Functions of Tort Law1. Corrective Justice

“Making the victim whole,” matching up victims with tortfeasors Explains why tort law is between victim and tortfeasor, rather than state suing

tortfeasor or victim claiming benefits from the state2. Optimal Deterrence

Imposition of tort liability helps to prevent future tortious actions by threatening potential wrongdoers with liability.

Find best cost-avoider and impose liability, but don’t over-deter socially-beneficial activities.

3. Social Redress Getting one’s day in court Populist mechanism that permits ordinary people to put authority on trial

4. Compensation/Loss Distribution Provide benefits to accident victims. Spreading out the costs of accidents from

individual victims to insurance companies and consumers.

Concepts to Consider1. Deep pockets/judgment-proof2. Best cost-avoider: Responsive to legal rules, strategically placed to take precautions,

deterrable. Hospitals, insurance companies, but not individuals.3. Judicial Economy4. Burden-Shifting/Stick it to the Breacher5. Optimal Deterrence6. Capture

INTENTIONAL TORTS Liability is not imposed for negligence, but only upon proof of the defendant’s intention to

invade the legally protected interest of another. 1) Battery

a) Harmful or Offensive Contacti) Context dependant

(1) Vosburg v. Putney: kick was violation of classroom decorum; case may have been different if it happened at recess.

(2) White v. U of Idaho: piano teacher touched studentb) Intent to cause contact (NOT necessarily to cause harm)

i) Single Intent(1) Vosburg v. Putney: Putney intended to kick Vosburg, even if he didn’t intend to cause

the loss of his leg, so he is held liable for Vosburg’s injuries.(2) Strict Liability: no mens rea requirement. You broke it, you bought it.

(a) Vosburg thin skull (shin) ruleii) Dual Intent: P intended to make contact AND intended to harm or offend (or knowingly

disregarded risk that harm would happen(1) Restatement (2nd) on Torts § 13 takes this view(2) Split in states between requiring dual and single intent for battery

iii) Transferred intent: If D intends harmful or offensive contact with A but inflicts it on B, he is liable for B’s injuries.

2) Assaulta) Intent to cause or threaten batteryb) P fears imminent harmful or offensive contact.c) Issues

i) How close to consummation? “Imminent:” immediate, close, actual.ii) Extra-sensitive plaintiff. D liable if he has reason to know about th extra sensitivity.

3) False imprisonment: total confinement, of which P is aware, that is intentional (physical force or mere threat of force).

4) When do Intentional Torts Matter? (Policy)a) Importance of intentional torts: extra protections for body and mind (Vosburg)b) Punitive damages apply to intentional conduct as a matter of law.c) Compensatory damages from juries are increased as a matter of practice.d) Kids are hard to find negligent, but are subject to intentional tort rules.e) In comparative liability, intent sometimes trumps negligence.

ACCIDENT LAW Cases imposing strict liability or negligence liability, usually for physical injury – bodily

injury or property damage. Strict liability is imposed without regard to the degree of care that the defendant, or “tortfeasor,” exercised. Negligence liability is imposed only upon proof of some kind of carelessness—technically, the failure to exercise reasonable care under the circumstances.

I. DUTY: (PART ONE) IS THERE A DUTY?Is there a duty (the legal duty to comply with a particular standard of care)?

A. Duty to Act/Rescue? Generally

There is ordinarily no duty to rescue. In the absence of special circumstances or a special relationship, one person has no affirmative duty to rescue another from danger. The ability to rescue someone does not create a duty to do so. (Hurley v Eddingfield, held that a doctor had no duty to rescue his patient.) (Yania v Bigan – held that Bigan have no duty to rescue Yania, although Bigan had encouraged Yania to engage in a dangerous activity, because Bigan did not make such a physical or mental impact on Yania that it deprived Yania of his freedom of choice) (Stockberger v US – held that prison employees were not liable for failing to drive a hypoglycemic coworker home).

Pros: This rule values individual liberties (which is central to Anglo-Saxon cultures). This rule may also be better at promoting rescues than a legal duty to rescue because imposing a legal duty to rescue might have the perverse side effect of decreasing rescues because of the fear of liability. Relatedly, if people rescued others only because they were legally obligated to do so, they wouldn’t likely be the most effective rescuers. Finally, a duty to rescue would present a problem for judicial economy because the shift from commission to omission would move the law from aiming at a few people with clear liability to many people with cloudy liability.

Cons: This rule would maximize social good because helping someone in an emergency is a greater good than avoiding the inconvenience of rescuing them. Also, if we

view tort law’s purpose as writing the social contract between people, most people would say that they would want to be saved in an emergency, so tort law should enforce a duty to save people in emergencies. What triggers a duty to act?

1. If there’s a rescue attemptWhile there is no duty to rescue, if one person voluntarily decides to rescue another,

the rescuer must neither conduct the rescue negligently nor abandon the attempt. (Zelenko v Gimbel Brothers, Restatement 324).

2. If there’s risk creationa. “Misfeasance” A defendant who negligently places the plaintiff in danger

may be held liable for negligently failing to rescue him from danger. Negligently placing the plaintiff in danger to begin with—“misfeasance”—may give rise to liability for negligent failure to rescue.

b. “Feasance” One who non-negligently creates a danger to another person may have a duty to warn the other person of that danger, and perhaps even to undertake an active rescue. (Montgomery v. National Convoy and Trucking Co – held that if a defendant creates a risk and that risk leads to danger, the defendant has a legal duty to mitigate that danger – Driver whose truck stalled should have warned others coming over the hill.) Having created the risk of harm, one has a duty to exercise reasonable care to prevent or minimize that harm (Restatement 39, Newton v Ellis – defendant dug a hole in a road and left it unlighted at night, plaintiff, while driving, fell into the hole – plaintiff recovered).

Distinguishing Misfeasance, Nonfeasance and Feasance:1. Conduct is misfeasance (misconduct/commission) when the

conduct itself was unreasonably risky. The defendant is liable for the foreseeable consequences of his misfeasance; he has both a legal duty to attempt reasonable rescues for victims of his negligence and an incentive to warn and rescue to mitigate those damages. ( Truck driver crashes after speeding on an icy road at night)

2. Conduct is nonfeasance (nonconduct/omission) when a reasonable person would have helped to prevent or mitigate a harm but tort law gives an individual in that position the freedom to act unreasonably and choose not to rescue or warn the person in danger. Generally there is no duty and no liability for nonfeasance. ( Truck stalls on an icy road at the bottom of a hill. A resident of a nearby house sees the danger to other drivers and owns warning flares, but decides not to help.)

3. Conduct is feasance (conduct/commission of risk-creation) when the activity is generally a reasonable, ordinary and socially beneficial activity, but it also means taking some reasonable risks, that is, the conduct involves reasonable non-tortious risk-creation. When those risks materialize, they create a specific duty to exercise reasonable care to prevent or minimize harm. ( Montgomery case – Truck stalls on an icy road at the bottom of a hill. Truck driver could have put a warning signal at the top of the hill, but didn’t.)

B. Duties to Third PartiesGenerally

There is no duty to control the conduct of a third person and prevent him for causing harm to another unless a special relationship exists between actor and third person or between the actor and the potential victim (Restatement 315).What triggers a duty to a 3rd Party?

Overtime, liability has been imposed in cases in which the defendant has made it possible for another party to engage in tortious conduct that injures a third party. In these cases the defendant has negligently enabled another to cause harm to the third party and the defendant was strategically placed to take precautions reducing the risk that the third party would be injured.

1. Risk creation Liability is sometimes imposed in cases in which the defendant has made it possible

for another party to engage in tortious conduct that injures a third party. In these cases the defendant has negligently enabled another to cause harm to the third party (Weirum v RKO – held that liability was predicated on defendant’s creation of an unreasonable risk to the plaintiff).

2. Negligent Entrustment If a person possesses a dangerous instrumentality, the possessor has a duty to

protect against its misuse by a third-party whom the defendant knew or should have known would use it negligently. Thus, a person who lends a loaded gun to a drunken friend who cannot be expected to use it safely will be liable to a third party who is carelessly shot by the drunken friend.

3. Special Relationship a. Universities, Landlords, Shopping Centers Liability is sometimes imposed

upon universities, landlords, shopping centers, and other proprietors for foreseeable harm to students, tenants, and customers caused by the conduct of third parties. In order for this type of liability to apply, there is usually both a pre-existing relationship between the plaintiff and defendant proprietor and circumstances that put the defendant on notice of the risk of harm to the plaintiff. These two conditions create a duty for the defendant not to be negligent with respect to the plaintiff. (Kline v 1500 Massachusetts Avenue Apartment Corporation – held an apartment building liable to a tenant who was attacked in the building’s lobby, reasoning that the owner was obligated to take certain basic measures to protect occupants against foreseeable criminal acts).

b. Mental Health Professionals In certain cases, mental health professionals can be held liable in negligence to third party victims who are injured by patients after the mental health professional knows that the patient has an intention to harm the third party. (Tarasoff I held that both therapists and police had a duty to warn the third party victim, but Tarasoff II held only that the therapist “bears a duty to exercise reasonable care to protect the victim of that danger.”)

Pros: The therapist is the best cost avoider (the party best able to prevent accidents and most responsive to legal incentives) so the harm is more likely to be prevented if we impose the duty on the therapist rather than the insane individual.

Cons: Tarasoff I was a crystal standard, but Tarasoff II is muddy; it’s hard to know when a therapist has a duty to warn and when they do not. This might be why, in practice, the psychologists’ professional rule is Tarasoff I. Furthermore, as the dissent points out, this duty to warn might have a chilling effect on psychiatric treatment. Psychiatrists might be reluctant to treat patients that are dangerous and in the greatest need of treatment because that treatment might lead to liability in

tort. Similarly, dangerous patients might avoid treatment because the doctor-patient relationship no longer ensures confidentiality.

C. Duties of Owners and OccupiersUnder Common Law (Majority Rule)

Traditional common law rules governing premises liability divide entrants onto the land of owners/occupiers into three categories:

1. Invitees = anyone on the property for business purposes. Owners owe a duty to exercise reasonable care to those whom they invite onto their property. The premises must be reasonably safe for ordinary use.

2. Licensees = people who are social guests. For a licensee, the owner must make the premises as safe as he makes them for himself. That is, the owner must warn the licensee of hidden dangerous conditions, but need not eliminate these conditions.

3. Trespassers = those who enter property without express or implied permission. The owner owes only a duty to refrain from wantonly and willfully injuring trespassers.

Pros: The majority rule is better from a judicial economy standpoint. There are clear rules that increase the predictability and uniformity of outcomes.

Cons: The rigidity of the majority rule sometimes creates unfair results. A more flexible standard would allow judges to make sure that every case had a fair outcome by maximizing judicial discretion. Under Rowland v Christian (Minority Rule)

The court in Rowland v Christian, rejected the traditional categories of invitee, licensee, and trespasser in favor of a reasonable-conduct-under-all-the-circumstances test. In place of the categories, the court in Rowland v. Christian determined that a series of factors should be taken into account in determining the scope of the defendant’s duty:

1. the foreseeability of harm to the plaintiff, 2. the degree of certainty that the plaintiff suffered injury,3. the closeness of the connection between the defendant’s conduct and the injury suffered,4. the moral blame attached to the defendant’s conduct, (corrective justice)5. the policy of preventing future harm, (deterrence)6. the extent of the burden to the defendant 7. the consequences to the community of imposing a duty to exercise care with resulting liability for breach (optimal deterrence)8. the availability, cost, and prevalence of insurance for the risk involved.

DUTY: (PART TWO) WHAT IS THE STANDARD OF CARE?If there is a duty, what is the general legal standard for liability in this case?

Ordinary/Reasonable CareThe Fault/Negligence Requirement

[[DEFAULT RULE IN TORT LAW]]

Absolute Liability

No defense[In theory

Strict LiabilityLiability without

proof of fault

Heightened DutyUtmost care: Common

Carriers and Innkeepers

Duty to Warn of Concealed Dangers and Traps

Limited Duty to Licensees

Duty not to intend harm or be wanton/reckless

Limited duty to trespassers

A. NegligenceNegligence is the failure to exercise the care that would have been exercised by the

reasonably prudent person under the circumstances to avoid injury or damage to another person or property.

The Reasonable Person - Objective Standard The general negligence standard is objective, not subjective. Reasonable care under

the circumstances does not normally include the incapacities or limitations of the person whose behavior is under evaluation. That the defendant did his best or acted in good faith is no defense. (Vaughan v Menlove – held that the standard for reasonable care is the reasonable man, not what the defendant in that particular case thought was reasonable).

Pros: 1. Encourages higher level of care by Defendant (or caretakers liable for his actions)2. More predictable for community (uniform standard)3. More clarity for juries (less effort to get inside the head of the Defendant)4. Prevents malingering/fraudulent claims of good faith5. Better for judicial economy (easier to determine and promotes more settlements)Cons:1. A subjective standard would be fairer to the defendant2. More congruent with corrective justice standards because the defendant might not have been blameworthy.

Semi- Objective StandardThere are certain exceptions to the objective standard of reasonable care. [[Note: Some courts have “stuck it to the breacher” and held defendant tortfeasors to

an objective standard (the court holds the defendant’s disability against him) but have taken a plaintiff’s disabilities into account when assessing contributory negligence (the plaintiff’s disabilities help him). (Roberts v. Ring – held the elderly defendant to an objective standard, but applied a semi-objective standard to the child plaintiff.)]]

1. Childrena. Generally Children under the age of 5 cannot be negligent at all,

presumably because they cannot be expected to exercise care. Children above that age are expected to exercise the degree of care that would be reasonable in a child of similar age, intelligence, and experience. (Third Restatement 283A)

b. BUT Children Engaged in Dangerous Adult Activities When children engage in dangerous adult activities, they are held to an adult standard of care. (Daniels v Evans – held that a minor who was operating a motorcycle could be held to the same standard of care as an adult because one cannot know whether the operator of an automobile is a minor or an adult, so one usually cannot protect himself against youthful imprudence). (BUT see Goss v. Allen – which held that skiing was not an “adult” activity like driving a car). 2. The Elderly

There is usually no adjustment for elderly people; they are generally held to an objective standard. (Roberts v. Ring – held that an elderly man with impaired sight and hearing should be judged by the ordinary standard of reasonable care.)3. Beginners

Beginners are held to same standard of care as those reasonably skilled. However, when the Plaintiff has assumed the risk that Defendant will exercise lower standard of care (e.g. driving instructor and his student), the beginner is held to a lower standard because the plaintiff is on notice that the beginner lacks skill. 4. Experts

Experts are required to exercise the skill and knowledge normally possessed by members of that profession or trade. The second restatement says that if the expert represents that they possess greater skill, they are held to that higher standard, (Second Restatement 299A). The third restatement says that higher standard rule is strongest when parties agree to it, but it is not a categorical rule; the expert’s skills or knowledge are simply taken into account.5. Physical Disabilities

Physical disabilities are taken into account in judging the reasonableness of behavior when they are visible, measurable, and verifiable. Defendants with physical disabilities are compared to a reasonably careful person with the same disability, unless the disabled person engages in an activity that the disability makes safe, in which case they are held to an objective standard. (Roberts v. Ring – held that an elderly man with impaired sight and hearing should be judged by the ordinary standard of reasonable care.) One must take into account other people’s foreseeable disabilities in taking precautions. 6. Mental Disabilities

There is generally no subjective standard for insanity. Exceptions: a. However, if the insanity was sudden and unforeseen and affects the

defendant’s ability to understand her duty or control her actions, then the insanity is a defense because the lack of notice means that there was nothing the reasonable person could have done differently in advance. (COMPARE Bruenig v American Family Insurance – held that since the defendant had notice of her psychotic episodes, it was negligent for her to get into a car and drive it.)

b. Insanity is also a defense if the defendant is already confined. (Gould v American Family Mutual Insurance – held that institutionalized person cannot be liable for injuries to caretakers who are employed for financial compensation.)

Pro: This exception promotes optimal deterrence. If the defendant is already confined, we don’t want to over-incentivize confinement and restraint.

c. Insanity is also a defense if the plaintiff is an insane defendant’s caregiver. (Creasy v Rusk – held the institutionalized insane defendant was not liable to an injured caregiver because the caregiver had notice.) But, if the plaintiff is the institutionalized patient and the defendant is the caregiver, then insanity is no defense. (Jankee v Clark County – held that there is no imposition of liability on institution that had not restrained P who injured himself as a result.)

Pro: This exception promotes optimal deterrence. If the defendant is already confined, we don’t want to over-incentivize confinement and restraint.7. Drunkenness

The drunkenness of the plaintiff does not excuse the negligence of the defendant. (Robinson v. Pioche – held that the plaintiff’s intoxication was not a mitigating factor for defendant’s negligence in digging an uncovered hole in front of his property.)8. Wealth

There is no difference in standard of care required from a person whether they are rich or poor. (Denver & Rio Grande Railroad v. Peterson – held that the

defendant’s wealth was irrelevant in determining liability because the level of care required of a Defendant is the same regardless of wealth.)

Pro: Wealth is irrelevant to both the deterrence and the compensation aims of tort liability. The two major purposes for compensatory damages are deterrence and compensation. Regarding wealth, whether a defendant is wealthy or not, the cost benefit analysis is the same. Regarding compensation, if evidence of the defendant’s wealth were admissible, the plaintiff’s right to recover and the magnitude of the defendant’s liability would depend on the defendant’s identity, rather than on the nature of the defendant’s action and the extent of the plaintiff’s loss.

Con: If individuals are risk adverse, then, all other things being equal, a wealthier potential defendant has a lower marginal utility of wealth than does a poorer potential defendant: he is, in other words, less adversely affected by a given expenditure on care than is a poorer person.” The richer person thus sacrifices less utility for any given unit of wealth than does the poor person.

B. Strict LiabilityStrict liability is liability imposed without regard to the negligence of the defendant.

Pro: There are 5 ways in which strict liability potentially can be superior to negligence: greater accuracy, administrative cost savings and the level of generality issue, activity level effects (as opposed to safety level effects), additional research incentives, and more extensive loss distribution.Con: There’s no “extra” deterrence for actions that aren’t the result of carelessness. [[Counter argument to the con = spurs innovation/research and activity level changes.]]

Historically1. The rise of Negligence

Historically, plaintiffs had to categorize their cause of action as either trespass or case. Trespass required a direct and forceful harm and the defendant could escape liability only by proving that he was utterly without fault. Case was brought for harms that werer indirect or consequential and operated on a negligence standard.

The negligence standard replaced the trespass/case distinction (Brown v Kendall – held that there was no liability for a defendant who accidentally hit the plaintiff while the defendant was trying to break up a dogfight unless that defendant failed to exercise reasonable care.)

What was the reason for the rise of negligence in the 19th century? a. Morton Horowitz: Rise of negligence standard created immunity from legal liability

in order to provide a kind of subsidy to infant industry (harder for injured workers to obtain damages).

b. Modernizing the outdated, specific writ system into more general legal principles2. The development of Strict Liability

The modern standard for strict liability was developed in a series of cases dealing with flooding disasters. (Rylands v Fletcher – held that a defendant was strictly liable for the damage caused by his broken reservoir on the plaintiff’s underground mines even though the defendant was not negligent.) Courts in the United States initially resisted this standard. (Brown v Collins – rejected Rylands and declined to impose strict liability) (Turner v Big Lake Oil Company – rejected strict liability as inapplicable to Texas, since large water cisterns were a natural use of the land in a dry climate.) But after the Johnstown Flood 1889, more and more courts were willing to hold defendants strictly liable for flooding harm. (Shug says) This shift was led by elected judges, especially those who had been elected to long terms. Democratic role fidelity combined with political insulation to erode judicial resistance to holding defendants strictly liable for these types of disasters.

The Modern VersionOld categories = fire, animals, nuisance, respondeat superiorNew categories = blasting, ultrahazardous activities, products liability for manufacturing defects1. Nuisance

A Nuisance is a substantial and unreasonable interference with the right of an owner or occupier of land to the use and enjoyment of the land.

[[NB: Nuisance is distinct from trespass, which involves interference with the right of possession and occupancy of land.]]

There are two kinds of nuisances: public and private. A public nuisance is not a tort, but a low-level quasi-criminal offense that affects the general public in common. In contrast, a private nuisance is simply a nuisance that does not affect the public at large, but particular individuals. Private nuisance actions do sound in tort.Remedial options for private nuisance include:

a. DamagesIn determining whether or a defendant’s private nuisance activity should be

remedied by damages or an injunction, courts might look to the particular context and balance the equities involved. (Boomer v Atlantic Cement – held that plaintiff should be awarded permanent damages as opposed to an injunction for a nuisance claim because of the disproportionate importance of the defendant’s factory use.)Con: The dissent in this case stated that property rights should trump market efficiency and that the decision eliminated the defendant’s incentives to adopt/develop technology to reduce the pollution/damage done to its neighbors.b. Injunctionc. No remedyd. Purchased Injunction

If the plaintiff has come to the defendant’s nuisance, the court may require the plaintiff to purchase the injunction from the defendant. (Spur Industries v Del Webb Development – held that a real estate developer who brought homeowners to the nuisance of defendant’s feed lot should pay for the damage that the defendant would sustain in moving or shutting down.)

The decision that there is no nuisance protects the defendant with a property right, which he can decide to sell or not sell, at his price. Similarly, a decision enjoining the defendant from continuing a nuisance protects the plaintiff with a property right, which she can decide to sell or not, at her price. An award of future damages to the plaintiff protects the plaintiff with a liability right or liability rule only and with an entitlement set by the jury, rather than the plaintiff. An award of future damages to the defendant protects the defendant with a liability right or liability rule only and with an entitlement set by the jury, rather than the defendant.2. Abnormally Dangerous Activities

Strict liability is imposed for injuries caused by activities—ordinarily uses of land—that were first termed “ultrahazardous” and that are now termed “abnormally dangerous.”

The two factors that determined whether an activity was ultrahazardous were the degree of danger it posed and how common it was in the area. The more dangerous and the less common the activity, the more likely it was to qualify as ultrahazardous.

The new test for abnormally dangerous activities included three different factors affecting dangerousness (degree of risk, probability of harm, and inability to eliminate the risk by the exercise of reasonable care), two factors affecting the commonness (the extent to which the activity is uncommon and its “inappropriateness” to the area), plus a new

consideration: the extent to which the value of the activity to the community is outweighed by its dangerousness. (Second Restatement 520) Note that the “value to community” standard is now disfavored because that isn’t really a question of law. Courts are moving away from this value question. Factors that affect the court’s willingness to impose SL for Abnormally Dangerous Activities include:

a. Policy FactorsThe threat of liability for an abnormally dangerous activity furthers goals

of deterrence, efficiency, and judicial economy. It places the burden on the best cost avoider. (Holmes – “it may be considered that the safest way to secure care is to throw the risk upon the person who decides what precautions shall be taken.”)b. Internalizing Externalities of an activity

If a defendant benefits from participation in an abnormally dangerous activity, it may be fairer to make him internalize the social costs of his activities along with his profits. (Powell v Fall – held that when defendant’s locomotive threw sparks that started a fire on plaintiff’s farm, even though the defendant was not negligent, the defendant should have to compensate the plaintiff for the damage because the defendant benefits from being able to use a dangerous machine.)c. Destruction of Evidence

If the evidence of negligence is likely to be destroyed in the tort arising from a dangerous activity, the court may decide to make the defendant bear the cost of the accident. (Siegler v Khulman – the court imposed strict liability for gas transported on public highways, because it is very dangerous to transport, the magnitude of harm is very high, and the evidence of any negligence is likely to be destroyed in an explosion.)d. Prevention with reasonable care/Lack of Prevention with Alternative

If the accident could have been prevented by reasonable care and the accident could not have been prevented by a change in the overall activity, then a court may decline to impose strict liability on a defendant. (Indiana Harbor Belt RR v American Cyanamid Co – the court didn’t impose strict liability when defendant’s chemical spilled in plaintiff’s railroad yard because reasonable care could have prevented the accident and the alternative way of transporting the chemical would not have reduced the harm.) Shug says that this case was wrongly decided because Transportation of toxic chemicals is paradigmatic ultra-hazardous activity; very high magnitude of risk, even if reasonable care is used. Plus, Posner’s “activity level” analysis is at a low or intermediate level. There are lots of more general alternatives: find different methods of transport (specialized rail cars), make the material less flammable or toxic). Posner is not the “best cost avoider” expert. Put liability on the actors themselves and their chemists and consultants.

Affirmative Defenses to Strict Liability for Ultra Hazardous Activitiesa. If the harm is not within the risk of the ultra-hazardous activity, there

may be no recovery for the plaintiff. (Madsen v East Jordan – held that minks eating their young because of the loud noise caused by an explosion was not the harm within the risk of blasting)

b. If there is unforeseeable 3rd party intervention, the defendant may not be held liable for the ultra-hazardous activity. But if the intervention was foreseeable, then recovery is allowed. (Yukon v Fireman’s Fund – held that thieves blowing up a factory to cover their tracks was foreseeable)

c. Plaintiff’s assumption of risk bars recovery (2nd Restatement 523)d. Plaintiff’s contributory negligence is not a defense except when the

plaintiff is contributorily negligent in knowingly and unreasonably subjecting himself to the risk of harm. Shug thinks that you should use comparative risk creation analysis

e. There is no strict liability if the harm would not have resulted but for the abnormally sensitive character of the plaintiff’s activity.

3. Vicarious Liability/Employer’s LiabilityThe principle example of vicarious liability—liability for injury caused by the conduct

of another party—is the doctrine known as respondeat superior. Under this doctrine an employer is liable under some circumstances for the torts committed by an employee. Requirements:1. The agent of the defendant be an employee.2. The tort at issue must be committed within the scope of employment. If the employee is off on a frolic of his own, the employer is not liable, but if the employee takes a small detour, then the employer is liable. In determining whether or not an employee was acting within the scope of employment, courts have focused on foreseeability and proximity/access (Bushey v United States – held that the defendant employer was liable for the damage caused by its employee drunken sailor to the plaintiff’s drydock.)Pro: Places the risk on the best cost avoider; deep pockets reduce the risk of insolvency; ensures loss spreading 4. Products Liability: Manufacturing Defects

Strict Liability is imposed for manufacturing defects. (Greenman v Yuba – held that a manufacturer was strictly liable for a product that does not conform to his own design.) This idea was first developed in Justice Trayor’s concurrence in Escola v Coca Cola (the majority decided a case where a bottle of coke exploded and injured the plaintiff on res ipsa loquitur). Traynor advocated for strict liability for these types of injuries because:1. Companies are the best cost avoiders.2. Companies are the best insurers.3. Res ipsa is not enough protection – the Plaintiff cannot refute evidence of due care because of the complexity.4. There is currently under the table strict liability anyway.5. Adopting strict liability would cut out the retailer middleman and reduce litigation costs.6. Adopting strict liability would do away with all the fictions associated with the warranty-contract rules.

[[BUT Note that design defects adhere to a negligence standard instead of SL. To determine whether a design defect was negligent, there are two tests: risk-benefit/risk-utility test (which asks whether the risks posed by the design outweigh its benefits) and the less-favored consumer expectations test (which states that if the design is not as safe as consumers expect it to be, then it is defective this is pretty circular though).]]Affirmative Defenses to Strict Liability for Products Liability:

a. Contributory negligence: The Second Restatement says if the contributory negligence was the consumer’s failure to discover defect or guard against potential defect, there is no defense. But if the contributory negligence was more like the assumption of risk (the specific consumer discovered a hidden defect and proceeded to use it voluntarily and unreasonably) then the plaintiff is barred from recovery.

b. If the plaintiff’s negligence combines with the defect to cause the harm, the result is less clear. (Daly v GM – held that the jurors should engage in equitable apportionment of liability.)

II. BREACH: DID THE DEFENDANT VIOLATE THAT STANDARD? Under the duty of reasonable care, breach asks whether the defendant’s actions were

negligent. Negligence is the failure to use that degree of care that a reasonably prudent person would have used under the same circumstances. [[NOTE: THIS CATEGORY DOES NOT APPLY TO STRICT LIABILITY.]]A. Foreseeability

A defendant is negligent if he knew or reasonably should have known that his actions posed a risk of harm. Consequently, a person cannot be negligent for failing to take precautions against an unforeseeable risk of harm. “Foreseeability” in this context refers to the known or knowable possibility that there exists a risk that will result in harm. (Blyth v. Birmingham Waterworks – held that that a directed verdict should have been granted for the defendant because the risk was so improbable that as a matter of law a reasonable person need not take it into account in determining what precautions to take.

BUT NOTE that today, Blyth would almost certainly pose a question of fact for the jury. Few risks are so unforeseeable as to warrant granting a directed verdict to the defendant on that ground alone. But even if the improbability of the risk that caused harm is not, in itself, a basis for exonerating the defendant, this factor may figure in the overall cost-benefit negligence calculation.)

B. Untaken Precautions/Cost-Benefit Analysis Generally

A defendant is negligent if a reasonable person under the circumstances would have taken precautions that the defendant did not take in order to avoid that risk. Cost-benefit analysis is one way of assessing the reasonableness of untaken precautions. This view uses economic efficiency to define reasonableness.

The Hand FormulaThe cost-benefit analysis formula described by Learned Hand and advanced by

Richard Posner states that a defendant is negligent if the cost of the untaken precaution is less than the probability of the accident multiplied by the magnitude of the harm.

A defendant is negligent if B<PLthe burden/cost of the untaken precaution (B)is less than the probability of the accident (P) multiplied by the magnitude of the harm (L) (United States v Caroll Towing – held that it was a fair requirement for Connors

to have a bargee on board because the B was less than PL in this case) 1. According to Academics and Appellate Courts Not every precaution is worth taking. If the cost of safety measures/curtailment

exceeds the benefit in accident avoidance to be gained by incurring that cost, society would be better off, in economic terms, to forgo accident prevention. When the cost of accidents is less than the cost of prevention, a rational profit-maximizing enterprise will pay tort judgments to the accident victims rather than incur the larger cost of avoiding liability. (Posner, Theory of Negligence).

Pros:

1. The Hand formula offers more guidance in assessing ‘reasonableness’ and ‘foreseeability,’ because it is a less subjective standard. 2. It also focuses on broader social goods and total utility across society, as opposed to the interest of just one plaintiff. 3. For the plaintiff, the “untaken precaution” is a clear tool for focusing litigation.4. The formula both furthers deterrence and avoids over-deterrence because it incentivizes taking efficient precautions, but not those that are wasteful or unnecessary.Cons : 1. Money and injuries are often incommensurable. 2. There is also a more general challenge of quantifying B and PL. It is a fact-intensive question and information costs are high.3. Relatedly, there is an institutional challenge in which laypeople like juries and judges are not well equipped to assess the assertions of dueling experts. 4. What is economically rational is not necessarily what is reasonable; there may be a mismatch in values. 2. In PracticeThe factors are not usually susceptible to any quantitative estimate, so this type of

mathematical analysis is disfavored by trial judges and juries. The Third Restatement calls the elements of the Hand Formula “primary factors” to consider in deciding whether a defendant’s conduct breached the standard of reasonable care. (Third Restatement 3). Tricky Sidenotes

1. The Cost/Benefit Analysis does not just apply to the litigants The defendant is not required to take a precaution that would benefit the plaintiff but

would also cause a greater risk to third parties. Cost-benefit analysis focuses on social goods and total utility, as opposed to self-interest or just the interest of one plaintiff. (Cooley v Public Service Co. – held that a company did not need to use a device that would have prevented harm to the plaintiff but would increase risk to others because the danger to the plaintiff was remote whereas the danger to others was obvious and immediate.)

2. Common Carriers are held to a higher standard When the standard is higher than reasonable care, the cost/benefit analysis changes

a bit. You don’t need as high of a cost to justify the benefit because the duty owed is that of a very cautious person. (Andrews v United Airlines – suggested that a common carrier would have to demonstrate that a precaution was prohibitively expensive or grossly inconvenient to justify not having taken it.)

C. Custom Generally

A defendant may try to use his conformity with custom as a shield to show that his actions were not negligent. Conversely, a plaintiff may try to use a defendant’s non-compliance with custom as a sword to show that the defendant was negligent. While evidence of custom is both relevant and admissible as to whether a party was negligent, it is not dispositive. (The T.J. Hopper – held that despite the fact that there was no general custom to equip tugboats with radios, it was negligent not to have done so.) (Bimburg v. Northern Pacific Ry. – held that local usage and general custom will not justify or excuse negligence.) (Third Restatement – states that compliance with custom is evidence that an actor’s conduct is not negligent, but does not preclude a finding of negligence.) Principally, it’s relevant simply because it reflects the judgment of a large number of people that engage in an activity as to the reasonable way to conduct that activity. Thus, a practice

need not be universal to constitute a custom, although it must be more than just one of a number of different practices.Pros: 1. Custom provides clear, bright-line rules for decision-making; 2. The plaintiff may have relied on custom; 3. Custom as the standard for negligence is easier for juries to understand; 4. Custom reflects the wisdom of time and numbers; 5. Custom serves as a shield for Defendant, explaining why he behaved a certain way; 6. Custom corrects against hindsight bias, highlighting what people believed at the time.Cons : 1. Entire industries can lag, and custom can favor conformity to outdated, and unsafe practices simply because they’re widespread, and disfavor innovative and safer measures just because they’re less common; 2. There is also a problem of defining ‘custom’; 3. Custom tracks the economic self-interest of actors, rather than the broader social good.Exceptions

1. Internal Rules/Private Rules of Conduct In some cases, courts have differentiated internal house rules from statutes

and municipal ordinances and stated that internal rules cannot be used as evidence of custom because of the perverse incentives created by enforcing house rules. (Fonda v St Paul City) However, more recent cases have allowed plaintiffs to introduce evidence of the defendant’s internal rules as evidence on the standard of care question. (Lucy Webb Hayes National Training School v Perotti – held that the jury could conclude that a hospital’s failure to observe the standard of care it had established itself represented negligence.)

Pros: The plaintiff may have relied on the defendant’s standard (or his general reputation for safety) in choosing to deal with him. The plaintiff may also be paying for the general costs of compliance which the standard imposes on the defendant. Cons : It’s unfair to penalize the defendant who has voluntarily provided an extra measure of safety.2. Professional Malpractice

With regard to professional malpractice (including physicians, attorneys, and accountants) the general rule is that compliance with custom insulates the defendant from liability, and failure to comply with custom is malpractice. In professional malpractice cases, custom is dispositive, not just admissible.

It is also important to note that there are two schools of thought available to medical experts, not just one custom. If a respectable minority practices in a certain way, that testimony can serve as an additional shield against liability.

D. Statutes and Regulations Some statutes preclude tort liability explicitly or by implication, and other statutes create

tort liability for their violation, but most statutes simply say nothing about the role their violation should play in tort litigation.

GenerallyUnexcused violation of a statute designed to promote safety is negligence as a

matter of law. A statute prohibiting a certain action may be used by a litigant to supplement an existing negligence case with dispositive evidence. (Martin v Herzog – held that a plaintiff was contributorily negligent when his buggy was hit by a car because he had violated a statute requiring vehicles to have lights at night, which constituted negligence per

se.) (2nd Restatement 286 – states that a court may adopt a legislative enactment or administrative regulation as a standard of reasonable conduct.)Legally Cognizable Excuses

A court may excuse a person from the presumption of negligence created by violating a statute if the violation was necessary or the harm at issue was not within the statutory purpose.

1. Necessity/EmergencyIf noncompliance with the statute is safer, then a person may be excused from

complying with the statute because of necessity. (Tedla v Ellman – held that a plaintiff was NOT contributorily negligent despite the fact that she had violated a statute that said pedestrians should walk facing traffic in part because it would have been more dangerous for her to comply with the statute since traffic was particularly heavy on that side of the road that day.) (2nd Restatement 288 – states if compliance would involve greater risk of physical harm to the actor, statutory violation is excused.)

2. Harm is NOT within the Statutory PurposeIf the plaintiff was not within the class of persons, or did not suffer the type of

harm, intended to be protected by the statute that the defendant violated, a court may not view violation of the statute as evidence of negligence. (Gorris v Scott – held that, in case where animals where washed overboard in a storm, failure to comply with a statute requiring animals to be penned up on a ship was not necessarily evidence of negligence because the statutory purpose was to prevent the spread of disease.) (Brunett v Imerys Marble Inc. – held that a defendant working in the commercial trucking industry who fell off a truck could not claim that it was negligent not to comply with federal regulations because those regulations were meant to protect miners, not truckers.) HOWEVER, courts often interpret statutory purposes liberally, and if a plaintiff could conceivably have been an intended beneficiary of the statute’s protection, modern courts are inclined to view violation of the statute as evidence of negligence. (Stimpson v. Willington Service – held that a statute whose purpose was to protect streets from harm from heavy vehicles had secondary purpose of protecting property below the streets from injury and allowed plaintiff to use the statute to his advantage under that theory.) (Kernan v American Dredging Co – held regulation specifying the appropriate height of lamps over the water that was aimed at the risk of collision could protect a plaintiff suffered died as a result of a fire caused by a lamp was not in compliance with the regulation.)Private Rights of Action

Statutory violations do not create private rights of action if no private cause of action would exist at common law. (Uhr v Greenbush did not allow a private right of action for school child that was not screened for scoliosis. The court stated that a private right of action may be implied if (a) The plaintiff is one of the class for whose particular benefit the statute was enacted; (b) Recognition of a private right of action would promote the legislative purpose; and (c) Creation of such a right would be consistent with the legislative scheme.”)

E. Res Ipsa LoquiturThe doctrine of res ipsa loquitur—the thing speaks for itself—is invoked when the plaintiff

seeks to establish the defendant’s negligence by circumstantial evidence. In these cases, the mere accident itself may be enough for a reasonable jury to infer negligence.

GenerallyGenerally, Res Ipsa Loquitur can be invoked when:

1. The accident is of a kind which ordinarily does not occur in the absence of someone’s negligence;2. The accident is caused by an agency or instrumentality within the exclusive control of the defendant; and3. The accident is not due to any voluntary action on the part of the plaintiff.

If all three requirements are met, the jury may infer that the defendant was negligent even though there is no direct evidence to that effect. (Colmenares Vivas v. Sun Alliance Insurance Co – held that res ipsa loquitur could apply to an unusal escalator malfunction in an airport) (Second Restatement 328 – (1) the event is of a kind which ordinarily does not occur in absence of negligence; (2) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; (3) the indicated negligence is within the scope of the defendant’s duty to plaintiff.) (Third Restatement 17 – Fact-finder may infer negligence when accident is a type of accident that ordinarily happens as a result of negligence of a class of persons of which the defendant is the relevant member.)Application

But in many res ipsa cases, the thing does not really speak for itself. Other factors prompt judges to allow plaintiffs to present a case based solely on circumstantial evidence. Res ipsa is often shaped by a defendant’s higher duties and risk creation (e.g. common carriers, innkeepers, dangerous areas). Res ispa is also shaped by particularly vulnerable plaintiffs with little control or information (passengers, passers-by, unconscious patients). Res ipsa functions as quasi-strict liability. 1. RIL shifts the burden of proof

Invoking Res Ipsa Loquitur allows the plaintiff to shift the burden of proof against the defendant by creating a rebuttal presumption of negligence. (Byrne v Boadle – held that the plaintiff was not bound to show that the barrel of flour could not have fallen out of defendant’s window without negligence and if there were any facts inconsistent with negligence it was for the defendant to prove them.) 2. RIL deals with an imbalance of information/control

Res Ipsa Loquitur cases are often shaped by the defendant’s higher duties and risk creation with respect to vulnerable plaintiffs with little control or information. (Ybarra v Spangard – held that since the plaintiff was unconscious when he was injured, the defendant medical professionals had the responsibility to explain why they weren’t negligent or hadn’t caused plaintiff’s injury.) (Newing v Cheatham – held that in case where the plaintiff was killed when a plane piloted by defendant crashed because it ran out of fuel and the defendant was drunk, res ipsa loquitur applied.)

(BUT the Third Restatement says that res ipsa loquitur should be regarded exclusively as a doctrine of circumstantial evidence unrelated to any differential knowledge between the parties. “The plaintiff may invoke res ipsa even though the defendant is as ignorant of the facts of the accident as the plaintiff is.”)

Pros: Because Res Ipsa Loquitur shifts the evidentiary burden to the defendant, it promotes settlements and allows a plaintiff to say that something the defendant did was wrong even if it would be impossible for the plaintiff to find direct evidence proving the defendant’s negligence.

Cons : It’s unfair to penalize a defendant who may not have done anything wrong and may not know who did do something wrong. (This is esp. true in Ybarra v Spangard)Shug Says: the argument that RIL will smoke out information is a weak argument. The real effect is the shift of litigation costs from the P to the D. RIL decides that between two innocents there is a shift to a duty bound defendant (a duty to provide safety and maybe bear litigation costs). RIL’s

shift in litigation cost is also likely to promote settlement. Uncertainty is a very powerful factor in negligence cases. Oftentimes the accident destroys the evidence and in certain classes of cases (hazards and duties/D who is the best cost avoider) RIL splits the difference between a negligence rule and strict liability and appropriately shifts the burden. RIL promotes safety and achieves the goal of deterrence by creating a stronger incentive to avoid accidents.

III. CAUSATION A. Cause-in-Fact

The plaintiff must prove that the defendant’s act or omission caused the injury or damage for which the plaintiff claims compensation. This means that the tortious conduct must have been a necessary condition to the occurrence of the plaintiff’s injury. Necessary causation thus serves as a matching function between the plaintiff and the defendant.

Majority Rule: But-For CausationThe most widely accepted test for cause-in-fact is the “but-for” or sine qua non test.

This test requires a determination whether, “but for” the defendant’s breach, the plaintiff would have suffered injury. If the injury would not have happened without the tortious conduct then causation-in-fact is proven. (Third Restatement 26) (New York Central RR v Grimstad – held that negligent failure to equip a barge with proper life preservers did not make the defendant liable for the plaintiff’s harm because there was no evidence that the life buoy would have saved the plaintiff.) (Ford v Trident Fisheries – decedent fell overboard and plaintiff sued because the rescue boat was lashed to the deck instead of being suspended from davits. The court held that even if the defendant was negligent, “there is nothing to show they in any way contributed to Ford’s death.”)Exceptions

In certain situations, the plaintiff can recover even if he hasn’t established that the defendant was a necessary cause of the harm that the plaintiff suffered. 1. Just send it to the jury

When there is uncertainty about whether or not the defendant’s tortious conduct was necessarily the cause of the plaintiff’s harm, the judge may simply let the jury decide. (Kirincich v Standard Dreging Co – held that if reasonable men might disagree about whether the defendant’s actions had caused the plaintiff’s death, then the case should not be dismissed and the issue should go to the jury.) (Reyes v Vantage Steamship – held that the jury could be instructed to decide whether the plaintiff hypothetically would have been saved had the defendant had the regulation safety equipment.) 2. Increased Risks

a. Where there is a strong causal link between the negligence and the harm because the harm that occurred is the harm within the risk of the negligence, there is a permissible inference that the cause-in-fact requirement is satisfied and the burden shifts to the defendant to disprove necessary causation. (Zuchowicz v United States – prescription overdose danocrine case – If a negligent act was deemed wrongful because that act increased the chances that a particular type of accident would occur and a mishap of that very sort did happen, this is enough to support a finding by the trier of fact that the negligent behavior caused the harm. It is up to the negligent party to bring in evidence denying but-for cause and suggesting that in the actual case the wrongful conduct had not been a substantial factor.)

b. When the defendant’s negligence has greatly multiplied the chances of accident to the plaintiff, and is the kind of conduct that naturally leads to such accident, the mere

possibility that the accident might not have happened without the negligence is not enough to break the chain of causation (Reynolds v Texas and Pacific Ry – slip and fall case)3. Limited Information

When the defendant’s negligence is reason that plaintiff cannot prove causation, the court may shift the burden of proof to the negligent defendant. (Haft v. Lone Palm Hotel – held that it was unfair to force the family of a father and son who had drowned in a pool without a lifeguard to meet the burden of proof when the defendant’s negligence in not providing a life guard or posting warnings had created the evidentiary void.)4. Lost Chance

In medical malpractice cases, the defendant may be held liable for the reduction that he caused in the decedent’s chances of surviving, even if the plaintiff would most likely have died anyway. [[NB: in these cases, only partial damages are awarded; the plaintiff can only recover the percentage of damages that correspond to the percentage increased risk. This is the majority rule for medical malpractice cases.]] (Herskovits v Group Health Cooperative – held that the plaintiff could recover when the Hospital negligently failed to diagnose plaintiff’s cancer when the chance of survival fell from 39% to 25%.)

Pro: Holton v Memorial Hospital – held that the lost chance rule applied and observed that barring recovery on the theory that the patient was already too ill to survive would operate as a perverse disincentive to hospitals to treat really sick people.Con: Fennell v Southern Maryland Hospital Center – raised the concern of optimal deterrence. Under the lost chance doctrine, errors in individual cases will not “cancel out” in the long run, so that defendants may be systematically overtaxed for harms that they did not cause.

5. Multiple Causes and UncertaintyWhen multiple possible causes are involved, the causation requirement is sometimes

held to be satisfied even when the defendant’s negligence is not a necessary cause of the plaintiff’s harm.

a. Simultaneous and both are negligent If there are two simultaneous causes of the plaintiff’s harm and both defendants are negligent, both defendants are jointly and severally liable for plaintiff’s loss. b. Simultaneous and only one is negligent Courts are split on this matter. Many courts do not hold the negligent defendant liable in this situation, but some courts do. COMPARE (Kingston v Chicago and NW Ry (maybe not liable) – held that the presence of a second fire of unknown origin that would have caused the damage on its own did not relieve the defendant from liability for starting a fire with train sparks, the plaintiff did not have burden of identifying the second fire, but if the defendant could prove that the second fire was natural or of much greater proportions, it would have released him from liability for plaintiff’s injury.) WITH (Second Restatement 432 (liable) – states that even if one of the two actors is not negligent, the actor that is negligent may be found to be a substantial factor in bring about the plaintiff’s harm.)c. Sequential Causes The party responsible for the first cause is liable if that party was negligent, but the party responsible for the second cause is not liable even if they were negligent.

Joint and Several Liability If multiple defendants are liable for the harm, some jurisdictions use joint and several liability to apportion the damages. This system makes each defendant potentially liable for 100% of the damages. Joint liability applies broadly to joint tortfeasors

(defendants work together) and independent tortfeasors (defendants caused a single harm together or caused a theoretically divisible harm that is practically indivisible.)6. Alternative Causation

When two actors are negligent, they are not both exempted from liability just because it’s impossible to prove which one was the cause of the plaintiff’s harm. Instead, the courts “stick it to the breacher” and the burden shifts to each of the defendants to prove that their negligence did not cause the harm. (Summers v Tice – Each defendant was as probably as not the but-for cause of injury to the plaintiff, but not more probably than not the cause. The court held that under these circumstances the burden shifted to each of the defendants to disprove that he had caused the harm. But in practice Summers is ordinarily understood to involve more than a mere shift of the burden of proof on the causation issue. It is the classic case of “alternative” liability, imposing liability on negligent defendants, each of whom is equally likely to have harmed the plaintiff.) (Second Restatement 433) In these cases, the defendants may be held jointly and severally liable for the plaintiff’s harm. 7. Concert of Action

If there are a comparatively small number of defendants and those defendants consciously act in parallel to produce products in a manner that makes it difficult to identify the manufacturer of a product after the product causes an injury, those defendants may be held liable for the plaintiff’s injury even if the plaintiff cannot prove that a specific defendant caused his injury. (Hall v Dupont – held that if a child could establish that it was more likely than not that any of the six defendants manufactured the particular cap that caused that child’s injury, then the burden shifted to each defendant to prove that a cap it manufactured did not cause the injury in question.)

Pro: although Ds may not have acted together to cause injuries, the threat of liability might encourage industries with a small number of companies to act together to prevent injury.

8. Market Share Liability and Toxic TortsOnce a plaintiff has established that it was negligent for a group of defendants to

have sold the product that caused the plaintiff’s injury, courts have sometimes held that the defendants should not escape liability merely because the plaintiff cannot show which defendant caused her harm. Thus, each defendant may be held liable for the proportion of the judgment represented by its share of the market in cases where the following factors are present

1. all the named defendants are potential tortfeasors;2. allegedly harmful products are identical and share the same defective qualities (or were “fungible”);3. the plaintiff is unable to identify which defendant caused her injury through no fault of her own; and4. substantially all of the manufacturers which created the defective products during

the relevant time are named as defendants. COMPARE (Sindell v Abbott Laboratories – DES case that named these factors and defended Market Share Liability as an extension of Summers v Tice.) WITH (Skipworth v Lead Industries Association – rejected market share liability on the basis of the Sindell factors in favor of a rule that the plaintiff must establish that a particular defendant’s negligence was the proximate cause of her industires.) Shug Says: Skipworth questions the uncertainty of causation but that’s missing the point the real problem is that not all the tortfeasors identified are negligent since the ability to be negligent only started at a certain time (when there were alternatives to lead as an ingredient in paint or the knowledge of the risk of lead in the paint). The P should have reshaped her case to identify the truly negligent

Judge Sykes talk: Some courts (including Wisconsin) are shifting from proximate cause language to policy analysis of limiting scope of liability. This is called “Risk Contribution Theory.” Six degrees of proximate cause: (1) Injury too remote from negligence? (2) Injury out of proportion to the culpability of the tortfeasor? (3) Too extraordinary that negligence brought about harm? (4) Unreasonable burden placed on tortfeasor through allowance of recovery? (5) Would allowance of recovery open the way to fraudulent claims? (policy) (6) Would allowance of recovery enter a field that has no sensible or just stopping point? (judicial economy)

There is a split on exculpatory evidence Sindell stated that a defendant could be excused if it demonstrated that it could not have made the product that caused the plaintiff’s injuries, but Hymowitz v Eli Lilly, allowed for NO exculpatory evidence in individual cases, even if the company did not sell in Hymowitz’s area, because liability is based on overall risk produced nationally, and court (1) wanted to avoid administrative costs and (2) was worried about disincentivizing companies from operating in NY by holding only NY markets liable. Note that the Hymowitz position is the minority rule on this issue. Minority Rule: Substantial Factor Test

A minority rule asks if the defendant’s negligence substantially increased the risk of the harm. The “but-for” test requires a firm finding that the defendant’s negligence was an absolute pre-requisite to what happened, whereas the “substantial factor” test could be understood merely to require a finding that the defendant’s negligence was a major contributor. This rule has a lower threshold for causation and presents a muddy standard as opposed to a clear rule, but it does away with the need for all of the complicated majority exceptions.

B. Proximate CauseEven if the defendant’s conduct caused the plaintiff’s injury factually, the plaintiff must also

show that the conduct was “proximate” enough to the harm to hold the defendant liable. The doctrine of proximate cause operates as a limitation on the scope of the defendant’s liability. The defendant’s conduct is a proximate cause of the plaintiff’s harm if causing that harm was a foreseeable result of the defendant’s negligence.

“The Harm Within the Risk”One way of assessing whether or not the plaintiff’s injury was a proximate cause of

the defendant’s actions is to ask if the plaintiff’s injury was the harm within the risk of the defendant’s conduct. Negligence that results in harm by mere coincidence (and not because it is the type of harm that results from that type of injury) is NOT a proximate cause of the injury. (Berry v Sugar Notch Borough – held that the plaintiff’s breach of a safety statute was not causally connected with his injuries because it did not increase the risk or hazard of his being hit by a falling tree.) (Gorris v Scott – held that, in case where animals were washed overboard in a storm, failure to comply with a statute requiring animals to be penned up on a ship was not necessarily evidence of negligence because the statutory purpose was to prevent the spread of disease.) (Central Georgia Ry v Price – held that a railroad’s negligence in not dropping plaintiff off at her station was not proximate to the injury the plaintiff suffered by being burned by a lamp at a hotel.)

There are also some cases in which the risk that the plaintiff would suffer the harm that actually materialized was not the principal risk that rendered the defendant’s action negligent, but that risk was nonetheless a foreseeable and relevant risk. (Hines v Garrett – held that a railroad’s negligence carrying plaintiff past her station and forcing her to walk a

mile through an unsettled area was a proximate cause of her being raped by two men during that walk home.) BUT NOTE – In Central Georgia Ry v Price, the plaintiff could have sued the hotel instead, whereas in Hines v Garrett the hobo and solider who raped the plaintiff were probably judgment proof. Foreseeability and Remoteness1. The Plaintiff must be Foreseeable

If the plaintiff is entirely unforeseeable with respect to the defendant’s negligence, courts are reluctant to impose liability on the defendant. The defendant only owes a duty of care to those the reasonably foreseeable zone of danger. (Palsgraf v Long Island Railroad Co – Cardozo’s opinion held that the defendant was not liable to a plaintiff that was hit by scales in a station when fireworks exploded on the tracks as a result of the defendant’s negligence because the harm to her was entirely unforeseeable.) BUT NOTE: Andrew’s Dissent in Palsgraf was very important. It said that the defendant should be liable for all harm caused by his tortious act, regardless of foreseeability, because there is a duty of all to all. Andrews says that what triggers liability is damage, not breach and that the proximate cause is a factual matter better left to the jury. Shug says that he’s right.

The Law follows BOTH Cardozo and Andrews 2nd RST § 281, p. 528 follows Cardozo: conduct that creates recognizable risk

of harm to particular class does not render the actor liable to a person of a different class, to whom actor could not reasonably have anticipated injury who is injured.

2nd RST § 431, p. 530 adopts Andrews “substantial factor” hints in defining what constitutes legal cause. Cause “in the popular sense, in which lurks the idea of responsibility.” Note that this is a limiting use of the phrase (as opposed to its use in cause in fact inquiries).

2. Unforeseeable type or kind of harm? (case-by-case)The law is unclear about whether a defendant could be liable to a foreseeable

plaintiff with an unforeseeable type of harm. The old rule was that if the harm is unforeseeable with respect to the defendant’s

negligence, the court may still hold the defendant liable if there is a direct relationship between the act and the damage. (In Re Polemis – held that the defendant was liable even though the harm that the ship would catch fire was unforeseeable because of the “directness” between the act of dropping a plank into the hold of the ship and the damage caused when the plank made a spark that set fire to the petrol in the hold.)

The rule in Polemis about “directness” was later overruled in Wagon Mound. There can be no liability when a foreseeable plaintiff suffers an unforeseeable type of harm, even if that harm is a direct consequence of such negligence. (Wagon Mound I – held that the defendant could not be held liable for fire damage to the dock because that damage was not foreseeable.)

The American response to these English cases rejects the Wagon Mound view. Damages are not limited to the foreseeable consequences of the defendant’s negligent conduct if the unforeseen consequences are direct and the damage is of the same general sort that was risked. Thus, an actor engaging in conduct that entails a large risk of small damage and a small risk of other and greater damage of the same general sort and to the same possible plaintiffs can be held liable for both types of harm. (Kinsman Transit – a boat got loose, floated down a river, hit another boat and both got lodged in front of a drawbridge that resulted in a huge flood – held that both the boat owners and the drawbridge workers were liable for the damage caused by the flood)

Thus, most courts make the proximate cause determination on this issue on a case-by-case basis. Some courts decide the issue of an unforeseeable type of harm to a foreseeable plaintiff by simply sending the case to the jury. The law is unsettled on this matter. 3. Unforeseeable Manner of Harm

If the plaintiff is foreseeable and the type of harm is also foreseeable, but the manner in which the harm occurred is unforeseeable, the defendant is still liable for the plaintiff’s injury. Generally, unless the manner in which the foreseeable plaintiff suffered a foreseeable type of harm appears to be extraordinary, the fact that the harm occurred in an unforeseeable manner does not bar recovery. (Marshall v Nugent – held that the defendant was still liable to a plaintiff that was hit by a third car while he was walking down the road even though the plaintiff had not been hurt in the initial accident caused by defendant’s negligent driving.).4. Unforeseeable Extent of Harm

Courts universally hold that, under the “thin skull” rule, it is no defense that the plaintiff had an unforeseeable weakness or infirmity that caused his or her injury, or caused injury of much greater severity than would have been suffered in the absence of this weakness. The defendant takes his victim as he finds him. (Vosburg v Putney) (In Re Polemis)Intervening Pauses and Causes1. Foreseeable Intervening Cause = Defendant STILL LIABLE

If eventual harm to the plaintiff was foreseeable to the defendant, then the intervening third party’s action does not break the chain of causation and the defendant’s actions are still the proximate cause the plaintiff’s injury. (Marshall v Nugent – held that the defendant was still liable to a plaintiff that was hit by a third car even though the plaintiff had not been hurt in the initial accident caused by defendant’s negligent driving.). Furthermore, if the defendant’s negligence conduct created the situation that offered an opportunity for the third person to commit a tort or a crime, AND THE DEFENDANT SHOULD HAVE FORESEEN that the that a third party might make advantage of the situation, then the defendant is still liable for the injury to the plaintiff. (Brower v NY Central – held that the defendant was still liable to a plaintiff who was robbed by a third party after the defendant’s train had hit plaintiff’s wagon and disoriented his driver.) (2nd Restatement 448)2. Unforeseeable intervention = Superceding Cause

If the actions of a third party were unforeseeable of very remote with respect to the defendant’s negligence, then the defendant is not liable for the injury suffered by the plaintiff. 3. Rescues are Foreseeable

It is generally considered foreseeable to a defendant that a rescuer will come to the aid of someone injured by the defendant’s actions, therefore, the defendant owes the rescuer a duty similar to the one he owes the victim. (Wagner v International Railway – held that the plaintiff could recover from the defendant when the plaintiff attempted to rescue someone else who was a victim of the defendant’s negligence.) However, if the rescue is unreasonable or carried out negligently, the defendant may not be liable for the full extent of the injury to the plaintiff rescuer. Instead, the court may apply comparative negligent rules. (3rd Restatement 32)

IV. DAMAGES

In order to recover for his injury, the plaintiff must prove that the defendant owes the plaintiff damages. A. Cognizable or Recoverable Damages

Not all harms are legally cognizable. The plaintiff must prove that his damage is cognizable. There is recovery for some emotional harm or economic harm, as long as that harm is parasitic upon concrete physical harm to body or property. There is very limited recovery for purely economic or emotional harms by plaintiffs with no concrete physical harm.

Pure Emotional Loss1. Direct Emotional Distress

The majority rule is that the plaintiff may recover damages for pure emotional loss if she is in the zone of danger and suffered emotional distress, even if there is no actual injury and no contact.2. Bystander Emotional Distress

A bystander observing another’s injury may recover damages for pure emotional distress if that plaintiff bystander is a close relative of the victim, was near to the accident, and had a contemporaneous sensory observation. (Dillon v Legg – held that a mother was allowed to recover for pure emotional loss even though she was outside the zone of danger because of the reasons above.)Cons: Slippery Slope, Vagueness

This rule has since been more narrowly defined. Courts have required that the plaintiff directly observe the accident and that the plaintiff be related to the victim by blood or by marriage. (Tobin v Grossman – held that plaintiff could not recover because she did not see the accident.) (Elden v Sheldon – held that plaintiff could not recover because the relationship to the victim was that of an unmarried cohabitant.) (Thing v LaChusa – held that plaintiff could not recover because she did not witness the accident.)3. Exceptions:

a. Special Relationships (funeral parlor example)b. Fear of Potential Harms Very limited recovery. (Potter v Firestone – held that

plaintiff could recover for infliction of emotional distress due to likely exposure to future harm, even though there was no current injury.)Pure Economic Loss

An injured plaintiff can sue for lost wages or the economic value of property damage, but generally, an uninjured victim cannot sue for economic losses.Pro: 1. The scope of economic loss is very difficult to predict2. The defendant is usually already threatened with liability from the primary damage.

Exceptions: 1. If there is no one else holding a tortfeasor accountable, courts may allow a plaintiff acting as a private attorney general to sue the defendant. (Union Oil Co. v. Oppen - held that fishermen could sue for pure economic loss when an oil spill resulted in economic damage and the state declined to sue. It’s important to note that the crucial factor was that there were no other Plaintinffs.)2. If the economic loss is highly foreseeable, pure economic loss may be recoverable. (People Express Airlines v Consolidated Rail - held that plaintiff could sue for pure economic loss when a toxic spill forced the evacuation of offices because that economic loss was highly foreseeable.)

Wrongful Death

Wrongful death statutes allow the heirs at law of the decedent to recover for the defendant that would have been liable to the decedent. The beneficiary’s recovery is measured by the losses she suffers as a result of the decedent’s death. Damages for emotional loss are recoverable, usually in unlimited amounts. The principle that what is recovered is measured by the beneficiary’s losses makes clear that, for all practical purposes, the cause of action is the beneficiary’s and not the decedent’s. Survival Actions

All states have enacted statutes that preserve a cause of action for losses suffered by a decedent before he died. A number have gone further and provided for a cause of action to recover economic losses that are incurred as a result of the decedent’s death. Typically the measure of these losses is the amount that would have been in the decedent’s estate had he or she lived a full life expectancy. It is for the benefit of the decedent’s estate and any recovery passes through the estateCon: Potential deterrence gap = neither Wrongful Death nor Survival Actions imposes liability for the losses of any other person for whom the defendant would have would have provided support, or for the sums the decedent would have earned and spent on himself during his lifetime. Partly for this reason, the grotesque adage that a defendant is better off killing than badly maiming a victim tends to remain true, even in states that have enacted both types of statutes. Loss of Consortium

The US universally allows husbands and wives to sue for loss of consortium. (Second Restatement 693: liability covers resulting loss of society and services of the first spouse, including impairment of capacity for sexual intercourse and for reasonable expense incurred by second spouse in providing medical treatment.) However, unmarried cohabitants cannot recover for this type of loss.

B. Compensatory Damages The general rule is that the successful plaintiff is entitled to recover damages to compensate

her for the losses proximately resulted from the defendant’s tortious act or omission. The successful plaintiff in a personal injury case is entitled to recover for 1. “Special” or out of pocket losses proximately resulting from the defendant’s tortious action; and2. “General” damages for pain and suffering.

Pain and Suffering Awards1. Generally

Plaintiffs can usually recover damages for the pain and suffering caused by the defendant’s actions. The main purposes of damage award for pain and suffering are to acknowledge the wrong done; provide substitute activities and enjoyments; achieve optimal deterrence; pay attorneys.Con: The major criticism of pain and suffering awards is that, because assessment of the value of pain and suffering is so subjective, valuations vary enormously from jury to jury. Predicting the amount of an award is therefore difficult. Critics argue that this unpredictability creates uncertainty on the part of potential defendants that results in overdeterrence. 2. Cognitive Awareness Requirement

Cognitive awareness is required for damages for loss of enjoyment of life. Jury should not be instructed to consider damages for loss of enjoyment of life separately from damages for pain and suffering because non-pecuniary damages are too difficult to measure separately. (McDougald v Garber – held that there is no compensatory purpose to awarding damages to someone whose injuries preclude any awareness of the loss of

enjoyment of life.) Shug says that this is the majority rule, but it is wrongly decided. There is loss of enjoyment whether you’re aware of it or not. The court’s rationale is inconsistent with the rest of tort law. Con: The McDougald case creates a gap in liability: a more serious injury results in lower liability for the defendant because the plaintiff isn’t aware of the loss. Single Recovery1. Generally

In the ordinary case the plaintiff gets only a single recovery, providing compensation not only for past but also for future losses, if any.

The principle of single recovery requires the jury to “discount to present value” awards made for future losses by awarding less than the absolute dollar amount of those losses. The reason for this requirement is the “time” value of money that is invested today for future needs. Pro: The case doesn’t go on foreverCon: There is less accuracy in estimating future damages2. Risk of Future Injury

There is no independent cause of action for losses that have not yet occurred. Once tangible physical loss has taken place, compensation for all future losses that will more probably than not result from that loss are also recoverable. But if no physical loss has yet occurred, the fact that the plaintiff will more probably than not suffer physical loss in the future is not actionable. (Depass v. U.S. - denied recovery for increased risk of cardiovascular disease caused by traumatic amputation because court claimed study was inconclusive, even though government did not dispute the expert’s claim that this connection was statistically valid)Con: Posner dissented to Depass with an under-compensation and corrective justice argument – tort law should put victim “as nearly as possible in the position he would have occupied if the tort had not been committed.”Damage Control1. Remittitur: Plaintiff gets option to avoid expense of new trial by accepting reduction in damage award2. Additur: Defendant gets option to avoid expense of new trial by accepting increase in damage award3. Structured settlements: paying damages in periodic installments, less need to predict future inflation, meant to prevent early dissipation of an award, addresses plaintiffs who die prematurely to prevent survivors from receiving a windfall4. Damage caps: many courts have struck them down, but not CA.5. Radin, “Compensation and Commensurability:” proposes conception of payment as way to bring the wrongdoer to recognize that she has done wrong and to make redress. Not restitution or rectification. Showing the victim that rights are taken seriously—not a “trade” for the harm.6. Chamallas, “Architecture of Bias:” devaluation of black life, women’s activities. Devaluation of emotional distress and relational injuries because linked with females.

C. Punitive Damages In exceptional cases, the plaintiff can recover not only compensatory damages, but also

punitive damages that are designed to punish the defendant. GenerallyIn BMW v Gore the Supreme Court articulated three factors to be used in evaluating the

constitutionality of a punitive damages award:

1. the degree of reprehensibility of the defendant’s act;2. the disparity or proportion between the harm or potential harm resulting from the defendant’s act and the amount of damages awarded;3. the difference between this remedy and the civil or criminal penalties authorized to punish defendants in comparable cases.

In State Farm, the court quantified the second factor, holding that few awards in which there was more than a single-digit ratio between punitive and compensatory damages would satisfy due process. Thus, punitive damages awards that are more than 9 times greater than compensatory damages are, in effect, presumptively unconstitutional.

Limitations1. The defendant’s wealth is irrelevant to the calculation of punitive damages.None of the purpose of punitive damage awards --

(makes sure that the tort is not under-deterred if it is concealable, heads off violent self-help, ensures full compensation, relieves pressure on the criminal justice, channels transactions through the market, expresses community abhorrence)

-- depends critically on the defendant’s wealth or income. Plaintiff has no burden to introduce evidence about the defendant’s wealth, but the plaintiff can introduce that type of evidence if they want. (Kemezy v Peters- held that there was no burden of production on the plaintiff with respect to the defendant’s wealth.)2. Punitive Damages must be Proportional to the Compensatory Damages

In State Farm, the court quantified the second factor, holding that few awards in which there was more than a single-digit ratio between punitive and compensatory damages would satisfy due process. Thus, punitive damages awards that are more than 9 times greater than compensatory damages are, in effect, presumptively unconstitutional. (State Farm v Campbell.)3. Punitive Damages can be awarded only with reference to the Plaintiff’s Harms

Punitive Damages cannot be used to punish a defendant for an injury that it inflicts upon non-parties to the litigation. (Phillip Morris v Williams) (State Farm v Campbell)

V. DEFENSESDefenses based on plaintiff’s conduct may reduce or eliminate the defendant’s liability for

the plaintiff’s harm. The defendant bears the burden of pleading and proving the facts necessary to support one of these defenses. A. Contributory Negligence (Minority/Defunct)

GenerallyContributory Negligence is the failure of the plaintiff to exercise reasonable care to

protect himself or his property from the risk of harm. Historically, if the defendant proved that the plaintiff was contributorily negligent, it was a complete bar to recovery.

However, the contributory negligence rule is no longer in effect in the vast majority of jurisdictions. Pro:1. Fairness: It would be unfair to impose liability on the defendant when the plaintiff has negligently contributed to his own injury. 2. Deterrence: It deters plaintiffs from acting negligently too.3. Judicial Economy (best argument): It’s easier and clearer than comparative negligence. It gives the judge a check on jury power. It protects infant industry.Con:

1. Fairness: It is unfair to completely relieve the defendant of liability merely because the plaintiff was also a cause of his own injury.2. Deterrence: Pain already deters plaintiffs enough.Exceptions1. Burden shifted to the defendant, send it to a jury.2. Greater blame: If the defendant acted intentionally or recklessly, there is no bar.3. Last chance: If the defendant had the last chance, the plaintiff’s negligence is not a bar.4. Safety Statute: If the defendant violated a safety statute, the plaintiff’s neg. is not a bar.5. Property rights protections: One is allowed to be contributorily negligent in normal use of one’s own land.

B. Comparative Negligence (Majority)GenerallyUnder comparative negligence, the contributory negligence of the plaintiff does not necessarily bar recovery. Instead, plaintiff’s recovery is reduced in proportion to the amount of negligence attributable to him. (Li v Yellow Cab - held that a plaintiff was not barred from recovery just because she was also negligent – California adopted a pure comparative negligence scheme.)

There are two forms of comparative negligence. 1. Under the pure form, the plaintiff’s negligence is never a complete bar to recovery. Rather, comparative negligence applies regardless of how much more negligent the plaintiff than the defendant. The defendant’s liability is determined in direct proportion to the percentage of the defendant’s fault. Thus, if the plaintiff, is 99% at fault, she can recover 1% of the damages from the defendant. 2. Under the modified form, if the plaintiff is found to be more negligent than the defendant (and under some versions, as negligent), comparative negligence does not apply and the plaintiff’s contributory negligence is a complete bar to recovery. Thus, if the plaintiff is 51% or more at fault, the plaintiff cannot recover at all.

Complications 1. Strictly Liable Defendant = Doctrinal Complexity

In some states, comparative negligence is a defense for a strictly liable defendant; in others, it is not. When comparative negligence is a defense to strict liability, it can operate in one of these ways:

a. Comparative Causation (Bohan v Rizzo – Man injured by a dog, and there was both a comparative negligence statute and a strict liability statute for dog owners. – the Court stated that since the plaintiff had done nothing to knowingly put himself in that situation or provoke the dog, and didn’t create or exacerbate his risk of harm, the defendant should still be held strictly liable.)b. Equitable Apportionment – its unclear what this meansc. Comparative Risk Creation – (Shug’s suggestion When we’re comparing negligence we are comparing risk so it follows that we compare the riskiness of these activities and compare. One example of riskiness is negligence but another one is ultrahazardous activities) I think comparative risk creation is not a good way to apportion liability because it doesn’t comport with the goals of tort law. 1. Some risks are beneficial to society, comparative risk creation wouldn’t account for the reasonableness or utility of a risk. – That would interfere with the goal of optimal deterrence.

2. Comparative risk creation also ignores the fact that some are better cost avoiders than others. Strict liability is often used to provide extra incentives for defendants who are strategically placed to prevent harms to take extra precautions. 3. Also ignores proximate cause/harm within the risk – behavior that was risky wasn’t necessarily related to the harm that occurred – doesn’t serve matching function.

2. Reckless Defendant = Comparative CulpabilityIf the defendant was reckless, damages are apportioned by comparing degrees of

culpability and recklessness is weighed heavily. 3. Intentional Harm by Defendant = Majority – no defense, Minority – Comp. Culp.

If the defendant’s harm was intentional, the majority rule is that the plaintiff’s negligence is no defense and the defendant is still liable for 100% of the damages. (Morgan v Johnson – held that plaintiff’s negligence in being drunk did not mitigate defendant’s intention harm in beating her)

There is a minority rule, however, that states that intentional harm by the defendant should be treated the same way as recklessness and that damages should be apportioned by the intentional harm should be weighed more heavily. (Blazovic v Andrich)

C. Assumption of RiskGenerally

If the plaintiff assumed the risk of harm that he suffered, the defendant is not liable for that harm. (Murphy v Steeplechase – held that a plaintiff could not recover against a defendant amusement because the plaintiff had accepted the obvious and necessary risks of the Flopper ride. VOLENTI NON FIT INJURIA)Complications 1. Express Assumption of Risk by Contract

If a waiver of liability is contrary to public policy, a plaintiff cannot assume the risk of the defendant’s negligence. (Dalury v SKI Ltd – held that a ski resort waiver of liability was void as contrary to public policy.) The factors that might make an exculpatory agreement invalid were enumerated in Tunkl (some or all must apply)

1. “Concerns business of type suitable for public regulation2. Party seeking exculpation is engaged in performing a service of great importance to the public3. The party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming with certain established standards (open for business)4. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against member of public who seeks its services”5. Take it or leave it aspect – standardized adhesion contract makes no provision for a purchaser to pay additional reasonable fees to obtain protection against negligence6. Purchaser is at mercy of seller, “subject to the risk of carelessness by the seller or seller’s agents.”

2. Arbitration Agreementsa. “Courts will not enforce against an adhering party a provision limiting the duties or liabilities of the stronger party absent plain and clear notification of the terms and an understanding consent.” (Obstetrics & Gynecologists Ltd. v. Pepper - Plaintiff, who suffered stroke as a result of BC pill, signed arbitration agreement but had no recollection of signing the form or having the form explained to her.)

b. Courts will not enforce arbitration agreements when they are procedurally unconscionable (Sosa v. Paulos - Court refused to enforce arbitration agreement because it was administered less than one hour before surgery when Sosa was already in a surgical gown. Procedurally unconscionable: “the Plaintiff felt rushed and hurried to sign the documents and did not read them.”)

C. NecessityNecessity is a privilege that may serve as a defense to actions for trespass or conversion.

Necessity refers to the idea that the defendant may have acted reasonably in damaging or destroying the plaintiff’s property in order to avoid harm to himself or his property, but the risk of harm to the plaintiff was not created by the plaintiff.

GenerallyPublic Cases of public necessity arise when there is a risk to the property of a

sufficiently large number of people to make the risk “public” and that risk can be reduced or eliminated by damaging or destroying the property of the plaintiff. In cases of public necessity, the privilege is “absolute;” a complete defense to liability.

Private Cases of private necessity arise when there is a risk to one party or his property only, and this party can reduce or eliminate that risk by damaging or destroying someone else’s property. In such cases the privilege of necessity is said to be “qualified” or “conditional.” The defendant is liable to the plaintiff for the damage done to the latter’s property.

(Ploof v Putnam – held that the necessity of tying up a boat in a storm justified trespass on the dock, so the dock owner was liable for the damage caused by unmooring the boat.)(Vincent v Lake Erie – held that the dock owner was entitled to compensation for damage to the dock when the boat owner docked out of necessity.)

Economic Arguments1. Coase Theorem

“No matter who assigned a property right the parties will bargain for the generally efficient/socially optimal result as long as transaction costs are sufficiently low”2. Calebresi and Melamed

“When transaction costs are high and market bargaining won’t work, the legal system should set property rights along with liability (tort) rules to create incentives and achieve efficiency.”

ALTERNATIVES TO TORT LAW 1. Workers’ Compensation: Liability even without employer’s negligence. Every employer engaged in a certain kind of industry shall be liable for any injury to a worker arising out of (cause and origin) and in the course of (time, place, and circumstances) his employment. No recovery for willful misconduct.

New York Central R.R. v. White : Authorized first workers’ comp statute Employer liable for every accident that occurs at work, whether the employer is at fault or

not and whether the employee is at fault or not. Overruled prior doctrine that employer was only liable to employee for negligence (and when employee was not contributorily negligent).

o Workers’ comp is an exclusive remedy injured worker has no option to sue in tort for his injury, must accept defined benefits (unless intentional tort).

Advantages: Efficient compensation, capped damages, predictability, lower litigation costs, judicial economy, deterrence (employers make workplace safer to avoid accidents)

o Normally, for every $1 of tort compensation, $1.07 of overhead. For WC, however, for every $1 of WC, only $0.23 in overhead (more efficient).

o Strict limits and schedules on compensation recoverable, calculated based on injury and on expected lost earning power, up to a set statutory maximum.

Disadvantages: Fraud is 10% of all WC claims and 25% of all payouts, capture of administrative agencies, no corrective justice (no investigation into who was at fault)

Clodgo v. Industry Rentavision: Court reversed administrative commission no recovery under WC for staple injury because accident unrelated to any legitimate, work-related activity, deviation from work.

o Shugerman: By reversing administrative commission, court basically subverted the entire purpose of WC: to keep these claims out of court; now injured workers will simply appeal commission’s rulings.

2. No-Fault Insurance, No-Fault Compensation Abolish tort claims, liability regardless of fault on payer’s part or victim’s part

o Products: Difficult to apply to manufacturers because they cannot notify ultimate consumers that they’re participating

o Automobile: Mandatory purchase of insurance by potential victims. Pure No-Fault, 1st-Party: Insure yourself for injuries that happen to you. Modified No-Fault: No tort claims for less serious injuries, can only sue if injury

crosses a certain threshold. 3rd-Party: Insure yourself for injuries that you cause to someone else.

o Medical: Difficult because no way to determine/define whether P suffered a compensable harm; impossible to distinguish illness or injury that P already had when seeking treatment from that caused by treatment itself

“Designated Compensable Events” Pafford v. Secretary of Health and Human Services : P alleged that vaccine

caused arthritis, had to prove that vaccine was substantial factor in causing the harm and that harm wouldn’t have occurred but-for the vaccine. Insufficient temporal link between vaccine and harm, so no recovery.

New Zealand Plan: Most radical no-fault plan, abolished all private tort actions for personal injury, replaced with comprehensive scheme that awarded benefits to all victims

9/11 Compensation Fund