Homework Notes

Class 1 - 8/23/2010

Introduction to Tort Liability

When should unintended injury result in liability?

The fundamental issue addressed by a system of tort liability for unintended injury is when losses should be shifted from an injury victim to an injurer or some other source of compensation.

Hammontree v. Jenner

Subject Matter: Appeal of a case involving personal injuries and property damage

arising from a car accident.

Facts: Jenner (D) had an epileptic seizure and lost consciousness while driving his

car. D’s car crashed into Hammontree’s (P) store. D had had seizures in the past but

had not had one in several years and the DMV had issued him a license to drive. P

pursued strict liability damages rather than negligence. D argued that he was not

liable because he had taken all necessary precautions to prevent a seizure and the

accident was unforeseeable. At trial, the court entered judgment in favor of D and P

appealed on the grounds that the court erred in not granting P’s motion for

summary judgment based on strict liability.

Issue: What standard of liability is applied in determining damages where the

defendant suffers a seizure while driving causing him to have an automobile

accident?

Rule: the foregoing cases generally hold that liability of a driver, suddenly sricken by an illness rendering him unconscious, for injury resulting from an accident occurring during that time rests on principles of negligence.

Holding and Rule: The driver is only liable if the seizure is foreseeable and he took no special actions to prevent it. The standard for liability is essentially negligence. D

did not have a reason to expect to have a seizure and was therefore not liable.

When should unintended injury result in liability?

Procedure - The aggrieved party must initiate the claim and pursue it until she gains redress or has exhausted her legal remedies.

Damages – Once the a plaintiff has brought herself within the rules allowing recovery for personal injury, the traditional goal of tort law has been to restore her to the equivalent of her condition prior to the harm.

Collecting on a judgment – Once a judgment for a plaintiff becomes final which requires that all appeals be exhausted for the time for any further appeal has expired—the matter of collecting on that judgment arises; a judgment is not self-executing.

Class 2 - 8/25/2010

Vicarious liability (17-30)

Recoveries in cases of death are regulated by statue because under early common law the death of either the plaintiff or the defendant terminated the lawsuit.

As for a decreased victim, two sperate interests are involved: the victim’s interest in her own bodily security and her dependant’s interest in continued economic support and in other factors we shall consider later.

o (1) “survival statues” – allow the estate of the deceased to bring suit for any harm for which the deceased could have sued had she survived.

This would include such items as medical expenses, lost wages, and pain and suffering up to her death.

o (2) “wrongful death statues – an action may be brought by and on behalf of legally designated beneficiaries, usually close family members or next kin, to recover for the pecuniary loss that the death has caused.

“Respondeat superior”: “let the superior made the answer”; doctrine holding an employer or principal (one who authorizes another to act on their behalf as agent) liable for employer’s or agent’s wrongful acts committed within the scope of the employment or agency

Policy goals: prevent future injuries, assure compensation of victims, and spread losses equitably

Christensen v. Swenson

Facts: (P hit by D while D was on break from work getting lunch – reasonable minds could differ on 3 factors) P was a security guard working at a plant and took a 15 minute break and drove across the street to get lunch. During her lunch break P got into a car accident.

Issue: Whether the employer was vicariously responsible to the plaintiff for the accident that occurred.

Rule:

Under the doctrine of Respondeat Superior employers are vicariously liable for torts committed by employees while acting within the scope of their employment .

Whether an employee is acting within the scope of her employment is ordinarily q question of fact.

The question must be submitted to the jury “whenever reasonable minds may differ as to whether the employee was at a certain time involved wholly or partly in the performance of the [the employer’s] business or within the scope of employment.”

An employer is liable for the tortuous acts of their employees if acts pass the Birkner TestBirkner Test: Acts so closely connected with what employee is employed to do; acting w/in “scope of employment”

1. Conduct generally kind expected / hired for; must be about the the employer’s business and the duties assigned by the employer as opposed to being wholly ivolved in a personal endeavor.

2. Acting w/in hours and ordinary spatial boundaries of the employment

3. Acting to serve employer’s interest; the emloyee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

Holding: If reasonable minds can differ on the on the three factors summary judgment should be denied in favor of further proceedings.

Economics justifications for V.L

(1) VL gives employers strong incentives to shrewdly select employees and effectively supervise employees.

(2) VL gives employers an incentive to discipline employees who committed negligence and thereby exposed the employer to liability.

a. This discipline can take the form either of a demotion or an outright discharge

(3) Insofar as the prospect of employee negligence cannot be fully eliminated by ambitious selection, training, supervision, and disciplining of employees, VL gives employers incentives to consider alternatives to employee efforts.

Independent contractors – apparent authority

Roessler v. Novak

Facts: (P’s serious medical condition missed by hospital; P had no choice in drs.; even though D was independent contractor, acted in hospital’s apparent authority => hospital liable to P). P is alleging that D had misread scans as result he suffered great personal harm. P want to sue the hospital as the principle for the doctor (agent).

Issue: Whether the hospital is vicariously liable for the acts of physicians even if the physician is and independent contractor.

Rule: A hospital may be held vicariously liable for the acts of physicians, even if they are independent contractors, if these physicians act with the apparent authority of the hospital.

Apparent authority is authority which a principal knowingly tolerates or permits, or which the principal by its actions or words holds the agent out as possessing.

The rationale for the doctrine of apparent authority is that a principal should be estopped to deny the authority of an agent when the principal permitted an appearance of authority in the agent and, in so doing, justified a third party’s reliance upon that appearance of authority as if it were actually conferred upon the agent

Principle is liable to a 3rd party for acts of its agent which are within agent’s apparent authority

o Apparent authority: authority in which principal knowingly tolerates or permits, or which the principal by its actions or words hold the agent out as possessing

o Apparent authority requires: (must find all three elements)a. Representation by purported principalb. Detrimental reliance; reliance on that representation by

3rd partyc. Change in position by 3rd party in reliance on

representationAPPARENT AUTHORITY EXISTS ONLY WHERE THE PRINCIPAL CREATES THE APPEARANCE OF AN AGENCY RELATIONSHIP.

Analysis: sufficient amount of facts are required to show that there was apparent authority.

Class 3 - The negligence principle

The historical development

o The law negligence is of relatively recent origin. o The old common law had very little to say about personal injuries caused by

careless behavior.

o Before the industrial revolution, the infrequent cases of accidental harm that occurred were filtered through the Anglo-American writ system—a procedural system requiring that tort-like wrongs be pleaded as actions in “trepass” or “trespass on the case.”

Brown v. Kendell

Facts: There was an action of trespass for assault and battery. Commenced against Kendell (defendant) now deceased and represented by executrix. In this case there were dogs fighting, one belonged to the plaintiff and the other to the defendant. During the course of the dog fighting it appears that the defendant used a stick to attempt to break up the fighting and in doing so he hit accidently the plaintiff causing him an eye injury.

Rule:

(1) trespass – if the damage complained of is the immediate effect of the act of the defendant trepass lies

(2) Case – if consequential only, and not immediate, case is the proper remedy.

“the plaintiff must come prepared with evidence to show either that the intention was unlawful, or that the defendant was in fault; for if the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable.

If in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom.

Notes: The court said that “We can have no doubt that the act of the defendant in attempting to part the fighting dogs, one of which was his own, and or the injurious acts of acts of which he might be responsible, was a lawful and proper act, which he might do by proper and safe means.

Holding: The burden of proof on the defendant was wrong and the court established that the burden of proof is not the plaintiff to establish.

Class 4 – The Standard of care

What stand does a court utilize in deciding whether the defendant’s behavior was “negligent”?

-Unreasonable risk

Adams v. Bullock

Facts: The (D) runs a trolley line in the employing the overhead wire system. At one point the road is crossed by a bridge and pedestrians often use the bridge as short cut between streets and children play on it. The (P) a 12 year old boy come across the bridge, swining a wire about eight feet long and in swinging the wire he brought it in contact with (D) trolley wire which ran beneath the structure. The side of the bridege was protected by parapet (wall) 18 eiches wide. The (P) was shocked and burned when the wires came together.

Issue: Whether the (D) was liable in using an overhead trolley for negligence when a young boy was shocked by the trolley wires.

Rule: In the lawful exercise of its franchise negligence, cannot be imputed because it used one system and not another. Moreover, if a duty to adopt all reasonable precautions to minimize the resulting perils is found blame should not negligence should not be assigned. (Evidence is very important)

Reasoning: The trolley wire was so placed that one standing on the bridge or even bening over the parapet could reach it. Only some extraordinary causally, not fairly within the area of ordinary prevision, could it a thing of danger.

Braun v Buffalo – No vigilance, however alert, unless fortified by the gift of prophecy, could have predicated the paint upon the rote where an accident would occur.

No special danger at this bridge warned the defendant there was need of special measures of precaution. No like accident had occurred before. No custom had been disregarded.

Greene v. Sibley

Mechanic case where a patron tripped over his leg. The court said that “he was doing a common and smiple act in the plain of those around him.

Concept of “ordinary caution” or “reasonable care”

Negligence is the doing of something which a reasonably prudent person would not do, of the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by evidence.

It is the failure to use ordinary or reasonable care. Ordinary or reasonable care is that which person of ordinary prudence

would use in order to avoid injury to themselves or other under circumstances similar to those show by the evidence.

Defining unreasonable risk

United States v. Carroll Towing Co.

Facts: The harbormaster and a deckhand aboard the Carroll, a tug, readjusted the lines holding fast the Anna C, a barge owned by plaintiff Connors. Because of their negligence in securing the Anna C, it later broke loose and rammed against a tanker, whose propellar broke a hold near the bottom the barge. Anna C soon filled wither and sank, with loss of cargo (owned by the U.S). Carroll sought to reduce damages pursuant to admiraly law because the plaintiff’s bargee was absent from the Anna C.

Issue: Whether the absence of a bargee or other attendant will make the owner of the barge liable for injuries to other vessels if she breaks away from her moorings.

Rule: Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those about her, the owner’s duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) the probability that she will break away (2) the gravity of the resulting injury, if she does (3) the burden of adequate precautions.

Reasoning: We need not say whether, even in such crowded water as New York Harbor a bargee must be aboard at night at all, it may be that the custom is otherwise…and that, if so, that situation is one where custom should control.

Holding: In such circumstance we hold—and it is all that we do hold—that it was a fair requirement that Conners Company should have a bargee aboard (unless he had some excuse for his absence), during the working hours of daylight.

Note 1

Hand approach – negligence case

The judge (or jury) should attempt to make explicit the standard that the courts had long applied.

(1) the magnitude of the loss if an accident occurs(2) the probability of the accident’s occurring(3) the burden of taking precautions that would avert it

The cost of prevention is what Hand meant by the burden of taking precautions against the accident.

When the cost of accidents is less than cost prevention, a rational profit-maximizing enterprise will pay tort judgments to the accident victims rather than incur the larger cost of avoiding liability.

Reasonably prudent person

Bethel v. New York City Transit Authority

Facts: Plaintiff was hurt on defendant’s bus when the “wheelchair assecible seat” collapsed under him. Plaintiff could not prove that defendant actually knew of the defect be relied on a theory of constructive notice “evidenced by a computer repair report containing several notations.

The trial court charged the jury, that as a common carrier, the bus company had a duty to use the highest degree of care that human prudence and foresight can suggest in the maintenance of its vehicles and equipment for the safety of its passengers.

Issue: The (D)

Rule: Basic negligence standard of reasonable care under the circumstances is applied to common carriers. There is no stratification of degrees of care as a matter of law. Rather there are only different amounts of care as a matter of law

Reasoning: The court of appeals made the following statement “in this century, however, through technological advances and intense governmental regulation, “public conveyances…have become at least s safe as private modes of travel.”

Reaonable person standard: necessarily takes into account the circumstances with which the actor was actually confronted when the accident occurred, including the reasonably perceivable risk and gravity of harm to others and any special relationship of dependency between the victim and the actor.

The reasonable person standard provides sufficient flexibility, and leeway, to permit due allowance to be made…for all the particular cirumstances of the case which may reasonably affect the conduct required.

Holding: A common carrier is subject to the same duty of care as any other potential tortfeasor—reasonable care under all of the circumstances of the particular case.

Class 5 – The roles of judge and jury – 9/1/10

The roles of judge and jury

Baltimore & Ohio Railroad Co. v. Goodman

Facts: Suit brought by widow and administraxtrix of Nathan Goodman against the petitionr for causing his death by running him down at a grade crossing. Goodman was driving an autobile truck and was killed by a train running southwesterly across the road at a rate of not less than sixty miles an hour.

Issue: Whether Goodman’s action as relating to this case warrant a question to be presented to jury.

Rule: If a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out his vehicle, although obviously he will not often be required to do than to stop and look.

Reasoning: It seems to us that if he relies upon not hearing the train or any signal and takes no further precaution he does so at his own risk. If at the last moment Goodman found himself in an emergency it was his own fault that he did not reduce his speed earlier.

Holding: It is true that the question of due care very generally is left to the jury. But we are dealing with a standard of conduct, and when the standard is clear it should be laid down once for all by the courts.

Pokora v. Wabash Railway Co.

Facts: Pokora was driving his truck west acoross four tracks of defendant’s railedroad. There was a string of boxcars cutting off the (P) view of the track north. As the (P) moved ast that track he listend but hear no bell or whistle. As he reached the main track he was stuck by a train.

“For all that appears, he had no view of the main track northward, or none for a substantial distance, till the train was so near that escape had been cut off.”

Issue: Whether a jury should deicide the following question “whether reasonable caution forbade his going forward in reliance on the sense of hearing, unaided by that of sight”

Rule: Extraordinary situations may not wisely or fairly be subjected to tests or regulations that fitting for the common-place or normal. In default of the guide of customary conduct, what is suitable for the traveler caught in a mesh where the ordinary safreguards fail him is for the judgment of the jury.

Analysis: Standards of prudent conduct are declared at times by courts, but they are taken over from the facts of life. The (D) did not not show whether there was a locomotive at the forward end, or whether the cars were so few that a locomotive could be seen.

If he was to leave his car near the curb, there was even stronger reason to believe that the space to be covered in going back and forth would make his overvations worthless.

Reasoning: The opinion in Goodman’s case has been a source of confusion in the federal courts to the extent that it imposes a standard for application by the judge, and has only wavering support in the courts of the states.

Holding: The judgment should be reversed and the cause remanded for further proceedings in accordance with this opinion.

Akins v. Glen Falls City School district

Plaintiff was hit in the eye by a foul ball while watching a high school baseball game. Her suit against the school district, which owned the filed was dimissed.

The field was equipped with adequate backstop to protect fans from balls. Plaintiff, who arrived while the game was in progress, stood laong the third

base line, 10 to 15 feet past the end of the backstop. She was hit ten minutes after arriving.

Majority

The majority held that there was no basis for a jury to find defendant negligent.

o Not every case is for the jury.o On the record here, “The school district fulfilled its duty of reasonable

care to plaintiff as a matter of law and, therefore, no question of negligence remained for the jury’s consideration.

Dissent

The dissenters argued that the majority had engaged in “an unfortunate exercise in judicial rulemaking in an area that should be left to the jury. This attempt to precisely prescribe what steps the propretor of a baseball field must take to fulfill its duty of reasonable care is unwarranted and unwise.”

o In the present context, the majority has held as a matter of law that the proprietor of the baseball field has fulfilled his duty of reasonable care by erecting a backstop that was 24 feet high and 50 feet wide.

Andrews v. United Airlines, Inc.

Facts: A brief case fell from an overhead compartment and seriously injured plaintiff Andrews. No one knows who opened the compartment or what caused the

briefcase to fall, and Andrews doesn’t claim that airline personnel were involved in stowing the object or opening the bin.

(P) claim is that the injury was foreseeable and the airline didn’t prevent it.

Issue: Whether a jury should decide if United Airlines should be held liable for the injury to the (P).

Rule: Given its awareness of the hazard, United may not have done everything technology permits and prudence dicates to elimiate it. …common carries must use the best precautions in practical use ‘known to any company exercising the utmost care and diligence in keeping abreast with modern improvemtn in…such precations.

Reasoning: A jury could find United has failed to do “all that human care, vigilance, and foresight reasonably can do under all the circumstances.” Jurors, many of whom will have been airline passengers, will be well equipped to decide whether United had a duty to do more than warn passengers about the possibility of falling baggage.

Holding: A reasonable jury might conclude that United should have done, it might also find that United did enough. Either decision would be rational on the record presented to the district court which, of course, means summary judgment was not appropriate.

Class 6 – 9/1/10

The role of custom & statutes

The Role of Custom

Trimarco v. Klien

Facts: (P) tenant was badly cut when he fell through the glass door that enclosed his tub in defendant’s apartment building. (P) presented expert evidence that at least since the 1950s a practice of using shatterproof glass in bathroom enclosures had come into common use, so that by 1976, the date of the accident the glass door here no longer conformed to accepted safety standards.

Defendant’s managing agent admitted that at least since 1965 it been customary for landlords who had occasion to install glass for shower encloures, whether to replace broken glass to or compy with the request of a tenant or otherwise to do so with some material such as plastic or safety glass.

Issue: Whether the custom of replacing glass with shatterproof glass was required by landlords without notice by a tenant of the danger or by reason of a similar accident in the building.

Rule: When proof of an accepted practice is accompanied by evidence that the defendant conformed to it, this may establish due care and contrariwise when proof of a customary practice is coupled with a showing that it was ignored and that this departure was a proximate cause of the accident it may serve to establish liability.

Once its existence is credited, a common practice or usage is still not necessarily a conclusive or even a compelling test of negligence . Before it can be, the jury must be satisfied with its reasonableness just as the jury must be satisfied with reasonableness of the behavior which adhered to the custom or the unreasonableness of that which did not.

Reasoning: It is not to be assumed customary practice and usage need be universal. It suffices that it be fairly well defined and in the same calling or business so that actor may be charged with knowledge of or negligent ignorance.

So measured, the case the plaintiff presented…was enough to send it to the jury and to sustain the verdict reached.

The trial judge placed the evidence of custom and usage…”the mere fact that another person or landlord may have used a better or safer practice does not establish a standard” and that it was for the jurors “to deteremine whether or not the evidence in this case does establish a general custom.

Holding: The court reversed the dismissal but order a new trial because the trial judge had erroneously admitted certain evidence that had hurt the defense. (this is holding is wrong)

Notes and questions:

Even if prevailing custom does not set the standard of care, adherence to, and deviation from, custom may be important in deciding whether the actor has behaved reasonably.

A defendant who can prove that it adhered to a prevailing custom may eliminate what might otherwise be a jury question.

o In a classic article Morris, Custom, and Negligence the author suggested that proof alerts the trial court to three main points.

(1) First, if the industry adheres to a single way of doing something, the court may be wary of plaintiff’s assertion that there are safer way to do that thing-and may insist that plaintiff clearly demonstrate the feasibility of the assereted alternative

(2) Second, even if the plaintiff can show a feasible alternative, the fact that it may not have been in use anywhere may suggest that it was not unreasonable for the defendant to be unware of the possibility.

Third, the existence of a custom that involves large fixed costs may warn the court of the social impact of a jury or court decision that determines the custom to be unreasonable

On the the hand, Professor Morries, pointed out a plaintiff will find it useful to prove that the defendant fell below the industry custom because it tends to show that others, usually competitiors, found it feasible to something in a safter maner than did the defendant.

The Role of statutes

Martin v. Herzog

Facts: The action is one to recover damages for injuries resulting in death. (P) and her husband, while driving toward Tarrytown in a buggy on the night of August 21, were struck by the (D) automobile coming in the opposite direction.

Negligence is charged against the defendant, the driver of the car, in that he did not keep to the right of the center of the highway. Negligence is charged against the plaintiff’s intestate the driver of the wagon in that he was traveling without lights. The case against the (D) must stand, if at all, upon the divergence of his course from the center of the highway.

Issue: whether the charge to the hury was erroneous and misleading because the case was tried on the assumption that the hour had arrived when driving light supposed to be turned on? Rule: The unexcused omission of the statutory signals is more than some evidence of negligence. It negligence in itself.

By the very terms of the hypothesis, to omit, willfully or heedlessly, the safeguards prescribed by law for the benefit of another that be may be preserved in life or limb, is to fall short of the standard of diligence to which those who life in organized society are under a duty to conform.

Reasoning: In the case at hand, we have an instance of the admitted violation of a statute intended for the protection of travelers on the highway , of whom the defendant at the time was one. Yet the jurors were instructed in effect that they were at liberty in their discretion to treat the omission of lights either as innocent or as culpable.

Jurors have no dispensing power by which they may relax the duty that one traveler on the highway owes under the statue to another. It is error to tell them that they have.

Holding: A statute designed for the protection of human life is not to be brushed aside as a form of words, its commands reduced to the level of cautions, and the duty to obey attenuated into an option to conform.

Maldonado – If a driver violates a safety statute whose purpose is to protect life and without an excuse violation is negligence per se.

§ 286 Second Restatement

The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or administrative regulation whose purpose is found to be exclusively or in part

(a) to protect a class of persons which includes the one whose interest is invaded(b) to protect the particular interest which is being invaded(c) to protect that interest against the kind of harm which has resulted(d) to protect that interest against the particular hazard from which harm results

Tedla v. Ellman

Facts: Two junk collectors were walking eastward along sunrise highway. There were no sidewalks and they could not use the grass center strip because they were transporting junk in baby carriages that would have gotten mired on the soft ground.

There was a statute in place that provided: pedestrans walking or remaining on the paved portion, or traveled part of a roadway shall be subject to, and comply with, the rules governing vehicles…

It was Sunday night and very heavy traffic when the two (P) were hit by the (D) car.

Issue: Whether there was contributory negligence

Rule: Failure to observe the standard imposed by statute is negligence as matter of law. On the other hand, where a statutory general rule of conduct fixes no definite standard of care which would under all circumstances tend to protect life, limb, or property, but merely codifies or supplements a common-law rule which has always been subject to limitations and exceptions; or where the statutory rule of conduct regulates conflicting rights and obligations in a manner calculated to promote public convenice and safety, then the statute, in the absence of clear language to the contrary should not be construed as intended to wipe out the limitations and exceptions which judicial decisions have attached to the common-law duty.

Reasoning: We may assume reasonably that the legislature directed pedestrians to keep to the left of the center of the road because that would them to face traffic approaching in that land and would enable them to care for their own safety better than if traffic approached them from the rear.

Holding: We cannot assume reasonably that the legislature intended that a statute enacted for the preservation of the life and limb of pedestrians must be observed when observance would subject to more imminent danger.

Class 7 – 8 – Proof of negligence

Proof of negligence

Problems of proof occur at virtually every stage of the negligence action. In this section, we focus on the plaintiff’s burden of proving that defendant’s

conduct fell below the standard of reasonable care. When documentary and photographic proof are used, accuracy and

creditability are less readily challenged.

Negri v. Stop and Shop, Inc.

Facts: The injured (P) while shopping in defendant’s store, fell backward, did not come into contact with the shelves, but hit her head directly on the floor where “a lot of broken jars” of baby food lay. That a witness in the immediate vicinity of the accident did not hear any jars falling from the shelves or otherwise breaking during the 15 or 20 minutes prior to the accident; and that the aisle had not been cleaned or inspected for at least 50 minutes prior to the accident—indeed, some evidence was adduced that it was at least two hours.

Issue: Whether (P) made a satisfactory primia facie case of negligence against the (D).

Holding/Rule: Plaintiff’s having made out a prima facie case, it was error to dismiss the complaint. If the jury verdict be deemed by the Appellate Division to be against the weight of the evidence, that court’ power is limited to ordering a new trial.

The record contains some evidence tending to show that defendant had constructive notice of a dangerous condition which allegedly caused injuries to its customers.

Reasoning: It cannot be said, as a matter of law, that the circumstantial evidence was insufficient to permit the jury to draw necessary inference that a slippery condition was created by jars of baby food which had fallen and broken a sufficient

length of time prior to the accident to permit defendant’s employees to discover and remedy the condition.

Gordon v. American Natural History

Facts: (P) was injured when he fell on defendant’s front steps. (P) testified that as he descended the upper level of steps he slipped on the third step and that while he was in midair he observed a piece of white, waxy paper next to his left foot. (P) alleges that his paper came from the concession stand that defendant had contracted to have present and which was located on the plaza separating the two tiers of steps and that (D) was negligent insofar as it employees failed to discover and remove the paper before he fell on it. Issue: The issue was whether plaintiffs had presented sufficient evidence on the issue of causation insoafar as both plaintiffs failed to specify which step they had fallen on and what condition –wear, wetness or litter had caused them to slip.

Rule: To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.

Analysis: The record contains no evidence that anyone, including the plaintiff, observed the piece of white paper prior to the accident. Nor did he describe the paper as being dirty or worn, which would have provided some indication that it had been present for some period of time.

Reasoning: One the evidence presented, the piece of paper that caused plaintiff’s fall could have been deposited there only minutes or seconds before the accident and any other conclusion would be pure speculation.

Neither a general awareness that litter or some other dangerous condition may be present…nor the fact that plaintiff observed other papers on another portion of the steps approximately 10 minutes before his fall is legally sufficient to charge defendant with constructive notice of the paper he fell on.

Holding: The defect in plaintiff’s case here, however, is not an inability to prove the causation element of his fall but the lack of evidence establishing constructive notice of the particular condition that caused his fall.

Notes and questions:

In a negligence action, evidence of similar accident or occurrences, or the absence thereof, may be relevant circumstantially to determine whether a defective or dangerous condition, notice thereof, or causation existed on the occasion in question

(1) Initially, however, the court must determine whether the evidence code that requires the judge to “determine the relevance of the evidence on the basis of whether there is a substantial similarity in the operative circumstances

between the proffer and the case at bar and whether the evidence is probative on a material issue in the case.

(2) Second, even if the evidence is relvevant, the court “must then consider whether the probative value of such evidence is substantially outwieghted by the countervailing considerations…that is, the danger of unfair prejudice, confusion of the issue, or undue delay.

Randall v. K-mar Corp.

Facts: The (P) slipped on loose birdseed in aisle in defendant’s store. After being unable to establish constructive notice, (P) sought to invoke the “business practice” rule. Reasoning: Although the plaintiff failed to establish actual or constructive knowledge of the dangerous condition, the court observed that the case involved a “self-dangerous method” of displaying…fruits and vegetables whereby produce was stored in open bins and was handled by both customers and employees.

The Vermont court had concluded that under these circumstances the merchant was obligated to anticipate dangerous conditions.

Rule: The self-service method (under the business practice rule)…carried with it a corresponding duty of care by the store to use reasonable measures to discover and remove from the floor debris which may have been dropped or knocked to the floor by persons at the counter. Debris on the floor is to be anticipated in a self-service operation. The fact can reasonably be concluded that such hazard to business invitees constituted a risk of harm within the reasonable foresight of the defendant and that it should have taken reasonable steps to obviate the danger.

The business practice exception was created to address the hazard associated with customers who handpick produce from open bins.

Analysis: The court of appeals in Randall concluded that a merchat that uses such a self-service method of sale must bear the burden of showing what steps were taken to avoid the foreseeable risk of harm.

Reasoning: It is insufficient for Randall to charterize Kmart’s merchandising method generally as “self-service,” without explaining how Kmart’s merchandising of birdseed posed a hazard.

Byrne v. Boadle

Facts: A witness stated that a barrel of flour fell from a window above in (D) house and shop, and knocked (P) down. (P) was carried to adjoining shop. Witiness also said “I did not see the barrel until struck the plaintiff. It was not swinging when it struck the plaintiff. If struck him on the shoulder and knocked him towards the shop.

The (P) said: “on approaching Scotland place and defendant’s shop, I lost all recollection. I felt no blow. I saw nothing to warn me of danger. I was taken home in a cab. I was helpless for a fortnight.

Issue: Whether there was misdirection of the learned assessor in ruling that there was no evidence of negligence on the part of the defendant.

Rule: It is the duty of person who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence.

Reasoning: So in the building or repairing of a house, or putting pots on chimneys, if a person passing along the road is injured by something falling upon him, I think the accident alone would be primia facie evidence of negligence.

The present case upon the evidence comes to this, a man is passing in front of the premises of a dealer in flour, and there falls down upon him a barrel of flour. I think it apparent that the barrel was in the custody of the defendant who occupied the premises, and who it responsible for the acts of his servants who had control of it; and in my opinion the fact of its falling is primia face evidence of negligence, and the plaintiff who was injured by it is not bound to show that it could not fall without negligence, but if there are any facts inconsistent with negligence it is for the defendant to prove them.

Res Ipsa Loquitur: Latin: the thing speaks for itself.

Generally, in tort, the mere fact of an accident is not proof of negligence. But in

some cases, negligence is presumed on the defendant since the object causing injury

was in or under his or her control. This is the res ipsa loquitur doctrine.

Res ipsa loquitur is a rebuttable presumption rebutted by showing that the event

was an inevitable accident and had nothing to do with the defendant’s responsibility

of control or supervision.Examples of res ipsa loquitur, not all of which can be

assumed to apply today or in all jurisdictions, but which illustrate the doctrine:

• Getting hit by a rock which flies off a passing dump truck;

• A ship in motion collides with an anchored  ship;

• Damages occasioned by the collision of two trains of a same railway;

• Hit or injured in an attack by a known-to-be vicious domestic dog;

• Hit from cargo falling from a crane; or

• Hit by bricks falling from a private bridge.

These events imputes negligence (res ipsa loquitur) and can only be defeated if the defendant can show that the event was a total and inevitable accident.Judicial consideration of the doctrine has, and continues to this day to be, varied.

McDouglad v. Perry

Facts: (P) was driving behind a tractor-trailer being driven (D). As the tractor-trailer went over some railed tracks the 130-pound spare tire came out of its cradle underneath the trailer and feel to the ground. The trailer’s rear tires then ran over the spare, causing the spare to bounce into the air and crash into the windshield of (P) jeep.

The spare tire was housed in angeled cradle underneath the trailer. (D) testified that he believed the chain to be the orginial chain that came with the trailer in 1969. (D) testified that he performed a pre-trip inspection of the trailer of the accident. This included an inspection of the chain, although (D) admitted he did not check every link in the chain.

The judge instructed the jury on the doctrine of res ipsa loquitur. The jru subsquenly returned a verdict in McDougald’s favor.

Issue: Whether the standard of Res Ipsa Loquitur should be applied in this case?

Rule: Res ipsa loquitur…provides an injured plaintiff with a common-sense inference of negligence where direct proof of negligence is wanting, provided certain elements consistent with negligent behavior are present. Essentially the injured plaintiff must establish that the instrumentality causing his or her injury was under the exclusive control of the defendant, and that the accident is one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control.

Analysis: (1) The first requirment for the application of the rule…is a basis of past experince which reasonably permits the conclusion that such events do no ordinarily occur unless someone has been negligent.

There are many types of accidents which commonly occur without the fault of anyone.

o The fact that a tire blows out, or that a man falls down stairs is not, in the absence of anything more, enough to permit the conclusion that there was negligence in inspecting the tire, or in the construction of the stairs, because it is common human experience that such events all too frequently occur without such negligence.

On the other hand there are many events such as those of objects falling from the (D) premises, that fall of an eleveator, the escape of gas or water from mains or of electicity from wires or applicnaces, the derailment of trains or the explosion of boilers, where the conclusion

is at least permissible that such things do not usually happen unless someone has been negligent. To such events res ipsa may apply.

Reasoning: The court concluded that the spare tire escaping from the cradile underneath the truck, resulting in the tire ultimately becoming airborne and crashing into McDougalds’s vehicle, is the type of accident which, on the basis of common experience and as a matter of general knowledge, would not occur but for the failure to exercise reasonable care by the person who had control of the spare tire.

Rather commn sense dictates an inference that both a spare tire carried on a truck and a wheel on a truc’s axle will stay with the truck unless there is a failure of reasonable care by the person or entity in control of the truck.

The plaintiff is not required to elimate with certainity all other possible causes or inference.

Holding: The district court’s decision was revered and the case remanded for consideration of remaining issues.

Notes and questions:

Note 4 – inference viewo A fact situation may arise that is so strong that the jury is instructed

that it must find negligence in the absence of persuasive exculpation. For example, in New York, which purports to follow the

inference view, an airplane passenger was injured when the plane went off the runway while landing in Kennedy Airport.

This showing was “so convincing that the inference of negligence arising therefrom is inescapable if not rebutted by other evidence.”

o In some states if res ispsa applies it is treated as a “presumption affecting the burden of producing evidence.” This means that if the defendant offeres no plausible rebutting evidence the (P) is entitled to judgment as a matter of law on liability

Note 5 –o Defendant can rebut Res Ispa …example in the doctor case MD1, MD2,

and MD3 Note 9 – Automobile cases

o Will defendant to bring forth evidence to rebut

Ybarra v. Spangard

Facts: (P) consulted (D) Dr. Tilley, who diagnosed his ailment as appendicitis, and made arrangements for an appendectomy to be performed by defendant Dr.

Spangard at a hospital owned and managed by defendant Dr. Swift. Several doctors and nurses attended him…according to (P)’s testimony, they laid him on his back against two hard objects at the top of his shoulders, about an inch below his neck. Dr. Reser then administered the anesthetic and plaintiff lost conciousness.

(P) testified that prior to the operation he had never had nay pain in, or injury to, his right arm or shoulder, but that when he awakened he felt a sharp pain about half way between the neck and the point of the right shoulder.

(P) also consulted Dr. Wilfred, who had X-ray pictures taken which showed an area of diminished sensation below the shoulder and atrophy and wasting away of the muscles around the shoulder. In the opinion of Dr. Clark, (P)’s condition was due to trama or injury by pressure or strain, applied between his right shoulder and neck.

Issue: Whether (P)’s theory that foregoing evidence presents a proper case for the application of the doctrine of res ispa loquitur? Whether the inference of negligence arising therefrom makes the granting of a nonsuit improper.

Defenants defenses: (1) that where there are several defendants, and there is a division of

responsibility in the use of the instrumentality causing the injury, and the injury might have resulted from the separate act of either one of two or more persons, the rule of res ipsa loquitur cannot be invoked against any one of them.

(2) That where there are several instrumentalities, and no showing is made as the which caused the injury or as to the particular defendant in control of it, the doctrine cannot apply.

Rule: The doctrine of res ipsa has three conditions:(1) the accident must be of a kind which ordinarily does not occur in the absence

of someone’s negligence; ((2) 2) it mist be casued by an agency or instrumentality within the exclusive

control of the defendant(3) it must not have been due to any voluntary action or contribution on the part

of the plaintiff.

Reasoning: There is, however, some uncertainty as to the extent to which res ipsa loquitur may be invoked in cases of injury from medical treatment.

The present case is of a type which comes within the reason and spirit of the doctrine more fully perhaps than any other.

o Viewed from this aspect, it is difficult to see how the doctrine can with any justification, be so restricted in its statement as to become inapplicable to a patient who submits himself to the care and custody and nurses, is rendered unconscious, and receives some injury from instrumentalities used in his treatment.

o The condition that the injury must have been due to the (P)’s voluntary action is of course fully satisfied under the evidence produced herein; and the same is true of the condition that the accident must be one which ordinarily does not occur unless someone was negligent.

We do not believe that either the number or relationship of the (D)s alone determines whether the doctrine of res ipsa loquitur applies . Every defendant in whose custody the (P) was placed for any period was bound to exerise ordinary care to se that no unnecessary harm came to him and each would be liable for failure in this regard.

The other aspect of the case which (D)s so strongly emphasize is that (P) has not indentified the instrumentality any more than he as the particular guilty (D). Here, again there is misconception which, if carried to the extreme for which defendants contend, would unreasonably limit the application of the res ipsa loquitur rule.

Possible V.L or Respondeat superior claims: “it should be noted that while the assisting physicians and nurses may be employed by the hospital, or engaged by the patient, they normally become the temporary servants or agents of the surgeon in charge while the operation is in progress, and liability may be imposed upon him for their negligent acts under the docrine of respndeat superior.

Holding: Doctrine of res ispa loquitur is properly applicable in this case. We merely hold that where a (P) receives unusual injuries while unconscious and in the course of medical treatment, all those (D) who had any control over the body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct.

Class 9 –

Medical Malpractice

The special case of medical malpractice

o The conduct of a defendant in a negligence suit is usually measured against conduct of a hypothetical reasonably prudent person acting under the same or similar circumstances.

o In medical malpractice cases, however, courts have required that the specialized knowledge and skill of the defendant must be taken into account.

o Although the law had thus imposed a higher standard of care on doctors, it has tempered the impact of that rule by permitting the profession, as a group, to set its own legal standards of reasonable conduct.

o In a malpractice case…the question of whether the defendant acted in conformity with the common practice within his profession is at the heart of the suit.

o Plaintiffo As part of his prima facie case a plaintiff must affirmatively prove the

relevant recognized standard of medical care exercised by the other physicians and that the defendant depart from that standard when treating the plaintiff.

o In almost all cases the plaintiff must present expert witnesses since the technical complexity of the facts and issues usually prevents the jury itself from determining both the appropriate standard of care and whether the defendant’s conduct conformed to that standard.

Sheeley v. Memorial Hospital

Facts: (P) gave birth, in 1987, Dr. Ryder, a second-year family practice resident, performed an episiotomy…(P) developed complications at the site of this surgery and sued Dr. Ryder and the hospital.

At the trial on the malpractice action, (P) sought to introduce the expert medial testimony of Dr. Leslie, a board certified (OB/GYN). Dr. Leslie planned to testify about Dr. Ryer’s alleged malpractice and the applicable standard of care as it relates to the performance of an episiotomy.

The (D) objected and filed a motion in limine to exclude the testimony, arguing that Dr. Leslie, as OB?GYN, was not qualified under….to testify against a family practice resident who was performing obstetric and gynecological care.

The expert witness had a wealth of experience….

The trial judge followed the decision in Soares v. Vestal…which requires a testifying expert to be the same medical field as the defendant physican.

Issue: Whether the trial justice erred in excluding the testimony of (P)’s expert witness, which exclusion resulted in the entry of the directed verdict?

Rule: Only those persons who by knowledge, skill, experience, training or education qualify as experts in the field of the alleged malpractice shall be permitted to give expert testimony as to the alleged malpractice.

Maldonado – “a physician us under a duty to use the degree of care and skill that is expected of a reasonably competent practitioner in the same class to which he or she belongs, acting in the same or similar circumstances.

Reasoning: First the court distinguished Soares in Buja v. Morningstar and limited its holding to situations in which the physican-expert lacks knowledge, skill, experience, or education in the same medical field as the alleged malpractice.

Relying on our previous holding in Marshall, the court reversed the trial justice and stated that even though the proposed expert did not practice in the same specialty as the (D), he clearly had the prerequite “knowledge, skill, experience, traning or education…in the field of the alleged malpratice. The Buja court held that nothing in the language of § 9-19-41 requires the expert to pratice in the same specialty as the defendant.

The appropriate standard of care to be utilized in any given procedure should not be compartmentalized by a physician’s area of professional specialization or certification. On the contrary, we believe the focus in any medical malpractice case should be the procedure performed and the question of whether it was executed in conformity with the recognized standard of care, the primary concern being whether the treatment was administered in a reasonable manner.

Holding: In sum, the traditional locality rules no longer fit the present-day medical malpractice case. Dr. Leslie qualifies as an expert witness.

Pg. 117 – note 6

o Doctors for hire and potential bias.

States v. Lourdes Hospital

Special note: Res ipsa loquitur was available in “a narrow category of factually simple medical malpractice cases [requiring] no expert to enable the jury reasonably to conclude that the accident would not happen without negligence….testimony can be used to educate the jury as to the likelihood that the occurrence would take place without negligence where a basis of common knowledge is lacking”…in finding res ipsa loquitur.

Facts: (P) States underwent surgery at Our Lady of Lourdes Hospital in for removal of an ovarian cyst. The cyst was successfully removed. (P) alleges that during the operation, her anesthesiologist and his practice group (collectively “D”) injured her right arm.

When (P) awoke, she complained of increasing pain in her right arm and shoulder. The cause of the injury is in dispute; however, (P) alleges negligence in the positioning of her arm during surgery.

Rule: It….may be supplied by evidence of the parties; and expert testimony that such an event usually does not occur without negligence may afford a sufficient basis for the inference. Such testimony may be esstential to the plaintiff’s case where, as for example in some actions for medical malpractice, there is no fund of common knowledge which may permit laymen reasonably to draw the conclusion.

(expert testimony can be used to show res ipsa loquitur)

Reasoning: Notwithstanding the availability of expert testimony to aid a jury in determining whether an event would normally occur in the absence of negligence, expert opinion of course does not negate the jury’s ultimate responsibility as fact to draw that necessary conclusion. The purpose of expert opinion in this context it to educate the jury, enlarging its understanding of the fact the issues it must decide. However the jury remains free to determine whether its newly-enlarged understanding supports the conclusion it is asked to accept.

As advantageous as the res ipsa loquitur inference is for a plaintiff unable to adduce direct evidence of negligence, application of the doctrine does not relieve a (P) of the burden of proof.

Holding: We conclude that expert testimony may be properly used to help the jury “bridge the gap” between its own common knowledge, which does not encompass the specialized knowledge and experience necessary to reach a conclusion that the occurrence would not normally take place in the absnce of negligence, and the common knowledge of phsicians, which…

Matthies v. Mastromonaco

Facts: (P) 81-year-old fell in her apartment and broke her right hip. When she was discovered two days later she was transported to emergency care. (D) rthopedic surgeon prescribed bed rest rather than surgery.

The trial court refused to permit an informed consent claim to go to the jury because (1) the doctrine did not apply where the recommendation was noninvasive and (2) the claim was subsumed within the malpractice claim.

The (D) had several reasons for not wanting to move forward with surgery and instead opted that the (P) should have bed rest. (P)’s expert, Dr. Sicherman, a board-certified orthopedic surgeon, testified that under the circumstances, bed rest was an inappropriate treatment…unless the (P) does not expect to walk again.

(D) Doctor made the call not to perform the surgery without consulting the (P) patient.

Issue: Whether the doctrine of informed consent requires a physician to obtain the patient’s consent before implementing a nonsurgical course of treatment?

Rule: A physician could be obligated, depending on the circumstances to discuss a variety of treatment alternatives such as chemotherapy, radiation, or surgery with a patient diagnosed with cancer.

o Distinguishing the two situations are the limitations of the reasonable patient standard which need not unduly burden the physician patient relationship.

o The standard obligates the physician to disclose only that information material to a reasonable patient’s informed decision. Physicians thus remain obligated to inform patients of medically reasonable treatment alternatives and their attendant probable risks and outcomes. Otherwise, the patient in selecting one alternative rather than another cannot make a decision that is informed.

For consent to be informed, the patient must know not only of alternatives that the physician recommends, but of medically reasonable alternatives that the physician does not recommend.

Reasoning: Phyicisans, in turn, have a duty to evaluate the relevant information and disclose all courses of treatment that are medically reasonable under the circumstances.

Court rejected (D)’s contention that informed consent applies only to invasive procedures.

In informed consent analysis, the decisive factor is not whether a treatment alternative is invasive or noninvasive, but whether the physician adequately presets the material facts so that the patient can make an informed decision.

To assure that the patient’s consent is informed, the physician should describe, among other things, the material risks inherent in a procedure or course of treatment.

Like the deviation from a standard of care, the physician’s failure to obtain informed consent is a form of medical negligence…phsucian’s may neither impose their values on their nor substitute their level of risk aversion for that of their patients.

Holding: To obtain a patient’s informed consent to one of several alternative courses of treatment, the physican should explain medically reasonable invasive and noninvasive alternatives, including the risks and likely outcomes of those alternatives, even when the chosen course is noninvasive.

Note 4 pg 128

o Physicians Insurance co.o The court held that an earlier consent may be withdrawn while there

is still time to adopt an alternative course of action. o Court decilined to view the informed consent doctrine as a solitary

and blanketing event, a point on a timeline after which such

discussions are no longer needed because they are ‘covered’ by some articulable occurrence in the past.

Note 6 p128

o A surgeon’s personal characteristics and experience are not relevant to the issue of informed consent, although the case might be analyzed as one for misrepresentation.

THE DUTY REQUIREMENT: PHYSICAL INJURIS

Class 10-11 –

Affirmative obligations to act

Introduction

The connection between the “negligence”…is demonstrated by the fact that “negligence” is often referred to as “breach of duty”—a clear indication that some duty must exist before the (D) can be said to have committed actionable negligence.

The third restatement reflects the trend in providing that “ordinarily…a duty to exercise reasonable care exists with regard to causing physical harm but recognizes that for reasons of “principle or policy” courts may determine that an exception should be created for a given class of cases.

Rule:o If the nature of a thing is such that it is reasonably certain to place life

and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the elements of danger is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully…

Affirmative obligations to act

If an individual is in a situation of danger, should the law impose a duty on others affirmatively to assist that person?

Harper v. Herman

Facts: Harper (P) was one of four guests on Herman’s (D) boat. Harper and Herman did not know each other prior to the outing and Harper had been invited by another guest. Herman took the group to a popular recreation spot with which he was familiar. (P) asked if (D) was “going in”. (D) said yes and then (P) without warning

dove into two or three feet of water unannounced. (P) severed his spinal cord rendering him a quadriplegic. (P) then brought suit, alleging that (D) owed him a duty of care to warn him that the water was too shallow for diving.

P sued D and the trial court granted summary judgment for D. P appealed and the judgment was reversed. D appealed.

Issue: Whether a boat owner who is a social host owes a duty of care to warn a guest on the boat that the water is too shallow for diving.

Rule: (1) An affirmative duty to act only arises when a special relationship exists

between the parties. (The fact that that an actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action…unless a special relationship exists…between the actor and the other which gives the other the right to protection.)

(2) Generally, a special relationship giving rise to a duty to warn is only found on the part of common carries, innkeepers, possessors of land who hold it open to the public and persons who have custody of another person under circumstances in which that person is deprived of normal opportunities of self-protection.

(3) Actual knowledge of a dangerous condition tends to impose a special duty to do something about that condition.

a. Superior knowledge of a dangerous condition by itself, in the absence of a duty to provide protection. , is insufficient to establish liability in negligence.

(4) There are many dangers such as those of fire and water…which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child…

Reasoning: Special relationship could be found to exist only if (D) had custody of (P) under circumstances in which (P) was deprived of normal opportunities to protect himself.

The record before this court does not establish that (P)….

Holding: (P) had no reasonable expectation to look to (D) for protection, and we hold that (D) had no duty to warn (P) that the water was shallow.

Notes and questions:

Note 2

Maldonado v. Southern Pacific

o (P) claimed that as he was attempting to board one of (D) freight trains, it jerked or bumped and he fell-off and under the wheels, suffering a severed arm…(P) alleged that (D) knew about his plight but did nothing to help him, (P) sued for aggravation of his injuries.

o Rule: Section 322 of the second restatement – if the actor knows or

has reason innocent to know that by his conduct, whether tortuous or, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.

Tresemer v. Barkeo (P) was injured by a device placed in her body by a doctor. Doctor

later learned that the device was harmfulo Rule

Section 321 of second restatement – one who has done an act and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another is under a duty to exercise due care to prevent the risk from occurring even though at the time the actor had no reason to believe that his act would create such a risk.

Note 3

Galindo v. Town of Clarkstowno (D), a property owner, realized that a recent storm had loosened the

roots of giant tree that, although its roots were on a neighbor’s property, threatened to fall.

o Rule: A person who lacks ownership or control of property cannot

fairly be held accountable for injuries resulting from a hazard on the property.

Farwell v. Keaton

Facts: Farwell and Siegrist (D) consumed beer at a trailer rental lot while waiting for a friend to finish work. They unsuccessfully attempted to engage in conversation with two females and followed the girls to a drive-in restaurant. They were chased back to the lot by six boys including Keaton (D2) after the girls complained to some friends. Siegrist escaped but Farwell was severely beaten.

(D) found Farwell, applied ice to his head, and drove around with him in Farwell’s car for about two hours. Farwell fell asleep in the back of the car and (D) left the car in Farwell’s grandparents’ driveway at midnight. (D) left after unsuccessfully attempting to rouse Farwell. Farwell’s grandparents found him and took him to the hospital where he died three days later.

Farwell’s father (P) sued (D) for wrongful death and the jury awarded P $15,000. The Court of Appeals reversed, holding that D1 had not assumed the duty of obtaining aid for Farwell, and neither knew nor should have known of Farwell’s need for medical treatment. P appealed.

Issue: Whether (D) failed to exercise reasonable care when he came to aid of (P) and thus had a legal duty to avoid any affirmative acts which may make a situation worse?

Rule: (there was a pre-existing relationship) If the (D) does attempt to aid him, and takes charge and control of the situation, he is regarded as entering voluntarily into a relation which is attended with responsibility. Such a (D) will then be liable for a failure to use reasonable care for the protection of the (P) interest. Where performance clearly has begun, there is no doubt that there is duty of care.

Social venture Implicit in such a common undertaking is the understanding that one will

render assistance to the other when he is in peril if can do so without endangering himself.

o Court will find a duty where, in general, reasonable men would recognize it and agree that it exists.

Analysis: The jury must determine, after considering all the evidence, whether the (D) attempted to aid the victim.

Reasoning: There was ample evidence to show that (D) breach a legal duty. (D) knew that (P) had been a fight, and he attempted to relieve (P) of pain, and (P) had crawled into the back seat to lay down.

Holding: Because (D) knew or should have known of the peril (P) was in and could render assistance without endangering himself he had an affirmative duty to come to (P)’s aid.

Dissent: The close relationship between (D) and the decedent is said to establish a

legal duty upon (D) to obtain assistance for the decedent. No authority is cited for this proposition other than public policy…

Notes and Questions:

Note 1 The majority recognizes an obligation of due care on two independent

groundso (1) that (D) voluntarily came to the assistance of (P)

o (2) that (D) in any event had affirmative duty to aid (P) on the basis of their pre-existing relationship.

Note 4 3rd restatement requires an actor to exercise reasonable care in

discontinuing aid for someone who reasonably appears to be in imminent peril.

Section 324 of the second restatement provides that one who, being under no duty to do so , takes charge of another who is helpless is subject to liability caused by

o (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or

o (b) the actor’s discounting his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him.”

Randi W. v. Muroc Joint Unified School District

Facts: The (P), Randi, accused four schools districts writing letters of recommendation for a teacher they knew to have a history of sexual misdeeds with students. (P) alleged that she was sexually assaulted by Gadams, an assistant principal who had received a job at her school. The previous school districts knowingly concealed Gadams’ past allegations and resignations for sexual misconduct with students.

Issue: Whether courts may impose tort liability on employers who fail to use reasonable care in recommending former employees for employment without disclosing material information on their fitness.

Rule:

311 restatement 2nd of torts(1) one who negligently gives false information to another is subject to liability

for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results

a. to the other, orb. to such third person as the actor should reasonably expect to be put in

peril by the action taken(2) such negligence may consist of failure to exercise reasonable care

a. in ascertaining the accuracy of the information, orb. in the manner in which it is communicated.

The general rule is that all persons have a duty to use ordinary care to prevent others from being injured as the result of their conduct.

Factors used to determine a departure from the general rule is appropriate o (1) foreseeability of harm to the (p)o (2) the degree of certainty that (P) suffered injuryo (3) the closeness of the connection between the (D)’s conducto (4) the policy of preventing future harmo (5) the extent of the burden to the (D) and consequences to the

community of imposing a duty t exercise care with resulting liability for breach,

o (6) the availabilityo (7) cost, o (8) prevalence of insurance for the risk involved.

Reasoning: (D) made positive assertions in this case.

Holding: the writer of a letter of recommendation owes to a third persons a duty not to misrepresent the facts in describing the qualifications and character of a former employee, if making these misrepresentations would present a substantial, foreseeable risk of physical injury to the 3rd persons.

Notes and Questions:

Tarasoff v. Regents of the University of California

Facts: On October 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff. (P)s, Tatiana's parents, allege that two months earlier Poddar confided his intention to kill Tatiana to Dr. Lawrence Moore, a psychologist employed by the Cowell Memorial Hospital at the (D) University of California at Berkeley. They allege that on Moore's request, the campus police briefly detained Poddar, but released him when he appeared rational. They further claim that Dr. Harvey Powelson, Moore's superior, then directed that no further action be taken to detain Poddar. No one warned plaintiffs of Tatiana's peril. 

(D)…contend that in circumstances of the present case they owed no duty of care to Tatiana or her parents and that, in the absence of such duty, they were free to act in careless disregard of Tatiana’s life and safety.

Issue: Whether when (D) therapists failure to warn (P)s--Tatiana's parents--of the danger to Tatiana was a breach of duty to safeguard their Tatiana and the public ?

Rule:

General rule, one person owes no duty to control the conduct of another, nor to warn those endangered by such conduct.

Exceptiono In cases in which the (D) stands in some special relationship to either

the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct

315 of the restatement second of torts, a duty of care may arise from either

(a) a special relation…between the actor and the third person which imposes a duty upon the acotr to control the third person’s conduct, or

(b) a special relation…between the actor and the other which gives to the other a right of protection.

Reasoning: The court concluded that the public policy favoring protection of the confidential character of patient psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.

If the exercise of reasonable care to protect the threatened victim requires the therapist to warn the endangered party or those who can reasonably be expected to notify him, we see no sufficient societal interest that would protect and justify concealment. …

Holding:

Notes and questions:

Note 2. Reisner v. regents of the university of California

o A boy had HIV and doctor never disclosed information until he was 15 and was intimate with the (P). The boy died and the (P) learned that she was now HIV postive.

o The court, relying largely on Tarasoff, held the (D) doctor owed a duty to the (P) despute the lack of physician-patient relationship.

Uhr v. East Greenbush Central School District

Facts:

Mr. and Mrs. Uhr (P) were the parents of a child who developed scoliosis. Under State law (Education statute law) all children from the ages of 8-16 were required to be tested for scoliosis at least once each school year. Uhr sued the East Greenbush Central School District for failing to examine their child. (P) assert, in essence, that the distict was negligent in failing to examine the minor (P) for sciosis during the

1993-94 school year, as a result of which her ailment was allowed to progress undetected, to her detriment.

The trial court granted D’s motion for summary judgment and held that the law in question did not create a private right of action, and that Ps had otherwise failed to state a claim for negligence. The appellate division affirmed and P appealed.

Issue: Does a statutory duty per se grant a remedy to a private individual

Rule:

Uhr factors: a statue can create a duty of care if:1) P is one of the class for whose particular benefit the statue was enacted2) Recognition of a private cause of action is would promote the legislative

purpose3) A private right of action would further the legislative scheme (Uhr v.

Greenbush Central School Dist: P got scoliosis and D didn’t test for it, in violation of statute; prong 1 & 2 satisfied, but not 3 b/c statute insulated schools from liability)

Holding and Rule: No. A statutory duty does not per se grant a remedy to a private

individual.

The court acknowledged that P was a member of the class for whose benefit the statute was enacted, and that recognition of a private right to sue would promote the legislative purpose. However, the final Sheehy prong analysis demonstrated that a private right of action would be inconsistent with the legislative scheme. The statute provides for the creation of administrative remedies and regulations. Furthermore the statute specifies that the school district shall not suffer any liability in connection with the tests. The court rejected Ps contention that this gave immunity for misfeasance but not nonfeasance.

Gipson v. Kasey

Facts: (D) Kasey provided eight prescription pain pills to a co-worker, who in turn gave them to her boyfriend, Followill. The boyfriend died in his sleep that evening due to a combination of the prescription medicine and alcohol in his system. (P) Gipson, Followill's mother, sued Defendant for wrongful death. The court found (D) liable because he owed a duty of care to Followill. Kasey could have foreseen Followill consuming alcohol and taking the pills.

Issue: The issue presented is whether persons who are prescribed drugs owe a duty of care, making them potentially liable for negligence, when they improperly give their drugs to others.

Rule: Whether a duty exists is matter of law for the court to decide.

The existence of a duty of care is a distinct issue from whether the standard of care has been met in a particular case. As a legal matter, the issue of duty involves generalizations about categories of cases.

(1) Duty is defined as an “obligation, recognized by law, which requires the (D) to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.

(2) Whether the (D) has met the standard of care—that is whether has been a breach of duty—is an issue of fact that turns of the specifics of the individual case.

General notes: Whether the (D) owes the (P) a duty of care is a threshold issue, absent some duty, an action for negligence cannot be maintained. Thus a conclusion that no duty exists is equivalent to a rule that, for certain categories of cases, (D)s may not be held accountable for damges they carelessly cause, no matter how unreasonable their conduct.

Reasoning: This court held that foreseeability is not a factor to be considerd by courts when making determinations about duty.

The court stated that a special relationship is not required…”A finding of duty, however, does not necessarily depend on preexisting or direct relationship between the parties.

As we explained in Stanley the requirement of a formalized relationship between the parties has been quietly eroding…and, when public policy has supported the existence of a legal obligation, courts have imposed duties for the protection of persons with whim no preexisting relationship existed.

Holding: We hold that Kasey did owe a duty of care based Arizon’s statutes prohitbiting the distribution of prescription drugs to person not covered by the prescription.

Class - 12

Policy Bases for invoking no duty

In all the cases in this section, the (D) has played a role in creating the risk that harmed the (P).

o Nevertheless, for specifc policy reasons thought to be important,courts sometimes determine that no duty exists, thereby withdrawing the possibility of the (D) being held liable for the harm, even if negligent.

Strauss v. Belle Realty Co.

Facts: (P) a 77 year old resided in an apartment building in queens. Con Ed provided electricity to his apartment pursuant to agreement with him, and to the common areas of the building under a separate agreement whi his landlord, (D) Belle Realty Company. During the blackout the (D) feel on defective stairs in a common area.

In this action against Belle Realty and Con Edision (P) alleged negligence against the landlord, in failing to maintain the stairs or warn of their dangerous condition, and negligence against eh utility in the performance of its duty to provide electricity.

Issue: The essetnail questions here is whether Con Ed owed a duty to (P), whose injuries from a fall on a darkened staircase may have conceivably been foreseeable, but with whom there was no contractual relationship for lighting in the building’s common areas.

Rule: Duty in negligence cases is defined neither by foreseeability of injury nor privity of contract…as this court has long recognized, an obligation rooted in contract may engender a duty owed to those not in privity for there is nothing anomalous in a rule which imposes upon A, who has contracted with B, a duty to C and D and other according as he knows or does not that the subject-matter of the contract is intended for their use.

Reasoning: On public policy grounds the court dismissed the complaint against con Edison.

But while the absence of privity does not foreclose recognition of a duty it is still the responsibility of courts in fxing the orbut of duty to limit the legal consequences of wrongs to a controllable degree…and to protect against crushing exposure to liability….in fixing the bounds of that duty, not only logic and science, but policy play an important role.

“ORBIT OF DUTY” pg 179

Holding: We conclude that in the case of a blackout of a metropolis of several million residents and visitors, each in some manner necessarily affected by a 25-hour power failure, liability for injuries in a building’s common areas should as matter of public policy, be limited by the contractual relationship.

Dissent: My disagreement with the majority results not from its consideration of public policy as a factor in determining the scope of Con Ed’s duty, but from the fact that in reaching its public policy conclusion it has considered only one side of the equation and based its conclusion on nothing more than assuption…

Notes and questions:

Palks v. Servicemaster management services corp.o (P) nurse was hurt when a wall-mounted fan in (P)’s room fell.o The (D) argued that its only duty was owed to the hosiptial with

which it had contracted. A known and identifiable group—hospital employees, patients

and visitors—was to benefit and be protected by safety maintenance protocols assumed and acquired exclusively by ServiceMaster. It cannot reasonably claim that it was unaware or that it was entitled to be unaware that individuals would expect some entity’s direct responsibility.

Pulka v. Edelmano (P) pedestrian was stuck by a care while it was being driven out the

(D)’s garage and across an adjacent sidewalk by a patron of the garage.

No such duty arose from the relationship between the garage and the deriver because the garage has no reasonable opportunity to control the conduct of the driver.

Although the garage may have taken precautions, ti could be said that had “a reasonable opportunity to stop drivers from disregarding their own sense of danger to pedestrians.” To build a duty on this relationship would place “unreasonable burden on the garage.”

Kelly v. Gwinnell

Facts: Here the host served liquor to the guest beyond the point at which the guest was visibly intoxicated. (D) Gwinnell consumed two or three drinks while at Zak’s home ( 2 or 3 scotches on the rock. Zak watched (D) drive from Zak’s home. Gwinnell, on his way home, was involved in collision with (P) in which (P) was seriously injured. (P) sued Gwinnell for breach of duty in operating his car while intoxicated. (P) also sued Zak for negligence in continuing to serve Gwinnell drinks after it was apparent that Gwinnell was intoxicated, knowing that Gwinnell was going to drive home.

Issue: This case raises the issue of whether a social host who enables and adult guest at his home to become drunk is liable to the victim of an automobile accident caused by the drunk driving of the guest.

Rule: A host who serves liquor to an adult social guest, knowing both that the guest is intoxicated and will thereafter be operating a motor vehicle, is liable for injuries inflicted on a third party as a result fo the negligent operation of a motor vhicle by the adult gust when such negligence is caused by the intoxication.

We impose this duty on the host to the third to the third party because we believe that the policy considerations served by its imposition far outweigh those asserted in opposition.

o Where the social host directly serves the guest and continues to do so even after the guest is visibly intoxicated, knowing that the guest will soon be driving home, the social host may be liable for the consequence of the resulting druken driving.

Reasoning: A reasonable person in Zak’s position could foresee quite clearly that his continued provision of alcohol to Gwinnell was making it more and more likely that Gwinnell would not be able to operate his car carefully. Zak could foresee that unless he stopped providing drinks to Gwinell, Gwinnell was likely to injure someone as a result fo the negligent operation of his car.

When the court determines that a duty exists and liability will be extended, it draws judicial lines based on fairness and policy.

Policy considerations: The court said “we believe that the added assurance of just compensation to the victims of drunken driving as well as the added deterrent effect of the rule on such driving outweigh the importance of those other values.

Reynolds v. Hicks

Facts: Hicks got married and there were a lot of people at the reception including underage nephew Steven. Steven consumed alcohol at the reception and then drove his sister’s car. He then got into a car accident with Reynolds and Reynolds sued the Hicks claiming that they were negligent in knowingly serving alcohol to under age guests. Hicks moved for summary judgement on the grounds that WA did not extend social host liability to situations where intoxicated under age guest s harm third parties.

Issue: At issue is whether the (D) social hosts who furnished alcohol to a minor owe a duty of care to third persons injured by the intoxicated minor.

Rule: does not recognize a cause of action in negligence for a third person injured by an intoxicated adult against the social host that served the person while in an obviously intoxicated state…but does recognize a cause of action against a commercial vendor in the same situation.

Rule applies only to instances where the social host directly serves the gust and continues to so even after the gust is visibly intoxicated knowing that the gust will soon be driving him, the social host may be liable for the consequences of the resulting drunken driving.

Policy considerations: The implications of social host liability are so much more wide sweeping and unpredictable in nature than are the implications of commercial host liability. While liability for commercial provides affects only a narrow slice of our populations, social host liability would touch most adults in the state on a frequent basis. Because social hosts are generally unaccustomed to the pressure involved in taking responsibility for the intoxication of their guests, we cannot predict how well social hosts would repond when the scope of their duties would be so ill defined.

Reasoning: RCW 66.44.270…make it unlawful for any person except a parent to serve alchocl to a minor….

Because the statue allows a parent or guardian to legally give alcohol to a minor who may then injure a third person it is apparent that the statute was not enacted to protect third person injured by intoxicated minors….

Socail hosts are ill-equipped to handle the responsibilities of their guests’ alcohol consumption, unlike commercial vendors who are in the business of serving

Notes and questions:

Estate of Temleton v. Dafferno The court refused to impose a duty of care on social hosts where a

minor brought his own alcohol to a party and the (D)s observed the minor drinking. He was killed in auto accident while driving away from the party.

Vince v. Wilson

Facts: Wilson bought her grandnephew a car. It was the car involved in the care accident. Gardner was the salesman and at the time she bought the car, she knew that grandnephew had no license and that he failed several times and she informed Gardner and Ace Auto Sales about this several times. Wilson also knew that he used drugs and drank. Grandnephew got into accident that injured his passenger and passenger sued Wilson, Ace and Gardner for negligently entrusting an auto to an incompetent driver.

Issue: The issue is clearly one of negligence to be determined by the jury under proper instruction; the relationship of the (D) to the particular instrumentality is but one factor to be considered.

Rule: Dircranian v. foster…”liabiability….arises out of the combined negligence of both, the negligence of one in entrusting the automobile to an incompetent driver and of the other in its operation.

Restatement of torts § 390 One who supplies directly or through a third person a chattel for the use of

another whom the supplier knows or has reason to know to be likely because his youth, inexperience or otherwise to use it in a manner involving unreasonable risk of physical harm to himself and other whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm result to them.

Reasoning: The negligent entrustment theory requires a showing that the entrustor knew or should have known some reason why entrusting the item to another was foolish or negligent.

The evidence indicates that Wilson knew that the operator for whom she provided funding to purchase the vehicle had no driver’s license and had failed the driver’s rest several times. Indeed, she communicated this fact to (D) garder, an agent of (D) ace, prior to the sale of the vehicle.

Notes and questions:

Peterson v. Halsted – (d) father co-signed a financial note so that his adult daughter could get financing for a car. She made all the payements. She caused an accident due to her drunk driving—which (P) alleged (D) knew about all along. The court declined to impose a duty on a co-signer.

o Because of the large number of variables in financing arrangement, the court thought it unwise and destructive of flexibility of analysis to classify suppliers of money or credit categorically as suppliers of chattels…event though the loan or creidt may essential to the borrower in obtaining possions of the chattell.

Pg. 193 note 8 (GUNS)o Valentine v. on target

Rejecting 4-3 liability against a gun retailer to those injured by bullets fired from guns stolen from its store. The majority observed that “one cannot be expected to woe a duty to the world at large to protect it against the actions for third parties.”

o Kitchen v. K-mart The (P) ex-boyfriend, who had been drinking all day, bought a

gun and ammunition at (d)’retail store and immediately sought out the (P) and shot her.

The claim was the boyfriend was so drunk he was unable to fill out the required forms to buy the gun because his handwriting

was not legible. The clerk filled out the forms and had the boyfriend initial each of yes/no answer s and sign his name at the bottom.

Rule: One who supplies chattels to another is not entitled to

assume that it will be used carefully if the supplier knows or has reason to know the other is likely use it dangerously, as where the other belongs to a class which is notoriously incompetent to use the chattel safely, or lacks the train and experience necessary for such use.

Class 13

Landowners and Occupiers

The duties of landowners and occupiers

This section deals with duties owed to entrants by those who own, or are in possession of, lad for harm arising from conditions on the land. By contrast, different may apply when the harm is the result of active operations of the land possessor.

Carter v. Kinney

Facts: The Kinneys (D) hosted a bible study meeting at their home. The sessions were sponsored by the Northwest Bible Church and participants signed up for the sessions at the church. The sessions were hosted at various times at the church and at the homes of other members. Carter (P) came to one of the morning sessions, slipped on a patch of ice in the driveway, and broke his leg. Kinney had shoveled the driveway the previous evening and was not aware that ice had formed overnight. D did not receive any financial or other benefit from P in connection with the bible study meeting.

(P) claims that he was an invitee; the (D) claims that he was licensee.

P sued D and the trial court granted D’s motion for summary judgment, holding that P was a licensee and that D did not have a duty to warn P of a dangerous condition of which D was not aware. P appealed.

Issue: Whether there the (P) was an invitee or a licensee and what is the duty required on the part of the landowner?

Rule:

All persons who enter premises with permission are licensees until the possessor has an interest in the visit such that the visitor “has reason to believe that the premises have been made safe to receive him.” That invitation determines the status of the visitor and establishes the duty of care the possessor owes the visitor. Generally, the possessor owes a trespasser no duty of care; the possessor owes a licensee the duty to make safe dangers of which the possessor is aware, and the possessor owes invitees the duty to exercise reasonable care to protect them against both known dangers that would be revealed by inspection.

Social guest are but a subclass of licensees An entrant becomes an invitee when the possessor invites with the

expectation of a material benefit from the visit or extends an invation to the public generally.

The duty of a possessor to a licensee is to make safe only dangers of which the possessor is aware. Social guests are licensees. The court held that it was irrelevant that D had invited P because there was no material benefit motive and it was not extended to the public. D had not thrown open their premises to the public.

Reasoning: The record shows that…(P) did not enter (D)’s land to afford the (D)’s any material benefit. He is therefore not an inveitee under the definition of “business vistor” contained in section 332 of the restatment.

They did nothing more than give permission to a limited class of persons-chruch members.

Notes and questions:

Note 2: pg. 198o Stit v. Hollandi

(P) who was not a church member, went with a friend to attend a bible study class at (D) church. She tripped over concerete tire stop in the parking lot and claimed that the lighting was inadequate.

Extended invitee status to a person who “invited to enter or remain on land as member of the public for a purpose which the land is held open to the public.”

Note 3:o Except as stated §§334-339, a tresspssessor of land is not liable to

trespassers for physical harm caused by his failure to exercise reasonable care

(a) to put the land in a condition reasonably safe for their reception

(b) to carry on his activities so as not to endanger themo The listed exceptions create obligations to warn, for example, where

the possessor knows that persons “constantly intrude upon a limited

area” of the land and may encounter a hidden danger, or when the possessor fails to exercise reasonable care for the safety of a known trespasser.

Note 5 – section 342 – invitiesso Provides so far as the condition of the premises is concerned, an

occupier is subject to liability to invitees if the occupier: (a) knows or by the exercise of reasonable care would discover

the condition, and should realize that it involves an unreasonable risk of harm to such invitees

(b) should expect that that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against danger

Note 6 – open and obvious dangerso A possessor was not liable to invitees for harm obvious dangers

“unless the possessor should anticipate the harm despite such knowledge or obviousness”

Note 7 – activitieso Bowers v. Ottenad

When a licensee, whose presence is known or should be known, is injured or damaged by some affirmative activity conducted upon the property by the occupier of the property the duty owed to such person is one of reasonable care under the circumstances.

Section 341 of the second restatement extends liability to licensees for failure to carry on activities with due care if, but only if, the occupier should expect that the licensee will not discover or realize the danger, and the licensee does not know or have reason to know of the activities and the risk involved.

Note 8 – o Restatement section 339

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon land if

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaing the condition and the burden of eliminating the danger are slight as compared with the risk to children involved

(e) the possessor fails to exercise fails to exercise reasonable care to eliminate the danger or otherwise to protect the children involved.

Heins v. Webster County

Facts: Heins (P), visiting the hospital that his daughter worked at, slipped and fell on some ice upon leaving. There is some argument as to why he was there, as he argues to talk to his daughter about his playing Santa at the hospital that year, as the hospital argues it, on a social visit to see his daughter. He fell allegedly because of an accumulation of ice and snow, and injured his hip.

(p) claims that Webster County was negligent (1) in failing to properly inspect the above-described entrance prior to inviting the public to use the entrance, (2) in failing to warn Heins of the existence of a dangerous condition, (3) in allowing to the ice and snow to accumulate, (4) in failing to remove the ice and snow.

Issue: Whether this court should abolish the common-law classifications of licensee and invitee and require a duty of reasonable care to all nontrespassers.

Rule: We impose upon owners and occupiers only the duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors. Among the factors to be considered in evaluating whether a landowner or occupier has exercised reasonable care for the protection of lawful visitors will be

(1) the foreseeability of possibility of harm(2) the purpose for which the entrant entered the premises(3) the time, manner, and circumstances under which the entrant entered the

premises(4) the use to which the premises are put or are expected to be put(5) the reasonableness of the inspection, repair, or warning(6) the opportunity and ease of repair or correction or giving of the warning(7) the burden on the land occupier and/or community in terms of

inconvenience or cost in providing adequate protection.

Notes and questions

Notes 9o Louis v. Louis

The court held that in landowner cases (p) need not establish a special relationship: “we have consistently recognized that a duty based on a special relationship theory is separate and distinct from a duty based on a landowner theory.

Criminal activity – pg. 210o A landowner’s duty is to take those measures of protection which are

within his power and capacity to take, and which can reasonably be expected to mitigate the risk of intruders assaulting and robbing tenants.

o The landlord is not expected to provide protection commonly owed by a municipal police department; but as illustrated in this case, he obligated to protect those parts of his premises which are not usually subject to periodic patrol and inspection by the municpal police.

Posecai v. Wal-Mart Stores, inc

Facts: (P) went shopping at Sam’s club. Around 7 pm she was going back to her car in the parking lot and a man robbed her at gunpoint—she was wearing $19,000 dollars worth of jewelry and he took it. Robber never found and she never got jewelry back. A security guard had been stationed inside the store, but there was no security guard outside. Security guard testified that in the 9 years he had been working there, there was no similar crime. Police testified that the area behind the store was a high crime area. Sam’s club was not a high crime location though. Security expert said that crime could have been prevented if a security guard were stationed outside. In the past six years there had been 3 crimes in this parking lot. Lady said that lack of security guards in parking lot was negligent. Trial court said that Sam’s club had a duty to put security guards in parking lot.

Issue: Whether Sam’s club owed a duty to protect Mrs. Posecai from the criminal acts of third parties under the facts and circumstances of the case.

Rule: Although business owners are not eh insurers of their patron’s safety, they do have a duty to implement reasonable measures to protect their patrons from criminal acts when those acts are foreseeable.

The foreseeability of the crime risk on the (D)’s property and the gravity of the risk determine the existence and the extent of the (D)’s duty. The greater the foreseesability and gravity of the harm, the greater the duty of care that will be imposed on the business. A very high degree of foreseeability is required to give rise to a duty to post security guards, but a lower degree of foreseeability may support a duty to implement lesser security measures such as using survellance cameras, installing improved lighting or fencing, or trimming shrubbery.

Reasoning: A careful consideration of the previous incidents of predatory offences on the property reveals that there was only one other crime in Sam’s parking lot, the mugging 1992, that was perpetrated against a Sam’s customer and that bears any similarity to the crime that occurred in this case.

Holding: Sam’s club did not possess the requisite degree of foreseeability for the

imposition of a duty to provide security patrols in its parking lot. Nor was the degree of foreseeability sufficient to support a duty to implement lesser security measures.

Concurring

Would have gone with the totality of circumstances test…

The totality of circumstances test takes all factors of an incident into account when evaluating the issue of duty.

Notes and questions:

Notes 6 – resisting the robbery and apprehending perpetratorso Generally a shop owner does not have to complyo The shopkeeper is never owed a duty.

Class 14

Duty requirement: emotional harm

The duty requirement: nonphysical harm

Protection against nonphysical harms. The common law has distinguished situations in which the only harm

suffered was psychic or economic from the classic physical injury and has developed limited or no-duty rules for reasons that we will explore.

Damages for economic and emotional are, however, rountinely recoverable when they occur as a result of physical harm for which the plaintiff establishes liability.

Emotional Harm

Falzone v. Busch

Facts: ∏ was in a parked car, and her husband was struck by a car. ∏ claimed that the car came so close to her that it put her in fear for her safety. As a result, she became ill and required medical attention. Trial court granted summary judgment for (D) holding that it was constrained to follow the existing New Jersey rule that where there is no physical impact upon the (P), there can be no recovery for bodily injury or sickness resulting from negligently induced fright.

Issue: Whether the (P) may recover for bodiliy injury or sickness resulting from fear for her safety caused by a negligent (D), where the (P) was placed in danger by such negligence, although there no physical impact?

Rule: Where a person is injured attempting to avoid a hazard negligently created by another, he may recover for the phyical consequences of fright even though the immeditate injury suffered was slight and was not a link in the casual chain.

Holding/rule: Where negligence causes fright from a reasonable fear of immediate personal injury, which fright is adequately demonstrated to have resulted in substanstanial bodily injury or sickness, the injured person may recover if such bodily injury or sickness would be regarded as proper elements of damage had they occurred as a consequence of direct physical injury rather than fright. Of course, where fright does not cause substantial bodily injury or sickness, it is to be regarded as too lacking in seriousness and too speculative to warrant the imposition of liability.

Reasoning:

There were 3 reasons that courts gave for not giving recovery for physical impact unless it resulted from physical impact. The court no longer finds these reasons tenable:

• 1) it was thought that emotional injury was not a natural and proximate result of a negligent act

this is better left to medical evidencethe court has allowed recovery for physical ailments in which there was minor

physical impact and in cases in which there was willfully inflicted emotional harm

even though the connection may be hard to find, causation is difficult to show in many other types of cases

• 2) courts concluded that no liability exists without physical impactthis court does not agreejust because there might be fraudulent claims does not mean that the court should

deny recovery to someone who is injured• 3) courts feared that allowing recovery in these cases would result in a flood of

litigationthere is no evidence that there is an excessive number of actions of this typeif there was an excessive number of cases of this type, it should not be resolved by precluding this claim but by expanding judicial machinery

“A great majority of jurisidictions now hold that where physical injury results from wrongfully caused emotional stress, the injured person may recover for such consequences notwithstandning the absence of any physical impact upon him at the time of the mental shock.”

Conclusion: The (P) should be givein opportunity of submitting proof that Mrs. Falzone suffered substantial bodily injury or sickness and that such bodiliy injury or sickness was the proximate result of the (D)’s negligence.

Metro –North Commuter Railroad v. Buckley

Facts: Michael Buckley was exposed to insulation dust containing asbestos while employed as a pipefitter by Metro-North Commuter Railroad Co. Buckley feared he would develop cancer, of which periodic medical check ups have revealed no evidence of an asbestos related disease. Buckley filed suit under the Federal Employers' Liability Act (FELA), which permits a railroad worker to recover for an "injury . . . resulting from" his employer's "negligence." He sought damages for negligently inflicted emotional distress and to cover the cost of future check ups. The District Court dismissed Buckley's case because since there had been no "physical impact" from his exposure, the FELA did not permit recovery for his emotional injury. Buckley's medical monitoring claim was not discussed. In reversing, the Court of Appeals held that that his contact with the insulation dust was considered a physical impact that, when present, permits a FELA plaintiff to recover for accompanying emotional distress. Furthermore, Buckley could recover the costs of check ups made necessary by the exposure.

Issue: Whether a railroad worker negligently exposed to a carcinogen (asbestos) but without symptoms of any disease can recover under the Federa Employers’ Liability Act (FELA) for negligently inflicted emotional distress.

Rule: The common law of torts does not permit recovery for negligently inflicted emotional distress unless the distress falls within certain specific categories that amount to recovery-permitting exceptions.

The law for example does permit recovery for emotional distress where that distress accompanies a physical injury.

….it often permits recovery distress suffered by a close relative who witnesses the physical injury of a negligence victim.

Sometimes permitted revoer for damages for negligent infliction of emotional distress and, in particular, it does so where a (P) seeking such damages satifies the common law’s “zone of danger” test.

It defined that test by stating that the law permits “recovery for emotional injury” by those (P)s who sustain a physical impact as result of (D)’s negligent conduct or who are placed in immediate risk of physical harm by that conduct.”

Reasoning: Court here focused on “physical impact”

Problems with separating valied from invalid emotional distress calims

ssues with people who are exposed to such carciognes bringing massive amounts of law suits.

The common law permits emotional distress recovery for that category of (P)s who suffer from a disease or exhibit physical symptom, for example, thereby finding a special effort to evaluate emotional symptoms warranted in that category of cases—perhaps from a desire to make physically injured victim whole or because the parties are likely to be in court in any event

Physical impact not extended here….

Conclusion: We conclude that the worker before us here cannot recover unless, and until, he manifests symptoms of a disease.

Notes and questions:

Note 5o Potter v. Firestoneo (D)’s dumping toxic waste into a landfill near its plant site exposed

(P) to carcinogens over a prolonged period. Although none of the (P)s suffered from any current condition they faced an enhanced but unquantified risk of developing cancer in the future due to the exposure.

Rule: In the absence of a present physical injury or illness,

damages for fear of cancer may be recovered only if the (P) pleads and proves that

o 1) as a result of the (D)’s negligent breach of a duty owed to the (P), the (P) is exposed to a toxic substance that threatens cancer

o 2) the (P)’s fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that is more likely than not that (P) will develop cancer in the fture due to the toxic exposure.

Note 6 – HIV caseso The courts have tended to require the (P) to show that the needle in

question actally contained the virus. Note 7 windows

o A few courts HIV cases allow recovery for the window between the event that creates the concern and the results of tests showing that infection did not occur.

Gammon v. Osteopathic Hospital of Maine, Inc.

Facts: When his father died at a hospital, ∏ made arrangements for the funeral home to make arrangements. ∏ opened a bag that was supposedly filled with his father’s personal effects but saw a bloodied severed leg in the bag. He suffered an immediate traumatic reaction. He began to have nightmares and his relationship with his family took a turn for the worse. After several months his emotional state improved, but he still had nightmares. He never sought treatment and he did not present medical evidence at trial.

Issue: Whether the (P) under the circumstances has established a claim, in tort, for negligent infliction of severe emotional distress.

Rule: (must be severe emotional harm) A person’s psychic well-being is as much entitled to legal protection as is his physical well-being. We recognize as much and provide compensation when the emotional distress is intentionally or recklessly inflicted, when the emotional distress results from physical injury negligently inflicted, or when negligently inflicted emotional distress results in physical injury.

In order to ensure that a claim for emotional distress without physical injury is not spurious, we have previously required a showing of physical impact, objective manifestation, underlying or accompanying tort, or special circumstances…..the court here has relaxed that those standards…

Reasoning: Instead, we look to the rationale supporting the exception Courts have concluded that the exceptional vulnerability of the familiy of recent decedents make it highly probable that emotional distress will result from mishandling the body.

That high probability is said to provide sufficient trustworthiness to ally the court’s fear of fraudulent claims. This rational, it seems, is but another way of determining that the (D) reasonably should have foreseen that mental distress would result from his negligence.

Some barriers to recovery by have been eliminated.

Portee v. Jaffee

Facts: A boy lived with his mother in an apartment complex. The boy got trapped in the elevator between the elevator door and the wall of the elevator shaft. The elevator was activated and the boy was dragged up to the third floor. Police came and ∏ came and the police worked for 4 ½ hours to free the boy. His mother was there and watched as the boy moaned and cried and flailed his arms and she was restrained from touching him and he died while still trapped. ∏ became severely

depressed and self destructive. She slashed her wrist and required physical therapy and extensive counseling and psychotherapy.

Issue: Whether a parent can recover damages for the emotional anguish of watching her young child suffer and die in an accident caused by (D)’s negligence.

Whether liability should exist where there was no potential for personal injury, but distress resulted from perceiving the negligently inflicted injuries of another

Rule: A cause of action for emotional distress would require the perception of death or serious physical injury.

The cause of action we approve today for the negligent infliction of emotional distress requires proof of the following elements:

(1) the death or serious physical injury of another caused by (D)’s negligence (2) a marital or intimate familial relationship between (P) and the injured

person (3) observation of the death or injury at the scene of the accident (4) resulting severe emotional distress

Notes and questions:

Note 3o Developed sensory perception requirement

Note 4o “absent exceptional circumstances recovery should be limited to

relatives residing in the same household, or parents, siblings, children, and grandparents of the victim.

Note 10 – unmarried couples and emotional distress Questions lies not in the hastily-drawn ‘bright-line’ distinction between

married and unmarried persons but the ‘sedulous application’ of the principles of tort law.

o Factors are listed on pg 294 (bottom).

Johnson v. Jamaica Hospital

Facts: In this case, ∏’s daughter was born and kept in the hospital for further treatment. ∏ came to see her a week later, and the baby was discovered missing. When she was missing, ∏ brought suit for the emotional distress brought about by the defendant’s negligence. The baby was recovered by the police 4 months later.

Issue: Whether the parents have a claim of emotional distress against the (D) hospital.

Rule: There is no basis for establishing such a direct duty. This court has refused to recognize such a duty on the part of a hospital to the parents of hospitalized children….and there is no reason to depart from that ruler here.

Exceptionso Exceptional circumstances: a duty to transmist truthfully information

concerning a relative’s death or funeral which the hospital assumed by sending the message, and the mishandling of or failure to deliver a dead body with the consequent denial of access to the family.

Reasoning: (P) have stated no basis for recovering under the standard set forth in Bovsun in that they have not alleged that were within the zone of danger and that their injuries resulted from contemporaneous observation of serious physical injury or death caused by (D)’s negligence.

The foreseeablity that such psychic injuries would result from the injury to Kawana does not serve to establish a duty running from (D) to (P) and in the absence of such a duty, as a matter of law there can be no liability.

Conclusion: (P) may not recover damages from (D) hospital for any mental distress or emotional disturbances they may have suffered as a result of the direct injury inflicted upon their daughter by (D)’s breach of its duty.

Notes and questions

Consortium claims.

Class 17

Intra-familial duties

Intra family duties

Broadbent v. Broadbent

Facts: While (D) mother was watching her 2 ½ year old son swimming at the family residence, the phone rang. (D) went inside to answer it. When she looked out and could not see her son she ran out and found him at the bottom of the pool. Although he was ultimately revived, he “suffered severe brain damage because of lack of oxygen. He has lost his motor skills and has no voluntary movement. The action was brought by his father as conservator of his son.

Issue: Whether the doctrine of parental immunity bars a son’s action against his mother for negligence?

Rule: Parents always owe a parental duty to their minor child.

Reasonable parent test – in which a parent’s conduct is judged by whether that parent’s conduct comported with that of a reasonable and prudent parent in a similar situation.

Holding: A parent is not immune from liability for tortious conduct directed toward his child solely by reasons of that relationship. And, a parent is not liable for an act or omission that injured his child if the parent acted as a reasonable and prudent in the situation would.

Notes and questions:

Zikely v. Zikelyo The “infant plaintiff was injured when the (D) parent turned on a hot

water faucet in a tub to prepare a bath and then left the room.o The child, left unsupervised, wandered into the bathroom and fell into

or otherwise entered the tub, suffering severe burns. o The majority understood Holodook to protect parents who created

dangers as well as those who failed to protect children against dangers:

To read Holodook to allow suits in such cases would mean that every time a parent plugged in an iron, started a toaster, or boiled a pot of water on the stove, he would be subjected to potential liability if an unsupervised child in contact with these common, daily household hazards in a manner which resulted in injury. To accept such a position would be to strip Holodook of a significant part of its meaning.

o Note 10 Rule – parents and religious belief

parent’s religious belief must yield when—judged by accepted medical practice—if jeopardizes the of a child.

Class

Government liability

Municipal and state liability

Riss v. City of New York

Facts: Riss sued the City of New York for negligence alleging that the police failed to provide police protection. She was terrorized for months by an old boyfriend, and he threatened to kill or maim her. After that she received a phone call saying it was her last chance. The next day a thug hired by the exboyfriend threw lye in her face causing blindness in one eye, and loss of a portion of vision in the other eye and permanent face scarring. She had asked for police protection many times.

Issue: Is a municipality liable for failure to provide special police protection to a member of the public who was repeatedly threatened with personal harm and eventually suffered injuries for lack of protection?

Rule of Law and HoldingThe municipality does not have a duty to provide police protection to an individual. It has a duty to the public as a whole, but no one in particular.

Discussion: The issue of the liability of a municipality for failure to provide special protection to a member of the public who was repeatedly threatened with personal harm and eventually suffered dire personal injures for lack of such protection…needs to be distinguished from certain activies of government which provide services and facilites for the use of the public, such as highways, public buildings and the like, in the performance of which the municipality or the state may be liable under ordinary principles of tort law.

Reasoning:• When the municipality might be subject to liability: In cases involving

Activities that displace or supplement traditionally private enterprises like rapid transit systems, hospitals, and places of public assembly

Activities that provide services and facilities for the use of the public like highways, public buildings, etc.

Reasoning: Because these services and facilities are for the direct use of members of the public

o This case involves governmental protection services from external hazards (such as controlling the activities of criminal wrongdoers

o if we were to permit tort liability for those who seek police protection based on specific hazards, then this would cause a determination as to how the limited resources of the community should be allocated and without predictable limits

o It should be left up to the legislature to determine how to use the resources and the scope of public responsibility

o Imposing liability in this case would not sure the problem of crime and it would bankrupt the city

Dissent: “No mucipalitly has gone bankrupt because it has had to respond in damages when a policeman causes injury thorugh carelessly driving a polic car or in thousands of other situations where, by judicial fiat or legislative enactment, the state and its subdivisions have been held liable for the tortuous conduct of their employees.

Notes and questions:

Sichuster v. City of New Yorko Schuster provided information to police that led to the capture of a

noted criminal, Willie Sutton. Schuster recognized Sutton from an FBI flyer that had been posted in his father’s store. Shortly after he supplied the information to police his life was threaten, and three weeks later he was killed.

o The court 4-3 sustained (P)’s claim that the police were under a legal duty to respond reasonably to Schster’s request for protection.

“They are active in calling upon the citizen for help, ad utilizing his help when it is rendered.

Note 3 Municipal Transport Weiner v. Metropolitan Transpiration Authority

o Involving a subway assault as (P) was decending the stairway to train level in a station where no attendant or guard was present.

o The court ruled that a public transportation authority “owes no duty to protect a person on its premises from assault by a 3rd person, absent facts establishing a special relationship between the authority and the person assaulted. That a nongovernmental common carrier would be liable under the same factual circumstances is not determinative of the authority’s liability.”

Crosland v. New York City Authorityo In which a Transit authority employee alledly witnessed the attack on

the (P) and failed to summon assitance even though he could have done so without personal risk.

Note 4 – The 911 Calo As municipalities set up emergency phone numbers the question of

liability followed quickly. o De Long v. County of Erie – a woman called 911 to report a burglar

outside. The court treated a 911 operator’s assurance that help was being sent “right away” as the assumption of a duty to respond with due care to the victim’s call for help.

o Rule: both direct communication and reliance by the caller are needed to create the special relationship that New York requires for that duty.

o Merced v. city of new york- a 911 case in which the caller apparently as not the victim, the court held that the required relationship “cannot be established without proof that the injured party had direct contact

with the muncipality’s agents and justifiably relied to his or her detriment on the muncipalites assurance that would act that on that party’s behalf.

Lauer v. City of New York

Facts: Three year-old Andrew Lauer died on August 7,1993. That same day, Dr. Eddy Livavious, a New York City Medical Examiner, performed an autopsy and prepared a report stating that eh child’s death was a homicide caused by “blunt injures” to the neck and brain.

Weeks later, on August 31, 1993, the Medical Examiner and a neuropathologist conducted a more detailed study of Andrew's brain. The report, prepared in October 1993, indicated that a ruptured brain aneurysm caused the child's death, thus contradicting the earlier conclusion. The Medical Examiner, however, failed to correct the autopsy report or death certificate, and failed to notify law enforcement authorities.

During this entire between the first autospsy and the new findings Andrew’s father was being invistaged for homicide.

Rule:

Municipalities long ago surrendered common law tort immunity for the negligence of their employees.

o A distinction is drawn, however, between “discretionary” and “ministerial” governmental acts.

A public employee's discretionary acts--meaning conduct involving the exercise of reasoned judgment--may not result in the municipality's liability even when the conduct is negligent.

By contrast, ministerial acts--meaning conduct requiring adherence to a governing rule, with a compulsory result--may subject the municipal employer to liability for negligence

Violation of a statute resulting in injury gives rise to a tort action only if ithe intent of the statute is to protect an individual against an invasion of a property or personal interest.

Discussion: No one disputes that the Medical Examiner's misconduct here in failing to correct the record and deliver it to the authorities was ministerial.

Absent the existence and breach of…a duty, the abrogation of governmental immunity, in itself, affords little aid to a (P) seeking to cast a municipality in damages.

Holding: Here there was no duty found by the court because the statute in question did not apply to the (P).

The federal tort claims act

Federal government waived its general tort immunity in 1946o 1) The district courts…shall have exclusive jurisdiction of civil actions

on claims against the U.S….for money damages, injury or loss property…personal injury or death

o 2) Any action against the U.S. shall be tried without a juryo 3) The U.S shall be liable but not pay punitive damageso 4) No attorney shall charge, demand, receive, or collect for serves

rendered fees in excess of 25% of any judgment o 5) Action against the government is separate from a private action

against the employee § 2680. The provisions of this chapter and section 1346(b)

of this title shall not apply to— (a) (1) Any claim based upon an act or mission of an

employee of the government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid

(2) or based upon the exercise or performance of the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the government, whether or not the discretion involved be abused.

Cope v. Scott

Facts: Cope was driving on a road and collided with another driver on a sharp turn. He sued the national park service and the other driver, claiming that the service failed to maintain the road adequately and failed to put up warning signs. This place where the collision occurred was recorded as a high accident area and recommended that the road be repaved using coarse aggregate to prevent skidding. It was listed as the 33rd thing on the priority sheet to be fixed out of 80. There were 2 slippery when wet signs near the accident but we don’t know how close and the service moved for summary judgment arguing that its inaction was discretionary and therefore exempt from suit under the FTCA.

(P) sued the (D) and the Park Service, alleging that the latter was negligent “in falling to appropriately and adequately maintain the roadway of Beach Drive….and failing to place and maintain appropriate and adequate warning signs along the roadway.”

Issue: Is failure to maintain roadway discretionary and exempt from suit under FTCA and is its failure to post warning signs discretionary and exempt under FTCA?

Rule: The SC court has established a two-step test to determine whether an action is exempt from suit under the discretionary function exemption.

1) First step, whether any “federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. If a specific directive exists, then the employee had no “choice.”

o The only issue is whether the employee followed the directive, and is thus exempt under the first caluse, or whther the employee did not follow the directive, thus opening the government to suit.

o Because no choice is involved where a “specific prescription” exists, the discretionary function exception…in not applicable.

The discretionary function exception may be applicable where there is no specific prescription and the government employee has a “choice” regarding how to act in particular circumstance.

2) Second step, where the “basic inquiry” is whether the challenged discretionary acts of a government employee “are of the nature and quality that Congress intended to shield from tort liability…decisions that require choice are exempt from suit under the FTCA only if they are “susceptible to policy judgment” and involve an exercise of “political , social, or economic judgment.”

Reasoning:

• Can’t just have a hint of policy considerations, must be fraught with them to be exempt from suit under FTCA.

• With regard to the claim that the road was not adequately maintained, the two step test shows that this is exempt from suit—there are policy considerations and there are no specific prescriptions

• In terms of the sign argument, there is no specific prescription and the discretion involved in posting signs is not the kind of discretion protected by the discretionary function exemption to the FTCA—not fraught with policy considerations

See text book for details page. 258

Holding: Any discretion exercised by the government with respect to where and how to psot signs warning of dangerous road conditions did not implicate “political, social, or economic” policy choices of the sort that congress intended to protect from sutis under the FTCA.

Class

Causation in Fact

Basic Doctrine

Judical decisions have accepted the need for some connection between the (P)’s harm and the (D)’s negligent conduct before imposing tort liability on the (D).

Courts have traditionally denied liability when it is clear that the connection was missing.

What do we means when we say that “X cause Y”?o The core of causation is that if X had not occurred, Y would not have

occurred. o This requirement is frequently referred to as “but-for.” It means that X

must have been necessary for the outcome Y. o Before causation can be assessed X and Y must be identified. o For our purposes at this point, X is the toortious conduct of the (D)

and Y is framed, ansering the question requires the counterfactual inquiry, what would have happened (in terms of Y( if X never recovered?

Stubbs v. City of Rochester

Facts: The City of Rochester (D) supplied clean water for drinking, and water known to be contaminated with sewage for fighting fires. The drinking water became contaminated with the unclean water through Rochester’s negligence but it was not discovered until October. (P) contracted typhoid fever in September and attributed to the city’s negligence. The evidence of the case shows that around this time the city saw an increase in cases of typhoid fever. Stubbs (P) contracted typhoid fever and sued D for negligence.

(P) called in several witnesses:

(1) Dr. Goler, a physican and health office of the city, he had an opinion as to the cause of the infection of (P) and such opinion was that it was due to contaminated water.

(2) Doctor Dodge, of the faculty of the universityof Rochester, a professor and bacteriogist, and several other Doctors had the opinion that (P) contracted typhoid fever from drinking polluted water.

(3) (p) had an additional 57 witnesses to testify that they drank the water and got typhoid fever.

The trial court entered a nonsuit for D, which was affirmed by the Appellate Division, and P appealed.

Issue: Did the (P) produce evidence from which inference might reasonably be drawn that the cause of his illness was due to the use of contaminated water furnished by (D).

Rule: When there are several possible causes of injury for one or more of which a (D) is not responsible, (P) cannot recover without proviing that the injury was sustained wholly or in part by a cause for which (D) was responsible.

Rule was modified by court…If two or more possible causes exist, for only one of which a (D) may be liable, and a party injured establishes facts from which it can be said with reasonable certainity that the direct cause of the injury was the one for which the (D) was liable the party has complied with the sprit of the rule.

Discussion:

Defendant: The (D) argued that (a) the evidence adduced by (P) fails to disclose that the contracted thyphoid fever by drinking contaminated water; (b) that it was incumbent upon the (P) to establish that his illness was to due to any other cause to which typhoid fever may be attributed for which (D) is not liable.

Notes and questions:

Note 6:

Two-disease ruleo Whereby the (P) with for example asbestosis recovers (if at all) only

for the present disease, and recovers for consquent ling cancer or mesothlioma, only when the ore serious disease occurs.

o (P) can only obtain recover for emotional distress related to the prospect of developing the more serious condition at the time of the suit for the second disease.

Several arguments cut in favor of permitting those who can show a better-than0even chance of future disease to sue now. These include the diffculity of

proof if one must wait 20 or more years to sue. This goes to any fault requirement and also to caustion since many more events have intervened.

Note 8:

Mitchell v. Pearson Enterpriseso A guest in (D)’s hotel was murdered in his room by an unknown

person. o The court affirmed SMH for the (D) on the ground that proof of

causation was lacking. (p. 347)

Note 9:

Burgos v. Adueduct realty corp. o Tenant sued her landlord for an assault committed in the building and

sought to prove that the assult was by an intruder rather than another tenant.

o The court thought it unreasonable to require the tenant to indentify the perpetrator. It was enough if the jury could, through logical inferences to be drawn from the evidence.

Zuchowicz v. U.S

Facts: (D) admitted that its doctors and/or pharmacists at the naval hospital had been negligent in directing (P) to ingest 1600 miligrams of Danocrine-double the maximum authorized dosage. (P) took the double dosage for about a month. About 4 months after stopping the (P) was diagnosed with PPH a rare and fatal disease. (P) became pregnant and was unable to get the required lung transplant to correct the PPH and after giving birth she died.

Issue: Did the action for which the (D) is responsible cause, in a legal sense, the harm which the (P) suffered?

Discussion: Dr. Mowski, one of (P)’s witnesses tesifed that Danocrine is safe and effective when properly used. He also testified that that there had been no formal

studies of excess doses and that “very, very, few women have received doses this high in any setting.”

Expert witnesses:

(1) Dr. Matthay – a professor at yale. He is nationally recognized expert in the field of pulmonary medince, with extensive experience in the area of drug-induced pulmonary diseases.

a. He was confident to a reasonable medical certainity that the Danocrine cause (P) PPH.

b. Further testified that the progression and timing of (P)’s diease in relation to her overdose supported a finding of drug induced PPH

c. He also ruled out secondary PPH(2) Dr. Tackett is a tenured, full professor of pharmacology and former chair

from the University of Georgia. He testiefed that to a reasonable degree of scienfitif certainity, he believed that the overdose of Danocrine, more likely than not, caused PPH in the (P).

Was the admission of (P) expert’s testimony manifestly erroneous?

Rule:

The decision to admit expert testimony is left to the broad discretion of the trial judge and will be overturned only when manifestly erroneous.

The federal rules of eveidence permit opinion testimony by experts when the witness is “qualified as an expert by knowledge, skill, experience, training, or education,” and “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.

Daubero Leaves in place the “gate keeper” role of trial judgeso Requires judges make a “preliminary assessment of whether the

reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.

o Factors to be used in inquiry 1) whether the theory can (and has been) tested according to

the scientific method 2) whether the theory or technique has been subjected to peer

review and publication 3) in the case of a particular scientific technique, the known or

potential rate error 4) whether the theory is generally accepted

list is not exclusive or dispostive

Were the district court’s factual finds with respect to causation clearly erroneous?

Court found that the Danocrine overdose more likely than not caused (p)’s illness. Rejected (D)’s contention of this issue.

Court stated that (P) “establish a causal relationship between the phyiscan’s negligent actions or failure to act and the resulting injury by showing that the action or omission constituted a substantial factor in producing the injury.

To meet the requirement the (P) must show that (D)’s behavior was a substantial factor in bringing about the (p)’s injury.

The court listed several factors pg. 351 bottom Focused on the “but for cause”

Was the overdose a but for cause of mrs. Zuchoqicz illness and death?

Rule:o In order for the causation requirement to be met, a trier of fact

must be able to detmine, by a preponderance of eveidene, the (D)’s neglgeince was responsible for the injury.

o For libability to exist therefore, it is necessary that the fact finder be able to conclude, more probably than not, that the overdose was the cause of (P)’s illness.

Holding: Court upheld the validity of the experts. The court held that the finding that PPH “ was more likely than not, caused by Danocrine” was not clearly erroneous. Held that (D)’s attacks were mertiless.

Notes and questions:

Note 1

Kumho tire co.o We conclude that Daubert’s general holding—setting forth the trial

judge’s general “gatekeeping” obligation—applies not only to testimony based on “scientific” knowledge, but also to testimony based on “technical” and “other specialzed” knowledge.

o The law grants a district court the same broad latitutede.

See note 7 about statutes (VERY IMPORTANT)

See note 8 (about substantial factor test)

Lost opportunity cases

(P) in these “lost opportunity” cases is attempting to show that the (D)’s negligence failed to prevent an unfavorable outcome. The (p), however, cannot meet the traditional burden of demonstrating by a preponderance of the evidence that, had the (D) acted non-negligently, the harm would not have occurred.

Alberts v. Schutlz

Facts: Mr. Alberts went to Dr. Schultz on July 14, 1992, with a condition known as ‘rest pain’ in which his right leg hurt. Dr. Schultz did not order an arteriogram. Nor did he conduct other tests. He referred her to a vascular surgeon, Dr. Reddy, which did not occur until July 27th. Upon seeing the leg, Dr. Reddy immediately sent Mr. Alberts to the hospital and ordered an arteriogram, followed by several procedures that were performed unsuccessfully. On july 28th, bypass surgery was attempted but the leg showed no improvement and the amputation was performed on August 1. His leg had to be amputated.Plaintiff had expert testimony – Dr. Max Carlton: he concluded that the probability that Mr. Alberts’ leg could have been saved decreased significantly because of the inaction of both physicians.

PH: Trial judge granted partial summary judgment for defendants for failure to establish a causal connection between the alleged negligence and the amputation.

Plaintiff claims: (1) Dr. Schultz did not advise Dee of the true nature of his condition, (2) neglected to perform the appropriate examinations on his leg, and (3) failed to make a timely referral to a specialist. (4) Dr. Reddy had not properly warned Dee about his condition and (5) had failed to perform the appropriate diagnostic tests and treatments. ““The essence of the patient’s claim is that, prior to the negligence, there was a chance that he or she would have been better off with adequate care. Because of the negligence, this chance has been lost” (‘loss of chance’ rule).

Issue: Whether the plaintiff established adequate causation for a loss of chance claim

Rule:

Lost-chance action The court accepts the loss of chance concept in principle. Didn’t apply in

this case, however. “A claim for loss of change is predicated upon the negligent denial by a

healthcare provider of the most effective therapy for a patient’s presenting medical problem. The negligence may be found in such misconduct as an incorrect diagnosis, the application of inappropriate treatments, or the failure to timely provide the proper treatment. The essence of the patient’s claim is that, prior to the negligence, there was a chance that he or she would have been better off with adequate care. Because of the negligence, this chance has been lost.”o “Under the loss-of-chance theory, the health provider’s malpractice

has obliterated or reduced those odds of recovery that existed before the act of malpractice.”

o “Loss of chance differs from other medical malpractice actions only in the nature of the harm for which relief is sought.”

o “The injury is the lost opportunity of a better result, not the harm caused by the presenting problem.”

o “The chance of a better result may be conceptualized as a window of time that existed before the malpractice took place.”

o “There must be proof of a causal link between the negligence and the lost chance.”

o “The percentage of chance lost is multiplied by the total value of the person’s life or limb” in calculating damages.

Courts must be cognizant of two injuries the underlying injury cased by the presenting problem and the exacerbation of the presenting problem which evinces the chance that has been lost.

Courts will recognize when a condition is getting worst under the lost chance theory.

Discussion:

Dr. Hutton (P) was supported by the testimony of Dr. Max Carlton Hutton a vascular

surgeon. He testified that Dr. Schutlz should have performed the arteriogram when he first saw the (p) and should not have allowed weeks to go by.

Dr. HUtton also stated that Dr. Reddy should have performed the arteriogram right away.

Dr. Hutton testimony was based on the presumption Dee’s leg could have been saved if specific arteries in his leg were suitable candidates for bypass surgery.

o However, in his testimony he could not establish this presumption with certaintiy because the medical records were incomplete regarding the aspecific arteries in question.

o Nevertheless, Dr. Hutton testified that he could not state to a reasonable degree of medical probability that immediate use of the motor and sensory exams, the arteriogram, and the bypass would have increased the changes of saving Dee’s leg.

Holding:“The Alberts have not established the causation element in their negligence claim. They have not demonstrated, to a reasonable degree of medical probability, that the alleged negligence of Dr. Schultz and Dr. Reddy proximately caused Dee to lose the chance of saving his leg.”

Reasoning:Plaintiff failed to establish causation because:(1) could not establish presumption that leg would have been saved with certainty because medical records were incomplete regarding arteries in question(2) Dr. Hutton could not pinpoint a time when the ischemia became irreversible, nor could he pinpoint a time when the intervention would have changed the outcome(3) Could not state to a reasonable degree of medical probability that immediate use of the motor and sensory exams, the arteriogram, and the bypass would have increased the chances of saving Dee’s leg

Class

Joint & Several Liability

Introduction

More than one relevant cause may be involved in the harm that befell plaintiff.

Exampleo Would be a case in which two cars collide and one of the cars goes up

on the sidewalk and hits a pedistrian. The proof shows that if either driver had been careful the accident would have been averted. In other word, the negligence of each driver was essential to (p)’s harm.

In this type of case the two drivers were traditionally held subject to “joint and several liability.”

This meant that the (p) might sue them together or seperatly and recover the full extent of the damges against either one.

Because the (p) could recover full damages in a suit against one of the drivers, joint and several liability also

placed the burden of pursing other peotential tortfeasors on the (D).

Joint and several liability has come under fire in recent years because of perceived unfairness in certain situations in which one of the two (D)s is unable to bear his or her share of the judgment.

o If both were solvent, there was little sense of unfairness. But if either driver turned out to be insolvent, the entire loss would rest on the other one Thus, the (D) who was 25% at fault might bear 100% of the damages.

The interplay of intent and negligenceo Even the states that have modified or abolished joint and several

liability still must decide one crucial question of great practical importance. What should they do when the defendant’s negligence combines with an intentional tort or crime to cause plaintiff’s harm?

Class

Multiple defendants

Summers v. Tice

Facts: Summers (P), Tice, and Somonson (Ds) were hunting quail. Tice flushed a quail which flew between Summers and the defendants. Defendants fired their shotguns and Summers was struck in the eye and upper lip.There was no evidence to show which of the defendants fired the shot that struck Summers in the eye. Summers brought a personal injury lawsuit against both defendants and the trial court found that both men were liable. Tice and Somonson appealed on the grounds that they were not joint tortfeasors and they had not acted in concert. They also asserted that there was insufficient evidence to establish which of them had caused Summers’s injuries.

Issue: Whether the judgment against both (D)s may stand?

Holding/rule:

• If two defendants are negligent in concert and damage is caused such that only one or the other would be liable, both defendants will be liable for the damage if the plaintiff is unable to show which defendant in fact caused the injury.

To hold otherwise would be to exonerate both from liability, although each was negligent, and the injury resulted from such negligence.

When a party is harmed as a result of the tortious conduct of another, a third party is liable if he (1) knows that the conduct of the person causing the harm constitutes a breach of duty and gives substantial assistance or encouragement, or (2) gives substantial assistance to the person causing the harm in accomplishing a tortious result, where the conduct of the third party, separately considered, constitutes a breach of duty to the injured party.

Public Policy

Each joint tortfeasor is responsible for the whole damage because of the practical unfairness of denying an injured person redress simply because he cannot prove how much damage each party did, when it is certain that between them they did all.

Hymowitz v. Elie Lilly & Co.

Facts: The Food and Drug Administration approved the manufacture and marketing of the drug diethylstilbestrol (DES) in 1941 for use as a generic drug in the prevention of miscarriages. Approximately 300 companies manufactured the drug, and as it was generic no single company held patent. It was found later that DES created a high risk of vaginal cancer in some female children of women who had used the drug.

Although strong evidence links pretal DES exposure to later development of serious medical problems, (P)s seeking relief in court for their injuries faced two formidable and fundamental barriers to recovery in state, (1) not only is identification of the manufacturer of the DES ingested in a particular case generally impossible, but (2) due to the latent nature of DES injuries, many claims were barred by the SOL before the injury was discovered.

Because so many companies manufactured and marketed the drug, over several years and for varying lengths of time, it was often impossible for potential plaintiffs to identify exactly which company had manufactured the particular batch that the plaintiff had ingested.The cases at bar were brought by multiple plaintiffs, the daughters of women who had used DES. At trial, the manufacturers moved for summary judgment on the grounds that it could not be determined with specificity they any one of them was responsible for the injuries sustained by a particular plaintiff. The motions were denied and the Appellate Division affirmed. New York’s highest court reviewed.

Issue: What is the method to be employed to apportion liability in a products liability case involving a generic drug when it is impossible to determine which manufacturer produced the drug that caused the harm suffered by plaintiffs?

Rule: Where identification of the manufacturer of a drug that injures a plaintiff is impossible, New York courts will apply a market share theory, using a national market, to determine liability and apportionment of damages.

A (d) cannot be held liable if it did not participate in the marketing of DES for pregnancy use; if a DES producer satisfies its burden of proof of showing that it was not a member of the market of DES sold for pregnancy use, disallowing exculpation would be unfair and unjust.

Nevertheless, because liability here is based on the overall risk produced, and not causation in a single case, there should be no exculpation of a (D) who, although a member of the market producing DES for pregnancy use, appears not to have caused a particular (p)’s injury.

Discussion: The court determined that alternative liability provided no relief to the (p) under the DES case. However, the court still managed to recognize that “the present circumstances call for recognition of a realistic avenue of relief for (P0 injured by DES.

Here, the court decided to adopt a version of the market share concept.

The DES case, however, presented a unique problem: the identification, for purposes of determining liability, of the exact manufacturer responsible for the plaintiffs’ harm.Generally, as the court in Hymowitz observed, “In a products liability action, identification of the exact defendant whose product injured the plaintiff is generally required.” However, as here, such identification is sometimes difficult. The court thus concluded, “Where two defendants breach a duty to the plaintiff, but there is uncertainty regarding which one caused the injury, the burden is upon each such actor to prove that he has not caused the harm.” As a result, there may be broad apportionment of blame. As the court states, “Successive tort-feasors may be held jointly and severally liable for an indivisible injury to a plaintiff.”The court must then evaluate different approaches to in assigning responsibility, beginning first with alternative liability: “Use of the alternative liability doctrine generally requires that the defendants have better access to information than does the plaintiff, and that all possible tort-feasors be before the court. It is also recognized that alternative liability rests on the notion that where there is a small number of possible wrongdoers, all of whom breached a duty to the plaintiff, the likelihood that one of them injured the plaintiff is relatively high, so that forcing them to exonerate themselves, or be held liable, is not unfair.” The high number of possible tort-feasors in Hymowitz makes this approach impractical, however. Similarly, the theory of concerted action falls short: “The theory of concerted action, in its pure form provides for joint and several liability on the part of all defendants having an understanding, express or tacit, to participate in a common plan or design to commit a tortious act.” However, the fact that the manufacturers were simultaneously engaged in the manufacture of the drug is not indicative of communal interest or action, as the court states, “Parallel activity, without more, is insufficient to establish

the agreement element necessary to maintain a concerted action claim.”Recognizing the circumstances of the case at bar, the court thus crafts a new approach for apportionment of responsibility: “Given this unusual scenario, it is more appropriate that the loss be borne by those that produced the drug for use during pregnancy, rather than by those who were injured by the use, even where the precise manufacturer of the drug cannot be identified in a particular action.” Thus, the court adopted a market share theory, using a national market, for determining liability and apportioning damages in the diethylstilbestrol (DES) cases.

Held. The court affirmed the lower courts’ denial of summary judgment and adopted a national market-share theory for apportioning liability.

Class

Proximate cause

Unexpected harm

Proximate cause

In the cases presented in this section, either the (P) has made out the elements previously discussed—duty, breach of duty, and cause in fact—or else they are sufficiently in dispute that the (D) cannot establish the absence of any of them as a matter of law.

Instead, the (D) will argue that even a negligent (D) who actually caused the harm in question should not be liable for the (P)’s harm. The legal formulation of the claim is that the (D)’s admitted or assumed negligence was not the proximate cause (or “legal cause”) of the (P)’s harm.

o The cases in which this claim is given serious consideration tend to have one feature in common—something quite unexpected has contributed either to the occurrence of the harm or to is severity

Unexpected harm

Benn v. Thomas

Facts: In this case, defendant rear ended the decedent’s van and caused him injuries and he died 6 days later of a heart attack. He died of a heart attack six days after suffering a bruised chest and fractured ankle in a motor vehicle accident caused by (D)’s negligence.

The estate’s medical expert, Dr. James E. Davia, testified that Loaras had a history of coronary disease and insulin-dependent diabetes. …he viewed “the accident that (P) was in and the attendant problems that it caused in the body as the straw that broke the camel’s back.

∏ requested the eggshell ∏ charge, and the trial court denied the request and gave a general charge

The jury determined that the ∆ was not a proximate cause in the ∏’s death and gave only damages for the injuries sustained

Issue: Whether the trial court erred in refusing to instruct the jury on the “eggshell plaintiff” rule in view of the fact the (P)’s decedent, who had a history of coronary disease, died of a heart attack six days after suffering a bruised chest and fractured ankle in a motor vehicle accident caused by (D)’s negligence.

Rule: A tortfeasor whose act, superimposed upon a prior latent condition, results in an injury may be liable in damages for the full disability. This rule deems the injury, and not the dormant condition, the proximate cause of the (P)’s harm.

*eggshell plaintiff rule: requires the defendant to take his plaintiff as he finds him, even if that means that the defendant must compensate the plaintiff for harm an ordinary person would not have suffered.

Reasoning: We agree that the jury might have found the (D) liable for (p)’s death as well as his injuries under the instructions as given. But the proximate cause instruction failed to adequately convey the existing law that the jury should have applied to this case.

The eggshell (p) rule rejects the limit of foreseeability that courts ordinarily require in the determination of proximate cause. Once the (P) establishes the (D) caused some injury to the (P), the rule imposes liability for the fill extent of those injuryes, not merely those that were foreseeable to the (D).

Restatement (Second) of Torts § 461 – the negeligence condition of the other…makes the injury greater than that which the actor as a reasonable man should have foreseen as a probable result of his conduct.

the court says that adequate medical testimony was introduced that says that the accident was responsible for the heart attack and death—even though the evidence was conflicting, it was sufficient for the jury to find whether the heart attack and death were a direct result of the injury that was fairly chargeable to the defendant’s negligence

Notes and Questions

Dillon v. Twin State Gaso A boy lost his balance while sitting on the girder 19 feet above a

bridge. In an effort to avoid falling, he grabbed hold of a negligently exposed wire and was electrocuted.

o The court concluded that if it were found that the boy would have been killed by the fall without regard to the wire, any award against the (D) utility for the exposed wireshould be reduced drastically.

Emotional distresso In discussing claims based on emotional distress, courts often say that

to be actionable the harm must be such that it would cause distress in the ordinarily sensitive person or the reasonably constituted person.

The third restatement provides that when (P)s suffer great damages than those that were foreseeable because of preexisting “physical or mental conditions” the (P) may recover for all such harm.

Secondary Harmo If a pedestrian who has been run down by a car is taken to a hospital

and because of the hospital’s negligence incurs greater medical expenses or suffers more pain and suffering than he would have if the hospital had not been negligent, he can collect his incremental as well as his original damages from the person who ran him down, since they would been avoided if that person had used due care.

In re arbitration between Polemis and Furness, Withy & Co., LTD .

Facts: The owners of a ship sought to recover damages from the (D)s who chartered the ship. The contract of the charter was read to hold the (D) charters responsible damages caused by a fire due to their negligence.

Respondent owners of a vessel chartered their vessel to appellants to have petrol cargo transported to Morocco. While the appellants’ workmen were discharging the cargo, they negligently knocked down a plank onto the hold in which the petrol was stowed. This created a fire which completely destroyed the vessel. The owners of the vessel sued the charterers for damages, alleging that the loss of the vessel was a result of the charterers’ negligence in causing the plank to fall. The charterers claimed that the fire that destroyed the vessel was too remote an effect of the falling plank because they could foresee the falling plank would create a spark.The case was heard by arbitrators who found “that the fire arose from a spark igniting petrol vapour in the hold; that the spark was caused by the failing board coming into contact with some substance in the hold….and that the causing of the spark could not reasonably have been anticapted from the falling of the board though some damages to the ship might reasonably have been anticipated.

Issue: Should the workmen on the vessel be liable for the fire that destroyed the vessel even though this exact type of damage was an unforeseeable result of their breach of duty?

Holding/Rule: Yes. If a person can foresee some injury from his breach of duty, he is

liable for all injury that is a direct result of the breach.

Rationale: The court said that foreseeability of injury is irrelevant. If the consequences of the breach follow in a direct and unbroken chain of events, the defendant should be liable even if he could not foresee the exact nature of those consequences

Additional reasoning: But if the fact would or might probably cause damage, the fact that the damage it in fact causes is not the exact kind of damage would expect is immaterial, so long as the damage is in fact directly traceable to the negligent act, and not due to the operation of independent causes having no connection with the negligent act, except that could not avoid its results.

Overseas Tankship (U.K.) Ltd. V. Morts Dock & Engingeering Co. Ltd. (The Wagon Mound)

Facts: (P)s respondents owned a wharf in Sydney Harbour, Australia and were refitting the ship Corrimal. At a different wharf, about 600 feet away, the ship Wagon Mound, chartered by (D)s, was taking on bunkering oil. A large quantity of bunkering oil spilled into they bay and some of it concentrated near (P)s property. (D)s set sail, making no effort to disperse the oil. (P) after discusssions internally and with (D) opted to continue working.

Then, oil under or near the wharf was ignited and a fire spread, causing extensive damge to the wharf and (P)’s equipment.

Judge's Rule: A person is only liable for the probable consequences of his negligent acts. The probable consequences are judged by the standard of foreseeability by the reasonable man.

Classical Holding: The test of liability for negligence is foreseeability of the injury caused by that negligence.

Reasoning: The court directly overruled Polemis, stating that is was bad law which resulted in unfair results. They reasoned that it was better policy to hold a person accountable for the probable consequences of his action so as to avoid an unjust result when slight negligence, which normally resulted in only minor damages, freakishly resulted in major damage. It also avoids the controversies of establishing chain of causation.

Online notes: The Wagon Mound rule of foreseeability of damages presents problems when the damages are neither routine nor freakish, but in the middle. Then the test becomes significance; if the unusualness of the details is significant in the outcome of the damage, then the damage was unforeseeable; if not significant,

then the damage was foreseeable. 2. The foreseeability rule also brings up subtleties of damage.

The thin skull rule, or "you take your victim as you find him" was apparently left unshaken by Wagon Mound. 4. Polemis and Wagon Mound can be reconciled (directness with foreseeability) if one examines the causal intervention of the in πWagon Mound. In Polemis, there was no intervention between the dropping of the board and the explosion. In Wagon Mound, the had to light the fire. There could πhave been a defense of assumption of risk or contributory negligence when the πrecommenced welding operations. Furthermore, the Hand Formula could come into play if either party knew that there was a very slight possibility of fire, but failed to prevent it because it was too costly

Class

Superseding causes

Doe v. Manheimer

Facts: (P), who was working as a meter reader, was rape by an unidentified assilant on property owned by the (D). As she approached a male on the sidewalk, pulled a gun from a stchel that contained other items suggesting that he had planned a rape.

The area was known for having a high crime rate and the bldg. at which she was assaulted had occurrences of this before.She was accosted in front of a building which hadn’t kept up its sumac bushes. The assailant pulled a gun, grabbed her and drug her between the bldg.’s and behind the bushes where he was shielded from the road.

14 months earlier, the (D)’s 90-year-old mother had been bound, gagged and robbed in the package store at the front of the building on the (D)’s property.

(P) brought in an environmental psychologist as an expert witness that opined that the physical confirguration of the specifc site increased the risk of violent crimes between strangers by creating a “protiective” zone that reduced or eliminated visibility and, henece, served as an inducement for crime.

Issue: Whether a landowner may be liable in tort for damages arising from the rape of a pedestrian committed on the landowner’s property behind brush and trees that shielded the area from view from the nearby public sidewalk and street.

Rule:

The issue of proximate cause is ordinarily a question of fact for the trier. Conclusions of proximate cause are to be drawn by the jury and not by the court.

o It becomes a conclusion of law only when the mind of a fair and reasonable man could reach only one conclusion; if there is room fore a reasonable disagreement the question is one to be determined by the trier of fact

Proximate causeo An actual cause that is a substantial factor in the resulting harm

Substantial factor: Whether the harm which occurred was of the same

general nature as the foreseeable risk created by the (D)’s negligence.

Scope-of-risk A negligent (D), whose conduct creates or increases the

risk of a particular ham and is a substantial factor in causing that ham is not relieved from by liability by the intervention of another person:

o Except 1) where the harm is intentionally

caused by the 3rd person 2) is not within the scope of the risk

created by the (D)’s conduct o The reason for the general rule precluding

liability where the intervening act is intentional or criminal is that in such a case the 3rd person has deliberately assumed control of the situation and all responsibility for the consequences of his act is shifted to him.

Reasoning:

The reason for this is that once a third party assumes control of the situation, all liability is shifted to him.

The plaintiff argues that the bush actually promoted or spawned more violence.

o The court argues that this is too broad. The harm she suffered cannot be seen as within the scope of risk for defendant.

o It is a stretch to view the rapist as a dependent intervening force, a predictable response to the bush’ stimulus.

A prudent person would not infer that overgrown vegetation would prompt a violent act.

o The court also explains that there was no record of anything like this happening at this location.

The only thing that has occurred there is the vagrancy of bums.

There’s no evidence aside from her circumstance that this location is a catalyst for crime

o If she had tripped on the bush and broken her ankle the owner would have been liable.

Court says: “Our cases make it clear that, to be within he “scope of risk” the harm actually suffered must be of the same general type as that which makes the (D)’s conduct negligence in the first instance.

Notes and questions:

• 1) It is different here. In Zuchowicz the court held that a substantial factor was the necessary test of a but-for factual causation analysis. Here the substantial factor test is used for proximate causation.

• 2) In that it gives opportunity and an outlet for the performance of an act.• 3) It seems the same.• 4) Yes, the railroad put her involuntarily into a dangerous situation. There was a

special relationship there that required them through their negligence to provide a safe way back.

• 5) Yes, the result would have been the same, as the question was whether the lights were adequate for exiting in case of a fire. The cause of the fire is irrelevant. The guests are beholden to the hotel

• 6) This case explains that the EXACT circumstance does not have to be foreseen, just the type or class of injury that is possible.

Class 24

Defenses

Contributory and comparative negligence

Plaintiff’s Fault

The common law has reconginzed several defeneses against the (P)’s claim. By far the most common is the (D)’s contention that even if (D) was negligent

toward the (p), the (P) was careless about his or her own safety and was “contributorily” negligent.

Contributory negligence

Limitations on contributory negligenceo Even if contributory negligence was found in a particular case, several

rules emerged over the years that limited the applicability of the defense.

Recklessness Virtually all courts deceided that contributory

negligence was a defense only in cases of negligence. If the misconduct of the (D) was more serious—recklessness or willful misconduct—the appropriate defense would have been “contributory recklessness” or “contributory willful misconduct.” Contributoy regligence was totally irreleveant in such cases and the (P) received all of his or her damages.

Last clear chance Contributory negligence was also disregarded under

circumstances that came to be called “last clear chance.” In these cases the (P) behaved carelessly and got into a dangerous situation that led to injury. In response to the defense of contributory negligence, (P) claimed that even though (p) was careless for P’s own safey, the (D) had, but failed to utlizie, the “last clear chance” to avoid the injury to (P).

o Two types of dangerous situations triggered the doctrine of last clear chance.

1) The (p) had gotten into a position of “helpless peril” and was no longer able to take proctective steps.

2) The other type of last clear chance case involved a (P) who oblivious to the danger but who could, if behaving reasonably, become aware of it and avoid harm up to the last moment.

o When last clear chance was held applicable, the fact that the (P) was contributorily negligent became totally irrelevant and the (P) recovered all appropriate damages with no offset. The doctrine remains important in states that still retain contributory negligence.

Refusal to impute contributory negligence The most significant example of imputed primary

negligence is respondeat superior, the doctrine that has given rise to the imposition of liability on employers.

o Example If a child is hurt through the combined

negligence of its mother and a stranger, we generally no longer impute the mother’s neglgigence to bar the child’s action.

The jury’s role

Comparative negligence

Three principal versions had developed. o 1) “Pure” comparative negligence, the (P) who is 90% to blame for an

accident can recover 10% of the damages from the (D) who was found to be 10% at fault.

(A defendant who was also hurt in that same accident could recover 90% of her damages the (P)).

o 2) The second and third versions are lumped together as a “modified” system.

Under one variant, a (P) who is at fault can recover as under the pure system but only so long as that negligence is “not as great as” the (D)’s.

Under the other variant, (P) can recover as under the pure system but only so long as that negligence is “no great than” the (D)’s.

3 types of regimes:o “Pure” comparative negligence: (like UCFA) P who is 90% at fault can

recover 10% of the damages from D who was found to be 10% at fault. D hurt in same accident could recover 90% of damages from P.

o “Modified” systems P who is at fault can recover as under the pure system but only

if P’s negligence is “not as great as” D’s. (So, P = 50% & D = 50%, P can’t recover anything.)

P who is at fault can recover as under the pure system but only if P’s negligence is “no greater than” the D’s (can be equal and still recover.) (Like Iowa)

Generally, most jurisdictions aggregate D’s %s of fault & as long as P% < all Ds, then P can recover; (a few don’t)

The Uniform Comparative Fault Act: pure comparative negligenceo Section 1 (a): reduce damages in proportion to P’s fault; pure

comparative fault; contributory negligence not a defense

o Section 1 (b): Comparative fault act: can compare different degrees of lack of care; Compare P’s failure to mitigate damages; Still need actual and proximate cause

o Section 2 (a): Jury or judge as fact finder has to decides total amount of damages if each claimant was entitled to recover if contributory fault disregarded AND % of total part of each claim allocated to P, D, 3rd party D, those released from liability (like if a party settled)

o Section 2 (b): Consider both fault and causation; (actually, most jurisdictions compare fault) hard to come up with numbers

Comparing both breach and how much of the injury you caused

This is very arbitrary Look at pg; 450 note 2

o Section 2 (c): Applies joint and several liability – very different from Iowa Code which doesn’t apply to Ds found less than 50% of the total fault assigned to all parties

o Section 2 (d) If someone’s insolvent, reallocate the liability to all parties – (UCFA does something other states don’t – other states wouldn’t reallocate insolvent Ds share among other parties but only reallocate among remaining Ds); if insolvent D becomes solvent then can collect and other Ds can collect from them

o Section 3: Can’t set off unless parties agree; b/c insurance co.’s pay damages and derive the benefit. The court helps enforce the judgment, if necessary to have parties collect

o Section 4 (a): Right of contribution whether or not judgment recovered against all or any; can file a lawsuit for contribution by other Ds; can recover based on whatever % of fault allocated by jury

o Section 4 (b); D who paid more than fair share through settlement than he would have had to pay based on jury’s percentage of fault (not taking in to account if other parties are insolvent) contribution available only if liability against whom contribution sought has been extinguished AND to extent amount was reasonable (assess the person’s settlement for reasonableness)

o Section 5 (a): can recover judgment for contribution if paid more than share; must commence suit w/in 1 year

o Section 6: settle, released from liability, but doesn’t mean other Ds are too (unless settlement agreement says that); However, claim against releasing person against other Ds reduced by amount of released person’s equitable share of obligation; can get a windfall under UCFA (opposite is pro tanto approach -- $ for $)

The UCFA reallocates insolvent D’s % across ALL parties:o $ insolvent D owes x (party’s % of fault)

(100% - insolvent D’s%) Iowa Statute

o Section 668.3: modified comparative fault - P can only recover if own % of fault doesn’t exceed combined % of fault of Ds; state aggregates

o Recover economic damages only Notes and questions

o In wrongful death suit, majority would impute negligence of the decedent, while the minority wouldn’t.

o In loss of consortium claim, impute P’s decedent’s negligence to spouse – considered 1 economic unit and don’t want P to get a windfall

o In order to invoke res ipsa, vast majority except a few require the P must not be contributory negligent.

o Dram shop statute: prevents bar from serving minors or drunks. If drunk served and gets into accident & sues establishment, P contributorily negligent

Some jurisdictions say even though P faces criminal charges, shouldn’t bar civil claim against D who was engaged in tortuous act; other jurisdictions bar claim

Fritts v. Mckinne

Facts: David Fritts (plaintiff’s deceased husband) and friend, David Manus, had been drinking prior to an accident in which their pickup truck hit a tree at approximately seventy miles per hour and overturned. Five days later in surgery (to repair facial bones), the defendant (Dr. McKinne) was performing a tracheostomy to allow Fritts to breathe during surgery; Fritts began gushing blood, lost a major amount of blood, lost consciousness and died three days later. Defendant claims that Fritts unusual anatomy as a result of the accident caused his artery to be located in his neck when it should have been in his chest.

Issue:Whether the trial court erred in charging the jury on the issue of plaintiff’s comparative negligence leading to the vehicle accident [whether plaintiff’s pre-medical treatment conduct can be used to show comparative negligence.]

Rule:“Under the guise of a claim of contributory negligence, a physician simply may not avoid liability for negligent treatment by asserting that the patient’s injuries were originally caused by the patient’s own negligence.”- This may be the ghost of the “last clear chance doctrine”

“Thus, aside from limited situations, negligence of a party which necessitates medical treatment is simply irrelevant to the issue of possible subsequent medical negligence.”

Holding:“We conclude that the interjection of the issue of Fritts’s possible negligence in the automobile accident, a matter unrelated to the medical procedures, was a substantial error that removed the jury’s consideration from the

relevant issues and led to an erroneous excursion into irrelevant and highly prejudicial matters.”

Reasoning:The automobile accident is unrelated to the medical procedures.

The court maintained that the defendant’s defense [that the plaintiff’s anatomy was anomalous and that the rupture of the artery was inevitable] was sufficient for negligence.

Avoidable Consequences Even if the accident was entirely the (D)’s fault, the (P)’s recovery might be

reduced to the extent he failed to exercise due care to mitigate the harm done.

Avoidable consequences different from contributory negligence – contributory negligence requires fault and causation (needs to be but-for & proximate cause)

o Comes after P has been injured, many times, through no fault of his own

o Comes into play after D’s liability established – P has duty to mitigate damages, ex: P injured by D, P doesn’t seek medical care, D shouldn’t have to pay additional costs of injury

When the jury allocates %s of fault, they only look at the injury proximately caused by the D's negligent actions; failure to mitigate is a superseding cause, and injuries after the failure to mitigate are not recoverable

o Anticipatory avoidable consequences: duty to mitigate, damages before they occur; ex: if you wear seatbelt, accident will still happen by injury would be significantly less than if you weren’t

Contributory negligence requires you actually contribute to initial accident & needs fault and causation; here, failure didn’t cause accident but increased likelihood of high damages

Can’t take P as you find them: eggshell P rule says you take P as you find them (if P can’t help it, born that way, etc.) but doesn’t include if reason why P is in weakened condition is because he failed to take precautions that a reasonable person would

Both treated as a form of fault under the UCFA Illustration: Tanberg v. Ackerman Investment Co.: failed

to mitigate back pain by losing weight, 70% at fault; modified jurisdiction – P > 50% at fault & recovers nothing; the UCFA would have given P 30% of damages

Class 11/3/10

Assumption of risk

Parties sometimes agree in advance that the (D) need not exercise due care for the safety of the (P).

This is generally done in a more-or-less formal written contract, usually called an exculpatory or a hold-harmless agreement.

If the (P) is later hurt by what is claimed to be (D)’s negligence, the contract is usually at the center of ensuing litigation.

Such litigation generally raises two types of questions: o 1) will the courts enforce even the most clearly drafted contract given

the type activity involved ando 2) if so, is the contract in question sufficiently clear

Dalury v. S-K-I, LTD

Facts: (P) was badly hurt when he collied with a metal pole that formed part of the control maze for a ski lift line. Before the season had started (P) had purchased a season pass and signed a form that provided in relevant part: that the (D) was released from liability and conditions of use….

Dalury (P) was skiing at S-K-I’s (D) ski resort when he collided with a metal pole. Daluri had purchased a season pass and signed a form stating that he understood and freely accepted and voluntarily assumed the risks of skiing and released D from liability. Daluri also signed a photo identification that contained the same language.

Issue: Does a skier’s assumption of the inherent risk of skiing abrogate the ski area’s duty to warn of or correct foreseeable dangers?

Rule: Even well-drafted exculpatory agreements, however, may void because they violate public policy.

According to the restatement: an exculpatory agreement should be upheld if it is:

o 1) freely and fairly madeo 2) between parties who are in equal bargaining positiono 3) there is no social interest with which it interferes

An agreement is invalid if it exhibits some or all of the following characteristics:

1) it concerns a business of a type generally though suitable for public regulation

2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some member of the public

3) the party holds itself out as willing to perform this service for any member

of the public who seeks it, or at least for any member coming within certain established standards

4) as a result of the esstential nature of the service, in the economic setting of the transaction, the party invoking exculpation possess a decisive advantage of bargaining strength against any member of the public who seeks [the party’s services]

5) In excersing a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence

6) Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller of the [the seller’s] agent

Reasoning: When w substantial number of such sales take place as a result of the seller’s general invitation to the public to utlize the facilities and services in question, a legitimate public interest arises. A ski area owes its customers the same duty as any other business—to keep its premises reasonably safe.

The policy rationale is to place responsibility for maintenance of the land on those who own it, with the ultimate goal of keeping accidents to the minimum level possible.

Reliance on the private nature of (D)’s property would be inconsistent with societal expectations about privately owned facilities that are open to the general public. Indeed, when a facility becomes a place of public accommodation, it “renders a service which has become public interest in the manner of the innkeepers and common carriers of old.”

Holding: (agreement unforceable….court turned to a discussion of public policy to support its holding) No. D argued that the agreement should be upheld because ski resorts do not provide an essential public service. The court rejected that argument on the grounds that D’s area was open to the pubic, D advertised and invited both skiers and nonskiers, and thousands of people bought tickets every day through the ski season. D, not recreational skiers, had the expertise and opportunity to foresee and control hazards and to guard against the negligence of their agents and employees.

Notes: Courts will often not enforce exculpatory clauses as a matter of public policy.

Notes and questions:

Note 7: o Hamelin v. Simpson Paper

(P) security guard was employed by T. Company was hurt when a wooden stair gave way under him while hw was t work in D’s factory. After settling (p)’s claim, D sought indemnity from T. Co via a contract that was in place.

The court, upheld the K despite T’s claim that the contract violated public policy by discourgining D’s due care.

The majority distinguished Dalury: the considerations there, such as unequal bargaining power, fairness, and the benefits of risk-spreading, are not present here.

Note 9o No matter what the situation, courts generally agree that gross

negligence or recklessness may never be disclaimed by agreement no matter what words are used.

Note 10o Even if the realize itself is valid whether adults singing releases can

bind members of their family with increasing frequency. Note 12

o Bailments in parking lots – where a car might be stolen General rule that unilateral disclaimers are not effective unless

brought to the attention of (P) and citing courts adopting rule Note 13

o Post injury releases Settlements can be complicated

Implied assumption of risk

In this section, no express language or agreement indicates the intentions or understanding of the parties.

Murphy v. Steeplechase Amusement Co.

Facts: The (D), Steeple Mausement Co., maintains an amusement park at Coney Island. (P), a vigorous young man, visited the park with friends.

Steeplechase Amusement (D) operated an amusement park. A ride known as “The Flopper” featured a moving belt which, when stepped upon, would cause a customer either to fall or to be pushed up an incline. Murphy (P) tried the ride after watching other customers enjoy it. Murphy knew that falling was a potential risk. Murphy claimed that the belt jerked when he got on, causing him to fall and resulting in a fractured knee.

(P) states in his complaint that the belt was dangerous to life and limb in that it stopped and started violently and suddenly and was not properly equipped to prevent injuries to persons who were using it without knowledge of its dangers, ….

P sued, claiming that the belt was dangerous and was not properly equipped to prevent injuries.

Issue: Is an amusement park liable for damages to a person who sustains injuries on the ride when it is reasonably foreseeable that some danger is involved?

Rule: One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball.

Reasoning: Vistors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damages to his body might ensue from such a fall.

A different case would be here if the dangers inherent in the sport were obscure or unobserved

Nothing happened to the (P) except what common experience tells us may happen at any time as the consequences of a sudden fall.

Holding: The amusement park is not liable for any damages if a customer sees and understands the dangers of a ride because the customer has assumed the risk.

Davenport v Cotton Hope Plantation Horizontal Property Regime

Facts: ∏ was injured while going down a flight of stairs in his apartment complex. There were 3 stairwells that offered access, but ∏ used the middle stairs because they were closest to his apartment. For 2 months before his fall he had been reporting to ∆ that the floodlights in the stairwell were not working, but he still used the stairs. One night, as (P) descended the middle stairway to go to work, he tripped and was hurt in the resulting fall. The night he fell, he thought he was stepping on a stair but it was actually a shadow caused by the broken light.

Issue: Does assumption of risk act as a complete bar to recovery where a state has adopted a modified comparative negligence system?

Rule: Assumption of risk applies to any case…where the facts proved show that the person against whom the doctrine of assumption of risk is pleaded knew of the danger, appreciated it, and acquiesced therein.

there are four requirements to establishing the defense of assumption of risk: (1) the (P) must have knowledge of the facts constituting a dangerous condition; (2) the (P) must know the condition is dangerous; (3) the (P) must appreciate the nature and extend of the danger; and (4) the (P) must voluntarily expose himself to the danger.

Pg. 486(1) although the absolute defense of assumption of risk has historically been

treated as a separate defense from contributory negligence, it is incompatible with our comparative fault system

(2) a (p)’s conduct in assuming a risk can be compared with the (D)’s negligence (3) a (P)’s conduct in assuming the risk can be made a part of our compartive

fault system(4) …..(5)even if Davenport (P) assumed the risk of injury, he will not be barred

from recovery unless his negligence exceeds the (D)’s negligence.

Notes and questions:

Class

Strict liability

Indiana Harbor Belt Railroad v. American Cyanamid Co.

Facts: Defendant (a chemical company) loaded 20,000 gallons of liquid acrylonitrile, a toxic substance, into a railroad car in order to ship it to New Jersey. The car was sitting in Plaintiff’s rail yard when a leak was discovered. The leak was eventually brought under control, but 5,000 gallons of the toxic substance was spilled, and it caused the evacuation of the surrounding area. The clean-up bill was $981,022.75.

Plaintiff sued Defendant to recover this cost. Plaintiff claimed that Defendant was negligent, that the transportation of toxic chemicals was an abnormally dangerous activity, and Defendant should be strictly liable.

Indiana Harbor maintained that the transportation of toxic chemicals is an ultrahazardous activity and therefore strict liability should apply. The trial court granted Indiana Harbor’s motion for summary judgment on the strict liability count

and dismissed the negligence count with prejudice. American Cyanamid appealed and Indiana Harbor cross appealed the dismissal of the negligence count.

Issue: 1) What standard applies regarding the shipper’s liability for the consequences of a spill of a hazardous chemical during shipment? 2) Under what circumstances is strict liability appropriate?

Rule:

An activity is deemed ultra hazardous when: the risk of harm is great; and the harm that would ensue if the risk materialized could be great; such could be prevented by the exercise of due care; the activity is not a matter in common usage(highly valuable vs unavoidable risk); the activity was inappropriate to the place in which it took place; the value to the community of the activity is not great enough to offset its unavoidable risks.

The Restatement (Second) of Torts Section: 520, lists six factors to determine whether or not an activity is subject to strict liability: (1) the risk of harm is great; (to person, land or chattels) (2) the harm that would ensue is great; (3) inability to eliminate the risk with reasonable care; (4) extent to which activity is not a matter of common usage; (5) the activity is inappropriate for the location where it took place; and (6) the social value of the activity is not sufficient to offset the risks.

Reasoning: The parties agree placing acrylonitrile in a rail shipment subjects the shipper to strict liability and that the S.Ct would treat R(2d) as the authority in determining whether the activity is abnormally dangerous and the actor strictly liable. But negligence is the baseline common law regime in tort liability.  Precedent determines that the storer of dangerous chemicals has more control than the shipper, so that is little help.  There is no reason given why negligence is not adequate to remedy and deter, at reasonable cost, the accidental spillage of acrylonitrile.  It is not corrosive, or destructive.  It won’t otherwise weaken or damage a tank car’s valves.  The leak was caused by carelessness, whether American Car, Cyanamid, Ind Harbor, Missouri, or a combination of failures to maintain the car and prevent spillage.  The relevant activity here is transportation not manufacturing and shipping.  Under products liability law the manufacturer is not considered to be engaged in an abnormally dangerous activity b/c the product becomes dangerous when it is handled or used after it leaves his premises, even if the danger is foreseeable

Holding: (Acrylonitrile is not a sufficiently abnormally dangerous substance to impose strict liability upon the Defendant.) If Defendant is liable for the clean-up cost, it will be under a negligence theory.

* The largest class of cases is which strict liability has been imposed under Section 520 involves the use of dynamite and other explosives for demolition in residential or urban areas. Acrylonitrile is both flammable and toxic, even at low temperatures.* No one suggests that the leak in this case was caused by the inherent properties of acrylonitrile. It was caused by carelessness. If a tank car is carefully maintained, the danger of an acrylonitrile spill is negligible. Thus, there is no compelling reason to hold Defendant responsible in strict liability.* Plaintiff focuses on the fact that the spill occurred in a densely populated region and could have been disastrous. Plaintiff argues that strict liability would provide Defendant with an incentive to find another route, one that does not go through a major town or suburb. However, Plaintiff fails to realize that the railroad is a hub and spoke system and the hubs are in densely populated areas.

Notes and questions:

Note 4:o The use and storage of dynamite warranted the imposition of strict

liability no matter how valuable the activity might be to the community and even if there were no safer place to store it.

Maintaining custody of animals

Owner of livestock which intrude upon land of another is liable for intrusion and for any harm done while upon land although possessor exercised utmost care to prevent them from intruding. Rest 2d Tort §504:

Owner of wild animals are strictly liable for harm, but only for harm caused by dangerous propensities associated w/ wild animal of particular class OR by dangerous characteristics that possessor knows or has reason to know

o Wild animals – unless an animal…is shown to be either harmless by its very nature, or to belong to a class that has become so by what may be called cultivation—it falls within the class of animals as to which the rile is that man who keeps one must take the responsibility of keeping it safe. (SL APPLIED)…elephants and shit

Owner of domestic animal will be liable to injured persons if, but only if, the owner knows of vicious tendencies of animal. Rest 2d Torts §509 – “every dog deserves one bite”

o P must show ownership in order to recover (Leber v. Hyatt: hotel case -wild mongoose attack!)

Exception: public zookeepers generally liable only for negligence in keeping wild animals

When zoo is privately owned/operated for profit, strict liability may be imposed - Isaacs v. Powell: chimp attack;

reluctant to encourage risk when contributed by those who, for profit, harbor wild animals and increase exposure to dangers by advertising

Abnormally dangerous activities:

Fletcher v. Rylands

Facts: ∏ was a tenant mining coal under agreement with the landowner. ∆ was a tenant operating a cotton mill on nearby land. ∆ hired independent contractors to make a resovoir on the land and the land rented by the ∆ had been previously mined for coal and the old mineshafts were filled with soil. The builders of the reservoir knew about the old mineshafts, but they did not know or suspect that the old mineshafts were connected to the ∏’s mineshafts. When the reservoir was filled, the water leaked through the old shafts and into the working shafts.

Issue: Is one who brings something onto his land (water) liable for the damage caused if that thing escapes, even if that escape is not due to his fault or the fault of any of his employees?

RULE  :::: "We think that the true rule of law is, that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape." There are exceptions if the escape was the fault of the plaintiff or an act of God.Holding: Yes.

Reasoning:• ∏, who is free from all blame, must bear the loss, unless he can establish under

some theory, that ∆, also free from blame is liable• The question is: what obligation does the law cast on a person who lawfully brings

something on his land that, though harmless if it remains there, will naturally do mischief if it escapes

• It is undisputed that he must take care to keep what was brought on his land from escaping and damaging his neighbors.

• The real question is whether he has absolute liability or whether he merely has a duty to take all reasonable and prudent precautions to keep it in

• This court thinks that absolute liability should be imposed• The only way he can excuse himself is by saying that the escape was caused by the

fault of the complaining neighbor or an act of God although that is not the case here

• This rule seems just, because in this case, the ∏ is not at fault and have sustained loss due to something the ∆ brought onto the land that was not naturally present

• There are cases in which a negligence analysis is more appropriate• Those cases are distinguishable, because people who travel on the highway or go

near warehouses take upon themselves some known risk of injury.• In this case the ∏ did not take upon himself the risk of any injury.He did not know about the reservoir and he could not have stopped the ∆ from building it anyway

Siegler v. Kuhlman

Facts: The was 17 year old girl who was killed in the resulting explosion when theπ ∆'s gasoline tanker separated from the truck's cab, and spilled the gasoline all over the road. The ∆ was not negligent in the hook up of the tank, it separated due to a link which parted under metal fatigue.

Procedural Posture: The trial court found for ∆, and refused to allow a res ipsa loquitur doctrine. The court of appeals reversed.

Judge's Rule: The transportation of gasoline in large commercial quantities is a abnormally dangerous activity which subjects the actor to strict liability for foreseeable damages arising from the escape of the gasoline without the intervention of any outside force beyond the control of the actor.

Reasoning: The court reasoned that the nature of the risk to the general public, combined with the severity of the foreseeable damages if the gasoline exploded, made this an abnormally dangerous activity. They cited to Rylands. Furthermore, they stated that much of the evidence of negligence would be destroyed in the resulting explosion, therefore leading to problems of proof. Additionally, the owner was in a better position to spread the loss by passing it on to customers, as well as holding the manufacturer of the failed link accountable.

Liability for defective products

No area of personal injury law has changed as dramatically in the past century as the law governing liability for defective products.

The courts….have…constructed a system of system of strict liability—a process that continues to lend a dynamic, and controversial, character to products liability law.

MacPherson v. Buick Motor Co.

Facts: Brief Fact Summary. The Plaintiff, MacPherson (Plaintiff), bought a car from a retail dealer, and was injured when a defective wheel collapsed. Plaintiff sued the Defendant, Buick Motor Co. (Defendant), the original manufacturer of the car, on an action for negligence. Defendant had purchased the faulty wheel from another manufacturer and Defendant failed to inspect the wheel.

The Plaintiff brought a negligence suit against the Defendant for injuries sustained after he was thrown from his car when the wheel collapsed. Defendant had sold the automobile to a retail dealer, who in turn sold it to Plaintiff. The wheel, which was sold to Defendant by another manufacturer, was made of defective wood. Evidence suggested that the defect could have been discovered through reasonable inspection, but no inspection occurred.

Issue. Does Defendant owe a duty of care to anyone besides the immediate purchaser in this case the retailer?

Rule of Law. If a product is reasonably expected to be dangerous if negligently made and the product is known to be used by those other than the original purchaser in the normal course of business, a duty of care exists.

Held. Yes. Judgment affirmed.* One line of cases has suggested that manufacturers owe a duty of care to ultimate purchasers only when the product is inherently dangerous. Other cases have suggested a duty of care is owed to foreseeable users if the product is likely to cause injury if negligently made.

* In order for a duty of care to arise in relation to ultimate purchasers, two criteria are necessary. First, the nature of the product must be such that it is likely to place life and limb in danger if negligently made. This knowledge of danger must be probable, not merely possible. Second, there must be knowledge that in the usual course of events, the danger will be shared by people other than the buyer. This may be inferred from the nature of the transaction and the proximity or remoteness of the relation.

* In the present case, the manufacturer of a finished product placed this product on the market to be used without inspection by its customers. If the manufacturer was negligent and the danger could be foreseen, a liability will follow.

ANALYSIS:  Defendant argued that only those items whose normal function is to injure or destroy [such as poisons, explosives, etc.] are considered imminently dangerous and therefore no duty was owed to plaintiff.  However, the court found that if a manufacturer is supplying goods in which a danger may be foreseen if its construction is defective, there is a cause for negligence.  In this case, it was

apparent that an automobile is a good which fits this description.  It could be foreseen that if the wheels are defective, and an automobile is traveling at fifty miles an hour, an injury would almost be certain.

The remoteness of the relationship between defendant and plaintiff was also a factor considered by the court.  Defendant claimed to owe a duty of care only to the retailer.  It should have been apparent to defendant, however, that an automobile retailer, by nature of its business, would not use the vehicle and would resell it to the general public.  Therefore, the court felt that it could be reasonably foreseen by defendant that plaintiff would be injured by a defect in the wheels and therefore a duty of care was owed.

Notes and questions:

Note 4:

Judge cardozo states that so long as danger is foreseeable if the (D) is negligent, privity will not bar an action.

Escola v. Coca Cola Bottling Co. of Fresno

Facts: Plaintiff was a waitress, and one of her duties was to stock the refrigerator with bottles of Coca-Cola. On one occasion, a bottle exploded in Plaintiff’s hand as she was putting it into the refrigerator, causing serious injury. Plaintiff sued Defendant, claiming that Defendant was negligent in selling “bottles containing said beverage which on account of excessive pressure of gas or by reason of some defect in the bottle was dangerous.and likely to explode.”

An engineer from the bottle manufacturer (which was not sued) testified at the trial about how bottles are tested and called these tests “pretty near” infallible. The majority affirmed a (P)’s judgment and held that the (P) had properly benefited from res ipsa loquitur in her negligence action.

Used bottoles were not subject to the same test as new bottles…

The jury returned a verdict for Plaintiff. Defendant appealed.

Rule of Law. A manufacturer incurs absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to humans.

Issue. Is Defendant absolutely liable for its failure to inspect a bottle of Coca-Cola that proves to have a defect that causes injury to Plaintiff?

* Using the doctrine of res ipsa loquitur, the majority inferred negligence upon Defendant.Concurrence. (Justice Traynor) A manufacturer incurs absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to humans.

* Irrespective of privity of contract, the manufacturer is responsible for an injury caused by an article, to any person who comes in lawful contact with it. Even if there is no negligence, public policy demands that responsibility be placed where it will most effectively reduce the hazards of life and health inherent in defective products that reach the market.

* Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufactu

rer and distributed among the public as the cost of doing business.

* If public policy demands that a manufacturer of goods be responsible for its quality regardless of negligence, there is no reason not to fix that responsibility openly.

* The liability of the manufacturer to an immediate buyer injured by a defective product follows without proof of negligence from the implied warranty of safety attending the sale.

* Consumers will no longer need to be wary of products. The manufacturer’s obligation to the consumer must keep pace with the changing relationship between them.

Class 11/10/10

Manufacturing and design defects

The most common and straightforward cases of defective products involve the aberrational mass-produced item that has come off the assembly line different from (and more dangerous than) the intended product.

The defect is generally apparent in the flawed unit by the time of trial, and courts have concluded that SL should follow.

Design defects

Soule v. General Motors corporation

Facts: ∏’s ankles were badly injured when her GM car collided with another vehicle. She sued asserting a defectively designed product. GM denied a design defect and said that the force of the collision was the sole cause of the injuries. At trial the court instructed the jury on the consumer expectation test and the jury found for the plaintiff and awarded her $1.65 million. Court of appeals affirmed. GM petitioned supreme court of CA for review.

Issue: Is the use of the consumer expectation test appropriate where the evidence does not permit an inference that the product’s performance did not meet the minimum safety expectations of its ordinary users?

Holding: No.

Reasoning:• The jury should have been instructed to use the risk-utility test.• Consumer expectation test should be used when certain products are commonly

understood—in theses cases, ordinary knowledge may permit an inference that the product did not perform as safely as it should

• No expert evidence can be introduced in these cases• The risk utility test is used when there is a complex product that ordinary

customers will have no real clue about the performance expected• In these cases, the jury has to weigh several factors• The jury must consider manufacturer’s evidence about competing design

considerations• Note that unless the facts actually permit an inference that the product’s

performance did not meet the minimum safety expectations of its ordinary users, the jury must engage in balancing of risks and benefits required by the second prong of Barker

• Don’t have to engage in both prongs only if as a matter of law it could be determined that the evidence would support a verdict on the consumer expectations prong

• When it can’t be decided as a matter of law that the evidence supports a verdict based on the consumer expectations prong, the jury must be instructed solely on the risk utility test

• GM has many objections to the consumer expectation test: see case page 563.• CA does not think that consumer expectation test should be abolished• This case involved complex questions about technical and mechanical detail—the

risk utility test is appropriateBecause of all the evidence introduced about the strengths, shortcomings, risks, and benefits of the challenged design it is not fair to say that the jury solely reached their decision by way of an independent assessment of what an ordinary customer would

expect—so this error in jury instruction did not really have a bearing on the case and is harmless

Camacho v. Honda Motor Co., LTD

Facts: A man bought a Honda motorcycle in March 1978 and got in an accident with a car and suffered severe leg injury. He sued claiming that the absence of crash bars to protect the legs made the product defective under a strict liability analysis. Two mechanical engineers said that effective leg protection devices were available in March 1978 and that the crash bars that were available from manufacturers other than Honda would have reduced or completely avoided the injuries that the man suffered.

Procedural History: Trial court granted summary judgment for Honda, and court of appeals affirmed saying that the danger would have been fully anticipated by or within the contemplation of the ordinary user or consumer.

Issue: Did the trial court and the court of appeals apply the right test in determining whether a product has a design defect that causes it to be in a defective condition that is unreasonably dangerous?

Holding: No.

Reasoning:• This court adopts the crashworthiness doctrine that says—a motor vehicle

manufacturer may be liable in negligence or strict liability for injuries sustained in a motor vehicle accident where a manufacturing or design defect though not the cause of the accident, caused or enhanced the injuries.

• Honda’s argument that motorcycle manufacturers should be exempt from liability under the crashworthiness doctrine because serious injury to users of that product is foreseeable must be rejected.

• The court, in determining the extent of the liability of a product manufacturer for a defective product adopted the doctrine of strict products liability set forth in 402A.

• Honda says that comment i shows that they are not strictly lilable, because that comment says that the rule that the court uses only applies when the

defective condition of the product makes it unreasonably dangerous to the user or consumer—the trial and court of appeals applied this consumer contemplation test in dismissing the ∏’s claims.

• This court says that in Pust the court recognized that requiring a party who seeks recovery on the basis of an alleged defective product to establish that the product is unreasonably dangerous appropriately places reasonable limits on the potential liability of manufacturers

• However, the court also notes that in Pust, it was held that the fact that the dangers of a product are open and obvious does not constitute a defense to a claim alleging that the product is unreasonably dangerous—the approach that the trial and appeals court used is similar to the open and obvious test that was rejected in Pust

• The court says that a test the balances the risks and benefits of a product to determine whether the product design is unreasonably dangerous should be used.

• Danger-Utility Test: balance the following factors:the usefulness and desirability of the product—its utility to the user and the public

as a wholethe safety aspects of the product—the likelihood that it will cause injury and the

probable seriousness of the injurythe availability of a substitute product what would meet the same need and not be

as unsafethe manufacturer’s ability to eliminate the unsafe character of the product without

impairing 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 the productthe user’s anticipated awareness of the dangers inherent in the product and their

avoidability because of general public knowledge of the obvious condition of the product, or the existence of suitable warnings or instructions

the feasibility on the part of the manufacturer of spreading the loss by setting the price of the product or carrying liability insurance

The court determined that there was not enough info to make a determination and said that there was competing information about certain things—the court remanded to the trial court for a determination consistent with this opinion.

DISSENT: This justice thought that the court of appeals correctly affirmed the trial court’s order.This justice thinks that the test applied by the trial and court of appeals should be used (the consumer contemplation test)Consumer Contemplation Test:Is the article sold dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics? If YES, then it is unreasonably dangerous.

This justice thinks that the test employed by the majority is more useful in drug cases.

Class

Safety Instructions and warnings

A threshold issue: Common knowledge and the duty to warno The first issue in these cases is whether any words at all are needed to

address the risk question. Brown Forman Corp. v. Brune

The court held that no notice was required on a bottle of tequila to warn against the dangers of drinking a large quantity in a short period of time.

(P) was already drunk The were apparent even to an 18-year old person.

No duty to warn about the dangers of riding unrestrained the cargo bed of a pickup truck.

Emery v. Federated foods A jury should decide whether it was common

knowledge that young children were at risk in eating marshmallows because marshmallows expand “when they are soaked with liquired secretions that are present in the breathing tubes of the lungs.

Hood. v. Ryobi America Corp.

Facts: A man bought a power saw and there were a lot of warnings in the manual and on the saw that said to always keep the blade guards in place. The ∏ was cutting a piece of wood and saw that the blade guards prevented the saw blade from passing completely through the wood, so he removed the blade guards from the saw. After he was done cutting that wood, he continued working on other things without butting the guards back on. In the middle of another cut, the blade flew off the saw and toward the ∏ and partially amputated his left thumb and lacerated his right leg. ∏ admits that he read the warnings but says that he thought that the blade guards were only intended to prevent the user’s clothing or fingers form contacting the blade. He says he did not know that removing the guards could make the blades detach from the saw. He says that the manufacturer was aware of this though because it happened to another customer years before.

Procedural History: The trial court entered judgment for the defendants on all

claims, because they say that in the face of adequate warnings, Hood altered the saw and caused his own injury. Hood appeals. Issue: Did the trial court err in its determination?

Holding: No. Rule: A manufacturer may be liable for placing a product on the market that bears inadequate instructions and warnings or that is defective in design.

However, an encyclopedic warning is not required. A warning need only be one that is reasonable under the circumstances. A clear and specific warning will normally be sufficient—“the manufacturer

need not warn of every mishap or source of injury that the mind can imagine flowing from the product.

o Question…the question to answer is…whether the benefits of a more detailed warning outweigh the costs of requiring the change.

Reasoning:• A manufacturer may be liable for placing a product on the market that bears

inadequate instructions and warnings or that is defective in design.• Hood says that he warnings in place were insufficiently specific—he said that the

consequences of taking the guards off should have been explained• The court said that a warning need only be one that is reasonable under the

circumstances—in deciding whether a warning is adequate, MD law asks whether the benefits of a more detailed warning outweigh the costs

• Don’t just have to look at the monetary costs—also look a the costs it poses to the actual warning—commentators say that the proliferation of label detail threatens to undermine the effectiveness of warnings altogether

• Court says that the warnings provided were sufficient—about 7 warnings in the manual and on the saw combined

• Hood says that the accident happened before, so Ryobi should have changed warning

• The court says that this was only one incident that happened over a decade before, and Ryobi sold thousand of these saws—so basically ∏ cannot prove that a different warning would bring any net social benefit

The court held that the warnings provided were adequate as a matter of law.

Notes and questions:

Note 9:o A product intended for adults need not be designed to be safe for

children solely because it is possible for the product to come into a child’s hands…

o The risk that adults, for whose use the products, will allow children to access to them, resulting in harm, must be balanced against the product’s utility to their intended users.

Note 11

o If the product is not being used for its intended purpose then the accident must be foreseeable..

Edwards v. Basel Pharmaceuticals

LEARNED INTERMEDIARY DOCTRINE: Edwards v. Basel Pharma. (nicotine patches + smoking = cardiac arrest)No duty to warn if Doc has to give prescription.Exceptions:

Mass Immunization – no doc-patient interaction.When FDA says “warn the patient.”Commercial advertising – when advertising directly to consumers, all warnings must be present.

Facts: (P) brought a wrongful death action for the death of her husband. He died of a nicotine-induced heart attack as a result of smoking cigarettes while wearing two Habirtrol nicotine patches.

(P) theory of liability was that the warnings given in conjunction with the Habirtrol patches were inadequate to warn her husband of the fatal risk associated with smoking and overuse of the product.

A relatively thorough warning was given to phyiscans providing the Habitrol patch, but the insert provided for the user did not mention the possibility of a fatal or cardiac related reaction to a nicotine overdose, cautioning that an “overdose might cause you to faint.”

(D) contends that the “learned intermediary doctrine” bars liability, because the prescribing physicians were given complete warnings regarding the use of the patches.

Rule: Our products liability law generally requires a manufacturer to warn consumers of danger associated with the use of its product to the extent the manufacturer knew or should have known of the danger.

Certain products, prescription drugs among them, are incapble of being made safe, but are of benefit to the public despite the risk. Their benefical dissemination depnds on adequate warnings…..the user must be adequately warned.

Exceptiono Learned intermediary doctrine

Applicable in prescription drugs cases The doctrine operates as an exception to the

manufacturer’s duty to warn the ultimate

consumer, and shields manufacturers of prescription drugs from liability if the manufacturer adequately warns the prescribing physicians of the dangers of the drug.

Reasoning: the doctor acts as a learned intermediary between the patient and the prescription drug manufacturer by assessing the medical risks in light of the patient’s needs.

Where a product is available only on prescription or through the services of a physician, the physician acts as a 'learned intermediary' between the manufacturer or seller and the patient. It is his duty to inform himself of the qualities and characteristics of those products which he prescribes for or administers to or uses on his patients, and to exercise independent judgment, taking into account his knowledge of the patient as well as the product. The patient is expected to and, it can be presumed, does place primary reliance upon that judgment. The physician decides what facts should be told to the patient. Thus, if the product is properly labeled and carries the necessary instructions and warnings to fully apprize the physician of the proper procedures for use and the dangers involved, the manufacturer may reasonably assume that the physician will exercise the informed judgment thereby gained in conjunction with his own [933 P.2d 301] independent learning, in the best interest of the patient.

Exceptions to the learned intermediary doctrineo Two exceptions have been recognized which operate to

remove the manufacturer from behind the shield of the learned intermediary doctrine.

1) The first involves mass immunizations. Mass immunizations fall outside the contemplated realm of the learned intermediary doctrine because there may be no physician-patient relationship, and the drug is not administered as a prescription drug.

Under these conditions individualized attention may not be given by medical personnel in assessing the needs of the patient. The only warnings the patient may receive are those from the manufacturer.

2) When the Food and Drug Administration mandates that a warning be given directly to the consumer. By this exception several states have held that the learned intermediary doctrine itself does not protect the manufacturer.

Second exception applies to nicotine patches…

Holding: We hold that when the FDA requires warnings be given directly to the patient with a prescribed drug, an exception to the “learned intermediary doctrine has occurred, and the manufacturer is not automatically shielded from liability by properly warning the prescribing physician.

Wyeth v. LevineQuick court analysis and ruling….The Supreme Court has ruled today in the Wyeth v. Levine case, which directly addresses this issue. And pre-emption now appears to be a dead issue, at least in my first reading:". . .State tort suits uncover unknown drug hazards and pro-vide incentives for drug manufacturers to disclose safety risks promptly. They also serve a distinct compensatory function that may motivate injured persons to come for-ward with information. . .

. . .Wyeth has not persuaded us that failure-to-warn claims like Levine’s obstruct the federal regulation of drug labeling. Congress has repeatedly declined to pre-empt state law, and the FDA’s recently adopted position that state tort suits interfere with its statutory mandate is entitled to no weight. Although we recognize that some state-law claims might well frustrate the achievement of congressional objectives, this is not such a case.

We conclude that it is not impossible for Wyeth to comply with its state and federal law obligations and that Levine’s common-law claims do not stand as an obstacle to the accomplishment of Congress’ purposes in the FDCA. Accordingly, the judgment of the Vermont Supreme Court is affirmed."

Facts: The plaintiff lost her hand to gangrene when she was injected with Phenergan, an anti-nausea drug made by Wyeth Pharmaceuticals. She won a jury verdict in Vermont, under the theory (inter alia) that Wyeth had inadequately labeled the drug.

Phenergan’s regulatory backgroundThe trial record shows that the FDA first approved injectable Phenergan in 1955. In 1973 and 1976, Wyeth submitted supplemental new drug applications, which the

agency approved after proposing labeling changes. Wyeth submitted a third supplemental application in 1981 in response to a new FDA rule governing drug labels. Over the next 17 years, Wyeth and the FDA intermittently corresponded about Phenergan’s label. The most notable activity occurred in 1987, when the FDA suggested different warnings about the risk of arterial exposure, and in 1988, when Wyeth submitted revised labeling incorporating the proposed changes. The FDA did not respond. Instead, in 1996, it requested from Wyeth the labeling then in use and, without addressing Wyeth’s 1988 submission, instructed it to “[r]etain verbiage in current label” regarding intra-arterial injection. Id., at 359. After a few further changes to the labeling not related to intra-arterial injection, the FDA approved Wyeth’s 1981 application in 1998, instructing that Phenergan’s final printed label “must be identical” to the approved package insert.

Wyeth's motion for judgment as a matter of lawWyeth argued that this Vermont law was federally preempted because it was in "actual conflict [with] a specific FDA order" regarding drug labeling. The trial court rejected this argument, as did the Supreme Court of Vermont, holding that the FDA requirements merely provide a floor, not a ceiling, for state regulation. The Supreme Court granted certiorari.

IssueIf a drug meets the labeling requirements of the FDA, does that give rise to federal preemption of state law regarding inadequate labeling? Wyeth presented two arguments in favor of FDA Preemption:• 1) It is impossible for Wyeth to comply with both the state-law duties and federal

labeling regulations, since the latter forbid it from changing its label without FDA approval.

• 2) Permitting states to require stronger warnings creates an unacceptable “obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” because it substitutes a lay jury’s decision about drug labeling for the expert judgment that Congress sought to entrust with drug labeling decisions when it created the FDA.

ReasoningQuestions of federal preemption "must be guided by two cornerstones of our pre-emption jurisprudence":• "First, 'the purpose of Congress is the ultimate touchstone in every pre-emption

case.' Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (internal quotation marks omitted); see Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963)."

• "Second, '[i]n all pre-emption cases, and particularly in those in which Congress has "legislated...in a field which the States have traditionally occupied," ... we "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." ' Lohr, 518 U.S., at 485 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218 230 (1947))"

In its first argument, Wyeth is incorrect that relabeling the drug to conform to

Vermont law would necessarily have violated federal labeling regulations. Although a manufacturer generally needs FDA approval before changing

a drug label, the agency's “changes being effected” (CBE) regulation permits certain unilateral labeling changes that improve drug safety. Wyeth’s misreading of this regulation is based on the misunderstanding that the FDA, rather than the manufacturer, bears primary responsibility for drug labeling. It is a central premise of the Food, Drug, and Cosmetic Act (FDCA) and the FDA’s regulations that the manufacturer bears responsibility for the content of its label at all times. Pp. 11–16.

In its second argument, Wyeth is incorrect that permitting states to require stronger warnings would interfere with Congress’ purpose of entrusting an expert agency with drug labeling decisions., because it was not Congress's intent, in writing the Food, Drug, and Cosmetic Act, to preempt state-law failure to warn actions.

Wyeth's argument misconstrues the intent of congress behind the FDCA. Congress did not intend the FDCA to pre-empt state-law failure-to-warn actions.

Wyeth's argument also misconstrues the capacity of agencies to preempt state law, as Wyeth's argument relies on the preamble to a 2006 FDA regulation declaring that state-law failure-to-warn claims threaten the FDA’s statutorily prescribed role. Although an agency regulation with the force of law can pre-empt conflicting state requirements, this case involves no such regulation but merely an agency’s assertion that state law is an obstacle to achieving its statutory objectives. Where, as here, Congress has not authorized a federal agency to pre-empt state law directly, the weight this Court accords the agency’s explanation of state law’s impact on the federal scheme depends on its thoroughness, consistency, and persuasiveness. Cf., e.g., Skidmore v. Swift & Co., 323 U. S. 134 . Under this standard, the FDA’s 2006 preamble does not merit deference: It is inherently suspect in light of the FDA’s failure to offer interested parties notice or opportunity for comment on the pre-emption question; it is at odds with the available evidence of Congress’ purposes; and it reverses the FDA’s own longstanding position that state law is a complementary form of drug regulation without providing a reasoned explanation. Geier v. American Honda Motor Co., 529 U. S. 861 , is distinguished.

Reigel v. Medtronics

Facts:

The Medical Device Amendments of 1976 (MDA) created a scheme of

federal safety oversight for medical devices while sweeping back state oversight schemes. The statute provides that a State shall not “establish or continue in effect with respect to a device intended for human use any requirement—… (1) which is different from, or in addition to, any requirement applicable under [federal law] to the device, and … (2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under” relevant federal law. 21 U.   S.   C. §360k(a) . The MDA calls for federal oversight of medical devices that varies with the type of device at issue. The most extensive oversight is reserved for Class III devices that undergo the premarket approval process. These devices may enter the market only if the FDA reviews their design, labeling, and manufacturing specifications and determines that those specifications provide a reasonable assurance of safety and effectiveness. Manufacturers may not make changes to such devices that would affect safety or effectiveness unless they first seek and obtain permission from the FDA.

        Charles Riegel and his wife, petitioner Donna Riegel, brought suit against respondent Medtronic after a Medtronic catheter ruptured in Charles Riegel’s coronary artery during heart surgery. The catheter is a Class III device that received FDA premarket approval. The Riegels alleged that the device was designed, labeled, and manufactured in a manner that violated New York common law. The District Court held that the MDA pre-empted the Riegels’ claims of strict liability; breach of implied warranty; and negligence in the design, testing, inspection, distribution, labeling, marketing, and sale of the catheter, and their claim of negligent manufacturing insofar as the claim was not premised on the theory that Medtronic had violated federal law. The Second Circuit affirmed.

During Charles Riegel's angioplasty, his surgeon used an Evergreen Balloon Catheter to dilate his coronary artery. The catheter burst, causing extreme complications. Riegel sued the manufacturer, Medtronic, for negligence in the design, manufacture, and labeling of the device. Medtronic argued that Riegel could not bring these state-law negligence claims because they were preempted by Section 360k(a) of the Medical Device Amendments (MDA) to the Food, Drug, and Cosmetic Act. The MDA establishes a federal regulatory process for ensuring the safety of medical devices, and it provides that no state may set requirements that differ from or add to the federal ones. The District Court dismissed Riegel's claims as preempted by the MDA.

The U.S. Court of Appeals for the Second Circuit agreed that the suits based on medical devices like the Evergreen Balloon Catheter are preempted by the MDA. The catheter had been through the exceptionally rigorous "premarket approval" (PMA) process, by which federal regulators ensured that it met federal requirements.

Issue: Does Section 360k(a) of the Medical Device Amendments to the Food, Drug,

and Cosmetic Act preempt state-law claims seeking damages for injuries caused by medical devices that received premarket approval from the Food and Drug Administration.

Analysis: The decision means that FDA approval of a device preempts the rights of individuals to sue for damages caused by the device and similarly preempts the rights of states to enact more stringent standards than required by the FDA.

Held: The MDA’s pre-emption clause bars common-law claims challenging the safety or effectiveness of a medical device marketed in a form that received premarket approval from the FDA.

Conclusion: The Court, in an 8-1 decision, affirmed the Second Circuit and granted summary judgment in favor of Medtronic. The Court's opinion, written by Justice Antonin Scalia, noted that the MDA pre-empted state common law claims for defective devices such as this one. Riegel's negligence and strict liability claims relating to the safety and effectiveness of the catheter were based on New York's requirements and were therefore "different from, or in addition to" the federal requirements. Only Justice Ruth Bader Ginsburg dissented.

Question of liability where the claim is that there was failure to warn even though the information about the risk that came to pass was unknown (and not reasonably knowable) at the time the product was distributed.

Vassallo v. Baxter Healthercare corporation

Facts: (P) claimed that silicone gel breast implants, manufactured by a company since bought by (D), had been negligently designed, accompanied by negligent product warnings, and that they breached the implied of merchantability, with the consequence that she as injured. Her husband claimed loss of consortium.

Issue: Did the trial court apply the right standard regarding the duty to warn under the implied warranty of merchantability?

Synopsis of Rule of Law. A manufacturer will not be held liable under an implied warranty of merchantability for failure to warn or provide instructions about risks that were not reasonably foreseeable at the time of sale or could not have been discovered by way of reasonable testing prior to marketing the product.

Rule: Products liability comment m, we hereby revise our law to state that a defendant will not be held liable under an implied warranty of merchantability for failure to warn or provide instructions about risks that were not reasonably foreseeable at the time of sale or could not have been discovered by way of reasonable testing prior to marketing the product. A manufacturer will be held to

the standard of knowledge of an expert in the appropriate field, and will remain subject to a continuing duty to warn (at least purchasers) of risks discovered following the sale of the product at issue. In accordance with the usual rule governing retroactivity in this type of action, the standard just expressed will apply to all claims on which a final judgment has not been entered, or as to which an appeal is pending or the appeal period has not expired, and to all claims on which an action is commenced after the release of this opinion.

Discussion: Up until this case the duty to warn under the implied warranty of merchantability, presumes that a manufactrer was fully informed of all risks associated with the product at issue, regardless of the state of the art at time of the sale, and amount to strict liability for failure to warn of those risks. (This amounts to SL)

• Defendant wanted this jury charge:• A manufacturer need only warn of risks known or reasonably known in light of

the generally accepted scientific knowledge available at the time of the manufacture and distribution of the device.

• The court says that the judge’s instruction (the current standard) was correct, but the court notes that they are part of a minority that applies a hindsight analysis to duty to warn. Judge refused to instruct way that ∆ wanted.

• The court notes that a majority rejects the analysis that this court uses because it is impossible to warn against unforeseeable risks arising form foreseeable product use

The court says that a majority of states uses the principle expressed in the Restatement (2nd) of Torts 402A comment j:

Held: The court ruled that the jury’s sustainable verdict on negligence in failing to warn of known risks precluded the (D) from taking advantage of the change in the law.

Defenses

General Motors Corporation v. Sanchez

Facts: Sanchez’s 1990 chevy pickup had rolled backward with the driver’s side door open pinning sanchez to the opn corral gate in the angle between the open door and the cab of the truck. He bled to death.

The family, his estate, and his wife sued General motors corp and the dealership that sold the pickup for negligence, products liability, and gross negligence based on a defect the truck’s transmission and transmission-control linkage.

Thoery of how accident happened….he mis-shifted into what he thought was park, and what was actually an internmediate, “perched” position between Park and Reverse where the transimission was in nydraulic neutral.

Comparative Responsibility! General Motors Corporation v. Sanchez, p.620 -a plaintiff’s conduct other than the mere failure to discover or guard

against a product defect is subject to comparative responsibility (a consumer is not relieved of the responsibility to act reasonably nor

may a consumer fail to take reasonable precautions regardless of a known/unknown product defect

-in many cases, plaintiffs do not allege that the product defect caused the entirety of their injury, but simply that it enhanced what would otherwise have been a less serious harm

- some jurisdictions apportion separately for the initial crash injuries and the enhanced injuries due to the vehicle’s defectiveness

-once plaintiff proves that enhanced injuries occurred, burden of proof on their magnitude is on the defendants

-should enhanced injuries be reduced based on plaintiff’s fault? Courts split -Daly v. GM: court recognizes comparative fault in manufacture design

cases, dissent outraged cuz juries can’t compute these types of things

a. Comparative Responsibility as Partial Defense: i. GM v. Sanchez TX 1999 [605]: P killed in car accident; pickup

rolled back, pinning P to gate, bled to death; sued D for defective transmission control.

ii. Keen held that P’s negligent failure to discover or guard against defect would not be a defense; consumer has no duty to discover or guard against a product defect.

iii. reversed, reduce damages by 50%.1. jury found P 50% liable.2. Extends Keen: P’s conduct other than the mere failure to

discover or guard against a product defect is subject to comparative responsibility: i.e., other negligence by P could reduce damage.

3. Here, P failed to use ordinary care by not parking car.

Work related injuries

Although workers’ tort suit against their employers are generally barred because of the “exclusive remedy” provision of workers’ compensation statutes, workers injured on the job may sue third parties they believe violated tort obligations toward them—as though the compensation system did not exist.

Moreover, the worker may accept compensation benefits and purse the tort

action simultaneously without waiving one or the other, although as we shall see, the worker ordinarily must return the duplicative compensation benefits after recovering in tort.

Jones v. Ryobi, Ltd.

Facts: ∏ was employed at a business cards company and she was injured when she was using the small printing press. She alleged negligence and strict product liability. The press had a plastic guard and an electric interlock switch that automatically shut off the press if the guard was opened. However, the guard was removed, and the interlock switch was disabled, because it saved time and this was a common practice in the printing business. ∏ says she knew this was dangerous but did not want to be fired for using machine correctly.

Procedural History: Trial court granted the defendants judgment as a matter of law. ∏ appeals.

Issue: Did the trial court err in granting JMAL?

Holding: No.

Reasoning:The court does not affirm on the same ground that the district court used to grant JMAL. Since the court is reviewing the grant of JMAL de novo, the court can affirm on another ground (the district court relied on restatement section 402A that is the consumer expectation test)∏ must prove that she was injured as a direct result of a defect that existed when the press was sold.The press was modified by a third party thoughWhen a third party’s modification makes a safe product unsafe, the seller is relieved

of liability even if the modification is foreseeable

Liriano v. Hobart Corp.

Facts. Plaintiff’s hand was caught in a meat grinder while he was working. He was severely injured. He sued the manufacturer then brought a third-party action against plaintiff’s employer. At the time of sale, the machine came equipped with a safety guard, but the guard was removed while in possession of Plaintiff’s employer. The apparatus carried no safety warning indicating that it should be operated only with the safety guard attached. The issue that went before the jury was the failure to warn claim. The jury found for Plaintiff, and liability was apportioned among all three parties.

Synopsis of Rule of Law. The duty to warn is not necessarily obviated merely because a danger is clear.

Issue. Does a reasonable manufacturer have a duty to warn even when the danger at issue is an obvious one?

Discussion. The Restatement (Third) of Torts deals directly with product liability, listing three types of claim available to a putative plaintiff: (1) manufacturing defect; (2) design defect; or a (3) defect by reason of inadequate warnings or instructions. Liriano concerns the third, with the majority opinion addressing the issue of “obviousness as a matter of law” providing a shield to potential defendants whose products could cause injury.The majority opinion in Liriano addresses both issues of responsibility and causation, and, very importantly, which areas are reserved for the court and which are better suited to a jury. The court notes that the evolution of the law’s position with regard to standards of conduct has been shifting from court-imposed standards towards “enlarging the sphere of the jury.” As the majority opinion states: “[j]udges should be very wary of taking the issue of liability away from juries, even in situations where the relevant dangers might seem obvious, and especially when the cases in question turn on particularized facts.”In line with a clearly fact-based approach to determining the standard of care due, and thus what would constitute negligence, the Liriano court also applied a totality of circumstances analysis, observing “[t]he Plaintiff was only seventeen years old at the time of his injury and had only recently immigrated to the United States. He had been on the job for only one week. He had never been given instructions about how to use the meat grinder.” The court reasoned that it would not have been such a stretch for the defendant to have anticipated such or similar circumstances and guarded against injury through the nominal precaution of providing a warning label.Finally, with regard to causation, the court explained: “[w]hen a defendant’s negligent act is deemed wrongful precisely because it has a strong propensity to cause the type of injury that ensued, that very causal tendency is evidence enough to establish a prima facie case of cause-in-fact.” Thus, the court reasoned, “[e]ven if [the state court] would consider the danger of meat grinders to be obvious as a matter of law, that obviousness did not substitute for the warning.”

Held. The court affirmed the judgment, concluding that failure-to-warn liability was valid and applied as a matter of law to the facts of the present case.

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