Torts Outline

Tort = a civil wrong for which a remedy may be obtained, usually in the form of money damages

I. Intentional Torts

Intent to bring about the natural and probable consequences of an act (not intent to do harm) must be present in order to give rise to an Intentional Tort. (i.e. the balls escaping the cricket grounds not the injury must be intended) The purpose of an intentional tort is to avoid the discussion of foreseeability and make it easy for P’s to win by escaping the burden of proving reasonableness/ intent of the D. P MUST PROVE LACK OF CONSENT.

Battery = an intentional and offensive touching of another without lawful justification (aka tortious battery); ‘intent to touch’; designed to protect people’s physical integrity and psychic harmony

Prima Facie Case1. Touching (offensive)2. Intending to touch3. Lack of consent

Mohr v. Williams (p.12): ear surgeon operates without consent. Rule: If the surgery was performed without consent and was not absolutely necessary at that time, it was wrongful and therefore unlawful, so Dr. is liable.

Vosburg v. Putney (p. 4): one student kicks another while in class. Rule: Not all invasions of one's bodily integrity give rise to tort claims. Otherwise liability would be strict, as opposed to being based on some notion of fault. Student’s kick was a violation of order and decorum of the school and is therefore unlawful, so kicker is liable.

Offensive Battery = does not cause physical harm, but is hostile and without victim’s consent, such as poking someone with a finger in anger, angrily knocking off someone’s hat, spitting in one’s face, cutting someone’s hair, even unwanted kiss; protects physical integrity/psychic harmony; un-consented to touching; knowledge that the unpermitted conduct has taken place is not necessary to establish offensive battery.

Alcorn v. Mitchell (p.65): appellant spits in the face of the appellee in front of full court. Rule: Any reasonable person would have been offended; punitive damages may be assessed for highly offensive conduct to provide an alternative redress to physical retribution.

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Transferred Intent (Battery): When attempting to cause harm to one person, you inadvertently cause harm to a third person. Actor will be held liable. (i.e. A throws a rock at B and C is injured; A is liable to C.) The intent to touch remains a constant regardless of the target.

Thin-Skulled Plaintiff Rule/Eggshell Rule: If you are liable for damage, you are liable for ALL/FULL PHYSICAL DAMAGES, even if the victim is somehow extra frail;

Assault = the threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact/invasion of their privacy/integrity; the act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit battery; ‘intent to frighten’

Prima Facie Case1. Imminent apprehension/fear of harm to one’s own body2. Intent to cause apprehension/fear3. Lack of consent4. Victim must fee apprehension/fear (varies; functions to reduce the scope of liability)

I. De S. & Wife v. W. De S (p.61): D struck at P’s wife with a hatchet but missed. Rule: An act, which causes another to be fearful of a harmful or offensive contact is known as an assault, and the P may recover damages, even though there is no actual physical contact or physical harm.

False Imprisonment = a restraint of a person in a bounded area without justification or consent (applies to private and governmental detention)

Prima Facie Case1. Act or omission of confinement to a bounded area2. Against P’s will; P must be aware of it 3. No Justification/consent4. Length of time period is immaterial

Bird v. Jones (p. 67): P was prevented from proceeding on a public highway, that was closed to permit spectators to watch an event. Rule: There is no false imprisonment where the party has a way out of his partial confinement.

Coblyn v. Kennedy’s, Inc. (p. 71): P was detained by an employee of D who suspected P of shoplifting. Rule: 1) If a man is restrained in his personal liberty by fear of a personal difficulty, it amounts to false imprisonment. 2) If a shopkeeper has reasonable grounds to believe a person has committed or is attempting to commit larceny of goods for sale on the premises, he may detain that person in a reasonable manner for a reasonable length of time.

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Intentional Destruction of Personal Property =

Prima Facie Case1. Destruction of P’s personal property (does not apply to real property)2. Intent3. Lack of consent

Intentional Infliction of Emotional Distress= intentionally or recklessly causing another person severe emotional distress through one’s extreme or outrageous acts

Prima Facie Case1. Intent to cause2. Severe emotional distress3. Lack of consent4. Outrageous/shocking behavior to the social conscience(varies)5. Victim does experience severe emotional distress (varies)

D’s conduct was intentional and sufficiently extreme and outrageous to be likely to produce a strong emotional response in a normal person. There is sufficient assurance that the alleged harm is real together with a strong public interest in deterring such conduct. P’s emotional response must be severe. If emotional anguish is great, courts will allow the action regardless of whether there is a physical manifestation of the mental suffering or bodily harm. 2nd Restatement: conduct must be intolerable, and not merely insulting, profane, abusive, annoying or even threatening. It must go beyond all reasonable bounds of decency, unless D is aware of P’s super-sensitiveness. Mere verbal abuse, name-calling, rudeness, and threats are generally not actionable.

Defenses to Intentional Torts:

A. General: D eliminates one of the prima facie elements of the case = P losesB. Affirmative: D says ‘Yes, I did it but for good reason….’

(Both can be employed by one D)

1) Consent (violenti non fit injuria): one who consents cannot receive an injury; it can be expressed or implied; it must be legal consent

Hudson v. Craft (p.43): unlicensed boxing. Rule: consent can’t be given because the match is illegal (designed to protect the boxers).

Medical emergency would imply consent

2) Self-Defense: force used must be reasonable and in like kind to offense (i.e. If someone punches you, you can punch them back. You can’t blow them away with a sawed off shotgun); the most recurrent issues here are: who struck first & was the return force

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excessive under the circumstances; D must raise it and the P must prove that the D’s actions were either not self-defense or excessive

Courvoisier v. Raymond (p.54): shop owner attacked by mob shoots cop. Rule: An action of force is justified by self-defense whenever the circumstances are such as to cause a reasonable man to believe that his life is in danger or that he is in danger of receiving great bodily harm and that it is necessary to use such force for protection.

3) Protection of Property: reasonable force may be used to thwart theft of irreplaceable/ priceless property; response must be like in kind; as the value of the property increases so too does the acceptable level of force to protect it

M’Ilvoy v. Cockran (p. 64): (Δ) physically injured someone to stop him from knocking his fence down. Rule: unless physical force was used in order to knock down fence (i.e. punching the (π) in the mouth to get him out of the way), physical force can’t be used to stop him. Deadly force may not be used to protect possessions (as the value of the possession increases so to does the level of acceptable force).

4) Insanity: is never a defense b/c it is better to protect/preserve victim’s right to recover.

McGuire v. Almy (p. 50): Nurse is injured by her insane patient. Rule: An insane person may be capable of entertaining the intent to commit a battery; the loss is better borne by the actor than the victim; liability will encourage closer surveillance by custodians; insanity is easily feigned.

5) Public Necessity : protection of the general public is better than to have one person suffer1. (respublica 76)

6) Private Necessity: a privilege created in the event of trespass to avoid serious harm, coupled with an obligation to pay for damages (i.e. trampling someone’s roses to escape an attacker)

Ploof v. Putnam (p.68): property lost and family injured when boat is untied during a storm. Rule: Necessity justifies trespass.

Vincent v. Lake Erie Trans. Co. (p.52): wharf damaged when D tied boat to it during a storm. Rule: Public necessity may require the taking of private property for public purposes, but our system of jurisprudence requires that compensation be made.

7) Discipline: parents have the privilege to discipline their children by force or confinement to the extent that they reasonably believe necessary

8) Privilege: police, firemen, Good Samaritans – good or earnest faith test used here to encourage Good Samaritans to act instead of failing to act for fear of liability; consent can be implied/inferred from emergency situation

9) Immunity: D is not eligible to be sued (i.e. inter-family and diplomatic immunity)

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10) Justification: aka sufficient provocation; fighting words/spitting in someone’s face; esp. for trespass II. Negligence All persons are under a duty to conduct themselves in all of their diverse activities so as not to create unreasonable/ foreseeably probable risk of physical harm to themselves and others. The actor does not desire the injurious consequences of his/her conduct, instead he/she does not know or expect that they are substantially certain to occur. There is merely a risk of such consequences - - unlike an intentional tort. If the P can’t prove negligence, P eats the loss.

Prima Facie Case (duty, breach, causation, damages)1. Reasonable foreseeablity of the risk2. D fails to take reasonable care in light of the risk3. D’s actions caused P injury4. Damages – can be physical or psychological

When a duty is owed to others:

1. When there is a special relationship (i.e. innkeepers to guests, common carriers to passengers)

2. When there is a contractual duty – where there is reliance or elements of consideration, a contractual relationship exists so as to legally impose a duty to act or prevent harm

3. When there is an assumption of aid/risk on a social venture – if one voluntarily starts to help another, the person voluntarily enters into a relationship and is thus responsible for a failure to provide reasonable care

4. No duty to inspect one’s own property

Foreseeablity = the quality of being reasonably anticipatable.

Stone v. Bolton (p. 138): P was injured when a cricket ball escaped field and hit her in the head). Rule: The happening of a known risk, even if extremely slight, is actionable since the injury was foreseeable.

Hammontree v. Jenner (p. 148): D had an epileptic seizure while driving and injured P. Rule: A sudden illness, which renders a driver unconscious will not be grounds for an action in negligence or strict liability. However, if illness or risk of illness is known, D is liable. In this case, the last seizure was 20 years prior therefore the risk was not reasonably foreseeable.

Scott v. Shepherd (p. 98): D threw a lighted torch into a marketplace to avoid injury, it was subsequently thrown by others and eventually scorched the P. Rule: A party will be liable for setting forces in motion, which are likely to cause injury of a sort and do cause injury even though the force is diverted by another.

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Reasonableness/Standard of Care = reasonable, adequate, satisfactory care so as not to create unreasonable risk for self or others; not all possible care; aka Reasonably Prudent Person Standard (RPP) – a conceptual construct; we look at a group of regular people and ask what they would normally do under similar circumstances; we don’t use subjective standards (where the reasonableness of a person’s behavior is judged in terms of what is reasonable for him in light of his ability) in the interest of administerablity, consistency, and predictability. Statutes/regulations help to establish/define reasonable care (i.e. speed limit).

Blythe v. Birmingham (p. 179): Extraordinarily severe frost caused a fireplug owned by D to flood the property of P. Rule: Negligence involves the creation of an ‘unreasonable’ risk, by an act or omission, which a reasonable and prudent person would not create. In this case, D was not found negligent because reasonable (not all possible) care was taken.

Eckert v. Long Island R.R. (p. 196): P gets his by train while trying to rescue boy he thinks is in danger. Rule: It is not negligent to attempt to save the life of another unless, to attempt to do so, is either rash or reckless. The value placed on human life justifies the risk in this case. Care may be reasonable even when in danger because even great risks can be outweighed by a great benefit. (Contributory negligence case – this is not contributory negligence, which LIRR tried to raise the defense)

Osborne v. Montgomery (p. 201): jury instruction gives no definition of how to determine whether a risk was reasonable. Rule: To determine whether a risk is acceptable, the value of the social interest involved should be balanced against the risk created. Reasonable care is normal, ordinary care.

Cooley v. Public Service Co. (p. 203): P is injured while talking on the phone during a thunderstorm because power lines were hung over phone lines (to protect pedestrians) and fell. Rule: Where danger to two classes of persons cannot be simultaneously guarded against, only the most immediate and injurious risk need be protected. It’s okay to run a risk if the alternative is even riskier.

United States v. Carroll Towing Co. (p. 206): D’s barge attendant abandoned it for approx. 21 hours, during this period it broke loose and struck the P’s barge causing it to sink. Rule: There is a duty of care to protect others from harm when the burden of taking adequate precautions is less than the product of the probability of the resulting harm and the magnitude of the harm = Learned Hand’s Formula:

Burden < (Probability)(Loss) = negligence

Burden (Probability)(Loss) = no negligence/liability

Where: (Probability)(Loss) = expected loss

Burden = cost of prevention and is the easiest part to quantify

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This formula, aka the ‘calculus of risk’, is flawed because B is, in reality, more than just the loss. Must maintain the recognition that the measure of the reasonableness of the risk revolves around the specific circumstances of the situation. Conduct is relative to the particular occasion and need. This is the first time reasonable care standard has been expressed algebraically. In this case, the risk of injury was so high and the cost of the alternative method so low that the D’s conduct was considered a breach of his duty to act reasonably. In other words, D is found negligent.

Sudden Emergency Doctrine-Lyons v. Midnight Sun Transportation-(215) Truck driver, Jette, hit a VV driven by Esther Hunter-Lyons as she exited a driveway. He swerved to not hit her, but he broadsided her anyway. Plaintiffs said that he was going too fast. Defendants argued that steering to the left when a vehicle pulls in front of you is a normal reaction and is generally the safest course of action to follow. Jury found that the negligence of Jette was not the legal cause of the accident.

Vaughan v. Menlove (p. 155): D’s hayrick burst into flames and the fire spread to P’s cottage. Rule: The level of care is determined by what a reasonably prudent man would do in similar circumstances. Here, the D should have heeded the warnings and tended to his hay in order to avoid the risk of fire. Ordinary care is required as per the RPP standard not per ‘what would this one dumb guy do in this circumstance’.

Andrews v. United Airlines (p. 216): P is injured when overhead luggage falls and hits her on the head. Rule: Even a small risk of serious injury to passengers may form the basis of a common carrier’s liability if that risk could be eliminated consistent with the practical operation of airline travel. Common carriers owe a higher duty to passengers than the ordinary standard of care, which is almost as high as strict liability, except that the P must prove that something wasn’t done or could have been done or done better.

Special RPP’s = constructed to avoided holding individuals to standards that they can’t meet; (these individuals are held to the standards of a reasonably prudent person of like age, maturity, and experience (i.e. a reasonably prudent 9 year old). Still an objective view and based on esp. administrability and fairness but also deterrence, etc.; used for:

1. Children – done to encourage them to do better except when engaged in an adult activity; parents are not resp. for their children’s negligence

Roberts v. Ring (179)-Roberts seeks damages against Ring for an injury from an automobile accident in which Ring a 77 year old man hit Roberts a 7 yr. old boy. Courts said that the Child as to be held to the test of other children of his age and that accdg to this standard the child was not negligent. The courts found the old man negligent for not stopping the car in time.

2. Physically Handicapped (i.e. the blind)3. Experts (i.e. race car drive who gets into an accident)

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4. Dangerous Activities (i.e. skydiving) although dangerousness is just one criterion in determining whether to use RPP or Special RPP

Daniels v. Evans (p. 165): 19 year-old motorcyclist crashes into a car and dies. Rule: When a minor undertakes an adult activity, which can result in grave danger to himself and to others, he is held to the same standard of care as the average prudent adult.

*McGuire v. Almy (p. 185): nurse is attacked by insane client. Rule: An insane person may be capable of entertaining the intent to commit a battery and therefore should be judged within the context of the RPP.

*Breunig v. American Family Insurance Co. (p. 185): D is overcome with a sudden state of insanity while driving and crashes into P. Rule: A person seized with a sudden mental disability for which he had no warning will be excused from the general rule holding an insane person liable for his negligence.

(Note: Most metal incapacities are held to RPP not Special RPP.)

Fletcher v. City of Aberdeen (p. 190): D’s employee negligently removed a barrier around a ditch and P, who is blind, fell in. Rule: A person who is infirm is held to that degree of care as would be exhibited by a reasonably prudent man suffering the same infirmity in the same situation.

Quintal v. Laurel Grove Hospital (Handout #2): Kid is a vegetable after going for eye surgery. Rule: Specific behavior has to be found negligent, for example, failure to have an emergency plan. Case also shows the need for expert testimony to judge another expert’s behavior against that of other experts.

Lucy Webb Hayes National Training School v. Perotti (Handout #2): P jumps through glass window in mental facility and dies. Rule: Hospital has a higher standard of care (they held themselves to higher standard by setting up the safety precautions/protocols that they did and advertised them) and failed to meet it. If they had not set such a standard, expert testimony would have been required to establish what the standard was.

Custom = used to set the standard of care to reduce the uncertainty created by “reasonable care” standard. It can function as both a shield (i.e. D is not negligent because he/her actions conformed to the industry standard), which is binding (only in medical malpractice cases now) and a sword (i.e. P says D is negligent because his/her actions do not conform to the industry standard), which is admissible but not binding. It is one place we look to establish what care is reasonable (RPP is another).

Mayhew v. Sullivan Mining Co. (p. 223): P is hurt when a hole was placed in his work platform without his knowledge. Rule: If the risk is created by industry and wholly

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understood by laypeople, then custom cannot be used as a shield against liability. Here, the unmarked hole is so careless it cannot be protected by custom.

TJ Hooper (p. 224): Tugboats were damages and cargo was lost in a storm because they were not equipped with radios (argued that it was not the industry custom) and therefore were not warned of the impending doom. Rule: Regardless of the custom of an industry or trade, a D will be held liable if his actions fall beneath the standard of the average man. (D tries to use custom as a shield but fails – this is not a custom case proper)

Lama v. Borras (p. 211): P alleges that D was negligent in failing to administer conservative treatment program prior to resorting to surgery. Rule: In a medical malpractice case, the P must show that the D’s treatment fell below the standard of care applicable to the general practitioner, resulting in his injury. Standard of care here is the degree of knowledge and skill possessed by Dr.’s in good standing in the community and under similar circumstances. (P tries to use custom as a sword and wins)

Titus v. Bradford, B. & K. R. Co. (p. 221): P was killed when a broad-gauge boxcar that the D had set on its narrow gauge track became loose. Rule: Above practice is dangerous but it is the industry standard and is therefore reasonable and not binding (D uses custom as a shield and wins)

A standard of a profession that cannot be understood/is inherently unknown by lay people (DOES NOT APPLY TO MEDICAL CUSTOM – CANNOT BE USES AS A SWORD FOR MEDICINE EITHER AS IT DISCOURAGES INNOVATION); practice must be so widespread that it is almost universal among a school quantitatively; custom is what people do do because it is relevant to what they should do. Judge decides how custom is treated:

PIKE V HONSINGER

If a dr using his expertise and judgement picks the best approach, he cannot be found negligent even if there is a better way.

1. Binding – because it really is a reasonable custom and is universally followed (experts cannot testify that something else should have been done)2. Admissible but not binding – P can get expert testimony to prove custom3. Inadmissible – it is something that everyone in society knows about, its not unique to that industry (i.e. how parents name their kids - - a boy named Sue)

P cannot bring in evidence/expert to show that the custom is bad. A jury cannot contradict the experts when they agree but can choose a side when they disagree. Custom is almost never a shield today except in medical malpractices.

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Res Ipsa Loquitur (RIL) = ‘the thing speaks for itself’; In some circumstances, the mere fact of an accident’s occurrence raises an inference of negligence so as to establish a prima facie case; it is only used if you have nothing but circumstantial evident to prove causation (towards negligence) and shifts the burden of proof to the D; NEVER has anything to do with what happened in the particular case instead, is has to do with what happens in that TYPE of case; may require expert testimony

Restatement 2nd:

1. It may be inferred that the harm suffered by the P is caused by the negligence of the D when:

a. The event is of a kind which ordinarily does not occur in the absence of negligence;b. Other responsible causes, including the conduct of the P and 3rd persons, are sufficiently eliminated by the evidence (this facet is case specific); andc. Injury must be cause by an agency or instrumentality within the exclusive control (only has to be effective control; i.e. bar owners & stools, hotel owner & furniture) of the Dd. The indicated negligence is within the scope of the D’s duty to P

(Note: A, C, and D are the main facets. B is often overstated)

2. It is the function of the court to determine whether the inference may be reasonably drawn by the jury, or whether it must be necessarily drawn;3. It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may be reasonably reached

Three Effects of RIL:

1. Creates an inference of negligence (in the absence of non-circumstantial proof)2. There is a REBUTTABLE PRESUMPTION; once RIL is proved the burden of proof is on the D to put on evidence to prove otherwise3. The burden of proof is shifted to the D as to exclusive control

Byrne v. Boadle (p. 299): P was walking along the street, passing D’s shop, a barrel fell from the shop window and struck P, injuring him. Rule: When it is highly probable that an injury is due to the negligence of the D, and the D has better access to the evidence concerning the injury, the doctrine of res ipsa loquitur creates an inference that the D was negligent, and puts the burden on D to introduce contrary evidence. Circumstancial evidence – it was the def's workers, that is why res ipsa loquitor

Wakelin v. London SW Ry (p. 283): car crossing train tracks is hit by train but no witnesses. Rule: Court rules element #1 not met because sometimes cars hit trains.

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Larson v. St. Francis Hotel (p. 286): chair flies out of hotel window and hits a bystander below. Rule: Court rules chair was not within the exclusive control of the hotel owner.

Colmenares Vivas v. Sun Alliance Ins. Co (p. 307): P suffered injuries while riding an escalator insured by D. Rule: The control requirement of the doctrine of RIL is satisfied where the D is ultimately responsible for the agent or instrument causing the injury.

Contracting Parties-Can not shift by contract its responsibility for keeping an area used by the public in a safe condition.

Colmenares Vivas v. Sun Alliance Insurance Co. (307) Accident suffered while riding an escalator; Sun Alliance is the liablility carrier for the Puerto Rico Ports Authority who controls Luis Munoz Marin International Airport. Sun Alliance tried to say that b/c they contracted out the maintenance of the escalator to Westinghouse that they were not liable.

Benedict v. Eppley Hotel (p. 313): P injured when broken chair she was sitting in collapsed. Rule: Hotel did not have exclusive control of the chair because she had already been sitting in it for half an hour; effective control is not enough.

Ybarra v. Spangard (p. 316): P suffered an injury to his right arm and shoulder while he was unconscious having his appendix removed under the care of six doctors and medical employees (Ds). Rule: Where an unexplained injury occurs during a medical procedure to a part of the body not under treatment, RIL applies against all of the Drs and medical employees who take part in caring for the P – argument bolstered by policy arguments. Res Ipsa Loquitor allows the inference of negligence when the evidence is circumstantial.

Negligence Per Se = “It IS negligence!”; one more way of proving that D did not use reasonable care, by violating a statute, or vice versa - D says he did use reasonable care.

Restatement 3rd:

An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident that actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.

Prima Facie Case 1. Violation of safety statute, which exists to protect others

(applicable to someone in the position of the P’s class) 2. Statute’s purpose must be safety (to protect people)3. Statute was meant to protect a class of people to

which the P belongs4. Statute was designed to protect against P’s injury5. The violation was the proximate cause of P’s injury

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Examples: 1) driver’s blood alcohol level is substantially above the legal limit and he/she is not wearing a seatbelt; driver hits someone; 2) keys are left in the ignition outside of a school and someone steals the car then hits a 3rd person, the owner of the car who left the keys in that car can be held liable whereas, D would not be liable if the car was left in his/her suburban driveway granted that there is a statute prohibiting keys being left in cars near school to prevent thefts and accidents.

Osbourne v. McMasters (p. 265): Contrary to statutes, D (a pharmacist) sold an unlabeled poison to P and P died. Rule: The breach of a statutory duty (i.e. duty of pharmacist to client) to a member of the protected class is negligence per se.

Stimpson v. Wellington Service Corp. (p. 247): D drove a 137 ton rig over city streets without having obtained the needed statutory permit, the weight dislocated and broke the pipes leading to P’s building, flooding the premises. Rule: There was a secondary purpose of the statute to protect the pipes under the streets and the adjacent homes therefore, D is negligent per se.

Martin v. Herzog (p. 270): P’s descendent was killed in a collision between a buggy he was driving and D’s car, P was driving the buggy without the lights on – in violation of a criminal statute requiring lights. Rule: The unexcused omission to perform a statutory duty is negligence per se.

Tedla v Ellman (p. 271): P walks on the wrong side of the road, according to statute, and is hit by a speeder. Rule: An example of the court applying a customary exception to a statute to relieve the P of a charge of contributory negligence per se (used to be a total bar to recovery).

Telda v. Ellman (271) Accident where Πs (Girl and deaf mute brother) walking on the wrong side of the road. Hit by a car and brother died. Statute says that you should walk on the left side of the road that faces on coming traffic. Common Law has said that it is ok to walk on the right side when the traffic on the left is heavy. The plaintiff was not contributorily negligent. Violations of statute may be excused by necessity or emergency or by reason of incapacity. Lehman J. applied the exception to the statute for the benefit of the plaintiff. Example of the court bending over backwards to protect the people

Ross v. Hartman (p. 257): D’s truck was left unattended with the key in the ignition by his employee – in violation of a traffic ordinance; and it was stolen by an unknown party who negligently ran over P. Rule: When a statute provides that under certain circumstances, particular acts shall or shall not be done, it may be interpreted as fixing a standard for all members of the community, with deviation there from amounting to negligence per se.

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Defenses:

1. Statute wasn’t designed to protect this kind of victim2. Statute wasn’t meant to prevent this kind of injury/damage (i.e. man killed by falling radiator in an elevator shaft, P says D violated the statute for placing door around the open shaft, court says the statute is intended to protect people from falling down the shaft not from being hit by things falling down the shaft)3. Some states write into the statute that it can’t be used to establish negligence per se

Exception: You may violate the statute if it is safer to do so.

Dram Shop Act = A statute allowing a P to recover damages from a commercial seller of booze for the P’s injuries, which were caused by a customer’s intoxication. (i.e. two customers in the bar, one gets WASTED, the other drinks Pepsi, the both leave at the same time, wasted customer crashes into Pepsi drinker, Pepsi drinker can sue bar owner.)The bar owner is held strictly liable since we cannot determine whether or not they were reasonable in serving the booze. Puts the burden on the people selling the booze. The only defense is that D didn’t sell booze at all or that the drinks D sold to P did not put him/her over their tolerance limit. Many states have extended this to caterers and hosts of private parties.

Vesely v. Sager (p. 278): D, the owner and operator of a bar served D large quantities of alcohol enabling D to become excessively wasted, D drove his car into P’s car causing injury. Rule: A tortfeasor is held answerable for the injuries, which result in the ordinary course of events from his negligence, and it is sufficient if his negligent a conduct was a substantial factor in bringing about the injuries.

(Note: If 3rd party goes to and drinks at 10 bars, P would sue the last bar he drank at – it is easier to prove that he was over the limit by the last one. However, it is not impossible to get

back to and sue one of the earlier bars. Testimony of a witness who might say he was weaving after the 3rd bar may help to that end.)

Respondeat Superior = An employer is responsible for the negligent and intentional acts of his/her employees, as long as the act grows out of the work he was involved in, even if the employer did nothing wrong him/herself. The reason for this is that employers usually have insurance and deep pockets, whereas employees are usually broke or close to it.

Osbourne v. McMasters (p. 245): Contrary to statutes, D (a pharmacist) sold an unlabeled poison to P and P died. Rule: 1) The breach of a statutory duty (i.e. duty of pharmacist to client) to a member of the protected class is negligence per se. 2) Pharmacy owner is liable for the full damages.

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Exception:

Frolic and Detour Doctrine: if the accident occurs outside of the overall relationship between the employer and the employee, the employer can get off the hook (i.e. bakery driver hits someone while taking a detour to his girlfriend’s house).

Causation:

The causing or producing of an effect/result (P must prove and have a legally valid reason for shifting the loss) aka Cause-in-Fact/Legal Cause

1. But-for Cause = necessary but not sufficient to prove causation of the injury by itself; P must show that the injuries were the result of the D’s uninterrupted actions and that those actions were the substantial contributing cause of them; the injury wouldn’t have happened but for D’s negligence; a. Exception: when the harm would have occurred had the D not so acted/ P is unable to prove that the harm was more likely than not caused by D’s negligence

Dillon v. Twin States Gas & Electric (p. 487): P’s son lost his balance while trespassing on a bridge and then grabbed onto D’s high-voltage wires as he fell – the current killed him not the fall. Rule: D’s negligence was only in exposing P to the wires. P’s own trespass exposed him to a certain fall, which in and of itself would have killed him. D did not cause the injury.

NY Central R.R. v. Grimstad (p. 451): P’s husband, captain of the barged owned by D, fell into the water and drowned. The boat was not equipped with life preservers, and the victim did not know how to swim. Rule: A negligent party is liable only for those damages, which were actually caused by his negligence and can be proved by a preponderance of the evidence.

*Burden Shifting To Determine Causation:

The court tries to help the P by shifting the burden of uncertainty to the D(s), WHEN IT IS MORE LIKELY THAN NOT THAT THE P’S INJURY WAS THE RESULT OF TORTIOUS (SPEC. NEGLIGENT) BEHAVIOR. Factors that aid the court in so doing:

Haft v. Lone Palm Hotel (p. 454): Father and Son drown after hotel fails to post statute-mandated ‘no lifeguard on duty’ sign or provide a lifeguard. There were no witnesses to the incident. The burden is shifted to the hotel because they created the uncertainty, and it was foreseeable that an accident could happen. The burden of proof is on the D to show that the Ps would have died even if there were a lifeguard there.

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Zuchowicz v. United States (p.455 ): P brought suit against the D, alleging negligence in prescribing an overdose of Danocrine, thereby causing her to develop primary pulmonary hypertension. Rule: Where a negligent act increases the chances that a particular type of accident would occur, and such an accident does in fact occur, a court may conclude that the negligent conduct was the cause of the injury. Court shifts the burden to the D to show that the overdose did not cause the death.

Herskovits v. Group Health Corp. (p. 470): P died of lung cancer after his chances of survival were reduced from 39% to 25% by D’s late diagnosis of his condition. Rule: A D’s conduct that increases the risk of death by decreasing the chances of survival is sufficient to take the issue of proximate cause to the jury. Court finds the D liable because their negligent was ‘more likely than not’ the cause of P’s death.

∆ can be liable for damages if the π can show that the ∆'s negligence caused a statistical reduction in the chances of the π's survival.The majority reasoned that the ∆ deprived the π of a significant chance to recover. To decide otherwise would give the doctors a blanket release from liability whenever the patient's chances were less than 50%, regardless of how flagrant the negligence.

Kingston v. Chicago & N.W.R.Y (p. 477): Sparks from a train united with a fire of unknown origin to destroy P’s property. Rule: A party causing a fire, which united with another man-made fire is liable for all damages caused by the united fires. Burden is shifted to D(s) to prove they didn’t cause it/it wasn’t man-made.

Kingston v Chicago &NW Ry. (477) 2 fires-one NE and one NW. NE fire caused by the RR sparks from the locamotive. This fire constituted proximate cause. The NW fire is of unknown origin also was proximate cause. Union of the 2 fires 940 feet north of the Plaintiffs property. RR negligent for damage of both fires. Well established principles of negligence-if the origin of the NE fire is known, the railroad, and the destruction of the property is known to be from the fires (2) the court can find the known fire originator liable for the entire damage. The burden of proof for the plaintiff would be too great to identify the origins of both fires. The fact that the NE fire was set by the RR company, which fire was a proximate cause of plaintiff's damage, is sufficient to affirm the judgment.

b. If you haven’t created a foreseeable risk, you aren’t negligent c. If the D’s negligence directly causes the injury, the act is the cause in fact not proximate cause

i.

2. Substantial Contributing Cause = the cause without which the event could not have occurred; this rule is used in cases where the but-for test would allow D to escape liability because other causes contributed to the accident

i.

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SubstantialContributingCause = Cause in Fact

Cause in Fact + Proximate Cause = successful lawsuit

3. Proximate Cause = A cause that is legally sufficient to result in liability; a cause that directly produces an event and without which the event would not have occurred; deals with how much responsibility for damages a tortious D should be liable for; a. Two tests to determine Proximate Cause, which are often combined/ used interchangeably and use varies between jurisdictions

i. Directness Test – liability extends to any harm that flows in an unbroken stream from D’s negligent acts, no matter how unforeseen the damage was at the time the D engaged in the risky conduct; (CA)a. Factors in Measuring Directness:

i. Closeness in timeii. Closeness in space

iii. Factors outside of the D’s control (i.e. weather/acts of god)

iv. Badness of the riskv. No one factor is the deciding factor

In Re Polemis & Furness, Withy Co. (p. 497): P chartered their ship to D’s business, one of D’s servants dropped a plank in the hold where benzene

as stored causing the ship and its contents to be destroyed by fire. Court finds that D created a foreseeable risk and failed to take steps to avoid it. Rule: Once the negligence of a party has been established, he may be held for liable for all of the consequences, foreseeable or not, of his conduct. Here, D found liable for damage caused by fire but not cost associated with ships delay as it was found to be remote. If someone commits a tortious act, he/she should be liable for all of the direct consequences of that act.

ii. Foreseeability Test – liability extends only to damages that were or should have been foreseen by the D at the time the risk was created; used to determine if there was a supervening cause; leaves people seriously injured with no recourse and no $ when their injuries were not foreseeable to the D; (NY)

Wagon Mound #1 (p. 536)Overseas Tankship (D) v U.K. Ltd. V. Morts Dock & Engineering Co. Ltd. (P): D’s ship leaked oil into the surrounding waters, knew it, and just left. Oil moved to P’s ship where an employee checked around and was informed that the oil would not be flammable then told workers to continue welding. Sparks from welding caught onto some rags then the oil and ignited a fire, which damaged P’s ship. Rule: Harm was not foreseeable, foresight of the reasonable man determines responsibility (foreseeability test).

1. 3 Classes of foreseeablity:

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a. Damages resulting from misconduct are so typical that judge and jurors cannot possibly be convinced that they were unforeseenb. Freakishness of the facts refuses to be downed and any description that minimizes it is viewed as a mis-description c. Between these extremes are cases in which consequences are neither typical nor freakish and are arguably significant

Standards for Finding Foreseeability in Proximate Cause:

1. Sequence of events must have been foreseeable (most restrictive)2. The actual consequences must have been foreseeable (Palsgraf)3. Consequences of the same type and comparable magnitude must have been foreseeable4. Consequences of a different type and comparable magnitude must have been foreseeable5. Consequences of a different type and magnitude must have been foreseeable6. Any harmful consequences to anyone must have been foreseeable (least restrictive)

Ryan v. New York Central R.R. (p. 497): P’s house was destroyed by a fire which started when a spark from D’s train engine ignited a nearby wood shed. The fire spread through several houses before reaching P’s. Rule: Damages can be awarded only when the injury is immediate and not the remote result of D’s negligence. Here, the spark was too remote. (Court used foreseeability to show remoteness.)

Berry v. Sugar Notch Borough (p. 502): While during the car in which he was a motorman in excess of the speed limit, P was injured when a tree was blown down and fell on the roof of the car. Court finds that the speeding was a substantial contributing factor, as it did play a role in putting the car there at that time. But it wasn’t the proximate cause, as there is no relationship between the speeding and the accident (speeding didn’t cause it). Rule: A person’s right to recover for injuries caused by the negligence of another is not automatically precluded because he was violating some ordinance at the time he was injured.Plaintiff’s breach of a safety statute was not causally connected with his injuries because it did not increase the risk or hazard of being stuck by the tree. It is irrelevant that the increased speed coincidentally landed Plaintiff under the tree.

Palsgraf v. Long Island R.R. (p. 501): P was injured on D’s train platform when D’s servant helped a passenger aboard a moving train, jostling his package, causing it to fall to the tracks. The package, containing fireworks, which exploded creating a blast that tipped a nearby scale onto and injuring P. Rule: The risk reasonably perceived defines the duty to be obeyed.

Cardoza (Majority/widens liability): Uses foreseeablity test; Only foreseeable harms bear liability; D must take reasonable care to protect P/P’s class. This distinguishes between liability and causation. no liability for harms that are not foreseeable, no duty = no negligence

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Exception: Thin Skulled P – D is liable for all personal injuries to the P even if they are unforeseeable

Andrews (Dissent/restricts liability): Uses direct/remote test; there is a duty to the public at large for any and all injuries, foreseeablity is not required.

Petition of Kinsman Transit Co. (p. 525): due to spring thaw huge ice cakes break away and crash into and looses negligently tied boats causing them to collect at the mouth of the dam, which was negligently kept closed. As a result the river flooded everything including P’s home upstream. Rule: (Judge Friendly) The damage (clogging of the dam) was foreseeable, so the D is liable for the damage done by the negligently tied boat. D need not foresee the exact extent of the harm.

4. Superceding/Intervening Cause = An event that comes between the initial event in a sequence and the end result, thereby altering the natural course of events that might have connected a wrongful act to an injury and itself becoming the proximate cause; if it is strong enough to relieve the wrongdoer of any liability, it becomes a superceding cause; it cannot be an act of god, the D, or the P -it must be a 3rd party; if it was reasonably foreseeable to the D then it is no longer an supervening cause and the D is still liable; if it was not foreseeable, the D is usually off the hook however, sometimes in tough cases, the court looks at other factors such as fairness and badness and finds the D liable;a. Rescuers do not breach the chain of causation between tortfeasors and victims, even if the rescuer if negligent – these risks are foreseeable (‘danger invites rescue’).b. The chain of causation is also extended to rescuers that are injured while reasonably performing ordinary rescue efforts so, if a non-negligent rescuer is hurt, the D is liable for that also

Wagner v. International Ry. (p. 512): P’s cousin was thrown from D’s train car and car kept going for a while. P then got out went searching for the body and was himself injured when he fell from the trestle. Rule: A party whose negligence has caused harm of the risk thereof is liable to all persons who are injured in the course of reasonable rescue attempts.

Pittsburg Reduction Co. v. Horton (p. 487): Kid finds blasting cap and trades them with another kid. 2nd kid is injured. Rule: Trade among kids, parent’s opportunity to confiscate, etc. function as supervening causes, time alone is not.

Oil Truck Driver Spills Oil: Negligent smoker ignites fire by dropping butt at gas station, where truck driver has spilled oil. Rule: Accident was foreseeable so driver is still liable. However, if smoker intentionally ignites the oil, he/she becomes a supervening cause because it is not foreseeable to driver and the badness of the smoker’s act will force the court to hold him liable.

Marshall v. Nugent (p. 532): D’s negligence created a car accident, which led to P’s, who was not a party to the initial accident, injury. Rule: Liability of the negligent

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actor is confined to the harmful consequences that result from the natural course of events triggered by his/her negligent act. D need not foresee the precise manner of that which brings about the harm.

Wagon Mound #2 (p. 539): Same scenario, years later. Rule: This time engineer should have known that the water could catch fire. Therefore, the welders were a supervening cause and therefore liable. Foresight of a remote possibility of harm may be sufficient to establish proximate causation.

Union Pump v. Albritton (p. 527): P was engaged in putting out a fire. After the fire was out P climbed over some pipes to turn off a valve. On the way back she slipped and fell. Rule: The risk created by the D had receded and the fire was no longer threatening so, the P did not have to walk of the pipe. Her actions became the supervening cause of her injuries.

5. Concurrent Cause = one of two or more causes that simultaneously create a condition that no single cause could have brought about; an exception to but-for cause

Summers v. Tice (p. 485): 2 shotgun blasts fired by 2 Ds, P is hit by 2 shots although it is unknown as to which person, or both, fired the striking shots. Rule: Both were negligent and the injury resulted from this negligence, so both are liable (burden shifts to Ds to fight amongst themselves).

Negligence Defenses:

A) General: attempt to defeat one of the prima facie elements

B) Affirmative: ‘Yes, but I shouldn’t be held liable for full damages”…

1. Contributory Negligence: (though 1970) completely bars P from recovery if the damage suffered is partly the P’s own fault; most states have abolished this; D has the burden of proof

Conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff’s harm. All or nothing. If you are even the slightest but negligent then you can recover nothing. If you are not contributorily negligent then you can get 100% of damages. Same Prima Facie elements of negligence need to be proved. Affirmative defense to negligence-Superceeding cause is a defense to cancel out contributory negligence

Prima Facie Case1. P created a reasonable foreseeable risk to self,2. P failed to take reasonable care, AND3. P failure to take care was the substantial contributing cause of the injury 4. P failure to take care was the proximate cause of the injury

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Reasons for Contributory Negligence were administerablity, judicial expediency, avoids apportionment.

Butterfield v. Forrester (p. 328): P rides horse recklessly and in injured by an obstruction he could have otherwise avoided. Rule: A P will not be able to recover where his lack of due care contributed to the occurrence of the accident.

Gyerman v. United States (p. 333): P hurt while unloading fish meal sacks in D’s warehouse. Rule: Contributory negligence is conduct on the part of the P, which falls below the standard to which he should conform for his own protection, and which is a legally contributing causal connection with the negligence of the D in bringing about the harm (duty to protect yourself in the face of danger).If an employee does not report an unsafe condition to his supervisor, and is subsequently injured while working under the unsafe conditions, his contributory negligence bars his recovery only if it can be shown that the unsafe condition would have been corrected if he had reported it.

Exceptions to complete bar were:a) D has a mental disability and doesn’t know consequences of the actb) D’s conduct was more reckless than P’sc) D had the ‘last clear chance’ to avoid the injury (see below)d) If P violated a statute because it was safer to do so

Tedla v. Ellman (p. 251): P and her deaf mute brother were walking against traffic at night because it was safer. Rule: Violations of a statute may be excused by necessity or emergency, or by reason of incapacity, as it the case with various forms of common-law negligence/when the actor exercises reasonable care in attempting to comply with the statute.

Responses to Contributory negligence defense:

A) Gross Negligence

1. An ‘I know it when I see it’ standard; no standard definition of what separates it from regular negligence; its only purpose is to knock out contributory negligence claims

2. P has to show that the D’s negligence was so bad and so much worse that his/her contributory negligence, that it should be ignored and P should recovery all (it had to be mallicious / callous)

B) Statutory Rule

1. The injured person is so dependent that the law must protect him/her

C) Last Clear Chance

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1. If P is successful in establishing that D had the ‘last clear chance’ to avoid the injury to P, then P will be awarded full recovery despite his/her own contributory negligence; P must prove:

a. D was aware of P’s presenceb. D was aware of P’s ignorance of his/her peril or of his/her inability to save

themselves, ANDc. D could have avoided the accident if he/she used due care

Fuller v. Illinois Central R.R. (p. 350): P, who was riding in a one-horse wagon crossing a railroad track, was hit by D’s train and killed; P’s representative argued that the train’s engineer has the last clear chance to avoid the accident. Rule: The contributory negligence of a party injured will not defeat the action if it is shown that the D might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party’s negligence. (WE DIDNT DO THIS CASE)

Many of the jurisdictions that have since moved over to comparative negligence have abandoned this principle because its main purpose was to mitigate the harshness of contributory negligence as a complete bar to recovery.

2) Comparative Negligence: (1970 - ) P’s recovery is reduces proportionally to the P’s degree of fault in causing damage, rather than barring recovery completely; most states have statutorily adopted this doctrine; goes to the P’s actions/liability only. Additionally, this only applies in ONE P and one D cases

i. Pure = P recovers whatever portion he/she is not responsible for (i.e. 25% fault = 75% recovery; 75% fault = 25% recovery); downside is that even if the P is overwhelmingly responsible, P can still recover big time

Li v. Yellow Cab Co. of CA (p. 384): P was injured by speeding D while making a left hand turn into a gas station against 3 lanes of on-coming traffic. Rule: Liability for negligently caused damage is assigned in direct proportion to the amount of negligence of the involved parties - - fairness overrules administerability. (A LANDMARK CASE)

ii. Impure = D just has to show that the P was more responsible than all of the D’s. P is barred from recovery if he/she is 50% or more liable than all defendants; P has to show he is less responsible than the D’s (combined) (approx 48 of the states do this)

iii. Modified Comparative Negligence = D has to show that P is more at fault; if P’s fault is equal than or greater to D’s, P is barred from recovery; OR P must be 49% at fault or less in order to seek recovery (NJ)

3) Assumption of Risk (express or implied): it must be shown that the P failed to exercise reasonable care, and that such lack of due care contributed proximately to P’s injury. This required proof that the P knowingly entered into, or stayed in, a position of danger. This defense prevails despite the fact that the P’s entering into a position of danger, or staying in a place which has become dangerous, was reasonable under the circumstances. (often in recreational activities) This differs from

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negligence in that it is subjective and requires that P has or should have knowledge of the danger/risk and that the P reasonably assumes the risk (i.e. roller coasters)

a. Exception: when D does not owe P a duty of safety

3 uses of AoR:1. There is an explicit contractual agreement b/w the parties in which a particular risk is allocated to the party that bears that risk.2. Defendant owes no duty (or you have waived your duty) to the Plaintiff therefore the P. assumes the risk (i.e. road runners club and runners) (Diving Suit disclaimer of risk in California for Latin) (Shea stadium case) (Eco Vitality disclaimer)3. Defendant did owe a duty of care. Plaintiff found negligence. Defendant raises assumption of risk as a defense, however, must show that the particular P. knew of the risk and voluntarily exposed himself to the risk. This is why we now have Workers Compensation b/c there were so many suits like this.

Murphy v. Steeplechase Amusement Co. (p. 365): P was injured when he fell while riding an amusement ride (The Flopper), which was a moving belt that ran up an inclined plane and caused people to fall on padded walls and flooring. Rule: One who takes part in a sport accepts the dangers that inhere in it insofar as they are obvious and necessary and they are not so serious as to justify the belief that precautions of some kind must have been taken to avert them. He even said “he took a risk” he also saw others ride the ride. The courts would not apply negligence b/c he assumed the risk. (I believe this is version 3 above)

Lamson v. American Axe & Tool Co. (360) New rack for axes was dangerous. Plaintiff told Defendant. Defendant said you can leave if you feel they are unsafe. Plaintiff stayed. Since the P. knew of the risks of the new racks and the employer informed him he could leave if he felt that they were too big of a risk, and the P. stayed at his job, the P. in his actions was assuming the risk of injury and would not have an action against the D. for any injuries. (I believe this is version 3 above)

Assumption of risk does not function as a total bar to recovery. For example, in CA it functions as one facet of comparative negligence. The argument against it is: it isn’t good for people to give up all of the rights they otherwise have. One goal of tort law is to prevent accidents; assumption of risk goes against this. P still has a duty to mitigate the harm done by exercising due care, otherwise his/her damages may be reduced.

Primary v Secondary Assumption of RiskPrimary assumption of risk demonstrates the notion that there is no duty on part of the defendant to protect the plaintiff from risk of injury. Secondary assumption of the risk occurs when there is a breach of a duty owed to a plaintiff who knowingly encounters a risk of injury caused by that breach and has been merged into the comparative fault system.

Meistrich v. Casino Arena Attractions-) (371) guy fell when the ice was prepared in a diff. way. Plaintiff was said to have contributed to the accident when he continued to skate on it. (secondary assumption of risk, this ruling separates the two meanings) Plaintiff knew the safety was in question, therefore he knowlingly encountered the risk of injury caused by the breach of the ice being unsafe.

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4) Joint & Several Liability: requires negligence on the part of the Ds Multiple Defendants Concurenty Tortfeasors

a) Joint Liability – implies that each of several Ds are responsible for and their actions all substantially contributed to the entire loss that they all caused in part

b) Several Liability – holds each D responsible for only his proportionate share of the loss. If the P sues two Ds, a jointly liable defendant can be held liable for the full loss, while the severally liable Ds can only be held liable for half

c) Joint & Several Liability – if 2 people are the contributing cause of damage, they are each responsible for everything; this is a way for the P to shift the burden when the D’s actions are tortious, and they are the ones who created the uncertainty; P can always recover 100% and can do so from any one of them, Ds must determine which one of them caused the injury; still the dominant standard; Elements:

• All parties must be tortious actors (if one is a natural actor, P cannot recover• All of the tortious actors or causes have to have been identified• D’s acts caused the uncertainties

Defense:

If D can show that his/her negligence was not the cause, he/she is no longer a D/ liable.

Equitable Apportionment: D who has to pay damages can sue all other tortious parties in a separate trial. All parties split the damages according to their liability. (SPEAKS TO D’S ONLY)

Union Stock Yards Co. of Omaha v. Chicago, Burlington & Quincy R.R. (p. 405): the court refused to allow indemnification because P was no less at fault than the R.R. No great imbalance, therefore indemnification was not appropriate. If it was allowed, the D would have had to pay the entire damage award back to P, after P paid the injured party. A wrongdoer (Union stock yards) who has been compelled to pay all of the damages for a wrong cannot recover against another wrongdoer (Omaha) unless that other wrongdoer is the principal wrongdoer. Here, the court held that the negligence of the parties was of the same character and P could not seek contribution because D was not the principal wrongdoer.

American Motorcycle Association v. Superior Court (p. 409): . Has the effect of deterring parents of minor children from bringing an action because they could be brought in as Ds to the damages. AMA wanted its liability reduced by the amount the parents were negligent in allowing their son to ride the

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motorcycle in which he was injured while in a tournament for novice riders sponsored by the defendants. Courts applied regular JSL but AMA argued for equitable apportionment. Courts will not apply a liability theory that goes against the doctrine of “intra family immunity” where children can not sue their parents”

Dole v. Dow Chemical Co. (p. 415): Guy died when he went into a chamber that was sprayed with a chemical and it was not given enough time to air out. Employee sued the maker of the chemical, (Dow) because he could not sue his employer. Dow then sued the employer b/c they said they were not the cause, it was the employer’s failure to read the warnings that came with the product. This is a way to get around not being able to sue your employer. Employer benefits from workers’ comp. because the employee could only recover from it, which is less costly than tort litigation and awards; fixes liability and money is paid out of a pool; allowing 3rd party actions against the employer undermines and defeats the benefits of the workers’ comp system.

5) Vicarious Liability: liability that a supervisory party bears for the actionable conduct of a subordinate or associate because of the relationship between the two parties; where one is responsible for the damages of another

• Respondeat Superior – “Let the master answer” employee is responsible for actions of employees within their course of employment.

Ira S. Bushey & Sons, Inc. v. United States (p. 429): Lane was a seaman for the United States Coast Guard (D). One evening after returning drunk to his ship after leave, Lane opened a valve controlling the flooding of the dry dock tanks. As a result, both his ship and part of the dry dock sank into the water. The owner of the dry dock, Ira S. Bushey & Sons (P) sued D for damages and the court entered judgment for P. Employer should be responsible when they don’t exercise enough control over their employees. An employer is still vicariously liable for an employee’s negligent acts even if an employee’s conduct is not motivated by serving the interests of his employer, if the employee’s conduct was reasonably foreseeable and within the scope of his employment.

Schecter v Merchants (p. 435): A customer brought an action against an appliance store and delivery company, alleging that they were vicariously liable for deliverymen’s theft and that they were negligent in hiring deliverymen. The court stated that when the employer knows that the employee will have free and independent access into the homes of its customers, the employer has an obligation to make reasonable efforts to inquire into such employee’s past employment and past record.

5) Market Share Liability: liability that is imposed, usually severally, on each member of an industry, based on each member’s share of the market, or respective % of the product that is placed on the market; only applies when the P cannot trace the harmful exposure to a

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particular product, as when several products contain a fungible substance; used almost exclusively with DES cases – rare and largely rejected. Elements:

1. All defendants named in the suit are potential tortfeasors (that is, they did produce the harmful product at issue)2. The product involved is fungible3. The plaintiff cannot identify which defendant produced the fungible product which harmed her in particular, through no fault of her own4. A substantial share of the manufacturers who produced the product during the relevant time period are named as defendants in the action.

Sindell v. Abbot Laboratories (p. 493): DES ingested by pregnant women caused cancer in their children. Rule: All producers forced to pay as per their % of the DES market because not all tortfeasors were charged in the suit.

Skipworth v. Lead Industries (p. 488): P brought suit against paint manufacturers for injuries sustained as a result of her ingesting paint that contained lead, which was found in her home (the only one she ever lived in). Rule: The market share liability theory does not apply because of the difficulty in finding all of the tortfeasors (over a 30 year period), lead paint is not fungible, and the manufacturers did not know of the risks at the time of manufacturing.

Medical Malpractice:

A Dr’s failure to exercise the degree of care and skill which is normally possessed and used by Dr’s in good standing in similar practice and under like circumstances; the only field in which custom is still binding (works as a shield);

Reasonable Care = Dr’s are held to a standard of widely used practices within a school of medical treatment. The P must show that the Dr. did not perform the proper procedure within their school of medical practice = as per custom. Since custom is binding, the P would have to find expert testimony from a Dr. within that school of medicine.

Quintal v. Laurel Grove Hospital (Handout #2): 3 issues of behavior should be analyzed in order to determine negligence; each of which must be looked at separately.CHECK 9/21 NOTES

1. Decision to operatea. Apprehensionb. Child’s temperaturec. Pre-op medicationd. Elective surgery2. Conduct during operationa. Should ophthalmologist do thoracic surgery

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b. Tried for one minute to do external fixc. They went to find an thoracic surgeon when in trouble3. Failure to have an emergency plana. Dr.’s stood in the operating room deciding what to do

Policy arguments supporting custom as binding:

1. We want Dr.’s to maintain some level of custom, but in order to promote innovation we hold it only as admissible (Since Dr.’s have the better info, they are not to go beneath the standard but can go above it.)2. Gives Dr.’s consistency and predictable exposure in volatile areas of practice3. It is difficult to determine whether adverse conditions are due to external forces or Dr.’s incompetence4. To limit jury from finding for the P out of sympathy/pity5. We want Dr.’s to take risks not to practice defensive medicine6. To avoid war with experts

Policy arguments against custom as binding:

1. Discourages Dr.’s from using cutting edge technology2. Stifles risk taking and prevents doctors from innovation3. The focus is on custom rather than “best reasonable care”4. We want Dr.’s to do better5. Courts have a hard time distinguishing custom from ‘moving target’ – due to the rapid change inherent in the field

The judge determines what qualifies as a school of medicine and if its practiced are widely used within that group. The standard of care is established by what the reasonable well qualified professional ordinarily and customarily does in fact do. The profession itself sets the standard by its own custom and practice through ‘schools of medicine’.

Lama g. Borras (p. 231): P brought suit alleging medical malpractice against Dr. and hospital (Ds) on the basis that D was negligent in failing to administer a conservative treatment program prior to resorting to surgery. Rule: In a medical malpractice case, the P must show that the Dr’s treatment fell below the standard of care applicable to the general practitioner, resulting in the P’s injury.

Helling v. Carey (p. 223): P gets glaucoma due to D’s failure to test her for it. Rule: The court balanced the cost of doing the test v. the cost of going blind. The test was so cheap that the court decided that the doctor was negligent in not performing it - - Dr. did not use reasonable care.

The way to beat the custom defense is the show that there are not enough people following that ‘school’ therefore it is invalid. Historically, the standard of care is limited by the ‘locality rule’.

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Locality Rule = the doctrine that, in a professional-malpractice suit, the standard of care to be applied to the Dr.’s conduct is the reasonable care exercised by similar Dr’s in the same, or similar, vicinity and professional community. It also limits which experts you can bring in (i.e. you can’t bring a Boston Dr. to testify in a North Dakota case). Largely abandoned but some states, generally large rural western ones still adhere to it.

Brune v. Belinkoff (p. 240): P says too much anesthesia was administered during childbirth; D says he administered the amount that all Dr.’s in that region use. Rule: The court misinterprets the locality rule and then rejects it; applied national standard.

Medical Disclosure = the act or process of making all medical ramifications/ implications known to the patient; debate between the autonomy of patients v. just enough information for the ordinary patient to understand the risks;

Pro – patient not the Dr. should have the final say in what medical risks they will be exposed to; Dr. are not experts on what to disclose; once juries know what the risks are, they should decide whether or not its material (meaning it would change the P’s mind about whether or not to have the surgery)

Con – The Dr. should only have to provide enough info for the ordinary patient; the measure of adequacy is that the Dr. gave reasonable disclosure so that the average person could understand the warning; P would have to show that the average person (or, in some jurisdictions, that he/she) would have changed his/her behavior if a certain piece of info had been disclosed.

Canterbury v. Spence (p. 245): D performed an operation on P without advising him of the risks associated with the surgery and he ended up paralyzed. Rule: A Dr. owes a duty to reasonably disclose all information concerning an operation to a patient, which a reasonable Dr. in the community would disclose based on sound medical considerations. This is the test to see if the failure to disclose is negligent/unreasonable.

Two conflicting principles: These are agreeable when taken separately.

1. Protection of Dr.’s by enforcing the objective standard of care2. Protection of the patients’ right to control their bodies.

Four things P must show for lack of informed consent:

1. Material risk of procedure was unknown to him (objective)2. Dr. failed to disclose risk3. Disclosure would have lead the reasonably prudent person to reject the procedure and choose an alternative

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4. Show that an injury resulted (in order to recover)

Dr.’s defenses:

1. Disclosure may be detrimental to physical or psychological well being of patient2. Patient was incapable of giving consent 3. Emergency made it impossible to get consent4. Risk is so obvious that it is unnecessary to inform5. Procedure is routine and simple, the danger is remote6. Dr. was unaware of the risk

Medical Malpractice and RIL:

1. Standard of care of the Dr. is set by2. Medical custom of minimum standard of skill and knowledge commonly possessed by members of that communitya. Local standard (this is favored) butb. National standard is adopted when it is the same as local standard; today there is a movement towards the national standard because of things like the AMA guidelines, standardized education, etc.3. P will put on expert witnesses to establish the medical custom, which is used to bridge gaps in the jury’s knowledgea. Witness must be a licensed member of that school of medicineb. Witness must be familiar with the procedure, methods, and treatments ordinarily used by other Dr.’s in the D’s community.

Ybarra v. Spangard (p. 297): P gets shoulder injury during the course of having or recuperating from back surgery. Rule: Where an unexplained injury occurs during a medical procedure to a part of the body not under treatment, RIL applies against all of the Dr.’s and medical employees who take part in caring for the P.

Things to ALWAYS mention with MM & RIL:

1. RIL is used to overcome the wall of silence, where Dr.’s won’t testify against each other2. P will (sawed off) shotgun all possible D’s in medical malpractice because he doesn’t know who specifically was in charge or in exclusive control3. Some Dr.’s are experts for hire

Expert Testimony/Scientific Evidence:

Expert testimony is needed when the topic is one in which lay people would not or could not understand. Rarely is it ever inadmissible and the testimony binds the jury in that they can not come back with a finding that contradicts the expert testimony. When two conflicting experts testify, the jury is left to decide which one to accept but the jury must choose one (the testimony cannot be combined or thrown out altogether).

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Frye v. United States (p. 450): For scientific evidence to be admissible, there must be a general acceptance in that specific scientific field (or methodology). It must not only relevant but also reliable. It is hard to use this doctrine since there are so many theories and none may be widely accepted. Fry test deals with toxic torts. (No longer used.)

Daubert (HO): Judge looks at the evident and decides whether to allow it in based on his/her determination of its reliability. This allows more expert testimony to make it in – whether or not the evidence is reliable and based on expert testimony and whether it has developed as a matter of science or in the context of litigation. This gives judges the right and responsibility to give sweeping opinions on the adequateness of scientific evidence. The jury must then decide how much weight to give that evidence. This is done on a case by case basis. Mini trials are held on the reliability/relevance of the evidence. (Current application)

Kumho v Carmichael:

http://en.wikipedia.org/wiki/Kumho_Tire_Co._v._Carmichael

Brief Fact Summary

Carmichael was driving a minivan when a tire blew out and cased severe injuries and the death of one passenger. Plaintiff, Carmichael, sought damages from the tire's manufacturer and distributor claiming that the tire was defective. During the trial, a expert witness for the plaintiff claimed that he could distinguish between blow outs that are caused by defects and those that are caused by tire abuse. Defendants moved to strike this testimony on Daubert grounds.

Rule of Law and Holding

Because there is no "convincing need" to draw a distinction between "scientific" and "technical" knowledge, the gatekeeping function described in Daubert applies to all expert testimony proffered under Rule 702. Additionally, "a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony."

General Electric V Joiner 10/12/10:

Brief Fact Summary

The Supreme Court granted certiorari to determine the issue of what standard an appellate court should apply in reviewing a trial court's decision to admit expert testimony.

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Rule of Law and Holding

Abuse of discretion is the appropriate standard that an appellate court should apply in reviewing a trial court's decision to admit expert testimony. In the people, small cell lung cancer, but in the mice – nasal tissuesRehnquist says it wasnt in the same area, thus degrading the reliability "Body site specificity" should we look at cancer vs cancer or location vs location in cancer? Body site specificity limits animal studiesTo be conservative – agencies determined that ANY animal study cancer finding would be calculated as a risk for cancer.

Rubaneck (HO)

Toxic Torts – NJ chem plant emps die of cancer, PBC are claimed to be the cause.

This changes the emphasis from scientific acceptance to sound methodology. This permitted expert testimony in areas that were not yet generally accepted in the sci community. They hold in tox. Tort litigation a scientific theory of causation that has not yet reached gene acceptance maybe found to be sufficientyly reliable if it is based on a sound, adequately founded sci methology of the type reasonably relied upon by experts in the sci field.

Bessamer

N.J. 279 (1998) established an interpretive standard for determining whether a plaintiff can establish a prima facie case on medical causation by satisfying the frequency, regularity and proximity test absent evidence that the illness was caused by specific products.[xlvi] The court concluded “a plaintiff in an occupational-exposure, toxic-tort case may demonstrate medical causation through (1) factual proof of the plaintiff’s frequent, regular and proximate exposure to a defendant’s products; and (2) medical and/or scientific proof of a nexus between the exposure and the plaintiff’s condition Defendants are forced to figure out the percentages, not the plaintiff

PCBs – is common sense permissable?

Barrel case:1st step: Figure out who defendants should be (ask workers which names they remember on the barrels)2nd step: Show substances cause cancer3rd step: Show that these substances more than likely caused cancer in the plaintiff.FRP Test – Frequency, regularity, proximity -

Met burden of proof through inference – somebody is around a known carcinogen for decades, and he contracts cancer, better than even chance he got it from those exposurse.

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III. Strict Liability

Liability that does not depend on actual negligence or intent to harm, but that is based on the breach of an absolute duty to make something safe. Strict liability relieves the P from proving negligence however P must still prove causation. Often applies to ultra-hazardous activities or products liability cases. These ultra-hazardous activities can be conducted only if the person conducting them is willing to insure others against the harm, which results from the risks he/she creates. Strict liability also allows for compensation for property damages due to ultra-hazardous activities (i.e. blasting, storing dangerous substances, keeping dangerous animals). Fault is conditional only when actual harm results.

Six elements of ultra-hazardous activities:1. The activity involves a high degree of risk of some harm to the person, land, or

chattel of others2. The gravity of harm which may result is great3. The risk cannot be eliminated by exercise of reasonable care4. Activity is not a matter of common usage5. Activity is inappropriate to the place where it is carried on (i.e. artificial reservoir)6. The value of the activity to the community

Trespass = without consent or privilege enters another’s property/deprives owner of exclusive possession of real property; all that is necessary is that the act resulting in the trespass be volitional, and that the resulting trespass be direct and immediate; no actual damage or intent needs to be shown; NOT an intentional tort

Prima Facie Case1. Possession of/presence on property2. Lack of consent

If a person was pushed onto someone else’s property, the pusher would be strictly liable for the trespass since the person pushed did not intend to go onto the property. However, the person who pushed him intended to push that person onto the property. One could be found liable for trespass if something on his land encroaches upon someone else’s land (i.e. pipe breaks and water floods neighbors yard). Additionally, a trespasser who builds a fire, digs a hole, or merely leaves a door or gate ajar may be liable for the resulting physical harm.

Fletcher v. Rylands (p.111): property flooded when the reservoir built by a neighbor escaped. Rules: 1) A person using his land for a dangerous, non-natural use, is strictly liable for damage to another’s property resulting from such non-natural use. 2) Where a party’s actions unwittingly cause damage to the land of another, he is liable regardless of negligence. 3) If a person brings anything onto his property, which, if it escapes, might damage his neighbor’s property, he is responsible for all the damage that is the natural consequence of the escape. (Many courts later rejected these to encourage land expansion.)

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Conversion = conduct which deprives another of his property permanently or for an indefinite time or the exercise of dominion/control over a chattel, which is inconsistent with another’s ownership of it; traditional rule was that the person who had actual possession of the property at the time of the tort, or at least the person entitled to immediate possession must bring the action for recovery; NOT an intentional tort

Prima Facie Case1. D took P’s property2. Lack of consent

Even if you take property that you think is yours, but belongs to someone else, you are still (strictly) liable; no intent necessary

Kirby v. Foster (p.65): P was injured by D who was attempting to recover money given to P to pay D’s employees. Rules: 1) P deducting what he thinks he is owed without the consent of the D is conversion; 2) A party may not use force to recover property held by another under a claim of right where the original possession was lawful.

Strict Products Liability: Only applies to Ds in the business of selling the product

In most jurisdictions today, a manufacturer or a supplier of a product that is defective and unreasonably dangerous can be held strictly liable in tort when the product causes injury to the user or his property. Liability is strict but not absolute! P must prove that the defect cause the injury that it attributed to D’s product. Almost all strict liability claims are based on common law principles however statutes may explicitly or implicitly create a strict liability cause of action. The rationale behind this theory is that D is better able to insure against loss so it is unfair to have P bear the costs; it increases the safety incentive, and heads off the difficulty of proving negligence.

This is stricter than negligence because the manufacturer’s product must be used by someone other than the buyer, without further inspection and it must put life in peril. The harm has to be foreseeable to the manufacturer. It is a regular negligence test with some added elements. Policy arguments are: loss spreading, information access, consistency, fairness, and litigation costs.

Applies when:1. D is in the business of selling the product2. The product is expected to and does reach the consumer without substantial change in the

condition to itEven though:

1. D has exercised all possible care in preparation and sale of his product, and2. The consumer or user has not bought the product from or entered into a contractual

relationship with the DExceptions:

1. Manufacturer liability is not extended to products that are modified2. Manufacturer liability is not extended to products that are resold as ‘used goods’3. Both act as superceding causes

(Note: P can sue anyone in the sequence that brought the item to the market place although distributors are practically never included.)

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Winterbottom v. Wright (p. 728): (really a contracts case) P was injured while driving a defective mail coach, which the government has bought from D pursuant to a supply-maintenance contract. Rule: A contracting party, unless he has undertaken a public duty, has no liability to 3rd parties who are injured as a result of a breach of contract. Essentially, speaks to = this guy can’t sue that guy (aka no liability), which has now been abolished except for in the UCC. Principles of Privity are still alive and well though. This decision is based on a desire to promote entrepreneurship and limits companies’ exposure to liability.

MacPherson v. Buick Motor Co. (p. 731): P purchased a car for his wife who was injured when a defective wheel collapsed. Rule: A manufacturer will be strictly liable for injury caused by his product where, if negligently made, it will be dangerous to the life of any potential user. Landmark decision allowing negligence to determine products liability, provided it was used as expected, foreseeably dangerous (if negligently made), foreseeable that someone other than the purchaser would use the product, and foreseeable that it will be used without inspection or test. Further, manufacturers cannot market unsafe products on the rationale that buyers may want to purchase less safe products to save $. This abolished privity. (NEGLIGENCE)

Cardozo changed the common law from privity of contract to products liability. Elements of Negligent Product Liability1. Must be foreseeable great danger if the product is negligently made. (foreseeability)2. If negligently made it will be dangerous to life and limb. (great danger)3. Others than the buyer will use it. (for the buyer it is under privity of contract)4. W/O further inspectionCardozo’s Policy Arguments

Fairness Reliance Justiciability(can court provide adequate resolution) Deterrence All actors are responsible if their actions are foreseeable.

(Note: In other words, one who negligently manufactures a product is liable for any injuries proximately caused by his negligence.)

Escola v. Coca-Cola Bottling Co. of Fresno (p. 739): P, a waitress in a restaurant, was injured when a Coke bottle exploded while being place into a refrigerator. Rule: The manufacturer of a defective product should be held strictly liable for any injuries which results from the use of the product. MacPherson was invoked here however, this time, Judge Gibson also pulls in Res Ipsa Loquitor to force the manufacture to find out why the accident actually occurred. In other words, no one is sure why the bottle broke, but it could have been avoided with adequate inspection, therefore the manufacturer incurres ABSOLUTE LIABLITY. Policy demands that liability be placed on the one who can bear the cost efficiently.

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TRAYNOR: He used absolute liability = if the product caused the injury then the manufacturer is liable. Policy Arguments-Loss Spreading (Enterprise liability); Information Access; Deterrence, Reliance, Fairness, Reduce Litigation costs.Traynor-Absolute Liability-Product caused the injury therefore absolute liability. There has never been one case decided on this theory. Why this argument is not so great. 1. People should bear their own responsibility when they use the product incorrectly, 2. There may be good products that the manufacturer makes, 3, Drives up the cost of the products. Arguments in favor: Courts don’t have to twist themselves into a pretzel to find liability; loss spreading; fairness; reliance and others.

Timeline of products liability:PrivityMcPhereson (1916) –quantam leapEscola (1944)Penningson (1960)Greenman (1962) –First strict liability case-quantum leapStrict Products Liability-Now it is a strict negligence for buyers, end users, or proximate people.

1958-RESTATEMENT SECOND OF TORTS

Section 402A-SPECIAL [STRICT] LIABILITY OF SELLER OF PRODUCT FOR PHYSICAL HARM TO USER OR CONSUMER

1. One who sells [commercial seller (retailer, manufacturers, dealers)(does not apply to 1. sellers of used products-they are only under negligence and would be liable as a provider of a service, 2. blood banks, blood is not a product it is just a provider of a service-now it is seen as a product b/c blood now can be tested and we can protect against contaminated blood, 3. books-the content of the book is not a product)] any product in a defective condition [Products were not defective if 1. no riskier than the people who bought them expected them to be-Consumer’s Expectation Test (CET) and 2. Risk Utility Balance Test (RUBT )not defective if its benefits outweighed its risk ][requires reasonability] unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

a. the seller is engaged in the business of selling such a product, and b. it is expected to and does reach the user or consumer without substantial change in the condition in

which it is sold.2. The rule state in subsection (1) applies although 1. the seller has exercised all possible care in the preparation and sale of his product [Only applies to a

product that deviates from the way that the product was supposed to be made-manufacturer can not argue that he used care if the product in fact deviated from the way it was supposed to be used (even if quality control was good they are still liable for the product that was the exception)], and

2. the user or consumer has not bought the product from or entered into any contractual relation with the seller.

THERE IS NO ABSOLUTE LIABILITY-NO CASES HAVE BEEN DECIDED USING THIS TEST ( Liable b/c there was harm)

Comments:F-Business of SellingG. Defective ConditionH. Abnormal Handling

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I. Unreasonably DangerousJ. Directions or Warnings - "in order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warnings." Significantly, the comment goes on to state that "where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous." K. Unavoidably Unsafe Products - Only applies to prescription drugs and medical devices in basically every jurisdiction. Three approaches: Elements: 1) knowledge of the dangers; 2) reasonable risk; 3) voluntary act/exposure by P

1. CA – prescription/medical devices = negligence test not strict liability (see Barker case)2. NJ – drugs are big business, we’ll use strict liability on a case by case basis, meanwhile

all cases since have received the strict liability treatment (see Feldman case)3. TX – court does a mini-RUB test to see if there was an alternative, if there was = the

product was not unavoidably unsafe and is susceptible to the strict liability treatment; if there was not = it was unavoidably unsafe and goes to the jury to apply a negligence test

M. WarrantyN. Contributory Negligence – IN products liability, contributory negligence cannot be used as a defense, when its merely in not discovering a product's defect or guarding against a theoretical defect. However, assumption of risk still appliess as a defense. Most limited contributory negligence standard (adopted by NJ); friendliest to P and super-strict on D; contributory negligence only applies if:

1. Use was voluntary2. Unreasonable exposure to3. Known risk4. Employee cannot be deemed voluntary users

In CA (majority), any negligence by P = apportionment of damages.In NJ (minority), only if P meets all of the Comment N factors do his/her damages get apportioned.

THE AMERICAN LAW INSTITUTE, RESTATEMENT (THIRD) OF THE LAW OF PRODUCTS LIABILITY (1998)Section 1. LIABILITY OF COMMERCIAL SELLER OR DISTRIBUTOR FOR HARM CAUSED BY DEFECTIVE PRODUCTS

One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect. [For purposes of determining liability under Section 1:]

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:

(a) contains a manufacturing defect when the product departs from ist intended design even though all possible care was exercised in the preparation and marketing of the product;

(b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonable safe;

(c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided b the precision of reasonable instructions or warnings by the seller or other distributor; or a predecessor in the commercial chain of distributions, and the omission of the instructions or warnings renders the product not reasonably safe.

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3 Types of Product Defects:

I. Manufacturing Defect – product not produced as intended; the strictest (most true) of all strict liability and the easiest to establish; Elements of the prima facie case:

1. Product was used in an intended or foreseeable way (a threshold requirement)

2. Product deviated from the design (show specific defect) (or malfunction-which you don’t have to prove what the specific defect was)

3. Intended/foreseeable use caused P’s injury4. Deviation in the product was there when it was put into the stream of

commerce

Methods of proving Manufacturing Defect:1. Get the manufacturer’s specs. (clearly discoverable although sometimes too broad i.e.

what’s been submitted to the FDA)2. Purchase a few comparable models and inspect them in order to establish the standard

deviation from the design 3. Use Res Ipsa Loquitor when this type of accident normally doesn’t occur unless there is a

defect in the product

a. Pouncey v. Ford Motor Co. (HO): P (Pouncey) was injured when a blade broke off his Ford’s radiator fan while he was putting antifreeze in his car. P argues that impurities in the metal used in the fan caused the accident. Pouncey brought in an expert metallurgical engineer to say that the fan blade had “surprising number of inclusions” which were an identifiable defect in the metal which served as “stress concentrated areas” and “lowered the endurance limit of the fan”. Ford brought in three other experts to refute this testimony. Courts said that there was direct evidence that Ford’s supplier manufactured the blades with “dirty” spring steel, despite the fact Ford had awesome quality control OVERALL, they did not in this case. Pouncey’s expert testified that Ford and its supplier could reasonably expect a premature fatigue failure and Ford offered no evidence as to quality control. Design defect INFERRED here – no specs on quality of metal, but same models = didnt have this, thus this case Ford was defective.

1. Product injured plaintiff2. Deviation / Defect / caused injury (if the item was designed and it was made right, and this

caused the injury, its a total different case. )3. The manu was responsible for the defect (defect was in the product when the manu put it into

the stream of commerce) Key issues: Deviation / manu responsible which makes it a manufacturing type of case, not one of the others

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#2 & #4 are the hardest to

prove

Keeler v Richards (HO): Screws different than manu specs, expert testimony shows this probabaly contributed to the break leading to the physical harm. It is NOT enough to show the screws are different, must show its a substantial contributing cause. Cant do this w/o expert testimony This is a good example where the plaintiff had an expert measure the screws and test against manu's specs, and several fell outside of the manu's own guidelines, which shows the deviation. However, P still needed expert testimony that the thinner the screw, the more likely to break, and other tendancies in the aggregate to show that more than likely the deviation of the screws is what led to the accident.This is an example of the part of the prima facie case (Intended/foreseeable use caused P’s injury) where it was not shown, thus the case failed.

What should a lawyer do if a client wants to sue for this?1. Check out similar products first – easy/cheap2. Is it a new product? Check wear and tear (manu is not responsible for this) Natural

degeneration for a product not meant to last?3. Eliminate alternative causes (car example – what was weather like? What was traffic

like?

Jagmin v Simonds (HO) This is a circumstancial case, showing inferred defects can be used to prove that part of the prima facie case. Grinding wheel case, showing that a problem is ordinarily the result of a defect. Needed testimony that it wasnt dropped or something that shows it was used improperly, IE no cracking or strange operational conditions. Also needed testimony it was used properly (properly mounted and operated). What you're left with is an inference (not a positive) that it broke as a result of a defect

Ducko v. Chrysler Motors Corp. (Handout)-Plaintiff Ducko was driving a new Chrysler Fifth Avenue car and the car suddenly jerket to the right and the steering wheel locked she could not brake and it caused her to crash and brake her back. Car had 1,655 miles on it and she was only driving 55 Mph on a dry road. Ducko’s expert said that the accident was caused by a transient malfunction of the system providing power to the steering and brakes. Chrysler’s expert said that it was user error. Courts found that Ducko met the burden of proof through circumstantial evidence and that proof of the specific defect in construction or design causing a mechanical malfunction is not an essential element in establishing breach of warranty. Part 2 of prima facie case – inferring a malfucntion that is not specific.

Wlege v Planters (HO). Glass Jar breaks in D's hand. Sues Planters for defect. Theoretical inconsistencies of using res ipsa in product liability cases. The doctrine of res ipsa loquitur teaches that an accident that is unlikely to occur unless the defendant was negligent is itself circumstantial evidence that the defendant was negligent. The doctrine is not strictly applicable to a products liability case because unlike an ordinary accident case the defendant in a products case has parted with possession and control of the harmful object before the accident occurs. If it is the kind of accident that would not have occurred but for a defect in the product, and if it is reasonably plain that the defect was not introduced after the product was sold, the accident is evidence that the product was defective when sold.

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Speller v Sears, Roebuck & Co. (773) - Fire in kitchen causes Sandra Speller to die and caused injuries to her son. She sues Sears and Whirlpool on grounds that the product did not work as it was intended and was the cause of her injuries. She tried to prove circumstancial evidence by using expert testimony from whirlpool engineer, electrical engineer, etc, and used them to show product didnt peform as intended and exclude other causes for fire. D said that it was a grease fire and not the refrigerator, and used fire marshall's testimony. This is a circumstancial evidence case, where one side's expert testimony outweighs anothers.

Design Defects - Prima Facie Case (2nd strictest after Manufacture defects) I. The producted was sold in the course of business. II. The product was then in a defective condition, unreasonably dangerous when put to a

reasonably anticipated use. This can be proven by one of the two OR both of these two (depends on state, see later): A. CET (shield for manufacturers)(sword for plaintiff-product is riskier than ordinary people

expected them to be and don’t have to show that there is a better way to make it safer ) Problem is that people don’t ordinarily know how safe a product could be made. On the other side, imagine a product that is a million times more beneficial but has high risks. Latin feels this is a defective test in both ways. Also, people are not a reliable test. This rose out of DCUD (Defective condition unreasonably dangerous)

B. RUB – Compares the product in its current state to the product in how it could be safer. (or how the manufacturer could have made a safer machine to prevent against the misuse) Best way to prove is to have a safer design. Look at how if affects all of society. Problem with just using this test is that some products risks outweigh their benefits such as alcohol and tobacco.

III. Used for its intended or foreseeable purpose (or misuse) and by foreseeable users. Impute the knowledge of foreseeable risks at the time of trial and go back to see if a reasonable manufacturer would have still put out the product in the same way. Don’t have to show that the manufacturer could foresee the risks. Manufacturers can not say that the risks were unforeseeable to them b/c foreseeable is not a pf element. Was there a better design available and would the manufacturer have put it out anyway.

IV. The plaintiff was damaged as a direct result of such defective conditions as existed when product was sold.

Volkswagon of America, Inc. v. Young (HO): P’s descendent was killed when the back seat of his Volkswagon tore loose following a collision with another vehicle. An automobile manufacturer many be held liable for injuries sustained in a so-called ‘second collision’ if those injuries were the result of the manufacturer’s negligent design of the vehicle. In short, D is liable for damages that result from foreseeable problems. Intended use included protection (safety). This broadens the intended use.This is a threshhold issue that must be met in EVERY products liability case, and goes for part I of the prima facie case.

Linegar v. Armour of America (HO): P sued D, alleging that a bullet-resistant vest manufactured by D was defectively designed but D argued that it was not liable since it was obvious to anyone who wore the vest that it did not protect certain areas of the body. Rule:

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The obviousness of a defect or danger is material to the issue of whether a product is unreasonably dangerous. In short, this product did not fail the CET Test. This goes in Part II CET above.

Barker v Lull (HO): Ray Barker injured when operating a high lift loader in Univ. of California construction site. The high lift loader was supposed to be used on flat ground not on an incline. He was using it on an incline and was hurt when he attempted to jump out because he lost control. This was a misuse. He alledged that the loader could have had seat belts, a roll bar, outriggers (could have given greater stability) and an automatic locking device. California rules that DCUD is meaningless, and uses CET or RUB.

Potter v. Chicago Pneumatic Tool Co. (HO): P, (metal grinders) brought suit against D, alleging that the products were defectively designed (the intense shaking) and lacked adequate warnings, causing the P to be exposed to excessive vibration and resulting in arm vibration syndrome. P brought in experts to say that exposure to vibration is a significant factor in the development of the syndrome and that the vibration of the machines exceeded the limits set by the American National Standards Institute and the ACGH. Rule: In actions claiming design defects for complex product designs in which the ordinary consumer may not be able to form reasonable expectations of safety, the consumer expectation test applies to establish the product’s risk and utility, followed by a determination of whether a reasonable consumer would consider the product design unreasonably dangerous. (court rejects the RUB and uses CET in a highly specialized area)

Cepeda v. Cumberland Engineering Co., Inc. (Handout #3): Blue collar worker with less than excellent ability to read and understand English gets his hand mashed in an industrial machine when used without the safety guard. Rule: This case established the RUB test (& 7 factors) in NJ; The courts were not interested in an alternative product, the D used the CET as a shield since the product did what it was supposed to do; it was a foreseeable misuse and users who don’t speak English are foreseeable therefore the warning was inadequate.

The above case introduces the “Wade Factors” of the RUB in NJ:1. The usefulness and desirability of the product (Benefits)2. The safety aspects of the product (Risk)3. The availability of substitute product which would meet the same need

and not be as unsafe. (Substite, Barket combine w/ below)4. The manufacturer’s ability to eliminate the unsafe character of the product

without impairing its usefulness or making it too expensive to maintain its utility. (Alternative)

5. The user’s ability to avoid danger by the exercise of care in use of the product (Barket combine with below).

6. The user’s anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions. (CET)

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7. The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance. (Loss Spreading)

R3rd treatment of RUB includes RAD (must show reasonable alternative design, where the risk of harm or danger must also be forseeable). Also, the whole thing is the same as under negligence, but more restrictive. Under neg, a really dangerous product may outweigh based on benefits. But under r3, the plaintiff has to show the product was not made safer – so it is harder for the plaintiff than plain negligence would be

Use CET when there is a FLAGRANT error, but this is counterproductive when the erorr isnt obvious and dont know what the user expectations are

For Risk and Utility under strict products liability, we're looking at the total of harm and benefits at the time of trial. Why? Its the last time we can get this information, and it puts less burden on the plaintiff (its hard to go back in time and get data)

So the principle diff of design defect under neg is that reasonability of manu behavior when product is in stream of commerce vs under SPL we're looking at the alternatives/CET/loss spreading at time of marketing and harm and benefits at time of trial.

The fundamental difference between full negligence and strict liability is what time you consider the risks and benefits – at the time the manufacturer puts the product into the stream of commerce (M) or at the time of trial (T).

Neg SPLRisk TM TTUtility TM TTAlternatives TM TMC&T TM TMLoss Spread TM TM(?)

Imputation / hindsight test – time of trial

State of the Art Defense = if the product has no safer alternatives, it is not legally defective, no liability; the burden is on the D to prove it and up to the P to disprove it – unless the court buys it outright, in which case the suit is over. This is an affirmative defense against the RUB. Comment K in restatement 2nd talks about uanvoidably dangerous prods like red meat / butter or vaccine for rabies.

O’Brien v. Muskin Corp. (HO): P dove into a above ground pool from a roof top and sustained injuries because the slippery bottom forced his arms to part causing him to fall on his head. D produced experts to show that no other lining was used or could be

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used to produce a safer result. Ruling: Court allowed the P to argue overall benefits/risks and supercede the ‘State of the Art’ defense, then used the Wade risk/utility test, meaning it just applied an overall RUB test without a consumer expectation test. This was overturned because of its implications for cigarettes, alcohol, certain chemicals, etc. since their risks far outweigh their benefits. If this was the case, they would all be found defective and their manufacturers would be liable for all damages.

Warning Defects - product is produced as intended and does not present undue risks if used normally, but its packaging or accompanying literature fails to warn of unexpected dangers from foreseeable misuse; “The duty to warn in the strict liability cause of action is based on the notion that, absent a warning or adequate warning, a product is defective, in that it is not reasonably fit, suitable, or safe for its intended purposes”; also applies if a product does not otherwise contain a defect, but is unreasonably dangerous and the manufacturer fails to give proper warnings or proper directions as to its use. (‘WARNINGS ARE LIKE SEATBELTS, THEY CAN BE ADDED WITHOUT A SIGNIFICANT DECREASE IN UTILITY OR A SIGNIFICANT INCREASE IN COST’.)

Prima Facie Case1. Reasonably foreseeable use or misuse (as in all prod. lia. Cases). 2. The warning was defective and could have been better; the instructions did not give an

adequate warning of the product’s risk or handling of the product (for foreseeable users – objective test). But, if the risk is ‘open and obvious’ to the consumer, some jurisdictions do not requier a warning.1. RUB is used to prove this:

1. Forseeable harm2. Cost of giving the warning3. Likelihood the warning would have been heeded.

3. Defective warning was present at stream of commerce.4. Causation.

1. Injury caused by defective warning. Plaintiff would not have used the product had there been an adequate warning.

2. Heeding Doctrine (Reverse Comment J)-Plaintiff would have heeded the warning if there was one or it was adequate.

Courts will not impute knowledge of the risks for a warning defect case if the risks are completely unknown (excluded are asbestos)

(Note: Warnings have different effects on different people, we are looking at the reasonably prudent person. There is no meaningful or effective standard of what a good warning is.)

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“Learned Intermediary Doctrine” Duty of manufacturer is to warn the doctors and they are to then warn the patients that they prescribe the medication. In turn, the manufacturer owes no duty to warn the consumer. In the case of prescription drugs it is hard to prove a warning defect.

Mac Donald v. Ortho Pharmaceutical Corp.-26 year old patient was prescribed birth controll pills. Pills said that clotting could occurr but did not sat "Stroke". MacDonald after 3 years of using the pills had a stroke and lost 20% of her brain tissue and is permanently disabled. Courts used the learned intermediary doctrine and said that the manufacturer had no duty to warn the patient. The appeals judge said that in this particular case of birth control a product that has been increasingly sought after and managed by the patient, or given by a nurse, the manufacturer owes a duty to warn to the patient. Thus this is an exception to learned intermediary.

No standard warning doctrine. Three general types of warnings:1. No warning – easiest to win, but most uncommon2. Warning should have been ‘graphic’ or ‘symbolic’ or reasonably placed in sight of the

consumer3. State of the Art – no better warning could have been given because the risk could not

have been known or knowable

Beshada v. Johns-Manville Products Corp. (HO): as close to strict liability as it gets; a warning is defective unless it is the best warning you can have (meanwhile, you can have a better warning 99% of the time); court uses a RUB test to determine if the warning was defective; the cost of having a better warning are usually negligible so the benefits of it almost always outweigh the benefits of the warning that was used; the court also decided that it wasn’t the best warning that could have been given and that a better warning did exist therefore, the warning in question was defective.

Pashman said that we should still impose liability b/c:1. Risk Spreading (the manufacturer should buy insurance); 2. Accident Avoidance-encourage companies to invest in safety testing; 3. Fact Finding-it is possible to find out what is “unknowable’ by finding out not only what was known but what was unknown. Even if no scientist had actually formed the belief that asbestos was dangerous, the hazards would be deemed ‘knowable’ if a scientist could have formed that belief by applying research of performing tests that were available at the time 4. Fairness - fairness suggests that a manufacturer should not be excused from liability because their prior inadequate investment in safety rendered the hazards of their products unknowable. Latin says this case is a travesty because they couldn’t have known the risks (Scientific Unknowability) and it has since been abandoned (except for asbestos cases). They imputed which makes no sense based on the previous. The better question to ask is: Which party should have been responsible for unknowable risks based on x, y, and z policy arguments.

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Post sale duty to warn:Feldman v. Lederle Labs (Handout #3): Father, a pharmacist, gave daughter Declomycin for urinary infection that ended up causing her teeth to turn grey. No warning was given as to this side effect. The risk was not known when the infant first started taking the medication, but was later realized. Courts said that they knew by one year prior to FDA approval to add the defect to their warning and did not disclose he defect to the public. Rule: court finds that D should have told Ps about the possible effect once they found out about it. The case rejects Bashada’s hindsight/imputing knowledge test if the risks are completely unknownon. They impose a foreseeablity test at the time of manufacture and a post-sale duty to warn. An important and powerful ruling.

“Heeding Presumption”( Comment J Reversed) Coffman v. Keene Corp. (Handout) “Heeding Presumption” If a good warning were given it can be assumed that people will follow it. (Comment J Reversed) This helps the Plaintiff prove causation. What if a manufacturer gives a bad warning and a good warning would have prevented the injury. “If a manufacturer had given a good warning the user would have followed and prevented the accident” Some states make this rebuttable. Which says that the P. would not have heeded b/c of some subjective evidence. It goes counterintuitive to the purpose of having doctrine like this to help prove causation-it decreased speculation. Asbestos contamination for the electrician who worked in the ship yards. This reverse comment j presumption meets the plaintiffs initial burden of proof – self serving testimony vs self serving testimony vs hypothetical, the courts will PRESUME the plaintiff would follow a good warning. This is a legal assumption, NOT a matter of fact. A pro-plaintiff doctrine. Court gives a few reasons: 1. avoiding self serving testimony2. avoiding speculation3. avoiding court costs

Differences between negligence and products liabilities:negligence nj cali r2d

Doctrine: 2 negligence elements:forseeabilitybreach

Sutter decision:applies contributory Negligence, but limits it to when the 3 comment n factors are presentCourt also holds industrial accidents cant be voluntary (you cant expose yourself to an accident in an industrial context where you're a worker)

Daly case: he was drunk/speeding/not wearing SB, ie he was negligent.Court rejects 3 comment n factors and expands to any negligent factor on part of plaintiff

Comment n r2nd limits contributory negligence (5 years bef. Lee case)3 comment n factors:plaintiff knew of risk, exposed himself to it voluntarily, and was unreasonable to do so

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Legal Effect:

Barred from recovery OR apportionment under comparative negligence

Comp. Negligence (plaintiff cannot be more responsible than def or he recovers nothing)

Comp negligence (pure, if plaintiff is found 90% responsible, he gets 10%)This is majority treatment

BAR (knowing, voluntary exposure, unreasonable)

Contributory negligence under warning defect Micallef v MiehleThe plaintiff is the operator of a printing press machine manufactured by the defendant. The plaintiff attempted to adjust the machine while it was running, and got his hand caught. There was no guard in the rollers which prevented a person from catching his hand. However, the danger of injury was one that was patently obvious to the user. A manufacturer must design his product in such a way as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in a manner which is reasonably foreseeable. The fact that the danger was patently obvious did not exempt the manufacturer from liability because otherwise, the manufacturer would have no duty to design a reasonably safe product under the cost-benefit analysis. The loss should be shouldered by the manufacturer to provide an incentive to create a reasonably safe product. The openness of the danger is still available for contributory negligence defense, it doesnt act as a bar to the plaintiff.

Manufacturer’s Defenses:

1. Contributory negligence by P: not a defense when such negligence is merely a failure to discover the defect in the product or to guard against the possibility of its existence; however, it P is in an industrial setting, contributory negligence does apply

2. Assumption of risk by P: if p knows of a defect and is aware of the danger, and nevertheless proceeds to use the product, this breaks the causal chain and may bar recovery

3. Abnormal misuse of the product by P: P uses the product in a way not normally intended and is unforeseeable

4. Comparative Fault (NOT COMPARATIVE NEGLIGENCE): contributory negligence and strict liability is combined to form comparative fault; the court is allocating the loss according to the % of causation of injury by each party; this is the choice methods because:

a. P’s recovery will be reduced only to the extent that his own lack of reasonable care contributed to the injury and P does get compensated

b. The manufacturer’s incentive to create safer products will not be reduced because:i. The manufacturer is still liable (although only partly)

ii. The manufacturer cannot assume the user of a defective product will be held liable

iii. Assumption of risk is eliminated as a total bar to recovery

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c. Jurors can compare P’s negligence or fault to D’s strict liability (Argument against this is that the majority dilutes the defectiveness of a product with the conduct of the D.)

Daly v. General Motors Corp. (p. 831): P claimed the defective design of the car door lock caused her husband to be thrown from the car to his death during an accident. Her husband was driving drunk at the time and not wearing a seat belt. Rule: A P’s negligent conduct will reduce his recovery in strict products liability by an amount proportionate to his fault.

Policy arguments for Design Defect liability:

1. Places the liability on the party who can best prevent injury2. D is the best cost spreader (raise price)3. D is the best risk allocator (insurance)4. P needs to be compensated for damages from somewhere

Policy arguments against Design Defect liability:

1. Restricts consumer choice2. Restricts capitalism3. Reduces research and development4. Increases the price of the product5. D must carry insurance, which may be difficult or impossible to get

Design Defect for Drugs: you do not compare the overall risks and benefits or foreseeable risks when you put it out at the time of trail. Instead, you compare the drug with the risk and see if it can be reduced without losing its effectiveness. RUB must be compared with that of its competitors.

Defenses:

(Note: Asbestos falls here, the risks were not yet known and the benefit gained from it (all of our naval ships in WWII) far outweighed the risks. Design Defect cases often include a Warning

Defect claim.)

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Product is produced uniformly and as it was designed

RUB Test: The risk/utility of the product as made v. the risk/utility of the product as it could have been made if we knew then what we know now (aka Hindsight Test = major difference b/w strict liability and negligence.

Product used as intended or in a foreseeable way (foreseeable use and foreseeable misuse); product causes injury

No Battle of Forms

1. Utility (measured at the time of trial)2. Risk (user’s awareness of - was it open & obvious? ; measured at the time of trial)3. Substitute Products (availability of)4. Alternative Products (availability of; aka RAD Test)5. User’s ability to avoid risk (objective, based on user’s generally not 1 spec. user)6. User’s awareness of risk (CETas part of the RUB; not usually a deciding/most influential factor)7. Loss spreading ability (not necessarily assumed to be the manuf. especially if the product is an old one

*Items in red are the most weighty. 3-7 are measured at the time of marketing.

Majority of courts use Knock out Rule

Acceptance contains term that differs from term in offer?

Are both parties merchants?

Does add term materially alter the K? 2-207 (2)

Terms are those which writings agree, plus any gap fillers. (2-305 to 2-315)

π Loses = no recovery

Some jurisdictions

Design Defect(“A pure negligence test”)

Note:“And” Test is commonly used“Or Test” is least usedRUB Test is the majority test

Product fails as a design defect. π Loses = no recovery

3 Types of Warning Defects:

4. No warning – easiest to win, but most uncommon5. Warning should have been ‘graphic’ or ‘symbolic’ or reasonably placed in sight of the

consumer6. State of the Art – no better warning could have been given because the risk could not

have been known or knowable

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Jurisdiction:

“And” “Or” See: Linegar (CA) See:Barker

Parties have K based on writings.

CET Test: Is it more dangerous than consumers would expect it to be?

= Counteroffer, not acceptance. Parties do not have K based on their writing; next step is conduct.

Terms of K are those of offer.

NO KThere is a K. Terms are those in which writings agree plus gap fillers of U.C.C.2-207(3); Fillers-2-305 to 2-315

Does acceptance include an additional term?

Product succeeds as a design defect - - alternative design suggested by the π decreases risks without substantial decrease in product utility (including cost prohibitiveness); goes to jury for assessment of damages

Add term automatic Becomes part of K. 2-207(2)

Add term doesn’t become part of K.

Add term part of K, if offeror explicitly agree to it, otherwise it is a sep offer.

No

Some jurisdictions(Including NJ)

Latin thinks this is best

Yes

Suter v. San Angelo Foundry and Machine Co. (Handout #3): P injured at work when his hand gets caught in sheet metal rolling machine. Court changed DCUD (RUB +CET) language to ‘fit, suitable, and safe for intended or foreseeable purposes’. Overrules Cepeda in holding that contributory negligence is a visible defense when an employee, in an industrial setting, uses a machine in an intended or foreseeable way.

(Note: Manufacturing Defect cases almost never include a Warning Defect claim.)

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Warning Defect(“A negligence test”)

Was the product used in an intended/ foreseeable way? Were the risks known @ time of M?

Was the warning adequate? Was it one that the RPP would have provided about the risks and that the RP consumer could read & appreciate? (NJ Statute)

Open & Obvious: D doesn’t have to warn as the extra words bog down the important things; open & obvious – no duty to warn; NJ/Restatement 3rd/majority of jurisdictions

Warning: mini-RUB; risk & utility weight @ time of T = Imputing Knowledge; 1

Adequate Inadequate

P LosesNJ & Most other Juris.

Heeding/Reverse Comment J Presumption - Rebuttable

(Causation assumed)Successfully Unsuccessfully Rebutted Rebutted

Restatement 2nd 402 (A) aka Comment J still used in some jurisdictions: bad prod. w/ good warning is not defective - worth mentioning

P Loses

Defenses:

State of the Art: A better warning could not have been given because the risks were unknown

Successful Unsuccessful

Note: D can attack step 1-4 and obtain summary judgment. Burden is on the P to show that the warning was inadequate. Burden is on the D to show that a better warning couldn’t have been given.

1Discuss ‘average user warning’ (Campos) v. ‘best possible warning’ (Beshada) and the abandonment of Beshada.2Don’t forget to discuss comparative negligence/assumption of risk.

Defenses:

IV. Damages

Categories of Damages Arguments:

1. Deterrence/ Prevention/ Efficient Cost Minimization – within the context of ‘are we losing more than we are gaining by prohibiting x’

2. Loss Spreading/ Insurance/ Compensation – attempts to make damages more bearable by spreading the cost to the greatest number of people

3. Administrative & Litigation Costs/ Transaction Costs (i.e. Court Costs)4. Information Access – liability rests with A v. B because A understood and could assess

the situation based on greater access to pertinent info5. Fairness – everyone agrees fairness is important but not everyone agrees about what’s

fair; always try to turn this around – if it can be done, the argument is not successful6. Retribution/ Punishment – badness of the act is directly proportionate to the amount of

damages awarded to P7. Justice

a. Consistency – like cases should be adjudicated alike but no two cases are alike so the lawyers’ job is to pick up characteristics of their case that is similar or dissimilar to a prior case and argue that it should be adjudicated accordingly

b. Predictability – people should be able to make judgments based on liability of risk taken

c. Coherence – Understanding the outcome of the case law8. Judicial Administrability – ability to enforce the ruling

(Note: These arguments can be applied to determine which liability theory applies when it is uncertain. When it is obvious, these are not considered/ needed/ argued.)

Compensatory Damages – Compensate the injured P for the tortious and illegal loss that was suffered; uses B <PL, if the burden was low, any chance of injury would have outweighed the risk of printing some more words

Punitive Damages – Designed to punish the bad behavior and is usually calculated via semantics (i.e. willful, gross, callus disregard, malice, etc.); usually determined in a second trial; it is believed that

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Learned Intermediary: Product is marketed toward an expert who’s duty it is to adequately warn the consumer.

Successful Unsuccessful

To jury for damages2

P Loses

P Loses

the manufacturer should know the risks (and will be held liable if they don’t know but others within the industry do know – the downside being that Ds spend most of their time denying information and not finding problems) and try to reduce it as much as possible if not completely.

NJ – the reasons for the industry campaign were to overrule O’Brien (avoided the RUB of product that are inherently dangerous) they succeeded and brought back a pro D defense but weren’t successful because the statute only pertains to products with inherent risks.

Gillham v. Admiral (Handout #2): Television set that exploded into flames and injured the P. The D knew of the risk and left it anyway. As a result the D had to pay punitive damages.

Grimshaw v. Ford Motor Co. (p. 916): Pinto Case – they knew of the risk and analyzed the cost of fixing the problem v. just fixing it on the newer models due for production. They decided it was cheaper to pay the injured parties than to fix the problem. D had to pay punitive damages.

Broad Outline for Answers:

2. Issue3. Prima Facie elements & defenses to them

a. Apply facts of the case to each elementb. Apply law to relevant facts

4. Causation – cause in fact & proximate5. Proof

a. Who has the burden/burden shifting?b. Are experts requiredc. RIL?

6. Contributory & Comparative Negligence, Assumption of Risk7. Other Defenses (including the various liabilities)8. Other treatments

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9. Policy Issues

Warranties (UCC) = a seller may make several warranties that are of importance; if the seller breaches any of these warranties, the buyer may bring a damage action for breach of warranty, which can be viewed as a special type of beach of K action; manufacturers are strictly liable in tort when an article is placed on the market with knowledge that it will be used without inspection for defects; if defects exist, the D can be found liable under the warranty theory; warranty theory was used to get around the arcane requirement of privity; there is an implied warranty of defective products especially on food.

1. Express Warranty : an explicit (not just implied) promise or guarantee by the seller that the goods will have certain qualities; seller is free to disclaim this warranty as long as he/she does so in a clear and reasonable way; this can be expressed via

Description of the goods Sample or model of the goods If the seller is clearly expressing an opinion, he will not be held to have made a

warranty

2. Implied Warranty of Merchantability: unless excluded or modified, a warranty that goods shall be fit for the ordinary purposes for which such goods are used is implied in a K for their sale if the seller is a merchant with respect to goods of that kind; seller may disclaim this warranty but must follow UCC protocol to do so

3. Warranty of Fitness for a Particular Purpose: where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for that purpose; seller may disclaim this warranty but must follow UCC protocol to do so; Elements that the P must prove:

The seller had reason to know the buyer’s purpose The seller had reason to know that the buyer was relying on the seller’s skill or

judgment to furnish suitable goods That the buyer did in fact rely on the seller’s skill or judgment to furnish suitable

goods

(Note: If the buyer insists on a particular brand of goods, he/she is not relying on the seller’s skill or judgment to furnish suitable goods, so no implied warranty of fitness for a particular

purpose arises.)

Henningson v. Bloomfield Motors (p. 739): P purchased a car from D at which time both parties disclaimed the warranties by the dealer or manufacturer, except one that limited the liability of the Ds to the original purchaser to the replacement of defective parts within 90 days or 4,000 miles, whichever occurred first. Shortly after the steering mechanism failed and caused the car to crash and injured P’s wife. Rule: Implied warranties of merchantability is non-disclaimable, buyers cannot waive their right to compensation on an as-is product, buyer cannot buy a product as-is or otherwise that is not

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reasonably safe for its advertised purpose (100% tort duty, 0% contract duty; dubbed the first true strict liability ruling against manufacturers by Justice Traynor). (WARRANTY)

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