier experiences give you self defense?4. Holding: This is a jury question—whether his actions were reasonable

d. Defense of Others i. Requires: Stepping into shoes of person defending (basically their self-defense)

thus:a. Reasonable fearb. Death or great bodily harm to the otherc. Proportionate force

ii. but then add on the mistake and the courts split in relation to defense of others1. minority of jurisdictions & Restatement: if mistake was reasonable then still

appliese. Protection of Property

i. Rule: May not use deadly force in defense of property (e.g., spring guns)1. Standard: Apparent necessity and Reasonable force

ii. Katko v. Briney1. Spring-gun case2. Holding: cannot use deadly (i.e. excessive) force except to protect against

death or great bodily harm (i.e. personal injury)3. If was his residence then personal injury would be at stake so maybe would

be okayf. Private Necessity

i. Ploof v. Putnam1. privilege to enter property in order to save life over objection of landowner

a. when interest you’re defending is more imp. than the sacrificed interest

i. life more important than dockii. Vincent v. Lake Erie Transportation Co.

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1. obligation to pay damages for intentionally damaging property of another in order to save own property

a. it’s intentional b/c was known to be doneb. but it’s privilege so strict liability b/c makes more sense for boat

owner to pay2. ct goes thru thing about ropes and replacing the frayed ropes w/ stronger

ropesa. misfeasance and nonfeasanceb. if started out w/ really strong ropes then dock owner doesn’t get to

collect?iii. pocket of strict liability

1. who can spread the loss? Either2. who can allocate the risk? Either3. Which can insure more cheaply? (Dockowner in this case)

iv. Ploof v. Putname: privilege to enter property in order to save life over objection of landowner

v. Vincent v. Lake Erie: obligation to pay damages for intentionally damageing proprety of another in order to save own property

vi. What if in order to save life instead? Restatement says yes, although there are no litigated cases.

Glannon: use proximate cause analysis to bar liability for unforeseeable harm, duty analysis to impose policy limits on liability for harm that is foreseeable

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Torts Outline – Prof. Cynthia Bowman Adam KingFall ‘06Role of Statute as StandardIII. Three approaches taken by states (each just one approach)

• Violation of statute = some evidence of breach of duty, i.e., of negligence (jury weighs evidence, which side has preponderance)

• Violation of statute = rebuttable presumption of negligence ( was D’s action reasonable?)

• Violation = conclusive presumption or negligence per se (judge instructs to find against statute violator

IV. * Note: this is the majority rule

Will the Court Adopt the Statute as the Standard of Law?

IV. Restatement, p. 78, note 5: V. Was statute enacted:

• To protect class to which P belongs?

• To protect particular interest invaded?

• From kind of harm that resulted?

• And to protect against the particular hazard that occurred?

Types or Bases of Res Ipsa• Probability res ipsa: more likely than not

* so shifts burden to D to show was some other cause

• Access res ipsa: p. 94, last line * if more information is necessary to explain the accident, Defendant is likely to have it; Plaintiff

does not. -- so might say a beggar broke into our warehouse that afternoon….

Procedural effect of res ipsa loquitur differs among states, p.99VI. Inference states: majority rule: Plaintiff has made a prima facie case for negligence, can’t dismiss. * goes to jury, which can either draw the inference of negligence or reject it.versusVII. Presumption states: like California: res ipsa raises a presumption of negligence, may even shift the

burden of proofVIII. * so defendant must present evidence to rebut in order to get to a jury or judge dismiss

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Competing Standards re Informed Consent• Professional standard approach: what RP MD in that community would disclose,

touchstone = practice in community• Reasonable patient approach: P show: • Material risk • Failure to disclose • Disclosure would have led reasonable patient to reject procedure or choose different treatment • Duty to disclose, whatever the custom

Tarasoff duty analysisIX. 1. If therapist has or should have determined (some states require actual knowledge) that X. 2. Patient poses serious danger of violence to others XI. Then: XII. 3. Duty to exercise reasonable care to protect foreseeable victim XIII. 4. Victim must be known or identifiable

Common law categories of duties owed to those coming onto land• Trespasser (no permission): no duty or very limited duty owed (known trespassers, children, etc.) • Licensee (includes social guests and relatives): to warn, protect against known dangers• Invitee (includes business visitors): to use reasonable care to make premises safe, thus to protect against dangers landowner could discover by inspection and to fix them

c. Issues re NIED law• Require actual physical impact?

• Zone of danger test?

• Require consequent physical injury? -- what harm results, serious or trivial? -- what type of proof required?

XIV. 4. Direct versus indirect victims: bystander claims allowed by third parties?

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d. 1. Physical impact?XV. Falzone: no longer require, so long as reasonable fear of immediate personal injury (broader than

zone of danger)

e. 2. Zone of dangerXVI. New York State requires plaintiff could have been injured herself in order to recover for emotional

damages.XVII.XVIII. Note: NYS handles many NIED cases as special exceptions to no-duty rule, e.g., for negligent

mishandling of corpses….

f. 3. Consequent physical injury?XIX. Gammon, Maine: no physical impact or zone of danger or physical injury, but allows if:

• Reasonably foreseeable that would lead to severe emotional distress

• Severe emotional distress that would affect an “ordinarily sensitive person”

g. NYS: Bystander actions• Zone of danger (3d party could have been injured)

• Immediate family

• Serious and verifiable distress

h. California: Dillon v. Legg (1968)• Plaintiff near scene

• Contemporaneous sensory observation of the accident

• Close relation b/w victim and third – party plaintiff.

i. California: Thing v. La Chusa (1989) narrows Dillon standard

• Closely related to victim, co-resident – defines relationships

• At scene and aware that event causing injury

• Emotional distress more than disinterested witness but not abnormal

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j. New Jersey: Portee (1980)• Death or serious physical injury caused by D’s negligence

• Marital or intimate family relationship * note: NJ, unlike California, recognizes NIED claims by cohabitants (Dunphy)

• P observes death or injury at the scene

• Severe emotional distress

k. Summary of approaches• NY: zone of danger test

• California: Dillon as limited by Thing

• NJ: Portee

3 Approaches Described in Nycal (MA 1998, p. 306)• NY – (above) “near privity” = most strict. • NJ – accountant liable to any person he could reasonably have foreseen would obtain and rely on

opinion, including known and unknown investors = broadest liability.• Nycal: adopts Restatement test for negligent misrepresentation = middle road. XX.

Probabilistic harm in the future, e.g., exposure to asbestos

XXI. 3 Approaches: • Mauro: if 50+ chance of getting future disease, get full recovery now. • Petriello: proportional recovery even if <50%: 8-16% of future damages to a minor P. • Two lawsuit rule: wait until disease develops and sue later.

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l. A Detour: Daubert and the Reliability of Scientific Evidence

XXII. Court as the “gatekeeper” determines whether evidence is reliable enough to admit, considering: XXIII. Has it been tested by scientific method? • Has it been subjected to peer review? • What is the rate of error? • Is theory generally accepted?

m. Comparative Fault: Two SystemsXXIV. Joint and several liability: Plaintiff can recover the whole amount of damages

from either of two (or more) Defendants.XXV. * so if one is bankrupt or absent, P still gets full recovery from the

otherXXVI. Versus XXVII. Separate liability: Plaintiff may only recover the amount of damages for

which that defendant is responsible under comparative faultXXVIII. * so may not receive full recovery XXIX. * P bears risk of insolvency of any D

n. New York versus California and Market Share LiabilityXXX. California: Each pays damages in relation to the approximate likelihood they caused

the harm. XXXI. New York: Each pays in relation to the risk of harm they created rather than the

likelihood they caused the harm in this case. XXXII. XXXIII. Why the difference? XXXIV. In NY, it is not a defense if D can prove it did not manufacture or market

the drug taken by the P. Just your share of national market.XXXV. In CA, Ds can exculpate self, e.g., prove never sold in that market.

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o. PROXIMATE CAUSE• A policy judgment that D should for some reason not pay for P’s damages – Chain of causation too indirect, or too remote, or too freakish or unforeseeable an accident.

• General rule = D is liable for foreseeable harm, but need not foresee exact manner, extent of harm, or victim.– Proximate cause circumstances in which nonetheless not hold D liable.

p. Rule of Polemis• Defendant is liable for all harm that was directly caused (based on English fire cases). – Arbitrator had said damage was not foreseeable

q. Rule of Wagon MoundXXXVI. Liability must be limited to foreseeable risks. Here, it was not foreseeable that D’s negligence (oil spill) would result in a fire.

r. Two Lines of Precedent

• Polemis: direct causation – extending liability

• Wagon Mound: foreseeability – limiting liability

– Note: foreseeability language is dominant in modern tort law.

s. A General RuleXXXVII. D2’s negligence will not relieve D1 of liability for negligence. XXXVIII.XXXIX. Another way to state this = intervening negligent conduct does not break the chain of

causation.

t. Does intervening act break chain?XL. Yes, if intentional, maybe even reckless or gross negligence (= knowledge and conscious

disregard of risk).XLI.XLII. But not if the intervening wrong is both foreseeable AND the principal hazard which the original

negligence created (Hobo Hollow): D1 is then still liable even if the intervening conduct was criminal.

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u. Court holds Ds liable for property damage from floodingXLIII. Is court’s approach more like Polemis or Wagon Mound? XLIV. Polemis: If harm to P foreseeable, then liable for broader consequences… XLV. A marriage of Palsgraf and Polemis! * harm to P was foreseeable (Cardozo) XLVI. * then liable for all the damages (Polemis/Andrews), though unforeseeable

v. How is Barker analysis different from negligence?XLVII.Under Barker/Soule, burden is on D to prove that benefits outweigh risks. XLVIII.XLIX. Structure of analysis:

• Consumer expectation test OR

• If design caused injury • Burden shifts to D • Do benefits outweigh risks?

w. Soule v. GM , Calif. 1994, p.571L. Tells us P isn’t free to choose between the two tests. LI. Only use consumer expectations prong in cases where common experience LII. * or (p. 574, n.4) if used by a small group of people, can use expert testimony to educate

about expectations of consumers who do use that product.

x. Was Consumer Expectation Test Appropriate in Soule?LIII. No. Why not? LIV. Soule involved technical, detailed theory of defect (see p. 572 for description), so can’t use

consumer expectationsLV. Instead, must use the second prong of Barker LVI.LVII. Test for when must use Prong #2, p. 574 LVIII.

y. Example of an Appropriate Consumer Expectations caseLIX. Campbell, p. 577, note 2: • Bus passenger thrown from seat at turn • Claims defective design because no grab bar or strap with reach• Presented only photographs as evidence. LX. Appropriate for consumer expectations test? LXI. Yes, a matter of common experience. LXII. May not use expert testimony.

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z. Can you rebut this case with evidence about cost?LXIII. Soule court says no. Why? LXIV. * That comes in only if analyze on the second prong. LXV. * Need no further proof where ordinary knowledge is enough to permit the inference that

product did not perform as safely as it should.LXVI. Court gives examples in note 3, p. 573 LXVII.

aa.How different is the Camacho analysis from a negligence analysis?LXVIII. Not much! Hard to see difference between SL and negligence in Camacho. LXIX. This is typical of most jurisdictions; most use Wade balancing factors without shifting the burden

of proof.LXX. Courts have come full circle back to a negligence-type inquiry, at least as to design defects, as

Third Restatement reflects.

bb. Reasonable Alternative DesignLXXI. Feasibility of the alternatives is the most important factor in most cases. LXXII. * ask if design was a reasonable choice among those of which should have been aware LXXIII. If there are comparable products with a different design, shows can do at lower risk and

comparable cost.

cc. Factors in evaluating adequacy of a warning, pp. 599, note 1LXXIV. Among other things:

• Indicates scope of danger (did Hood?)

• Communicates extent or seriousness of harm that could result

• Physical aspects alert prudent person, e.g., intensity of language, prominence of display (block letters? Front or back?, etc.)

• Indicates consequences (did Hood?)

dd. Same court, 2 years later: FeldmanLXXV. * P took tetracycline, an antibiotic, which can result in discoloration of teeth. LXXVI. * No warning of this side effect, which D says was unknown then. LXXVII.LXXVIII. NJ court concludes that conduct should be measured (in cases other than

asbestos) by knowledge at the time manufacturer distributed the product. LXXIX. No liability if knowledge of danger was not available. LXXX.LXXXI.

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A. Comparative Negligence vs. Comparative Fault1. Comparative negligence : between P and D

a. “Pure system” of comparative negligencei. Q 1: A 25% fault B 75% fault

A’s loss = $100.1. What is A’s claim? B owes A $75

ii. Q2: Suppose B’s loss is also $100.1. What is B’s claim? A owes B $25

b. “Modified comparative negligence”i. Version 1: P recovers if fault not as great as D’s.

P’s negligence D’s negligence 50% 50%

49% 51% Who wins in each?

1. D wins 2. P winsii. Version 2: P recovers if P’s fault no greater than

D’s fault P’s negligence D’s negligence

50% 50%51% 49%

Who wins in each?1. P wins 2. D wins

Comparative fault: between D and D


ee. Analysis under FeldmanLXXXII. * ask if had actual or constructive knowledge (knew or should have

known) of risk at time of distributionLXXXIII. * hold manufacturer to standard of expert in the field. LXXXIV. * note: this is NOT a strict liability standard. LXXXV.LXXXVI. But: court shifted burden of proof to D to show that information was not

reasonably available – a Barker-like compromise: negligence but shift burden to Defendant to ease proof (access).

LXXXVII.

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Bowman Torts Outline

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