Table of ContentsTable of Contents..................................................................................................................... 1

CAUSE IN FACT...................................................................................................................... 2Matsuyama v. Birnhaum................................................................................................................... 4Summers v. Tice................................................................................................................................... 5Hymowitz v. Eli Lilly & Co............................................................................................................... 5

NEGLIGENCE.......................................................................................................................... 6Brown v. Kendall................................................................................................................................. 6Codling v. Paglia.................................................................................................................................. 7Baltimore Ohio R.R. v. Goodman case (Holmes, J.).............................................................8Pakara v. Wabash Railway Co. case (Cardozo, J.)...............................................................8Martin v. Herzog case......................................................................................................................... 8Tedla v. Ellman.................................................................................................................................... 8Yabarra v. Spangard.......................................................................................................................... 9

PROXIMATE CAUSE.......................................................................................................... 10Gibson v. Garcia................................................................................................................................ 10Polemis Case....................................................................................................................................... 11Palsgraf v. Long Island R.R. Co.................................................................................................... 11

Duty Requirement: Affirmative Duty to Act....................................................................13Harper Case:...................................................................................................................................... 13Farwell v. Keaton.............................................................................................................................. 13Tarasoff v. Regents of the University of California...................................................................14

DUTY REQUIREMENTS: EMOTIONAL HARM........................................................14Falzone v. Busch................................................................................................................................ 14Gammon v. Osteopathic Hospital of Maine, Inc........................................................................16Johnson v. Jamaica Hospital......................................................................................................... 17Molien case......................................................................................................................................... 18

Defenses to Negligence: Contributory Negligence and Assumption of Risk..............18Murphy v. Steeplechase Amusement Co.....................................................................................19Levandoski v. Cone........................................................................................................................... 19Li v. Yellow cab................................................................................................................................. 19Akins v. Glens Falls City School District.....................................................................................20Knight v. Jewett................................................................................................................................. 20

Intentional Tort....................................................................................................................... 21

Strict Liability/ Product liability......................................................................................... 25

Modern Product Liability..................................................................................................... 29

Products liability:.................................................................................................................... 32s 402A. SPECIAL LIABILITY OF SELLER OF PRODUCT FOR PHYSICAL HARM TO USER OR CONSUMER.......................................................................................................... 34

Defects:...................................................................................................................................... 35Soule v. General Motors.................................................................................................................. 41Camacho v. Honda Motors............................................................................................................. 42

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Warning of unknown/unknowable danger:......................................................................49

Defenses:....................................................................................................................................................... 51

CAUSE IN FACT

Cause-In-Fact:Cause in fact is a question of fact, requiring that the injury would not have occurred “but for” D’s conduct (the ‘’sine qua non” rule).The “But For” Test 

• But for Defendant’s negligence, Plaintiff would not have been injured. Earlier, many courts added a second element: that D’s tortious conduct was a “substantial factor” (or sometimes “a material element [and] [or] a substantial factor”) in bringing about P’s injury. Increasingly, this factor has been discredited, and many courts now reject the ‘’substantial factor” element as part of the definition of factual causation, while retaining it as a scope of liability issue.

The Litigation ProcessProcedure:

1. Consult then retain an attorneya. Attorney tries to get a settlement from other partyb. If settlement is not accept, complainant become a Plaintiff

i. Lawyer initiate lawsuit & will allege factsc. Person sued become a Defendant & retains an attorney

i. If defense attorney think legal theory is unsound he will file a motion to dismiss aka Demurrer (the old-fashion term)

1. The motion is supported w/ legal argument/evidence2. If judge agrees, case will be dismissed

d. Defense Attorney may meet the plaintiff’s allegation (complaint) w/ an answer

i. Denying some or all facts & may state its own facts to defeat the plaintiff’s case

e. Discovery: Obtain evidence before trial (witness, interrogatories, deposition, emails etc.)

i. Before trial defense may file a direct verdict if the plaintiff’s case is weak. The judge will decide on the motion

f. Plaintiff has the burden of proving facts (two components)i. Burden of production: provide facts that favor its case to the jury

ii. Burden of persuasion: must convince fact finders that its story is true & correct. (Preponderance of the evidence)

g. Both sides present evidence at trial. Defense can again file for a motion for a direct verdict if he feels his story is very strong

i. If defendant loses attorney, attorney may file Judgment As A Matter of Law (JAML) aka Judgment notwithstanding. Claiming no reasonable jury would have reached a verdict w/ plaintiff’s evidence.

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ii. If judge feels jury was compromised (prejudicial) he will order a new trial.

2. Hammontree reconsidered3. Damages: Restore Plaintiff to condition prior to injury

a. Compensate for tangible & intangible loss4. Collection on a Judgment

a. Receive payment from defendant i. Defendant may not be willing to pay and plaintiff must seek

alternative method of receiving payment5. Attorneys & fees

a. Different ways to pay attorney (payment 1/3 of case if won)

How to read a case:a. Factsb. Conclusionc. Reasoning

State Courts Federal CourtsState Supreme Court U.S. Supreme CourtState Appellate Court U.S. Court of Appeals (13 circuits)State Trial Court U.S. District Court (94 courts)

Tort law compensate punitive tangible & intangible damages of a victimAlternatives to Tort Law

- Self help- Market reputation- Victim’s health & accident insurance- Injurer’s liability insurance (Mandatory or optional)- Worker’s compensation- Government benefits- Criminal law- Regulation - Apology

Elements of Proof: Negligence (elements that must stand on their own All are required) - Injury- Negligence- Causation in Fact (but for the defendant the injury wouldn’t have occurred)- Proximate Cause

Causal Statement“But for” Test of tort law (This test proves A caused B) (A Speculative test)

- “But for the occurrence of A, B wouldn’t have happened”* To prove causation demonstrate/prove Preponderance of Evidence (50.1% or greater)

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- Evidence in favor of causation must outweigh evidence against causation. Likelihood of causation must exceed (50%)

Torts Strength v. WeaknessStrength: May compensate victimWeakness: May not supply money to victim

Tort Law: Permits private parties to rely on themselves to bring claims to others

Advantage of Tort: - It is retrospective (Looks back at old injuries)- Decentralized nature makes it free from political influences and organizations

*Three (3) Theories*1. Deterrence Theory : Theory used to reduce injuries by applying sanctions &

punitive damages to injured parties to deter certain actions/behaviors (Function is to compensate the victim and deter the behavior).

2. Loss Distribution Theory: Enterprise/ entity (large corp.) is in a better position to broadly distribute the cost of injuries to parties because it has more resources (Spread the loss especially to those who have the means to cover injuries.)

2. Corrective Justice Theory : Theory places responsibility on injurer to injured party to rectify any injustice to place individual is back to status quo. (Seek to reconnect tort law and laissez-faire politics by linking it to concepts of property and ownership. Seeks to restore the injured Plaintiff to the status quo. Restore the equilibrium that has been disturbed by the tortfeasor’s conduct – (corrects the injustice by ordering that the full value of the loss be transferred to the responsible party via damage payment equal to the value of the loss.

Transaction cost in U.S. is high

Nonsuit: Subject (Plaintiff) to the stoppage of their suit on the grounds of failure to make a legal case or bring sufficient evidence

Rumination of Cause in Fact

Tort rely on “But For” test to determine causation- If Plaintiff would have been hurt w/o defendant (No Cause)- If Plaintiff wouldn’t have been hurt w/o defendant (Causation)

Court can use speculative information to find a wrongdoing (Cause) to favor to plaintiff. It must be sufficient.

All or Nothing Rule: (Is a traditional rule) If you cannot establish causation by a preponderance you will lose.

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Ruminations on Cause-in-fact: (Wex Malone)Simple cause (cause-in-fact) is a question of fact. It is for the consideration of the jury whenever the evidence affords ground for reasonable difference of opinion. Simple cause determined by but for test. However, we use past experience to determine. (judge can take away from jury if he feels like jury will be left to conjecture; however, this is the judge using conjecture to decide on conjecture. When he does this will use words like “mere possibility” instead of using “probability”.) Cause is not a fact and must necessarily be an inference drawn from data furnished by the evidence.

“For” Lost Chance Theory: – Special relationship between patient and doctor – higher standard for duty of care and obligation to take necessary precautions serves deterrence.

“Against” Loss Chance Theory: Probability standard of causation treats the better-than-even chance as a certainty. Why should a P whose decedent had a 49% chance of survival recover 49% of the value of their life, when someone whose decedent had a 51% chance of survival can recover 100%. If D’s negligence did not actually cause P’s injuryno justification for requiring D to bear cost of P’s damages. Loss of chance could affect loss of damages in and could affect all forms of negligence. It is much more difficult to define a % of lost chance in non-medical cases (such as Grimstad)

Does loss of chance undermine the causation element? What deterrent function is SO important that we can “bypass” the causation factor? Doctors to a higher standard? Would it require doctors to behave in a non-negligent way? If we didn’t have loss chance, could doctors be reckless and do whatever they want if the chances are below 50%? (“I can do anything I want b/c I won’t be sued under “but for” test.

Loss of Chance Doctrine:Some courts will permit recovery for tortious conduct that did not cause P’s harm but merely reduced P’s chances of a favorable outcome. Some deny all recovery unless the victim’s chances were initially over 50%; some allow damages based on the jury’s determination that the defendant’s negligence was a “substantial factor” in hastening or precipitating the adverse result; and some allow damages based on the percentage difference attributable to the defendant’s negligence times the plaintiff’s total damages.

Under this theory the P would recover % of loss in damages. What if P lives? Still loss the chance of life (our new defined injury). No court has allowed P to collect unless they suffer ultimate result. Is loss of chance really an injury or is this a major challenge that you need the “but for” test by preponderance? Loss of chance is only present when P has a preexisting condition that presents a risk. However, when doctor creates or initiates the harm, loss of chance is not present. Deterrence concern is if P had a <50% chance of living then the doctor could never be held accountable by preponderance and thus would never be held liablebad public policy.

“For” Lost Chance Theory: – Special relationship between patient and doctor – higher standard for duty of care and obligation to take necessary precautions serves deterrence.

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“Against” Loss Chance Theory: Probability standard of causation treats the better-than-even chance as a certainty. Why should a P whose decedent had a 49% chance of survival recover 49% of the value of their life, when someone whose decedent had a 51% chance of survival can recover 100%. If D’s negligence did not actually cause P’s injuryno justification for requiring D to bear cost of P’s damages. Loss of chance could affect loss of damages in and could affect all forms of negligence. It is much more difficult to define a % of lost chance in non-medical cases (such as Grimstad)

Does loss of chance undermine the causation element? What deterrent function is SO important that we can “bypass” the causation factor? Doctors to a higher standard? Would it require doctors to behave in a non-negligent way? If we didn’t have loss chance, could doctors be reckless and do whatever they want if the chances are below 50%? (“I can do anything I want b/c I won’t be sued under “but for” test.

New York R.R. v. Grimstad (US Court of Appeals 1920)Wife sued RR because husband fell off of barge after it was bumped and it didn’t have any safety equipment. (but for D’s not having safety equipment P would have been saved?). Court said that jury was left to pure conjecture and speculation. No award for P cause that was not the cause-in-fact of death.

Reynolds v. Texas & Pacific Ry. (Sup Ct. of Louisiana 1885)Mrs. Reynolds was rushing down stairs to get to train. The stairs were dark and had no handrail. (But where the negligence of the D greatly multiples the chances of accident to the P, and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and injury.)

Kirincich v. Standard Dredging Co. ( US Ct. of Appeals 1940)P fell off ship and drowned. (very similar to Grimstad) (We prefer to balance the budget on the side of the cheap precaution rather than to so characterize the life it is designed to save). Nobody could be sure if safety equipment would have saved P. But argued that reasonable men (jury) could disagree whether if it had been there it would have saved life.

Matsuyama v. Birnbaum (Supre Judiacl Ct. of MA 2008)

Where a physician’s negligence reduces or eliminates the patient’s prospects for achieving a more favorable medical outcome, the physician has harmed the patient and is liable for damages. (gets rid of all or nothing rule – if survival was over 50% than had an action but if under Dr. could act negligently and wouldn’t be liable) Injury is diminished likelihood of achieving a more favorable medical outcome. (there is now tons of reliable evidence (med stats) to prove). Only applicable to medical malpractice.

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Multiple Cause Case # 1

(Driver drives negligent) Car A + Car B ---->(injury) ---> Plaintiff (C)

But for Test: If both drivers are liable. Plaintiff recovers damages from both drivers or one.

If Plaintiff recovers from one driver (A), that liable driver (A) can file suit to the other negligent driver (B) for financial liability (to balance the financial burden)

Multiple Cause Case # 2

(Driver drives negligent) Car A + Car B ---->(injury) ---> Plaintiff (C)

Car A – Ran over C’s arm

Car B - Ran over C’s leg

But for Test: Separate injuries, each driver is liable for their own wrong

Multiple Cause Case # 3 (Joint and several liability: Sue either or both Defendant)

Riding Negligently: Motorcycle A + Motorcycle B make noisehorse is scared runs and hits Plaintiff (C)

Substantial Factor Test: Liability made by one party (motorcycle A’s noise) is sufficient w/o the involvement of another party (motorcycle B’s noise) to cause damage or percentage of damages to the plaintiff (horse scared, running, and hitting the plaintiff)

In combined forces cases there must be evidence that the force set in motion by D was a “substantial factor” in bringing about the damage before the cause issue will be submitted to the jury. However, for this to be applicable it must be clear that the force by the D would have been enough on its own regardless of the other force it combined w/.

Ex: Concurrent - Substantial Factor - A & B negligently drive noisy motorcycles starling a horse that runs off and injuries C. Either Motorcycle alone would have produced the same result. “But for” test does not work b/c whether you remove A or B the injury would have occurred anyway (neither would be liable).

Ex: Combination of Culpable and Innocent Causes Substantial Factor Test – Motorcyclist A’s noise would have startled the horse but at the same time there was an innocent cause (thunder). Regardless of innocent cause as long as the A’s act was a

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substantive factor A is still liable. The “but for” test is usually applied but cannot be if there are multiple causes, such as this.

Ex: Successive Substantial Factor - A’s fire burned the house down and then B’s fire passed over the rubble, there was no injury left to be done, even though B was negligent. Only A is liable

Joint and Several Liability: (Alternative Liability)

P can sue 2 separate negligent D’s and recover the full extent of the damages against either one. (Both D’s were essential to the P’s harm) (Now we have comparative neg.) Alternative Liability is for small number of D’s and likelihood of that one of them injured is highly likely. (Hymowitz)

2 D’s that injury P. Evidence shows negligence of each driver essential to injury. P can sue for damages from either one (whichever is most likely to pay), D can file a “contribution claim” against other D for damages to make it more equal. If 1 D was insolvent, entire loss would rest on the other one. Various changes to this doctrine were made in most states

Indeterminate Defendants:Summers v. Tice: (Multiple D’s) (Sup. Ct. of CA 1948)

P was hunting with 2 D’s. Both D’s shot negligently and one of them hit P in the eye. Could not tell which D caused the injury. Court held both liable. Shifted burden to D’s to prove that they were not the one that caused the injury to P. (Firearm injuries normally held to higher standard)

Holding: Joint tortfeasors & both liable b/c were both negligent and negligence was legal cause of P’s injury.Reasoning: To hold otherwise would be to exonerate both from liability, although each was negligent and the injury resulted from such negligence. Ds should not escape liability and to do so would be unfair to the P.Rule: Burden of proof shifts to the Ds b/c they are usually in a better position to determine which one caused the injury. B/c they were unable to determine it in this case, they were both liable.Notes: Rule only applies if both Ds were negligent

Is this approach limited to virtually simultaneous situations?

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Courts tend to be more stringent w/ cases regarding use of firearms to encourage deterrence

B/c of shift to comparative fault, neither D would be held liable for full damages today. Each D would be assigned a fault % (50% in this case) and would have to pay that % of the total damages

What if there was a third D?

One of Ds was 100% cause of the injury other0%. How can P prove causation by a preponderance of the evidence? 50% likelihood Tice, 50% Simonson was causenot a preponderance, according to classic “but for” test, P loses. Two bad D’s, and a P w/out a remedy from traditional tort law. Court shifted burden of proof to D’s b/c they’re in a better position to show who caused harm (what does that mean though? Were gunmen really in a better position to know, or have better access to know? No. No one can tell. At the beginning of the course, we declared we couldn’t collapse negligence into causationbut isn’t that what we’re doing here? Policy considerations that kind of give us wiggle room to adjust stringent causation requirementthis case wants to take broad view of causation (fudges it a bit) b/c this case deals w/ negligent use of firearms.

Market Share Liability:

A few courts permit “market share” liability when a person was injured by a product (such as a drug) that was produced and sold by multiple manufacturers, but the plaintiff cannot now identify the particular manufacturer that sold the product that caused her injury. Manufacturers representing a substantial share of the relevant market at the time the product was used or consumed can be sued jointly and held severally liable for a proportional part of theplaintiff’s damages. The operative details vary among jurisdictions, but in general the plaintiff must join enough manufacturers to encompass the great majority of the relevant market, and prove their relevant market shares. (A manufacturer can then escape liability by proving thatits product could not have been the one that injured the plaintiff. – Sindell however, not in NY Hymowitz says cant get out of liability even if can prove wasn’t them.) (Based on national market)

Hymowitz v. Eli Lilly & Co. (Ct. of Appeals NY 1989) (Sindell was the CA case)

Women took Drug DES to reduce miscarriages but it caused birth defects in female children. NY Leg. Extended statute of limitations to include this claims cause harm didn’t come until years after. It is impossible to prove exactly which company manufactured the drug taken but they all had at some point. Causation is based on the overall risk produced and not causation so cant exculpate any D’s. Used market share liability – held all manufactures liable based on their market share at time.

Analysis:

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1. Doctrine of alternative liability (Summers v. Tice) doesn’t applytoo many possible wrongdoers and the D’s are not in a better position than P to determine culpability b/c of long latency period

2. Most appropriate that loss be put on those that produced drug, rather than those injured by use, even where precise manufacturer of the drug cannot be identified in a particular action. Chance that a particular manufacturer caused the injury is very remote.

3. Court adopted market share rule- all the manufacturer of DES are liable to each P and liability is dependent on each D’s percentage of national marketprobably not accurateoffset b/c P’s won’t be able to fully recover

4. P needs to prove mother took drug, manufacturer produced drug, injuries came from DES. P can sue any of manufacturers if can prove all 3. No exculpation rule - doesn’t matter if D can prove did not produce drugdeterrence.

5. No notion of proof by a preponderance of evidence or the but for test; case is handled this way for policy

Challenge to the individual Causation Requirement in Mass Products Torts:

Traditionally, tort law requires P must prove that a particular D’s acts caused the P’s injuries. Corrective Justice: P must prove D caused P’s harm. Also distribute losses broadly.

Market Share Liability: The manufacturer is in the best position to discover and guard against defects in its products and to warn of harmful effects – so it has incentives to product safety.

Alternate Liability: Unless D’s could prove that they did not cause harm both held liable. (doesn’t work for mass torts cause not always have all actors in court)

Horowitz Article All injuries were judged by a strict liability standard (1800s) If you can prove liability you don’t have to prove anything liability = fault Mid 1800s (1850) Strict liability concept changed. Developed negligence theory

o Only a portion (portion they were liable for) was held by defendant“Trespass on the case”- indirect harm cases (Negligence)“Trespass”-direct harm cases (Strict Liability)

Justice Shaw: “It doesn’t matter. if it is not an intentional injury you need to prove negligence”

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NegligenceRestatement § 3 Negligence:

A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.

Negligence is the act that creates an unreasonable risk of harm to another

Negligence is the conjunction of an unreasonable act and a foreseeable harm

Brown v. Kendall (Supreme Judicial Ct. of MA 1850)

D accidentally hit P in eye with stick. If in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom. (Basically saying negligence needed now) If the act of hitting the P was unintentional, on the part of the D, and done in the doing of a lawful act, then the D was not liable, unless it was done in the want of exercise of due care, adapted to the exigency of the case. (need some fault, negligence carelessness or want of prudence)

Common Law – Holmes: the state should only place liability and damages to defendant when defendant is morally culpable and plaintiff is morally innocent. (injury cost that was placed on defendant was placed on injured party).

Logic of negligence: status quo= losses lie where they fall.

Reasonable Person:

Reasonable Person – does not excel, the general average of the community.

1. Knowledge, Experience and Perception.

And if D has superior intelligence, memory perception, knowledge, or judgment, he will be held to that standard. But D’s deficiency in any of these attributes is ignored; he is still held to the standard of the reasonable (i.e. normal) person

2. Activities Requiring Skill. If D chooses to engage in an activity requiring learned skills or certain knowledge, his conduct is measured against the hypothetical person who is reasonably skilled and knowledgeable in that activity. (Stevens v. Veenstra – beginner driver, risk borne by the beginner)

3. Physical Characteristics. The “reasonable person” standard is subjective to the extent that if D has a physical deficiency or disability, his conduct is measured against that of a reasonably prudent person with his physical characteristics.(Roberts v. Ramsbottom)

Restatement §283B – if the actor is ill or otherwise physically disabled, the standard of conduct to which he must conform to avoid being neg. is that of a reasonable man under like disability.

4. Mental Capacity. In judging D’s conduct, no allowance is made for deficiencies in D’s mental capacity to conform to the “reasonable person” standard of care.

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The fact that D is mentally deficient, voluntarily intoxicated, or even insane does not matter. His conduct is

measured against the reasonably prudent sane, sober and normal person. A few courts apply a subjective standard to insane or mentally disabled persons. (Vaughan v. Menlove)

5. Minors. Minors are an exception. If D is a minor, the test is what is reasonable conduct for a child of D’s age, intelligence, and experience under the circumstances. But this exception does not apply to minors engaging in “adult” activities requiring special skills and training, such as driving a car or flying an airplane. Below a certain age (in some states, arbitrarily fixed at seven), a young child is incapable of negligence because he or she lacks the mental maturity and experience to assess and respond to risks.(Mastland v. Evans Furniture – Reasonable Child Standard)

Codling v. Paglia (Ct. of App NY 1973)

Advances in technology have made it difficult for consumer to really understand how drugs, products work. Manufacturer has best knowledge to make safe products. Therefore, strict liability. Only if 1) at time of accident product being used for its purpose 2) if person would not by the exercise of reasonable care have discovered the defect and perceived danger 3) that by the exercise of reasonable care the person injured or damaged would not otherwise have averted his injury or damages.

Roberts v. Ring (Sup. Ct. Minn 1919)

Reasonable Child Standard and Physical infirmities can be taken into account.

Restatement §283B – if the actor is ill or otherwise physically disabled, the standard of conduct to which he must conform to avoid being neg. is that of a reasonable man under like disability.

Calculus of Risk: risk-benefit test, conduct is negligent if disadvantages outweigh its advantage, conduct is not neg. if its advantages outweigh its disadvantages.

Restatement § 3 Negligence:

A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.

Hand Formula: (Hard to actually use)

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B<PL

(burden of taking precaution)< (Probability of harm)(gravity of harm if it occurs)

Judge Hand Formula: B<PLB (Burden of taking adequate precautions to avert harm)P (probability of Harm)L (gravity of harm if it occurs)

If B is less than PxL: defendant is negligent If B is larger than PxL: Defendant is NOT negligent

In a cost benefit analysis: Benefit: PxL; Cost: B:

Critque of Hand Formula It is not correct to jepordize the public good for personal profit if personal

benefits outweighs the public liabilityo The Hand Formula fosters injustice (socially and Morally)

US v. Carroll towing Co. (US Ct. of Appeals 1947)

Owener’s duty: 1) the probability that she will break away 2) the gravity of the resulting injury, if she does 3) the burden of adequate precaution. (Hand Forumla)

(If cost of safety measure ments outweigh the cost of harm then don’t get safety meansures)

Bolton – says take into account P and L not B (stop playing cricket)

Duty and Breach:

Restatement §6: Liability for Negligence Causing Physical Harm

An actor whose negligence is a factual cause of physical harm is subject to liability for any such harm within the scope of liability, unless the court determines that the ordinary duty of reasonable care is inapplicable. (an actor that causes risk of physical harm to others has duty to exercise reasonable care)

Restatement §7 Duty:

An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.

The Roles of Judge and Jury:

Baltimore & Ohio Railraod Co. v. Goodman:

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Shouldn’t allow jury to possibility to interpret laws that have already been determined (standard of conduct)

Common standards should be expressed by a judge because they are already established. The standard will set the guidelines of a reasonable standard.

Holding: trial court and court of appeals ruled for Goodman’s wife. Holmes (S.C)jury should not even have gotten the case. b/c this issue is not a matter regarding Duty of Care by the RR but the standard of conduct from Goodman and anyone else approaching a RR track.

A P would have to come to complete stoplook both wayshard to ever prove it was the trains fault. Judges see a lot of similar factual casesacquire great knowledge of how a jury will rule. Since juries area made up of 12 reasonable people from societymore likely than not always come up w/ same conclusion. This would make courts more efficient. Possibility jury would get verdict wrong and judge won’t since they see so many similar cases. If there is no standard of conduct in advance then how would people know what is expected of themisn’t a judge just a qualified if not more to rule on cases w/out juries deliberation and rule in same manner? For this caseJudge Holmes able to separate duty of care vs. matter of conduct. Therefore, I think he does justify it.

Holmes – question of due care generally left to jury; however, when standard of care is clear it should be laid down once and for all.

Pokora v. Wabash Railway Co. (1934)

Reasonableness of crossing track should be determined by a jury. Each situation is indifferent due to this the jury should determine the standard of reasonableness

Cardozo – Overrules Baltimore above. Should leave to jury for what is reasonable. Things changes/evolve cant set down exact set of rules. Cardozo’s view contrast holmes.

Holding: Court of Appeals affirmed a directed verdict for the RR. Court of Appeals had relied on the Goodman case in which Holmes imposed a standard for application by the judge. Cardozo recognizes that it was a controversial way to handle the case and asserts that a jury is responsible for determining what the P should or should not have done. Cardozo thinks we need to go on a case by case basis and it is not clear cut enough to have judges rule w/out juries. Therefore, the case is remanded to the lower courts.

Notes: Cardozo is saying that it is juries duty to determine whether P contributed to their own downfall or if the D was negligent (not consistent w/ Adams and Greene. 2. Judges disagreeing mean jury question? No. I don’t think judges are arguing w/ decision. Instead are arguing that it is not the right of judges to make those determinations and that a jury must decide otherwise there will not be an opportunity for social and/or regulation change. 3. Court may approve a summary judgment if there is not a dispute over the evidence.

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HOLMES: fixed uniform standard of conduct so everyone will know how they are suppose to act; also juries are less rational than judges

CARDOZO: different standards depending on where, when, circumstances, community norms; case by case basis because times change and the question of negligence is one for the jury

Customs:

In determining whether conduct is negligent, the customary conduct of the community, industry, profession, or other relevant group in similar circumstances is relevant but not conclusive.

Exception: In professional negligence cases involving physicians and certain other professionals, customary conduct usually is conclusive as to the standard of care.

Trimarco v. Klein (Ct. of App NY 1982)

D apartment owner didn’t follow custom of having shatterproof glass. Found negligent.

Custom is common practice – need proof ignored it. Must also be reasonable. Custom may show if D acted reasonably.

“Custom” – 2 circumstances: P can try to show D deviated from custom and therefore was negligent. D can try to show that conformity to custom can prove that they were not negligent. Is custom w/in a given community always reasonable? Clearly custom is not necessarily reasonable. Even if you can show that a certain custom of conduct is common it does not mean that it is reasonable. Reasonable is defined by “ought” and not by “is”. Holmes quote about what ought to be done. If custom is not the same as reasonableness than why does it have any value at all? On page 71-72 in Morris. 3 reasons: If an entire industry follows a custom than the court may become aware that there may be a safer way to do things than what P is claiming. If no one follows this non customary item than D can claim a “lack of notice”. If customary behavior involves large fixed costs than the court is wary of imposing those costs.

1. In many instances reasonable prudence is same as what is commonly done. Butdifficult to determine when something is done by many people and when it actually becomes a custom. Relating to Trimarco, installation of new shower doors may be done by some apt. complexes but may not be sufficient to say it was required by all

2. If industry adheres to a certain way of doing something the court might be skeptical of anything a P claims to be an alternatives and require adequate reasoning/proof of its ability. Even if alternative is proved to work by the P, if it is not well known it is reasonable to believe the D may not have heard about it.

3. Even if there are things that could have been done. (Lavallee v. Vermont Motor Inn’s – did not have emergency lighting for power outages) if it is not used by others in the industry it is very hard to prove D violated duty of ordinary care. Just b/c other

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competitors in the industry have safer methods does not mean its custom, does not guarantee negligence on the D. Difference between smaller and larger companies in an industry and their ability to incur costs for safety updates.

Statues in negligence:

Legislation is relevant on the standard of care in a negligence case only if the statute was intended, at least in part, to protect a class of persons which includes P against the particular hazard and kind of harm which resulted.

Martin v. Herzog (Ct. of App NY 1920)

Statutes should not be undermined. They are written for a specific purpose with a specific intent by the legislature. In some cases statute can be left to jury to interpret for a case but that is up to the judge to refer case to the jury.

Cardozo – buggy didn’t have any lights on it in violation of statute. – unexcused omission of the statutory lights is more than evidence of negligence – it is negligence itself.

Telda v. Ellman (Ct. of App NY 1939)

People were walking on wrong side of road and hit. They were in violation of statute. – Statute was in place to protect ppl – however, they would have been in more danger if walking on other side. Would a reasonable person is situation violate statute for safety, overrules Martin.

Notes:

If NOT negligence per se via the statute, we go w/ the reasonable person standard.

Sometimes circumstances of cases prevent people from acting in accordance w/ statutes or gen. rules. It is the court’s responsibility to determine how viable circumstances if P or D should be excused for actions.

If Tedlas brother was deaf? He would have been putting himself in more danger b/c he cannot see the cars behind him. Therefore he would have been safer on the left hand side of the road even w/ heavy traffic.

No basis to “excuse violation of the law where violations are common practice”.

Sometimes violations are ruled to be irrelevant if damage occurred was out of the scope of the purpose of the statute (e.g. parent gives kid a gun, kid drops gun on friends toe but gun does not go off).

Performing a practice that you are not authorized or licensed to do is negligence.

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Negligence per se (posner) – Courts are reluctant to make any violation of a license negligence would basically be strict liability. Even if the person is not licensed they may have acted reasonable while performing the action. Is there such a thing as non negligence per se (I conformed to the statute so you cannot say I am negligent). No. Reasonable person standard is higher than statutory minimum. Can the reasonable person standard make you directly violate a statute? Yes. 1. If compliance would cause more danger than violation. 2. If compliance would be beyond defendant’s control. Why bother w/ statutes at all? Negligence per se has more teeth than custom but it is not an absolute guarantee. Statutes represent a kind of authoritative ruling than a custom. Give D’s advanced noticewidespread normative expectations. Existence of a statute hold D’s liablewon’t catch them by surprise and impose many costs.

Statutes (Continued & review)Violate a statute is negligence per se (Posner): Represent yourself w/o an attorney

Other court say violation of some statutes are reasonable

Three (3) Important Point Regarding Statute1. Statutory Purpose : Must be of the type for the statute is suppose to protect

a. CB p. 82 (Di Pozio v. Riordan)2. Statutory Requirement : Even when defendant violates a statute, Plaintiff still

have to prove the person’s conduct is below reasonable standard (Must prove violation of reasonableness standard)

a. CB p. 83 (Brown v. Shyne)3. Compliance w/ Statute : Compliance w/ statute does not mean that you are

free from negligence. You may not meet reasonableness standard. This standard may supersede a legislative statute.

Proof of Negligence: Res Ipsa Loquitur “thing speaks for itself”(rule of circumstantial evidence when direct evidence is not met)

1. In absence of evidence of negligence, P can use res ipsa as inferred evidence. Each prong must be proven beyond a preponderance of evidence.

a. Used as circumstantial evidentiary device to shield against D’s motion for summary judgment/directed verdict.

b. Three Prong Test: Criteria for P’s burden of proof:

1. Would this accident normally occur w/out negligence?

2. Did D have exclusive control over instrumentality that caused harm? (must have exclusive control)

3. Did P’s contributory negligence lead to the harm? (P cannot have contributed for res ispsa to apply)

4. Plaintiff must meet burden of proof as to one of the following: injury, causation of fact, negligence, (proximate cause),

NY allows Res ipsa as a permissive inference: jury can make the jump

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CA is presumption (burden shifts to D to show he was not negligent)

INFERENCE (Majority rule): burden does not shift – from where jury can conclude that negligent actions happened, even without evidence.

W/PRESUMPTION (Minority rule- CA) to shift burden to D who must rebut it or be convicted; if D cannot provide evidence to show no negligence, P is granted summary judgment. However, if D shows some proof, burden moves back to P and then the jury must find more likely than not that negligence occurred.

Res ipsa usually doesn’t apply when there are multiple D’s.

Ex. McDougald case:

instrumentality: the tire comes out which was the drivers responsibility exclusively

occurred w/o negligence: plaintiff does not have to limit with certainty all other causes

Ybarra v. Spangard (Sup. Ct. CA 1944)

P was hurt in while unconscious during surgery. Each member of surgical staff owed a duty of care to plaintiff. Judge altered the inference standard of res ipsa loquitor to a presumption of liability because no one in the medical team owned up to the plaintiff’s injury.

CALIFORNIA uses presumption element of res ipsa loquitor.

Presumption: Shifts burden of proof to other party (defendant) to rebute Defendant can introduce some rebuttal evidence to shift burden of proof

back to Plaintiff

Strict Liability: Defendant is liable if you prove causation, but may not prove negligence

Under 3 factors of Res Ipsa does this case qualify? YES (1) One could assume the injury is a result of neg. because it is highly unlikely such an injury would occur otherwise (2) Its enough to know that the instrumentality that caused the injury was in the hands of this group of individuals rather than anyone else and is enough (3) Patient was unconscious so could not be contrib.. neg. Reluctant to hold other than Dr. /patient relationship since they work together and code of silence.

Barrett v. Emanuel Hos. – modern discovery practice cast doubt on need for res ispa. – and P must be able to establish that probability that a particular D’s conduct was the cause of the

plaintiff’s harm.

Example: Hit and run: P can identify the “make” of the car. Sues everyone w/ that kind of car. This seems different from Ybarra b/c none of the car owners know each other and there is no preexisting relationship between D’s and P, and higher duty of care and b/c all

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Ds had control of instrumentality at some point. Also P was not unconsciousdifferent from Ybarra. Plus D’s can’t put pressure on the D’s to “finger” the person responsible b/c they do not know.

Difference between res ipsa (Ybarra) and strict liability (negligence would not matter)

Possibility of exculpating oneself by proving non-negligence in res ipsa. If one of the doctor’s spoke up then the others would have been off the hook.

Strict liability requires more (causation)

Proof of Negligence: Res ipsa loquitur- Rule of circumstantial evidence that permits an inference of negligence under certain circumstances. A shield for P so the case isn’t thrown out. Permits, but does not compel, a jury to make an inference (to negligence or not). It creates an inference of negligence. An inference does not shift the burden of proof. A presumption shifts the burden of proof to the D. D must introduce evidence that there was no negligence. In this case Res Ipsa is not a shield for the P but a sword for them against the D. But if D does present evidence then the presumption disappears. It may be strong, it may be weak just gets it to the jurythen they can decide on its strength. (inapplicable where the instrumentality producing the injury or damage is unknown or is not in the exclusive control of D)

Can only be used in RARE instances. P is required to prove:

1) Instrumentality that caused the injury was in the exclusive control of D

2) The accident would not have occurred in the absence of negligence

3) P was not contributory negligent

Proximate Cause: (or Scope of Liability): an additional factor courts look into pursing negligence claim to regulate the scope of liability.

Proximate cause deals with 3 main areas (Explain each or one when doing proximate cause from Def. View):

a. unexpected manner (manner of injury occurs in way that defendant would not have expected)

i. intervening -> superseding caused (Gibson v. Garcia) (Do u Expect Zebra in Road)

b. unexpected harm (nature or extent of injury itself goes beyond what could have been expected) Did you expect a cop to crash into a telephone pole because someone pushed an alarm button? Maybe not. (Wagonmound)

c. unexpected plaintiff (when does the face that the plaintiff themselves was an unexpected victim come into play (palsgraf)

Unexpected Manner: (Superseding Causes)

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3.Unexpected Manner: Superseding Cause - the injury is foreseeable but not the way it happened

*Unexpected Manner Rule: The harm must be foreseeable but the manner in which it happens doesn’t have to be. Ex. If an elephant crashes into a rotten pole, even though that specific event was unforeseeable, it was foreseeable that something would crash into it.

Gibson v. Garcia (D. Ct. of App of CA 1950)

One D hits other D’s pole with car and causes it to fall on P causing injury. “But for” test fails for D(LA transit) who owns the pole, because injury was caused by intervening act.

RULE: The original actor is liable when the intervening cause is not a superseding cause. Even though Garcia was unforeseeable, the event that something would crash into the pole was indeed foreseeable.

1) If the intervening cause is foreseeable, then the D is held liable

OR

2) If it is a normal consequence of the negligent actor, then D is still negligent, as long as what occurred was foreseeable

Proximate cause is not stopped by intervention of outside force if original negligence continues and contributes substantially to an injury along with the intervening act. Each may be P/C and full liability may be imposed. Decision was to let the jury decide if the collision with the pole was an intervening or superseding cause. Inconsistent with §435 if extraordinary.

1. Actor should have realized 3rd party would act

2. Reasonable man wouldn’t have regarded it extraordinary for 3rd parties act.

3. Intervening act is a consequence of a situation caused by actors conduct.

§ 435 - Intervening cause unforeseeable. LA Transit is saying that the intervening cause is not foreseeable, so LA Transit’s is not the proximate cause of the accident. But Court says no---the intervening cause can be negligent and unforeseeable and the original negative actor can still be held liable.

Restatement: §435 – Foreseeability of harm or manner of occurrence

a. If conduct is substantial factor in bringing about another’s injury, foreseeability is irrelevant and the actor is liable

b. Actor’s conduct is held as legal cause of harm to another when after the harm and looking back to negligent actor’s conduct it does not appear to the court as highly

extraordinary that it should have brought about the harm

§ 443 - Normal Intervening Force: intervening force that is the normal consequence of the situation created by the actor’s negligent conduct is not superseded. D still liable.

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§ 447 – Negligence of Intervening Acts: 3rd party’s negligence is not superseding factor if:

a. 1st person should have foreseen 3rd person’s act

b. Reasonable person would not consider 3rd person’s act extraordinary

c. 3rd person’s act is normal consequence of situation created by D

§ 448 – Intentional Torts Done Under the Opportunity Afforded by the Actor’s Negligence: if the intervening act in an Intentional Tort or a crime, it is superseding cause, unless the negligent actor should have realized that such a situation may be created and a 3rd party may have the opportunity to act.

§ 450 - Force of Nature: extraordinary force of nature that increases/ accelerates harm which would have otherwise resulted from D’s negligence is not superseding.

§ 451 – Force of Nature Bringing Different Harm from Actor’s Negligence: intervening force of nature without which harm would not have resulted from actor’s negligence is superseding if:

a. force of nature is extraordinary

b. resulting harm is different from what would have resulted from D’s negligence

Determining Consequences

Two Rules:

1. All (Direct) Consequences Rule: Once negligent act is determined, foreseeability is irrelevant. Negligent actor is liable for all direct consequences of negligent act. There can be no intervening force between D’s neg. and the harm to the P.

2. Foreseeable Consequences Rule: Foreseeable consequences are a test for all consequences. Liability ends where the consequences are no longer foreseeable.

Polemis (Direct Consequences Rule)

-Board fell in ship hole and made spark, lit Benzene vapors and fire burned the ship. If spark caused fire, D is liable regardless of whether dropping the plank would foreseeably cause spark or the ship to burn.

SIGNIFICANCE: Negligence is an unreasonable act; negligence is the foreseeable risk of harm and the occurrence of a foreseeable injury.

-Two Definitions of Negligence established:

1. Fairness to the plaintiff: foreseeability is relevant only in deciding whether the actor was negligent, not in deciding what consequences actor should be held liable for…it is used to determine negligence;

a. once found negligent, actor is responsible for all consequences foreseeable or not

2. Fairness to the defendant: use foreseeability to show actor is negligent, then continue to use it to determine if damage was foreseeable as to hold actor responsible

a. once found negligent, if a consequence is not foreseeable, proximate cause cuts off liability.

-2 Views of Proximate Cause:

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“All Consequences rule”- Foreseeability may be relevant to whether or not you are negligent but that is all. Once that door is opened by negligent the D is responsible for all damages. Ex: Reasonable for boat being destroyed.

a. “Direct Consequences Rule” – does not matter whether the consequences were foreseeable or not but they have to be the direct consequence of D’s action. (From Polemis court which modified the all consequences rule)

“Foreseeable Consequences Rule” - Foreseeability is also used to determine negligence but also to determine what consequences you are responsible for. Ex: D is not reasonable for destruction of the boat for the damages that the extent to their harm would have incurred. Apply foreseeability to consequences, as soon as you get to a result is unforeseeable the D is no longer liable. (Wagon Mound)

Wagonmound (Foreseeable Consequences Rule)

D spilled bunkering oil in water (not flammable when mixed with water…they thought). Court held P liable for foreseeable damages, such as the congealing of oil in the slipways of other ships, but not for unforeseeable damage such as the fire. Ct. held that it is not just or moral that D’s negligence should make D responsible for all consequences, no matter how unforeseeable as long as they are direct. Foresight of reasonable person determines responsibility, not hindsight. Only responsible for foreseeable consequences-D not liable. It was foreseeable that the oil would mess up people’s property, but not that it would catch on fire.

Critique of Polemis- direct consequences rule in Polemis is unjust to indirect parties. Adoption of the foreseeable consequences rule in this case.

Modifies Polemis reasoning of All consequences rule to the direct consequences rule, then rejects that and adopts the “foreseeable consequence rule”.

Key: For negligence to occur (Polemis or Wagonmound) there must be a negligent act.

RULE: test each consequence for its foreseeability and if it is, then the P can recover, but if not, no recovery.

Theories of Negligence:

1.) Negligence in the Air: something a reasonable person would not do, whether it results in harm or not, is negligence. When someone acts unreasonable and it creates a risk of harm then a negligent act has occurred.

2.) Negligence must have Injury: negligence only results when unreasonable acts result in harm. W/O harm there is not negligence.

Example: Restatement Section 281 – Illustration #3 – D hands a loaded pistol to a little boy and tells him to walk across the room and give the pistol to another boy. On the way across the room the kid drops the gun on someone’s foot. Negligence to D? No. It is not b/c foreseeable harm is for the gun to go off and shoot someone.

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But if the gun did discharge and hit someone else after being dropped and break another’s foot the person w/ the broken foot cannot sue but the person shot can. If you held the “foreseeable consequence rule” for this situation neither would be able to recover.

Unexpected Harm:

Benn v. Thomas (Sup. Ct. of IA 1994)

P had an risk of coronary disease. D rear-ended and P died as result from heart attack 6 days later. (Dr. said accident was straw that broke camel’s back)

Eggshell Plaintiff: - take the P as you find him, even if that means that the D must compensate the P for harm an ordinary person would not have suffered. Defendant is liable for plaintiffs injury even if the injury is not foreseeable.

- this negates the foreseeability element of establishing proximate cause; it is only necessary to be negligent and cause an injury…foreseeability of extent of the injury does not apply.

Smith v. Leech Brian (P burns lip)

Use Egg Shell” worker in gas industry burnt lip by D negligent act. P was predisposed with cancer (unforeseeable) burnt lip (foreseeable), Co. negligent for act of burnt lip

Unexpected Victim:

Palsgraf v. Long Island Railroad Co. (P gets hit w/ fireworks) – CARDOZO

P injured by falling scales while standing on the platform when package of another passenger running to catch train falls and explodes as the guard helps him onto train. The passenger was never found and the bag in which the fireworks were in was unmarked, giving no indication of its contents. ISSUE: Was there a breach of duty to P (Palsgraf)? NO. Guard owed a duty to the man who he helped on the train to prevent injury to him. However, Guard owed no duty relationship to P who was not a passenger, therefore can’t have a breach of duty, no negligence-causation is irrelevant. There was no foreseeable risk to P and since risk defines duty, there is no duty to P and therefore no negligence. The only foreseeable damage was to the property- the explosion and damage were outside the foreseeablity Helen Palsgraf is, if anything, piggybacking on the wrong done to another-i.e. property owner who experienced a loss

Cardozo: (relational negligence)

“Risk reasonably perceived defines the duty to be obeyed.”

Defined in terms of a specific duty owed to a specific individual-highly particularized notion of duty. Negligence cannot exist unless a relationship based on duty precedes the event

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The judge should be deciding what the duty is, and if not clearly foreseeable – give to the jury.

IN ZONE OF DANGER: P can recover only if reasonable person would have foreseen a risk of injury to her in the circumstances.

ORBIT of REASONABLE VIGILENCE: range disclosed to which one can reasonably foresee P to which they owe a duty of care.

Binary relationships: obligation to one P cannot be transferred to another to whom duty was not originally owed. Torts are a matter of relationships between A+B, not A and society.

Cardozo limited view of negligence with foreseeability, but the implications in P/C are far reaching – once negligence is established then D would be responsible for all consequences of negligent act.

Cardozo’s examples of when people can collect damages outside the realm of harm: imminently dangerous cts like shooting or transferred intent where the defendant willfully acts dangerously toward plaintiff.

Andrews View on Negligence – Universal Negligence – when you perform an unreasonable act that creates risk to society you are negligent). Duty – everyone owes everyone duty. Person inside or outside the orbit or duty…does not matter. Foreseeability is necessary but not the actual occurrence of some foreseeable harm. D breached a duty to P b/c he owes a duty to the world (and she is part of the world). * less rigorous standard for negligence, more rigorous for consequences (only responsible for proximate cause), limits liability at consequences (i.e. proximate cause)

The proximate cause must be, at the least, something w/out which the event would not happen. We must look at this case in relation to the time and remoteness of the action in relation to the injury. The chauffeur may have thought it was possible that there would be an injury, even if it happened in a different way he is still liable. The causes of anything can be traced backward to a certain point. It cannot be denied that the explosion was the direct cause of the P’s injury and it was foreseeable that someone would get injured given the action, just didn’t know how. B/c of policy considerations you cut off liability at some point in time.

Cardozo (Torts -A Private Law for enforcing duty relationship): Judge to determine if duty exists and jury to decide if D breached duty. The judge is the eye of reasonable vigilance. But if it is not obvious, judge should give the question to the jury along w/ the question of breach of duty. In Palsgraf, he took the case away from the jury, so apparently he thought the judge alone should decide if there was duty. Court should determine if there is a duty to P. If it is possible to draw varying inferences then the jury should decided.

Andrews(Torts -More of public some private): Not clear whether jury should be given proximate cause question. Strong inference- court should be making policy considerations (regarding proximate cause). Cause in fact is for jury.

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Rescuers:

While intervention of rescuer may not be truly foreseeable, D is accountable for injuries to rescuer caused by D’s negligence. Doesn’t matter if risk assessed. (Wagner v. International Railway)

Notes cases:

Moore v. Shah (1982) – P donated kidney to his father who was hurt through D’s malpractice. Donors actions were not foreseeable and not made under pressure so he was not entitled to recovery as a rescue

Firman v. Sarcia (1959s) – D drove negligently, hit P, who struck a 3 yr old that suffered severe brain trauma. P shoots and kills D 7 yrs later. P claimed he did not realize the nature of his consequences.

Ryan v. New York Central RR (1866) – Sparks from D’s negligently maintained engine ignited one of its sheds and the fire spread across many buildings. Judge Andrews ruled that it was not expected that it would spread from building to building so RR was only cause of the initial building fire. Almost all other states reject view.

The Kinsman cases: Kisman transit owned the Shiras who responded inadequately to impending danger of stream made of ice and water. As a result, crashed into the properly docked Tewksburywent downstream and both crashed into a city bridge which was negligently not raised. This caused a backup of the ice, no flow of water down stream, and flooding damage.

Wagon Mound excludes liability where the injury sprang from a hazard different from that which was improperly risked. This is stupid. If the consequences other and greater than foreseen does not make the conduct any less culpable or provide a reasoned basis for insulation

Pragmatic Realism and Proximate Cause in America, Herbert Hovenkamp, (1984)

Facts: 1980s, Boston and Albany RR Company operated a terminal branch from the Village of Spencer, Mass to the main line in South Spencer. Howard Stone owned a lumberyard across the tracks from the RRs freight stock. On Sept, 13, 1893 B & A loading terminal was crowded w/ barrels of fuel and it was spilled all over the place by employees. No one cleaned it up, or planned to until the dock was cleared. In the afternoon, a salesman, Casserly, loaded his pipe, relit it and threw down a match which caused a great explosion. Oil barrels blew up and the fire spread to Stone’s lumberyard burning it down. Stone brought a case versus B & A for negligence but lost b/c it was determined that proximate cause was Casserly’s thrown match and that the last sufficient cause is as far back as the law will look back.

Affirmative Duty to Act: No duty rule: a person does not have a duty to another person if there is not a special relationship between the parties. A duty is a legal obligation imposed on one person for a benefit of another. There is no general duty to act. Questions of duty require a relationship between parties (i.e. an affirmative duty to act)

NO DUTY TO ACT

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1.) Good Samaritan- You have no obligation to take on duty to remedy wrongs for others. (ex: swimmer) No legal duty imposed on a Good Samaritan, although he may be guilty of a morally repugnant failure to act. Moral obligations do not dictate legal ones. No liability in tort unless legal obligation breach. Once Good Samaritan assumes a duty to act, then misfeasance makes him liable.

2.) Nonfeasance- D (onlooker) did nothing to create the risk, even when you can see the harm. No Duty/No Liability/No Obligation. àExceptions (1) Special Relationship (2) Rescuers

3.) Misfeasance- D creates situation to harm another through an act or an omission. Duty/Liability (def.- A lawful act performed in a wrongful manner- not throwing in life preserver when someone is drowning-DUTY ). Defendant must exercise reasonable care for a foreseeable plaintiff.

Harper v. Herman (P is unlucky diver)

P owned a boat that D was a guest (didn’t know each other though). P lowered anchor and D dove in, hit bottom of lake, severed spinal cord.

ISSUE: Did D owe a duty of care? (warn/assist) NO. (no special relationship no duty)

RULE: Unless there is a special relationship between D and P, D is not liable for refusal to assist or failure to warn. Superior knowledge of a dangerous condition does not mean there is a duty to protect---to be negligence, must establish there was a duty of care, a special relationship b/w P and D. Maybe actual knowledge.

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RULE: a duty to act only arises when a special relationship exists between parties which give right to protection

EXCEPTIONS TO NO DUTY:

1. when a special relationship exists, there comes with it a duty to assist

2. Special relationships: (1) common carriers (2) Innkeepers (3) Possessors of Land open to public (4) Custody where person is reliant upon you. –RESTATMENT §314A

3. Once D voluntarily begins help, must continue w/ reasonable care or D may be liable for being careless in the rescue or if the other is left in worse shape.

Farwell v. Keaton (drunk pals get in trouble)

2 friends, 1 beaten and left in car by friend who had tried to help when they got in a fight over girls outside a restaurant with another group of guys. P(beaten) dies and D is held liable.

HOLDING: there was a relationship, a drinking buddy relationship. Court has the ability to carve out new relationships.

Two arguments for D’s liability: 1) P and D were companions in a social venture and this creates a duty. 2) D could be liable for failing to exercise reasonable care after coming to someone’s aid…called rescuer liability.

-If you start giving aide to someone who is helpless, then you have assumed a duty-can be held liable if you do it in (1) an reasonable manner (2) discontinued aide and leave them worse off then before

-Question of duty is for the judge but to determine whether a duty exists or not based on factual circumstances is for the jury.

Considerations from the Restatement:

§322: when an actor knows his conduct created the harm, actor has a duty to try to prevent greater harm

§324: rescuer rule- once voluntarily begin to help another, you are held to a duty to exercise reasonable care to the injured party, and will be liable if you breach that duty and stop giving aid, and leave that person in a worse condition than you find them

§326: if you prevent another from helping an injured party, you are liable

Note cases:

Bjerke v. Johnson – D’s invited P (a minor) to live w/ them. Minor had sexual relations w/ D’s live in boyfriend. When P filed suit against D court ruled the D assumed duty (a special relationship)

Simonsen v. Thorin – Non negligent harm – Motorist who ran into a pole (w/out fault), pole fell, motorist drove on, another motorist hit pole = injury. Motorist is responsible.

Menu v. Minor – Driver hit a median, became disabled. Taxi comes by, rescues driver, leaves car in the middle of the road. Another person crashes into empty car and sues cab company for not staying at scene or warning someone. Court ruled for cab company in

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that they owed no duty to P and did not increase the risk of an already dangerous situation.

OBLIGATIONS TO CONTROL THE CONDUCT OF OTHERS:

1.) The Relationship – Where D stands in a special relationship to someone who may cause injury to P, that D has a duty to use reasonable care to control the 3rd person in that relationship who injures P, even if D and P have no relationship. (Physician/patient, w/guardians, school/pupil, parent/child).

2.) Duty to Warn 3rd party:

3.) Two types of relationships

a. type I: (not our case) D has a duty to P (to protect from X)

b. type II: D has a duty/control to X and therefore P (Like employee is X)

Special Relationship Type 1 (Direct relationship b/t Defendant and Plaintiff) Common carrier & passenger Innkeeper & guest Land possessor & member of public Person w/ custody of one who is deprived of normal opportunities of self-

protection Special relationship type 2: (Indirect relationship b/t Defendant & Plaintiff concerning 3rd party)

Parent & child Employer & employee Land possessor & licensee Person in charge of one who has dangerous propensities

Tarasoff v. Regents of Univ. of Cal. (Psycho killer tells Doc.)

Patient told doctor about desire to kill woman, Dr. followed normal procedures and told campus police, but did not warn woman directly, woman was then killed by patient.

RULE: Court decides to expand the special relationship. If doctor had determined or should have that serious danger of violence exists, he has duty to exercise reasonable care to protect potential victim from danger. (special relationship). When prevention of a foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, the common law imposes liability only if the defendant bears some special relationships to the dangerous person or to the potential victim. D’s therapist had such a relationship with the murder

Criticism of Tarasoff rule:

-difficult to predict dangerousness

-may limit willingness to share w/doctor

-tempts doctors to warn excessively

-unreasonable to expect doctor to have control

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-exceptions under CA law: Bellah v. Greemson: No duty when the risk is self inflicted or mere property damage b/c there is no potential victim and no larger social benefit, like Tarasoff.

-Legal duties are not discoverable facts of nature, but merely conclusory expressions that determine where liability should be imposed.

-Hypothetical: What if a bartender is told of violent intention-are they responsible? A bartender does not have a confidentiality relationship with a patron, which imposes a duty to inform the victim that she is in peril.

-Consider Restatement §319: If Doctor knows or should know that patient is likely to cause harm to others if not controlled, the Doctor has a duty to warn.

Note Cases on Duty:

Reisner v. Regents: 12 yr old received transfusion which infected her w/ AIDS. A few yr later she became intimate w/ P, who contracted AIDS. Doctor of patient never told her, thus if patient knew she would have told P doctor was cause of P contracting AIDS from his patient.

Pate v. Threlkel: Doctor knew of genetic situation of a patient and the high likelihood of her adult children contracting a carcinoma. Never told patient, children got the disease. Disease would have been discovered soon had the mother known of the genetics.

Hawkins v. Pizarro – Physician incorrectly tested patient negative for hepatitis C. Months later patient met manmarriedhe tested positive for hepatitis C. Court said no to claimshe did not already know the man so there was no duty.

Hardee v. Bio-Medical Application of South Carolina: Doctor provided health care to patient but failed to warn them of inability to drivepatient drivesaccidentinjury party sues doctorcourt sides w/ P.

Tenuto v. Lederle Laboratories: Father (contracted polio) sued infant’s physician for failure to warn about the danger of contracting polio by having an open wound come in contract w/ the excrement of an infant recently immunized against polio. Court identified a “special relationship” –based expanded duty of care.” 1st thing you look forexisting relationship?No. Not really like Tarasoff b/c infant & physician have a closer relationship then relationship in Tarasoff. Again, court creates special relationshipnot previously identified.

Bellah v. Greenson: Psychiatrist patient commits suicideparents suecourt says no b/c the Tarasoff ruling does not apply to self-inflicted harm or mere property damage.

Thompson v. County of Alameda: County released James, a violent juvenile, into his mother custody even though he had threatened to kill an unidentified child in the area. W/in 24 hrs he did. County was not liable b/c they had no way of knowing who it would have been.

Rule: Therapists are immune from liability except when the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.

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EMOTIONAL HARM: Indirect V. Direct Victim: Diff. in tests depending on it

shift in courts that emotional distress should be covered like physical harm is. Courts have traditionally preferred that emotional harm be connected to a physical injury and

have a guarantee of genuineness.

A.) DIRECT HARM:

-When mental suffering is accompanied with physical impact and consequential physical injuries.

-Court used test:

a. w/in zone of danger of physical impact?

b. Reasonably feared for her safety?

c. Suffered severe emotional distress and physical manifestation?

-POLICY: the reason behind this is the courts fear fraudulent claims of emotional harm.

B.) INDIRECT HARM:

-There is a trend for emotional harm to be an independent recoverable torts (w/out physical manifestation). No thin skull P (Gammon)

a. Here the trial process will weed out fraud, but the basic rule is the foreseeability: must reasonable foresee potential damage to ORDINARY SENSITIVE PERSON. Jury

determines this one.

-Genuineness of Emotional Harm: Negligence à Physical Impact (overruled in Falzone) à Emotional Distress à Consequential Physical Manifestation.

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Falzone v. Busch: (Physical Impact is not needed anymore) S.C. of NJ, (1965)

S.C.’s Response:

1. Emotional harm question of medical evidence not of law. Relationship between emotional disturbance and physical harm has expanded over time.

2. Just b/c no precedent and no cases about this doesn’t mean court rejects itLaw changes as things change.

3. Not an excessive # of cases in other states that do not require impact as a basis for recovery. Fear of expansion of litigation not legitimate reason for the court to deter from

a ruling.

Holding: S. C. P suffered substantial bodily injury or sickness such conditions was the proximate result of the D’s negligence physical impact may not be required but does need to be physical manifestations as a consequence and also a sort of “zone of danger”. Must be reasonable fright of substantial injury caution against the eggshell psyche. Do not want to reject this issue b/c of fictitious claims b/c in many respects harm to the brain is more

severe than physical harm.

Notes: Word physical is used differently something that can be objectively determined in a person (Ex: nervous disorder).

1. Reasonable fear of immediate personal injury

2. Injury may be bodiliy injury or sickness (must be serious)

Lawson v. Management Activities (1999): P’s, employees at a car dealership, plane crashed by them, sued for fear of plane crashing on them. P’s lost

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Quill v. Trans World Airlines (1985) – P, passenger on airplane, it went into a tailspin and was shaking for 40 mins, P won b/c of emotional distress whenever flying in the

future

Emotional Distress of People That Realize They Will Die – If you can prove P knew they were in danger before killed, distress is assumed and can be considered in part of the

damages to the negligent actor. (Beynon)

Guarantees of Genuineness in Emotional Distress Cases1. Negligence2. Physical impact 3. Emotional distress4. Consequential physical manifestation

Courts state that physical impact is meaningless b/c there are cases when genuine emotional distress instances that occur w/ slight or no physical impact

o To think that emotional cases w/o physical impact will flood litigation has not proven to be true (based on statistics)

Metro-North Commuter RR Co v. Buckley, S.C. United States, (1997) (Physical impact still needed and contact not the same)

Facts: P, RR worker that wants recovery from (his employer between 1985-1988) for negligently exposing him to a carcinogen and thus violating FELA statute. P feared he would develop cancer from being exposed to asbestos for 1hr/work day when insulation dust would get on himwants D to compensate him for all future doctor check-ups. P

has no actual diseaseexperts have said that his inc’d risk of death was between 1%-5%.

Analysis: Usually P’s can recover if they are in the “zone of danger”.

Reasons why P should lose:

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1. Typically P’s win when the physical harm is something “threatening”. In this case it was an exposure to something and not a threatening “physical harm”.

Contact/Exposure = different than impact.

2. P’s able to recover b/c “a near miss may be as frightening as a direct hit” but zone of danger for physical impact seems to put a limit on it.

3. Would be no money for people that ACTUALLY incur injuries (Policy concern) b/c everyone w/ a fear would be getting the money. If exposure was enough there would

be millions of claims that are successful.

4. Only a few exceptions in common law where P wins but has no actual physical injury.

5. Ruling for P in this case may in fact bring about unlimited liability and a huge volume of unimportant cases. (Flooding of frivolous concern)

Holding: D.C. dismissed the action saying P didn’t sufficiently show an emotional injuryalso no physical impact. Court of Appeals reversed., S.C. reversed Court of

Appealsrules for D. Moving toward category tort law. (Subjective grouping)

Apply Buckley to Falzone – No physical impact which would mean Falzone would not prevail. But it was a near miss from a car, in zone of danger, might satisfy the

requirement.

Asbestos Exposure: As we know in Metro-North Commuter case the P lost b/c it was insufficient for asbestos dust to be considered “physical impact”. In, Norfolk v. Western Railway Co. v. Ayers the P’s were already suffering from asbestos (although noncancerous) claimed damages for fear. Court ruled P’s were entitled to recovery b/c it is parasitic emotional distress. DISSENTERS (Justice Breyer) say that the emotional distress came from the P’s learning of the disease and not from the disease being in their lungs so they should not have been

Two Types of Approaches to assess Emotional Distress Cases Normal Approach of Tort Law (Case by case approach): we use our normal

evidence to separate frivolous and fiction caseso Evaluate using the same proof as for physical harm

Injury Negligence Cause in fact Proximate cause

Falzon case: Husband was hit by a car then veered to wife’s direction

who was in the car Car didn’t hit her, but she sued for emotional harm

Categorical Approach : If it does not satisfy the categories, regardless how meritorious the claim, will not be honored in court

o No recovery unless P also satisfies special categorical requirements, such as physical impact or consequential physical manifestation

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Case: Buckley Metro-North Railroad worker was exposed to asbestos at

work about 1 hour a day He attended an asbestos awareness class

o Feared he would develop cancer Plaintiff sued employer for emotional harm based fear of

developing cancer Court state that it does not have any physical harm to claim

emotion harm. Permitting compensation to emotional harm w/o physical harm will permit an increase of frivolous suits

o Plaintiff didn’t provide proof of his emotional distress

Didn’t seek emotional/ medical assistance to remedy his emotionally harmed condition.

Gottshall case: “Zone of danger” Immediate risk of harm

- Cases involving an emotional harm need to be related to the foreseeable injury.o Ex: Exposure to asbestos may generate cancer. (connected claim)o Ex: Asbestosis, a noncancerous scarring of the lungs, cannot generate

cancer (unconnected claim)

Zone of Danger: 1. Plaintiffs who sustain a physical impact as a result of a defendant’s negligent

conduct; or2. Plaintiffs are placed in immediate risk of physical harm by that conduct

-----Gammon v. Osteopathic Hospital of Maine, Inc

Plaintiff father passed away Plaintiff received a severed leg that Plaintiff presumed to be his father’s Plaintiff suffered emotionally trauma (nightmares etc) Emotional distress w/o physical harm (Exceptions that courts will grant)

i. Negligent transmission of a telegram that is false ii. Negligent mishandling of a corpse.

Roberts, J. (Supreme Judicial Court of Maine) “A person’s psychic well-being is as much entitled to legal protection as is his physical well-being.

Rule: (emotional distress)- based on Gammon judgeo Is intentionally or recklessly inflictedo Results from physical injury negligently inflictedo Negligently inflicted emotional distress resulting in physical injuryo Emotional harm has to be “severe”.

No reasonable man should be expected to endure it (Hypothetical prior exam question: regarding severe emotional harm)

Even in gammon the plaintiff in Buckley would have lost Plaintiff in Gammon would have lost in Buckley

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Negligent Infliction of Emotional Distress (NIED)

Intentional Infliction of Emotional Distress (IIED)

Non-Parasitic Emotional HarmProof requirements beyond those associated with cases of physical harm

Direct Victim Falzone

No physical impact requirement Reasonable fear of immediate PL Substantial bodily injury or sickness

Buckley Zone of danger or physical impact, not mere contact Not mere exposure to future risk of disease

Gammon No impact or consequential manifestations; Reasonably foreseeable psychic harm; “Severe” (“reasonable”) Emotional Distress

Indirect Victim (Plaintiff viewing for emotional distress due another parties injury)Tobin/ Bovsun: Restrictive View (New York approach)

No recovery Unless within Zone of Danger:

o Death/serious injuryo Immediate family membero Severe and verifiable

Portee/Dillon: Expansive View (California approach) Dillon criteria

o Plaintiff has to be located near the scene of the accident The proximity to the accident scene increases the likelihood

o Traumatic distress occasioned by immediate perception (observation) of the accident resulting in death or serious injury to injured party

o Plaintiff need to be closely related to the injured person

Portee Criteria (Emotional Distress)o Involve death or serious injury of other resulting from defendant’s actiono Martial of familiar relationship with party injured and person suing for

emotional distresso Observation of death or injury at scene of accidento Resulting severe emotional distress

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------Johnson v. Jamaica Hospital

Plaintiff has a child Child was kidnapped from hospital Child returned after 4.5 months Plaintiff sued for emotional distress Parent-child relationship

o Plaintiff filed direct victim in this case to recovery for injury

State of New York: 3 Categories for Emotional Distress claims1. Direct victim (recovery)2. Bystander (no recovery)3. Zone of Danger if you have a cause (May recover)

Exam question Molien case

Plaintiff’s wife’s doctor negligently diagnosed her with an STD (syphilis) Plaintiff was tested himself on was not diagnosed with the STD The marital relationship ended Plaintiff sued his ex-wife’s doctor for emotional distress The negligent diagnosis has a direct impact on the marital relationship Judgment was in favor of Plaintiff.

October 29, 2014Subject: Intentional Infliction of Emotional Distress

Restatement § 46. 1. Defendant’s conduct needs to be extreme and outrageous.

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bound of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

Conduct may arise from the abuse by the actor of a position, or a relation with the other which gives his actual or apparent authority over the other

o Police officer, school authority, or land lord. Exceptions: Actor has been held liable for mere insults, indignities

etc.2. Severity of emotional distress (Plaintiff burden)

Distress inflicted is so severe that no reason man can expected to endure it Severe distress must be proven by demonstration extreme and outrageous conduct

by Defendant created the distress.

Should tort law express the views of the community?

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Defenses to Negligence: Contributory Negligence and Assumption of Risk

Assuming that Plaintiff has established a prima facie case, Defendant can make a defense. (Yes I caused injury to Plaintiff, but…)

Defenses to Negligence “Three (3) Wicked Sisters”1. Contributory Negligence

a. The mirror image of negligence (same rules and standards) for the Plaintiff (reversed)

i. Plaintiff conduct is judged by the reasonable man standard1. Uses an Objective test

All or Nothing rule of Contributory Negligence (Prior to 1970s) – if proven any the standards below, Plaintiff would not recover anything

1.If D is reckless, P’s CN is no bar2.Last clear chance rule- P’s Contributory Negligent is no bar if:

P (proves) D is negligent D(proves) P is Contributory Negligence P D (proves) fails to avail self of last clear chance

3.Refusal to impute CN4.Jury’s role – noticed that all or nothing rule is not fair to plaintiff

2. Assumption of the riska. Plaintiff’s assumes the risk of Defendants’ negligent act, which relieves

defendant of its duty to provide reasonable care to Plaintiff.b. Not every waiver that Defendant asks Plaintiff to sign bars Plaintiff from

suing defendants for their negligence.i. Uses a Subjective test:

1. What did Plaintiff have knowledge of?2. Plaintiff consented: He got on the ride

3. Fellow servant rule (obsolete)__

Murphy v. Steeplechase Amusement Co.

Plaintiff and friends went on an amusement ride called “the flopper” Plaintiff observed the ride and read warning signs about the ride Plaintiff went on the ride and injured his knee. Cardozo, J. Plaintiff knew that the ride would make him fall. Plaintiff consent.

o He got on the ride voluntarily. Defendant is not negligent

Strategy you use to determine if defendant is contributory negligent you must fulfill the negligence elements

November 3, 2014

Levandoski v. Cone

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Police officer chases Defendant Police officer was injured Police officer is capable to sue Defendant Fire Fighters rule

o A premises rule Fire fighter rule covers Premises liability and liability of the landowner Defendant does have to be concerned about double taxation for the fire fighter

rule b/c is not a landowner-----

Li v. Yellow cab

Plaintiff, Li, made a left turn at intersection Defendant driving a yellow cab at a fast speed and clips back of Plaintiff’s car Li was contributory negligent b/c Plaintiff made a left turn at a intersection when

it wasn’t her turn to turn Case resulted in a bench trial Judge found Plaintiff contributory negligent because she was not permitted to turn

at the time proceeding the automobile accident Judge verdict was in favor of defendant b/c Plaintiff was contributory negligent

barring her from recovery (all-or-nothing rule)

50% rule: Plaintiff should not allowed to cover if they are 50%+ contributory negligent

After Li v. Yellow Cab:Two kinds of defenses

1. Plaintiff act unreasonably to 2. Plaintiff is held to agree to relieve defendant of an obligation of reasonable

conduct toward himAssumption of risk that is a variant is abolished (California)

Comparative Negligence New YorkCulpable conduct attributable to the claimant or the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be

Akins v. Glens Falls City School District

Plaintiff went to a baseball game Plaintiff stood behind a short gate by 3rd base line Plaintiff was struck in the eye by baseball Plaintiff was awarded $100,000 35% at fault to Plaintiff; 65% at fault to Defendant There was no breach of duty

Two-part duty of Ball Park owner.Screen home plate and provide enough screen seating for spectators that would request screened seats. Ball Park owner did perform the two duties

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Foreseeability of people that wants to sit in a screen seats v people that don’t want to Assumption of the risk of sitting in areas that not screened---

Knight v. Jewett

Group of friends (male and female) played football during the Super Bowl Plaintiff (female) told Defendant (male) if he continues to play off she would stop

playing Defendant continues and injures plaintiff Plaintiff sues defendant

Intentional Tort: Needs Knowledge and consent (to receive recovery)

Assumption of risk is not a total bar if it overlaps w/ contributory negligence.This case interprets Li v. Yellow cab to distinguish assumption of risk as primary or secondary assumption of the risk.

Primary Assumption of Risk: Observe the nature of the activity, Plaintiff will relieve the Defendant of the duty of care (Plaintiff is totally barred)

Ex. Sportso As long as you are exposing the risk to the other party that is relevant to

the sport or activity you will be relieved of care of duty (other words, as long as your conduct is not reckless relevant to the activity)

Ex: Intentionally kicking a person in face while playing football.

Secondary Assumption of Risk: Type of activity the plaintiff does not implicitly relieve Defendant of duty of care. (Plaintiff receives some recovery)

Intentional Tort

November 5, 2014

Topic for remainder of semester:1. Intentional tort2. Strict liability (product liability)

Two type of intention tort that will be covered:1. Battery2. Assault

------Garratt v. Dailey Case

Plaintiff attempted to sit down in a chair Defendant (5 years old) pulled seat from under Plaintiff Plaintiff suffered injury (broken hip and other injuries) Two varying interpretation of the event

o Plaintiff: Intentional o Defendant: Unintentional

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Trial court: Defendant moved chair intentionally Appellate court: Defendant unintentionally moved the chair. When he noticed that

the Plaintiff was going to sit down, be attempted to put seat underneath her but didn’t in time.

Supreme Court: To determine intent, there needs to be prove of Defendant w/ “substantial certainty” that he knew Plaintiff would sit down in the seat that he moved.

Remanded for clarification.

Intent: (Restatement Third) requires that (a) the person acts w/ the purpose of producing the consequence or (b) the person acts knowing that the consequence is substantially certain to result.

Battery: Conduct that is construed as being harmful or offensive contact. (Intentional)

Assault: An actor is subject to liability to another for assault if he acts intending to cause a harmful or offensive contact w/ the person of the other or an imminent apprehension of such a contact. November 10, 2014

McGuire v. Almy Nurse in-charge of mentally unstable patient Patient when on a rampage in room. Plaintiff tried to calm patient down Patient strike plaintiff with a “lowboy” (furniture) leg - (Intent)

Rule: Tort law does not indemnify the mentally insane of liabilities. The intent that would be necessary in order to render a normal person liable, the insane person in order to liable, must have been capable of entertaining the same intent and must have entertained it in fact. But the law will not inquire further into his peculiar mental condition w/ a view to excusing him.

Beach v. Hancock Defendant pulled out a unloaded gun and aimed it at Plaintiff Defendant pulled the trigger of the gun

Plaintiff assaulted Defendant because the Plaintiff reasonably feared being shot, despite the defendant knowing the gun was unloaded.Rule: Assault

Assault (Further elaboration) Plaintiff

o Apprehension (reasonable) of immediate contact

Defendant:

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o Intent to cause battery; or o Intent to cause apprehension of battery

In addition to these mental states, the Plaintiff must also prove:o Overt act on the part of the Defendant, not mere wordso Immediacy of anticipated contact- no delayo Unconditionality of threat

Defenses and Privileges1. Consent: Assumption of the risk required in intentional tort (2. Self defense3. Defense of property4. Necessity

Hart v. Geysel (Consent) A blow in an illegal prize fight led to the death an opponent

P’s Consent to D’s Illegal Battery Prima Facie Case: PBattery Minority Rule: Consent Bars Recovery Defendant Majority Rule PlaintiffException: Consent not a bar

Self Defense: D’s MistakePrima Facie Case: PBatteryD’s Privilege: Reasonable MistakeDefendant

Courvoisier v. Raymond A group of intruders entered Plaintiff’s establishment Plaintiff chased the group out of the place w/ a gun The group began throwing object at Plaintiff Police officer emerged from the group and was shot by Plaintiff because Plaintiff

thought the police officer was part of the invading group.Court stated that Plaintiff’s shooting of the defendant was justifiable if he reasonably believed that he thought he was in danger by the crowd.

Protection of PropertyKatko v. Briney

Invaders (Plaintiff) enter home abandoned old farmhouse Defendant set a trap spring shotgun shot the trespasser in leg Plaintiff sues Defendant

Rule: Human life is held higher than right of property Defense of Necessity: Ploff v Putnam:

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Plaintiff moored his sloop at a dock on defendants Private Island in order to avoid the hazards of a storm. Defendant’s servant cut loose the sloop which, as a result, was battered by the storm. Plaintiff and his family were injured

Defendant argued that he was simply protecting his private property from use by plaintiff. The court awarded damages to plaintiff, recognizing a privilege, born of necessity, to use defendant’s property

Defendant is guilty because servant unmoored the dock and prevented the plaintiff from exercising his privilege

Rule:

Private necessity- the plaintiff has the privilege to use the dock. Plaintiff has the privilege and the right to use that privilege. The privilege is “I had a necessity. I had a need to use your property” (i.e. there was a storm so I had a need to use your dock)

Necessity has to be reasonable.

Mouse case: protect human life. The defendant was sued for taking and carrying away the plaintiffs casket out of the barge. It was resolved that in case of necessity, to save the lives of the passengers, it was lawful for the defendant, being a passenger, to cast the plaintiffs casket out of the barge

Vincent v Lake Erie Transportation:

The steamship Reynolds, owned by the defendant, was for the purpose of discharging her cargo moored to plaintiffs dock in Duluth

Unloading the boat was taking place a storm from the northeast developed so grown in violence that the wind was then moving 50 mph.

Its conduct during the storm was rendered necessary by prudence and good seamanship under conditions over which it had no control, it cannot be held liable for any injury resulting to the property of others, and claims that the jury should have been so instructed

Intentional destruction of the plaintiff’s dock because the defendant kept the ship connected to the dock out of necessity.

It could hardly be said that the obligation would not be upon such person to pay the value of the property so taken when he became able to do so

Court says there is a privilege, but you need to pay for what you destroyed.

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Compensation must be made. where the defendant prudently and advisedly availed itself of the plaintiffs property for the purpose of preserving its own more valuable property, and the plaintiffs are entitled to compensation for the injury done

Rule: the reasonableness of an incomplete privilege makes a person make a reasonable cost benefit decision to determine his conduct

Encourages dock owner to consent to allow the use of the privilege only because he knows that he will become whole after. (compensated)

Public necessity has absolute privilege not incomplete. For the good of everybody so you do not want people to think that they would be held liable afterwards (have an incentive not to do good for the community). When it is beneficial to the community at large, intentional torts are permitted because you do not want people to feel like they will be sued afterwards.

Strict Liability/ Product liability

Rylands v Fletcher Defendant hired someone and his digging caused flooding to the yard of the

plaintiff The engineers were independent contractors. The landowner did not know there

was something connecting his land to the plaintiffs. Defendant did not do anything wrong. Engineers may have been negligent but it was not clear that a plaintiff could sue an independent contractor because it was presumed that the independent contractor was only liable to the defendant.

Under negligence, plaintiff could not sue defendant or contractor because defendant was not negligent and he cannot sue contractor because it is not known that they owed the plaintiff a duty

D wanted to make the reservoir because he had a cotton mill. What was Judge Blackburn think is the issue?

What is the obligation of someone who lawfully brings something in his land and it would naturally do damage if it escapes?

Answer:

1) strict liability- absolute duty to keep it at his peril even if he is not negligent he is held liable. 2) negligence- reasonable (liable only if he is negligent)

In this case, the landowner is strictly liable. (rule of law is that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. But for his act in bringing it there no mischief could have accrued)

Blackburn thinks the concepts of negligent and strict liability are different. When you are at your home, you expect to be protected with strict liability but if you go to

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public area you are not expecting to be protected by everything but just unreasonable actions.

Rylands v Fletcher (House of Lords opinion) There are circumstances under which the defendant could accumulate water into his land that he was not liable unless he is negligent

Natural v non -natural use- if you use the land in a natural way (negligence applies) if you use it in non-natural use then it is strict liability

Non-natural- unusual or nonconforming use given on the community around you.

“there had been any accumulation of water, either on the surface or underground, and if, by the operation of the laws of nature, that accumulation of water had passed off into the close occupied by the plaintiff, the plaintiff could not have complained that that result had taken place.”

“on the other hand if the defendant’s, not stopping at the natural use of their close, had desired to use it for any purpose of introducing into the close that which in its natural condition was not in or upon it If in consequence of their doing so, the water came to escape and to pass off into the close of the plaintiff, then it appears to me that that which the defendants were doing they were doing at their own peril, and if in the course of their doing it, the evil arose of the escape of the water and its passing away to close of the plaintiff and injuring the plaintiff, then for the consequence of that then the defendants would be liable.”

Negligence applies when you’re just sitting at home and if your neighbor is engaged in natural use of his land.

Hay Case: Blasting case. D was blasting rocks at his own house but the rocks were thrown

on plaintiff’s home so he was found strictly liable.

Strict liable because D use of the land is not an absolute land because the higher right of plaintiff’s use of his land.

You cannot use your land in a way that it hurts my use of my land. If you use your land in a way that hurts my land, you are strictly liable

Brown v Kendall:Negligence is universal

Losee v Buchanan:

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D was using a steam boiler; the stream boiler exploded and went into neighbor’s land. Court could either follow strict liability or negligence principle from Brown v Kendall.

Negligence is the universal principle of liability with no exceptions Distinguish Hay case by saying in Hay the damage was the necessary

consequence (a case was like an intentional torts that’s why they were strictly liable)

Held that one who, without negligence and with due care and skill, operates a stream boiler upon his own premises, is not liable to his neighbor for the damages caused by the explosion thereof. A tremendous force escaped, so to speak, from the owner, but was not voluntarily set free

Prosser:These 2 cases can be reconciled through natural v non-natural so in Hay dynamite use is non-natural but Losee was a natural use because paper manufacturing was the norm.

Losee:“We must have factories, machinery, dams, canals and railroads. They are demanded by the manifold wants of mankind. If I have any of these upon my lands, and they are not a nuisance, and are not so managed as to become such, I am not responsible for any damage they accidently and unavoidably do my neighbor”

Negligence law is necessary if society wants to advance.

Sullivan v Dunham:When does strict liability apply or when does negligence apply?

D employed men to dynamite a tree on the land Non-natural use but negligence is a universal rule with no exceptions Blast hurled a fragment onto a highway where it struck plaintiff and killed her Nature of the damage is personal injury and natural of activity of the D Based ruling on public policy (Hay case) **Upon grounds of public policy, it is better that one man should surrender a

particular use of his land, than that another should be deprived of the beneficial use of his property altogether.

The use of land by the proprietor is not therefore an absolute right, but qualified and limited by the higher right of others to the lawful possession of their property

He must abandon that mode of using his property, or be held responsible for all damages resulting thereform.

Conflicting Principle of strict liability (Hay case) v. Negligence law (Losee)

“Rests upon the principle, founded in public policy, that the safety of property generally is superior in right to a particular use of a single piece of property by its owner”

Some judges want to apply strict liability but they feel they cannot because the negligence principle emerged.

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Indiana Harbor v American Cyanamid: American Cyanamid Company is a major manufacturer of chemicals, including

acrylonitrile, a chemical used in large quantities. Jan 2 1979, Cyanamid loaded 20,000 gallons of liquid into a railroad car it leased

from North amercian car corp The Missouri pacific train carried the car north to the blue island railroad yard of

Indiana Harbor belt railroad, the plaintiff in this case, a small switching line that has a contract with Conrail to switch cars from other lines to conrail.

Employees of the switching line noticed fluid gushing from the bottom outlet of the car.

Since acrylonitrile is flammable at a temp of 30 degrees Fahrenheit or above, highly toxic, and possibly carcinogenic, the local authorities ordered the homes near the yard evacuated.

Illinois depart. Of environmental protection ordered the switching line to take decontamination measures that cost the line $981,022.75, which it sought to recover by this suit

Issue: who should be liable- the manufacturer or the shipper of the material? If this qualifies as an Ultra hazardous material then strict liability applies and if not, then negligence applies.

One who stores or transports ultra-hazardous material is held strictly liable. In this case, D did not transport material.

Posner: strict liability does not apply based on Restatement 520 of the 6 factors.

The harm occurred not because of the substance, but because someone was negligent.

Restatement 520:One who “carries on an abnormally dangerous activity is subject to liability for harm...resulting from the activity, although he has exercised the utmost care to prevent the harm”In determining whether an activity is “abnormally dangerous” section 520 listed six factors for consideration:

(1) existence of a high degree of risk of some harm to the person, land or chattels of others(2) likelihood that the harm that results from it will be great(3) inability to eliminate the risk by the exercise of reasonable care(4) extent to which the activity is not a matter of common usage(5) inappropriateness if the activity to the place where it is carried on (6) extent to which its value to the community is outweighed by its dangerous attributes

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Posner:“The be and end all of tort law is create system of incentive to encourage the most beneficial behavior. Concludes from this case that since the accident was caused by negligence, we do not need strict liabilityIf negligence is good enough then we do not need strict liability, negligence is an adequate deterrence”

526: note 4 and note 6 Examples of why courts might apply strict liability to folks involved in dangerous activities

Goals of Strict Liability: J. King Deterrence

oProblematic as rationale for Strict Liability (contra Posner)oFor non-negligent Defendant, Strict Liability = ineffective inducementoOver-deterrence can lead to riskier alternatives

Loss Spreading Administrative Efficiency Fairness (aka Corrective Justice)

 

Modern Product Liability

Emeregence of Modern Product Liability Law Topics for Discussion: MacPherson v. Buick Motor Co.

Plaintiff bought a Buick for a dealer. The Dealer received the car from the manufacturer

The vehicle suddenly collapsed and ejected Plaintiff out of the vehicle Manufacture only has a duty of care to the immediate purchaser

oThe immediate purchaser was the dealer not the Plaintiff Privity of contract: confine the duty that was own to someone who you had a

contractual relationship with.   Manufacture and Plaintiff did not have privity (a contractual relationship w/ each

other) =No Liability (No duty to the purchaser)oException: Products that are imminently dangerous (Cardozo: anything

that causes danger if it is negligently made)- Cardozo’s interpretation vastly broaden the scope of imminently dangerous products.

Poisons Explosives

Rule: No liability w/o privity unless it is imminently dangerous product Warranty Law: Is a hybrid theory (Contract & Tort)

Seller breached a promise of a product that was expected by a consumer (contract)

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Allows compensation for injuries from product (Tort) Involves sale of goods, expectation of consumer, and implicit promises Since its contract based it hard to extend the protection pass the contractual terms

 

Escola v. Coca Cola Bottling Co of Fresno

Coca Cola bottle exploded in Plaintiff’s hand Initially appears to be a Res ipsa Loquitor case The bottle wouldn’t have exploded unless someone was negligent. Manufacture was in control of the bottle prior to Plaintiff Traynor, J: provides some help for Plaintiff but places him to a disadvantaged

situation because manufacture has the expertise to discredit Plaintiff’s case A manufacture incurs an absolute liability that is place on the market that poses a

threat to public because of a defect.- Strict LiabilityoReasoning reflects

Corrective justice theory Deterrence theory Loss distribution theory

Use the law to police the bargain to fulfill the promise of the manufacture.  (using tort law to oversee transactions of b/t manufacturer and consumer- advertisement, product’s function etc.)

 Greenman v. Yuba Power Product, Inc.Criteria for strict liability:

1. Defect2. Defect causes injury3. Manufacture must know product will be used

Holding: A manufacturer is strictly liable in tort when an article he placed on the market,

knowing that it is to be used w/o inspecting for defects, proves that causes injury to a human being

 

402A of the Restatement (Second) of Torts

1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or his property is subject to liability for physical harm to ultimate user or consumer, or his property

Critique of 402A of Restatement:Not only did the product has to be defective; it must also be proven that the product is unreasonably dangerous

It adds an additional step to the prior test (unreasonably dangerous products) Places an additional burden on Plaintiffs to prove liability

 

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Consumer Expectance Test: Questions Is a product more dangerous than a reasonable consumer would expect.

Indiana Harbor Belt RR: The defendant is not the party that uses or stores the substance. Not the party that transports the substance but it is the manufacturer of the substance and ships it.

Posner: not a case for strict liability1) Fails the second restatement test for what constitutes an ultra-hazardous activity (so no strict liability)

2) Negligence is the default standard. You only use strict liability when there is only when cost benefit analysis leads to the conclusion.

Posner: Only if negligence does not work and only if strict liability will give you benefit as deterrent than use it

Deterrence is the only justification for strict liability.

Here the case on basis of negligence.

Result- strict liability is out of the picture. Negligence applied.

How would have Posner decided Yukon and Chavez cases (strict liability cases): Yukon he would have ruled for negligence because he is not concerned with substance but with activity.

How would Posner decide Rylands v Fletcher:Strict liability will apply only if you can deter it

Rylands v Fletcher should not be strict liability (negligence case) but there is a problem holding the negligent actor. Applying negligence law was problematic at that time because of the independent contractor problem. Posner would conclude that strict liability will not apply

How to reduce the risk of the activity that is going

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King: Deterrence is problematic for strict liability

1) defendant is innocent and acted reasonably (contradiction) you cannot make someone act more reasonable if they are already acting reasonably. (strict liability is contradictory)

2) trying to make people behave more reasonably but they may not have that ability (unrealistic goal)

3) Idea of over deterrence. You may drive people to do something that is even more dangerous Strict liability is okay when negligence is hard to prove

Goal of strict liability: J. King

Loss distribution (spreading)- a lot of people take on the injury is a lot more effective.

Strict liability is more efficient- no trial

Fairness- (corrective justice) negligence you would have to prove that someone is wrong, whereas, here in strict liability you do not have to prove who is wrong and in strict liability between 2 innocent parties it is fair to impose strict liability on the party that gets benefits from it.

(put notes from phil and medical malpractice)

Products liability:

1916- most famous Cardozo opinion

MacPherson v Buick Motor co:

Buick was resold. Bought car from dealer who bought it from Buick. Plaintiff was injured when the wheel was shattered. He tried to sue Buick in negligence

Whether the defendant owed a duty of care to anyone besides the immediate purchaser (who is the dealer-even though the dealer was not going to drive the car)

Whether manufacturer should have reasonably foreseen the injury? Buick should be able to foresee danger if the car was poorly made.

Problem of privity of contract. This is understood to confine the duty to someone you had a contract with. You would have to have a contract. (no liability from the manufacturer to the purchaser because no contract between them- you could not sue the manufacturer because there was no duty). (winterbottom case)Exemption: if a product was imminently dangerous

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No liability without privity unless a product was imminently dangerous like poisons, explosives etc

Thomas v Winchester:Negligently labeling of poisonManufacturer sold it to druggist, druggist sold to purchaser. Manufacturer was held liable because the product was imminently dangerous

Devlin v Smith:Negligent building of scaffold. Sold it to painter. Painters workers were injured. Manufacturer was liable. “he knew that the scaffold if improperly constructed was a most dangerous trap”

Statler case: Exploding coffee urn. Sold it to the jobber, who sold it to a hotel. Plaintiff injured. Sued manufacturer and won because if it is improperly made, it could be a danger to the consumer

Cardozo:Anything that puts purchaser at risk becomes an imminently dangerous product. Anything that can injury the consumer can be dangerous. The consumer can bring a negligence suit against the manufacturer.

Negligence theory is still used and yet the law kept evolving. This is seen in warranty law: warranty is a form of strict liability (food and drink then extended) part contract and part tort theory- seller breached a promise to provide a product that was promised. The defendant provides compensation for injury.

Warranty law:Part of the law of sales. Deals with the expectation of consumers and promises that are implicit when products are sold. Problem w warranty law is that it is hard to extend protection to people beyond the contract (privity problem)Warranty law overcame this problem that said the warranty ran from manufacturer to consumer. Disclaimer problem allows to get away from liability so courts started to get rid of the disclaimers

Consumers can proceed under negligence in Macpherson and warranty law.

Strict tort liability for dangerous products:

Escola v Coca Cola bottling:Waitress was handling bottle of coke that exploded in her handExpert witness says that bottles are infallible

J, Traynor:

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(negligence) Res ipsa case: the bottle would not have exploded unless someone was not negligentThe plaintiff was not contributory negligenceThe bottler had complete control over the bottling process

Traynor said we should not think about it in terms of res ipsa (do not use negligence) like the majority decided. The jury may be thinking in strict liability terms anyways. Some disadvantages of res ipsa: consumer is hardly in position to know whether the manufacturer was negligent. The defendant can rebut the presumption because the plaintiff does not know the ins and outs of the manufacturing process.

Juries often resort to strict liability reasoning anyways. Impose strict liability on manufactures of defective products.

Traynor: what we should do?In my opinion it should now be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to defect that causes injury to human beings

Justifications:Public policy : “if public policy demands that a manufacturer of goods be responsible for their quality regardless of negligence there is no reason not to fix that responsibility openly (corrective justice theory)

Loss distribution: “the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business.

The purpose of strict liability is to use the law to police the bargain. Make sure that consumer is getting the product that he or she thought he or she was buying. (consumer expectation test)

Greenman: a manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.

Plaintiff has to prove that product has a defect

s 402A. SPECIAL LIABILITY OF SELLER OF PRODUCT FOR PHYSICAL HARM TO USER OR CONSUMER

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

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(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Unreasonably dangerous standard- product has to be defective and unreasonably dangerous. Prove that not only is there a defect but also that it is unreasonably dangerous. Do not adopt this because it is a burden on plaintiff and we are trying to go beyond negligence.

Posser stated we put it in because we did not want people to sue for everything i.e. butter even if they are dangerous does not mean it is unreasonably dangerous.

Consumer expectation test: is it more dangerous than a reasonable consumer would expect.

California stayed away from 402 (a)

Issues of coverage in product liability cases:

Bystanders should be more entitled to protection because the purchaser gets to inspect the product. The bystander cannot protect or guard himself from the product

Bystanders should be protected just as the purchasers are

Problems with use products:2nd hand purchaser- is that purchaser entitled to protection and can he sue the 2nd hand dealer just like you can sue a new dealer?

- No the expectations are different; you understand that it will not have the same level of safety. Strict liability does not apply to these products.

Defects:

What do the courts mean when they use term “strict liability” and how is it difference from negligence law?

No court has ever said that any product that injuries the consumer holds the manufacturer completely liable

The product must not only have caused the injury but must have a defect. The defect is crucial to hold someone strictly liable

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How to tell if a product is defective?

Absolute liability- without nature of the product or conduct of the manufacturerNegligence-defect means the manufacturer should have reasonably made the product safer but did notStrict liability- defect in the product holds strict product liability

Product liability should focus on the nature of the product not the behavior of the manufacturer- this is important bc if you focus on the conduct then you are asking a negligence question

Strict liability for products is stricter than negligence

Manufacturing defect:A manufacturing defect is when something goes wrong during the manufacturing process. When one of the products is different than other products on assembly lineProof of this is fact specific.

Design defect:The concept of the product is flawed. The way it was conceived and designed is a problem. Go back to the engineers of the product. It is more complicated

Take the product and give it to the jury to decide whether it is defective. The point is that this is not the approach instead courts have devised tests and have juries use the tests to see if there is a design defect.

The consensus view is that there must be a test and should be on the product NOT on the conduct of the defendant. Problem is which test should be used. This is supposed to be strict liability in order for that you should look only at the product and in order to answer that question you need a test

Design defect:2 tests:

1. Consumer Expectation test2. Risk benefit analysis (hand formula)

a. imputed knowledge testb. reasonable alternative design

Soule v General Motors:A woman’s ankle was injured. She said the car was defective.

Consumer expectation test:The product is defective if it was more dangerous than the consumer expected.

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Polices the bargain. Asks whether the plaintiff got the product that the plaintiff reasonably expected to get. (Dangers that the consumer expects –i.e. a knife is intrinsically dangerous) What the reasonable consumer would expect. It polices the bargain.The plaintiff wanted the consumer expectation test. Send issue of defect to jury on that test basis.

Consumer expectation tests should be abolished according to defendants or limited. If you are going to keep it, do not use it in a case where technical questions of causation are at issue.

California has narrowed the range of choice for plaintiff. In many cases, the plaintiff cannot choose the consumer expectation test. It was ruled that it was okay to use it in certain situations. Ex. If a car explodes at a stop light, if when you are leaving the dealership the tire gets messed up. So not much room for consumer expectation in at least automobile case. Consumer test does not require expert evidence like in risk benefit where plaintiff is at a disadvantage by engaging in a debate w an expert. Consumer expectation is plaintiff friendly.

Barker case:Risk- benefit analysis. Risk benefit has to do with the design decisions that were made. But the court said this puts a heavy burden on the plaintiff. It shifts the burden of proof to the defendant. If they chose risk benefit, all the plaintiff has to prove is that the design of the product caused the injury. Then the defendant has to do the risk benefit analysis and to prove that the benefits outweigh the risk. If they fail to do it, then it triggers strict liability.

Plaintiff choses which tests he or she wants to use. When they brought in the risk benefit analysis, they said that it is plaintiff friendly.

Purpose of CET vs RBA: (get these from presentation and the quote) (also put it notes from phil)

CET: - Police the bargain - Make sure expectations of the parties are vindicated

Camacho case:Motorcycle had no crash bars to protect his legs when he got into a car accident. It was available on other products not his. Vehicle has to be crashworthiness. The plaintiff unlike the plaintiff in Soule did not argue for CET. He wanted RBA (risk benefit) and defendant wanted CET (consumer expectation test). If you use CET in this case, the plaintiff will lose because he selected the motorcycle and knew the risks. The court agreed that risk benefit should be used. Referred to the 7 factors in the Ortho case. Use

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the risk benefit analysis as to whether it was defective or not on a product like a motorcycle.

If your focus is on just to police the bargains then you are only focusing on the parties not others. The concern of the court is that if the concept of defect imports assumption of the risk into it, then these cases will never get to the jury. Court is saying is let’s separate those concepts- defects and assumption of the risk. Don’t conflate those two questions. If you conflate then you will never get the risk reduction that we want. The defendant will never be liable because the danger is so obvious.

ReviewStrict Liability in Tort.

- Theory first announced in Traynor’s concurring opinion in Escola caseo Became important after Greenman decision

- Section 402A- Second restatement addresses strict loiabilityo Additional condition “unreasonably dangerous”o P has to prove two things. Looks a lot like negligence law (Reasonable

test)

NewIssues of Coverage in Product Liability CasesIs a bystander or pedestrian covered?

- At first it seemed bystanders weren’t covered under product liability because they didn’t partake in the transaction itself

- Then courts realized they should be covered- Ex: Elmor case (1969) in notes—Bystander cannot inspect the product and protect

themselves

What about used products? (2nd hand purchaser)- The expectations of a 2nd hand purchaser are different, don’t expect a car to be

free from defects- Retailer doesn’t guarantee product safety for used products as it does for new

productso This is just in terms of tort law—warranties and state laws may give the

2nd hand purchaser other options

Notes Continued on DefectsThree types of Defect in Product Liability Cases (Slide on PowerPoint)

1. Manufacturing Defect2. Design Defect3. Defective Warnings or Instructions

Absolute liability is really not recognized. Example: Cannot sue a knife manufacturer because you are cut with a knifeA defect in a product gives rise to Strict Liability.

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Defect is Crucial in this area of lawWhat is a defect?

- Somewhere between absolute liability and Negligence

Negligence- defect means the manufacturer should have reasonably made the product safer but did notAbsolute liability- without nature of the product or nature of the manufacturer

Product liability should focus on the nature of the product, not the behavior of the manufacturer—this is important because if you focus on the conduct you are asking a negligence question. Defining concept of “defect” is criticalManufacturing DefectsSomething went wrong during the manufacturing process—when one product is different from the others manufactured

- Very fact specific- What was the problem when the injury occurred

Design DefectsThey all look the same, but the way they were designed is the problem

- Going back to the engineers and design of the product- More complicated - Can’t just hand the product to the jury

Court has devised test for defects, asks jury to apply the test.Debate as to what the test should be.The focus of that test should be on the product, not conduct of D.Two Tests:

1. Consumer Expectations Test2. Risk-Benefit Analysis

a. Variationsi. Imputed Knowledge Test

ii. Reasonable Alternative Design (3rd Restatement)

Risk- benefit has its own approach, but there are two tests that evolved from it as well

Martha Chamallas: “Unpacking Emotional Distress: Sexual Exploitation, Reproductive Harm, and Fundamental Rights”

1. Why does Chamallas argue that, prior to the Third Restatement, tort law privileged physical harm over emotional harm? What does she see as the relevance of this implicit hierarchy to gender issues? How were women, in her view, disadvantaged by the law of emotional harms?

Sean’s answer- tort law privileged physical harm on the face of the restatement itself. “Physical impact” was needed. (Similar to our emotional harm cases). 3rd restatement focuses on when to impose liability for NIED as opposed to whether. Believes NIED cases should be more than just dead corpses

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Restrictions on recovery place women at a disadvantage. Women face emotional/relational harms. Boyles v. Kerr example. Court found there was no duty for the bf to be held liable. Twyman dissent- harmful conduct by men in NIED claims, but men have been downplaying it.

Kayla answering part 3 question1- Sterilizations, miscarriages- women’s right to decide if she wants children. Many cases surround contracts dealing with miscarriages and such. These cases should be decided on whether the D intended to take away the P’s autonomy. Boyles case- opinion noted the couple wasn’t steadily dating, the girl was foolish to think that she would not be videotaped. Stillborn cases- hard for court to intertwine the damage to actual fetus and the emotional harm of mom. Not until 2004 where they allowed NIED with stillbirth of a child

2. How does Section 46(b) of the Third Restatement [now renumbered as Section 47(b)] attempt to deal with cases involving the negligent infliction of emotional distress (NIED)? Why does Chamallas favor this approach? What problems or uncertainties, in her view, still remain?

Ari --Takes out category specific injury, looks at the relationship or type of relationship. Activities where distress may be likely, duty of care is owed in this relationship. Natasha- Rejects physical manifestations requirement. Some courts have limited recovery to a preexisting relation (doctor/patient; employee, employer).

3. What kinds of “activities, undertakings, or relationships” does Chamallas think should trigger a duty of care for NIED—and why? Why does she oppose the requirement of a preexisting contractual relationship?

Griffin- Representing Baber- chamalas believed the relationship should come from norms or public policy. Tort law should prioritize 2 things: 1. Patients interests in sexual autonomy 2. Intimate Sexual relationship. Ex: Sexual exploitation cases- shows conduct can jeopardizes p’s interest in sexual autonomy. Special relationship bt parties which should have warranted a duty of care. Court should recognize and value the relationship between a mother and child. Leaves P without a remedy

Nick- AKA Robert Hughes- Why contracts are useful- doctor/patient relationships. NIED expands contract. Opposes preexisting contract relationship- Boyles case- court should have focused on whether D’s conduct would have jeopardized p’s interest in her sexuality- should have recognized a duty of care. Doctor patient relationship- case where the therapist had sex with a patient. Their relationship started with a contract.

4. Why does Chamallas oppose the physical injury / physical manifestation requirement, particularly relating to reproductive harm? In her view, what problems arise when reproductive injuries are analyzed through rigid categories?

Ashmita- Voluntold to represent Dia- in general cases involving reproductive harm are tied to gender. Many courts find difficulty finding emotional connection between mother

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and fetus. Rigid categories- proving physical injury- many issues arise. Before 2004, a mother had to experience an injury herself that wasn’t a normal consequence of childbirth. Failure of law to recognize mother has interest in her fetus. No identical harm could be experienced by males.

5. How does Chamallas view the connections—and differences—between civil rights and tort law? What does she view as the unique and essential contribution tort law can make in the miscarriage, stillbirth, and sterilization cases and in cases based on the parent-infant relationship?

Jason- 1 perceived dif between civ rights and tort law- civil rights layout what govt cant do to ppl. Tort law- positive rights. Contracts/duty. Civ rights can be used to help courts with NIED cases though. Can be used to promote equality in private relationships. Constitutional law can be used to enforce rights that don’t come from contract relationships. Sterilization procedure cases is a good example. Court gave attention to civil rights in this case. Medical professions, when dealing with reproductive health, have a heightened duty to their patients.

Soule v. General Motors

Woman’s ankles injured, she claimed the design was to blame.History in Cal:In Cal, in the Greenman decision, was the consumers expectations test. Product was defective if it was more dangerous than they would have expected when buying a product. Police the bargain. Cronin used that test as well in 19721978- Barker case- There are some kinds of products where the consumer has no reasonable expectation of product. New option for P- risk benefit analysis. Puts a heavy burden on P. Has to prove the risks of the design outweigh the benefits. That’s a lot to ask of a layperson. Burden shifted to P. P can choose consumer expectations test or risk benefit. If they choose risk benefit all P has to prove is if design of the product caused the injury. Then burden shifts to D to prove benefits of design outweighed the risks. If D cant prove this, it is unreasonably dangerous.

Soule:

P elected Consumer Expectations test. Court said this was fine.

Case gets to Cal Sup Ct. Strong argument by D-- Consumer expectations test should be abolished. That is how they design products, there will always be benefits, they will always weigh them. 2nd arg by D- if you keep consumer expectations- don’t use it in a crashworthiness case/ complex product/ or issues of causation are an issue.

Soule decided- we aren’t abolishing CET. There are some cases where it is okay to use it. It is okay to use it when the everyday experience of the proiducts users permits a conclusion that a products design violated safety standards. If it promotes an inference that it works below standards. Not okay to use this test when youre dealing with a

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complex product which may cause injury in a way that does not engage its users reasonable minimum assumptions about safe performance. p. 575

A car is a complex product. The rule for CET is narrow. Footnote 3- p575.

Why is this bad from a P’s point of view?

- CET is not a matter of expert opinion. P is on unfamiliar ground. Expertise is within D’s control. Burden shifting helps. Risk benefit analysis uses a lot of experts. P would rather use CET.

By the time RBA leaves Soule, does it look less P friendly?

- Getting what we originally wanted for products liability?

Critical question: RBA has nothing to do with the bargain. Does it focus on the product rather than the conduct?

CET gives us the benefit of the bargain

Camacho v. Honda Motors

P had severe leg injuries, sued Honda because they didn’t have crash bars to protect his leg. By this time, crashworthiness was well-settled. Veh has to have safety features to protect the occupant. P did not argue for a CET. P wanted RBA. D wanted CET. Why did this switch?Lauren- D’s argument looked like assumption of the riskEngel- what were p’s expectations for buying a bike with not crash bars. “P doesn’t have a leg to stand on” Ha. You picked this one, that’s the bargain you made, no defect.

How does the court resolve this?Court agreed RBA should be used. Referred to a 7 factor test in Ortho test. The specific test is not as interesting as the fact that for a motorcycle you should use RBA whether it was a defect or not.

Engel- if you are policing the bargain, its not just the purchaser protected. What about people that ride with you? A car endangers people riding with you and pedestrians. If you focus on policing the bargain, you are only worried about the parties in the contract that made the exchange.

Engel- important words about assumption of risk. If defect imports assumption of risk into it the case will never get to the jury. If the danger is so obvious that the idea of defect will be shaped by the notion that the consumer knew the risk and agreed to it. Court is saying lets separate defect from assumption of risk. These are two dif questions. First you ask if it is defective, for this

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you use RBA. Next, did P assume Risk? Should his recovery be reduced? Maybe. If you conflate them, you will never get the reduction we want in society, will always have dangerous products. Will have products where everyone can see how dangerous they are. P may have been blameworthy, but not the same was whether the product was defective.

Review:Product liability comes down to the question of defect. The plaintiff has to prove that product harmed consumer because it was defective- 3 kinds of defects:

1. Manufacturing defect: the particular product in question does not match up w the other products of its kind. Doesn’t conform to its own specifications. 2. Design defect- the engineers who conceived of it made the product dangerous to the consumer. How do we tell to determine whether product is defective? What is the test?2 tests:

a. consumer expectation test- 402 (a) restatement.. was the product more dangerous than a consumer would have expected when purchasing the product? It polices the bargain. b. risk benefit analysis- does not police bargain. More of a deterrence policy that tries to induce the most cost effective behavior on the part of the manufacturer. Come up w a product that is safe in comparison to the benefit it.

Product liability is different than negligence because it looks at the product not the conduct of the manufacturer. In theory, product liability should look at product itself not the conduct. Risk benefit test is used to assess whether that product has a defect or not.

CET (consumer expectation test) vs Risk benefit analysis: By 1978 Barker case- consumer expectation alone is not sufficient bc a consumer sometimes has no reasonable expectations about the products dangerousness. Risk benefit is another test for the plaintiff.

Shift the burden of proof on defendant so not too burdensome on the plaintiff. Plaintiff just have to show that design caused injury. 2 factors of barker:1-Plaintiff choses between CET and risk benefit 2-And burden shifts to defendant

Soule case: Court said plaintiff should not be able to choose between CET or risk benefit. NoCET for complex products where consumers have no expectations such automobiles.

- This was a victory for defendant. They prefer risk benefit test.

Camocho case: case in which the plaintiff chose the motorcycle without the crash bars and sued Honda by saying the product is defective. The plaintiff wanted risk benefit analysis because the plaintiff did not want to choose CET because that is what he expected to get. Court agreed that risk benefit analysis should be used. Risk reduction in society. Policing the bargain is not enough because other people can be exposed to that risk. When someone gets injured, others suffer as well. Labeling this motorcycle

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defective there is still the question of assumption of the risk. If you find that plaintiff assumed the risk, his recovery will be reduced. Product w an open and obvious dangerous can still be defective a. imputed knowledge test- Philips case: previously endorsed CET test. But now they

wanted to try something different. This is the case involving the fiber board that was being sanded by the P w the sanding machine made by D. the question is whether the machine was defective or not?

New test applied: if D sold the product knowing the risk involved. Strict liability is imposed. Imputing knowledge of the risk to the seller. Constructive knowledge: Imagine that the seller knows of the dangers of the product then ask whether seller is reasonable to go ahead and sell the product.

How is it difference than negligence: the key difference is that the imputed knowledge does not ask what the manufacturer should have known. Negligence looks at conduct. Imputed knowledge says lets imagine that he D knows we do not care that he knows or should have known. The question is once this knowledge is assigned to you, then the test goes would that manufacturer be reasonable to make the product available.

Negligence only looks at reasonableness of the actual D. imputed knowledge looks at imaginary D that went ahead and marketed even though product was dangerous.

Imputed knowledge only looks at product and says this product seems to have danger so let’s ask an imaginary D to see if D was reasonable. Doesn’t look at what the actual D knows or should have known.

When might it be reasonable to market a product that you know is dangerous?- The manner of injury may be so fortuitous and the chances of injury occurring so

remote that it is reasonable to sell the product despite the danger. - The cost of the change necessary to alleviate the danger may be so great that the

article would be priced out of the market and no one would buy it even though it was of high utility.

The manufacturer can control the safety of the product. Imputed knowledge not widely used anymore. Courts still tend to draw on it for certain products.

Reasonable alternative design test: test for defect (RAD)Most recent of the test. controversial not sure if it will be adopted. (third restatement) the idea is that a product is defective if the foreseeable risk of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design and the omission of the alternative design renders the product not reasonably safe. -make manufactures make good decisions. Make the argument that failing to adopt alternative design was unreasonable. CET has almost disappeared. Burden is on the plaintiff to show that the alternative design is more reasonable than the one D came up with. Is the product safer to do otherwise? If you cannot come up w an alternative, then it is not defective.

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Comment e- irreducibly unsafe product- products that might be defective even if you cannot say there is a reasonable alternative

Critics: you see certain real important products where there is no reasonable alternative design (i.e. asbestos). Burden on P is too heavy. Return to negligence, abandon strict liability completely (Reasonable standard). Basically this field of law under third restatement is negligence. Disregard loss distribution. Deterrence becomes sole consideration. If no RAD exists, even unreasonably dangerous products may be non-defective.

D argues that tort law should track the process they go through. Hold on standard of reasonableness. Others say no. loss distribution argument- more appropriate for people that make a profit to pay even if they did not act unreasonably.

3. Defective warning- Warnings and instructions defect: Warnings are different than instructions. Warnings can reduce the risk of the product or can eliminate the risk. Words that reduce risk- for example safety instructions- make the product any safer but tell you to be careful because you can be injured. According to second restatement words that reduce risk are safety instructions. If the safety instructions make the product safe then the product is not defective Words that advise without reducing are warnings- don’t make the product safer-simply tells you about the risk associated w the product.

If the words are not adequate, strict liability will apply. To what extent can the warning compensate for the risk?

Case: Hood v Ryobi:Plaintiff removed 2 blade guards to cut through wood. Warnings attached to the saw such as “keep blades in place,” “never operate without blades” mentioned possibility of serious injuries

Plaintiff removed the blades regardless of the warnings. Plaintiff argues that the warning did not warn that if he removes the guard that the blade would actually come off the machine. He never thought the guard would come off the saw and that instructions should have told him that

Issue of adequacy of safety instructions- (argument that pictures are required, not big enough, not clear enough..etc) plaintiffs would argue this

Plaintiff wants to get this case to the jury. Is this a reasonable standard? Strict liability or negligence?

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What a manufacturer should have reasonably included in the warning. Basically a negligence standard used to assess the warnings. When it comes to warnings and instructions, manufacturer has to foresee misuse that a reasonable manufacturer anticipates. The warnings are defective if they manufacturer does not foresee the misuse. Manufacturers do have to anticipate misuse and this case manufacturer is not defective because they foresee the misuse that actually occurred.

More warnings are not always better for cost benefit analysis. Concern is warning pollution- cost benefit analysis is not the best way. The cost of adding warning is always minimal. Also the problem of products whose dangers are common knowledge. Ex: bottle of tequila. Courts say this is common knowledge. You do not have to warn against that.

Emery case:Whether you have to warn that marshmallows will expand in children- this is a jury question. Many people do not know dangers of marshmallows expanding.

When is warning required? Negligence standard- when danger is foreseeable- anything that is foreseeable needs warning. Reasonable foreseeability of misuse if required, but you do not have to warn about everything. Too much detail is not a good thing.

Causation problems:Suppose that Hood never read the owner’s manual or read the decals on the machine and the court found that warnings were defective (inadequate)

What is the argument that the D can make even though P did not read the manual?This is a But for problem- D loses on the defect issue but D can still win on the causation issue. Argument for D is that even if the warnings were terrific, but for the defectiveness of the warnings, P would have been injured anyways because he did not read the warnings anyways. D can still argue that a better warning would not have made a difference.

Some courts have a “heeding presumption” meaning that if the warning would be good then the P would have read the warning. D would have to show that p would not have heeded it even if we had better warnings because P is stubborn, etc.... it shifts the burden of proof to the D.

When would have a warning made a difference? Would the consumer have paid attention if the warning was good?

What if the defect is not in the product but the consumer? Ex: allergies. So drugs are safe but too some consumers the drug is harmful to them because of the way the drug reacts w a few consumers?

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The answer is reasonable foreseeable. If the atypical allergic reaction is foreseeable, then the manufacturer has to warn against it but do not have to change the design. Design is not defective but you do have to warn about it.

To what extent is it okay to take a poorly designed product and cure that with words that point out the risk to the consumer?i.e. what if you produce a car called “the death trap” so it has every risk known and it is really cheap. They warn against dangers. Did the words cure the defective design? No. bad policy to allow this type of injury to occur. Risk preferring people are not only harming themselves but harming others as well. tension of reducing injuries and goal of policing bargain

Martinez case- if there is a safer way to make the product, then the manufacturer might be liable despite a warning. Risk reduction- third restatement comment L agrees with this. If you can reasonably make the product safer, then you have to do that. Chose this over a warning.

State v Karl:

A drug manufacturer asks this court to adopt the learned intermediary doctrine as an exception to the general duty of manufacturers to warn consumers of the dangerous propensities of their product.

We decline to adopt this doctrine

Facts:

Gellner was prescribed the drug Propulsid by her primary care physician, Dr. Wilson. Propulsid manufactured and distributed by Jansen. Mrs. Gellner died suddenly on the 3rd day after she began taking Propulsid.

Mrs. Gellner’s estate filed a products liability/ medical malpractice action against Janssen and Dr. Wilson. Janssen filed a motion for summary judgment asserting that under the learned intermediary doctrine, it had fulfilled its duty to warn by providing warnings regarding Propulsid to Dr. Wilson. The circuit court denied Jannsen’s motion by order entered on June 2006

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“the learned intermediary doctrine provides an exception to the general rule imposing a duty on manufacturers to warn consumers about the risks of their products.”

“a drug manufacturer is excused from warning each patient who receives the product when the manufacturer properly warns the prescribing physician of the product’s dangers.” Prescribing physician or healthcare providers, who acts as a “learned intermediary” between the manufacturer and the ultimate consumer and assumes responsibility for advising individual patients of the risks associated with the drug

I has also been suggested that the rule is made necessary by the fact that it is ordinarily difficult for the manufacturer to communicate directly w the consumer.

Drug manufacturers now directly advertise products to consumers on the radio, tv, internet, billboards on public transportations, and in magazines

The supreme court of NJ opined and we agree that such advertising obviates (avoids) each of the premises upon which the doctrine rests:

1) “norman Rockwell” image of the family doctor no longer exists. Informed consent requires a patient based decision rather than the paternalistic approach

2) physicians have considerably less time to inform patients of the risks and benefits of a drug

3) having spent 1.3 billion on advertising, drug manufacturers can hardly be said to “lack effective means to communicate directly with patients”

Exception: where the manufacturer knows or should know that a physician will not be in a position to provide an adequate warning:

d) a prescription drug or medical device is not reasonably safe due to inadequate instructions or warnings if reasonable instructions or warnings regarding foreseeable risks of harm are not provided to:

1) prescribing and other health care providers who are in a position to reduce the risks of harm in accordance with the instructions or warnings or

2) the patient when the manufacturer knows or has reason to know that health care providers will not be in a position to reduce the risks of harm in accordance with the instructions or warnings

Finally, because it is the prescription drug manufactures who benefit financially from the sales of prescription drugs and possess the knowledge regarding potential harms

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Public policy dictates that the manufacturer should warn the ultimate user of the harmful effects of its pharmaceuticals since it involves a person’s health

Courts are increasingly motivated to protect the consumer, and require manufacturers to warn more than just the physician

The burden should be on the one producing health care, not the one consuming it

We now hold tht under West Virginina products liability law, manufacturers of prescription drugs are subject to the same duty to warn consumers about the risks of their products as other manufacturers. Decline to adopt learned intermediary exception.

Notes from class:Patient gets warning by doctor (intermediary) through manufacturer. Advocates say you want to preserve that relationship (doctor-patient relationship). Learned intermediary rule is an exception because warning goes to doctor not the consumer even though warnings usually go to consumers.

Exceptions that need to go directly to patient:Mass immunizations (requires it directly to consumer not the doctor), oral contraceptives, and drugs that are directly advertised to consumers.

General rule: ultimate consumer- addressee (person to whom something is addressed) of warnings and instructions

Exception to general rule- learned intermediary-addressee for RX drugs

Holding in this case: manufacturer has duty to warn They do not adopt the learned intermediary rule.

Warning of unknown/unknowable danger: Vassallo v Baxter healthcare:

Plaintiff claimed that silicone gel breast implants, manufactured by a company since bought by the defendant, had been negligently designed, accompanied by negligent product warnings and that they breached the implied warranty of merchantability. Husband claimed of loss of consortium. Jury returned verdict in favor for plaintiffs. Court upheld the judgment

Law should be reformulated to adopt a “state of the art” standard that conditions a manufacturer’s liability on actual or constructive knowledge of the risks.

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P claims that warning had defect. Did not warn about health products with the breast implants. P wins the case.

We hereby revise our law to state that a defendant will not be held liable under an implied warranty of merchantability for failure to warn or provide instructions about risks that were not reasonably foreseeably at the time of sale or could not have been discovered by the way of reasonable testing prior to marketing the product. A manufacturer will be held to the standard of knowledge of an expert in the appropriate field, and will remain subject to a continuing duty to warn or at least purchases of risks discovered following the sale of the product at issue.

What is the standard to know if a warning is adequate- warning under the defendants proposed standard a warning is adequate if it mentions all the risk that are known to the D.

Do we impute what was known at the time of manufacture or about the warnings that we now know about. Both parties want to impute knowledge. One wants it at the time of manufacture (d) or what the manufacturer knows now of the product. (dangers were not known until after). Ex. Manufacturers did not know about the risk of asbestos after a long time.

If a consumer is injured before defect is known, who should bear injuries (the manufacture is liable). If no warning against danger, the product defective so product liability should apply. Holding: t1 (time of manufacture or distribution) knowledge gets imputed by the manufacturer (what they should reasonably have known at the time of manufacturer. Unfair to hold manufacturers liable for unforeseeable risk. Deterrence goal (induce conduct that is capable of being performed. What a reasonable knew or should have known).

Old rule was time of trial (what they know now about the product- something that was once unknown). Loss distribution mentality and induces greater testing and research (corrective justice –they caused the harm so they should be held liable) (deterrence)

Issue: who should bear the cost of injuries between the time the product is distributed and the time the risk becomes known or reasonably knowable?

S Ct held that that 3rd restatement rejects hindsight approach. Manufacturer has to perform reasonable testing. Seller is charged with what he reasonably should know by testing

Beshada v. Johns-Manville Products Corp.: the function of state of the art evidence in strict products liability.In Beshada v. Johns-Manville Products Corp., the Supreme Court of New Jersey held that a state of the art defense is unavailable in cases brought under a theory of strict liability for failure to warn. The court indicated that asbestos producers may be held liable for

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their products' harms even if the health hazards of asbestos were unknown and not discoverable when the products were marketed. In a subsequent case, the New Jersey court held that state of the art evidence is relevant to whether a product is defective. This Case Comment examines these different uses of knowledge evidence in the disposition of products liability cases. It contends that manufacturers should not be held liable for unknowable risks. The Comment concludes that the state of the art defense establishes a logical limit on strict liability and promotes efficient resolution of products liability claims.

Feldman v Lederle:The appellate division affirmed, but the New Jersey Supreme Court remanded for reconsideration in light of its decision in Beshada v. Johns-Manville Products Corp., 13 ELR 20533, which imposed strict liability for failure to warn of the health risks of asbestos, regardless of whether the risk was discovered, given the state-of-the art at the time of the transaction. The appellate division reaffirmed, holding that prescription drugs are a special category of products for which there is no strict liability for failure to warn of a side effect not known when the drug was sold.

Defenses: General Motors Corp. v Sanchez:Facts: no witnesses. Sanchez 1990 Chevy pickup truck rolled backward w the driver’s side door open pinning Sanchez to the open corral gate in the angle between the open door and the cab of the truck suffered a broken right arm and damages right knee when the gate crushed him. He bled to death. Family sued GM corp. and the dealership that sold the pickup for negligence, products liability and gross negligence based on a defect in the trucks transmission and transmission control linkage. The jury rejected GM theories and found that GM was negligent, the transmission was defectively designed, and GM’s warning was inadequate. The jury also found that Sanchez was 50 percent responsible for the accident, but the trial court disregarded this finding. The trial court rendered a judgment for the estate for $8.5 million. The jury found that Sanchez was 50 percent responsible for his accident. GM argues that this finding should be applied to reduce its liability for damages whether in negligence or strict liability.

Comparative fault applies to products liability law.

A later court refused to recognize such a failure as a defense relying on party n to section 402 A of the Restatement Second: “contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence.” Assumption of the risk barred recovery but now you can recover but it is reduced.Consumer has no obligation to discover or guard against a defect.

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What does this mean? Ex: of a consumer who is contributory negligent includes misuse of a product.

Holding: we hold that a consumer has no duty to discover or guard against a product defect, but a consumer’s conduct other than the mere failure to discover or guard against a product defect is subject to comparative responsibility.

Final exams:Dec 10-torts 915Dec 15 contracrs 9Dec 18 civil 915

Regardless of any danger of a mis-shift, a driver has a duty to take reasonable precautions to secure his vehicle before getting out of it. A moving vehicle without a driver is a hazard to public safety. Thus, although we do not expect the average driver to have the engineering background to discover defects in their car’s transmission, we do not expect the reasonably prudent driver to take safety precautions to prevent a runaway car. Sanchez had a responsibility to operate his truck in a safe manner. Disapprove of Keen because only 2 categories of plaintiff conduct: mere failure to discover or guard against a defect and assumption of risk.

Reasoning: we hold that a plaintiff’s conduct other than the mere failure to discover or guard against a product defect is subject to comparative responsibility. We hold as a matter of law that such conduct must be scrutinized under the duty to use ordinary care or other applicable duty. Sanchez breached the duty to use ordinary care and was 50 percent responsible for the accident.

If the plaintiff had been able to prove that sanchez could merely discover, he could still recover 100 % but his misconduct was not following steps in the manual. P who fails to discover or guard against defect can recover all because consumer should not have to check for defects (place a burden on the P).

Post comparative negligence:Failure to discover or guard against defect is NOT A DEFENSE (before not a defense)Contributory negligence CAN REDUCE RECOVERY (before not a defense)Assumption of risk CAN REDUCE RECOVERY (before complete bar recovery)

Assumption of the risk operates like contributory negligence- reduces but does not bar recovery. However, Courts may say that product is not defective at all then the P recovers zero. If court says defect plus assumption of risk then P recovers something.

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Product misuse or alteration:If misuse is unforeseeable then no defect. If misuse is foreseeable product may be defective but plaintiffs recovery will be reduced due to comparative negligence or assumption of risk.

D can always find something that the consumer did wrong (contributory negligence). This is against the argument that contributory negligence should not be allowed. Contributory negligence should apply.

Beyond products? Royer v Catholic Medical Center:

New Hampshire high court upheld dismissal of a strict liability suit filed by a patient against a hospital for the damage he suffered from a defective prosthetic knee that was implanted in him during surgery at the hospital. Provision of the knee was incidental to the main purpose of the hospital, which is provision of health service.

Hospital argues that this is a service not a products liability. Negligence law applies to service but there was no negligence in this case.

Royer underwent total knee replacement surgery at CMC hospital. The prosthetic knee, provided by CMC, turned out to be defective and had to be replaced by another surgery two years later. Royer sued the maker of the knee, Dow Corning, but it was in bankruptcy proceedings, so Royer sued CMC in strict liability. CMC was granted dismissal by the trial court that found, as a matter of law, that CMC was not engaged in the business of selling prosthetic devices. Royer appealed.

Affirmed. Under the Restatement of Torts, §402(A), if the defendant merely provides a service there is no liability absent proof of a violation of a legal duty. New Hampshire joins with most other courts that have addressed similar cases and finds that a health care provider that supplies a defective prosthesis is not subject to strict liability. The health care provider is a service provider. The sale of the device is incidental to the health care service. CMC is not a seller of goods subject to strict liability for defective products; it is a service provider.

LIABILITY FOR DEFECTIVE PRODUCTS AND SERVICES:

Service-negligence law

Hybrid transaction- sale of product plus rendering a service: arguable (for professional D negligence standard is more likely)

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Sale of product: “strict” tort liability.

Argument is whether to apply negligence or product liability.

McGreen (hybrid case): dentist- P sued dentist because the dentist used defective product. NJ Supreme Court said this is professional service not commercial transaction. Governed by negligence not product liability

Newmark v Gimbell: hair stylist used product to put perm. P sued hair stylist for product liability (hybrid transaction). Court said you get to sue for product liability. NJ Supreme Court says big difference between professionals and beauticians. Medical services have better utilities.

Loss distribution and deterrence?

Product liability is confined to the Sale and distribution of a product.

Restatement third of torts §19 Product:

a) A product is tangible personal property distributed commercially for use or consumption. Other items, such as real property and electricity, are products when the context if their distribution and use is sufficiently analogous to the distribution and use of tangible personal property that it is appropriate to apply the rules stated in this restatement

b) Services, even when provided commercially, are not products

c) Human blood and human tissue, even when provided commercially, are not subject to the rules.

Are transmission of intangible forces such as electricity strictly liability?- generally courts says no but when electricity goes into consumer home then it is a product.

Human blood and tissue- generally speaking states have passed blood shield laws that exempt blood suppliers from strict liability. Product is not blood, human organs or tissues. Negligence law is standard not strict liability.

Courts view products as an exception to negligence. Strict liability has been infused w principles of negligence.

Issue spotter (review)Recommendations:

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(1) Ask what the question asks YOU to do. GIVE BOTH SIDES OF THE ARGUMENT if it says memo.

Usually 3 or 4 issues.

Issue spotter question- P conduct (contributory negligence, assumption of risk)Product liability (was the car defective)NegligenceCausation

Product liability:Was there a defect? Type of defect-design, warnings/ instruction, manufacturer

Tests for design defect

List relevant cases

Use facts!

State of the art

Causation:High rate of speed of plaintiff even if the product had feature-but for test applied. Alternative causes-9 manufactures and 50 cars. Don’t know which car caused the harm therefore can we prove by preponderance the causal connection.

(Summer v tice) (Ybarra- causation elements even though res ipsa case)

Assuming the risk or contributory negligence does not preclude recovery but reduces recovery

DEFINITELY BE ABLE TO SPOT ISSUES!!

FORMAT:Short answers and one issue spotter. Handwriting double space and no more than one page long. No more than 250 words

Make sure explain all assertions- do not use conclusory statements.

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