Torts Outline 2011

8/2/2019 Torts Outline 2011

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Torts Fall 2011 Outline

NegligenceA.Defendants conduct imposes an unreasonable risk upon another, which results in injury to that other

Four elements to a prima facie case1.DUTY A legal duty requiring D to conduct himself according to certain standards, so as to avoid

unreasonable risks to others2.BREACH failure to conform his conduct to this standard: lack of reasonable care3.CAUSATIONshowing that Ds conduct was the cause (in 2 ways) of Ps injury

i. Cause in Fact: Ds failure to act with reasonable care was the cause-in-fact of the injuryto the P a but-for cause a cause without which the injury would not haveoccurred

ii. Proximate Cause: a close causal linkbetween Ds act of negligence and the harmsuffered by P; D is liable as a matter of policy

4.DAMAGES the injury suffered by P; returning the P to the condition they were in before theharm.

5.Hammontree v. Jenner: Liability of a driver, suddenly stricken by an illness rendering himunconscious, for injury resulting from an accident occurring during that time rests on

principles of negligence.

B.Vicarious Liability1. Shifting liability from A onto B because of some special relationship between the 2;2. respondeat superior doctrine: if an employee commits tort during the scope of his employment,

the employer is jointly liable.3. Employee (applies) vs. Independent Contractors (does not apply)

i. Independent Contractor is hired to produce a certain result but is not subject to control ofthe one who hired him

ii. Employee one who works subject to the control of the person who hired him4. Scope of Employment- acting with intent to further employers business purpose (still applies

when this intent is coupled with personal intent, and if act is forbidden by employer becausedoctrine is irrespective of employers negligence)

5. Christensen v. Swenson: Security guard hits plaintiff car outside gate. The fact that anemployees tortious act was committed outside the property of the employer is not a per sebar to recovery under respondeat superior.

i. Birkner Test:1. what was agent doing? (duties to secure area, driving within area)2. when and where? (she was within hours of employment and in the area of plant)3. why? (take lunch breaks, better for morale serves employers interests)

ii. Arg. FOR Vicarious Liability1. incentive for employers to use practices to minimize accidents2. incentive for employers to be stricter when hiring3. employers can afford to pay for the damages4. E. Independent Contractors (exceptions)

6. Roessler v. Novak: P went to SMH hospital from referral, radiologist at hospital misread scansand P was injured. P sued hospital and all doctors under vicarious liability (radiologist is agent ofSMH), SMH says radiologist is independent contractor therefore not vicariously liable. Newtrial, different standard for doctors portraying as employees.

i. 3-prong scope of employ. test: (1) yes, (2) yes, **(3) reading for hospital OR forradiology company contracted by hospital?


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ii. Apparent authority vs. actual authority- the easiest way to be an agent is to be anemployee of the company--- apparentauthority which the principal knowingly toleratesor permits, or which the principal by its actions or words hold the agent out as possessing

1. only where the principal created the appearance of an agency relationship2. if reasonable person believes they are acting within reason of authority

iii. Restatement of Torts (3)- Apparent Agency--- agency standard: principal may beheld liable for acts of its agent...only if 3 elements are present:

1. representation by principal: hospital never explicitly told P that radiologistworked for them

2. reliance on that representation by 3rd party3. detriment: change in position by 3rd party relying, caused his detriment

C.BREACH- Ds conduct imposed an unreasonable risk of harm on P due to Ds carelessness(NOT about what happened; only about Ds actions without hindsight to what actually occurred werethey reasonable or not)

i. P has burden of proof that D was negligentD. Standard of Care

1. Ordinary Carei. Brown v. Kendall: Dogfight Stick to the eye. D not negligent because it was an accident(lawful and unintentional & exercising ordinary care under the circumstances.

1. Ps burden of proof to show LACK of due care:a. burden ofproduction of evidence to allow a rational fact finder to find

that the facts prove the breachb. burden ofpersuasionyou must persuade the jury by a preponderance

of the evidenceDNo Fault D - Fault

PNo Fault D wins P winsPFault D wins D wins

2. Reasonable Person Standardi. Objective standardii. whether a reasonable person of ordinary prudence would have conducted himself as D

did under the circumstances; would he have: (a) recognized the risk, and (b) have strivento avoid it

iii. Foreseeability of the risk: could D have foreseen that type of risk, therefore should haveprevented against it?

iv. Adams v. Bullock: Boy electrocuted by wire on trolley line when playing. D has areasonable care duty: if P exercised ordinary caution accident would not have happen. Nobreach. couldnt foresee that type of harm, therefore shouldnt be held liable for notprotecting against it

v. US v. Carroll Towing: Ds barge broke away from its ties due to bargees negligence. thebarge collided with another which caused it to sink and the cargo was lost (cargobelonged to the USP); D was negligent, had bargee been aboard during the busy timeand business hours the accident could have been prevented.

1. Learned Hand Theory: liability exists if the BURDEN (B) on D to prevent therisk is LESS than the GRAVITY (L) of potential injury times the PROBAILITY(P) that harm will occur from Ds conduct, and D fails to take the precaution toprevent that risk B < L(P)

2. if the B is less then L(P) = D was negligent in not doing B


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vi. common carriers:1. Bethel v. NYC Transit Authority: my seat collapsed on the bus. No breach;2. Utmost care standard no longer applies, it was determined at a time when

common carriers were more dangerous. There is no difference between utmost carand strict liability. The Court decided that the reasonable person standard allowedfor flexibility of the circumstances.

3. Railroad Casesi. Baltimore & OH RR v. Goodman: Didnt look before crossing the tracks. View was

obstructed so Goodman drove slowly & hit by train and died. D was contributorynegligent D should have gotten out and looked for train

ii. Pokora v. WabashRR: DISTINGUISHED GOODMAN; Looked and listened beforecrossing the tracks, still got hit. Reversed from Goodman because it is a question for jurycant set rules like Goodman because each case is different; too broad in Goodman torequire drivers to get out and lookCIRCUMSTANCES consideration

4. Industry customsi. Andrews v. United Airlines, Inc: The bag fell from the overhead compartment and hit P

in the head. Summary judgment for UA reversed, question for the jury. Could have beenforeseeable and D didnt prove that using the netting was too expensive; others in

industry were using nets, therefore could be Ds negligence; under the circumstancesconsiders industry practices

1. Ds knowledge of the potential risk potential duty of D to discover risks thatare unknown to it to begin with

ii. Trimarco v. Klein: P tenant injured when he fell through glass door in Ds building.Standard of reasonableness based on industry standards of shatter proof glass, or conductunder circumstances? New trial ordered; there was no common law duty on the landlordto replace the glass unless given prior notice-by way of notice or similar accidentquestion for the jury.

E.Statutes/ Negligence Per Se1. Negligence per se doctrine: when safety statute has a close application to the facts of the case, an

unexcused violation of the statute is negligence per se and D cannot argue it was too-high astandard of care

i. Third Restatement 14- an actor is negligent if, without excuse, the actor violates astatute that is designed to protect against the type of accident the actors conduct

causes, and if the accident victim is within the class of persons the statute is designed toprotect

ii. Three requirements:1. D violates statute2. The statute was designed to protect against the same type of accident that occurs3. The accident victim falls within the class of persons the statute was designed to

protect

iii. Martin v. Herzog: Car crash with buggy; no headlights and crossing the middle lane.Plaintiff violates statute requiring lights on buggies. P cant recover because of his ownnegligence per se in causing the accident.

iv. Telda v. Ellman: Junk collectors walking on wrong side of highway in violation ofstatute saying pedestrians must follow traffic laws and gets hit by D; Doesnt followMartin; the statute is NOT a safety to protect others and themselves, just rules of theroad; cannot assume legislature wanted strict adherence when following statute wouldhave put P in their own danger: valid excuse


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F. Proof of Negligence1. Plaintiffs burden of proving that Ds conduct fell below standard of reasonable care

i. P must show Ds(actual or constructive) knowledge of the defect1. Constructive Notice defect is (1) visible and apparent, AND (2) existed for

sufficient length of time for Ds employees (or D) to discover and remedy it2. Slip and Fall Cases

i. Negri v. Stop & Shop, Inc: P slipped on dirty broken baby food jars in the aisle and fell& was injured. D had constructive knowledge ofdangerous condition which caused Psinjuries it was foreseeable that someone would slip and fall if the mess wasnt cleanedup the jars were there for over 2 hours. Stores duty is to clean it up if they hadknowledge..

ii. Gordon v. American Museum of Natural History: P slipped and fell on wax paper onsteps of Ds museum; D did not have constructive notice of danger 1. yes paper wasvisible, BUT 2. no evidence it was there long enough that D should have cleaned it

3. Business Practice Rule: mode of operation- Alternative to Constructive Notice: if the way abusiness is run creates foreseeable risks, the business duty is to take steps to protect againstthemP does not have to show D had notice; Ds burden of proof to negate negligence(that it was taking reasonable precautions under the circumstances)

i. Note Case- Kelly v. Stop & Shop- P slipped on wet, slimy piece of green lettuce at a self-servicesalad bar. Customer doesnt need to prove notice when the business practice ofthe store provides a continuous and foreseeable risk of harm to customers.

G.RES IPSA LOQUITUR: the thing speaks for itself P can point to the fact that an accidentoccurred to allow an inference that D was probably negligent (lower burden for P to prove Dsnegligenceuse it when you cant state exactly what D did that was negligent).. Burden shift to D todisprove negligence. Factors of prima facie case

1. No direct evidence of Ds conduct2. Seldom occurs without negligence3. The instrument that caused the injury is in the exclusive control of the defendant4. Plaintiff is completely free from blame5. Evidence is more accessible to the defendant

i. Byrne v. Boadle (92): P injured by falling barrel from Ds window. D has the duty toprevent barrels from falling out of the window and P doesnt have to prove negligence-the act in of itself is negligence. The only people who can prove negligence is D and theywont do that. (P has made itsprima facie case through res ipsa loquiturinferringnegligence)

ii. McDougald v. Perry (95): P driving behind Ds truck when tire came loose and hit Pscar; res ipsa case. Thistype of accident doesnt happen except for someones negligence,(2) tire was completely in Ds control, and (3) P was not negligent in any way jury caninfer Ds negligence and now D must disprove it

iii. balancing of burdens: P shows little bit of evidence of Ds negligence shifts burden toD to disprove it (with res ipsa); in CA if D can create a rebuttable presumption withevidence that casts doubt on P, burden back to P to prove negligence (D wins); otherstates say the inference is stronger than rebuttable presumption, then Ds burden and Pwins.

iv. Ybarra v. Spangard: P patient underwent surgery and sued all Ds (doctors, nurses, etc.)when he suffered injuries after surgery; P couldnt show WHO was negligent, butSOMEONE was (1st requirement ofres ipsa), P was unconscious (3rd requirement); usingres ipsaall those who were in control of P (2nd req.) and the instrumentalities that caused


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the injury (all Ds) should be called upon to disprove their negligence P cannot berequired to point to which individual caused the injury; was unconscious, unreasonableburden for P BUT Ds are in the position to disprove their own negligence

H.Medical Malpractice: if D has superior level of knowledge/skill due to field, they must act within thatstandard commonly possessed by members of the profession in good standing

1. The professional will not be held to guarantee a successful result. Liable for malpractice only ifhe acts without the requisite minimal skill and competence.

2. expert testimony requirement in these cases so jury knows what the standard SHOULD be isproper to allow the use of expert medical testimony to inform the jurys decision on the standardof care for res ipsa loquiturP cant point to what caused the negligence but the jury has nocommon knowledge of that type of procedure therefore they need expert testimony to bridge thegap)

3. Sheeley v. Memorial Hospital: P underwent procedure and suffered injuries from it, at trial judgeerroneously denied testimony of another doctor as to the knowledge/practices of that type ofdoctor and the procedure; use NATIONAL standards (no longer strict locality rule) anydoctor with knowledge of or familiarity with the procedure, acquired through experience,observation, association, or education, is competent to testify concerning the requisite standardof care and whether the care in any given case deviated from that standard

i. justification for National Standard: medical technology and education of doctors isadvanced far enough to allow doctors outside that specific town or field to testify as tothe standard of care

4. Sides v. St. Anthonys Medical Center-i. Restatement (2) 328D- that a plaintiff in a medical malpractice case can proceed on a

res ipsa theory where the plaintiff offers a medical experts opinion that the injury would

not have occurred in the absence of negligence by defendant.ii. The P got E.coli infection in the surgical site. Case was dismissed because only expert

testimony could prove that this was something that happens only in negligence. D arguedthat P cant claim res ipsa & have an expert witness. Restatement changes that. Reversed.

I. DUTY & ITS LIMITATIONS1. Duty of behaving towards the plaintiff with the degree of care that a reasonable person would in

like circumstances.2. Failure to Act- Law does not impose a general duty to act- generally a person cannot be held

liable for not acting.3. Exceptions to the No Duty to Rescue- Affirmative Obligations to Act BUT there are duties to

act where a special relationship exists between the parties; special relationship types:i. common carriers & inn keepers

ii. public land holders and their invitees (landlord/tenants, school/students, business/invitees, employer/employees in imminent danger or injured)

iii. undertakings- those who have custody of another who has no avenue for self-protection4. Social Hosts normally no duty to act

i. Harper v. Herman: P dived into three feet of water off of Ds boat, D didnt warn him. Perroneously claims that he was in Ds custody which was his special relationship.Rejected by the court; superior knowledge of a dangerous condition by itself, in theabsence of a duty to provide protection, is insufficient to establish liability in negligence.

ii. Voluntary Aid: Farwell v. Keaton: P & D were friends out drinking and D left P in thebackseat to die after a fight. D had a duty to get help because created a specialrelationship with P, an undertaking--- by putting him in the car, giving him ice, and tryingto wake him up. D also CREATED a special relationship ofcompanions on a social


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venture. D knew or should have known of Ps peril, he has a duty to render reasonablecare under circumstances D was the proximate cause [NOT cause-in-fact attacker] =Ds negligence proven

iii. most states have good Samaritan laws to encourage people to help without fear of beingheld negligently liable if they dont do enough

5. Duty to Third Parties:Randi W. v. Muroc Joint Unified School District: P is 13-year old girlwho sued D (employers of teacher who sexually abused her) for putting affirmative

recommendations in his file therefore he was hired by her school. Liability may be imposed ifthe recommendation may account to affirmative misrepresentation half-truths are believed toamount to the whole truth by future employers with recommendation letters = lie(was NOTnondisclosure [which carries no duty without a special relationship] because the futureemployers relied on the recommendations and where there was SOME recommendation, itshould have been complete and not misrepresentation of the truth) dont have to offerrecommendation so once they do, it must be honest.

i. Restatement 310, 311, 315- one who negligently gives false information to another issubject to liability for physical harm caused by action taken by the other in reasonablereliance upon such information, where such harm results to the other, to such thirdpersons as the actor should reasonably expect to be put in danger by the action taken.

ii. duty to prevent others from future harm through their actions considerations (factors):1. foreseeability of harm: evaluate more generally whether the category of negligent

conduct at issue is sufficiently likely to result in the kind of harm experienced thatliability may appropriately be imposed on the negligent party (NOT specific to thefacts of the case)

2. degree of certainty that P suffered the injury3. closeness of connectionbetween Ps injury and Ds conduct4. moralblameof Ds conduct: to be determined at trial could be:

recommendations + failure to disclose facts reasonably necessary to avoid orminimize risk of further harassments or abuse could be characterized as morallyblameworthy

5. policy of preventing future harm: definite public policy interest in preventingsexual assault on children yes a duty to the third party to prevent possible harmexists for former employers when writing recommendation letters to notmisrepresent facts in describing qualifications and character of former employees

6. extent of the burden on D and consequences on community of imposing a duty ofcare with resulting liability if breached, AND

7. insurance coverage: availability, cost, and prevalence of insurance for the risk:should have written no comment or full disclosure letters BUT liability cant

be imposed only for a failure to act or nondisclosure in the absence of somespecial relationship

iii. Tarasoff v. Regents of the UC: D Therapist failed to warn P that patient was obsessedand threatened to kill her. D requested he be detained, his supervisor ended detainment,nobody warned P. D (university) had a duty to warn P of the possible danger rule:once a therapist has determined or should have determined under professionalstandards that a patient poses a serious danger of violence to others, he bears a dutyto exercise reasonable care to protect the foreseeable victim of danger; consider 7factors, especially foreseeability; special relationship requirement to impose a duty; thespecial relationship was between the therapist and the man extends to the 3rd party.


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1. Special relationship (Rest. 315-320): : a duty of care may arise from either aspecial relation between the actor and the 3rd person which imposes a duty uponthe actor to control the third persons conduct or a special relation between theactor and the other which gives to the other a right of protection

2. There is an affirmative duty to protect the 3rd person when a therapist knows apatient is going to harm the 3rd person (consider: is the 3rd person easilyidentifiable by therapist?)

3. Professional inaccuracy in being able to predict the patients behavior does NOTnegate the duty to protect threatened victim b/c of gravity of possible harm(public policy argument)

J. Policy for NO Affirmative Duty to Act:1. Policies that can determine that no duty exists, even when the actor was negligent. Courts limit

crushing liability Restatements (3) 7b categorical, bright-line rules of law applicable to ageneral class of cases.

2. Non-customers: Strauss v. Belle Realty: P felled on dark steps in the basement in D apartmentbuilding when Con Ed had a power outage. P sued both D and Con Ed. Court held Con Ed oweno duty to P even though his injuries may have been foreseeable, when Con Ed was not in acontractual relationship with P. To prevent crushing liability to any tenant of any building that

Con Ed was in contract with the owners of,court limits liability to only the owners of thebuilding.

i. Note- Moch case- denial of benefit not a commission of the wrong (company didntprovide adequate water supply to the city, so P building burned downed when enoughwater wasnt supplied to fire hydrants).

3. Social Hosts:Reynolds v. Hicks: P was injured in car accident because of an intoxicated minorwho was drinking at a weeding. The P sued the social host (bride & groom) for furnishing liquor.Social hosts are NOT liable to 3rd parties because they are not commercial vendors therefore(dram shop) laws placing liability on vendors to 3rd parties do not apply because social hosts arenot as capable of handling their guests and consumption of alcohol to be liable to 3RDPARTIES (Hansen v. Friend Social hosts liable to MINORS who injure themselves as a

result of being given alcohol; Burkhart v. Harrod NOT liable to those of age)i. Implications of social host liability: so much more wide sweeping and unpredictable in

nature than are the implications of commercial host liability4. Kelly v. Gwinnell: Zak (employer) served Gwinnell (employee) alcohol and then allowed

him to drive home. Gwinnell hit and injured Kelly on his way home. Kelly sued Gwinnell

and Zak for negligence. Zaks summary judgment was reversed. Social hosts who allowguests to become intoxicated and then drive, may be liable for injuries caused by the

guests negligent drunk driving.

K. DUTIES OF LANDOWNERS1. Trespassers no duty to a trespasser2. Licensees enters with permission--- owed the duty to make dangers that are known safe

through a warning or fix it--- no duty to inspect3. Invitees have reason to believe that the premises has been prepared for home owed the duty

of inspection to find hidden dangers, and affirmative action to remedy such conditionsi. No duty to open and notorious dangers except attractive nuisance

ii. Open to publiciii. Business purposes or visitorsiv. Some type of interest in the visitor


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4. Carter v. Kinney: P slipped on the ice at Ds house for bible study; D shoveled the snow, butdidnt know that there was ice. P was licensee D only had duty to warn him of knowndangers; social guests are only licensees therefore D had no duty to discover unknown dangersand protect P from themP wasnt there for any material benefit ofD

5. Heins v. Webster County: P slipped in entrance of Ds hospital when went to visit his daughterwho worked there and also was discussing with hospital about playing Santa there. Court shouldabolish the common law distinction of licensee-invitee & use a general duty of reasonable care

to all non-trespassers foreseeability--- 7 factors for the fact finder if owner took reasonablecare to protect lawful visitors from harm:

i. foreseeability of harmii. Ps purpose for being there

iii. time, manner, and circumstances for which P enterediv. use of the premisesv. reasonableness of the inspection, repair, and warning

vi. opportunity and ease of repair or giving warningvii. burden on owner in terms of inconvenience/cost of protection (** like Learned Hand

B


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i. grounds for govt liability: where a govt activity provides services and facilities for theuse of the general public (highways, buildings, etc.) in the performance of themunicipality, the ground for liability is in the provision of the services for the general useof the public

2. Riss v. City of NY: P said police failed to protect her because her ex was harassing her and theydid nothing. Municipality is NOT liable to P for failure to protect member of the public--- courtscannot create an extended duty to protect the entire public from every possible harm

i. Cuffy(neighbors fight, police didnt show up) factors to consider in establishing aspecial relationship between municipality and the people which may allow liability:

1. assumption by the municipality through promise or actions, of affirmative duty toact on behalf of injured party

2. municipalitys agents knowledge that inaction could lead to harm3. direct contact between municipalitys agents and injured party4. partys justifiable reliance on municipalitys undertaking

3. vicarious liability for its agents?4. Lauer v. City of NY: Citys Medical examiner ruled 3-yr.-olds death homicide, city investigated

his father; M.E. later changed the death cert. but never alerted police or father. 17 mos. laterfather found out and sued. City is not vicariously liable; P did not establish a duty that D owed

him since P wasnt of the special class of persons that the statute requiring M.E.s behaviorrequired a duty for; its not enoughto say that as a citizen the govt owed you a duty needspecial relationship that shows a specific duty; though ministerial act of M.E. eliminatedimmunity, did not CREATE liability

i. discretionary acts: conduct that requires exercise of reasoned judgment if its thistype of act agent was participating in, NEVER vicarious liability on municipality

ii. ministerial acts: conduct requiring adherence to a governing rule with compulsory resultdoesnt guarantee vicarious liability, ONLY eliminated govt. immunity

5. qualified immunity (Weiss standard)----- find this in the textbooki. Freidman v. State of NY[247]: 3 cases involving personal injury due to unsafe road

conditions where P alleged D did not maintain them; rule: when considering a

municipalitys duty to the public to maintain roads, court gives QUALIFIEDimmunity to protect against courts over-reaching intrusion into how municipalitysspend $/allocate resources; may be held liable when study is inadequate, if it has beenmade aware of a potential danger, it has a duty to study it and potentially remedy it, andduty to re-evaluate previous problems

1. No second guessing the government6. Federal Tort Claims Act (1946) [248]: where the US, if it were a private person, would be liable

to P in accordance with the law of the place where the act occurred, then district courts haveexclusive jurisdiction of civil actions for money damages for injury or loss of property or deathcaused by a negligent or wrongful act or omission of an employee of the federal governmentwhile acting within the scope of his employment

i. Waiver of sovereign immunityii. Negligent & wrongful conductiii. Cope v. Scott: P injured on highway that govt. knew was dangerous and didnt put signs

up about or maintain the road; issue: is road maintenance and signing discretionary(govt. immunity)?; hold: maintenanceyes (immune), signingno (liable);discretionary exemption in FTCA used to prevent courts from 2nd-guessing govt.sbalancing ofeconomic, social, and political factors; test to determine if the action isexempt from suit under discretionary exemption:


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1. if a statute, reg., or policy specifically prescribed a course of action for anemployee and the employee follows it it is a discretionary function(immunity); if employee doesnt follow the rule, govt. not exempt

2. where employee has a choice of action (no policy exists), the action is of thegeneral nature and quality that Congress intended to shield from tort liabilityonly those grounded in social, economic, or political goals

M.CAUSATION- Was Ds negligence the cause of Ps harm 1. Cause-In-Factthe actual causeBUT-FOR Ds negligence, the injury would not

have occurredi. Rest. 26: liability only exists where Ds actions were a factual cause of Ps injury

a but for cause (cause in fact) is ALWAYS a factual causeii. NY Central RR v. Grimstad: D (originally P) was barge master, knocked overboard, wife

went to throw lifesaver but there was none, he drowned; P (barge owner) CAUSED DsdeathP didnt show that Ds negligence (in not having a lifesaver) CAUSED thedeath because but for the lifesaver, P may have died anywaycant prove that if thelifesaver had been there, P wouldnt have drowned

1. Haft v. Lone Palm Hotel note case: father and son drowned at pool b/c nolifeguard was on duty but hotel didnt post sign warning not to swim w/outlifeguardhad a lifeguard been there, cant guarantee that the deaths wouldnthave occurred; ALSO: burden of proof on D to prove NOT causation (alsocomes in b/c nobody was around to see the deaths therefore if burden is on P [likein proximate cause] it hinders P because the lack of proof was Ds fault sincenobody was there to see it)

2. burden of proof on P to prove that D actually caused his injury bypreponderance of the evidence just has to show it is PROBABLE that theinjury would not have occurred without Ds act

3. with more than 1 cause, reasonable certainty rule: If 2 or more possiblecauses exist, for only 1 of which a D may be liable, and a party injured establishesfacts from which it can be said with reasonable certainty (essentially same as

preponderance of the evidence) that the direct cause of the injury was from Dsact of liability, then P has complied with burden of proof (Stubbs)

iii. Stubbs v. City of Rochester: P contracted typhoid fever from contaminated water becauseofDs negligence. Trial court issued a nonsuit. Reversed for new trial because there isenough evidence to show that D MAY have been the cause of Ps disease.Its toohigh a requirement for P to DISPROVE all the other possible causes that may not yethave been ascertained.

1. expert testimony: question of courts discretion as to admittance of experttestimony

2. JUDGES AS GATEKEEPERS:GE v. Joiner: decision to admit experttestimony is left to discretion of trial judge and will be overturned when

determined manifestly erroneousmade the courts more strict on allowingcertain expert testimony

3. Daubert tests at first only scienceextends to specialized knowledge:a. admissibility test: expert testimony must be BOTH:

i. reliable, ANDii. relevant

1. can theory be tested with scientific method (and has)2. has theory been subjected to peer review


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3. for a specific technique, what is the known rate of error4. is the theory generally accepted

b. sufficiency test: is the evidence sufficient/clear enough to prove the caseiv. Zuchowicz v. US: Dr. at naval hospital told P to take 2x max dosage of medicine and P

developed PPH (very rare) which causes death without transplants, put on list, becamepregnant, 1 month after birth died. Expert testimony admittedfollowDaubertPproved that the dosage was more than likely the cause of Ps death.

1. Ps burden of proofto show that Ds action was a SUBSTANTIAL FACTOR inbringing about Ps injury: if (a) a negligent act was deemed wrongful because thatact increased the chances that a particular type of accident would occur, and (b) amishap of that very sort did happen, this was enough to support a finding by thetrier of fact that the negligent behavior caused the harm

2. but-forcause: Ds act in giving P was the source of Ps death AND D madenegligent overdose

a. if the causal link is proven strong enough by P, burden to disprove itshifts to D to deny but-for cause, showing in the actual cause, thenegligence was NOT a substantial factor

b. Ds negligence was proximate cause of harmv. Loss of Chance Doctrine: prior to the negligence, there was a chance that P would have

been better off with adequate care and BECAUSE OF DS NEGLIGENCE, that chancehas been lost; the injury is NOT furtherance of injury, BUT IS the lost opportunity of aBETTER result (with adequate care)

1.Matsuyama v. Birbauma. Dr. did not refer P patient for further care for pains he was complaining of

until the chance of living was reduced to 37.5%.b. it was too late for the tests ordered to detect the problem that was

developing and potentially save the leg; issue: does lost chance doctrineapply?; hold: NO yes should recognize it as a claim, BUT, P did NOTprove it on these facts expert testimony could not state to a

REASONABLE DEGREE OF MEDICAL PROBABILITY that withimmediate use of the exams (without Ds negligence), the leg would havebeen saved therefore P did not suffer loss of chance of a healed legDs negligence fails on but-for causation(injury was more than likelyNOTthe cause of Ps injury [loss of chance]) reasonable probability =preponderance-of-the-evidence standard for Alberts

c. loss of chance claims would be VERY rare for something outside ofmedical malpractice

vi. Joint & Several Liability- Traditionally: pre-comparative fault defense/liability)joint & several liability = if multiple Ds are found to be the proximate causes of an

indivisible (no apportionment of the harm) harm to P, each D is found to be

responsible for the ENTIRE harm to P; P can sue Ds together OR separately andrecover the full extent of the damages from EITHER one

1. where Ps total damages = $50, P can get the TOTAL $50 from either D1 or D2insolvency of 1 D does not matter b/c P can get full recovery from the

other (but cannot collect twice, obviously)

2. this also puts burden of pursuing other tortfeasors (Ds) on D contributionsuits to recover percentages of fault from other Ds do not involve P anymore

once P has recovered the full amount from 1 D


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3. unfairness argument against J&S: insolvency: jury determined fault to be D175% and D2 25%, if D1 was insolvent, P could get 100% recovery from D2

where he was only 25% liable for the damages4. new jurisdiction changes:

a. about 12 states abolished J&S entirely solvent Ds responsible ONLYfor their percentage of fault share of damages

b. about 12 states abolished J&S in cases where D is less than a certainpercentage at fault (generally, threshold = 50%)

c. CA (and others) retain J&S for ECONOMIC damages but NOT for non-economic damages

d. some states abolished completely when P is partially at faulte. some retain J&S but reallocate the percentage share of any insolvent D

to the other parties in proportion to their respective shares of fault

(UCFA)f. some have abolished in many areas, but keep it in only specific torts

(toxic & environmental torts)

5. Theories of J&S Liability: (1) Alternative Liability (Summers), (2) ConcertedAction (Drag Racing)

6.Alternative Liability: Summers v. Tice: P and Ds were hunting and both Dsshot P; one in lip and one in eye; could not identify which shot from which

gun injured his eye; both Ds were the legal (proximate) cause of Ps injury?;Ds burden to divide proportional liability or point to who was more

liable then the other (they are in a better position to be able to prove it)

a. alternative liability puts burden on D to either defend themselves oridentify the more-at-fault D

b. kind of like res ipsa loquiturin Ybarra b/c SOMEONE was negligent, Pdoesnt have to say who to recover at all; different from Ybarra, thereP was unconscious so COULDNT say who was negligent

7.Several Liability (vs. J&S): future Plaintiffs:

Hymowitz v. Eli Lilly & Co.: P arechildren of mothers who took DES, a drug produced by D though there were

many manufacturers of the drug, D are some of them (all are unknown), drug

caused latent defects on children; issue: summary judgment for P?; hold:

YES

a. potential problems: (1) difficulty of identifying the manufacturer ofthe drug each mother took, and (2) statute of limitations bars

recovery from many future Psbecause the harm doesnt becomeapparent until after years run out

b. why alternative liability does not work: too many manu., many ofwhom are no longer identifiable or out of business, cant tell whos pill

was what color and what woman took what color pill, etc.

Ds are inno better position to identify which D is at fault in which case then P is

c. Concerted Action liability: J&S liability based on Ds all having anunderstanding, express or tacit, to participate in a common

design/plan to commit a tortious result (drag racing cases)would

not work here b/c though companies may have had same goal of

selling the drug, they were not working together and did not intend to

commit a tort

d. ONLY WITH LATENT INJURY CASES (where injury doesnt become


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apparent until time passes and P cannot tell immediately that it will

happen if it could, P should be able to identify the specific D manu.)court applies MARKET SHARE THEORY: several liability ONLY(if

companies that contributed the most are bankrupt, P can only recover

what remaining companies shares are): limit Ds share of liability toits market share contribution of the drug belief that it will in the

long run be roughly equal to the harm it caused, based on NATIONAL

not local market (local doesnt work maybe Ps mother moved, etc.)i. to correspond to the overall culpability of each D measured by

the amount of risk of injury each D created to the public-at-

large equitable way to provide P with the relief they deserve

while also rationally distributing the responsibility for Psinjuries among Ds

ii. market share liability applies ONLY WHERE GOODS AREFUNGIBLE: products are exactly identical in make-up making itunreasonable and impossible to give P burden of identifying whichmanu. made it

iii. will NOT hold a D liable if it can prove that it did not participatein the marketing scheme of DES for pregnancy

iv. D CANNOTavoid liability by trying to prove Ps mother didntingest their specific pill

v. court gets around statute of limitations with statute of repose:allows P 1 year of time to discover injuries are related to DES andtherefore join lawsuits to recover

vii. Environmental TortsToxic Harms (in NJ, environmental torts have several liability);Problems:

1. Identification: toxic harms have time-lag issues and its a costly enterprise thatrelies on types of evidence and probability judgments which can be regarded asill-suited to traditional resolution through the adversary process to try an identify

which caused whata. question becomes: did P suffer an identifiable harm that can be isolated

from risks of everyday life2. Boundaries: the accident/disease distinction victims of exposure to some toxic

harm not yet sick fear that it is only a matter of time before they show signs ofpathology, in utero exposure is an overriding concern, and generations not yetconceived may suffer genetic damage

a. cant define aggregate exposure for futureb. extent of harm is hard to measure b/c of need for post-exposure treatmentc. huge amount of unidentified victims

3. Source: who to blame? Who is the cause? So many producers and insurers4. medical monitoring recovery in class actions?: Bower v. Westinghouse Electric

Corp. [390]: issue: can a P who does not allege a present physical injury assert aclaim for recovery of future medical monitoring costs where such damages are theproximate result of Ds tortious conduct?; hold: YES refused to treat physicalharm as a necessary condition to allowing medical monitoring costs to be granted;allowed because: (1) public health interest for monitoring individuals exposed totoxins to decrease risk of disease spreading, (2) deters irresponsible discharge oftoxins by Ds, (3) availability of a substantial remedy before the consequences of


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Ps exposure are manifest may have beneficial effect of preventing serious futureillness (reducing overall costs in future), and (4) societal notions of fairness andjustice

a. to make a medical monitoring claim, P must show:i. P, relative to the general public, has been significantly exposed to

ii. a proven hazardous substanceiii. through the tortious conduct of Div. as a proximate result of the exposure, P has suffered an increased

risk of contracting a serious latent diseasev. the increased risk makes it reasonably necessary for the P to

undergo periodic diagnostic medical exams different then whatwould be described in absence of exposure

vi. and monitoring procedures exist that make the early detection ofdisease possible

2. PROXIMATE CAUSE- the legal cause an actual cause that is asubstantial factor(foreseeability test) in the resulting harm; where a cause may be too far-fetched to be consideredby the court to be the legal cause of Ps injuries (does NOT presuppose that D was not negligent[they were] however it is too far down the chain of causationfor P to blame THAT Ds

negligence for Ps injuries): 2 views of Proximate Causei. Direct Causation(old view)/Hindsight Theory-(Dellwo v. Pearson): a D is liable for

all consequences of their negligent act, provided that these consequences are NOT due inpart to superseding intervening causes(that cancel Ds liability) no matter howfar-fetched or unforeseeable, D is still held liable for Ps injuries

1. In Re Polemis: P chartered ship to D, D negligently dropped a plank into the holdwhile unloading ship, plank struck a spark, and spark ignited the petroleum shipwas carrying which created a fire that destroyed the ship; issue: Ds negligence inhow it unloaded the ship theproximate causeof Ps injury (destroyed ship)?;hold: YESit is immaterial that the causing of the spark by the fallingplank could not have been reasonably foreseen; GIVEN THE BREACH OF

DUTY WHICH CONSTITUTES THE NEGLIGENCE, AND GIVEN THEDAMAGE AS A DIRECT RESULT OF THAT NEGLIGENCE, THEANTICIPATIONS OF THE PERSON WHOSE NEGLIGENT ACT HASPRODUCED THE DAMAGE ARE IRRELEVANT

a. direct causation often attacked b/c it creates limitless liability for Db. OVERTURNED BY WAGON MOUND

ii. Foreseeability View (new): D is liable ONLY for those consequences of his negligencewhich were reasonably foreseeable at the time he acted (NO HINDSIGHT)

1. Wagon Mound: Ds ship spilled oil into the bar which touched Ps wharf, Psmanager stopped work then saw it was safe and resumed, 2 days later moltenmetal dropped from Ps ship while working and it touched a cotton rag floating in

the water causing a fire that burned the ship (and later dock in Wagon Mound 2 strange result: P wins; how can it be foreseeable that a dock would burn butnot a ship?); issue: was Ds negligence in spilling oil theproximate causeof Psinjuries?; hold: NO REJECT DIRECT CAUSATION (Polemis) IN FAVOROF FORESEEABILITY RULE:

a. can a reasonable man foresee the consequence?i. Yes liability

ii. No NO liability DESPITE D being proven negligentb. P argued here that it was NOT foreseeable to D because if it was


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foreseeable, why was P working with torches when there was oil in thewater? could lead to contributory negligence argument

2. Linking Principle: although the Ds negligence undoubtedly served to place theinjured P at the site of the accident, the intervening act was divorced from and notthe foreseeable riskassociated with the original negligence (Ventricelli v.Kinney System Rent A Car [notes])

a. causal link: even if Ds wrong was a but for cause of the injury, noliability ensues UNLESS Ds wrong INCREASES the LIKLIHOOD ofSPECIFIC HARM

i. speeding car casesspeeding Ds who but for their velocitywould not have been at the particular spot when children darted outinto the road, etc. and were hit, are NOT LIABLE because theinjury of hitting a person was NOT the type of injuryforeseeable to a speeding driver reasoning: had they beendriving at a normal speed, hitting a person who runs out into theroad is NOT a foreseeable consequence

iii. Superseding Causes: a force which takes effect afterDs negligence, and in addition toDs negligence in produced Ps injury and is sufficient to prevent Ds negligent act from

being theproximate cause of the injury1. Foreseeability Test: a superseding cause is one where NEITHER the intervening

cause NOR the harm was FORESEEABLE D has no liability; the risk of harmdue to the intervening cause (which does NOT necessarily eliminate Ds liability)

must be INCREASED in order to be a superseding cause (and THEN iteliminates Ds liability)

2. Scope of the Risk: does the risk of harm created by Ds negligence extend to anintervening criminal act by a 3rd party?

a. Doe v. Manheimer: P was raped by unidentified 3rd party when meter-reading on Ds property; alleged that because D negligently created a safe

spot for criminal activity with not maintaining their bushes, in an area

prone to crime, D should have foreseen that a violent crime could haveoccurred there and not been negligent to prevent it; D is not the proximatecause of injuries---too far an application of the scope of the risk

i. to be within the scope of the risk, the harm ACTUALLYsuffered must be of the same GENERAL TYPE as that whichmakes the Ds conduct negligent in the first place might havebeen some injury from coming in contact with overgrown bushesbut NOT criminal acts of 3rd parties

ii. court will NOT create catalyst liabilityiv. Unforeseeable Victims and prevailing Reasonable Foreseeability View: only

foreseeable consequences may be recovered for; if Ds negligence DID impose an

unreasonable and foreseeable risk of harm on X (it was the proximate cause of Xsinjuries) but did NOT pose an unreasonable risk of harm on P, can P tack on Dsnegligence against X and hold D liable for Ps injuries as well?NO

1.Palsgraf v. Long Island RR: a man was running with a package of fireworks(wrapped in newspapernobody could see it had fireworks in it) to catch Dstrain, almost fell, Ds employee pushed him on and the package fell and exploded,P was waiting for a train down the platform when the explosion knocked scalesoff the wall of the platform and hit P and injured her; issue: if D was negligenttoward someone (the man with the package), could that negligence hold D liable


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to P (someone else where the injury that she suffered was NOT foreseeable fromDs negligence, nor was her being a victim foreseeable)?; hold: NO

a. Ds conduct may have been negligence to the man, but NOT a wrong to P(it was no negligence at all to P)

i. foreseeability and duty: if the harm was not willful (intentional),P must show that the act as to him had the possibilities of dangerso many and apparent (foreseeable) as to entitle him to be

protected against the doing of it (duty) though the harm wasunintended

1. nothing in package gave notice that it had the potential tocause harm to anyone else foreseeability

2. duty: P must show a wrong to HERSELF by showing thatD had a duty of care to protect P from foreseeable risk andby pushing the man, D breached that duty

(a)no breach of duty (to P) when the risk is not withinthe range of apprehension

(b)question: was the risk within the range ofapprehension yes = D is liable; no = no liability

2. Andrews Dissent: duty of care is to society at large, not just an individual person;similar to direct causation view from Polemis: when an act imposing anunreasonable risk of harm to the world at large occurs, not only is he wronged towhom harm might reasonably be expected to result, but he also is harmed if he isin fact injured, even if he might be outside the general danger zone

3.Substantial Factor and Eggshell Plaintiffs: rule: D takes the P as he finds him liability iscreated for all consequences of Ds actions

i. Benn v. Thomas [401]: D rear-ended Ps car, P had risk of heart attacks, had had onepreviously, died 6 days later of complications, after suffering a bruised ankle and chestbruising, in the hospital; issue: jury instructions on substantial factor and eggshell Ps?;hold: YES instruct on eggshell Ps

1. eggshell P rule allows that once P has established that D caused some injuries to P,D is liable for the full extent of those injuries, not JUST those that wereforeseeable

a. cause in fact issue would he have died anyway without the accident?(cant tell) but the stress FROM the accident DID cause the heart attack

which ultimately killed himb. proximate cause issue D argued the heart attack was an

unforeseeable consequence of the accident caused by his negligence;REJECTED by court with eggshell P rule

c. Eggshell P does NOT apply to emotional distress cases because tomake claim for negligent infliction of emotional distress, the test is

whether the ORDINARY person (objective test) would be causedemotional distress eggshell P is the exact opposite because itssubjective to the individual P

2. substantial factor: original jury instruction made it TOO EASY to relieve D ofliability by saying that the real substantial factor causing Ps death was the heart

attack, not the accident must instruct jury on eggshell P therefore4.Rescue: if D creates a situation in which a rescue is necessary, he is liable to any injuries that

come to P in an attempt to rescue from that negligence (in ADDITION to being liable to the Pwho needed rescuing) deciding to rescue someone is NOT a superseding cause (which would


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relieve D of liability) BECAUSE D CREATED THE NEED FOR A RESCUEi. Wagner v. International Railway [notes 434]: even if D could not foresee that a rescue

would be needed, by creating the situation in which one WAS needed, he can be heldliabledanger invites rescue rescue is the child of the occasion

ii. Fire rule unique to NY: Ryan v. New York Central RR [437]: D is not liable for a fire thatspreads from its building to another and burns it down because the spreading depends onaccidental factors (superseding causes) and D will not be held liable for them

iii. Professional Risk Takers rule: a professional risk taker (firefighters, police men, or otherpublic employees who are paid to assume risks) may NOT recover for injuries causedby anothers negligence where the negligently-created risk was the very reason for Pspresence on the scene

N.DEFENSE1. D claims that b/c of some fault of P their liability should be eliminated ( contributory

negligence, and assumption of the risk), or reduced (comparative negligence)2. Contributory Negligence: Plaintiff is negligent in not taking reasonable care to protect himself,

and whose negligence contributes proximately to his injures barred from recovery acomplete defense most states have replace it with comparative negligence

i. Elements of the defense that D must prove:1. Ps duty owed is to HIMSELF (rather then a negligence claim where D owed a

duty to others)the standard of care of this duty is determined by the triersadapted risk calculus to determine the reasonablenessof Ps conduct

2. P breached that duty3. Ps negligence is a proximate causeof Ps injuries/harm4. burden on D to prove Ps contributory negligence

3. Limitations on Contributory Negligence defense:i. Recklessness: if the misconduct of D was more serious then mere negligence (ie. reckless

or willful misconduct), the appropriate defense can ONLY be contributory recklessnessor contributory willful misconduct

ii. Last Clear Chance: P behaved carelessly and got into a dangerous situation leading tohis injury BUT D had an opportunity to avoid the injury to P that P did not have (Ds lastclear chance), then D cannot assert contributory negligence defense

1. D has to have actual knowledge of Ps danger in time to avoid the harm byexercise of due care to invoke this doctrine to defeat contributory negligenceclaim

iii. Ds failure to utilize their last clear chance to avoid injury to P acts as a supersedingcause to Ps negligence thereby eliminating Ps negligence from being the proximate

cause (without proximate cause, a negligence claim fails contributory negligenceclaim fails without D proving Ps action were a proximate case of his injuries)

iv. cannot impute contributory negligenceonto Ps (like you can with negligence of Dsrespondeat superiorvicarious liability):

4.Comparative Negligence: divides liability between P and D in proportion to their relativedegrees of fault allows P to recover but his recovery is reduced by his potion of negligence incontributing to the accident (only 4 states still have contributory negligence schemes still: AL,NC, MD, VA and D.C.)

i. ask yourself: what kind of jurisdiction are you in?ii. Pure Comparative Negligence: P can recover whatever percentage of total damages


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based on Ds percentage of fault (whatever was not their percentageeven ifP wasmore than 50% at fault) literally based on percentage of fault of P vs. Ds CA uses thisapproach: P is 90% to blame for accident can recover 10% of the damages from D who isdetermined to be 10% at fault; D who is hurt also in that accident could recover 90% ofhis damages from P------ 13 states only: AK, AZ, CA, FL, KY, LA, MS, MO, MI, NY,NM, RI, WA

iii. ModifiedSystems (Thresholds)iv. Not As Great As: P can recover under pure system only if their percentage of fault is

NOT AS GREAT AS Ds1. P = 49%; D = 51% YES recovery2. P = 50%; D = 50% NO recovery3. P = 51%; D = 49% NO recovery

v. No Greater Than: P can recover under pure system only so long as their percentage offault is NO GREATER THAN Ds

1. P = 30%; D = 70% YES recovery2. P = 50%; D = 50% YES recovery3. P = 51%; D = 49% NO recovery

vi. In modified systems with MORE THAN 1 D in a lawsuit, it is UNANSWERED whetherP can recover if it is less percent at fault then ALL of Ds combined, but MORE percent atfault then each D individually

vii. What to do about J&S jurisdictions, not everyone is at fault equally, and there are morethan 1 D, or only 1 D per lawsuit?

1. traditional J&S would say that where its only 1 of many Ds in a lawsuit, and he isonly partially responsible for Ps loss, that 1 D is STILL 100% liable for ALLDS percentage of Ps total damage (not 100% of damage just Total Damage-Ps percentage fault)

2. reforms to deal with J&S and comparative negligence:5.Uniform Comparative Fault Act: pure comparative negligence: P can recover whatever portion

of damages less their own percentage (even if P = 70%, D1 = 20%, D2 = 10%, P can still recover

30% of total damages)i. INSOLVENCY: if 1 D is insolvent, the insolvent Ds portion of payment will be spread

among otherPARTIES (INCLUDING P) according to their respective percentages offault

ii. in J&S liability states with pure comparative negligence systems) where 1 D isinsolvent, the apportionment is NOT spread b/c P can recover 100% of all of Ds portion

from any of the DsDs bear the risk of insolvent Ds, NOT P1. BUTinsolvent Ds are NOT free from contribution claims from other Ds

6.Common Law: Fritts v. McKinne: Ps decedent was in an accident where it was unsure if he wasdriving but was drunk at the time, went to hospital b/c of injuries, D dr. negligently performedprocedure and P died 3 days later from blood loss from that procedure, D asserts comparative

negligencedefense in that Ps negligence (drinking habits and potentially drunk driving) werethe proximate causes of Ps death, NOT Ds procedure; issue: comparative defense allowed?;hold: NO doctors cannot impute negligence onto P; Ps possible negligence in causing theaccident cannot bar him from recovery from injuries/death sustained once in the hospital;negligence of any party that necessitates medical treatment is IRRELEVANT to possible further

medical malpractice; history of drugs/drinking irrelevant to negligence claim, ONLY pertinentin discussing damage awards based on life expectancy

O.Assumption of the Risk: P has assumed the risk of certain harm if they voluntarily consented to taking


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their chances that harm will occur if D can prove that P assumed a risk, P is completely barred fromrecovery

1.4 factors to be proven by D in asserting this defense (Davenport)i. P has knowledge of facts constituting a dangerous condition

ii. P must know the condition is dangerousiii. P must appreciate the nature and extend of the dangeriv. P must voluntarily expose himself to the danger

2.Express Assumption: exculpatory agreements: P signs an agreement with D before acting that hewill not hold D liable for injuries to P all parties agree (written or oral) in advance that D hasno duty of care to P (therefore cant be negligent); if P is later hurt by what he is claiming was

Ds negligence, these agreements are the center of litigation; Questions:1. will the courts enforce a K given the type of activity involved (consider public

policy arguments)2. if yes, is the K sufficiently clear so that P definitely made an express assumption of

the risk? (must be express and unambiguous in terms)ii. Hanks v. Powder Ridge Restaurant Corp.: P signed a contract stating that he releases the

snow tubing company from liability even if they are negligent. P was injured because ofDs negligence. Court entered summary judgment. P appeals:

1. Ordinary person would not know they are signing away liability2. Agreement is unenforceable because it violates public policy- where the P paid for

services but must sign a standard exculpatory agreement3. Reversed on second claim. --- The law does not favor contracts provisions which

relieve a person from his own negligence4.Hyson case: same resort but the contract didnt have the negligence on behalf of

the D

5. noted in the opinion guided by but not controlled by- Tunkl v. Regents of UCfactors where agreement is INVALID if it meets some or all:

a. concerns a business suitable for public regulationb. service is of great important to the publicpractical necessityc. party willing to perform for any member of the public who seeks itd. exculpated party possessed a decisive advantage of bargaining strength

against public members who seek ite. standardized adhesion K of exculpation and makes no provision whereby

a purchaser may pay additional reasonable fees and obtain protectionfrom negligence

f. person or property of the purchaser is placed under the control of theseller, subject to the risk of carelessness by the seller or its agents

6. Followed in the opinion-Dalury v. S-K-I, Ltd (Vermont): P collided with metalpole at Ds mountain while skiing, sued D for negligence in not having padding

on pole, when P bought lift ticket, he signed waiver stating he released mountain

from liability; the agreement was express & unambiguous but it violates publictotality of circumstances approach

a. (B) CO factors:i. existence of a duty to public

ii. nature of service performediii. K was fairly entered intoiv. intention of parties is clear and unambiguous in language

7. VA rejects pre-injury release from liability entirelyb/c it is wrong to put a partyto a K at the mercy of the others negligence


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a. reject Ds argument that ski resorts dont provide essential public servicetherefore exculpatory agreement should be validDs area is open tothe public and where you invite public onto your property, alegitimate public interest arisesSKI AREA HAS BECOME AFACILITY OF PUBLIC ACCOMODATION, SERVICE IS THAT OFCOMMON CARRIERS/INNKEEPERSjust because a skier assumessome inherent risks in skiing, does NOT allow D mountain owner to

be negligent in warning/correction of dangers it can reasonablyforesee (premises liability argument)

b. notes case unilateral disclaimer signs NOT valid unless brought to Psattention

3.Implied Assumption of the Risk: to make an implied assumption of the risk defense, D mustshow that P both (1) knew of the risk in question and (2) voluntarily consented to bear thatrisk

i. Murphy v. Steeplechase Amusement Co.: P went to amusement park with friends, wenton ride flopper, fell and shattered kneecap, sued D owner of park; P assumed the risk ofthe ride therefore going on it was the superseding cause (proximate cause) of his injuriesNOT Ds negligence in the functioning of the ride (going up and down) P watched the

ride before he got on it, knew of the risks (knew it went up and down), and went onanyway (consented to bear that risk); did NOT claim that not having padding wasnegligence, only that the shaking was Ds negligence

1. volenti non fit injuria one who takes part in such a sport accepts the dangersthat inhere in it so far as they are obvious and necessary

2. Types of Implied Assumption (Davenport):a. Primary: when P impliedly assumes those risks that are inherent in an

activity NOT a true affirmative defense question: did D have a dutybased on that specific risk that it breached? (Murphy)

b. Secondary: when P knowinglyencourages a riskcreated by Dsnegligence IS a true affirmative defense because it is asserted only

AFTER P has madeprima faciecase of Ds negligence questionbecomes did Ps conduct AGGRAVATE the risks created by Dsnegligence?

i. Ps conduct reasonable NOT a defense b/c P acted reasonablyin the circumstances

ii. Ps conduct unreasonableDs defense upheldii. Secondary Implied Assumption vs. Contributory Negligence:

1. Davenport v. Cotton Hope Plantation: P was renting apt. from Ds building andcomplained of broken floodlights in the stairs he used but continued to use them(1 of 3 he had access to) and then he fell b/c he thought a shadow was a step; Psassumption of the risk does not completely bar to recovery in SCs comparative

negligence system?; P is barred from recovery ONLY WHEN his secondaryassumption of the risk is unreasonableexceeds Ds percentage of fault fromnegligence

a. RI: objective/subjective distinction btwn. 2nd implied assumption andcontributory negligence retains assumption of the risk as complete barto recovery

b. WV: main purpose of comparative negligence system is to apportion fault rejects assumption of the risk as total bar to recovery and only allowsjury to consider Ps negligence in assuming the risk (if it exceeds or equals


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that of D, then P is barred from recovery)i. question becomes: should P be barred from recovery for

assumption of the riskbased on whether or not his behavior wasREASONABLE under circumstances follow WV

ii. Ds fault in creating the risk is not diminished simply b/c Passumed that risk

P. STRICT LIABILITY1.liability without fault (no intent or negligence required to hold D liable) those who engage in

certain kinds of activities do so at their own peril and must pay damage that foreseeably results,even if they took due care in that activity

i. Fletcher v. Rylands: P is tenant mining working for landowner next to Ds cotton mill;Ds workers built reservoir to divert water to Ds land and discovered defect in soil but

did not alert D; reservoir broke free and destroyed Ps mine; P can recover damages fromD although D was NOT negligent not required in strict liability claims

ii. Absolute Duty Rule: the person who lawfully brings something dangerous onto his land,and fails to keep it contained (even through no negligent fault of his own), is responsiblefor all the NATURAL consequences of its escape BECAUSE HE BROUGHT IT THERE

1. different from reasonable care duty to take prudent care negligence claim whereD would not be liable for latent defects they could not prevent against whichcaused the dangerous things escape

2. under strict liability, taking even the utmost caredoesnt matter3. Causation: but for Ds bringing it there, the damage wouldnt have happened

iii. different than negligence: if youre walking down the street and a falling barrel hits youin the head, it is NOT strict liability because as someone walking down the street, youaccept some risks with walking there make a negligence claim based on Ds failure tofollow duty to take due care to contain barrels in his warehouse (Byrne)

2.situations that lead to strict liability claims must be ABNORMALLY DANGEROUS:i. Escaping Water

ii. Escaping Animalsiii. Handling Explosives

3.Indiana Harbor Belt RR v. American Cyanamid Co: D manufactures chemicals and hired P RRto transfer the chemical; one of the cars leaked and the RR yard hard to evacuate b/c of highflammability of the chemical costing almost $1 Million in damages; issue: strict liability ornegligence claim applicable? Should the shipper of a hazardous chemical by RR should bestrictly liable for the consequences of a spill or other accident?; hold: NO; negligence

i. SL if abnormally dangerous condition based on 6 factors (Guille v. Swan- balloonlanding- strict liability for damage because it was his fault w/o negligence) and (2)Restatement 520:

1. great possibility of harm? (Y - SL)2. harm that if happens would cause great damage? (Y - SL)3. accidents of this type preventable through due care? (N- leaked b/c someone didnt

take due care somewhere along the wayN)4. not a common activity? (YSL)5. activity inappropriate for location? (NN)6. value to community of the activity outweighs the risk? (NN)

ii. Posner says most important factor is economic benefit to society (just like LearnedHand cost/benefit analysis) imposing SL might mean that companies will stopproducing dangerous but necessary chemicals like here, or the cost of rerouting the line


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around the city would be too great and RRs would transport the chemicals anymore, etc.must use negligencesounds likeres ipsa loquiturBUT isnt b/c doesnt meetrequirement that dangerous instrumentality was in sole control of D (only that someonewas negligent and the accident wouldnt have happened if they werent, and P wasnt at

fault)

Q.Products Liability1. theory: seller of chattel which, b/c of a defect, causes injury to its purchaser, user, or bystander2.3 Main Questions:

a.Does the product do what its supposed to do? (water guns are supposed to shoot water whenyou pull the trigger, they are NOT supposed to have the trigger break off and hit you in theeye b/c of defective manufacturing or design liability)

b.Was it a reasonable or unreasonable design for the product?c.Should the manufacturer have warned customers?

3.old theory: privity doctrine: a K relationship between the parties was the basis for the duty ofdue care; without privity, cannot hold product manu. liable began to be eliminated with:

4.MacPherson v. Buick Motor Co.: P bought car from dealer who bought it from Buick, P wasinjured when in an accident, the wheel collapsed (though not made by D); Ds duty of care(negligence, not SL claim) and vigilance extends to anyone OTHER THAN the originalpurchaser

i. rule: manufacturer have a duty to someone injured by their product even if thatperson is not the original purchaser; products liability is NO LONGER limited tothings that are inherently dangerous (in their normal operation are implements ofdestruction) if the nature of the thing is such that it is reasonably certain to place lifeand limb in peril when negligently made, it is a thing of danger

ii. duty is no longer in the contract but as a matter of law is not limited to privity allparties have a duty to exercise reasonable care

iii. Rule: If a product is reasonably expected to be dangerous if negligently made andthe product is known to be used by those other than the original purchaser in the

normal course of business, a duty of care exists.iv. 3 factors determine duty of vigilance for manufacture of dangerous products:

1. knowledge of a danger that is PROBABLE (not just possible)2. added knowledge that in the usual course of events, the danger will be shared by

OTHERS than the buyer, AND3. proximity/ remoteness of relation btwn. original buyer and injured

v. if manufacturer is negligent in making a product and puts it on the market, and the dangeris foreseeable, he is liable for the damages that result *** because if the product wasSAFELY made, the damages wouldnt have come about

1. wheel maker? NOT liable b/c even though the defective wheel may have been acause-in-fact of the accident, it was NOT a proximate causeb/c Ds negligencein not inspecting the wheel was a superseding cause which breaks the chain of

causationvi. not quite strict liability but more than negligence: 2nd Rest. 402A: rule applies

despite manu. taking all possible care to manu. the product ONLY applies whereproduct is defectively made OR unreasonably dangerous

vii. determining unreasonable danger factors:1. industry standards2. foreseeability: how costly? Learned Hand theory3. circumstances of the accidentunreasonably dangerous in THOSE


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circumstances, in what actually happened? (driver in brand new car steps onbreaks and it doesnt stop accident clearly unreasonably dangerous to makea car with defective breaks = liability)

5.res ipsa loquiturand SL for products liability:6.Escola v. Coca Cola Bottling Co. of Fresno: P waitress injured when took soda bottle from

fridge and it shattered in her hand; issue: does res ipsa apply to products liability where D thatactually caused the defect in the product is unknown b/c cant tell when defect occurred?; hold:

YES(1) accident wouldnt have happened despite SOMEONES negligence, (2) P was notnegligent in handling the bottle, and (3) D was in complete control of the bottle when it bottledthe soda = res ipsaallows jury to infer Ds negligence

i. A manufacturer incurs absolute liability when an article that he has placed on themarket, knowing that it is to be used without inspection, proves to have a defect that

causes injury to humans.ii. even though D had a duty to test bottles if they were going to reuse them and the bottle

broke which seems like it was Ds breach of duty to inspect, you cant know for sure

when the defect in the bottle came about case would fail on causationuseres ipsaiii. CONCURRENCE: a manufacturer incurs an absolute (strict) liability when an article

that he has placed on the market, knowing that it is to be used without inspection proves

to have a defect that causes injury to human beings there is an implied warranty offitness for (1) proposed use, and (2) merchantable quality

iv. STRICT LIABILITYBECOMES the law later7.Notes Cases:

i. Henningsen v. Bloomfield-NJ-ii. Greenman v. Yuba Power Products- CA- if there is a defect that injures human being

then you are strictly liableiii. Vandermark v. Ford Motors- case of bad breaks- seller and manufacturer will be liableiv. Elmore v. American Motor Corp.- the drive shaft fell out of the car and caused an

accident with another vehicle. Bystanders were permitted to recover under strict product

liability

1.Exceptions- for Policy issuesa. Used goods, successors,R.3rd Rest.: 3 types of defects: manufacturing- individual malfunction; design- inherently danger

designed, warning- notified of danger1. Manufacturing Defects: when the product departs from its intended design even though all

possible care was exercised in the preparation and marketing of the product; almost always strictliabilityeasy cases

i. difficulty comes in determining at what time the defect occurred when the product wasbeing made? When it was sitting on a shelf for a year? Etc. too far removed frommanu. in time, then P cant recover from them, maybe seller

ii. BUT if you SELL a defective product, doesnt matter who made it defective, youre stillliable

iii. Note case:Welge v. Planters Lifesavers Co.: P hurt when jar of peanuts smashed when hetried to put the lid back on; couldnt find when in the life of the jar the fracture that

caused the shattering occurred BUT both the makers of the jar AND the sellers (Kmart)could be held liable because ofSTRICT LIABILITY IN MODERN PRODUCTSLIABILITY LAW even if through no fault of either party they failed to discover thedefect and protect consumers against it

1. basic idea behind SL for products liability: dont want to put defective products


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on the markets for consumers manu. and sellers are the best people to detectthe problems and therefore prevent the harm OR warn consumers if the product isdangerous that harm might result from misuse or unintended use

2.Design Defects: when the foreseeable risks of harm posed by the product could have beenreduced or avoided by the adoption of a reasonable alternative design by the seller or otherdistributor, or the omission of the alternative design renders the product not reasonably safe

1. note cases: Cronin v. J.B.E- bakery truck driver accident-ii. Barker- used in the intended or reasonably foreseeable manner

1. 2 Tests:a. Consumer Expectations: as safely as an ordinary consumer would expect

when used in an intended or reasonably foreseeable manner (Barker)b. Risk Utility: the risk inherent in the design outweighs the benefit of such

a design

i. Ds (manu.s) burden to prove the product should NOT be judgeddefective

ii. P has burden of showing a REASONABLE ALTERNATIVEDESIGN exists that:

1. would have been safer, AND2. was reasonably expensive in light of what the product is

used foriii. Soule v. General Motors Corp. : in a car accident the floorboard crushed Ps ankles; if

using the Consumer Expectations test to determine defective design, there should be noexpert testimonyb/c it should be common knowledge to the jury & if you need experttestimony to understand the accident, cant use this test crucial question: whether thecircumstances of the products failure allow an inference that the products design

performed below the legitimate commonly accepted minimum safety assumptions ofits ordinary consumers?VERY rare; risk utility appropriate here---4 elements ofconsumer expectations test

1. the product failed to perform as safely as expected2. the defect existed when the product left manufacturers possession3. the defect was the legal cause (proximate) of the enhanced injury4. product used in a reasonably foreseeable manner

a. note cases:i. Pruitt v. GM- doesnt apply to airbags deploying in a low impact

accidentii. Morton v. Owens- applicable in an asbestos case causing cancer

because it fell below the minimally accepted standardsiii. Banks v. ICI Americas- availability of alternative designs

1. RAD- reasonable alternative design- Products LiabilityRestatement 2- plaintiff must prove that an RAD would

have reduced the foreseeable risk of harmiv. Camacho v. Honda Motor Co. (584): P injured in motorcycle accident bought from

Honda that didnt have leg guards; other motorcycles have leg guards, could have boughtthem to put them on, trial Honda granted summary judgment and appeal said P assumedthe risk: use risk utility test. Summary judgment not appropriate because expertwitness are in disputes

1. The crashworthiness doctrine-manufacture may be liable in negligence or strictliability for injuries sustained in a car accident where a manufacturing or designdefect enhanced the injury, even though it was not the cause of the accident.


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2. consideration: where a product is dangerous to begin with (here), P may NOTwant a consumer utility test b/c jury may not be able to see past the dangerousnessof the motorcycle itself P might actually want risk utility (usually the opposite)

3. UNREASONABLY DANGEROUS TEST: was there a reasonable way theproduct could have been made safer?:

a. Barker (CA): MANU. has to show they couldnt have made it saferb. Camacho (CO): P has to show there was a reasonable alternative design

that wasnt too expensive4. Ortho Pharmaceutical Corp v Heath- factors in balancing the risk

a. Usefulness- utility to the users and public as a wholeb. Likelihood that it will cause injury; probability for serious injuryc. Availability of a reasonably safer substituted. Manu. Ability to eliminate unsafe characteristics without impairing ite. Users ability to avoid danger by the exercising of caref. Users anticipated awareness of dangersg. Feasibility of spreading the lost through setting the price of the product

v. Bystanders Expectations- tovi. Products liability Restatements rejects consumer expectations

vii. Food products- exception- allows for consumer expectation testviii. Inferring the Existence of an Unidentified Defect, page 596

1. 3- Circumstantial evidenceix. Potential Defenses:

1.Assumption of the risk2.Faces of Misuse

3. Warnings: failure to warn: (1) duty: to warn, (2) breach: not a good enough warning/no warningat all, (3) causation: not very clear; (4) damages: injury

i. 3rd Restatement: with a product that is unreasonably dangerous, the manu. cannot waiveliability by warning consumers that it is; the manu. is supposed to design it so it is NOTunreasonably dangerous & whatever danger that they cant get rid of (inherent in the

product, its necessity to consumer, etc.) they have a duty to warn the consumers ofii. Hood v. Ryobi America Corp.: P takes guard off of saw despite warning to never

remove b/c couldnt use it effectively with guard on, it flies off and hurts P, sues D ongrounds that warning was not sufficient enough to warn him of the danger that couldhappen; summary judgment for the defendant affirmed:

1. Standard for adequacy: a warning need only be reasonable UNDER THECIRCUMSTANCESthe manufacturer need NOT warn of every possiblemishap or source of injury that can happen.

iii. Causation Problem: to prove causation, MUST prove BUT-FOR cause:1. Heeding Presumption: requires D (party responsible for inadequate warning) to

prove the user (P) would not have heeded an adequate warning either very

difficult: courts give P benefit of the doubt iv. Vassallo v. Baxter Healthcare Corp. (MA) (612): P sued manu. of breast implants for

failure to warn her of their dangers; D uses state of the art defense; hold: D ONLY hasduty to warn of dangers they KNOW of or should have known aboutIF they haddiscovered the defects through research, THEN they would have had a duty to warn butat the time, they had no idea; questions:

1. Old rule: stict liability/ hindsight rule- 622,2. reasonableness standard: how expensive would the research to find out have

been? does it outweigh the benefits of doing it? (Learned Hand); was it


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foreseeable?3. NO MORE STRICT LIABILITY (use negligence standard now) under implied

warranty of merchantability: risks HAVE to have been reasonably foreseeableAT THE TIME of sale OR could have been discovered by way of reasonabletesting prior to marketing the product

a. manu. held to the standard of knowledge of an expert in the appropriatefield and are subject to a duty to warn FOLLOWING the sale of the

product at issue (once they discover defects)S. EMOTIONAL HARM- Emotional damages only ifphysical impact or physical symptoms (but if

extreme situation of mishandled corpse, then foreseeability). If no physical effect, then recovery if inzone of danger.BystanderRecovery: either zone of danger OR closerelative directly observingdeath/injury (NY adds the zone of danger requirement as well). Loss of Consortium for spouse or forchild, some states allow for loss of parents companionship.

1. Can recover for emotional harms if accompanied by negligently inflicted physical harm; reaissue is emotional harms thatcause physical harms. [Policy concerns: fraudulent claims,

floodgates, how can D defend itself when they dont know if a claim will be raised later and no

chance to collect evidence]

2. Old Rule: No physical impact on plaintiff barred recovery3. New Rule: Zone of Danger [P must be aware of the danger]i. Falzone v. Busch: P watched D hit her husband and swerve toward her, she became

physically illRejects physical impact requirement; recovery under new test: fright from

reasonable fear of immediate personal injury, fright adequately shown to have resulted

insubstantial bodily injury/sickness, recoverable if regarded as damages that might

have occurred under direct physical injury rather than fright

a. Note: this was prior to eyewitness/bystander recovery2. Limitations:

a. Zone of danger must be immediateb. Fear must be reasonablec. Injury/sickness must be substantial

ii. Metro-North Commuter RR Comp. v. Buckley: D (originally P) worked for D RR underasbestos conditions for 3 years, developed stress that he would develop cancer from theconditions; sued RR for negligence in creating conditions therefore causing his distress;sued for negligently-inflicted emotional distress under Gottshall def. of physical impact,denied P argued to follow Gottshall where emotional distress recovery is permittedwhere the distress accompanies some immediate traumatic harm; BUT simply comingin contact with asbestos dust is not enough of a physical impact to allow emotionaldistress liability (since harm is not guaranteed, and in the future); NEW TESTS FOREMOTIONAL HARM RECOVERY:

1. permits recovery for emotional distress where:a. PHYSICAL INJURY: distress is accompanied by a physical injury

(Simmons v. Pacor)b. ZONE OF DANGER TEST: recovery for emotional injury by those

Ps who sustain a physical impact as a result of the Ds negligent

conduct or who are placed in an IMMEDIATE risk of physical harmBY that conduct

i. Ps claim in Metro-North fails to meet this req.


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2. to recover in emotional distress-toxic injury cases, P needs to prove: (1)reasonable fear of injury (Norfolk & Western RR notes cases got asbestosis fear of cancer, exposure proven), and (2) more likely then not youll developwhat youre in fear of(Potter)

iii. HIV Cases: recovery for negligent diagnosis cases (Chizmar v. Mackie); recovery fornegligent exposure to infected needle (Williamson v. Waldman) Recovery only for

window until find out diagnosis was wrong? This is foolish b/c people cant just shut

off emotions Needle standard: reasonable person of ordinary experience who has a

level of knowledge that coincides with then-public info about cause/transmission of

AIDS

iv. Gammon v. Osteopathic Hospital of Maine:Ps father died, D sent bag of his belongingsto funeral home, P opened it, inside was a bloodied legP had nightmares andrelationship with wife & kids deteriorated: summary judgment for D reversed previousrequirement of (a) physical impact, (b) objective manifestation, (c)underlying/accompanying tort, or (d) special circumstances; TOO ARBITRARILYRESTRICTIVEabandon requirements and rely on trial process to weed outfraudulent claims

1. Allow FORESEEABILITY of harm to be a jury question: could D reasonablyforesee the emotional harm befalling a reasonable person under thosecircumstances?

a. exceptional vulnerability of family members of recent deaths makes themmore susceptible to this type of harm

b. limit on special relationship: SEVERE emotional distress requirementv. Portee v. Jaffee- Plaintiff watched 7 year old son die in an elevator shaft while waiting to

be rescued due to Ds negligence. Mother attempted suicide and many psychological

issues resulting. Judgment for D reversed.1.Dillon Factors: Proximity to accident; resulted from direct emotional impact from

eye witness of impact; close relationship

2.Elements:a. The death or serious physical injury of another caused by Ds negligenceb. Marital/ familial relationship between injured and P (not unmarried)c. Observation at the scene of the accidentd. Resulting severe emotional distress

4.Negligent Interference with Consortium, page 294i. Diaz v. Eli Lilly & Co.Justice Kaplan explores the fact that any claims against or for

the wife had to be brought in the husbands name and now that is vice versa. The spouseloses something too.

1. Loss of companionship involving injured parents and children, social benefits and/or money

2. In some states extends beyond physical injury


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(1) Prerequisites to a claim? a) impact rule (traditional)b) zone of danger (Falzone)c) foreseeabilityd) special relationship (death)

a) familial or marital relationship todeceasedb) have to see it first handc) must be severe emotional distress

(2) Limits on recovery? (tocontrol liability for

negligently inflictedemotional distress)

Falzone limited to physicalsymptoms of distress

Gammon severe emotionaldistress (no eggshell psyche)

Portee (NJ) must have SEEN thedeath occur

Some courts use reasonable beliefDillon (notes)NY uses strict rule zone of dangertest

A. Exceptions to Reasonable Person Standard:1. children: Dellwo v. Pearson children must adhere to adult standard of care when engaging in adult

activities; but in child activities, standard is a reasonably careful person of the same age,intelligence, and experience; minority view: based on age of child (0-7 no liability, 7-14 rebuttablepresumption of no liability, 14+ open question of liability)

2. mental disability: not definite that mental disability relieves D of negligence; must conform tostandard of care of a reasonable person under similar external circumstances (Rest 283Bunlesschild, mental deficiency does not relieve D from liability that does not conform to the standard ofreasonable person under circum)

3. physical disability: with the physical attributes of D, would a reasonable person have behaved as Ddid (depends on Ds physical disability if another with that disability would have done it) (Rest283Creasonable man under like disability)

4. emergency doctrine: if D was forced under the circumstances to act quickly b/c of an emergency,the standard of care MAY be lower; but just as another actor under the SAME circumstances wouldhave

Torts Outline 2011

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