Torts ChecklistNegligence Prima Facie Case

DutyDuty not to create unreasonable risk of harmMore difficult to show duties to act when not cause of

situationSpecial relationships, etc.

Breach of duty, NegligenceReasonable Person StandardSeveral factors exist to help define

Hand testReverse Hand test (strict liability with negligence

defenses)Calabresi-Hirschoff testNegligence-per-seCustomStatutes

Actual causation“But for” testNot very restrictive

Proximate CausationForeseeabilityCardozo

Legal questionEach ∏ must be foreseeable

AndrewsFactual questionIf any injury is foreseeable, then recover subject to

limitations of jury

No Defenses

DutyHistorical perspective - Laissez Faire + special

relationships

Physical injuriesControl (over the agency of harm)Foreseeability (that one’s actions would cause harm)Assumption of duty to the exclusion of othersSpecial relationships

Companions, family, etc.Common carrier and innkeeperBusiness relationship

Modern extensionsThird party special relationship, TarasoffNegligent entrustment, Vince v. Wilson

E.g. giving drunk person keys to carLandowner liabilities

Trespassers - Person on property without knowledge or permission of ownerChildren are owed greater duty in case of attractive

dangersMust warn of serious risks

Licensees - On property through invitation but to no benefit of ownerMust warn of any known riskNeed not search out risks

Invitees - Present on land to benefit of ownerDuty to search out and protect against dangers

Modern extensionsAttractive nuisance-childrenTechnical trespass-unmarked private land with higher duty

than normalConstructive consent to presence on landHines case, if would have occurred to other category of

person would be negligence, then duty to trespasser as well.

Rowland v. Christian reasonableness ruleDuty of reasonableness under the circumstances,

considering:Old version statusForeseeability of harmMoral blame worthinessAvailability of insurance

Cost-benefit equation should be used along with Rowland rule, Erickson v. Curtis

Coase theoremGovernmental liabilities

Traditional - King can do no wrong, 11th AmendmentOnly bars damage actions - injunctive relief is unfettered

42 USC §1983Permits lawsuits against state and local officials in fed cts

Must be Federal or Constitutional tortWhile officials may defend with good faith immunity,

municipal gov't may not, Owen v. City of Independence

Limits to §1983

No respondeat superior except when liable action was in furtherance of an official policy or custom (Only way to get state gov.)

∏ must show standing-harm exists to be redressedNo punitive or presumed damages, must be actual damagesMust be misfeasance, can't be nonfeasance, De Shany caseImmunities, affirmative defenses

Judicial or prosecutorial actBeuractratic, executive and administrative functions

carried out in good faith while acting in compliance with federal law

Federal Tort Claims ActWaives immunity for federal government, federal officialsLimitations

Must be a tort under state lawIntentional torts are not actionable

Unless committed by law enforcement officials.Actionable under other theories like negligent

entrustment, etc.No actions allowed under strict liability No jury No punitive damagesNo fee shiftingLimit on ∏’s attorney fees

Affirmative defensesDiscretionary function is immune even if it was abuse,

Berkovitz The more narrowly defined the activity, the less

discretionary it isDistinct from ministerial functions

Intramilitary torts - Feres --no liabilityGovernment contractors, Stencel, Boyle

Must be produced to government specificationsProduct specs must conform to government

specificationsContractor must have informed government of any

known risks

Biven’s ActionsCertain constitutional violations yield to suit against fed

officials in fed ct4th, 5th, 8th amendments

Officials have same common law immunities as under §1983

Can get jury, punitive damages, presumed damages

Non-physical injuriesEmotional harm

DirectCommon law-no damagesImpact test - poor because easy to manipulatePhysical manifestation + foreseeability - abandonedPure emotional distressExposure phobia

Unpredictable damagesRequirements

Serious fearReasonable fearCause in fact

Some jurisdictions requireLesionOnly exposureManifestation of condition itself

Often annexed to medical monitoring claimCan't sue twice for same injury-single judgment rule

Some jurisdictions allow for second action after disease manifests itself

Proximate causation limits liability to foreseeabilityIndirect

Traditional rule-no recoveryForeseeability, HugginsZone of Danger, Tobin v. Grossman

Must be within zone of dangerMust have contemporaneous awarenessHarm must have been seriousMust be close relativeMust show serious emotional harm

Modern requirements, Dillon v. PorteeClosely related to injuredPhysical proximity and contemporaneous observanceExtraordinary emotional distress

Wrongful birth, etc.Wrongful birth - Action by parents who allege that they

could have avoided conception or would have aborted but for the negligence of the physiciana. Cts unsympathetic for healthy babiesb. Unhealthy babies yield damages further into life5. Birth related expenses are usually recoverable6. Child rearing costs are usually not recoverable7. Parents often get emotional damages

Wrongful life - Suit by baby for negligently caused birth yielding painful lifeTheoretical defenses

Have to abortChild have to be adoptedChild have to be put into state hospitalHave to commit suicide in wrongful life

Wrongful living - Suit for not allowing patient to dieExtra hospital expenses are compensable

Pure economic lossDistinguishing factors between cases - ∏ more likely to

win if:Definite harm to ∏Small number of potential ∏s∆ did not purposefully reduce reliance on product∏ can control extent of liability exposure∆ knew of reliance (can be inferred to be true through price)∏ has paid for benefit of relying on ∆ through chain of third

partyFiduciary obligation, Bohn v. Cody

Foreseeability that third party would rely on info provided is key to liability

Discuss relative utility of using contracts or torts to assign liability

Breach of duty - NegligenceDefinitions of negligence (Reasonable person standard)

Hand testIf B<PL then, injurer pays (definitionally worth

preventing)Reverse Hand test (strict liability with possibility of

defeating negligence)Injurer pays for accidents worth preventing and those

not worth preventingCalabresi-Hirschoff test

Whoever knows more about B>PL is liableNegligence per-se

Statutory evidenceGeneral Conduct rules, - Violation does not yield negligence

per seSafeguard rules - Violations may allow negligence per se, only

suppositionCustom

The custom must have a causal relationship to the injury, Levine v. Russel Blaine co.

StatutesStatute must be directed at harm to be relevant, De

Haen v. RockwoodFour possible weight given to statutes

Negligence per se, Martin v. HerzogPrima facie evidenceEvidence toward negligenceNo evidence, Brown v. Shyne

Factors that determine what weight should be givenCorrelation between violation of the statute and the injuryLegislative mandate more compelling than administrative

rulingCausationIntent of legislature

Interaction of common law and statutesStatute codifies common law - Sets common law down with

common law exceptionsStatute supplants common law - Sets common law down

without common law exceptionsStatute derogates common law - Replaces common law with

statute

Proving negligence - standards of proofBurden of going forward & burden of proofConstructive and actual notice of danger createdInference, presumption and established factOrdinary and opinion evidenceDirect and circumstantial evidenceRes Ipsa Loquitor (the thing speaks for itself)

Appropriate for situation in which there is no attainable proof of negligence

Possible effectsPresumption - Shifts burden of going foreword to ∆Inference - Strong evidence toward negligence, but ∏ must still

proveRequirements

Agency of injury in exclusive control of ∆Accident would not occur in the absence of negligenceNo contributory negligence

Multiple ∆s - some jurisdictions require that all be before ct

Medical malpracticeOrganizational enterprise liability might be a better approachStandard of care is defined by custom in the profession,

Robbins v. FooterInformed consent, Pauscher v. Iowa Methodist Med

Doctors have a duty to disclose relevant issues about risks inherent in treatment, alternatives and likely results

∏ must show would have prevented harm if warnedStandard of disclosure

Reasonable patient ruleWhat would patient want to know?Objective easier to deal with than a subjective patient ruleSchuck's article

Physician rule - what doctor thinks is importantInformed consent liability is expanding

Actual causation (but for)Ness test

A is the cause of B if A is a necessary element of actual, antecedent conditions that, together with others, were sufficient for the injury

Coasian theorySet up clear rules for liability, and parties will negotiate to

most efficient arrangementConfer liability on the cheapest cost avoider

Calabresian theoryMarket deterrence (economics) balanced with collective

deterrence (policy)Causal element was the cheapest cost avoider, so should be

liable

Substantial factor

Social causation

Necessary and SufficientTraditional Burden of proof, 50+% = total award

Non-traditional causationIndeterminate ∆

Alternate liability

Market share liabilityProducts must be fungibleMarket must be properly definedDepending on jurisdiction, all or most ∆s must be presentExculpation is permittedMust be no inconsistent verdictsJoint and Several or only Several liability

Indeterminate ∏Class action

Proximate causationNecessary and sufficient, Steinhauser

Direct and natural consequence, PolemisIf any harm is foreseeable, all harms resulting are

compensable

Foreseeability, Wagon MoundIf type of injury is a foreseeable result of actions, then liableDefinition of foreseeability, Palsgraaf

CardozoEach ∏ must be a foreseeable victim to recover, not just classLegal questionUse policy considerations in deciding each harmScope of the risk test

Was injury within the scope of risk takenFor instance, explosion of can of rat poison that was

labeled as green beans is not within the scope of the mislabeling (even though foreseeable)

AndrewsJury decides what is too remoteIf any injury is foreseeable, then all injuries actually caused

should be compensated, limited by jury

Intervening causesLast wrongdoer test

Last person able to prevent harm should be liableLargely been overruled

Liable unless superseding causeIf same harm as would have happened otherwise, then

not supersedingIf should have foreseen intervening cause, then still

liableIf intervening cause is normal response to ∆s actions,

then not superseding

Other doctrinesEggshell skullFire rulesDanger invites rescueSuicide

DefensesContributory negligence

Last clear chanceConscious, ∏ recovers

Unconscious, ∏ recoversInattentive ∏, If both inattentive then no recoveryAutomatic Pilot, No recovery

Comparative faultPure, ∏ always recovers somethingModified, ∏ recovers only if ∆ 50+% at faultMary Carter settlement

Assumption of the riskExpressImplied

Must have known of riskMust have voluntarily assumed risk

ImmunitiesCharitable immunityFamily immunity

No longer usedStill used when negligent exercise of authority over childStill used when negligent parental discretion, such as

food, clothing, housing, medical & dental services, etc.

DamagesPersonal injuries

Pain and sufferingLost EarningsLost body functionMental distressHedonisticMedical monitoringHealth phobiasWrongful Death

Loss to the estateLoss to the survivorsCommon law - usually cts do not allow both 1,2 but one

or the otherLoss of Consortium

Loss of loveCompanionshipServicesSexual relationsModern extensions

Appellate ct will not overturn a damage award unless it is “so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury”RemittitorAdditor

TaxesDamages not subject to taxesCts generally do not allow jury to know that taxes will not

apply

Mitigation of damages

Collateral Benefits ruleLiability Ins paid some damages... they are not subtracted

from award

Absent a statute to the contrary, collateral benefits do not offset a ∏’s award of damages.

Insurance companies often subrogate the case

Punitive DamagesOnly for intentional torts - at least reckless

Strict liabilityDuty requirement relieved by MacPhereson

General strict liabilityLoss created by wandering animalsNuisanceTrespassBlastingFiresCommon CarriersInnkeepersRespondeat SuperiorDamage to property by an airplane (in some states)Abnormally dangerous activities, Restatement 2d §519

High degree of riskLikelihood of serious harmRisk can’t be eliminated with due careNot a common activityConsider appropriateness of the activityConsider value of activity v danger of activity

Product strict liability, Restatement 2d §402ADefective condition that is unreasonably dangerousMust be sale by merchantMust be productNeed Defect

Consumer expectations test - R2dBenefit-risk test - R3dManufacturing defectDesign defect

Structural defectsLack of safety featuresForeseeable misuses

Failure to warnRestatement 3d

Requires alternate design for design defectsUses benefit-risk testLooks at entire product to determine riskiness

Causation is always requiredMust have foreseeability of unreasonable danger

(assumed)UCC liability (warranty)

Express warranty, §2-313Implied warranty of merchantability, §2-314Implied warranty of fitness for use, §2-314

DefensesLearned Intermediary exceptionPrivilegeProduct alterationComparative faultProduct misuseAssumption of the riskState of the art - no technology available to know was

dangerousUseful life - product used beyond useful lifeStatute of limitationsUCC

DisclaimersCan be defeated with advertising that claims otherwiseLimitations of consequential damages (sole remedy is to

replace or repair) not valid with consumer products, UCC §2-719(3)

Lack of privityNot valid for express warrantiesUsually not valid for implied warranties

Warnings

Unavoidably unsafe products are considered under negligence

Vaccines

TrespassNuisance

Who gets entitlementUnreasonable interference standardHarm/Utility testRemedial measures

How to enforce entitlementProperty rule

Leads to injunction, i.e. holder of entitlement can ban activityParticipants can then bargain for right to participate in activity

Liability ruleNo preventionJury decides what cost of entitlement should be and awardsOnly retrospective

Hybrid ruleDamage claim, JostConditional injunction against polluter, Boomer

Ct allows nuisance, but requires 1 time paymentPurchased injunction, Spur v. Delweb

Benefit/cost favors ∏, but equity favors ∆Ct gave injunction to ∏, but must pay benefit tax

Negotiated injunction∏ and ∆ can negotiate to allocate costs instead of ct

imposedDefenses

De minimus - questioned activity falls below threshold of annoyance everyone must deal with

Aesthetic defense - violations of aesthetics only (like vision) are not as actionable

Nature of locality - activities endemic to locality (animals in rurality) are not actionable

∏ hypersensitivityComing to the nuisance

TORTS CHECKLIST:- Remember: 1) Summary J/P: P alleged elements of PF case & D has no affirmative

defenses.2) Summary J/D: P has not alleged a necessary element (no PF case).3) Memo = argue both sides equally but Brief = argue one side more than other side

I. INTENTIONAL TORTS (P is an average person & everyone is liable)1) Battery (violence itself) PF: a) intent to contact b) plaintiffs person 2) Assault (threat of violence) PF: a) apprehension b) of an immediate battery 3) False Imprisonment PF: 1) completely confined, 2) no reasonable way out,

3) D has intent to confine, & 4) P has awareness of the confinement4) Intentional Infliction of Emotional Distress - PF: outrageous contact/words intended

to cause some response in P, & distress manifested into physical harm 5) Trespass to Land/Chattels - PF: a) D physically invades b) P’s areaII. DEFENSES TO INTENTIONAL TORTS 1) Consent -- express, implied, or emergency2) NO Insanity or Age Defense3) Defense of Self, Others, & Property (reasonable & proportional force)4) Necessity – public, private (Ploof), & qualified (Vincent) III. OLD SL CASES: 1) Trespass = intentional & direct (battery)

2) Case = unintentional & consequential (negligence)- ultrahazardous activities (Scott/Squib case) & liability w/out fault (Rylands)

- Modern SL = reasonable act & significant risk (cricket & balls in Stone)

IV. NEGLIGENCE1) Did D have a DUTY to a specific P not to create an unreasonable risk?

- What was D's standard of care? 1) Reasonable Person (RP) - objective test

- tailored only for minors/disabilities 2) Economic – - D must perceive risk & use reasonable risk calculation

- THE HAND FORMULA - Precaution necessary if: P x L > B 3) Custom = a) due care (old Titus), b) irrelevant – no defense w/visitors (Mayhew)

c) evidence, not dispositive (now rule; TJ Hooper) 4) Professional: reasonable care is compared w/in the prof. community

- reasonability of custom/care and economic analysis are considered5) Statutory- violating a statute can be:

a) negligence per se (is negligence itself) (Osborne)b) prima facie evidence of negligence (Brown, licensing statute)

c) no form of negligence (statute standard of care, Dram Statutes) 6) Affirmative (none) & Relationship Duties

2) Was there a BREACH OF DUTY of D's part?- breach = negligent conduct = D's actions did not meet standard of care- Res Ipsa Loquitur (RIL) –circumstantial evidence = presumed negligence

3) Was D's activity the CAUSATION of P's injury?a) Cause in Fact –must meet the but for test

b) Cause in Law/ Proximate Cause – D’s negligence connect w/P’s harm?1) directness of harm (ex poste) = D is liable for any direct consequences of

foreseeably negligent act (any harm) – Kinsman (& Polemis)2) foreseeability of harm (ex ante) = D is only liable for foreseeable plaintiff or

consequences (specific harm) at the time act occurred-- Palsgraf & (Wagon Mound )- any intervening affirmative act by a 3rd person breaks the chain

- No real proximate cause when outcome is pure coincidence V. DEFENSES TO NEGLIGENCE

A. P’s Conduct : P’s lack of due care (reasonableness) = proximate cause 1) Contributory Negligence - completely bars recovery by P

2) Assumption of the risk: (P must have a full appreciation of the risk)- Express: P directly waives duty by D via a contract - Implied: P indirectly waives/lessens D’s duty though actions

a) 10: i) no duty or ii) P is so aware of danger, duty forgivenb) 20: D has duty to avoid/lessen risk but can avoid if P UAR’ed

3) Comparative Negligence compare P & D’s negligence acts with P's injury to determine recovery (Li)

B. D’s Conduct is a way to re-instate D’s liability if P was negligent. 1) Last Clear Chance doctrine

2) Willful, wanton, & reckless conduct on D’s part

- Mutliple Ds/Tortfeasorsa) Joint & Several: each D liable for all damages b/c harms are indivisible

- P can decide who to claim damages from (JC Penney).- Several: each D only liable for their share b/c harms divisible

- Sindell: market share liability ** if 1 D pays more than their share under J&S, can use Contribution (pay equally),

Indemnification (bring faulty D into case), or Comparative contribution (pay fault)

VII. STRICT LIABILITY (SL): Ultrahazardous/Abnormally Dangerous Activities- liability w/o D’s fault; PF: 4 elements of negligence except duty is absolute safety- R 2d: SL for abnormally dangerous activity even with contributory 3rd parties.

- 10 & 20 AR bars P's recovery in these cases; Contributory negligence defense

VIII. PRODUCTS LIABILITY (PL)- umbrella to sue manufacturer/supplier for efficiency (safety) and equity (burdens)

- R 2d §402 A: Seller liable for defective product, even though all possible care was used, but K: unavoidably unsafe products are exception to PL- R 3d §1: Seller of defective product is liable1) Manufacturing Defects is a SL standard (Escola) 2) Design Defects is negligence standard w/ state of art defense (Micallef “hickie”)- 2 Prong Barker Test: 1) P shows product fails to meet consumer expectations.

2) a) P proves D's unreasonably unsafe design caused the injury.

b) D proves that benefits outweighed risks (PxL<B).- R 3d §2(d) – - P must prove design is defective based on reasonably foreseeable risks and

either a) there is an alternative/safer design or b) it’s so unsafe it shouldn’t be on the market3) Warning Defects (all products) – Duty to Warn (pharmaceuticals)

- warnings are not needed when dangers are common knowledge- warnings defects are negligence standard of foreseeability w/R 3d; SL in R 2d

- duty to warn is a negligence standard (R 3d, §6-d-2) (MacDonald&Wyeth)- R 2d, §402A - k: drugs were unavoidably unsafe products & not SL

- R 3d §6-c = Drug is unreasonably unsafe when it's foreseeable risks of harm outweigh the therapeutic benefits to the public. (negligence standard)

- P’s Conduct in Products Liability - R 2d: contributory negligence defense; UAR = complete defense

- Daly (CA): P’s conduct considered for relevant & apportioned loss.- R 3d §17: a) P's recovery may be reduced if their conduct (outside of general rules/standards

of care) combines with the product defect to cause the harmb) extent of reduction governed by rules apportioning responsibility

(comp. Neg.)

TORTS OUTLINE----------------------------------------------------------------------------------------------------------------------------------

--------------------I. INTENTIONAL TORTS (primary focus is act)- 2 things to remember: a) in analysis of fact patterns, P is an average person (no super sensitivities)

b) everyone is liable for intentional torts (mentally insane, ages, etc. don't matter!!!)1) Battery (violence itself) D’s Act: contact

D’s Intent: to contact P’s Context: contact is without permission (express or implied) & harms P

- PF requires 2 things:a) intent to do the harmful or offensive(unpermitted) contact

- Intent to harm: D meant to kick (not necessarily cause harm) in Vosburg - Certainty of contact: 5 year old D “knew” that moving a chair would cause P to fall in Garratt - Transferred Intent: D intent to hit to one trespasser was transferred to another he did hit in Talmage.- Offensive Contact: D’s spitting in P’s face was the offense/harm to the victim in Alcorn.

b) with plaintiffs person (body and anything connected to it (holding stuff, clothing, in car, etc.))2) Assault (threat of violence) D’s Act: threat of violence

D’s Intent: the intent of the actor & the perception by the victimP’s Context: the apprehension of the violent act

- PF requires 2 things:a) apprehension -- not to be confused w/fear or intimidation (ex: Mike Tyson could sue me)

- I. de S.: The P’s harm is the apprehension of D and D swinging a hatchet at her.- "The apparent ability of the D to ____ did create a reasonable apprehension on the part of the P."

- Allen: P did not know D’s gun wasn't loaded & reasonably perceived the threat as genuine. b) of an immediate battery

- words alone are not enough, they must be coupled with conduct - words can negate threat: T’s act w/the sword was not backed up by intention of his words (Tuberville).

3) False Imprisonment- PF case requires: 1) must be completely confined (freedom of movement is limited )

2) no reasonable way out (no reasonable means of escape that the P knows of)3) D must have the intent to confine (through force, threats, or inaction)4) P must have an awareness of the confinement

- Bird: D’s blocking off highway was a mere partial loss of P’s freedom and is not imprisonment.- Dissent: Any obstruction to personal freedom (esp. by a show of force) is false imprisonment.

- Coblyn: A merchant’s belief of theft must be reasonable belief (no privilege to imprison).- Defenses for false imprisonment/false arrest:

1) privilege (jails, merchants, parental control, teachers, etc. with reasonable grounds)2) consent (the P at one time had given consent but at some time rescinded that consent)

- Herd: P (coal miner) originally consented to confinement as part of the job, but when employer purposefully waited to end confinement, P’s consent rescinded & there was a false imprisonment.- Peterson: In cult member deprogramming there is NO privilege of parents over adult children, but the adult child can consent to intervention.

4) Intentional Infliction of Emotional Distress (a fall-back tort when PF case cannot be made in other torts)- PF case requires 3 things: a) Act = Outrageous contact or words

b) Intent = to carry out the conduct knowing it may cause some response-- have an impact on the personc) Harm = must be emotional distress that is manifested into physical harm (protects free speech)

- Wilkinson: D practical joke was the outrageous conduct that caused P’s violent shock. - Hustler: "Outrageous" ad about P in D's magazine had "breathing room" under the 1st amendment; arena

of the conduct is an important consideration -- comedy, politics, entertainment, etc.- emotional distress can come from harassment (Harris), but not racial insults (Patterson).

5) Trespass to Land (Property) or Chattels (damage/interference with rights of use)- PF case requires 2 things: a) D physically invades b) P’s areaII. DEFENSES TO INTENTIONAL TORTS 1) Consent

a) P had capacity to do so (mental ability, age, effect P's ability to consent)b) can be express (words were used) or implied (custom in usage or P's conduct) or emergency

- Implied consent via action: P stuck her arm out an D’s immunization counter in O’Brien.- Emergency Rule of Consent: P’s original consent for opening the first area gave consent to fix other

emergency problems in that same area in Kennedy. - Must be an emergency: D did not have emergency privilege b/c unconsented surgery on P could be done

later in Mohr.2) NO Insanity Defense (There is infant liability for torts (infant mentally ill adult).)

- McGuire: D (mentally ill patient) did intend to hurt P (her nurse) and is liable for harms3) Self-Defense, Defense of Others, & Defense of Property (affirmative defenses)

- 3 Defense privileges must meet the following 3 tests:i) timing requirement = torts is happening now or will happen immediately (past events don't count)ii) test requirement = reasonable belief that tort is occurring iii) boundaries test (use of too much force = exceeding the boundaries)

a&b) Self-Defense & Defense of Others = reasonable force (even deadly force)- Courvoisier: D, a shop owner at the focus of riot, has a defense b/c he reasonably believed he was being attacked P.

c) Defense of Property = can use only reasonable & proportional force (not serious bodily injury)- Bird: D’s spring guns have no discretion & humans must have discretion in defending their property.

- "No man can do indirectly that which he is forbidden to do directly.” - Force of defense must be PROPORTIONAL to the act of trespass

- Katko: unproportional force of defense when a thief shot by a spring gun. 4) Necessity

- public necessity = complete defense to save a lot of others - private necessity = defense to save a few, but must pay for any damages committed

- Ploof: P had a necessity defense trying to tie-up to D’s dock in a storm & D must pay for harm to P.- qualified necessity = If you take someone's property for your own good, you must pay for it.

- Vincent: D overstepped the necessity privilege by causing damage to P’s dock (preserved ship at the expense of dock).

III. OLD STRICT LIABILITY CASES & THE TRANSITION: Old Writs to Modern Tort AreasThe old forms:1) Trespass (intentional) = direct, forcable, and willful actions, but also unlawful

- tight casual relation; D is liable unless act of god or P's act (negligence = defense to trespass )2) Case (unintentional) = indirect & consequential actions, but also negligent actions (torts)

- not so tight causally; need D's negligence or fault -- develops negligence actions (intent = defense to case)- legacy in ultrahazardous activities (blasting & explosions)

- Scott/Squib case: In an open market place, D lit and threw an explosive (squib) which changed hands until is blew out P's eye. D claims it was just a joke/sport & therefore had no intent. 3 opinions of judges show limits of old torts: 1) It’s trespass, 2) It’s case, 3) It’s a causation argument .

- the Industrial Revolution of the late 19th gives rise to a need for new tort law - Moderns torts:1) Intentional Torts

2) Negligence Torts3) Special "Pockets" of Strict Liability (ultrahazardous activities, statutes, product liability)

- D’s standard of care should be ordinary care (breaking up dog fight in Brown).- Can there can be liability w/out fault?

- England says yes in Rylands: D built a reservoir on his land w/out knowledge that the reservoir was on top of a P’s coal shoot. P's coal mines are thus flooded. Reservoir = unnatural use = D liable.- US says not in Brown: D's horses became unruly & trampled on P's land thru no fault of D.

- US cts reject Rylands b/c it goes against progress.- SL in Modern Times is based on the reasonable activity & significant risk (cricket & balls in Stone).

IV. NEGLIGENCE: (primary focus is duty & cause)

1) Did D have a DUTY not to expose P to unreasonable risk of harm?

a) Was P a foreseeable plaintiff? (D had a duty to a specific P not to create an unreasonable risk)- 2 Palsgraff approaches:

i) Cardozo: P must be in the foreseeable zone of danger for the D’s negligent conduct to count.ii) Andrews: If negligence towards 1st person injures a 2nd , 2nd is foreseeable in almost all cases.

b) What’s D's standard of care? = RP, Economic, Custom, Professional, Statutory, or Affirmative/Relationship1) Reasonable Person (RP) Standard

- objective test = judge D's actions based on the "reasonable" (average, prudent) person not individually- tailored consideration (modified standard): minors engaged in minor activity (judge against children of

like age, intelligence -- Roberts, hunting in Purtle), disabilities (reasonable “blind” P in Fletcher) - no tailored consideration: dumb (Vaughn), old (Roberts), young--adult activities (motorcycle driving in

Daniels), delusions/insanity (Breunig), drunk (Robinson), rich/poor (Denver)

2) Economic Standard – RP and Calculus of Risk - RP does not create unreasonable risks and guards against risks when worth it

- THE HAND FORMULA (deciding negligence based on economical/efficiency principles)- Precaution needed if: P x L > B (Probability of loss x Cost of Loss > Burden (Cost of Prevention))

- efficiency rule: invest in safety until it's no longer worth it- based upon ex ante risks – those perceived before the accident occurs (at the time of D’s conduct)- D must have a Perception of Risk

- Blythe: D (water co.) was reasonable in not foreseeing the inordinary circumstance that causes P’s house to flood. In the circumstances, there was no perception of risk so there was no duty for D.- Eckert: No negligence b/c the risk of P’s own life was worth the benefit of saving the child's life.

- D must use a reasonable risk calculation – must perceive the risk as significant - open car door hitting bicyclist in Osborne, cricket ball hitting passerby in Stone

- D will not act of if the Value of Precaution is greater than the overall risk - Cooley: D not liable b/c if D did nothing to the electrical wires = small risk of moderate harm to P but taking precaution to help P = small risk of death to others.- Carroll Towing (Hand) D was negligent to leave the barge w/out a bargee. Cost/benefit analysis shows harbor business x boat damage > cost to pay bargee. (playing golf v. hitting car in Rinaldo)

- Tort law tries to minimize the sum of Cost of Accidents (COA) and Costs of Prevention (COP) - optimal accident level – some accidents should happen (i.e. where COP > COA)

3) Custom Standard - there are 3 views on how business custom can be used to determine negligence:

1) = due care = no negligence; businesses know best, not jurors – old & unlikely to work- Titus: Business Custom will be judged according to the usage, habits, and ordinary risks of the

business; wide cars on narrow RR track injures P but P knew it was custom, so D not liable2) is irrelevant – it’s no defense for custom that doesn’t constitute ordinary care – still works w/visitors

- Mayhew: D’s custom of leaving mine shafts open is irrelevant when inconsistent with ordinary care or duty to safety for someone unfamiliar (visiting engineers) w/exact customs of the industry

- "Carelessness is universal" is not a valid excuse/defense.3) custom is evidence of due care, but it is not dispositive (ct decides its reasonableness) – present rule

- TJ Hooper: while tugboats are not required to use radios (new equipment/techniques), that equipment would have been reasonably expected (via cost/benefit analysis), so D is liable

- Jadranska: the custom of opening ship hatches was reasonable for D & it is okay to consider P’s negligence in deciding D’s liability (when P, a longshoreman, knows of the custom)

4) Professional Standard (Medical)- reasonable professional care is compared w/in the prof. community (expertise counts; statute guides)

- the medical custom (esp. when NOT taking care) is weighted considerably in deciding liability, but reasonability of custom and care and economic analysis are still considered

- Helling: It was not custom for eye doctor D to check the young P for glaucoma, but the loss was so great (P’s sight) & the prevention so low (easy test) that D should have tested. D is liable.

- Cantebury: Regardless of custom, D had a duty to disclose risk of paralysis to P b/c decision-making requires knowledge on P’s part (balance D’s expertise w/P’s right to know). D is liable.

5) Statutory Standard- violating a statute can be:

a) negligence per se (is negligence itself)- Osborne: P can sue pharmacist (D) for injuries b/c D’s clerk did not mark “poison” as law required.

- Martin: P’s lack of buggy lights was in statute violation & caused the accident, so there is contributory negligence per se & D is not liable.

b) prima facie evidence of negligence - Brown: While chiropractor D violated a licensing statute, D is not automatically liable for P’s injuries

b/c licensing statutes are not safety statutes.c) no form of negligence b/c statute not concerned w/D's standard of care (Bartenders in Dram Statutes)

- to apply, must pass 2 part test:1) P must fall w/in the protected class

- Gorris: Pen statute was not designed to protect sheep washed overboard at sea, so P can’t recover.2) statute must be designed to produce this kind of harm (speeding statute falling tree in Sugar Notch)

- Ross: Carowner D is liable for P’s injuries b/c the “no keys in ignition” was designed to protect against 3rd party actions (as a safe-guard against these types of accidents).

6) Affirmative & Relationship Duties - no affirmative duty to act (no good Samaritan rule via Buch)- current debate between Ames (yes for reasonable needs), Epstein (no b/c limits personal freedom), Posner (yes when there’s an implied bargain), Bender (yes b/c caring, cooperative society)

- Restatement: §322 -- Duty to aid those you cause bodily harm§324 -- Duty not to make victim worse off§327 -- Duty not to prevent a 3rd person from coming to the aid

- with regards to duty created by special relationships to the:§315 (a) injurer: duty to control conduct of 3rd parties (hospital to patient’s victim in Tarasoff)

(b) victim: giving him/her right of protection (landlord to attacked tenant in Kline)

2) Was there a BREACH OF DUTY of D's part?- breach = negligent conduct = D's actions did not meet the applicable standard of care- Res Ipsa Loquitur (RIL) – use where circumstantial evidence creates a presumption of negligence

- Test for finding RIL:1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence2) it must be caused by an agency or instrumentality within the exclusive control of the defendant3) it must not have been due to any voluntary action or contribution on the part of the plaintiff

- RIL does not mean P wins, it just means the facts can go to the jury with the inference of negligence- shifts the burden of proof to D to prove absence of negligence

- Byrne: Barrel falls out of D’s factory & injures P. D is liable b/c can’t explain why D’s not liable.- Vivas: P was hurt on D’s escalator. Even though D contracted a 3rd party for care/repairs, it was still

D’s responsibility, so D is liable.- Ybarra: P was paralyzed by in an operation with multiple Ds & unless any of those Ds can show

evidence of their non-negligence, all Ds are liable (RIL is a sword for P, not a shield for D).- Summary of RIL: 1) P shoes prima facie evidence, 2) goes to jury, 3) allowed to permissive inference from

evidence, 4) judgment based on "logical" presumption (P wins unless D can explain it away)3) Was D's activity the CAUSATION of P's injury? (actual/in fact or proximate)

- must first prove/assume cause in fact then move on to proximate cause

a) Cause in Fact – Did D’s negligent conduct actually cause any part of P's injury?- must meet the but for test: P’s injury would not have occurred but for D’s negligent actions.

- Grimstead: Ct said that P would have survived but for D’s lack of life preservers. - Stimpson: Ct said that P’s water pipes would not have burst but for D’s truck driving over them.

- Richardson: While ct allowed P’s expert testimony that D’s Bendectin caused her birth defects, it was theoretical speculation that disagreed with “nearly universal scientific consensus.” Failed but for test.

- exceptions to the but for test with multiple Ds: i) substantial factor alternative -- D's negligent action was a substantial factor in causing P's injury

(i.e. the drag race (and thereby both racers) caused the injury to P.ii) alternative causes test -- can't distinguish which Ds’ negligent act caused the injury

- Ds have burden of proof for fault (2 negligent hunters in Summer)

b) Cause in Law – Proximate Cause – Was D’s negligence sufficiently connected w/P’s harm to be liable?- It’s a policy consideration determining at what point D’s liability ends (so unforeseeable or too remote)

- 2 tests of PC:1) directness of harm (ex poste/end test)

- wide view of PC = D is liable for any consequences of foreseeably negligent act (any harm)- prevailing US view right now- Polemis (UK): Negligently falling plank ignited a spark & burns the ship down. Ct says use

foreseeability only to determine negligence. If D's negligence is foreseeable, than D is liable for all consequences of that negligence (regardless of foreseeability of those consequences).

- Palsgraf – Andrews dissent (NY): D’s agent pushed a man onto a train, his package exploded causing a scale to fall on P. Based on the Polemis idea, if D's negligence is foreseeable in pushing man was foreseeable, so D is liable for all consequences of that negligence, thus harm to P.

- Marshall (US): Truck driver stalls on an icy hill. P gets out to direct cars around the truck & is hit by D. The driver took a foreseeable risk when he tried to drive up the icy hill. It is up to the jury to decide if that risk was the proximate cause of P's injury. (Does not clearly state Fed. Position)

- Kinsman (US): Present Rule – D is liable for direct harms arising from D’s foreseeably negligent act. Since D's negligence in tying up his boat is foreseeable, D is liable when ice breaks it free, connects with another boat, and creates a dam at a bridge that floods P’s property.

2) foreseeability of harm (ex ante/beginning test): - narrow view of PC = D is liable for foreseeable P/consequences (specific harm) at time act occurred.- Palsgraf – Cardozo majority (NY): P must be a foreseeable plaintiff when D’s actions occurred. D =

negligent in pushing man, D liable b/c both negligence and consequences aren’t foreseeable.- Wagon Mound 1& 2(Aust.): D discharged oil into water were P was welding. P thought oil wouldn’t

burn, continued to weld, and fire caused dock to burn. D is not liable b/c only foreseeable consequence should be considered. 2 is same as 1, but C provides evidence that D knew of fire possibility. D is liable, b/c the fire was now a foreseeable consequence.

- in any event an intervening affirmative act by a 3rd person breaks the chain (though cts rarely judge so)- Brower: D hits P’s wagon & thieves steal from it. D is liable b/c D’s act gave opportunity to thieves.

- Hines: D’s train drops P off 1 mile from her stop & she is raped while walking home, D is liable. - Watson: D is not liable for purposeful criminal interveners if the interveners (determined to do so).

- Wagner: P tries to rescue his cousin after D’s train negligently threw him. D says rescuer = intervener. D is liable b/c any harm to rescuer is w/in proximate cause of D unless the rescuer is unduly reckless.

- No real proximate cause when outcome is pure coincidence – not seen as a likely outcome- Berry v SugarNotch: P’s speeding was not a proximate cause of D’s tree falling on him.- Nitroglycerin case: Nitro fell on P’s toe, but no liability b/c the thing of risk (explosion) didn’t happen.

4) What are the DAMAGES to P?- general rule -- you take the P's person/property as you find it (after your negligent act)V. DEFENSES TO NEGLIGENCE

A. P’s Conduct is a way to negate/limit D’s liability if D was negligent. - P’s lack of due care (reasonableness) was a proximate cause of the accident

1) Contributory Negligence (Old Standard)- completely bars recovery by P (all-or-nothing liability)

- Butterfield: P had plenty of clear space to get around D’s negligently placed pole, so D is not liable.- Beems: P uncoupled D’s RR cars while moving, but ct said D still liable (CN trick for D to use.)

- Gyerman: P had exercised all possible care but quitting his longshoreman job & D is liable for the injuries caused when fish sacks fell on P.- LeRoy Fibre: P placed his hay stacks close to D’s RR tracks, but D’s sparks were liable for the fire.- Derheim: P is injured in an accident caused by D. There is no seat belt defense by D against P’s.

2) Assumption of the risk- occurs when P knew danger, confronted risk, voluntarily continued, and didn’t expect D to protect him.** P must fully appreciate the risk involved – if risk encountered is different/worse D is fully liable

- Express assumption of risk: P directly waives duty by D via a contract (ex: ski diving)- Implied assumption of risk: P indirectly waives/lessens D’s duty though actions

a) Primary assumption of risk: i) D has no duty (ex: when a ball hits a spectator)

ii) P is so aware of danger, that P forgives duty (“The Flopper”)

- Lamson: P assumed any risk of D’s axes falling on him when he took the job.b) Secondary assumption of risk: D has continuing duty to avoid/lessen risk and can only avoid liability

if P was unreasonable (UAR) in taking on of the risk -- RP wouldn't have assumed this risk- ex: ski area have a duty to keep bunny slopes maneuverable but not black diamonds

20/UAR was taken up into3) Comparative Negligence (New Standard)

- liability = proportion of fault; compare P & D’s negligence acts with P's injury to determine recovery- Li: (in CA) P’s act of crossing over 3 lanes of traffic should be proportionally considered with D’s speeding in accessing liability for P’s injuries.

- 2 forms: 1) pure: liability directly proportionally to fault (CA, NY, most scholars)2) 50-50: P’s fault must be less than 50% for P to recover (WI, few scholars)

B. D’s Conduct is a way to re-instate D’s liability if P was negligent. 1) Last Clear Chance doctrine- If D had the last opportunity to avoid the accident, D is negligent. (car not hitting P’s donkey in Davies)

2) Willful, wanton, & reckless conduct on D’s part make D liable for everything (regardless of P’s acts).

- Mutliple Ds/Tortfeasorsa) Joint & Several Liability – P’s harm was caused by multiple Ds (either together or concurrently)

- Joint & Several (R§27A): each D liable for all damages b/c harms are indivisible- P can decide who to claim damages from (looking at assets of each) – can take all from 1 D

- usually P must still prove who caused what harms- JC Penney: P is burned at gas station but P proved that D’s coat causes most of the damages, so P can sue

D for all the damages (cannot claim gas station is solely responsible for the accident).- Summers: P was hit by a bullet that had been fired by one of the 2 Ds. Cts said Ds must prove that they

were not the negligent shooter to avoid liability.- Several (R§27B): each D is only liable for their part/share of the damages b/c harms are divisible

- Sindell: Ct says drug company Ds are each responsible for their market share liability in selling DES drug which harmed the fetus (P doesn’t have to prove specific D of harmed b/c DES is homogeneous).

- inflate Ds’ market share to 100% of P’s injuries, NY says use Ds’ true market share (don’t inflate)- Ex: P falls in road & D1 runs over left arm ($1000 damage) and D2 runs over right arm and leg ($5000

damage). We divide the bodily damage (several L), but the emotional damage is overall/indivisible (J&S L).** if one D pays more than their share under joint & several, the Ds can go into court on with these:

b) Contribution -- Ds each pay equally (regardless of their individual responsibility)c) Indemnification – directly liable D will bring the more faulty D’s into the cased) Comparative contribution -- Ds each their portion of the fault

VII. STRICT LIABILITY (SL): Ultrahazardous or Abnormally Dangerous Activities- liability w/out fault on the D's part -- we are not concerned with D's conduct (this is a policy argument)- PF case requires the 4 elements of negligence except Duty = absolute duty of safety

- Spano: D is liable for harm to P’s garage following blasting for both legal & policy reasons.- Madsen: D is not liable for the loss of P’s minks due to blasting b/c minks killing response was an

intervening act (D could not anticipate such a response).- Restatement 2d:

§519 – Strict Liability for abnormally dangerous activity(1) SL for harm to person/property resulting from the activity (even with utmost care)(2) SL is limited only to the types of harm that make the activity dangerous in the 1st place

§520 -- Factors of abnormally dangerous activity:a) existence of high degree of riskb) likelihood that harm will be great ( latent risks that cause great harm included)c) inability to eliminate risk with use of reasonable cared) extent to which the activity is not a matter of common usage (ex: riding in airplanes not considered)e) inappropriateness of activity to the place it is carried out (subjective)f) extent to which its value to the community is outweighed by its dangerous attributes (subjective)

§522 -- Liability is maintained even with contributory actions of third persons, animals, and nature.

§523 -- Assumption of risk bars P's recovery in these cases.§524 -- Contributory negligence is not a defense, but unreasonable assumption of the risk is.

(A) However, abnormally sensitive behavior on the part of plaintiff/third parties negates strict liability.- 2 treatments of SL Defenses:1) Majority view = if you have knowing contributory negligence, it is a strict defense for D

- almost all states still use contributory standard for SL, even if they use comparative negligence standard2) Other view = in comparative negligence, we will consider this is negligence % and recovery

VIII. PRODUCTS LIABILITY (PL)- umbrella designation – sue product manufacturer/supplier for efficiency (safety) and equity (burdens)- Restatement 2d §402 A: Seller liable for defective product, even though all possible care was used.

- Where: 1) defective condition = looks different than other products from the manufacturer- expanded to include defective/unreasonable design

2) unreasonably dangerous = to the "ordinary" standards of person using it (different from others)3) directions/warnings = seller should have known to warn about product (warnings negate SL) 4) P's conduct = contributory negligence is not a defense; UAR is a defense

K: unavoidably unsafe products are exception to PL; can’t be 100% safe for given use (polio vaccines)- Restatement 3d

§1: Seller of defective product is liable§2: Categories of product:

a. manufacturing defectb. design when "foreseeable" risks could have been avoided

- usually with a reasonable alternative design- state of the art defense = no other reasonable design at time of manufacture

c. warnings could be used to expose foreseeable risks

- Comparing R 2d & R 3d on PL1) Who’s liable? both = producer & any seller in the chain2) What’s a defect? R 2d = manufacturing, design, and warning grouped together as unreasonably dangerous

R 3d = treats manufacturing, design, and warning differently3) State of the Art? both R = not usually a defense to manufacturing defects, only design defects 4) P's conduct? R 2d = not allowed R 3d = Follows Daly

1) Manufacturing Defects (one product is different from all the others)- generally is a SL standard- Escola: D was liable for their coke bottle bursting & injuring P. RIL is a precursor to SL.- McCabe: P buys exploding coffeemaker from D w/an implied warranty of use; D’s liable for P’s injuries.

2) Design Defects (all products are faulty)- generally is a negligence standard (R 3d); was SL b/c it was included under manufacturing defects (R 2d)

- historically, D had no liability if: 1) machine was fit for intended use & 2) defects were open/obvious- Micallef: P’s hand was injured while “chasing the hickie” in D’s press which lacked a guard. D is liable b/c

such practice was a foreseeable use of the product. D needs an incentive to make safer products.- VW: P is injured greatly when D’s seats come free during an accident. D is liable b/c manufacturers have a

duty to make cars reasonably crashworthy – crashing is normal/foreseeable (if not intended) occurrence.- Wilson: While D’s adherence to FAA regulations does not preclude liability, P did not show there was a safer alternative design, so D is not liable for the plane crash.

- Barker: P is injured when D’s crane became unstable on an incline. D is liable for defects via the- 2 Prong Test Barker Test: (If proves 1 P wins, if not move on to 2a & D must defend in 2b.)

1) P shows that the product fails to meet consumer expectations. – doesn’t perform as safely as ordinary consumer expects when used in intended or reasonably foreseeable manner.2) a) P must prove that D's unsafe design (as compared to alternatives) proximately caused the injury.

b) D must prove that benefits outweighed risks (a risk/benefit analysis; PxL<B).- includes factors such as gravity/likelihood of danger, feasibility of alternative design; adverse consequences (“harm") to the product & consumer w/alternative design; regulatory standards

- open/obvious faults are evidence of comparative N- Restatement 3d §2(d) – uses a negligence test

- P must prove design is defective based on reasonably foreseeable risks and eithera) there is an alternative/safer design or b) it’s so unsafe it shouldn’t be on the market

- rule is a trade-off between safety standards and societal benefit (cost, utility, etc.)- create incentives for manufactures to take due care w/design, manufacture & marketing of products

3) Warning Defects (all products) – Duty to Warn (pharmaceuticals) - warnings are not needed when dangers are common knowledge (alcoholism in Stroh)- warnings defects are negligence standard of foreseeability under R 3d; were SL in R 2d

- Borel: D had enough info about asbestos to warn of dangers, so D is liable for harms to employees.- Beshada: exception to SL limitations; asbestos manufactures should spread the risk of harms = SL- Cipollone & King: P’s right to sue for inadequate warnings was preempted by statutory standards

- duty to warn is a negligence standard - R 3d, §6-d-2 -- Prescription drug instructions/warnings are adequate if:

a) given to the doctor if they are in the best position to reduce the risksb) given to patient in instances where doctors are not in the position to reduce risks

- MacDonald: D is liable for P’s stroke b/c D’s BCPs did not adequately warn of specific risk of stroke in layman’s terms. FDA regulations no negligence. Reject old learned intermediary rule.

- Wyeth Labs: Duty to warn in mass immunizations b/c no learned intermediary to convey the risks.- Congress effort to reform mass immunizations torts by covering losses is circumvented (Schafer)

- R 2d, §402A - Comment k: drugs were unavoidably unsafe products & not SL- R 3d §6-c = A prescription drug is unreasonably unsafe when it's foreseeable risks of harm outweigh the

therapeutic benefits to the public. (negligence standard = no state of the art is needed)- Brown (DES): There is no SL for prescription drugs b/c drugs fall under the comment K standard of

negligence. Companies can only warn for things they know about (scientific limitations) & the benefits to the public are usually greater than the harms.

- Brody & Doe: No SL for hospitals that used tainted blood (hep & aids) b/c wasn’t test to know.

- P’s Conduct in Products Liability - historically (R 2d), contributory negligence is no defense; UAR is complete defense (bars P’s recovery)

- Daly (CA): P was drunk while driving & did not properly use D’s defectively designed equipment. P’s conduct should be considered for relevant & apportioned loss.

- R 3d §17 (Daly standard for PL)a) P's recovery may be reduced if their conduct (outside of general rules/standards of care) combines with the

product defect to cause the harmb) extent of reduction is governed by rules apportioning responsibility (comparative negligence)

- R 3d Example: Roger's car temp light went on, he kept driving, & it started a fire. Temp went up b/c ABC's manufacturing -- a hose leaked coolant and exploded.

a) Is the product defective? see §2 -- YES, this product was designed to drive w/out problems.b) What caused the injury -- defect itself or the P's conduct?

- defect itself -- Yes, this is products liability -- manufacturing negligence (this car is not the norm).- P's conduct -- Did P know the real risk of driving with the light on?

- If so, UAR -- bars all recovery but will rarely occur b/c P didn't read the manual.- If not, CN -- many factors must be considered to determine % of reduction.