Torts OutlineC. Long I. The Basis of Liability A. Hammontree v. Jenner (SL and Negligence in modern times). Driver has a history of epileptic seizures. D had an epileptic seizure whiule driving and injured P. Rule: a sudden illness which renders a driver unconscious will not be grounds for an action in negligence or SL.

I.

Negligence vs. Strict Liability A. Scott v. Shepard (UK, 1773)- this case illustrates the problems with the old system of writs. This is a case for trespass, thus requiring direct harm. Defendant threw a squib into a market-house where it was thrown from person to person until it hit plaintiff in the face causing injuries. The question under trespass was whether defendant s action can be considered to have directly harmed plaintiff. The court held that plaintiff was liable because it was an illegal act intended to harm someone, and the intervening actors were responding out of compulsive necessity, not as free agents. - In dissent, Blackstone argued that it was not a trespass because there were intervening rational agents that led to plaintiff s injuries. This was an indirect harm. B. The Thorns Case (Hull v. Orange), (UK, 1466)- the court held defendant liable for damage to plaintiff s crops when he went on to plaintiff s property to recover thorns that had fallen from his own property. Defendant was held liable for harm caused despite lacking intent and acting lawfully. C. Strict liability places a higher burden on the defendant, whereas negligence places a higher burden on the plaintiff. D. Strict liability only requires showing that defendant s actions led to plaintiff s injuries. There is no need to show intent or fault. E. Negligence requires showing that defendant has violated some duty of care. This is a much higher burden of proof. F. Negligence was a later historical development in common law than strict liability.

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G. Weaver v. Ward (UK, 1616)- the court held that negligence does not extend to inevitable acts. If something is inevitable, no amount of care could have been taken to prevent it. H. Brown v. Kendall (MA, 1850)- the court applied a negligence standard (as opposed to strict liability) in a case where defendant accidentally hit plaintiff in the eye with a stick while trying to separate fighting dogs. The question thus centers on what was the proper standard of care under the circumstances. I. Fletcher v. Rylands (UK, 1865)- the court applied a strict liability standard (as opposed to negligence) to hold defendant liable in a case where plaintiff s property was damaged by water flooding from a breach in the neighbor s reservoir. Plaintiff exercised due care, but an unknown defect in the soil led to the burst. Rule: where a party s actions unwittingly cause damage to the land of another he is liable regardless of negligence Fletcher v. Rylands (UK, 1866)- if a person brings anything onto his property which, if it escapes, might damage his neighbor s property, he is responsible for all the damage that is the natural consequence of the escape. Rylands v. Fletcher (UK, 1868) - a person using his land for a dangerous, non-natural use, is SL for damage to another s property resulting from such nonnatural use. J. Brown v. Collins (NH, 1873)- P sued D on SL grounds after Collins s horse were frightened, became unmanageable, broke from D s control, went onto Brown s land, and broke a post here. Rule: property owners should not be held strictly liable for the natural consequences of the escape of things they bring on their land K. Ex ante perspective- people try to determine the law in advance and plan their actions accordingly. Holmes argues that law is the practice of predicting how the court will rule in future potential cases based on how it has ruled in the past. L. Two purposes of tort law: 1. Ex post aspect- seeks to restore injured parties to their position prior to being wronged. 2. Ex ante aspect- seeks to shift risk onto the party in the best position to bear the risk (best information, greatest capacity to avoid harm).

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II.

Negligence A. Negligence prima facie case: 1. Duty of care 2. Conduct in breach of duty 3. Causation 4. Harm B. Duty of Care 1. Duty of care is based on the objective standard of the reasonably prudent person. This is as opposed to a subjective standard that would base the duty of care on an individual s own abilities. 2. Vaughan v. Menlove (UK, 1837)- the court held that the duty of care in negligence case is determined by an objective standard ( the level of care is determined by what a reasonable, prudent man would do in similar circumstances). The court rejected defendant s argument that his conduct should be assessed according to whether he felt he had acted properly in his best judgment (even though his own judgment is not very good). 3. Adjusting the Reasonably Prudent Person Standard: a. Roberts v. Ring (MN, 1919)- the court declined to adjust the RPP standard to account for an elderly man s age and physical condition when he ran over a small child who was crossing the street because of his poor hearing and eyesight. Defendant s infirmities do not detract from but rather add to his negligence, as he should not have been driving at all. Rule: if one by his act or omissions causes injury to others, his negligence is judged by the standard of care usually exercised by the ordinary prudent normal man. b. Minors: i. Restatement Third holds as a general rule that a minor should be held to a standard of care based on a reasonable person of the same age, intelligence, and experience, except when engaging in adult-like activities. Children under five cannot be liable for negligence. ii. Daniels v. Evans (NH, 1966)- the court held that a minor driving a car should be held to an adult standard of care because driving is an adult activity that presents a heightened risk of injury. Other drivers have no way of knowing whether another 3

driver is an adult or minor, and they should be able to expect that all other drivers will be held to the same standard of care. Rule : when a minor undertakes an adult activity which can result in grave danger to himself and to others, he is held to the same standard of care as the average prudent adult. iii. Goss v. Allen (NJ, 1976)- the court held that a 17year-old skier should be held to a standard of care based on his age. Unlike driving, skiing does not require any kind of license and is commonly engaged in by people of all ages. One consideration for whether to hold minors to an adult standard in various activities is whether it is an activity in which people can be reasonably expected to take on the risk of others behavior.

iv.

c. Disability: i. Breunig v. American Family Insurance, Co. (WI, 1970)- the court upheld a jury finding of negligence in a case where a woman got in a car accident while experiencing a temporary hallucination. The question was whether she had knowledge that would reasonably lead her to believe that she might experience such delusions that could make it dangerous to drive. This is different than someone who experiences a sudden temporary disability. Rule: a person seized with a sudden mental disability for which he had no warning will be excused from the general rule holding an insane person liable for his negligence. Policy basis for holding a permanently insane person liable: (a) It is more just for the person who occasioned the loss to suffer it. (b) It creates an incentive for guardians to restrain and control the insane person. (c) There is a concern for false claims. 4. Fletcher v. City of Aberdeen (WA, 1959)- the court held a city liable for injuries suffered by a blind plaintiff due to the absence of a barrier warning of a ditch during construction. The city had a duty of care to provide reasonable warning to a blind person.

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While there had been a barrier, it was moved at the time of the accident. Rule: a person who is infirm is held to that degree of care as would be exhibited by a reasonably prudent man suffering the same infirmity in the same situation 5. Denver & Rio Grande R.R. v. Peterson (CO, 1902)- the court held that defendant s level of wealth is not relevant to the standard of care. This principle is universally accepted in the U.S. C. Risk Calculus: Cost/Benefit Calculations and the Learned Hand Formula 1. Stone v. Bolton (UK, 1950)- this decision is no longer good law (see below). The court held that defendant was liable for injuries suffered when a cricket ball was hit out of the stadium and struck a woman passing in the street. Because balls had been hit out of the stadium in the past (although very rarely), the accident was reasonably foreseeable. Defendant has a high duty of care to prevent the potential harm or discontinue play. 2. Bolton v. Stone (UK, 1951)- this case reverses the decision above. The proper test is whether the risk of harm was significant enough that the reasonable person would have taken additional steps to prevent potential dangers. The risk in this case was very small, and defendant acted reasonably. 3. U.S. v. Carroll Towing Co. (Second Circuit, 1947)- this case presents Learned Hand s formula for evaluating whether a person is liable for not taking further precautions to prevent risk: Liability if B < L x P B= burden of taking additional precautions to prevent injuries. L= gravity of potential injuries. P= probability of accident occurring. This is a cost-benefit analysis. A reasonable person takes reasonable precautions. He does not take every conceivable precaution. The mere fact that an accident may be inevitable to occur at some point does not mean a person has to take all possible precautions to avoid such an accident if the burden of doing so outweighs the potential injuries adjusted for the probability of occurrence. Facts: the attendant od d s barge abandoned it for 21 hours; during this period the barge broke loose and while it was adrift struck the p s barge causing it to sink. Rule: there is a duty of care to protect others from harm when the burden of taking adequate precautions is less than the product of the probability of the resulting harm and the magnitude of the harm 5

1. Historical Development: Testing the Hand Formula a. Blyth v. Birmingham Water Works (UK, 1856)- the court held that defendant was not liable when water escaped from pipes and flooded plaintiff s house, most likely due to icing from extreme cold uncommon to that place, because of the unlikelihood and unforeseeability of the risk that caused the accident. Rule: negligence involves the creation of an unreasonable risk, by act or omission, which a reasonable and prudent man would not create. Objective test: reasonable man under similar circumstances. b. Eckert v. Long Island R.R. (NY, 1871)- the court held that plaintiff was not contributorily negligent when he went onto a rail track to save a child from being struck by an oncoming train and was struck himself. The law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons. The risks of plaintiff s actions are outweighed by the interest in saving endangered human life. The court upheld the jury s determination that the railroad had acted negligently. Rule: it is not negligent to attempt to save the like of another unless to attempt to do so is either rash or reckless Analysis: acceptance of a known risk generally is a defense to an action for an injury resulting from that risk c. Cooley v. Public Service Co. (NH, 1940)- the court held that defendant was not liable when electric wires broke during a storm and fell onto a telephone wire thus causing an extremely loud noise in turn causing plaintiff to suffer trauma. The possible device that could have been used to prevent this accident entailed a heightened risk of electrocution. Defendant therefore did not act unreasonably in choosing not to implement such devices. Rule: where danger to 2 classes of persons cannot be simultaneously guarded against, only the most immediate and injurious risk need be protected

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6. Lyons v. Midnight Sun Transportation Services, Inc. (AK, 1996)the court affirmed a lower court s decision holding that defendant should be held to a standard of how a reasonable person would act in an emergency when a car pulled out into the road in front of him and he hit it while swerving in an attempt to avoid collision. However, the court discouraged the use of the sudden emergency doctrine in jury instructions: a person put into an emergency is not expected to exercise the same degree of judgment and prudence as someone in a calmer situation. This instruction does not add anything to the ordinary standard for reasonable care and risks confusion. Rule: the sudden emergency doctrine should not be used unless a court finds the particular facts of a case warrant a greater explanation of the standard of care than is normally required. Analysis: a comparative negligence system apportions liability for negligence between the parties. The generally applicable standard of negligence is whether the person acted reasonably under the circumstances. 7. Andrews v. United Airlines (Ninth Circuit, 1994)- the court reversed and remanded a District Court grant of summary judgment for defendant in a case where a briefcase fell from an overhead compartment in an airplane and struck plaintiff. Defendant is a common carrier and therefore subject to a heightened standard of care. The question is whether the danger is significant enough that the airline must take further precautions in order to meet its duty of care. The court remanded the question of negligence for jury determination. Rule of law: even a small risk of serious injury to passengers may form the basis of a common carrier s liability if that risk could be eliminated consistent with the practical operation or airline travel D. Custom 1. Custom is an external standard that looks beyond the specific situation of the plaintiff and defendant to community and professional norms and standards. 2. Restatement Third states that compliance with custom is evidence of due care, but it is not dispositive. Departure from custom in a way that increases risk is evidence of negligence, but it also is not dispositive. 3. There is a concern that allowing custom to determine reasonableness standards will remove incentives for people to avoid foreseeable and preventable accidents. 7

4. Mayhew v. Sullivan Mining Co. (ME, 1884)- the court held that defendant was not relieved of liability merely by virtue of acting consistently with custom when plaintiff fell through an unprotected ladder hole in a mineshaft. The court affirmed the trial court s decision to exclude from trial a question of whether a witness had ever known ladder holes to be railed or fenced around. The fact that a practice is customary does not mean it is consistent with ordinary care. The universality of carelessness does not justify lack of care. Facts: D argued that it could be allowed to present evidence regarding customary industry practices in defending against P s negligence suit. Rule: custom has no proper place in the definition of what constitutes ordinary care 5. The T.J. Hooper (S.D. NY, 1931)- the court held that a standard of care can evolve for certain practices as new technology becomes more widely available. Facts: d, a tugboat, lost its cargo after it failed to receive warnings of an approaching storm. 6. The T.J. Hooper (Second Circuit, 1932)- the court affirmed the lower court s decision in holding defendant liable for failure to carry radios onboard a tugboat. Despite the fact that it was not yet industry standard to carry radios, they were widely available and capable of dramatically decreasing risk. Reasonable prudence is not always common prudence. Rule: regardless of the custom of an industry or trade, a D will be held liable if his actions fall beneath the standard of the average prudent man. 7. Trimarco v. Klein (NY, 1982)- the court held that evidence of custom was admissible but not conclusive in determining whether reasonable care required that defendant replace an old glass shower door when the common practice shifted to using safer tempered glass. The court submitted to the jury the question of whether the modest cost and ready availability of safer glass had shifted the standard of reasonable care. 8. The standard of care in medical malpractice is governed primarily by national customs within the medical profession. A doctor is expected to possess the degree of knowledge and skill common to members of the profession in good standing.

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9. Lama v. Borras (1994)- in a medical malpractice case, the p must show that the physician s treatment fell below the standard of care applicable to the general practitioner, resulting in the p s injury. 10. Contracts may be used to modify the ordinary duty of care through a waiver. 11. Canterbury v. Spence (D.C, 1972) - a physician owes a duty to reasonably disclose all information concerning an operation to a patient which a reasonable physician in the community would disclose based on sound medical considerations. E. Effect of Statutes 1. A statute may explicitly create a cause of action in tort. The question is whether a particular statute creates a civil cause of action if it does not address the issue. 2. Negligence per se- the mere fact that a person has acted in violation of a statute constitutes negligence = res ipsa loquitur 3. Statutory Violations as Negligence Per Se- Restatement Third 14: An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect. 4. The fact that a person has caused harm as the result of breaking a statute is not sufficient to constitute negligence per se if the elements above are not present. 5. Anon (UK, 1703)- the court held that the default assumption is that a private citizen may enforce rights created by statute. 6. Clinkscales v. Carver (CA, 1943)- the court held that, while a defective statute could not be criminally enforced, it could still be grounds for negligence per se if it was understood to be legitimate when violated. In this case, the state could not enforce a stop sign erected under a defective statute, but it was still negligent for defendant to run the stop sign, as there was no way to know it was defective. 7. A party cannot be held liable for negligence based on a statute passed after a product is sold.

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8. Osborne v. McMasters (MN, 1889)- the court held that failure to label a bottle of deadly poison contrary to a statute was negligence per se. Rule: the breach of a statutory duty to a member of the protected class is negligence per se. 9. Gorris v. Scott (UK, 1874)- the court held that defendant was not liable for negligence per se when he failed to pen animals in accordance with the Contagious Disease (Animals) Act of 1869 and the animals washed overboard in a storm. The act was directed at preventing the spread of disease, which has no relation to the harm that actually occurred. 10. Martin v. Herzog (NY, 1920)- the court held that plaintiff s act of driving a buggy after dark without lights in violation of a statute, which led to an accident with defendant, was negligence per se. Plaintiff was therefore contributorily negligent. Rule: the unexcused omission to perform a statutory duty is negligence per se. 11. Tedla v. Ellman (NY, 1939)- the court held that plaintiff s act of walking on the wrong side of the road because that side was less busy at the time, which led to him being hit by a car, was not negligence per se. Plaintiff was acting consistent with custom, and following the law would have involved a greater risk in this specific circumstance. 12. The standards for negligence per se have loosened over time to allow excuses for violating a statute. The modern view is more flexible and nuanced. 13. Establishment of negligence per se demonstrates that defendant has breached a duty of care. Plaintiff still needs to show causality and injury in order to recover. 14. Brown v. Shyne (NY, 1926) - a licensing statute intended to protect the public against incompetent practitioners creates no liability against an unlicensed practitioner unless he is in fact shown to be incompetent. 15. Uhr v. East Greenbush Cent. Sch. Dist. (NY, 1999)- the court held that a law requiring schools to examine students for scoliosis did not allow private civil actions for violations of the statute. The statute explicitly removes school officials from liability for making tests, and the court read this as implying removal of liability not only for malfeasance but also for nonfeasance. 10

F. Judges and Juries 1. Both sides have to waive their right to a jury trial in a civil case in order for the case to be heard by a judge. 2. Judges have more discretion with mixed questions of fact and law to decide what to submit to the jury as a question of fact and what to keep for himself as a question of law with underlying questions of fact. 3. Negligence is a prototypical mixed question. What the person did is a question of fact for the jury. The proper duty of care is a legal question. 4. The benefit of the jury is that it represents people typically closer to the community standard than the judge. Holmes disputes this, arguing that judges are in a better position to implement consistent standards because they have experience viewing repeat cases and issues. He argues for giving more power to judges, as opposed to juries, in negligence cases. 5. Jury trials tend to be more expensive but quicker. 6. Baltimore and Ohio R.R. v. Goodman (1927)- in a widely ridiculed case, the Court held that, in order to fulfill his duty of care, a driver must get out of his vehicle to look for a train if he cannot otherwise see. The Court declared a standard of care without submitting the question for a jury. This holding was overturned in Pokora v. Wabash Ry. (1934) where the court held that a plaintiff is not required to get out of his vehicle to see if a train is approaching to avoid contributory negligence. 7. Hindsight bias- something may seem much more obvious after the fact than at the time of the decision or action in question. This may bias juries toward viewing behavior as negligent because they are able to see the harm it led to. G. Res Ipsa Loquitur 1. Res ipsa loquitur (the thing speaks for itself): a. The event is of the type that would not ordinarily occur in the absence of negligence. b. It was caused by an agency or instrumentality within the exclusive control of defendant. c. It is not due to voluntary action on the part of plaintiff.

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2. Res ipsa loquitur allows a shift of burden in cases where defendant would have access to direct evidence but plaintiff only has access to circumstantial evidence. 3. Res ipsa loquitur is a mixed question of fact and law. Restatement Second allows the judge to determine when the rule is applicable and the jury to apply the rule. 4. Res ipsa loquitur: a rule of law giving rise to an inference where the instrument inflicting the injury is in the exclusive control of the defendant and where such harm could not ordinarily result in the absence of negligence. H. Proof of negligence 1. Byrne v. Boadle (UK, 1863)- the court applied res ipsa loquitur when a barrel fell from a window and struck a passerby. There are certain cases in which the mere fact of an accident s occurrence raises a presumption of negligence. The burden then shifts to defendant to rebut this presumption with evidence. Rule: when it is highly probable that an injury is due to the negligence of the defendant, and the defendant has better access to the evidence concerning the injury, the doctrine of res ipsa loquitur creates an inference that the defendant was negligent, and puts the burden on defendant to introduce contrary evidence. 2. Colmenares Vivas v. Sun Alliance Insurance, Co. (First Circuit, 1986)- the court applied res ipsa loquitur in a case where plaintiff was injured from falling when the handrail on an escalator stopped and the steps kept moving. The court held that the Ports Authority had exclusive control over the escalator for the purposes of res ipsa loquitur even though they had delegated the responsibility to maintain the escalator. An authority in control of a public area has a non-delegable duty to maintain the facilities in a safe condition. Rule: the control requirement of the doctrine of res ipsa loquitur is satisfied where the defendant is ultimately responsible for the agent or instrument causing the injury. 3. Ybarra v. Spangard (CA, 1944)- the court applied res ipsa loquitur where plaintiff received an injury to his shoulder while unconscious for surgery unrelated to that part of his body. It does not matter that plaintiff cannot identify which defendant had

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control of the instrumentality involved or what instrumentality caused the injury. Rule of law: where an unexplained injury occurs during a medical procedure to a part of the body not under treatment, res ipsa loquitur applies against all of the doctors and medical employees who take part in caring for the patient. 4. Larson v. St. Francis Hotel (CA, 1948)- the court declined to apply res ipsa loquitur in a case where a passerby was struck by a chair thrown out of the hotel window because the hotel did not have exclusive control, and this could have happened even if the hotel exercised reasonable care. 5. Connolly v. Nicollet Hotel (MN, 1959)- the court applied res ipsa loquitur when plaintiff was injured by an object thrown from a hotel window because the hotel knew ahead of time that the Junior Chamber of Commerce national convention would be rowdy, and they did not take sufficient measures to prevent the harm. 6. Newing v. Cheatham (CA, 1975)- the court held that plaintiff had presented enough circumstantial evidence pointing toward the pilot s negligence in a case involving a plane crash to establish negligence under res ipsa loquitur. 7. Galbraith v. Busch (NY, 1935)- the court declined to apply res ipsa loquitur in a case where plaintiff was a guest in his daughter s car, which was being driven by defendant, and the car swerved off the road despite clear weather and good road conditions. This could have happened for reasons other than the driver s negligence, such as a mechanical defect of which the driver had no reason to know. 8. Pfaffenbach v. White Plains Express Corp. (NY, 1966)- the court practically overturned Galbraith by holding that a vehicle s presence on the wrong side of the road established a prima facie case of negligence. H. Plaintiff s Conduct 1. Contributory negligence: a. The traditional view was that if plaintiff s actions were an immediate causal contributing factor to an accident, he could not recover damages

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b. Arguments for contributory negligence: a. More efficient, cuts litigation costs. b. Promotes care on behalf of plaintiffs. c. It is difficult to measure and assign a percentage of liability. d. A person who is at fault (a moral judgment) should not be able to recover damages. c. Defendant always bears the burden of proof for establishing plaintiff s contributory negligence and its causal relation to plaintiff s injuries. d. Butterfield v. Forrester (UK, 1809)- the court held that plaintiff could not recover damages from defendant who had negligently put up a pole across the road because plaintiff was negligent himself in riding very fast. One person being in fault will not dispense with another s using ordinary care for himself. Rule: a plaintiff will not be able to recover where his lack of due care contributed to the occurrence of the accident. Contributory negligence: behavior on the part of an injured plaintiff falling below the standard of ordinary care that contributes to the defendant s negligence, resulting in the p s injury. The standard of a reasonable person is used to determine negligence: the average reasonable person. Proximate cause: the natural sequence of events without which an injury would not have been sustained. e. Beems v. Chicago, Rock Island & Peoria R.R (Iowa, 1882) - the D contended that the fact P attempted to uncouple the railroad cars while the train was moving at an unusual rate of speed constituted contributory negligence which barred his recovery for the injuries resulting therefrom. Rule: the lack of contributory negligence on the part of the plaintiff renders the negligent defendant completely liable. Analysis: contributory negligence is a complete defense to liability for a defendant s negligence. It is believed a plaintiff should not recover if his own negligent actions contribute to the injury. Contributory negligence is not a defense to an intentional tort or where the defendant s conduct was shown to be wanton and reckless. Further, contributory negligence is not a defense where the defendant had the last clear chance to avoid the accident.

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e. Smithwick v. Hall & Upson Co. (CT, 1890)- the court did not find contributory negligence on behalf of plaintiff because, despite acting negligently in disregarding safety instructions, this negligence was not causally connected to the harm suffered. f. Gyerman v. United States Lines Co. ( Cal., 1972) contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is legally contributing causal connection with the negligence of the defendant in bringing about the plaintiff s harm. g. LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry. (1914)- the Court declined to apply contributory negligence when plaintiff s stacks of flax were set on fire by sparks caused by the negligence of defendant s driver. The Court rejected the argument that plaintiff was negligent in the placement of the flax on his own property and that he should have taken into account the potential negligence of others in determining how to use his property. Rule: The rights of one man in the use of his property cannot be limited by the wrongs of another. h. Derheim v. Fiorito Co. (WA, 1972)- the court declined to apply contributory negligence where plaintiff had not been wearing a seatbelt at the time of a car accident because this act did not contribute to the occurrence of the accident. Rule of law: failure to use a seatbelt is conduct which occurs before defendant s negligence, as opposed to contributory negligence which customarily is thought of in terms of conduct contributing to the accident itself. Assumption of risk doctrine: an affirmative defense to a negligence suit by the defendant contending that the plaintiff knowingly and voluntarily subjected himself to the hazardous condition wholly absolving the defendant of liability for injuries incurred. Mitigation of damages: a p s implied obligation to reduce the damages incurred by taking reasonable steps to prevent additional injury.

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i.

Spier v. Barker (NY, 1974)- the court held that the use of a seatbelt cannot be used to consider liability, but the jury may consider this in determining whether plaintiff has taken due care to mitigate injuries. Last clear chance doctrine- this doctrine held that when defendant had the last clear chance to avoid an accident, plaintiff s negligence will not be considered. This was an attempt to soften the effect of contributory negligence.

j.

2. Comparative Negligence: a. The modern view apportions damages based on the percentage of fault. This allows defendant to discount damages based on plaintiff s own negligence, but it does not bar recovery of damages. b. Li v. Yellow Cab Co. of California (CA, 1975)- the court explicitly moved away from contributory negligence and imposed a comparative negligence standard. The court adopted a pure form of comparative negligence, which apportions liability in direct proportion to fault in all cases. c. An alternate form of comparative negligence apportions liability up to the point at which plaintiff s negligence is equal to or greater than that of the defendant, at which point plaintiff is barred from recovery. Note that there are 3 forms of comparative negligence systems: First, there is the pure system discussed in this case. Second, there is the system in which the injured party can only recover if his negligence is less than the tortfeasor s. third, there is the system in which the injured party can only recover if his negligence is not greater than the tortfeasor s. d. One problem with comparative negligence is the lack of consistency and predictability in jury apportionment of fault. There is a question of whether judges should develop apportionment rules for common types of accidents and instruct the jury as such. 3. Assumption of Risk: a. Primary assumption of risk- the parties have agreed in advance, usually in the form of a waiver or written contract of some kind, that defendant owes no duty of care and plaintiff has therefore assumed the risks of engaging in a certain activity. 16

b. Secondary assumption of risk- plaintiff knew or should have known of the risk and acted unreasonably in light of that knowledge. This is essentially a subcategory of contributory negligence. c. Lamson v. American Axe & Tool Co. (MA, 1900)- the court held that an employee had assumed the risk of continuing to work at his job and could therefore not hold the employer liable when a hatchet falling off a rack struck him. He had previously informed the employer of the danger, and the employer told him he had to use the rack or leave the job. Rule: a person cannot recover for negligently inflicted when ha has acted to assume the risk of such injuries. Assumption of risk doctrine: an affirmative defense to a negligence suit by the defendant contending that the plaintiff knowingly and voluntarily subjected himself to abnormally dangerous condition wholly absolving the defendant of liability for injuries incurred. Analysis: in order to assume a risk a person must be shown to have recognized and actually understood the risk of injury, and that he voluntarily chose to undertake it. d. Courts in the 19th and early 20th centuries did not accept economic need as an excuse for assuming risk in an employment scenario. Courts were very hesitant to hold employers liable for employees injuries if the employee knew that there was a risk of such injuries by working in that job. e. Murphy v. Steeplechase Amusement Co. (NY, 1929)- the court held that a plaintiff who was injured while stepping onto the moving belt of an amusement park ride had assumed the risk associated with that ride, as he had observed others riding and knew what he was getting into, and the potential to fall was central to the adventure element of the ride. Rule: one who takes part in a sport accepts the dangers that inhere in it insofar as they are obvious and necessary and they are not so serious as to justify the belief that precautions of some kind must have been taken to avert them.

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f. Dalury v. S-K-I Ltd. (VT, 1995)- the court held that an exculpatory clause for a ski resort violated public policy, and plaintiff therefore did not assume the risks associated with defendant s negligence. Ski areas serve the general public and owe the same duties to them as any other business. The operators, not the skiers, have the greatest expertise and information to control and guard against hazards. Rule: a standard signed liability waiver form may be held unenforceable if it violates public policy. I. Vicarious Liability 1. Respondeat superior- employers are liable for an employee s tortious actions arising out of the scope of employment. Employers are in the position to assert control over their employees conduct, and they are more likely to be in a position to satisfy a judgment. 2. Ira S. Bushley & Sons, Inc. v. U.S. (Second Circuit, 1968)- the court held the U.S. liable for the actions of a sailor who caused damage to a drydock and ship while returning to his vessel drunk. The court held that these acts were reasonably foreseeable to the employer. This case represents an expansion of vicarious liability and an exception to the tendency for courts not to hold the federal government liable for employees negligence. Rule:an employer is vicariously liable for the reasonable foreseeable conduct of its employees performed within the scope of employment, even when such conduct was not motivated by a purpose of serving the employer Vicariously liability: the imputed liability of one party for the unlawful acts of another. J. Causation 1. Factual Causation a. Factual Cause- Restatement Third 26: Tortious conduct must be a factual cause of physical harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. b. New York Central R.R. v. Grimstad (Second Circuit, 1920)the court held that defendant was not liable for the drowning death of plaintiff s husband after he fell from a barge. While plaintiff argued that defendant was negligent 18

in not equipping the barge with preservers or buoys, the court held that this did not cause the harm because there is nothing to show that the wife would have gotten a buoy to him in time to save him (she could not get a rope to him in time). Rule: a negligent party is liable only for those damages which were actually caused by his negligence. c. Zuchowicz v. U.S. (Second Circuit, 1998)- the court upheld the lower court s finding of causation where plaintiff s wife had developed primary pulmonary hypertension as the result of defendant negligently prescribing an overdose of Danocrine. Plaintiff successfully demonstrated first that the injury was caused by the drug, and second that the overdose specifically caused the injury. Rule: where a negligent act increases the chances that a particular type of accident would occur, and such an accident does in fact occur, a court may conclude that the negligent conduct was the cause of the injury. d. Loss of a Chance: i. Herskovits v. Group Health Cooperative (WA, 1983)- the court held that defendant may be liable for negligently failing to diagnose cancer and thus causing a 14% reduction (from 39% to 25%) in patient s chance of survival despite the fact that he was statistically more likely to die even in the absence of such negligence. This is because defendant s negligence has deprived the patient of a percentage chance of survival, and the alternative rule would allow doctors off the hook anytime the patient is more likely to die. The court provided the jury with a substantial factor instruction. Rule: a defendant s conduct that increases the risk of death by decreasing the chances of survival is sufficient to take the issue of proximate cause to the jury ii. The old common law rule was that if plaintiff can show more than a 50% probability that defendant caused the injuries, then she could recover 100% of the damages. There is a movement toward a sliding scale in which plaintiff can recover a corresponding portion of damages based on the probability that defendant caused an injury. This is commonly used in loss of chance cases.

e. Substantial Factor: Multiple tortfeasors; alternative liability and Market share liability

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i. Courts will often apply a substantial factor test if the ordinary but for test creates an anomalous result. For conduct to be a legal cause, it must be a substantial factor in bringing about the harm. Restatement Second 431. ii. This is commonly applied when there are two concurrent events either of which alone would be sufficient to cause the harm but neither of which is strictly necessary to bring about the harm due to the presence of the other. Restatement Second 432(2). iii. Kingston v. Chicago & N.W. Ry. (WI, 1927)- the court held defendant liable when two fires of separate origins, one of which was caused by sparks from defendant s locomotive, the other of which is unknown, converged to burn down plaintiff s property. Rule: a party causing a fire which unites with another man-made fire is liable for all damages caused by the united fires. f. Expert Testimony: i. Frye v. U.S. (D.C. Circuit, 1923)- the court held that only expert testimony that had been generally accepted as reliable by the scientific community is admissible at trial. ii. Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)- the Supreme Court rejected the Frye standard and allowed federal courts more leeway to admit scientific testimony that is less widely accepted. g. Joint Liability: i. Smith v. J.C. Penney Co. (OR, 1974)- the court held that the maker and seller of a flammable coat may be liable for injuries plaintiff suffered when her coat was set on fire through the negligence of a gas station attendant. The jury could infer from the facts that the coat contributed to plaintiffs injuries despite the fact that it is impossible to determine exactly which injuries were caused by the coat and which would have occurred even in the coat s absence. ii. Summers v. Tice (CA, 1948)- the court held two defendants jointly liable despite the fact that they acted independently when plaintiff was shot in a hunting accident. Both defendants shot in plaintiff s direction simultaneously, and it was impossible to show which defendant was responsible for the shots that hit him, and defendants had no idea either. Joint liability is necessary to ensure that the injured plaintiff

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is not deprived of redress merely because of the freak nature of the harm. Rule of law: when two or more persons by their acts are possibly the sole cause of a harm, and the plaintiff has introduced evidence that one of the two persons is culpable (responsible), then the defendant has the burden of proving that the other person was the sole cause of the harm. iii. Joint and several liability: (a) In joint and several liability each defendant is liable for their own share as well as any share that codefendants are unable to pay. (b) The old common law rule was that if there were two causes that contributed to a harm but plaintiff could not demonstrate that either was more than 50% responsible, then plaintiff could not recover from either party. This rule has shifted toward joint and several liability. (c) Restatement Third holds that all joint tortfeasers are fully responsible for the undivided consequences of their own actions. (d) Joint and several liability applies when multiple defendants have harmed plaintiff but it is not clear which party is liable for which portion. The burden then shifts to the individual defendants to demonstrate that they are less liable than other defendants. This incentivizes disclosure of information held by defendants and functions to spread risk. (e) Several liability- each party is liable for their share of the damages. (f) Joint liability- each party is liable for any portion that other defendants cannot pay. h. Market Share Liability: i. Sindell v. Abbott Laboratories (CA, 1980)- the CA Supreme Court adopted market share liability for DES, a cancercausing drug ingested during pregnancy. This standard apportions liability to manufacturers in proportion to each 21

individual company s market share during the relevant time period. This allows recovery when it is impossible to identify which company manufactured the specific product that caused the harm. The rationale only holds for homogenous products. The idea is that companies will be held liable for their share of the aggregate harm caused even if they did not cause a specific harm. ii. Skipworth v. Lead Industries Association (PA, 1997)- the court declined to adopt market share liability for poisoning caused by lead paint because this would have lead to unfair apportionment of liability on defendants. The relevant time period (over 100 years) is much longer than DES, so many defendants would not have even been in the market at the time the injuring paint was applied. Also, lead pigments vary in terms of their toxicity, unlike DES, which is entirely homogenous. Market share liability: the apportionment of liability between each participant in an industry equal to the participant s market share. 2. Proximate Causation a. Negligence requires that defendant s action is sufficiently close in the causal chain to the injury suffered. There can be no disruption in the causal chain, and it cannot be a remote cause. Proximate cause is highly indeterminate. b. Two models of proximate cause: i. Backward-looking model (direct cause test)- asks if there was any break in the causal chain by a third party s actions. ii. In re Polemis & Furness, Withy & Co. (UK, 1921)- the court held defendant shipping company liable for damages when subcontracted stevedores dropped a plank in the course of discharging a ship, which fell into a hold storing gasoline. This caused an explosion and led to the loss of the ship. The court rejected defendant s argument that the damages were too remote. While the specific harm resulting from their negligence may not have been foreseeable, some harm was foreseeable. Rule: once the negligence of a party has been established, he may be held liable for all the consequences, foreseeable or not, of his conduct

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iii. Forward-looking model (foreseeability test)- asks if the results were reasonably foreseeable at the time of action. This tends to be more plaintiff friendly. iv. Overseas Tankship Ltd. v. Morts Dock & Engineering Co. (Wagon Mound (No. 1)) (Australia, 1961)- in a decision for defendant, the court held that the results of a negligent act must be reasonably foreseeable in order to establish negligence. In this case defendant dumped oil into the harbor, which was carried by wind and waves to plaintiff s wharf. A third party told plaintiff that the oil was not flammable, and plaintiff therefore allowed workers to continue welding in the area. The oil caught fire and destroyed the wharf. Defendant was not liable because he did not know and could not reasonably be expected to have known that it was capable of being set afire when spread on water. c. Connection Between Increased Risk and Harm Caused: i. Restatement Third 29: An actor s liability is limited to those physical harms that result from the risks that made the actor s conduct tortious.

d. Ryan v. New York Central R.R. (NY, 1866)- the court held that defendant s actions were not a proximate cause of plaintiff s injuries when defendant set fire to his own wood shed and the wood within and the heat and sparks set plaintiff s house on fire 130 feet away. The court determined that the damages here were not immediate but remote, as a set of circumstances outside of defendant s control (i.e. wind, materials of adjoining structures, etc.) led to the eventual harm. This decision is justified largely as an effort to protect defendants. The court says that others must insure their own homes, and defendant should not have unlimited liability. This case represents an older view of proximate cause that has been discarded.

e. Berry v. Sugar Notch Borough (PA, 1899)- the court held that plaintiff s act of speeding was not a proximate cause of a tree falling onto the roof of his car when it was blown down. Defendant s contributory negligence argument would essentially hold plaintiff liable for having been in a certain place at a certain

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time. Plaintiff s actions did not increase the risk of a tree falling on his car. e. Dillon v. Twin State Gas & Electric Co. (NH, 1932)- when plaintiff fell off a bridge while trespassing, grabbed defendant s high-voltage wires, and was killed by the current, the court held that defendant was not liable for the fall because the boy was trespassing but liable for his exposure to uncovered wires. f. Third Party Action i. Restatement Second states that third parties actions break the causal chain unless they are foreseeable. ii. Central of Georgia Ry. v. Price (GA, 1898)- the court held that a railroad company was not liable for the harm plaintiff suffered when a kerosene lamp exploded at the hotel in which they had set her up after negligently failing to drop her off at her station. The railroad s negligence was not a proximate cause of plaintiff s injuries because the hotel was an intervening cause, and this was not a foreseeable risk. iii. Hines v. Garrett (VA, 1921)- the court held that a railroad company was liable for the harm plaintiff suffered when they failed to drop her off at her stop thus forcing her to walk through a dangerous area where she was raped twice. In this case the harm was foreseeable, and defendant s actions directly increased the risk of harm to plaintiff. iv. Pittsburg Reduction Co. v. Horton (AR, 1908)- the court held that defendant company was not liable when one of its dynamite caps was discovered by a child and passed from child to child with the knowledge of one of the mothers before it exploded and injured plaintiff. The court held the boy s mother to be an intervening agency by allowing him to play with the cap therefore defeating proximate causality. This is despite the fact that the mother claimed to have not known what the caps were. v. Watson v. Kentucky & Indiana Bridge & R.R. (KY, 1910)- when a tank car carrying gasoline derailed as a result of defendant s negligence and a third party threw a match on it starting a fire, the court held that defendant would not be liable if the person (a disgruntled former employee) acted maliciously. 24

vi. Brower v. New York Central & H.R.R. (NJ, 1918)- the court held defendant s acts to have proximately caused plaintiff s loss when defendant s wagon was in an accident in which the contents were scattered and probably stolen. The driver was stunned, and the guards on the wagon did nothing to prevent the theft of plaintiff s property. The act of a third person intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. vii. Bigbee v. Pacific Telephone and Telegraph Co. (CA, 1983)- the court held defendant liable when plaintiff was struck by a drunk driver while trapped in defendant s booth because such an accident was foreseeable. The phone booth was damaged because it had been hit by a drunk driver previously. viii. Bell v. Board of Education (NY, 1998)- the school district was held liable when they left a student behind at a 6th grade drug awareness fair and she was attacked and raped on the way home because this was foreseeable. g. Wagner v. International Ry. (NY, 1921)- the court held that defendant was liable for the injuries to someone attempting to rescue an imperiled victim who had been put in that situation through defendant s negligence. In this case plaintiff exited a train car on a bridge after his cousin was thrown out to try to rescue him when plaintiff fell off the bridge. Danger invites rescue, and defendant may be held liable for harm to plaintiff even though he exercised his own volition in attempting to rescue his cousin. h. Kahn v. East Side Union High School District (CA, 2003)- the court reversed a directed verdict for defendant because there was a question of whether plaintiff s training contributed to her injury when plaintiff, a member of the JV swim team, broke her neck while diving into a pool. i. Palsgraf v. Long Island R.R. (NY, 1928)- the court held defendant was not liable for plaintiff s injuries when an employee knocked a package out a passenger s hands while trying to help him onto the train, and the package containing fireworks exploded causing scales at the other end of the platform to fall and injure plaintiff. While the employee may have acted negligently toward the person boarding the train, 25

he was not negligent toward plaintiff standing on the other end of the platform. There was nothing that would have allowed even the most cautious employee to recognize the risk involved because the explosives were concealed. - In dissent, Andrews argues that defendant should be liable because of the direct causal chain leading from defendant s negligent act to plaintiff s injuries. j. Marshall v. Nugent (First Circuit, 1955)- defendant, Nugent, was held not liable when, while trying to stop quickly, he struck plaintiff with his car. Plaintiff had walked around a corner to warn oncoming traffic of an accident in which he had been forced off the road by a truck sliding on a curve. A second defendant, the company s whose driver caused the original accident was held liable for plaintiff s injuries. The mix up caused by a traffic accident is foreseeable and not too remote from the original negligence that brought the situation into existence. Rule: the defendant remains liable for the full consequences of his negligent act when the intervening force is one which a reasonable man would have foreseen as likely to occur under the circumstances, and the issue of foreseeability remains a question of fact for the jury. K. Affirmative Duties 1. Duty to Help Strangers = duty to rescue a. There is generally no duty to rescue a stranger under the common law. A nonactor is not responsible for the unfortunate situation in which a person finds oneself. Therefore there can be no liability for inaction. b. Buch v. Amory Manufacturing Co. (1897)- the court held that defendant did not have a duty of care to remove an eight-year-old child from dangerous premises. Defendant therefore was not liable when plaintiff was injured by machinery in defendant s mill. There generally is no affirmative duty to protect a stranger. Rule: a landowner has no duty to warn a trespasser of the existence of a dangerous condition or object even if the trespasser is a mere child. Analysis: active negligence subjects a party to liability for damages caused by his conduct. A failure to act, on the other hand, does not ordinarily make a party liable for any of the damages which he could have prevented, no matter how easily he could have caused the harm to be averted. No one is required by law to act as a good Samaritan . 26

where one party has : created the danger with which another party is threatened, or - the two enjoy some special relationship, a duty to warn of protect against the peril may arise. Good Samaritan law: a statute relieving a bystander from tort liability for the attempted rescue of another. g. Hurley v. Eddingfield (IN, 1901)- the court held that a doctor had no duty to treat someone who came to him for help. Doctors have a right to refuse entry into contracts of employment. h. Stockberger v. U.S. (Seventh Circuit, 2003)- the court declined to impose liability on the coworkers of a hypoglycemic employee at a prison for allowing him to drive home despite the fact that they were aware of the risks in doing so and provided him with a food substitute to give him the strength to drive. i. Montgomery v. National Convoy & Trucking Co. (S.C, 1937)-a duty to warn of an existing danger must be carried out in a manner reasonably calculated to prevent harm. -

2. Duties to Visitors on Property = duty of owners and occupiers a. Robert Addie & Sons (Collieries), Ltd. v. Dumbreck (UK, 1929)- the court distinguished between three categories of visiting persons: i. Invitees- highest duty of care: a person who enters upon another s property by an express or implied invitations and to whom the owner of the property owes a duty of care to guard against injury from those hazards that are discoverable through the exercise of reasonable care.

ii. Licensees: persons known to an owner or occupier of land, who come onto the premises voluntarily and for a specific purpose although not necessarily with the consent of the owner

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iii. Trespassers- no duty of care: persons present on the land of another without the knowledge or express permission of the owner, and to whom only a minimum duty of care is owed for injuries incurred while on the premises. The court determined that a four-year-old boy injured by defendant s machinery was a trespasser and therefore entitled to no duty of care. Defendant had warned children and adults to stay off his property, although he knew the warnings had little effect. b. Attractive Nuisance: i. Land owners may be held liable for injuries to trespassing children caused by an artificial condition on their property if: (a) They know or have reason to know that children are likely to trespass. (b) They know or have reason to know that the condition would be dangerous to children. (c) Children would not sufficiently appreciate the danger. (d) The burden of eliminating the danger does not outweigh the risks. ii. Rowland v. Christian (CA, 1968)- the court reversed a grant of summary judgment for defendant where plaintiff was injured as a guest at defendant s home when a porcelain handle on a water faucet broke. Defendant knew of the crack but did not warn the guest. He had asked the landlord to repair it. The CA Supreme Court disposed of the categorical rules based on a person s status as invitee, licensee, or trespasser and replaced them with a new reasonability standard. The question is whether the host acted as a reasonable person would in light of the potential for injury to others. A host has a duty to repair or at least warn as to practical risks. Rule: where a land occupier is aware of a concealed condition involving, in the absence of precautions, an unreasonable risk of harm to those coming in contact with it, and is aware that a person is about to come in contact with it, the failure to warn or to repair the condition constitutes negligence Foreseeability of harm: an inquiry into the relatedness of events that contributed to the p s injury; whether the harm was foreseeable determines whether the tortfeasor s conduct was the proximate cause of the injury. ii. Maalouf v. Swiss Confederation (2002)- the court allowed a case to go to the jury on an attractive nuisance theory when a 28

child was injured in a sledding accident on the grounds of the Swiss Embassy when he hit a wire propping up a tree. The court stated that it was not important that it was a natural condition that drew the children onto the property because the dangerous condition that caused the injury was artificial. c. Invitee vs. Licensee i. Invitee- a public invitee or business visitor owed the highest duty of care. A property owner has a duty to affirmatively ensure the safety and protection of invitees because they have placed themselves under the care of the owner, and the owner stands to gain economically from their presence on his property. ii. Licensee- this is everyone who is not an invitee or a trespasser. This is an ordinary guest who is not on one s property to engage in economic activity and is owed a lesser duty of care. Courts will usually distinguish between invitees and licensees by inquiring as to the nature and function of the property, as opposed to why a specific person was on the property at a given time. Lemon v. Busey (KS, 1969)- the court held that a child was a licensee and denied recovery when his grandma, an employee of the church, brought him to the church and he fell to his death while unsupervised. Knorpp v. Hale (TX, 1998)- the court held that a guest who was injured while cutting a tree for his host was a licensee despite the fact that a professional doing the same job would be considered an invitee.

iii.

iv.

v.

vi.

U.S jurisdictions are now divided between those applying the traditional trichotomy and those applying Rowland. Some jurisdictions have adopted Rowland s disposal of the invitee and licensee categories but maintained the traditional rule of no duty of care to trespassers.

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3. Duty to Control Third Party and special relationships a. A person generally does not have a duty to control the conduct of a third party unless there is a special relationship that imposes such a duty (i.e. parent/child) or the person owes a duty to protect others from third parties based on a special relationship (doctor/patient). b. Kline v. 1500 Massachusetts Ave. Apartment Corp. (D.C. Circuit, 1970)- the court held that a landlord had a duty to protect the tenants from the foreseeable criminal acts of third parties. A landlord is responsible for maintaining the common areas of his property so as to minimize the risk that tenants may be exposed to an unreasonable risk of criminal attack. c. Nivens v. 7-11 Hoagy s Corner (WA, 1997)- the court held that the convenience store had a heightened duty of care to the customers, but it did not have a duty to hire a security guard. d. Tarasoff v. Regents of University of California (CA, 1976)the court held that a psychiatrist (and his employer) may be held liable for failure to warn potential victims when a patient had informed the therapist of his intention to kill the victim. This case represents the high water mark for imposing liability on psychiatrists. This placed them in the difficult position of needing to balance obligations of confidentiality with the duty to warn when they became aware of potential harm. Rule: where a person bears a special relationship to a party or others who may be the victim of the conduct and it is reasonably foreseeable a legally cognizable duty arises to protect or control the third party. III. Strict Liability A. In General 1. Strict liability is concerned with whether one caused a harm without regard for breach of any duty. 2. Strict liability still requires both factual and proximate causation.

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We apply SL if case of: Wild animals Abnormally dangerous activity Product liability Nuisance

B. Abnormally Dangerous Activities 1. Restatement Second 519 imposes strict liability on abnormally dangerous activities so long as the harm suffered is the kind the possibility of which makes the activity abnormally dangerous. 2. Restatement Second 520 lists the factors for determining whether something is an abnormally dangerous activity. a. b. c. d. e. f. High risk of harm. Potential harm likely to be great. Inability to eliminate risk through care. Activity is uncommon. Inappropriateness of place for the activity. Danger outweighs social value.

3. Restatement Second makes the question of whether something is an abnormally dangerous activity a question for judicial determination. This is a discretionary standard that involves weighing the various factors. 4. Gehrts v. Batteen (S.D, 2001) an owner of a domesticated animal may be liable for harm caused by his pet if the owner knows, or has reason to know that the animal has abnormally dangerous propensitites, regardless of the amount of care exercised by the owner. If an owner does not have actual knowledge, an action can still survive if an ordinary prudent person should have foreseen the event that caused the injury and taken steps to prevent the injury. Review Rylands v. Fletcher

5. Spano v. Perini Corp. (NY, 1969)- the court held that defendant could be held strictly liable for damage to a neighbor s property caused by defendant s use of dynamite on his property because this activity presents a high risk of harm even when done with a high degree of care, and defendant is in the best position to shoulder the risk. 31

Rule: one who sets off explosives is absolutely liable for damages caused without regard to trespass or fault. 6. Indiana Harbor Belt R.R. v. American Cyanamid Co. (Seventh Circuit, 1990)- the court declined to apply strict liability in a case where highly toxic and flammable chemicals leaked out of a railcar resulting in a very expensive cleanup. Whereas defendant sought to hold the manufacturer strictly liable (as opposed to the carrier), the court held that the relevant activity in this case was the transportation, not the manufacturing. Rule: SL will not be imposed against the manufacturer of a toxic chemical for accidents occurring during transportation. 7. Assumption of risk applies to strict liability for abnormally dangerous activities just as in negligence cases. Restatement Second 523. 8. Strict liability does not extend to harms caused only as a result of the abnormally sensitive character of the plaintiff s activity. Restatement Second 524A. C. Nuisance 1. Nuisance- a person s invasive conduct that constitutes an unreasonable interference with another s use and enjoyment of his property. 2. The unreasonableness of an intentional invasion is based on whether the harm outweighs the utility of the conduct, or whether the problem is serious and allowing a person to tort and pay would not get rid of the problem. 3. Nuisance is analyzed under strict liability in most (but not all) jurisdictions. 4. Principles for resolving clash of rights: a. First in time, first in right. b. Highest and best use of land. Vogel v. Grant-Lafayette Electric Cooperative (Wis, 1996) excessive stray voltage is actionable as a private nuisance if the trier of fact determines that such voltage unreasonably interferes with a person s interest in the private use and enjoyment of land.

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Analysis: many jurisdictions impose an unreasonable requirement in nuisance laws (if the interference with p s use and enjoyment of his property is unreasonable) Michalson v. Nutting (Mass. 1931) a property owner is not liable for damage to the adjoining property of another that is caused by the roots of a tree growing on his land. 5. Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. (FL, 1959)- the court vacated an injunction that would enjoin defendant from building an addition to its hotel that would cast a shadow on plaintiff s space. The court held that there is no right to the free flow of light and air. This is not a nuisance. Rule: a landowner may make reasonable and lawful use of his own property as long as he does not interfere with the legal right of his neighbors or create a nuisance. 6. The pronouncement in Fontainebleau that there is no right to light and air is not universally held. 7. Courts have held that fences erectly maliciously with no purpose except to spite neighbors are a nuisance. 8. Courts have traditionally not considered purely aesthetic decisions to be nuisance, but this idea is evolving. 9. Ensign v. Walls (MI, 1948)- the court granted an injunction for plaintiff holding that defendant s dog breeding and boarding business in a residential neighborhood was a nuisance. Rule: the fact that an alleged nuisance existed long before those objecting to it moved onto the vicinity does not necessarily prevent a court from ordering it abated. 10. Boomer v. Atlantic Cement Co. (NY, 1970)- the court held that a factory emitting smoke, dirt, and vibrations was a nuisance. The court awarded damages to plaintiffs but refused to grant an injunction. This is a private nuisance case despite the fact that the issue of air pollution could raise to a public nuisance. Rule: although a nuisance will be enjoined even when a marked disparity is hown in economic consequence between the effect of the injunction and the effect of the nuisance, if the practical effect of the injunction will be to close a production plant, a court will condition on equitable grounds the continuance of the injunction on the payment of permanent damages.

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11. Public Nuisance: a. Conduct that interferes with the exercise of a common right of the public. This is a violation against the state and may be prosecuted by the government. b. Private actions under public nuisance require a showing of exceptional and individualized harm on behalf of the plaintiff. This does not require that plaintiff is a landowner or renter in the area of the nuisance so long as that person can show that she is greatly and disproportionately affected. c. 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Center, Inc. (NY, 2001)- the court dismissed plaintiff s public nuisance case when 15 blocks of Madison Ave. were shut down after the partial collapse of defendant s building due to construction work aggravating an existing structural defect. The court held that plaintiff could not show exceptional harm, as all the stores in the area suffered similar loss of business, even if the damages varied greatly. Rule: (1) a landowner has no duty in negligence to protect an entire urban neighborhood against purely economic loss. (2) when businesses are forced to close their establishments because of the collapse of nearby structures, and incur damages as a result, if the businesses do not incur special damages beyond those suffered by the public, they do not have a valid cause of action for public nuisance. d. Camden County Board of Chosen Freeholds v. Baretta U.S.A. Corp. (Third Circuit, 2001)- the court held for defendant in a public nuisance case against gun manufacturers because they had not engaged in the violent activities that plaintiff cited as the nuisance. Rule: if an entity does not exercise control over the nuisance, a valid public nuisance claim cannot be made. 12. Remedies for Nuisance: a. Nuisance implicates both tort and property law. Whereas property law generally prefers equitable remedies, tort law deals primarily in damages. b. An injunction gives the power to the plaintiff to set the price at which defendant may continue the enjoined activity. 34

c. An injunction may be an appropriate remedy for a nuisance of which the harm is very great. d. Damages are preferable if the costs of bargaining are very high (large number of plaintiffs, etc.) or if there is a high potential for exploitative dealings. e. Damages function so that the court essentially sets a market price for the activity. The parties can then order their behavior around this price. f. Spur Industries, Inc. v. Del E Webb Development Co. (AZ, 1972)- the court granted an injunction for plaintiff holding that defendant s cattle feed lot was a nuisance, as the smells and flies were making the houses in plaintiff s development unsellable. However, the court required plaintiff to pay defendant s moving costs. D. Products Liability 1. Restatement Second 402A: a. Text: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. b. A product is not defective if it is safe for normal use. c. Unreasonably dangerous means dangerous beyond that which would be ordinarily contemplated by a consumer.

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d. Unavoidably unsafe products (i.e. drugs) are not unreasonably dangerous if provided with proper directions and warnings. e. A seller is not required to warn as to products that are only dangerous in excessive quantities. f. A seller is strictly liable even if the consumer does not know who he is at the time. g. Under Restatement Second, injured bystanders or third parties may not sue for products liability. The text only applies to the user or consumer. Restatement Third drops this limitation and applies to anyone who is harmed by a product (see below). h. Both Restatements apply equally to manufacturers and retailers. The language is broad in applying to anyone who sells a product. 2. Restatement (Third) of the Law of Products Liability: a. 1: One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect. b. 2. Categories of Product Defects: A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product: (a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product. (b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;

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(c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe. c. 3 Circumstantial Evidence Supporting Inference of Product Defect: It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff: (a) was of a kind that ordinarily occurs as a result of product defect; and (b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution. 3. Two recurrent issues in products liability: a. Causation- is the injury the manufacturer s fault or the consumer s fault? b. Cross-subsidization problem- the courts do not want to assign risk to manufacturers on matters over which they have no control. 4. Historical Development: a. Winterbottom v. Wright (UK, 1842)- this case represents the old privity rule. The court held that plaintiff could not sue defendant when plaintiff was thrown from a carriage that defendant had serviced due to a latent defect that caused it to break down. There is no privity here. Plaintiff had no relationship or agreement with defendant and therefore may not bring suit against him. He could only sue the owner of the coach because he had a direct relationship with this person. b. Huset v. J.I. Case Threshing Machine Co. (Eighth Circuit, 1903)- the court articulated three exceptions to the privity rule: i. Negligence on behalf of a manufacturer. ii. Owner s negligence causing injury to an invitee. 37

iii.

Sale of a product known to be dangerous without notice.

c. MacPherson v. Buick Motor Co. (NY, 1916)- P purchased a car for his wife who was injured when a defective wheel collapsed; the court held that Buick was liable for a defective wheel that led to plaintiff s injuries. The court set forth three elements for establishing product liability: i. The product is likely to be dangerous if defective. ii. The product is likely to be used by others besides the immediate buyer. iii. The producer breached a duty of care to make the product carefully. d. All U.S. jurisdictions now follow the MacPherson rule of not requiring privity for products liability cases. e. Escola v. Coca Cola Bottling Co. of Fresno (CA, 1944)- the court held defendant liable for injuries caused when a glass bottle exploded in plaintiff s hand based on res ipsa loquitur. Rule: the manufacturer of a defective product should be held strictly liable for any injuries which result from the use of the product. - In concurrence, Traynor argues that the court should impose strict liability for products liability because the manufacturer is in the position of best information and greatest ability to control risk. f. Henningsen v. Bloomfield Motors, Inc. (NJ, 1960)- the court held that defendant had breached an implied warranty of merchantability when plaintiff s wife was injured due to a steering mechanism defect in the car. This was despite the fact that the contract expressly disclaimed all warranties except to the original purchaser. g. Greeman v. Yuba Power Products, Inc. (CA, 1963)- the court held defendant liable for defective construction when plaintiff was injured by a piece of wood while using a power tool manufactured by defendant. The court awarded damages based on negligence as well as breach of both express and implied warranties. A manufacturer is strictly liable as a matter of law when a product known to be used without inspection proves defective and causes an injury. This is the seminal case for establishing strict products liability.

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h. Speller v. Sears, Roebuck and Co. (NY, 2003)- the court rejected defendant s argument that once they put forward a theory of what started the fire in plaintiff s kitchen that conflicted with plaintiff s account, plaintiff must prove their account through direct evidence. The court allowed plaintiff to use negative inference and circumstantial evidence to argue that a defect in a refrigerator manufactured by defendant caused the fire. Rule: the circumstantial approach to proving a product liability action requires proof that the product did not perform as intended and all other causes for the product s failure, that are not attributable to the defendants, have been excluded. i. Heeding presumption- in cases of inadequate warning, courts will often apply a rebuttable presumption that plaintiff would have followed the warning had it been provided. Plaintiff does not need to prove that the lack of warning caused the accident.

5. Defective Design Tests: a. Barker v. Lull Engineering Co. (CA, 1978)- the court set forth two standards for determining whether a product is defectively designed: i. It fails to perform as safely as an ordinary consumer would expect when used as intended or in a reasonably foreseeable manner. The benefits of the challenged design do not outweigh the risk of danger inherent in such a design. The jury may consider: (a) Gravity of danger. (b) Likelihood of injury. (c) Feasibility of safer design. (d) Cost of improved design. (e) Adverse consequences of the alternative design. b. While Restatement Second endorses the consumer expectations test, Restatement Third endorses the risk/utility test. c. Halliday v. Sturn, Ruger & Co. (MD, 2002)- the court declined to hold a handgun manufacturer liable for the death of plaintiff s son when he died while playing with his father s gun that had been left under the mattress. The court rejected plaintiff s argument that it was defectively designed because of a lack of childproof features. The gun came with warnings, instructions, a free safety course, and 39 ii.

a lockbox. The court applied the consumer expectation test from Barker but declined to apply the risk-utility test as plaintiff argued it should. The gun worked exactly as a consumer would expect it to work and was therefore not defectively designed. 6. Preemption a. Field preemption- a federal statute or regulatory scheme is comprehensive so as to preempt all state laws dealing with the same subject matter. b. Conflict preemption- a federal statute conflicts with a specific state law and therefore preempts on that specific issue. c. Geier v. American Honda Motor Co. (2000)- the Court held that a federal law requiring passive restraints in some 1987 vehicles preempted state tort actions for defective design based on lack of airbags. Three questions: i. Does the statute expressly preempt the suit? No. ii. Do ordinary preemption principles apply? Yes. iii. Does the lawsuit conflict with federal policy? Yes. The Court held that the federal regulation was designed to permit a variety of safety devices and intended to leave a broader range of choices to the manufacturers. DOT recognized the trade-offs with various devices. The state law at issue is inconsistent with this regime. This is an example of conflict preemption. d. Sprietsma v. Mercury Marine (2002)- the Court held that the Federal Boat Safety Act of 1991 did not preempt a state tort action for a person killed after falling overboard from a ski boat with a 115 horsepower outboard motor. IV. Intentional Torts A. In general 2. Intent- Restatement Third of Torts 1: A person acts with the intent to produce a consequence if: (a) the person acts with the purpose of producing that consequence; or (b) the person acts knowing that the consequence is substantially certain to result. 3. In intentional torts, damages can far exceed that which would have been immediately foreseeable at the time of action. 4. After a plaintiff makes a prima facie case for an intentional tort, a defendant may: 40

a. Dispute the facts. b. Argue that the facts as presented do not create a cause of action. c. Argue that the evidence presented is not sufficient to meet the burden of proof. d. Put forward affirmative defenses for one s actions. 5. Intentional torts are far less dependent on specific circumstances than torts involving negligence. B. Trespass against person 1. Battery- Restatement Second of Torts 13: An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results. 2. Vosburg v. Putney (WI, 1891)- the court held that a wrongdoer is liable for all injuries resulting from an unlawful touching even if the injuries are not foreseeable. In this case a fellow student lightly kicked plaintiff in the shin, and the contact reaggravated a previous injury leading to permanent loss of use of the leg. The question of intent is not as to the resulting harm but rather to the primary conduct of kicking plaintiff. 3. Garratt v. Dailey (WA, 1955)- the court held that intent for the purpose of battery is satisfied if a person acts knowing with substantial certainty that harm will result from one s act. In this case, plaintiff, an elderly woman, alleged that defendant intentionally moved the chair out from under her as she was trying to sit, thus causing her to fall and injure herself. 4. Offensive contact is any contact that is unwanted. This is highly contextual, as some types of contact would be offensive in certain contexts but not in others. 5. Transferred intent- intent is met if a person intends to commit a battery against one person and ends up battering someone else. C. Trespass against land 2. Trespass quare clausam- trespass on real property.

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3. Trespass to land only requires unauthorized entry on someone else s land. Dougherty v. Stepp (1835)- p entered the enclosed property of D without permission; the court held that every unpriviledged entry onto the land of another is a trespass regardless of the amount of damages. 4. It does not require a harmful result or any specific injury to the person s property. The law shifts risk heavily onto the trespasser because it is relatively easy to avoid trespassing on land. Trespass to land is also less factually complex and context dependant than trespass to person. 5. The remedy for trespass to land is usually in the form of an injunction unless the trespass has caused harm to the property. D. Trespass against personal property 2. Trespass to chattels elements: a. Intent. b. Unauthorized use of personal property. c. Results in damage to property or deprives the rightful owner of use or access to the property. 3. Restatement Second of Torts 218, comment e (in part): one who intentionally intermeddles with another s chattel is subject to liability only if his intermeddling is harmful to the possessor s materially valuable interest in the physical condition, quality, or value of the chattel, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest of the possessor is affected 4. Intel Corp. v. Hamidi (CA, 2003)- the court held that there was no cause of action for trespass to chattels where a former employee was sending disruptive messages criticizing the company to current employees. The court rejected Intel s argument that their computer network was a chattel and that defendant was trespassing through using the network to communicate with employees without authorization. Intel was unable to show any actual damage to the network or that defendant had somehow deprived the company of access to or use of the network. The court also rejected Epstein s argument in testimony for plaintiff that the network should be treated as real property (therefore removing the element of actual damages).

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Rule: the tort of trespass to chattel does not envompass an electronic communication that neither damages the recipient computer system nor impairs its functioning. 5. Remedies for trespass to chattels can include injunctions and damages. E. Defenses to Trespass 1. Emergency/Consent a. Mohr v. Williams (MN, 1905)- the court reinstated a jury finding that defendant, a surgeon, had not acted out of emergency when he intentionally operated on plaintiff s left ear despite the fact that the agreement was to operate on the right ear. The court rejected defendant s argument that consent was implied by giving consent to operate on the other ear for a similar reason. Despite consulting plaintiff s family doctor and believing in his expert opinion that it was not in the interest of the patient to put off surgery, the court held that this was an unlawful touching done without plaintiff s consent and therefore a battery. Rule: if the d s actions exceed the consent given and he does a substantially different act than the one authorized, he is liable. b. Modern medical consent forms require patients to sign a form granting the doctor authority to perform operations that the surgeon finds to be necessary in the course of surgery. c. Canterbury v. Spence (D.C, 1972) a physician owes a duty to reasonably disclose all information concerning an operation to a patient which a reasonable physician in the community would disclose based on sound medical considerations. d. Hoofnel v. Segal (KY, 2006)- the court held that a signed consent form overruled previous statements when the plaintiff orally told the doctor not to remove her female parts but the doctor went on to perform an operation that he found necessary although contrary to her oral request. 2. Insanity a. McGuire v. Almy (MA, 1937)- the court held that insanity does not release a person from liability so long as the intent required of a sane person is present. In this case, plaintiff

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was injured while working in a mental institution and sued for battery. b. Insanity is an extremely limited defense and very difficult to prove. It only pertains to situations in which insanity affects the actual volitional movement of a defendant. c. Insanity cannot be claimed as a defense if the person intended the action but acted based on unreasonable beliefs regarding the circumstances. d. The law shifts risk onto the caretakers of the insane. e. Temporary insanity caused by the willful consumption of drugs is not a defense. 3. Self-Defense a. A person is entitled to use reasonable force in preventing an imminent battery or stopping one that is in progress. b. Courvoisier v. Raymond (CO, 1896)- the court held that a person can claim self-defense if there is a reasonable mistake that leads someone to harm the wrong person. In this case defendant mistakenly shot a police officer while attempting to defend his home against trespassers. The court sent the case back to a jury to determine if the mistake was reasonable. Rule: an action of force is justified by self-defense whenever the circumstances are such as to cause a reasonable man to believe that his life is in danger or that he is in danger of receiving great bodily harm and that it is necessary to use such force for protection. c. Self-defense is much more secure as a defense to intentional torts when plaintiff has in fact attacked defendant. If defendant attacked first, plaintiff will usually be relieved of liability. 4. Defense of Property a. An individual is only permitted to defend property from a reasonable threat. b. A person may not use force such as to risk death or serious injury unless the trespasser is threatening violence or endangering human life by his actions.

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c. An attempt to defend property through the use of a mechanical device (i.e. spring gun) in one s absence will be held to the same standard as if the person had been there in person. d. Byrd v. Holbrook (C.P, 1825) P was injured by a spring gun on D s property; the court held that unless adequate notices are posted, a spring gun cannot be used to protect property. 5. Recapture of Chattels a. Kirby v. Foster (RI, 1891)- the court held that defendant was not relieved of liability for injuries caused when he used force to recover money from an employee who had taken money entrusted to him to cover what he claimed he was owed by the employer. In order to justify retaking by force, there must be a purely wrongful taking or conversion without a claim of right. In this case plaintiff had a good faith belief that he had a right to the money. Rule: a party may not use force to recover property held by another under a claim of right where the original possession was unlawful. b. Replevin- injunctive orde