Torts (Perry)

7/29/2019 Torts (Perry)

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TORTSTwila PerryFall 2008

dutybreach what is the standard of care? and did defendant fall below it?causation plaintiff must prove that defendant's negligence cause her injuryinjury

1) establish plaintiff's case. plaintiff must prove case by proving all four elements of a tortcase (duty, breach, causation, injury)

2) then defenses contributory negligence, assumption of risk3) jury usually decides cases of breach and causation. duty and injury are usually set/definite

procedural items:

summary judgment and directed verdict no negligence as a matter of law.

reasonable people could not differ, or important social policy issue.

summary judgment happens before trial after discovery.

directed verdict happens at trial after plaintiff has presented case

Underlying POLICY1. compensation2. deterrence3. corrective justice restore to status quo4. punishment5. avoid violence/chaos6. effective tort system keep court costs down

I. Introduction to Tort LiabilityA. PrologueB. When Should Unintended Injury Result in Liability

i. Hammontree v Jennera) Facts Def driving, suffer epileptic seizure & lost control of car. Crashed into

shop owned by Pl and cause damage and injury to Pl. Def had history ofmedically managed epilepsy & followed all requirements to manage hiscondition. Could not foresee a seizure. Pl pursues action of absolute liability. Pldid not pursue negligence theory.

b) Holding for Def. Would not consider absolute liability as a cause of actionC. The Litigation Process

i. aggrieved party initiate claim

ii. burden is on the plaintiff at trialiii. directed verdictiv. motion for summary judgmentv. judgment n.o.v.

D. The Parties and Vicarious Liabilityi. Christensen v Swenson

a) Facts security guard went to restaurant on break hit another vehicle. Personhit sued security guard and her employer

b) Respondeat Superior let the master answer - employer is responsible forthe actions of their employees in the course of employment

c) vicarious liability attachment of responsibility to a person for harm or

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damages caused by another person in either negligence lawsuit or criminalprosecution

d) Birkner Factors (for vicarious liability) employee's conduct be of general kind the employee is hired to perform

(must be about the company's business)

employee's conduct must occur substantially within the hours and ordinaryspatial boundaries of employment employee's conduct must be motivated (in part) by the purpose of serving

the employer's interestii. Roessler v Novak

a) facts - surgeon independent contractor within hospital

b) Apparent authority the appearance of being the agent of another (employeror principle) with the power to act for the principal. A representation by the purported principal reliance on that representation by a third party change in position by the third party in reliance on the representation

II. The Negligence PrincipleA. Historical Development of Fault Liability

i. Brown v Kendalla) Facts action of trespass for assault and battery dog fight between dogsbelonging to Pl and Def. Def attempt to break up fight by hitting dogs with stick,accidentally hits Pl in eye causing severe injury

b) Holding abolished the rule that a direct physical injury entailed strict liability.Def only liable if intended to strike the Pl or if he was at fault (negligent) instriking him.

c) When Def is engaged in a lawful act and injures Pl, Pl may not recover damagesif Pl and Def exercised ordinary care Pl and Def failed to exercise ordinary care Pl alone failed to exercise ordinary care

B. The Central Concept

i. The Standard of Carea) Adams v Bullock Facts Pl was walking over bridge, near which Def's wire that operate trolley

cars ran. Pl swinging wire which came in touch with trolley wires whichresulted in Pl. getting shocked and burned. Pl sues Def successfully. Pl verdictaffirmed on appeal. Def appeals.

Issue Did Def breach a duty of reasonable care? Holding Def must only exercise ordinary care in light of ordinary risk.

Foreseeability of the harm is balanced against the ability to preventthe injury.

b) United States v Caroll Towing Co. Facts barge got loose, sank, damaged other boats Issue what should the standard of care be? Holding bargee should be present Test Learned Hand Formula B


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Def. Pl no serious injuries, but emotional harm Holding apply Learned Hand formula formula more analytic than

operational significance; must usually assess reasonableness.ii. The Reasonable Person

a) Bethel v New York City Transit Authority

Facts Pl fell and incurred a severe back injury when sat on a foldingwheelchair accessible seat that collapsed. Pl argued that recent repair to seatput Def on constructive notice that the seat was subject to collapse, andthat a proper inspection would have revealed the seat's defect.

Issue whether a duty of extraordinary care for common carriers should beabandoned in favor of a duty of reasonable care.

Holding yes. Common carriers should be held to the basic standard ofreasonable care for negligence cases.

Because of this case common carriers are now uniformly held to astandard of reasonable care

b) Reasonable Person Jury Instruction Was Def as careful as they could be?

Not a proper instructionbecause care should be reasonable not subjectiveto Def.

What if Def intended? Doesn't matter. It's what you actually did; not intentions/state of mind.

Action versus intention. What would YOU do?

No. Should be a reasonable person standard. What if Def did what most would do?

No. Doesn't matter what custom may be. Should do what a reasonableperson would do.

What if person is in an emergency? Some states have an EMERGENCY DOCTRINE.

Children? Elderly? Mentally handicapped?

C. The Role of Judge and Juryi. In General

a) Baltimore & Ohio Railroad v Goodman Facts Pl was driving in his car and was struck at a train crossing by a train

operated by Def Issue jury instructions on determining standard of care Holding questions of due care is generally left to the jury. But when

dealing with a standard of conduct, and when the standard is clearit should be laid down once and for all by the courts.

Stop, look & listen ruleb) Pokora v Wabash Railway Co.

Facts Pl traveling in his car across four tracks of Def's railroad. Pl's view wasobscured and after not hearing bells and whistles of oncoming train,

proceeded to cross the tracks and was subsequently struck. Holding using the standard in the Goodman case is for application for the

judge. Jury should decide unless reasonable minds couldn't differ then thecourt would take the issue from the jury via a directed verdict.

c) Andrews v United Airlines, Inc. Facts Pl flying on Def flight. Upon arrival @ gate while they were

disembarking the plane, a heavy briefcase fell on head and seriously injuredher.

Issue Was Pl's injury foreseeable and Def was negligent in failing to preventit? What should the standard of care be? Who determines the standard of

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care? Judge? Jury?ii. The Role of Custom

a) Trimarco v Klein Facts - Pl fell thru glass door tub enclosure in building owned by Def. Glass

was thin regular class. Not tempered glass as was customarily used for tub

enclosures. Pl sued Def for negligence due to Def's failure to use theshatterproof tempered glass. Holding -

b) Custom does not determine negligence; reasonableness of conduct.c) Custom is relevant in determining use of ordinary care in cases where a

reasonable person would have no knowledge to make a decisiond) CUSTOM DOES DETERMINE STANDARD OF CARE IN MEDICAL

MALPRACTICEiii. The Role of Statutes

a) Martin v Herzog Facts Pl riding in buggy. Def driving in car that struck Pl's buggy. Pl was

driving without lights on. Issue Did Pl contribute to the accident because of failure to have lights on. Holding yes violation of statute.

b) Tedla v Ellman Facts Pl's were walking eastward on the eastbound Sunrise Highway. Struck

from behind by Def car. Lower ct found for the Pl. Appellate affirmed. Defappeal and argues Pl's were contributorily negligent as a matter of law (forviolating statute which states which direction pedestrians should walk)

c) Implications Negligence Per Se Negligence in itself. If person violates statute, it

is not negligence. NOT a question for the jury. NY has negligenceper se rule --> not all states have this rule; case does not go to jury

Evidence of Negligence unexcused violation of a statute is onlyevidence of negligence for the jury to determine

Presumption of negligence often jury unless def offers evidence torebut presumption

d) Statutory Purpose Restatement 286 when statute should be standard of care (statute has to

apply to the injury that occurred) statutory purpose to protect a class of persons which includes the one whose interest is

invaded to protect the particular interest which is being invaded to protect that interest against the kind of harm which has resulted to protect that interest against the particular hazard from which the harm

has resultse) Compliance with statute does not shield Defendant from Negligencef) Exception - Licensing statutes generally not used to set a standard of care

purpose is to protect the public from actions by unskilled persons.g) Do not use statute in cases where harm occurred was different from the harm

that the legislation was seeking to prevent Platz v Cohoes DeHaen v Rockwood Sprinkler

D. Proof of Negligence

i. Negri v Stop and Shop, Inc. - Constructive Noticea) Facts Pl slip and fall in supermarket and alleges that broken jars of baby food

causes her to slip and fall. Evidence shows that aisle was not cleaned/inspectedfor 50 min 2 hrs before incident

b) Issue Did Def have constructive notice?c) Holding a prima facie case of negligence may be established by circumstantial

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evidence that a party did not act to remedy a potentially hazardous condition.Up to the jury to determine if Def had constructive notice.

d) Constructive notice circumstantial evidence giving rise to negligence.Must be visible and apparent and must exist for a suficient time priorto accident. Knowing of the danger, or have known of the danger, which

Def has control over and takes no steps to remedy the situation. Construe that Def had notice rule of circumstantial evidence of notice

e) Actual Notice a direct positive knowledge of fact or informationsufficient to put a reasonable prudent person on notice of such fact.

ii. Gordon v American Museum of Natural Historya) Facts Pl injured when fell on Def front steps. A piece of paper was on the stairs

near or at where Pl fell. Waxy paper came from food stand that was contractedby Def. Other paper on another portion of steps was there ~~ 10 minutes beforePl fell

b) Issue Did Def have constructive notice that there was a waxy piece of paper onthe stair which could result in an injury?

c) Holding NO evidence of paper being there before Pl fell. Lack of evidenceestablishing constructive notice of the particular condition that caused his fall

iii. business practice rule = Vermont does not require constructive notice forbusiness practices that create a reasonable foreseeable risk of harm to invitees.Should anticipate dangerous conditions. Also called mode of operation

iv. Byrne v Boadle res ipsa loquitora) Facts Pl struck with barrel of flour from Def's shop which deals in flour. Though

Pl did not see where the barrel came from.b) Holding case can go to jury simply by showing that there wsa an accident and

it was caused by the barrel. It is only necessary that reasonable persons wouldsya that more likely than not there was negligence. The falling barrel is primafacie evidence of negligence. Def was in custody of the barrel and is responsiblefor the acts of his servants. If there are any facts inconsistent with negligence,Def must prove them.

v. McDougald v Perrya) Facts Def's spare tire came loose from under his tractor trailer and hit Pl'swindshield. Def stated that before the trip he inspected the spare but not everylink in the chain, and that probably one of the links slipped from the nut whichsecured the tire to trailer. Chain couldn't be found.

b) Issue Is Pl required to prove negligence beyond the inference that the injuryresulted automatically from negligence of Def.

c) Holding No. Tire would not have fallen from the cradle unless someone isnegligent. Res Ipsa proof that the instrument causing injury was under theexclusive control of Def and te accident doesn't happen unless negligent.

vi. Res Ipsa Loquitor rule of evidence that permits, but does not compel, aninference of negligence under certain circumstances. Essentially, theinjured Plaintiff must establish that the instrumentality causing the injury

was under exclusive control of the Def and that the accident is not onethat would not, in the ordinary course of events, have occurred withoutnegligence on the part of the one in control.a) Accident must be of a kind which ordinarily does not occur in the

absence of someone's negligenceb) it must be caused by an agency or instrumentality within the exclusive

control of the Def.c) It must not have been due to any voluntary action or contributory

negligence on the part of the Plvii.Procedural Effects of Res Ipsa Loquitor (state specific)

a) Inference of Negligence a fact situation is so strong that the jury is

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instructed that it must find negligence in the absence of a persuasiveexculpation. Can infer negligence without Plaintiff proving anyevidence of negligence

b) Presumption (prima facie) of negligence creates presumption ofnegligence unless defendant rebuts the presumption. Once the

defendant rebuts the preseumption, the presumption is gone but casestill continues and Plaintiff still has the burden of proof at trial. If theDefendant offers not plausible rebutting evidence the Plaintiff isentitled to judgment as a matter of law in liability.

c) Shifts burden of proof defendant has to prove non-negligence by atleast 51%

viii. Ybarra v Spangarda) Facts Pl underwent an appendectomy. Several doctors/nurses involved in the

surgery. Pl awoke and felt sharp pain in upper back. Pain spread to arm. Plsuffered diminished sensation atrophy of muscles.

b) Issue Should the trial court have used theory of res ipsa loquitorc) Holding since Pl was unconscious those entrusted with care have the burden of

explaining. Rebuttable presumption of negligence- burden of production ofevidence shifts to the Def. If Def sufficiently rebuts --> burden shifts back to Pl.

d) Res Ipsa in Medical Malpractice cases - applies to all Def's who have control over the instrumentality which may

cause injury to Pl while unconscious. Respondeat Superior liability is imputed to the surgeon as a result of the

negligence of his aids and assistants.E. The Special Case of Medical Malpractice

i. Case of negligencea) standard of care must take into account the specialized knowledge and skill of

a physician higher standard of care; however, it has allowed physicians to setown legal standards of rasonable conduct

b) role of customc) questions of proof Pl must prove that a physician departed from the relevant

recognized standard of medical care while treating the Pl by introducing expertwitnessesii. Sheeley v Memorial Hospital

a) Facts Pl gave birth in Def hospital. Def doctor (family practitioner) performedan episiotomy. Pl developed complications and sued. Pl witness was OB/GYN withsignificant experience. Def try to exclude expert testimony argued he wasessentially overqualified.

b) Issue Did trial court err in not admitting Pl's expert testimonyc) Holding yesd) strict locality requires that the expert testifying be from the same

community as the Defe) similar locality allows for experts from similarly situated communities

to testify concerning the appropriate standard of careiii. States v Lourdes Hospital

a) Facts Pl in hospital for surgery to remove ovarian cyst. Pl at some point injuredher arm claims anesthesiologist to blame. Before surgery, Pl received IV tube inhand to administer anesthesia. Pl complain of pain and burning sensation during& pain after. Pl diagnosed with right thoracic outlet syndrome & reflectsympathetic dystrophy. Cause of injury in dispute. Pl claim negligence inpositioning of her arm.

b) Issue Should Pl be able to pursue res ipsa loquitor?c) Holding yesd) Allow expert testimony to bridge the gap between jury's common knowledge

and the case.

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iv. Matthies v Mastromonaco informed consenta) Facts 81 year old fell and broke hip. When taken to ER, Def prescribed bed rest;

not surgery. Pl had osteoporosis Def felt bones would not have withstoodsurgery. Pl's fracture dislocated during bed rest leg shortened and Pl neverregained ability to walk.

b) Issue Whether the doctrine of informed consent requires a physician to obtainpatients consent before implementing a nonsurgical course of treatment &should Dr. discuss alternative courses of treatment that a Dr. does notrecommend?

c) Holding yes. To obtain patient's informed consent; physician should explainmedically reasonable alternatives; including the risks and likely outcomes, evenwhen chosen course is noninvasive

d) Informed Consent have autonomy over body; others can not do anythingwithout your consent. Consent can be revoked risk insufficiently explained

e) What is the standard for how much a patient should be told reasonable patient standard physicians obligation to provide information

that a reasonable patient would want to know professional standard standard frames as that which would be made by a

reasonable practitioner under similar circumstances; customary for doctorsIII. The Duty Requirement: Physical Injuries

A. Dutyi. Def had no duty to exercise due care in the particular situation; negligence is often

referred to as the breach of duty - must determine duty element beforedetermining negligence

ii. Does a general duty of due care exist unless the Def can invoke an exception

iii.3rd restatement ordinarily a duty to exercise reasonable care exists with regard tophysical harm but recognizes that exceptions should be created

iv. Privity doctrine cts held that the manufacturer of a product generally owed a dutyof due care to the person who acquired the product from the maker no general

duty of care was owed to remote buyers or usersB. Affirmative Obligations to Act if an individual is in danger should the law impose a

duty on others affirmatively to assist that person?

i. Harper v Herman special relationshipa) Facts Pl guest on Def boat. Pl invited on boat by another guest. Pl and Def did

not know each other. Def skilled boat owner. Def parked boat in area shallowenough to park the ladder; but deep enough to swim. Pl dove off boat in about 2-3 feet of water struck the bottom and severed his spinal cord.

b) Issue Does def who is a social host owe a duty of care to warn a guest that thewater is too shallow for diving? Was a special relationship created?

c) Holding Nod) Exceptions to the No Affirmative Duty Rule

special relationships

2nd Restatement Sec 314a special relationship only found on part ofcommon carriers, innkeepers, possessors of land who hold it open to thepublic & persons who have a custody of a person under circumstances

contract non-negligent injury non-negligent creation of risk

ii. Farwell v Keatona) Facts Pl and Def drinking. Followed girls to engage them in convo. Girls tell

male friends they are being followed. 6 men follow Pl and Def. Pl severelybeaten. Def put Pl in care and drive around then left Pl at grandparents home.Next day, Pl found, taken to the hospital and died 3 days later.

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b) Issue did Def owe Pl a duty of ordinary care to seek medical treatment for Pl orto inform someone of Pl's condition?

c) Holding yes. Voluntary assumption and special relationship. Pl and Def werecompanions on a social venture. Common undertaking = special relationship.Common understanding that one will render assistance to the other when he is

in peril. Failure to do something would be shocking to humanitarian conditions.d) Voluntary assumption even if no duty, but begin rescue/assistance must use reasonable care. If begin, then stop person may be worseoff. Must follow through. May have cost victim opportunity to havesomeone else assist.

e) Affirmative Action alert someone, interveneiii. Tarasoff v Regents of the University of California

a) Facts Poddar was a patient of Dr. Moore. Confided his intent to kill Pl Tarasoff toMoore. Moore requested that Poddar be detained by campus police wassubsequently released as he appeared rational. Moores supervisor ordered thatPoddar not be further detained. Neither Tarasoff nor her parents were notified ofPoddars threat. Poddar eventually killed Tarasoff.

b) Issue was there a duty to inform Tarasoff or someone else of the possible threatof Poddar harming her?

c) Holding Yes. Mental health professionals have a duty to protect individualswho are being threatened with bodily harm by a mental patient

iv. Uhr v East Greenbush School District

a) Facts Pl was screened for scoliosis as part of a school program (as mandatedby state law) in the 7th grade. Not screened in the 8th grade. When Pl wasscreened in 9th grade, she tested positive. However, her condition progressed tothe point where surgery was required. Pl argued that Def owed a duty because itcreated a special relationship with them via Ed. Law Sec 905(1) & breached dutyby failing to perform exam during the year.

b) Issue can violation of statute give rise to a private cause of action?c) Holding Nod) Test for the availability of a private right of action (Sheehy v Big Flats

Community) Whether the Pl is one of the class for whose particular benefit the statute

was enacted Whether recognition of a private right of action would promote the legislative

purpose Whether creation of such right would be consistent with the legislative

schemev. Sherrice Iverson Case

a) CA legislature enacted law to penalize those who failed to report witnessedcrimes. Crime against person under age 14 shall notify a peace officer if witnessto a commission of murder, rape or other listed crimes.

b) Should a criminal statute establish a civic duty Statute establishes a specific duty to notify a peace officer

In a civil case, would need to persuade the ct that a general civil duty isrequired not just the specific duty dictated by the court.vi. Omission vs Commissionvii.Misfeasance vs Nonfeasance

C. Policy Bases for Invoking No Dutyi. Strauss v Belle Realty Co.

a) Privity lack of privity is a factor in determining whether a duty is owed.b) Foreseeability foreseeability is only a factor in determining whether a duty is

owed.c) Facts Pl lived in building. Def (Con Ed) supply power to Pls apartment pursuant

to an agreement and to common areas pursuant to an agreement with landlord.

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During blackout, Pl had no running water and while in search for water inbasement Pl fell on darkened, defective stairs and sustained injuries

d) Holding for Def. No privity of contract between Pl and Def (Con Ed)

ii. Reynolds v Hicks should a criminal statute establish a civil duty?a) Facts Minor consuming alcohol at family wedding. Drove intoxicated.

b) Social host liability traditionally no liability for social host for injuries inflictedon 3rd party because social hosts are not as capable of handling theresponsibilities of monitoring their guests alcohol consumption as are theircommercial and quasi-commercial counterparts

c) Dram shop acts provided civil liability for alcohol vendors who provide tominors or already intoxicated people

iii.Vince v Wilson negligent entrustmenta) Facts Pl injured in car crash when riding in a car driven by Pl's grandnephew. Pl

provided $$ to grandnephew to buy car when he wasn't licensed or qualified todrive.

b) Issue should the rule of negligent entrustment be applied to a person whoknowingly provides funding to an incompetent driver to purchase vehicle and toa person who knowingly sells a vehicle to an incompetent driver. Negligententrustment usually only applied to someone who owns or has controlover instrumentality

c) Holding for the Pl. sufficient evidence to go to jury.D. The Duties of Landowners and Occupiers

i. Entrants to Landa) Trespassers duty to avoid willful or wanton conductb) Licensee duty to make safe dangers of which the possessor is aware

(mutual benefit to owner and visitor, social guest)c) Invitee duty to exercise reasonable care to protect against both

known dangers and those that would be revealed by inspection. (if onlyowner had material benefit)

ii. Carter v Kinneya) Facts Pl at Def house for bible study. Slipped on patch of ice on driveway

injured.b) Holding Pl is a licensee, not an invitee. Def owed no duty.

iii. Heins v Webster Countya) Facts man fell at hospital after visiting daughter

iv. Posecai v Wal-Mart Stores, Inc.a) Four Tests from Different Jurisdictions to Determine if a business has

duty specific harm prior similar incidents balancing (ie Learned Hand) totality of the circumstances takes other factors ie nature, condition and

location & other factual circumstances bearing on foreseeabilityb) Holding Ct found no duty for Def. Relationship between safety & economics.

E. Intrafamily Dutiesi. Broadbent v Broadbent

a) Facts Pl son drown in pool when mother left backyard to answer telephone. Plson was revived but suffered brain damage. Sons suit brought against motherby father on childs behalf.

b) Issue Does the doctrine of parental immunity allow a claim against motherfrom injured child?

ii. Negligent supervisioniii. Intrafamilial immunities

a) Between husband & wife interspousal immunity for negligence & intentional

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torts --> eventually abrogated disturb family unity fraud and collusion

b) Parent-child disturb family unity

iv. Duty to Child alone discretionary no suev. Duty to world at large duty owed to everyone - could sueF. Governmental Entities

i. Municipal and State Liabilitya) Riss v City of New York

Facts Issue whether police have a duty for special protection. Police already have

a duty to protect, but was Linda Riss owed special protection? Resource allocation issue when determining whether a duty was owed

b) Lauer v City of New York administerial v discretionary acts discretionary acts may not result in

municipalities liability even when the conduct is negligent. However,ministerial acts (conduct requiring adherence to a governing rule) maysubject the municipal employer to liability for negligence

ii. The Federal Tort Claims Acta) Cope v Scott

IV. The Duty Requirement: Nonphysical HarmA. Emotional Harm

i. Falzone v Buschzone of dangera) Facts Def struck and injured Pl Charles. Pl Mabel witnessed this injury and

feared for her safetyb) Issue whether someone may recover for bodily injury or sickness resulting from

fear for her safety caused by a negligent defendant, where there was no physicalimpact

c) Holding imposed liability for inflection of mental distress when negligencecreates potential for physical harm to the traumatized individual.

d) LANDMARK CASE IN NEW JERSEY a physical impact used to be necessary tosustain a negligence actionii. Metro-North Commuter Railroad Company v Buckley

a) Facts Pl worked as pipefitter for railroad. Was exposed to asbestos. While hehad no symptoms of any asbestos-related disease, he feared that he woulddevelop cancer.

b) Issue whether a railroad worker negligently exposed to a carcinogen (asbestos)but without systems of any disease can recover under FELA for negligentlyinflicted emotional distress. Is physical contact the same as physical impact?

c) Holding No. Can not recover until manifests physical symptoms

iii.Gammon v Osteopathic Hospital of Maine, Inc. - exception to Zone of Dangera) Facts Pl's father died and Def hospital mistakenly sent bag with a patient's

severed leg to Pl's home instead of deceased's belongings. Pl, thinking leg was

his fathers, suffered severe emotional distress resulting in nightmares andproblems with personal relationshipsb) Holding Ct abandoned requirement that Pl show physical impact, objective

manifestation, underlying or accompanying tort, or special circumstance toassert a claim of emotional distress without physical injury. A person is entitledto protection of his psychic well being as much as his physical well being. Defshould have foreseen that its actions had a probability of causing emotionaldistress. The exceptional vulnerability of a family of recent decedents supportsthe finding that Def should have foreseen the resulting mental distress, and italso eases the court's fear of fraudulent claims

iv. Portee v Jaffee (test for bystander recovery)

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a) Facts Pl watched her son died from being trapped between an elevator doorand wall in Def's apartment building. Pl became severely distressed, self-destructive, and attempted suicide

b) Issue Whether Def can be liable for negligently causing mental distress whereDef's conduct creates neither the risk nor the occurrence of physical harm but

where emotional injury is foreseeable.c) Holding Yes.d) Dillon Factors

Whether Pl was located near the scene of the accident Whether Pl directly observed accident Whether Pl and victim were closely related

e) Portee Factors The death or serious injury of another caused by Def's negligence a marital or intimate relationship between Pl and injured person observation of the death or injury at the scene of the accident severity of physical injury causing emotional distress

f) Portee/Dillon Factors There was a death or serious injury caused by negligence Plaintiff must be near accident There must be a close relationship to the victim There must be a shock (physical manifestation) resulting from

witnessing the accidentv. Johnson v Jamaica Hospital

a) Facts Pl's newborn daughter was abducted from Def hospital. Child wasrecovered 4 months later. Pl sued for emotional distress brought about by Defnegligence

b) Issue whether Pl may recover damages for mental distress they suffered as aresult of direct injury inflicted upon their daughter by Def's breach of duty ofcare to her.

c) Holding No. Def owed no duty of care to parents. Court refused to recognizePl's contention that it should have been foreseeable to Def that any injury totheir child would cause Pl's mental distress. This foreseeability does not establisha duty from Def to Pl. In the absence of duty, there is no liability. To permit Plrecovery would be to invite open-ended liability for indirect emotional injurysuffered by families resulting from negligent care or treatment of the veryyoung, elderly or incapacitated.

vi. Loss of consortium loss of society, companionship, advice and comfort.a) Either spouse can recover for the loss of the other's services and consortiumb) there must be a complete loss of companionship and intercourse with the injured

spouse for a definite period of timec) limited to legally married couple onlyd) parent can recover for the loss of consortium of a child, but a child cannot

recover loss of consortium for a parente) contributory negligence reduces liability for loss of consortium

B. Wrongful Birth and Wrongful Lifei. Wrongful birth claim by parents that, because of Def's negligence, they gave birth

to a child with a genetic or other congenital defectii. Wrongful Life a claim by a child born with a genetic defect who was born as a

result of Def's negligence (public policy court cannot make judgment on whether achild would have been better off if never born)

iii.GENERAL RULE parents may recover for emotional distress and for physical harmcaused by that emotional distress, offset by whatever emotional benefits they mayderive from the existence of their first child, offset by any benefit that may bederived by the wrongful life, and offset by the cost to raise non-handicap childa) When wrongfulness of birth is due to a physician's negligence, parents can

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recover for extraordinary expense incurred in consequence of the disorder,however, a child will normally not be able to recover for a physician's negligenceif the parents recovered already.

iv. Emerson v Magendatz

a) Facts - Pl went to Def to perform a sterilization procedure; performed it but got

pregnant afterwards; baby born w/ congenital defects; Pl got second sterilizationprocedure done after birth and sued

b) Holding Limited recovery rule grant compensation to plaintiffs for themedical expenses of the ineffective sterilization procedure, for the medical andhospital costs of the pregnancy, for the expense of a subsequent procedure, forloss of wages, and sometimes for emotional distress arising out of the unwantedpregnancy and loss or consortium to the spouse arising out of the unwantedpregnancy. They also generally include medical expenses for prenatal care,delivery and postnatal care.\

c) Full recovery rule without offsetting either the economic or the emotionalbenefits derived from having a healthy child. Recovery of all damages that arereasonably foreseeable and that would result from the negligent performance ofthe sterilization procedure

d) Child could have claims courts generally do not hear wrongful life claims but could recover for permanent physical harm and medical expenses

V. Causation a causal relationship (actual and causal) must exist between the defendant'sconduct and the plaintiff's harm. If Def did not cause the injury in fact, he is not liable. Buteven if Def did cause the injury in fact, he is not liable if he was not the proximate causeA. Cause in Fact

i. But For Rule if the injury to Pl would not have happened but for the act oromission of Def, such conduct is the cause in fact of the injury.

a) Proof of causation Pl has the burden of proof to prove that, more likely thannot, Def was a substantial factor in bringing about result

ii. Basic Doctrinea) Stubbs v City of Rochester

Facts Def city negligently intermingled water supply, crossing drinkingwater with contaminated water used for firefighting. Pl contracted typhoidand alleged that it was caused by contaminated water. Pl's experts agreedtyphoid could be caused by the water and statistics showed a greaternumber of typhoid cases reported after water was intermingled.

Holding Pl submitted sufficient evidence that Def's negligence causedinjury, allowing a reasonable inference of causation to be drawn. Pl need onlyprove with reasonable certaintythat Def was cause in fact.

Substantial Factor Test where two events concur to cause harm,and either one would be sufficient to cause substantially that sameharm, causation requirement is met.

Loss of Chance/Opportunity Pl must prove, more probably thannot, that Def reduced the opportunity of avoiding harm

b) Zuchowitz v United States Facts Pl prescribed an excessive amount of a drug Danocrine. Pl wound up

with PPH. Became pregnant, exacerbated her illness. Died after giving birth Issue Pl couldn't prove that the overdose of Danocrine caused the PPH. Had

Pl experts that said that the Danocrine to a reasonable medical certaintyand more likely than not caused her PPH. Was the overdose of Danocrine asubstantial factor in causing Pl's illness and subsequent death? - - the Plmust establish a causal relationship between the physician's negligentactions or fialure to act and the resulting injury by showing that the action oromission constituted a substantial factor in producing the injury.

When expert medical testimony will be admitted Daubert

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whether the theory can (and has been) tested according to the scientificmethod,

whether the theory or technique has been subjected to peer review andpublication,

in the case of a particular scientific technique, the known or potential rate

of error, whether the theory is generally accepted.

Holding -

c) Albert v Schultz loss of chance Facts Pl lost leg. Holding - For Def. Pl couldnt prove that there was a window of time during

which measures could have been taken to save his leg; because it wasntclear he had the right kind of vein. Therefore, they didnt demonstrate acausal link.

Loss of Chance where the defendant has negligent deprived or reducedPls chance to survive. The injury is the lost opportunity of a better result, notthe harm caused by the presenting problem. Pl has burden of proof that theharm for which he originally sought treatment was made worse by the lost

chance. Standard of Proof liability if Pl can demonstrate to a reasonable

degree of medical probability that there was a causal link between thenegligence and the lost chance

iii. Introduction to Joint and Several Liability a) Joint and Several Liability - where there are multiple defendants, Pl can

recover 100% from an Def. Defs can later sue each other and untanglefacts.

b) Several liability Pl takes loss; Defs only liable for their share ofdamages

iv. Multiple Defendants when there are multiple defendants, there will alwaysbe a rebuttable presumption of negligence

a) Summers v Tice Facts Pl was struck by a bullet discharged from the gun of one of two

negligent hunters he was hunting with. Pl cannot identify the responsible Def. Holding Def's are joint tortfeasors and each is jointly and severally liable,

even though only one inflicted the injury. The alternative liability rule usedhere shifts the burden of causation to Def's each must absolve himself.Both Def's must be negligent for this rule to apply

Alternative liability shifting the burden of proving causation ontonegligent Defs (joint tortfeasors) and each must dissolve himself fromliability because Defs are morally culpable and put the Pl in peril

b) Hymowitz v Eli Lilly & Co market share concept Facts DES caused vaginal adenocarcinoma in daughters of women who took

DES asa miscarriage preventative. Due to the fact that there were numerous

manufacturers of DES and the latent nature of Pl's injuries, it was difficult todetermine which particular manufacturer of DES actually caused Pl's harm.

Issue can a Pl recover from DES manufacturer when identification of theresponsible drug is impossible.

Holding alternative liability available to permit recovery burden shifting.IN this case, Def's are not better equipped to provide evidence of who is atfault; alternative liability does not provide Pl's relief. Switch to market shareconcept focus more on culpability than causation

Market Share Liability in case where there are multiple Def's in acommercial enterprise, some courts have required all producers who areunable to prove their noninvolvement to pay in proportion to their

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percentage of the market share.c) Concerted Action drag race

v. The Special Case of Toxic Harms

B. Proximate Cause assuming cause in fact, whether there is still a reason why Plshouldn't be permitted to proceed. Proximate cause becomes an issue when there

is a (1) unforeseeable or unexpected harm (2) unforeseeable or unexpectedvictim (3) unexpected manner or (4) break in the chain of causationi. Unexpected Harm

a) Benn v Thomas eggshell plaintiff, thin skull rule not an intervening factor andwill not break the chain of causation. Facts Pl was rear-ended. Bruised his chest and died of heart attack 6 days

later. Court said the eggshell Pl rule should apply and Def is liable, thoughdamage might be reduced because of his fragile condition

Eggshell Plaintiff an exception to the reasonable foreseeability test forproximate cause. Def must take Pl as he finds him.

Medical aggravation negligence of the original tortfeasor is a proximatecause to normal efforts by third parties in rendering aid it is an interveningcause scenario. If Pl injury is aggravated via a medical treatment, the Def is

still liable unless the medical treatment was GROSSLY NEGLIGENT so that itwas a superseding factor.

b) In re Arbitration between Polemis and Furness, Withy & Co directness Facts falling wooden plank in hold of ship triggered a fire fueled by benzene Rule negligent party is liable for all harm caused by acts or conduct

regardless of foreseeability Directness Test a negligent act is the proximate cause of any harm it

directly causes. Regardless of foreseeability.

c) Overseas Tankship v Morts Dock I (Wagonmound)foreseeability Facts - Def dumped oil. Caught fire, and burned Pls property when oil caught

on fire from welding job Holding Def is liable for damage to the docks but not for the ensuing fire,

which was not reasonably foreseeable. Overturned the Polemis directness

test.ii. Superseding Causes if a third partys conduct is sufficiently egregious and willful it

can break the chain of causation and relieve negligent Def of liability.a) Doe v Manheimer

iii. Unexpected Victim someone gets hurt, when they shouldnt havea) Palsgraf v Long Island Railroad Co

Facts passenger with bag of fireworks jumps on train, but drops bag.Fireworks explore, and causes a scale to fall landing on someone.

Holding ANDREWS MAJORITY there is a duty to the public at largefor any and all injuries resulting, foreseeability is not needed nozone of danger. DIRECTNESS not too many intervening acts thatwould sever liability

Dissent Cardozo no liability for actions outside of foreseeability,

there is zone of danger thus no duty, no negligence.VI.Defenses

A. The Plaintiff's Faulti. Contributory Negligence

a) Last clear chance defense to a defense. Def says Pl contributorily negligent.But Pl counters by saying Def had last clear chance

ii. Comparative Negligence mitigates but does not bar recovery. Award damagesaccording to % Def is responsible considering Plsa) Pure comparative negligence Pl recovers % of damages from Def who is at

fault, for their percentage of fault, regardless if Pl was more at fault (ie Pl 75% atfault, recovers 25% from Def)

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b) Modified comparative negligence If Pls negligence was not as great as Defs,can recover

iii. Avoidable Consequences even if the accident was Defs fault, Pls recovery mightbe reduced by a failure to exercise due care to mitigate the harm done.

B. Assumption of Risk an affirmative defense.

i. Express Agreements exculpatory agreementa) Invalidate an Exculpatory Agreement Tunkl Factors

Def business engaged in performing a public service Def business is the type suitable for public regulation Pl is placed under control of seller, Def Def business holds itself open to any member of the public At point of purchase, no provision to purchaser to pay additional to protect

against negligence Def possessed advantage of bargaining strength like an an adhesion

contract - unconscionableb) Dalbury v SKI, Ltd

Facts Pl hit an uncovered ski lift pole and got hurt. Issue Eventhough Pl signed an exculpatory agreement, should Def be held

liable? Holding

c) Assumption of risk discussion Does not preclude recovery Against not good for people to give up all rights they otherwise have. Goal

of tort law is to prevent accidentsii. Implied Assumption of Risk look at the conduct of the Pl. Subjectively KNEW of the

risk. Accepted risk voluntarily, knowingly and reasonably.a) Murphy v Steeplechase Amusement

Facts Pl went on amusement park attraction, fell and hurt himself. Rule person was aware of the nature of the ride and the risk/consequences

involved. He assumed the riskC. Pre-Emption

VII. Strict LiabilityA. Doctrinal Development

i. Fletcher v Rylands abnormally dangerous activities nonnatural use

a) Holding - Held that a person who brings something onto his land that involves anonnatural use of the land and is likely to cause substantial damage if itescapes will be strictly liable if it in fact escapes and causes harm.

ii. Rylands v Fletcher

iii.Sullivan v Dunham blasting casea) Facts guy used dynamite to uproot a tree, and a chunk of it hit a person on the

highwayb) Holding use of property is an absolute right, but qualified to a higher right of

the safety of persons; so if in the use of ones property one hurts another, thenthere is strict liability

c) STRICT LIABILITY FOR ALL DANGEROUS ACTIVITY ON PROPERTYiv. Indiana Harbor Belt Railroad Co. v American Cyanamid Co

a) Facts Toxic chemical leaked from a RR tanker. RR shipper is held strictly liableb) Rule RS Sec 520 (below) and sees that there is no other alternative to shipping

by rail

c) Basis for liability under Second Restatement Sec 520 abnormallydangerous activities - One who carries on an abnormally dangerous activityis subject to liability for harm to the person, land, or chattels of another resultingfrom the activity, although he has exercised the utmost care to prevent theharm. This strict liability is limited to the kind of harm, the possibility if which

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makes the activity abnormally dangerous. (Starting to look like negligence) Determinative factors Six facts to be considered and balanced.

i) Whether the activity involves a high degree of risk of harm; ii) The likelihood that the harm that results from it will be great iii) Whether the risk can be eliminated by the exercise of reasonable care;

iv) Whether the activity is a matter of common usage; v) Whether the activity is appropriate to the place where it is being

carried on; vi) The value of the activity to the community.

B. Defenses to Strict Liabilityi. Assumption or riskii. Contributory negligence only when Pl knowingly and unreasonably subjects himself

to riskiii. An act of god or natural act that caused injuryiv. Latent defects in soil

VIII. Liability for Defective ProductsA. Introduction

i. Product liability applies when:a) Knowledge of the danger high foreseeability standardb) Knowledge that the product in its normal use will be shared by othersc) Defs negligence proximately caused the harmd) Knowledge that the product wont be further tested

ii. MacPherson v Buick Motor Coa) Facts defective wheel (made by another company) collapsed and whole car fell

apartb) Rule one who negligently manufactures a product is liable for any injuries

proximately caused by his negligence. Manufacturer of final product hasobligation to make responsible inspection of product. Court abandons privity ofcontract requirement because of POLICY.

iii. Escola v Coca Cola Bottling Co.a) Facts soda bottle broke in Pls handb) Holding bottle breaking could have been avoided with adequate inspection.

Manufacturer incurs absolute liability.

iv. 2nd Restatement 402(A) defective condition unreasonably dangerousa) risk utility analysisb) consumer contemplation test

v. 3rd Restatement 1a) reasonable alternative design

B. Manufacturing Defects product is defective when it departs from its intended designC. Design Defects a design is defective when the foreseeable risks of harm posted could

have been reduced or avoided by reasonable alternative design.i. Soule v General Motors Corporation

a) Facts Pl suffered damage to legs when floorboards and wheel well collapsedafter a crash

b) Rule there out #2 RISK BENEFIT ANALYSIS because product in normal use mayoften cause injury in a way that minimum assumptions about safety can not bemade. Threw out #1 CONSUMER CONTEMPLATION TEST because everydayconsumer with everyday experience with normal use of car cannot possiblypredict the minimum safety

c) Risk benefit analysis balance the cost of curing the design defect with costsof injuries. If cost of resolving defect is less than the cost of injuries, thenunreasonably dangerous

d) Consumer contemplation (consumer expectation) test if Pl establishesthat the product failed to perform as safely as an ordinary customer wouldexpect when used in an intended or reasonably foreseeable manner then it is

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unreasonably dangerous

e) Reasonable alternative design Products Liability Restatement Pg 579 plaintiff must prove that a reasonable alternative design would have reduced

the foreseeable risk of harmii. Camacho v Honda Motor Corp, Ltd

a) Facts pl bought motorcycle without crash bars. Crashed and injured his legsb) Rule consumer is justified in expecting that a product placed into commerce is

reasonably safe for intended usec) Ct adopts CRASHWORTHINESS doctrine motor vehicle manufacturer can be

liable or strictly liable for injuries sustained in accident where manufacturing ordesign defect, though not the cause of the accident, caused or enhanced theinjuries.

d) Ortho factors balance the risks and benefits of a product to determine if thedesign is unreasonably dangerous the usefulness and desirability of the product its utility to the user and to

the public as a whole the safety aspects of the product the likelihood that it will cause injury and

the probably seriousness of the injury

the availability of a substitute product which would meet the same need andnot be as unsafe

the user's ability to eliminate the unsafe character of the product withoutimpairing its usefulness or making it too expensive to maintain its utility

the user's ability to avoid danger by the exercise of care in the use of theproduct

the user's anticipated awareness of the dangers inherent in the product andtheir avoidability because of general public knowledge of the obviouscondition of the product or of the existence of suitable warnings orinstructions

the feasibility on the part of the manufacturer, of spreading the loss bysetting the price of the product or carrying liability insurance

D. Safety Instructions and Warnings inadequate instructions a product is defective

because of inadequate instructions or warnings when the foreseeable risks of harmposted could have been reduced or avoided by the provision of reasonable instructionsor warnings by the seller

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