Torts Outline

Don’t Forget! Use Headings Tell her what the tort is using the facts Deal with the counter-arguments

o All duty issues together, all breach issues together Majority/minority approach – know who is going to want each test and why

o Only say a little about policy in the essay portion Go through all the injured plaintiffs Who caused the harm – defendants How did they cause the harm –> what kind of tort You can say there is negligence and intentional tort at the same time If you do strict liability don’t also do negligence Start with the people who are closer in time to the injury

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[Negligence]

1) DUTY – Is a duty of care owed? D must owe P a duty of care in order to be held liable under a theory of negligence It is easy to find duty when there is a commission In cases of omission D must have an affirmative obligation to act. Omission/Commission

Affirmative Obligations to Act

Generally, there is no duty to rescue because… Increased litigation Inept rescue (endanger yourself/make things worse) Personal autonomy (law is reluctant to impose duty on people) Difficulties in determining what a reasonable standard of care is

Basis for an affirmative duty to act… Special Relationship

o Common carriers, inn keepers o A Judge answers the legal question of what special relationships count; the Jury determines

if the facts support that relationship Begin to rescue/ aid Reliance Innocent creation of risk Financial gain

Affirmative Duty to Aid

1) Special Relationship

Just because D knows that there is a danger does NOT mean D owes a duty of care to PHarper v. Herman: P a guest on D’s boat; P dove into the water unannounced and severed his spinal cord No special relationship because..

o P didn’t lack an ability to help himselfo Lack of experience is not enougho D received no financial benefit from Po Apparent hazard (even a child would have known)

2) Begin to rescue/aid Some jurisdictions require that you begin to rescue and leave worse off --> duty

Farwell v. Keaton: D and P hit girls who have their friends chase them down, P severely beaten while D escapes; D begins to rescue but then leaves him in a car in grandparents’ driveway, D dies

Begin to rescue/aid – D may have been better of if P left him alone Majority opinion also finds a special relationship of co-adventurers

o Most jurisdictions would not stretch the special relationship doctrine so far

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3) Reliance (promissory estoppel)

Mixon v. Dobbs House: Restaurant owner promises to tell employee when his pregnant wife calls; fails to tell employee that his wife was giving birth; wife gives birth in her home

A promise was made and relied on; the promisor chose to act accepted the duty

4) Creation of risk Historically it was a negligent risk Now some jurisdictions say its negligent or non-negligent

Affirmative Duty to 3rd Party

Triangulation of special relationship, D has special relationship to 3rd party so D has a duty to protect P from 3rd party

Owe the duty to identifiable 3rd party Other jurisdictions think its owed to reasonably foreseeable 3rd party

Tarasoff v. Regents of the University of California: Patient tells psychologist defendant about his intention to kill victim. Psychologist fails to warn victim. Court holds that he had a duty of reasonable care to protect the victim

Omission – failure to warn (defendant’s argument) P’s argument: triangulation

Dissent: Mosk doesn’t like the dicta – he is troubled that the court says that if you predicted or should have predicted you have a duty to warm

Concerns with triangular special relationships: Undermines patient/therapist trust, ineffective (patient won’t talk), hard to predict what he patient will do, harm to the patient, systemic burden, burden to getting to the third party, confidentiality issues

Pros of triangular special relationships: Therapist is uniquely situated, confidentiality is not absolute, preventing harm

Policy Bases for No Duty

Strauss v. Belle Realty Co.: Old man falls and trips on stairs during NY blackout caused my ConEd. ConEd moved for summary judgment because the contract was with the realty not with P so no duty was owed to P for policy reasons NOT for reasons of privity of contract

Policy reason: too many plaintiffs, ruinous liability for D

Dissent: Unsubstantiated decision that they couldn’t absorb the liability; why not consider policy on the plaintiff’s side; lots of people were injured

Moch v. Rensselaer Water Co.: P’s building is destroyed by fire due to lack of water to fight the fire. P sues D (water company) for failing to supply the city with sufficient water

Cardoza says that it is an act of omission so no duty of care, finds no special relationshipo Argument for commission is that they were giving water and then they stoppedo Policy reasons: The water company will go bankrupt, uses omission argument to avoid

addressing this

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Reynolds v. Hicks: Nephew gets drunk at a wedding and injures someone driving home, D sued under a theory of negligence for serving alcohol to a minor. The court found that there was no duty

Omission: Failed to stop him from drinking Commission: They supplied the alcohol, so they created the risk Some jurisdictions thinks that it needs to be the negligent creation of risk to find liability for social

hostso Distinguishing social hosts from commercial vendors o But the source of alcohol doesn’t matter to an injured party

Policy reasons: Burdens on the social host, parental exception; don’t want to burden the courtso The statute was intending to prevent harms to the minor not harms to the public

Dissent: Criminal statutes should be imposed in civil liability; majority conflates duty with breach

Duty Landowners and Occupiers

Liability is imposed on the possessor of land not the owner Jurisdictions split

Some maintain the categories Many on retain a separate category for trespasser Many of abolished some or all of the categories

Heins v. Webster County: P goes to hospital to see his daughter who works there and maybe discuss playing Santa, slips and falls, court eliminates the distinction between invitee and licensee

Duty to exercise reasonable care for all lawful guests; status shouldn’t matter; not that burdensome

Factors for determining if reasonable care is met (1) Foreseeability of harm (2) Purpose of entrant’s visit (3) Time, manner, and circumstances of the visit.(4) How the property is to be put to use.(5) Reasonableness of the inspection, repair, or warning.(6) Opportunity and ease of inspection and warning.(7) Burden on landowner, and/or community in providing protection

Dissent: Infringes on personal autonomy and privacy for homeowners; bigger burden for homeowners most people that come onto land are licensees and homeowners will now be liable for things they didn’t know about

When you eliminate the categories the jury is going to have a larger role less predictable Policy for eliminating invitee/licensee distinction: Status shouldn’t matter, urban industrial

society (people own smaller plots of land they should control all of it), current system is arbitrary

Policy against: Predictability, protects landowners

Trespasser: Enters or remains on the land without possessor’s consent or permission General Rule

o No duty of reasonable care regarding conditions of or activities on premises o Often, duty to refrain from intentional, willful, and wanton conduct

Exceptionso Discovered Trespassers – Possessor knows that T is on the property

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Duty to refrain from intentional, willful, wanton injury Some jurisdictions: Duty to use reasonable care, particularly where risk from

activity on, as opposed to conditions of, premises (Omission v. commission distinction)

o Frequent Trespassers: Example – person who regularly cuts across your lawn Jurisdiction “A”

Duty to warn of hidden dangers Duty of reasonable care to avoid harm through activities

Jurisdiction “B” Also a duty of reasonable care for activities AND conditions of premises

o Rationale: looks like tacit permission, seems like licensee o Child Trespassers

Restatement says liability if… (1) Possessor knows or should have known children are likely to trespass (2)

possessor knows or should have known that condition poses unreasonable risk of death or serious bodily injury (3) Children do not discover the condition or realize the risk of the condition (4) Utility of maintaining condition and burden of eliminating it are slight compared with the risk (5) possessor fails to exercise reasonable care to protect the children

Old View: Attractive nuisance Dangerous conditions entice children onto land

New View: Trespassing children are foreseeable, whether or not they are enticed Licensee: Has permission to enter the premises, but no material benefit

o Permission is implied from (1) possessor’s conduct and (2) from the condition of propertyo General Rule

No duty to (1) inspect premises (2) discover dangerous conditions (3) to make premises safe for the visit

NO duty to warn against dangers you reasonably should have known ofo Some jurisdictions:

o Duty to warn of known hidden dangers AND/OR duty to make safe known dangers

Carter v. Kinney: P came over to the D’s house for a Bible study group and slipped and on some ice; P claimed that D had a duty to warn him about the ice or remove it. Court finds that P was a licensee

o Other jurisdictions: duty of care regarding activities on, as opposed to conditions of, land Restatement: Possessor is liable for careless execution of activities, IF:

Should expect licensee will not discover or realize the danger AND licensee does not know or have reason to know of the activities and the risk involved

o Old view: Licensee = Trespasser No duty expect to refrain from intentional, willful, wanton conduct

o Modern view: Licensee is expected to accept premises as possessor maintains them May be entitled to be warned of or make safe known conditions

Invitee: On premises with possessor’s permission AND land is open to the public OR business reasons that concern possessor (some jurisdictions require a material benefit to the possessor)

Rule: Possessor owes an affirmative duty of reasonable care to discover damages AND to protect against dangers of which possessor is or should be aware of

o Courts are divided on whether there is a duty if the danger is open and obvious Is notice enough to make the land safe?

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Status can changeExample: A park open to the public (invitee) after it closes (trespasser)

Duties Among Family Members

Broadbent v. Broadbent: D is watching her own son swimming in the pool, but leaves to answer the phone. When she comes back he's got severe brain damage. Father sues as conservator of son.

Court finds that parental immunity does not bar the suit Established reasonable parent test

Parental Immunity – [NOT AN AFFIRMATIVE DEFENSE]

Old Rule: Duty to the world v. duty to the child; where there is duty to the entire world then the parent can be suedNew Rule: Essentially eliminates parental immunity. General parent standard (breach)

Broadbent concurrence: Sometimes it is replaced with a palpably reasonable standard o Allows for different views about how to raise a child

Maryland – TOTAL parental immunity Rationales

o Fraud. Depletes family resources, parents inheriting, interference with parental care, can’t be a common law standard for parenting,

California – NO parental immunity Rationales

o Broadbent majority: Reasons not as compelling as the need to protect children: injuries are more disruptive than lawsuits. This stuff is just about insurance: family resources are not at stake. Parental discretion is not absolute. Parents owe a parental duty to their children.

Wisconsin – No parental immunity EXCEPT Exercise of parental discretion regarding food and care Exercise of parental control

If a child can’t sue the parent than the 3rd party generally can’t sue the parentExample: Child drives motorcycle, can’t sue parent, child sues government for negligently maintaining roads, government CAN’T sue parents for letting the child drive the motorcycle

Liability insurance motivates the parties to sue, but insurance companies will start to exclude coverage for inter-family lawsuits

Duties Owed By The Government

It is much easier to sue the government if the actions are ministerialo Driving through the town

More difficult to sue if the government is engaged in discretionary behavioro Chasing a criminal

Exceptions of government immunity o Creation of a risk

Affirmatively engaging the public in helping them

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o Reliance NY rule for 911 calls – there must be reliance AND direct contact

o “Special relationship”o Beginning to aid (commission) / witnessing the harm (omission)

Rationale o Interfering with the separation of powers -- The court shouldn’t decide how other branches

of government allocate their resources

Riss v. City of New York: P asked on many occasions for police protection but they failed to protect her against her threatening lover

o Dissent: It’s not really interfering; the government can make their own choices. o BUT you would still have to show breach and that wouldn’t be there if the burden was too

high anyway

Generally, police pare immune UNLESS there is an understanding

Duties To Avoid Emotional Harm – negligent infliction of emotional distress Only use this if there IS NO PHYSICAL INJURY

Does the defendant have a duty to the plaintiff to prevent these kinds of emotional harms?

Generally, plaintiffs can recover from emotional distress if it is attached to a physical injury

Tough areas Emotional distress w/out physical harm or impact (direct victim) Some physical harm resulting from the emotional distress (direct victim) Plaintiff experiences emotional distress because they are witnessed to physical harm to a 3rd party

(indirect victim)

Discomfort with duty to avoid emotional harm Hard to measure harm– problem in assessing damages Worried about fraud Shouldn’t encourage wimps

Duty to Direct Victims

Old Rule: Impact requirement Policy reasons for old rule:

o Protects against fraudo Avoids flood of litigationo Gives D notice – foreseeability of P

Policy reasons against it:o Role of conjunctive physical injury is arbitrary o Fraud is not a huge issueo Eliminating the rule would not encourage a flood of litigation o Arbitrary difference between harm to mind and body

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Falzone v. Busch: Falzone was standing in a field next to a roadway when D’s car struck and injured him; wife (P) was in a parked car and thoughts she would be hit as well so she became ill and required medical attention. Court allows P to recover damages.

New Rule:

Elements of recovery based on emotional distress (zone of danger approach) Plaintiff’s reasonable fear for an actual immediate substantial physical injury w/ severe

emotional distress Some jurisdictions say -- physical manifestation of the emotional injury Other jurisdictions – permanent physical injury Some division on immediacy

o Reasons for reasonable fear standard (don’t want unlimited number of plaintiffs) Possible eggshell psyche plaintiff

Emotional Eggshell can’t recover Concerns about fraud Reasonable notice/foreseeability by defendant

Deterrence; so potential D’s can know about potential P’s they could harm

Survival actions –possible depending on the jurisdiction Recovery for the pain and suffering from the period of time between the accident and the death Estate would try to recover for survivors of the decedent

Gammon v. Osteopathic Hospital of Maine, Inc.: P’s father dies in D hospital, and upon receiving a bag of his father’s “personal effects” there was a dismembered leg that was not his father’s. P began having nightmares, and his relationship with his wife and child suffered. Court rules in favor of P.

Elements for recovery for emotional distresso Highly foreseeable emotional distress that would affect an ordinary person

P not an eggshell in psyche – heightened sensitivity due to circumstances, a reasonable person could have reacted that way; highly foreseeable given the circumstances

o Severe emotional distress Not necessarily physical symptoms Distress needs to have a longer duration than a single instance

o Special relationship Not a true special relationship – but there is arguably a special relationship between

hospital and patient’s son

Falzone v. Gammon Gammon treats physical = emotional ; focuses on foreseeability

Duty to Indirect Victims Do entire negligence test for direct victim And then you do Portee test v. Zone of Danger

Bystander claims –There is a duty that was breached that caused damages to a 3rd party, but P wants to recover as a witness to that.

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Zone of Danger Test You are not extending the pool of plaintiffs; only the damages are being expanded A person who would already have a claim under direct emotional distress can now also claim

damages under indirect emotional distress of watching the harm happen to someone else

Portee Test

Portee v. Jaffee: Mother sued for her emotional distress caused by watching child dying in elevator. Mother suffers severe emotional distress, some physical symptoms. Court found that the apartment building owed a duty to the mother in these circumstances.

Elements o Contemporaneous observation – she saw him die o At the scene of proximity (but this might not be required)o Serious injury or death to the 3rd partyo Interfamilial or marital relationship

Courts are divided about co-habitants warrant recoveryo P must suffer severe emotional distress o Cannot be based on a mistaken belief

Possible suits in Portee: Negligence: injury, distress, pain and suffering of child Wrongful death: emotional distress to relatives of child lost (lost wages if adult) Emotional distress of mother: watching her son die in a horrific manner

Loss of consortium Today it is a viable claim for both husband and wife Parents can find loss of consortium for their child SOME jurisdictions allow children to seek loss of consortium for harm done to parents

Attorney Mal-Practice: Difficult to recover emotional distress , prove negligence, quantify recovery

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2) Breach – what is the standard of care? acting unreasonably; little “n” negligence

Historical Development of Fault

Writs (judicial command) required to bring D into court Writ of Trespass

o Purpose evolved from punishment to offering a remedy for the injuredo Strict Liability -- no need to show fault or blame worthiness

D’s voluntary conduct caused a (1) forcible, (2) direct, (3) and immediate invasion of P’s person or property

o Many harms without remedies Writ of Tresspass on the Case

o Remedy for obvious wrongful conduct that caused injures that were NOT forcible, direct, and immediate

o Must show actual damages (source of modern law requirement of damages)o Required casual relation between D’s actions and P’s harm

Theory: Strict Liability was the norm before the industrial revolution

Fault principle likely developed because… As society became more complex, more unintentional torts need for negligence OR negligence was a capitalist protection device

o Strict liability made industry and innovation too costlyo Negligence encouraged innovation

Brown v. Kendall: D accidentally injures P while separating his dog from P’s dog. Court required. The court ruled that P has the burden of proof to show that the defendant did not use ordinary care under the circumstances. D is not liable in trespass without showing negligence/fault.

Factors and Equations to Assess Reasonableness

Adams v. Bullock: D owns a trolley line, 12 year old P is walking on a bridge and swings a wire off the edge, the 8 foot wire hits the trolley wire and the boy is shocked and burnt. P claims D was unreasonable, D claims that he took due care and the accident was unforeseeable

Factors: Danger (magnitude) Foreseeability (determined by reasonable, prudent foresight) Feasibility Probability of harm Value of activity (social benefit/ cost to continue activity) Custom or industry practice Lawful action

United States v. Carroll Towing Co: Barge was unmanned for 21 hours, broke free and hit a tanker causing it to sink. Hand rule that given the feasibility of inspecting the barge at least once during daylight hours and the high cost of not manning the barge, bargee’s conduct was negligent

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Formula: B < P x L negligent Burden < probability x the magnitude of the harm Rationale: Negligence law a means of regulating conduct to promote efficiency; captures an

intuitive way of assessing risk; reflects the golden rule Policy problem: How do we determine the magnitude of harm and the probability in situations

that hare highly speculative to a normal person; juries are rarely instructed to assess reasonableness in terms of the equation, presumes a uniform assessment of cost-benefit analysis and gives no room for variations in taste for risk

Concept of Reasonable Person

Objective Standard: We ask whether the risk was foreseeable to a reasonable person and if D did all a reasonable person could reasonably do to prevent harm

To set a minimum standard of behavior for the general welfare of the community Deterrence Administrative Ease Compensation Fairness to victim

Exceptions to the reasonable-person standard of care: Physical disabilities (distinct/apparent)

o Standard of reasonable person with the disability Rationale: Victims on notice of the risks

Childreno Normally held to standard of reasonable child of similar age, intelligence, and experienceo Especially when engaged in children’s activities

Rationale: Can’t presume that children have the capacity for reasonableness o Some states

<6-7: conclusive presumption they can’t comprehend risk 7-14: rebuttable presumption they can’t comprehend risks

Rationale: presumptions about capacity to appreciate reasonable calculuso Exceptions: reasonable adult standard of care when engaging in adult activities

Rationale: P’s ability to defend against and expect the risk Emergencies

o Held to standard of reasonable person confronted with the emergency Rationale: Can’t think with same reason and care in an emergency

o Some states reject the emergency doctrineo Rationale: Fact of emergency considered in the “circumstances”

Common Carrierso Some jurisdictions say heightened standard o Other jurisdictions say ordinary standard of care

No exceptions for… Mental disability (total insanity is sometimes an exception)

o Rationale: Problems in line drawing, fraud, victim’s ability to protect themselves Gender

o Rationale: Could lead to marginalization, reasonableness doesn’t differ, status quo Elderly

o Expectation of capacity in most; have learned concept of reasonableness

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Bethel v. New York City Transit Authority: P was hurt on a bus when the wheelchair accessible seat collapsed underneath him. The case overrules the extraordinary standard of care for common carriers. Common carriers should be held to a reasonable care standard

Why were common carriers held to a higher standard of care?o Special relationship: high risk, people dependent on the mass transit

Bethel Standard: If something is really risky activity that fits in with the B exception; no need for heightened standard with Learnedhand equation

Roll of Judge and Jury in Assessing Negligence

Andrews v. United Airlines, Inc.: Action by P regarding a fallen briefcase that injured P at the end of a flight. D moved for summary judgment, which court denied. The court found that a reasonable jury could find that United was negligent or not negligent based on the facts. United, being a common carrier, had a “heightened standard of care.” Since reasonable minds could see the case falling either way, the court ruled that summary judgment was not appropriate.

The Court here is trying to use a heightened standard for the common carrier even though NY had already eliminate that standard

If a heightened standard of care is applied it is very unlikely that the jury would find for D

Rationale for judges deciding the standard of care: Has experience and knowledge about tort law / nuanced understanding More objective Understands the goals and policies of tort law Less influenced by extraneous information

Rationale for jury deciding the standard of care: Less bias because it is a collective view Circumstances vary More in touch with the common man More individualized Less paternalistic

In extreme (obvious) cases negligence is a matter of law and decided by judges, but most often circumstances vary and juries decide

Roll of Custom Custom isn’t conclusive, it is evidence

Trimarco v. Klein: P was injured when he fell through a shower door that was built with thin glass, as opposed to safety glass, which was defined as the industry standard. Court found that custom and usage may be used to help prove that one charged with negligence has fallen below the required standard of due care

Role of custom – custom isn’t conclusive, it is evidence we need to know what the custom is, we don’t want the industry to set the standard

It may show/be evidence of the standard of care Helps show feasibility – if enough people are doing it, it can be done

o Feasible for the industry NOT for the specific actor

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o Capacity to conform to customs will only be considered when there are few others to look to as examples in a fledging industry

Shows foreseeability – if the custom was about preventing THIS KIND of danger If an industry has a single custom, the court may be weary of P’s assertion that there are safer

ways P can show a feasible alternative, but if it is not used anywhere it is reasonable for D to be

unaware of the possibility Existence of a costly custom may make the court weary of the societal impact if a jury or court

determines the custom to be unreasonable

Roll of Statutes First question: Is that statute meant to prevent harms? Second question: What is the type of harm? Who wants a narrow interpretation? Who wants a

broad interpretation? Third question: Was it trying to protect this type of plaintiff?

Sometimes there will be statutes that set a standard of care for tort purposes; issues arise in cases with statutes that DO NOT address tort law

Martin v. Herzog: P was killed in an accident between his buggy and D’s car. P was driving without lights and D was driving on the wrong side of the road. Both P and D violated a statute

D waned the absence of lights on P’s buggy to be seen as a prima facie evidence of contributory negligence

Violating the statute is some evidence of negligence but does not prove negligence on its own

Impson v. Structural Metals: D’s truck attempted to pass the car within a prohibited distance of a highway intersection. The car turned left into the intersection and was struck by D, who was attempting to pass the car in the left hand lane. Court ruled that the violation was unexcused. P was entitled to judgment

An excused violation of a legislative enactment is not negligence: Violation is reasonable b/c of the actor’s incapacity He neither knew nor should know of the occasion for compliance

o Lack of knowledge about facts NOT lack of knowledge about law Unable after reasonable diligence or case to comply Confronted by an emergency not due to his own misconduct Compliance would involve a greater risk of harm to the actor or to others

Approaches: (don’t spend a lot of time on this, just use approach 1 with Impson factors)

Minority 1 (rare) approach: Negligence per se If you violate the statute you found negligent

Minority 2: Some evidence of negligence Approach 1: Negligence per se w/ excuse

Judge decides what kinds of excuses are allowed, the jury decides if the facts satisfy that excuseApproach 2: Rebuttable presumption

We presume negligence until proved otherwise Jury decides

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Violation of licensing statue Example driver’s license: Not really relevant of whether you drove with due care Some jurisdictions with things like medical licenses as evidence of negligence

o But many jurisdictions would treat it like driver’s license

If the statute requires what is below the required standard of care then compliance is helpful to the defendant but is not determinative

Proving Negligence

Circumstantial Evidence

Negri v. Stop & Shop: P slipped and hit her head on the floor in D’s grocery store. There were broken jars of “dirty and messy” baby food nearby. A witness had not heard any jars breaking in that area for approximately twenty minutes before the accident and the aisle had not been cleaned for one or two hours.

Court ruled that the circumstantial evidence permitted the inference that D had constructive notice; enough to withstand summary judgment

Gordon v. American Museum of Natural History: P is going upstairs to D’s museum, trips on a piece of paper.

Court ruled that a finding of constructive notice requires that the defect be known or apparent for enough time that we can presume D did or should have discovered it.

P did not show that D knew about the problem finding for D

Res Ipsa Loquitur -- The thing speaks for itself

Circumstantial Evidence of Negligence Way to prove negligence even when P can’t show exactly what happened Fault still needs to be shown, but without evidence of specific acts

Elements Type of accident that would not ordinarily occur without negligence

o Accidents that are more likely than not the result of negligence Examples: freakish and improbable accidents (elevator falling several stories,

handrail stops, while escalator continues, soda bottle explodes) Analysis can change with advances in technology

Instrumentality within D’s exclusive controlo Negligence is more likely than not, and the defendant is the source of negligenceo May be enough to show that D has power or right of control even if not actual control

Prosser – show that D is more likely than not responsible Restatement – N is in the scope of D’s duty to P

Some jurisdictionso P must not have contributed to injury through voluntary acts on her own

Rationale: to link the source of negligence to D, and nobody else But we no longer use contributory negligence

Some jurisdictions – evidence must be more accessible to D than to Po Most courts think this is a PERSUASIVE not indispensable factor

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o Rationale: If P doesn’t have access to information, why should he be out of luck, compensation

Ascertain weight of the evidence Judge decides whether reasonable jurors could find each element Jury decides if each element has been met

o Most jurisdictions then allows jury to infer D’s negligence o If all elements are satisfied the jury still NEEDS NOT find negligence

Majority Rule: Permissible Inference o Usually prevents dismissal of claim – gets to juryo Form of circumstantial evidenceo D need not produce evidence to avoid losingo P still has the burden of persuasion o Directed verdict for P possible ONLY IF no reasonable juror could find for D

Minority Rule: Rebuttable Presumptiono D has the burden of producing evidence to avoid losing

Without rebuttal, P has established negligence as a mater of law In ALL JURISDICTIONS – res ipsa lightens P’s burden

o No need to offer direct evidence; can recover based on inference

D’s response to Res Ipsa cases: Eliminates one necessary element Demonstrate that..

o Accident is sort that commonly occurs with out negligenceo D has no control over the instrumentalityo P’s voluntary acts contribute to the harm

If P has evidence of a specific act of negligence… Some disagreement

o Majority: P can plead or prove evidence of negligence and still rely on Res Ipsa P can use res ipsa if..

The evidence tends to show specific acts that don’t offer complete explanation of accident

And specific facts are consistent with the inference o Minority: When there is any direct evidence concerning cause of an accident Res Ipsa is

inapplicable

Byrne v. Boadle: P was struck by a barrel falling from a window as he walked past D’s flour shop and sustained serious personal injuries.

Court ruled that P does not need to present direct evidence of negligence when the mere manner and facts of the accident show the incident could not have occurred without negligence.

Hotel owner can’t be responsible for acts of the patrons

[Hotel Cases] You need to not know what the act was but you need to be able identify a specific defendant(s) You shouldn’t have specific things about D’s activities.

McDougald v. Perry: P injured when the spare tire on D’s truck falls out of its carrier and collides w/ P’s windshield. Chain had a loose link that lead to the release of the tire, but D claimed to have inspected it

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P is not required to eliminate w/ certainty all other possible causes or inferences Torts law standard: it is more likely than not, preponderance of the evidence

Ybarra v. Spangard: P diagnosed with appendicitis; awakes after surgery with sharp pain between neck and right shoulder; develops muscle atrophy and paralysis. P sues physicians and nurses and hospital

Stretch of Res Ipsa: No real legal basis for assuming all Ds are one entityo Res Ipsa + alternative liability o We don’t know what the instrumentality was; we don’t know who caused ito Ybarra only makes sense if the doctors are treated as one unit

Most jurisdictions reject Ybarra

Special Case of Medical Malpractice

Standard of Care Custom sets the standard of care

o There can be different ways to do something

Sheeley v. Memorial Hosptial: P gives birth and receives episiotomy, develops severe complications; P sought to introduce expert witness testimony, D objected on the ground that expert witness needed to be in the same field as D; Court found in P’s favor.

What would a reasonable doctor/medical professional do?o National custom rather than local custom

Majority: Traditional locality and specialty rules don’t apply since medical training and certification is now nationalized

Rationale: Local rule legitimizes low standards of care; national standard better reflects modern realities of medical profession

Minority: Local rules still partially define custom Rational: Subsidizing doctors in rural localities who might not otherwise

have worked there Juries role: To decide which expert to believe is articulating the actual standard of care

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Informed Consent Goal is personal autonomy

Matthies v. Mastromonaco: P broker her right hip; D prescribes here bed rest rather than surgery. P sues D claiming that bed rest was inappropriate and she would not have consented if he had told her of the probable effects of the treatment on her life

Court found that a doctor must obtain a patient’s consent before implementing a nonsurgical course of treatment

Duty: Omission, but there is a special relationship Breach:

o Risks Slight majority: Reasonable doctor standard (will need expert testimony)

Rationale: Less burden on the physician, notice, no problems with patient’s hindsight, Dr. knows what the options are

Slight minority: Reasonable patient standard What would a reasonable patient find material? Rationale: Patient- centric; personal autonomy

NO JURISDICTION has a subjective patient standard o Medical alternative

Medically reasonable alternative and viable options o Exceptions to informed consent

Emergency Waiver

Informed consent claim DOES NOT need to prove negligence in doing the medical procedure, just in failing to inform the patient (different from medical malpractice)

Causation:o Failure to get the information led to a different decision that they would’ve made

Majority: Objective reasonable patient Rational: Subjective test allows for liars & 20/20 hindsight

Minority: Subjective standard for that patient Rational:

Damages:o There has to actually be physical damages

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3) Causation Must show actual cause and proximate cause The cause does not have to be the only cause

Cause In Fact

Actual cause o What happenedo Who did it

But-for Causation

Stacy v. Knickerbocker: P’s horses run onto D’s property, go onto thin ice and drown. P sued D for negligence alleging that if D had built a fence around the ice as required by statute, the horses wouldn’t have drowned

Court ruled there was no but-for causation b/c horses probably would’ve jumped over the 4 foot fence required by statute.

Lack of Particularistic Evidence

Stubbs v. City of Rochester: P claims that he got typhoid because drinkable water became contaminated Court says you need a preponderance of the evidence that D caused harm Court let the case go forward

o Some jurisdiction would want more particularistic evidence

Problems with Reasonable Likelihood Standard: Over compensation or over deterrence: If 75% chance that D caused harm to 100 Ps

o For each P it is more likely than not that D caused harmo D will compensate 100 Ps, but only caused harm to 75

Ps are overcompensated D is over-deterred – must pay for more harm than they caused

Under compensation or under deterrence o If 25 % chance that D caused harm to 100 Ps

Than for each P it is more likely than not that D did NOT cause the harm D won’t need to compensate anyone

Ps are undercompensated D is under deterred – won’t pay anything for the harm to 25 people

Solution: Alternative Approach of Proportional Recovery (few jurisidcitons) D must pay damages proportional to the percentage chance they caused injury

o 75% chance that D caused harm to 100 Ps, 100 Ps recover 75% of damages Optimal deterrence Some Ps are over compensated; some Ps are undercompensated

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Loss of Chance Courts generally limit it to health care context Courts are divided on allowing loss of chance damages

Matsuyama v Birnhbaum: Cancer undiagnosed, went to the doctor multiple times but doctor didn’t order additional test. Eventually diagnosed with gastric cancer but he had lost his chance at survival. Can’t establish but for causation

D pays P the percentage that P would have not suffered the injury had D treated P with the proper care

For a group of patients:o If loss of chance is over 50% P gets full damages

If loss of chance is 50% or less …o What would your chance of survival be without negligence?

Example: 90%o What is your chance of survival with the negligence?

Example: 50%o What is P going to recover?

Example: 40% of loss of chance

Policy against loss of chance Statistics are tricky – population based stats aren’t individualistic Disincentive to trick sick patients

Alternative Liability

Summers v. Tice: Two hunters both negligently shot at the plaintiff; all Ds are negligent but we don’t know who caused the harm

Courts allow for a rebuttable presumption for causation

Example: Two separate fires come together to destroy a 3rd house. Only one of the fires was started negligently

Courts are divided as to whether the negligent actor should be liable o Plaintiff: D is a substantial factor; innocent P deserves full compensationo Defendant: Over-burdens D; can’t share the burden with other Ds

Multiple Defendants and Joint and Several Liability

Joint and Several Liability Each D is liable for the full amount of P’s damages Ds may be sued singly or with the other tortfeasors

o P is only entitled to full damages, no more If one D pays, P cannot sue another If P gets judgment against D1, but D1 can’t pay P can sue D2

Only applies when there is a single indivisible injury

Rationale for JSL: Guarantees full compensation for wronged P; Single indivisible injury as a result of Ds’ negligence;

Could not apportion responsibility

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Traditional JSL cases Concert action

o Multiple Ds ac in concert regarding tortious activity Examples: drag racing, planned battery

Single indivisible injuryo Multiple Ds contribute to single harm (which CANNOT be causally apportioned among

them) o Can occur concurrently or successively

Concurrent Example: 2 Ds negligently set separate firs that merge and burn down P’s house

No but-for causation Basis of recovery: Ds’ negligence was a substantial factor Most courts would hold Ds JSL

Successive Example: D1 negligently causes P to fall in a hole; D2 negligently drops a stone of Ps head

Each d contributed to the harm; successively Alternative liability

o More than one D is negligent, but only one caused the harm; we don’t know who Example: Summers v. Tic

Contribution D1 can seek contribution from D2

o Can implead D2 in original suit o OR can bring separate action against D2

D1 must show.. That other torfeasors were liable That D1 was held liable The D1 paid more than his pro rata share

Exception: Uniform Act prohibits contribution for intentional torts (3rd restatement allows it)

Contribution and Insolvency Solvent tortfeasors divide full amount amongst themselves

Settlement and Release of Claims P can settle with D1 for less than full amount of damages and still go after other tortfeasors

o Rationale: To encourage settlements, they are separate claims Uniform act bars D2 from seeking contribution from the settling tortfeasors (some states allow it)

o Rationale: Settlement should end litigation, want to encourage settlement, D1 could settle for more than pro rata share

o Provides full compensation to P

Several Liability Multiple tortfeasors cause harm NOT jointly

o Recovery: P can ONLY sue group of tortfeasors Ds and not individual Ds and cannot demand full damages from one D but only a portion of the damages from another

o If D1 doesn’t pay his allocated portion, D2 is not effected

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Market Share

Applies to funjable products Manufacturers are only liable for the % they had in the national market

o Policy rationale for using national market: Administrative ease

Hymowitz v. Eli Lilly & Co: Mothers took drugs and later daughters got vaginal cancer; problems of the long time span between exposure and the harm; drug had over 300 manufacturers

Pool of defendants is too large for alternative liability to apply; no concert in action; no but-for causation

Majority (also a majority amongst courts): Several liabilityo Rationale: Optimal Deterrenceo Exculpate No ; Inculpate: Yeso Encourages P to bring in as many Ds as possible

Better for D Dissent: JSL

o Rationale: Optimal Compensation Exculpate; Yes ; Inculpate; yes

o P only needs to go after one Do Worse for D

Proximate Cause Legal cause An attempt to limit liability

o Even if D breached a duty and caused harm to P there are some situations where we will NOT hold D liable

o Liability within reason of negligenceo Proper allocation of losseso Liability in proportion to wrongdoing

Typically a jury question; debated how judges should instruct that question

Foreseeable that there will be harm Foreseeable type of harm Close in time and space Intervening causes?

o Are they foreseeable intervening causes?

1. Unexpected Harm

Eggshell Plaintiff (physical)

D takes P as he finds himo D is liable for the full extent of the harm even though this person happens to be more

vulnerable than the average P Rationale: P recovers fully, balances out (some people are tougher than others); easy to prove that

an eggshell did have the previous condition

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Benn v. Thomas: D rear ended P’s vehicle. Only injured P’s foot BUT P’s heart problem was aggravated and he died.

Court rules that there was proximate cause

Directness & Foreseeability

Minority View: D is liable for all direct consequences The only thing that needs to be foreseeable is that there will be harm; it doesn’t matter what type

of harm you foresee

In Re Polemis: Loading a ship full of benzene and a board fell negligently and the boat went up in flames D will be liable for all direct consequences Minority approach: Foreseeability establishes duty

Scope of the Risk Approach: D is responsible only for the type of harm that is foreseeable

Wagonmound: Ds negligently causes oil to spill which does minimal damages to P’s wharf. The oil subsequently causes a fire when molten metal drops in to the water and ignited cotton waste floating in the port

It has to be foreseeable that the type of harm will have occurred The burning was not foreseeable; no proximate cause

2. Superseding Causes

Doe v. Manheimer: P raped on property owned by D. Overgrown bushes and tall grass shielded the area from view in a high crime area; P’s expert claimed that the physical configuration of the specific site increased the risk of violent crime

P could not establish proximate cause as a matter of law D’s negligence had to have been a substantial factor in causing the rape The rape had to be within the scope of the risk of D’s negligence

3rd Restatement: When you have an intentional actor it can cut off liability unless there is a foreseeable intervening cause

o It isn’t that the intervening actor is so egregious, it is that it so unforeseeable

3. Unexpected Victim

Palsgraf v. Long Island Railroad Co.: P was standing on platform of D’s railway station. A guard pushed a passenger onto an already moving train and dislodged a package which contained fireworks, which fell and exploded, knocking down an elderly woman at the other end of the platform

Test for proximate cause more lenient than Polemis; BUT Cardoza finds no duty Dissent: There is a duty to the world at large BUT the issue is proximate cause

o 7 factor test Foreseeability

Type of harm or risk Consequences of harm General nature of the harm that actually took place

Directness Time and space between D’s conduct and harm

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Substantial contributing factor to the harm Not too many intervening causes

o Rationale/Policy Considerations: Fairness, blameworthiness, deterrence (can’t deter unforeseeable consequences), ability of D to bear loss

4) Defenses

The Plaintiff’s Fault

Contributory Negligence Rejected by most jurisdictions D had burden of proof Complete bar to P’s recovery Standard of conduct: Reasonable person of ordinary prudence in like circumstance

Policy against: Contrary to goal of compensating injured P’sPolicy in favor:

Avoids necessity of apportioning damages for a single indivisible injury among multiple causes Avoids comparison of incommensurables Consistent with individualism of common law

Attempts to limit its harshness: Last clear chance doctrine:

o Allows P whose negligence placed him in a position from which he is powerless to extricate himself to recover for his injuries when:

D discovered the danger D still had time to avoid the harm D fails to exercise reasonable care to do so

Modified Comparative Negligence Combines contributory and comparative N

o In some cases P gets reduced damages; in some cases P is barred from recovery Complications when more than one D is involved

o Some jurisdictions compare P’s fault with fault of each Do Others compare P’s fault with aggregate fault of D’s

Most states use this approach P has a better chance of having less fault than the aggregate of Ds

Two approaches Not-as-great-as

o P may recover reduced damages if P’s fault is < D’s Not-greater-than

o P may recover reduced damages if P’s fault is ≤ D’s

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Pure Comparative Negligence *** USE THIS FOR ESSAY ***

Most judicially adopted comparative negligence systems Uniform Comparative Fault Act

P recovery reduced in proportion to fault; regardless of whether P is more or less negligent than D Sometimes causation is considered

o Uniform Comparative Fault Act, directs attention to The nature of the conduct of each party at fault and The extent of the causal relationship between the conduct and the damages claimed

Multiple Defendants

Three approacheso 1) P’s negligence can only be compared with the defendants before the courto 2) The jury considers the relative fault of all actors, whether before the court or noto 3) Absent actors must be named as parties if they want the absentee’s conduct considered

Most jurisdictions retain joint and several liability among multiple Dso Traditional rule: contribution on a pro rata basis o Modern rule: Some use the traditional way; but some apportion based on respective fault

Some hold D’s severally liable o Amount for which D is liable depends on jurisdiction

Pro rata or degree of fault

When D’s fault is reckless or intentional: UCFA excludes intentional torts New Restatement allows apportionment to intentional tortfeasors

When P is negligent and D is reckless Traditionally: Contributory negligence didn’t apply (claim wasn’t barred) Most states with pure comparative negligence compare conduct

o Comparative negligence makes Ps worse off than old rule

When P is reckless and D is negligence Traditional contributory negligence rules barred recovery Modified comparative negligence states, P loses

o P’s fault is effectively greater than D’s In pure comparative negligence state, P gets reduced damages

When P’s conduct is criminal varies Some jurisdictions prohibit any recovery Others allow reduced damages

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Assumption of Risk Traditionally barred recovery Knowingly and voluntarily accepted the risk

Express Agreements

Hanks v. Power Ridge Restaurant: P injured while snow-tubing at D’s facility. P signed an agreement before snow-tubing which released D of any negligence

Court found in favor of P Court examines the Tunkle factors

o Suitable for public regulationo Activity of great importance or essentialo Open to publico Unequal bargaining power o Standard adhesion of contracto Under D’s control

Minority approach: most courts will uphold recreational waivers o Most jurisdictions will not uphold waivers for anything that is worse than negligence

(recklessness, gross negligence, intentional torts)

Implied Assumption of Risk Subjective test – did P know the risks and voluntarily assume the risk?

Primary Assumption of Risk Risk is inherent in the activity

o Rationale: We want to encourage participation, too much litigation, too burdensome, hard to assess

o Example: Sports Requirements for implied assumption of risk defense

o Aware of the dangero Accept and voluntarily engaged with the risk

Murphy v. Amusement Park: P injured on D’s amusement park ride. P sued Defendant for negligence. Cardoza says that the hazard is foreseen and invited

Secondary Assumption of Risk Risk is caused by D’s negligence Requirements for implied assumption of risk defense

o P voluntarily and knowingly assumed the risko P was unreasonable

Davenport v. Cotton Hope Plantation Horizontal Property Regime: A light is out in the middle stairway of the condo, in spite of repeated complaints. Davenport is walking there one night, in spite of the fact that he was the complainer. Trips and falls.

Just because P assumes the risk does not mean that P acted unreasonably o Assumption of risk is subjectiveo Comparative negligence is objective

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[Vicarious Liability ]

Respondeat Superior An employer is vicariously liable for negligence of an employee while acting in the scope of

employer’s employment Rationale For: Fairness, employers will be more careful about who they hire, encourages

employers to supervise and hire more responsibly, employers better able to compensate P Rationale Against: Employer is not at fault ; shouldn’t have to pay

Scope of Employment test Elements

o Conduct of the general kind they were hired foro Time and Space of employmento Conduct motivated by purpose of serving employer

Christensen v. Swenson: Security guard trip to get lunch within the area served the “see and be seen” aspect of her job; its important that security guard takes breaks b/c otherwise, she wont be able to concentrate on her job.

Hospital Employees and Independent Contractors

Roessler v. Novak:  P evaluated by a surgeon Hospital. Surgery complications, P hospitalized for 2 ½ months. D alleged that Doctor, the radiologist, misinterpreted the scans taken in the radiology department.

Apparent Authority Test Respondeat Superior for Independent Contractor if…

o Representation of purported principle (represented as a hospital agent)o Reliance by P o Change in position by P due to the reliance

Non-delegable duty: When P has no other reasonable option, hospital cannot delegate the duty of care to independent contractors

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[Intentional Torts]

Intent Principle

Actual intent Legal or constructive intent

o Knowing with substantial certainty (technically a subjective test) o Only relevant when there is no actual intent

Must act with the purpose of producing the consequences, or those consequences are substantially likely

Assault and Battery

Elements of battery Intentional infliction of Harmful (or offensive) bodily conduct upon another

o Can be with an object o Some jurisdictions: un-consented

Has the lack of consent been made clear Causation

Goals: Protecting personal security, dignity, personal space/ boundaries

Garratt v. Daily: 5 year old D pulls chair out from under P when she was about to sit, she falls and breaks her hip

Transferred Intent Intent to cause apprehension that in fact causes bodily conduct

o Transfer from assault to battery Intent can be transferred between parties

o Rationale: Goal is to deter bad behavior Can do it in assault, battery, and false imprisonment

Wishnatsky v. Huey: D was an assistant attorney general having a conversation; without prior information or knocking, P enters office. D pushes the door shut and pushes P back into the hall. P sues of offensive contact

Eggshells are not allowed to recover o Fraud, no notice, deterrence, no intent

What about known eggshells? o There is notice and intent

Majority: Retain objective test; no liability Minority: Treat known eggshells differently

Not when touching is incidental

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Elements for Assault Reasonable apprehension

o Both a subjective and objective test It has to be reasonable And you have to have actually felt the apprehension

o Conditional threat are recognized as assaulto Future threats are NOT recognized as assault o Majority: Mere words may be enough in the right context

Imminent Harmo Eggshells are not allowed to recover

Fraud, no notice, deterrence, no intent o What about known eggshells?

There is notice and intent Majority: Retain objective test; no liability Minority: Treat known eggshells differently

Causation

Picard v. Dailey: P took picture of D (for the news) and D lunged at her, finger pointed, and spun her around which hurt her back

Assault before the contact happened; batter after

False Imprisonment

Elements of False Imprisonment Unlawful restraint (anyone of these is enough)

o Actual physical barriero Apparent physical barrier (words and gestures could be enough)o Threat of physical harmo Acting under apparent authority (pretending you are police)o Taking your stuff so you can’t leave… (like a purse)o Overpowering physical forceo Duress

Intent (legal or actual) Causation

o But for AND proximate cause P is aware or harmed by the confinement

Lopez v. Winchell’s Donut House: P worked for D, brought into a room, door closed and locked from inside, P accused of stealing; D made no threats; P feared for her safety; got up and left the room when she began to feel ill; brought action for false imprisonment

Court ruled for D Threat of losing job doesn’t count

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Intentional Infliction of Emotional Distress

Elements Intentional or reckless conduct

o Knew or should have known that emotional distress likely would result; foreseeable Outrageous or intolerable (members of the community would say “outrageous!”)

o One time name calling is not enougho Repetition helps o No recovery for unknown eggshells o Seems more outrageous for known eggshells

Causation o But-for and proximate cause

Severe emotional distress o Some jurisdictions require physical symptoms

Womack v. Eldridge: D pretended to be a newspaper employee took P’s photo under false pretenses, he is involved in a child molestation prosecution case that he has nothing to do with him

Defenses and Privileges Most jurisdictions don’t care if it is a child; they just have to know with substantial certainty

Consent Must be capacity to use as an affirmative defense

o NO duress, fraud, or misunderstanding Children can give their consent to certain things

Hart v. Geysel: P was killed in an illegal prize fight against D. No anger or any malicious intent to injure and they both consented to the fight. P sues D for wrongful death

Anger fights Majority: Consent is NOT a defense they both have the intent to harm the other

o Rationale: Deterring D from throwing punches Implied assumption of risk – you are consenting to negligence NOT to intentional

torts Minority: Consent = defense

o Rationale: Deter plaintiff; autonomy argument

Prize fight – it is ALWAYS a defense

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Self-Defense

Elements Reasonable belief

o Under the circumstances known to D o Honest beliefo Subjective/objective

Belief has to be reasonable (objective) You must actually have that belief (subjective)

o Rationale: no time to make sure you are right Reasonable means

o Proportionality: the least force necessary or like force Anything excessive are damages (but will be reduced)

Imminent o No time to talk to police

Limits Retaliation not permitted 3rd Person defense (reasonable belief) IF mistaken reasonable belief…

o Majority: Same as if you defend yourselfo Minority: Only if the 3rd person had the privilege

Duty to retreat – never in your own home; NEVER for non-deadly force Duty to retreat for deadly force

o Majority: No duty to retreat (personal autonomy)o Minority: Duty to retreat (Restatement: only when you can safely and reasonably)

Rationale: Decreased violence

Courvoisier v. Raymond: D jewelry store owner who lived on 2nd floor of store; intruders tried to enter his store and D chased them outside; intruders threw sticks and rocks; as P (police officer) approached D shot, believed he was threatening and a rioter,

Intended to cause unwanted contact but is not liable because of the legal justification Jury should have been instructed whether he had a reasonable belief

Defense of Property

Elements Reasonable belief that force is necessary

o Telling them to leave is a starting point Reasonable means of force

o Least force necessary (VERY) Rarely allowed to kill in defense of property

o General rule: you can meet deadly force with deadly force

Barbed wire v. Spring gun Apparent AND notice; NOT deadly

Katko v. Briney: P files an action for damages from spring shotgun set up by D in a bedroom of their abandoned farmhouse that P had been looting

Warning is important to figure out intent, no warning in this case

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Necessity Reasonable belief, Reasonable means

o Risk averted must be greater than the risk imposed by D o Imminent harm

Necessity Defense as used by a trespasser o Expelling D from Prop is not privileged when D is there out of necessity. If LL feels its

unsafe, then LL has privilege to expel.o Doesn’t excuse tort of destroying Landowner’s property

Trespassor still has debt to LL if Trespassor destroy LL’s propo Intruder has duty to let LL know why his trespass is privileged.

Otherwise, it is presumed that intrusion isn’t privileged and LL has right to expel intruder from LL’s prop

Vincent v. Lake Erie Transportation Co.: D keeps boat at P’s dock and storm hits and D cant leave dock. This eventually ruins the dock. Though D is not condemned for his act, D still should repay P for using P’s prop and destroying it.

Court compared D to starving man on ship who eats Ps food to save his life but after, must still pay P back

Rationale: incentives the least amount of harm Private necessity to protect yourself- incomplete defense

NOT liable for trespass Liable for damages

Private necessity to protect owner’s interest – complete defense Public necessity – complete defense

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[Strict Liability]

Special cases of strict liability Trespassory invasion of land Wild animals

o Ask if it is abnormal to the community Most jurisdictions would not find strict liability for circuses and zoos, but would find

strict liability for lone tiger keeper Abnormally dangerous animals

o Domestic animal with a known propensity to be vicious Ultra hazardous/ abnormally dangerous

Ultra-Hazardous Activities If B > PL we look at whose activities we want to change; if it is the defendant than we hold them

strictly liable

Rylands v. Fletcher: D introduced a large body of water onto his land that escaped unexpectedly and injured his neighbor’s property. D had not been negligent .

One who brings onto his land anything likely to do mischief if it escapes, must keep it in at his peril and if he doesn’t his prima facie responsible for all the damages which is the natural consequence of its escape

Sullivan v. Dunham: Some guys are blasting a tree. A piece of wood flies onto a highway and kills the plaintiff's decedent. The blasters were non-negligent

Strict liability

Indiana Harbor Belt RR Co.: D manufactured a dangerous chemical, which was spilled during transportation. P, Indiana Harbor Belt R.R. Co. , sues D claiming that the transportation of the chemical was an abnormally dangerous activity.

No Strict Liability

Modern Rule: An actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity

6 factor test o High degree of risk (high probability of harm)o Great harm o Inability to reduce risk with due careo Not commono Inappropriate locationo Dangers outweigh benefits

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Theoretical Perspectives

Economic Theories

Loss Spreading: Spreading the loss among members in the community Rationale: D is in best position to pass over the costs to general public; better for everyone to pay

a little than for P to pay the full price (ruinous liability) Alternatives: Insurance

Loss of Avoidance: Risk reduction, reduces the number of accidents and the costs of prevention Rationale: Deters risk creating behavior Which party can most cheaply deter accidents

o Who can foresee the risk? o Who has the knowledge and ability to reduce the risk?

Goal for abnormally dangerous activitieso Change activity levels – you can’t make it safer, but you can do less of it/ switch to a related

activity Alternatives: General deterrence (taxes); specific deterrence (criminalize)

Loss Allocation: Internalization; Make the manufacturer experience the pain of the accident costs Rationale: Create optimal behavior; target the party that is in the position to decrease the risk and

who can most cheaply avoid the risk

Administrative Efficiency: The cost of assigning who is going to bear the loss and how

Moral Theories Non- reciprocity Causation

Products Liability

Questions to asko How are P and D connected?o How is the product defective? o Where in the chain of distribution do the parties lie?

***DISCUSS CAUSATION*** On the Exam for products DO NOT do negligent OR implied warranty analysis

Possible Defendants Retailers

o Rationale: Spread loss, deterrence Manufacturers Suppliers

o Majority (Restatement 3rd): If the supplier offers a defective good or plays a strong roll in putting all the pieces together then they could be held strictly liable

Deterrenceo Minority (Restatement 2nd): No strict liability

Not in control of the product downstream

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Possible Plaintiffs Users/ consumers Passengers

o Foreseeable victims; can’t avoid the loss and can’t spread the loss Bystander

o Can’t inspect at all; can’t change activity no benefit at all

Emergence of Doctrine

MacPherson v. Buick Motor Co.: Wooden wheel crumbles while P was driving fast; he is seriously injured Old Rule: Privity of contract – manufacturer would only owe the duty to the retailer Court expands the categories of duty; eliminates privity of contract rule

o Ps are not in the best position to test and inspect the product

Escola v. Coca Cola Bottling Co. of Fresno: A bottle of Coke manufactured by D exploded in P’s hand. Court says that manufacturer is the best cost-avoider and can spread the loss Strict liability when

o The product is in the market and is meant to be used without inspection Role of contract in strict liability

o Express warranty: disclaimers, promises about the quality of the goods up to a certain point

o Implied warranty: expectation that the consumer has implied by the acts of the manufacturer

Rationale: As products get more complicated the manufacturer has more knowledge compared to the consumer; consumer relies on the manufacturers reputation

Manufacturing Defects One of the products is defective, not like the others

o 2nd Restatement: A product that is unreasonably dangerous beyond that which is inspected by the consumer

Causation Harm

Design Defects An entire line of products is defective (and were supposed to be that way) Restatement Test: Unreasonably dangerous design

o Cronin Court: Unreasonable is an unnecessary qualifying word

Soule v. General Motors Corporation: P’s car collided with another vehicle. The left front wheel broke free, collapsed rearward and smashed and floorboard and her feet

Camacho v. Honda Motor Co. Ltd: Camacho bought a new Honda Hawk motorcycle. It didn't have leg bars, although some other bikes did. Then he had a smash-up and his legs were injured.

Consumer Expectations Test: A product is unreasonable dangerous if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, w/ the ordinary knowledge common to the community as to its characteristics.

Policy reasons for: Some products may be unreasonable dangerous and can’t be designed to be safer; comes from implied warranty

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More useful in cases dealing with simple non-technical products Feels more like strict liability

Risk Utility Test: Balances risks and utility/benefits of product design Does the product’s design represents a fair balance between

o The cost of designing the product to prevent the risk of injuryo The effect the redesign would have on the utility of the producto The extent of the risk that the product poses

Useful in complex product cases Ortho Factors *** USE FOR EXAM ***

o Utilityo Likelihood of harmo Availability of alternative/substituteo Ability to eliminate unsafe characteristics with out losing utility or prohibitively increasing

cost o User’s ability to avoid the harmo User’s anticipated awareness of inherent danger (common knowledge, warnings) o Feasibility of spreading the loss

3rd Restatement: Requires there to be a reasonable alternative design to hold D liable except…o Product is irreducibly unsafe AND has utility o ***Don’t use on Exam*** Use Ortho Factors ***

Some courts allow BOTH tests to be sued Best for P

P prefers Consumer Expectation Test when… The defect is non-technical The defect is hidden

o If it is open and obvious they are going to lose Because P does not have to hire expert witnesses to testify about alternative designs of the

products P ONLY needs to prove that the product was less safe than the reasonable consumer would expect

P prefers Risk Utility Test when… Defect is technical

o Hard to have expectation about complicated products Defect is apparent

Warning Defects Two kinds of warnings

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o Warnings used to make the product safero Warnings that notify to the inherent risk of the products

Rationale: P can avoid the risk best by reading warning and thereby taking the necessary precautions in using the product. This would be less costly than redesigning the entire product to eliminate the risk.

Questions Do we need a warning? Is the warning adequate Causation – would the injury not have occurred with the warning

Hood v. Ryobi American Corp: Despite warnings from the manufacturer, P removed a guard on a miter saw. The blade flew off and Plaintiff was injured. e read the warnings, but he thought that the warnings were just there to protect his clothing and to prevent him from getting his fingers in the way, but the blade ended up coming off

Vassallo v. Baxter Healthcare: P underwent breast implantation surgery in 1977. In 1992, it was discovered that the silicone had leaked or ruptured.

In deterring if D had duty to warn its consumers, D was held to standard of knowledge of expert in appropriate field

Need to warn: When does D have to warn its consumers of a risk? Majority Approach: Needs to warn of risks reasonably knowable at time of selling product. Minority Approach: Needs to warn under implied warranty

o Presumes Manufacturer is fully informed of all risks of product at time of lawsuit. Hindsight Approach

o Rationale: Administrative ease, loss spreading, incentives to do research o Rationale against: Disincentive for trying new things; asking to invest in an inefficient way

Generally no duty to recall

Factors for adequate warning How easily is it seen

o Font, placement, color, contrast Language/ diagram/ symbols /pictures Intensity/ Comprehensibility –

o The characteristics of the users – could those users understand Content

o Consequences of violating ito Type of harm/ severity/ probabilityo Precautions

Defenses

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Assumption of Risk Disclaimers generally DO NOT bar recovery Express assumption of risk (courts divided)

o Majority: Signing the paper that P is aware eliminates D’s duty to P Secondary Assumption of Risk: Knew of risks involved and decided to use it anyway (no paper)

o Comparative fault (some jurisdictions)o Complete bar to recovery (other jurisdictions)o If obvious, it may not be a defect (consumer expectation)

Comparative Negligence Fault is a partial defense against strict liability and serves to reduce damages by % of P’s fault

o Rationale for: Increase incentive for P to act reasonably; they are risk avoiders tooo Rationale against: Incommensurable (how can D’s SL be compared to P’s negligence);

lessens incentives for D to do it right No duty to discover the defect P has the duty to use the product reasonably

General Motors Corp. v. Sanchez: put car in neutral thinking he put car in park and got out of car. Car moved and crushed P against gate, killing him. D argued that P was N in thinking he put car on break and not in park and therefore, D is not complete liable.

o Court ruled that P’s negligence reduced P’s recovery by 50%

No duty to discover the defect 3rd restatement: You have a duty to discover the defect if they can reasonably discover the defect (open and obvious)

Damages will be reduced

Misuse Manufacturer has to design products with foreseeable misuses in mind

o Foreseeable misuse defect Unforeseeable misuse

o Product likely not considered defective o May prevent proximate cause o Damages may be reduced based on comparative negligence

[Damages]

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Compensatory Damages Goal is to make P whole or return P to pre-injury condition

o Challenge of commodifying life, limb, etc. But P will prefer money to nothing

Single Recovery Ruleo Compensation must be sought in a single trialo Requires P to prove past and (reasonably probable) future damages

Could be windfall for either party Risks of Future Diseases

o P can recover if future disease are “reasonably probable (> 50% chance) Pros: Difficulty of proof if P must wait years to sue for risk <50% Cons: P could get damages even if disease doesn’t develop; Could deplete D of

money to pay those who do get diseaseo Non reasonably probable diseases

Majority: Two disease ruleo Allows P to sue for second disease when it develops

o Minority: Bar recovery under single recovery rule

Elements of Compensatory Damages

Economic Losses: Tangible losses whose actual dollar amount can be calculated Medical Expenses (past and future) – Requires expert medical and actuarial testimony

o Medicationo Therapy (physical, psycho-, rehabilitation, etc.)o Surgeryo Travel o Therapeutic and other equipment

Lost earnings (past and future)o From time of accident to trialo Lost future earnings

Expected duration of injury/disability Type of work P would have done without injury

o Difficult when career path is undefined:o Students, children, homemakers, impending career change

How long P would have worked if no injuryo Life expectancy, type of work, level of interest, other factors

Fringe Benefitso Health insurance, stock options, etc.

Reduced by earning capacity post-injury Property damages

Non-economic losses: Intangible losses for there is no objective or accounting basis Highly subjective Area where legislatures have tried to cap damages Pain and Suffering

o Physical paint from injury, recovery, and/or disability Emotional distress

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o Anguish, humiliation/embarrassment from disfigurement, fear associated with trauma, frustrations with disability, fear of recurrence, depression, facing reduced life expectancy, etc.

Loss of Enjoyment of Life o Loss of ability to enjoy experiences enjoyed prior to injuryo Measured against pre-accident life expectancy

Effects of Unconsciousness on Non-Economic Loss o Majority: Denies recovery for pain and suffering

Rationale: No discomfort or pain if unconscious o Divided as to whether they may recover for loss of enjoyment of life

o Some jurisdictions: No recovery Rationale: Cannot benefit from award of damage

o Other jurisdictions: Rationale: Loss of enjoyment is an objective test

Collateral Source Rule Majority: None of D’s business if P is compensated from “collateral sources”

o Rationale: D shouldn’t get windfall from P’s attempts to prevent loss; Protects insurer’s subrogation rights (Because Insurer has compensated P can sue anyone P could sue)

o Concerns: Compensates P for losses they don’t incur; Economically inefficient: draws from most expensive insurance and adds costs of subrogation suits (P’s first party insurance usually cheaper than D’s liability insurance)

Wrongful Death and Survival Actions Prohibited under common law under theory that death was not an injury Statutorily based reversal: Allows actions based on injuries that cause death

Wrongful death Actions Actions on behalf of survivors (usually close relatives) for losses due to death of decedent Statutes determine which survivors can recover and for which damages

o Damages are based on actual losses each survivor proves at trial

Economic/ Pecuniary Losses (traditional) Lost financial contributions from decedent (sometimes minus living expenses) Lost household services

Non-economic losses (modern) Many statutes now include them Loss of consortium/companionship

o Advice, moral training, education, sexual consortium, emotional support Emotional distress

Survival Actions Actions for personal injuries of decedent that decedent could have brought if still alive Recovery usually goes to decedent’s estate and passes to heirs Will be reduced if decedent was comparatively negligent OR if beneficiary was comparatively

negligent

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Economic and non-economic losses prior to death Medical expenses Loss of earnings Property damage Pain and suffering

Punitive Damages Damages over and above compensatory damages Intended to punish D for wrongdoing

o Limited to egregious wrongdoing Spite, malice, fraudulent or evil motive, conscious or deliberate disregard of others’

interests, wanton misconduct Motive or conduct that evinces antisocial mental state

o Generally, negligence is not sufficient Rationale: Compensates for actual expenses of litigation; provides incentive to litigate cases of

outrage and oppression that might escape notice of prosecutors Concerns: Undue deserts for P; should be paid to the state; Amount is fixed by the caprice of the

jury; Imposed without safeguards of criminal procedure

Nominal Damages Apply in some cases where P has not suffered compensable harm through a D’s intentional

wrongdoing Goal: to recognize D’s wrongdoing NOT to compensate

o Small amount of moneyo Rareo Usually only applies to some intentional torts (offensive contact batteries)

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