Torts OutlineFall 2010 Farahany Jasmin Felton

Table of ContentsI. Negligence ........................................................................................................................................................................... 4 B. C. Injury Element ............................................................................................................................................................ 4 Duty Element .............................................................................................................................................................. 4 c) Evolution to Tort Duty Rules ....................................................................................................................................... 5 iii. General Rule of Duty .................................................................................................................................................. 6 d) Qualified Duty ............................................................................................................................................................. 7 ii. Premises Liability ......................................................................................................................................................... 8 iii. Negligent Infliction of Economic Distress ................................................................................................................. 10 D. Breach Element ........................................................................................................................................................ 11 a) Ordinary Care Standard ............................................................................................................................................ 11 e. Judicial Determinations of Breach ........................................................................................................................ 12

b) Reasonable Person Standard .................................................................................................................................... 13 c) Ordinary Care vs. Custom.......................................................................................................................................... 14 1. Children ..................................................................................................................................................................... 14 e. f. g. E. Industry and Professional Custom ........................................................................................................................ 15 Assessing Reasonableness (Custom continued/ CBA) .......................................................................................... 17 Res Ipsa Locquitor ................................................................................................................................................. 20 Causation Element.................................................................................................................................................... 22 a) Causation in Fact ....................................................................................................................................................... 22 b) Substantial Factors Test ............................................................................................................................................ 22 c) Redefining Injury in Light of Actual Case (Loss of Chance) ....................................................................................... 23 d. e. f. f. g. Multiple Causes ..................................................................................................................................................... 23 Tortfeasor Identification ....................................................................................................................................... 23 Proximate Cause ................................................................................................................................................... 24 Risk Rule Test ........................................................................................................................................................ 26 Intersection of Duty and Proximate Cause ........................................................................................................... 27

II. Negligence Per Se ............................................................................................................................................................. 28 a. d. f. General Rule: Unexcused violation of a statutory standard of care, if unexplained, is negligence per se. ............. 28 Applicable Rules ........................................................................................................................................................ 28 Defenses .................................................................................................................................................................... 29

2

III. b. i. ii. iii. iv. v. vi. IV. V.

Strict Liability ............................................................................................................................................................ 29 Property Torts ........................................................................................................................................................... 29 Animal Bites (doesn't have to be a bite--violent activity) ..................................................................................... 29 Trespass to Land.................................................................................................................................................... 29 Nuisance ................................................................................................................................................................ 30 Ultra-hazardous Activities ..................................................................................................................................... 31 Distinguished......................................................................................................................................................... 31 Restatement of Torts 2nd Section 520 six factor test for abnormally dangerous activities ................................ 31 Products Liability ...................................................................................................................................................... 33 Defenses ....................................................................................................................................................................... 39

3

I. NegligenceA. Overview a) Overview of Prima Facie claim. P must prove these elements to be eligible for a remedy, and even if he does, the d may be able to avoid liability on the basis of an affirmative defense. b) Parts of Prima Facie Case (which Plaintiff has to prove by the preponderance of the evidence) 1. Injury 2. Duty 3. Breach 4. Causation a. Actual Cause b. Proximate Cause i. Example: Walter v. Wal-Mart Stores Inc.

B. Injury Elementa) If there is no injury, then there is no cause of action. b) Injury usually follows after the breach of some duty. P has to demonstrate that she has suffered the right kind of adverse effects to be entitled to pursue an action for redress from another. c) Three types of injury that are recoverable in torts: i. Physical injury-most common/ less disputed/ easy to find. 1. Any actual bodily harmbroken bones, illness. 2. Damage to property and Destruction of property ii. Loss of Wealth 1. Someone negligently prepares a will 2. Dont go to work because you were injured (economical loss) iii. Emotional Distresshighly unpleasant mental reaction that results from another persons conduct. It is very complicated to prove. 1. Anguish, grief, fright, humiliation, and fury.

C. Duty Elementa) Duty requires a negligence plaintiff to establish that the defendant owed her, or a class of persons including her, an obligation to take care not to cause the type of injury that she has suffered. i. Easy duty 1. You act in a way that is careless in circumstances where it is obvious you have a relationship to others. 2. These are cases in which neither the litigants nor the court will spend much time on the issue b/c all are satisfied that the person being sued owed the complainant the duty to take reasonable care not to cause harm to others. b) Pre-negligence presumptive cases i. Weaver v. Ward 1. Holding the court presumed that the victim of an accidental shooting could sue the shooter under the writ of trespass notwithstanding the absence of any preexisting relationship between them ii. Mitchil v. Alestree

4

1. Holding the court held that the owner of a horse could be sued under the wit of trespass on the case for carelessly arranging to have his horse trained in a public park, during which training it ran down the plaintiff, a stranger. iii. Cotterill v. Starkey 1. Holding- the plaintiff, a pedestrian, had been run down by the defendant as he drove his horse drawn wagon. It is quite clear that a foot passenger has a right to cross a public road and that persons driving carriages along the road are liable if they do not take care so as to avoid driving against the foot passengers who are crossing the road. iv. Vaughan v. Menlove 1. Holding the court upheld a claim for liability arising out of a carelessly started fire that spread from defendants to plaintiffs property. Everyone takes upon himself the duty as not to injure the property of others. c) Evolution to Tort Duty Rules i. Privity Rule: limits liability. Allows parties of a contract to sue each other, but prevents a third party from doing so. 1. Winterbottom v. Wright a. Wright built and maintained carriages. He entered into a contract with the English Postmaster General to provide coaches fit for delivering mail. The Postmaster General in turn obtained drivers by contracting with another company, of which the plaintiff Winterbottom was an employee. Winterbottom suffered permanent harm to his leg when the wheel on the coach he was driving collapsed, causing the coach to collapse. He sued Wright, arguing that Wright had breached a duty of care owed to drivers such as him to take reasonable care to ensure the soundness of the coaches being supplied to the Postmaster General. Issuewhether Winterbottom can bring a claim against Wright, who had no contract with, for negligence. Was there a duty owed by Wright to Winterbottom when they are not in privity of contract to each other? b. Holding: the court found that Winterbottom couldnt sue for negligence. Under the privity rule, if theres no privity then theres no duty owed. c. Reasoning: If 3rd parties were allowed recovery, this leaves room for an infinity of actions. Judges probably didnt want to hurt the growth of companies. Also, The Postmaster general is the least cost avoider in this circumstance. If the defect a maintenance defect, then it is the Postmaster's fault. He has to maintain them. Claim would have to be brought against him, not Wright. If they weren't fit in the first place, then postmaster not the least cost avoider and can bring a claim. ii. Imminently dangerous products (Thomas Rule) 1. There is automatically a duty of reasonable care owed when dealing with products that by their very nature could pose a serious risk of harm or put human life in imminent danger.

5

2. If the death or great bodily harm of some person was the natural and almost inevitable consequence of the sale of a product by a third party, that person can still be sued despite privity. 3. Thomas v. Winchester a. Facts: Thomas was accidentally poisoned after a company had carelessly mislabeled a bottle of poison as if it were medicine. The company argued, under Winterbottom, that it owed no duty to Mrs. Thomas because it sold the mislabeled bottle to a distributor named Aspinwall, who sold it to a pharmacist, who sold it to the plaintiffs husband. The New York Court of Appeals allowed liability to be asserted after establishing the imminent danger rule as a test for duty. This chips away at Winterbottoms privity rule. b. Conclusion: distinguishes from Winterbottom and states that one automatically accepts a duty when dealing with products that by their own nature pose a serious risk of harm. 4. Thomas Rule: When the harm is imminent of ones conduct, then you have the duty to take precaution to avoid that harm. iii. General Rule of Duty 1. Reasonable foreseeability governs. Reasonable foreseeability looks at individual circumstances to determine if person was owed a duty. a. Heaven v. Pender i. Under the circumstances that it would be reasonably foreseeable if you acted in a certain manner it would be harmful to others, then a duty exists. 2. The general duty of ordinary care is that which a reasonable, prudent, or ordinary person would take under the circumstance. a. Whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger. iv. The End of Privity in Negligence 1. The First Death a. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. It gives warning of consequences to be expected. If the element of danger there is added knowledge that the thing will be used by persons other than the purchasers and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. Established rule of probable danger which extends liability and overturns Winterbottom. i. Macpherson v. Buick Motor Company 1. Facts: Defendant sold an automobile to a retail dealer. Retail dealer sold automobile to the

6

plaintiff. Plaintiff was in car and it suddenly collapsed because the wheel was made of defective wood. 2. Conclusion: The manufacturer of automobiles are responsible for the finished product and they should foresee that the specific products they manufacture will be used after sold to a retailer. 3. Cardozo made Thomas the rule. 4. The modern doctrine of strict liability would apply to this case now. ii. Mussivand v. David 1. Person you owe a duty to has to be a reasonably foreseeable person. a. In this case, liability ended with the spouse because the spouse is a foreseeable sexual partner. One is only liable to the third party spouse until the initially infected spouse knows or should have known he or she was infected with a venereal disease. d) Qualified Duty i. Affirmative Duties to Rescue and Protect 1. General Rule: an individual does not have a duty to aid, rescue, or protect another person, even if he knows that person needs assistance: no liability (believing in autonomy). a. Ex: Osterlind v. Hill i. Facts: Plaintiff rented canoe to decedent who was at the time intoxicated. Decedent went out on lake and soon fell over board and screamed out to be saved. Since there is no duty to help one who could normally help themselves, Plaintiff cannot be held liable for renting a boat to one even if person was knowingly intoxicated. 2. Exceptions to General Rule a. Special Relationshipsduty depends on the relationship. i. Business inviteesyou have the greatest obligation to them. You owe them the highest level of care. A business invitee is one who goes upon the premises in answer to an express or implied invitation of the owner/occupant for their mutual advantages. The highest duty of care includes a duty to keep the premises safe, to warn and protect against hidden danger, and to take reasonable measures to investigate potential harms on the property. 1. Baker v. Fenneman a. Facts-Aaron Baker went to Taco Bell, ordered and paid for a drink then collapsed. He began having convulsions. The person working the register asked if Aaron was ok,

7

he said yes. As he got up he fell again and knocked his head on the counter. He began choking on his teeth and blood; then got up and ran out. Aaron files suit against Taco Bell Corp. Taco Bell breached a duty it owed to its customer because of the special relationship of business invitees ii. Imminent Peril Caused by the Defendant 1. Rule: If the defendant causes the peril, then defendant has a duty of reasonable efforts to help. 2. When you create the peril, that creates in you an obligation. Have to look at if its imminent, though. 3. Imminence determines the special qualified duty. iii. Voluntary Undertakings 1. Rule: once you volunteer yourself, you have created a duty. You owe a duty to the victim to perform the rescue with reasonable care. 2. You have to take all reasonable steps necessary to care for that person. a. Ex: Designated Driver iv. Other relationships 1. Duty to aid and protect a. School-student, hospital-patient, employeremployee, and prison-prisoner. v. Good Samaritan Laws 1. Legal obligation by statute that says you have to help under certain circumstances. Failure to do so may be a criminal misdemeanor or may carry liability. 2. Good Samaritan Immunities a. Immunize certain persons from suits who undertake rescues from liability for negligence, and in some cases, even gross negligence. i. Mostly made to protect off duty professionals. vi. Children 1. Duty to warn, report, and protect. ii. Premises Liability 1. Premises liability governs possessors of land a. Possessors of land are whoever has control over the land; not necessarily the owner. b. There can be joint premises liability. c. Does not extend to natural occurrences. i. Ex: lightening d. Weaker case for natural conditions. Majority rule says no duty for natural conditions.

8

e. Are liable for artificial conditions created on the land i. Most premises liabilities claims are for artificial conditions. f. Usually are liable for attractive nuisances and hazardous activities. 2. Basic Rule: Duty depends on the relationship at the time of the injury and the conditions of the property. 3. The greater economic benefit you get from the land, the greater duty you will owe to the people who come upon the land. 4. Invitee (generally there for business and economic transaction) a. Status: Has permission to enter; mutual benefit. Goes upon the premises of another in answer to the express or implied invitation of the owner occupant for their mutual advantage. b. Duty owed: i. duty to keep the premises reasonably safe and when not reasonably safe, ii. to warn of both obvious and hidden dangers, iii. to protect them, iv. and to investigate and figure out what dangers are on your property. 1. Ignorance will not be an excuse. 2. Governed by reasonableness c. Hazardous conditionsowed highest duty of care to protect against hazardous activities. 5. Licensee (usually social guests) a. Status: has permission to enter; benefit to licensee. Enters upon the property of another for his own convenience, pleasure, or benefit pursuant to the license or implied permission of the owner. b. The invitation extended to them may be expressed and implied as well. c. Duty owed: i. Cannot willfully and wrongfully injure them. ii. Passive Conditions--Have to give them reasonable warning about known and knowable dangers on property. iii. Hazardous conditionsif something inherently dangerous, have duty to not only warn but also duty to protect. 1. Ignorance can be an excuse. 6. Trespasser a. Statusintentionally or unintentionally enters without permission, license or other right, or has permission but goes beyond the bounds (geographic scope or purpose) of the invitation. b. Duty owed: i. To refrain from willfully or wantonly injuring them. c. Castle Doctrineif you believe a trespasser poses imminent danger and harm to you can use legal force to protect yourself. You may still have tort liability if you kill them. d. Minority ruleawareness of trespassing can create a duty to warn. i. Warn of known dangers

9

ii. Or take measures to prevent them from trespassing such as a sign or fence. 7. Child Trespasser a. Natural conditions duty to warn the children against it. b. Attractive nuisance higher duty required. Duty to warn and protect. i. Ex. Pool, trampoline, or swing ii. Warning could be a fence. 8. Leffler v. Sharp a. Leffler visited the Quarter Inn with his co-workers. He entered onto the roof through window, and the roof collapsed. Owners had sign saying no exit next to door leading to the roof. Plaintiff claimed Sharp (owner of building) breached a duty owed to an invitee. Court held that although plaintiff was an invitee at time of entry, he became a trespasser once he entered onto the roof area. Therefore, duty not to willfully and wantonly injure was not breached. iii. Negligent Infliction of Economic Distress 1. General Rule: usually cannot recover from pure economic loss except in special situations. 2. Rationale: countless claims would clog the system and the belief that the market breeds redistribution in the system. Also, cant know whether or not the economic benefits would exist in normal course of business. 3. Result: most cannot recover from pure economic loss except in some contractual relationships, other special relationships, and in cases of great disproportionate losses. a. A pure economic loss is a type of injury that impacts only finances. b. Recovery for disproportionate losses attributed to defendant i. 1st generation/disproportionate losses- person who has closest impact (usually person who is suffering most disproportionate losses). c. Special Relationships i. Proximity can create a special relationship if it is reasonably foreseeable. ii. Contractual Relationships 1. If you negligently perform contract duties when it is reasonably foreseeable that it will cause harm to the other contracting parties and they suffer an economic loss because of you, you owe them a duty because of your failure to fulfill the contractual obligations. 4. What courts consider to see if there is a duty for economic loss: relationship between parties, reasonable foreseeability, and public policy. 5. Example: Aikens v. DeBow a. Plaintiff Richard Aikens owned Martinsburg Econo Lodge. It could be accessed two ways (the main way via Route 901). Debow,

10

defendant, was a truck driver who happened to cause damage to route 901 when carrying a flatbed on his truck. Route 901 closed for 19 days. Court held that Aikens could not recover from pure economic losses.

D. Breach Elementa) Ordinary Care Standard i. Asks did the actor behave as an ordinarily constituted person acting reasonably under the circumstance would have behaved? 1. The standard Case Breach a. Breach element poses the question of whether the defendant acted with the degree of care that she was duty-bound to exercise. b. Breach is a factual determination usually made by jurors. On appeal, because its a question of fact, it would have to be clearly erroneous. c. Standard Breach Case Examples i. Myers v. Heritage 1. Two CANs dropped decedent while attempting to transfer her using a Hoyer Lift. Two weeks later, decedent died but cause of death was not related to injury with Hoyer Lift. Plaintiff (decedents estate) filed suit against Heritage (owner of nursing home) claiming breach of duty under the Nursing Home Act. Trial court ruled for defendant, claiming no breach of processional standard of care. Plaintiff appealed, claiming incorrect standard of care. Plaintiff claimed standard should be of ordinary care because nurses were not acting in professional capacity. Appellate court remanded for new trial claiming that the trial court abused its discretion in informing the jury by means of a professional standard rather than ordinary standard of care. ii. Martin v. Evans 1. Evans was a FORC Company employee tractor truck driver. One night he pulled into what he though was the last parking spot at a rest stop and angled cab to parallel park. When came out he checked behind the tuck and looked in mirrors before he attempted to back out. Plaintiff Martin claims he was parked behind the truck and defendant negligently backed into him. Martin and Steverson gave conflicting facts as to who was actually driving, probably because Martin didnt have a license. Jury ruled in favor of Defendant, but judge disagreed and chose not to enter jurys verdict saying it shocked the courts sense of justice. Court of

11

appeals held judge abused his discretion and reversed and reinstated the jurys verdict. d. Contrasting Approaches Examples: Strict liability/Custom i. Pingaro v. Rossi 1. Pingaro (a meter reader) arrived at defendants home to check meter. Upon getting out of her car, her machine said beware of dog. She proceeded to back of home and entered gate despite a beware of dog do not enter sign. Pingaro was attacked by the dog and filed suit for negligence against home owner Rossie. Defendant claimed n breach of duty because of warning issued to previous meter readers and the beware of dog sign. Is Rossie liable under the dog bite statute? Since Rossie was bound by the dog bite statute, was aware of the nature of her dogs, and Pingaro was legally on Rossies property, she is liable because of strict liability from the statute. If ordinary care standard had been applied, Rossie wouldnt have lost. Strict liability a much higher standard, so thats why the plaintiff won. ii. Jones v. Port Authorityheightened duty owed by common carrier 1. Oscar Jones (plaintiff) was on a PAT bus climbing the steps to the platform when a bus driver pulled offed and stopped suddenly while the bus door was still open, causing plaintiff to injure his arm. PAT posited the accident never happened. Jones filed suit challenging breach of duty. New trial was judged on a different standard of care after trial court initially found for defendant based on ordinary care standard. e. Judicial Determinations of Breach i. Rule: The judge may make a determination of law using the ordinary care standard if there is insufficient evidence to establish breach. ii. This is rare. iii. The rubric for breach considers (from Cardozo opinion in Adams): 1. Careless as if illegal 2. Only reasonable measures (no extra-ordinary measures are necessary) 3. Those risks that are more salient 4. Prior accident knowledge (if on notice) 5. Custom (Industry customs)

12

6. No way to guard (nothing they could dothey dont have to act as insurers) iv. Example: Campbell v. Kovich 1. P filed suit against d, who when mowing lawn allegedly was negligent and violated standard of care and injured p. However, p had no proof of what the object was or where it had come from. Summary judgment was granted for lack of evidence to prove breach of duty. 2. Even though breach is a determination of the jury, the judge can still grant a motion for summary judgment. v. Example: Adams v. Bullock 1. D ran a trolley line with an overhead wiring system. Trolley crossed over a bridge. Pedestrians often used the bridge as a shortcut and children played on the bridge. P (12 year old boy) was shocked after attempting to swing an 8 foot wire and was burned when the wires came together. Since the accident was in no way foreseeable, to hold D liable upon the facts would be to charge D as an insurer. D satisfied all industry customs, took reasonable precautions (dont have to take extraordinary ones), and the accident wasnt foreseeable. D not liable. 2. This Cardozo opinion very important. b) Reasonable Person Standard i. General Standard 1. Definedthe reasonable person is an average person with average mental capacities. What would they do and what would they think would be reasonable under the circumstances. 2. Negligence is the failure to do something which as a reasonable man guided by considerations which normally regulate conduct of human affairs would do or doing something which a prudent and reasonable man would not. 3. Restatement (Second) of Torts- Restatement 283 A a. Negligence is conduct which falls below the standard established by law for the protections of others against the unreasonable risk of harm. Unless the actor is a child, in which the standard to which he must conform to avoid being negligent is a reasonable child in like circumstances. 4. Example: Vaughn v. Menlove i. P sued d for negligently starting a fire after warned. P wanted objective reasonable person standardwhich he got. D did breach a duty because he did not act under the reasonable person standard and even if he wasnt aware of the harm, he chose to ignore the warning. Just because it was an accident, doesnt mean its not negligence.

13

ii. Objective vs. Subjective Standard 1. General rule is that reasonable person standard is an objective standard. 2. Two meanings a. Objective Standard i. Conduct based and applies external generalizations b. Subjective standard i. State of mind based ii. Applies personalized/individualized generalizations 3. Theory a. The subjective standard could lead to incorrect verdicts based in prior incidents not realizing everyone makes mistakes (guilty in past does not equal guilty in the present)/ b. The subjective standard relies too much on intent which could lead to a p who is injured not receiving remedy just because d claims intent wasnt to injure. c) Ordinary Care vs. Custom i. Exceptions to Ordinary Person Standard 1. Children a. Generally i. Massachusetts approach: A child is held to a standard that is calibrated to the capacities of a child of a same age or experience unless they are engaged in adult activity in which a child is held to the ordinary standard of care. ii. Restatement approach (this is the majority approach): says that under 4 years a child can never be liable, but other than that apply the Massachusetts approach. iii. The parent-child relationship does not automatically render parents liable. To prove negligent supervision the p must show: 1. Parents were aware of specific instances of prior conduct sufficient to put them on notice that the act complained of was likely to occur 2. Parents had the opportunity to act b. Tender Years Doctrine i. Illinois approach (this is the minority approach): says that children under 7 are incapable of identifying and recognizing risk, and therefore are incapable of negligence. Ages 7-14: says that the court must consider the age, capacity, intelligence, and experience of the child and the activity that the child was engaged in. If activity one generally engaged in by a child, judged by how child 7-14 would act. If adult activity, judged by adult standard. 1. The court says the Illinois rule has no place in modern society. They only stick to it because of stare decisis. ii. Example: Appelhans v. McFall

14

1. P filed suit against ds (parents of 5 year old boy who hit her with his bike) claiming 1) parents failed to instruct son how to properly ride bike 2) parents failed to supervise their son on a busy street and that the son acted negligently. P couldnt hold 5 year old negligent because of his status as a child and parents cannot be automatically held liable for his actions. c. Physical v. Mental Abilities i. No different standard of care for anyone except those with physical disabilities. ii. Only take physical disabilities into account when its relevant. iii. Mental disabilities are not taken into account. d. Culture, Gender, Elderly, Wealth, etc. i. Bound to ordinary reasonable person standard. e. Industry and Professional Custom i. TJ Hooper Rule 1. Rule: TJ Hooper holds that custom is not sufficient to establish reasonableness. The law shouldnt be bound by what is customarily bound acceptable. Its the court, not the industry, who must in the end say what is required. (Cost benefit analysis seems to play a role in analysis-when potential benefits are greater than potential costs, preventative action should be taken). 2. Example: The TJ Hooper a. Facts: Facts: Two tugs (the Montrose and the Hooper) owned by petitioner (Eastern Transportation Co.) pulled two barges (No. 17 and No. 30) owned by the Northern Barge Company; each barge lifting cargoes of coal. They began in Norfolk, Virginia in March 1928 headed for New York. After passing about 60 or 70 miles north of Delaware Breakwater (close to Atlantic city) a major storm gale hit. Barge #30 sprung a leak and sank on the afternoon of March 10th; the next morning (March 11th), Barge #17 sank after spring a leak. b. Numerous suits were filled and joined. The judge found that all the vessels were unseaworthy. The major rationale was that the tugs should have had working radios. c. Despite the custom being to not have radios, the tugs breached their duty of reasonable care because the radios could have

15

prevented the injury. Failure to have a radio is seemed to cause accident because other towboats that had radios pulled aside to safety. ii. The Anti TJ Hooper Rule (Professional Standard) 1. Rule: Custom establishes reasonableness. Strong rebuttable presumption in favor of the professional finding that they fulfilled their duty of care. Presumption-the burden for making out all of the elements of the prima facie case. The P has lost when we can show that the industry customs can be satisfied. Only applies to medical profession, accounting, and lawyers. 2. Reasoning: In part, its a check on the courts arrogance. In highly trained specialties which require significant expertise, industry is better at figuring out what is the proper standard than the court. 3. Example: Johnson v. Riverdale Anesthesia Assocs. a. A physician has a duty to act like a reasonable physician of like expertise would under the circumstances. b. Industry custom in professional fields means no breach. iii. Which Rule Applies? 1. The TJ Hooper Rule that custom is not sufficient is the majority rule. 2. Rule: Informed consenta determination of physicians disclosure must be made on an objective base in terms of what a prudent person in the patients position would have decided if suitably informed of all perils bearing significance. If adequate disclosure could reasonably be expected to have caused that person to decline the treatment because of the revelation of the kind of risk or danger that resulted in harm, causation is shown, but otherwise not. 3. Example: Largey v. Rothman a. Rejected Anti TJ Hooper Rule. b. Plaintiff (Largey) had a biopsy performed by a referred doctor (Rothman). Largey suffered adverse side effects due to biopsy from armpit; Largey claims she did not give informed consent because defendant did not explain that biopsy would be from breast and armpit; doctor also failed to

16

f.

inform patient of possible adverse effect. Defendant claimed he did not inform because side effect was extremely rare and that it was not custom to inform of every possible side effect. Defendant failed to give enough information so that plaintiff could make an informed decision. Assessing Reasonableness (Custom continued/ CBA) i. Balancing and Cost Benefit Analysis 1. BPL a. If the Burden is more expensive than the harm then there's not duty. b. Rule: According to the economic model that determines breach- when the B-burden incurred by taking an action < P-probability of injury x L- gravity of the injury, then an actor can be considered contributorily negligent for not undergoing the actions. c. B< P * L --then place burden on defendant and say they were unreasonable for failing to adopt that burden. d. If B > P * L ---no burden to do something because the burden is bigger than p * change in loss. You don't have a duty to fulfill that burden. e. Regardless of custom, taking the action is considered reasonable when the benefits or probable benefits outweigh the cost. What is reasonable or unreasonable insofar as ordinary care or due care or negligence (and the like) are concerned is often a matter of costs of prevention compared with correlative risks of loss. f. Unless there is an disproportionate probability of injury when analyzing the cost ( B>>PL), then the precaution should be taken. g. Unreasonable conduct is merely the failure to take precautions that would generate greater benefits in avoiding accidents than the precautions would cost. It is a bedrock principle of negligence law that due care is that care which is optimal given the potential victim is himself reasonably careful. h. Example: Carroll Towing

17

i. Ann C (the inner most barge on Pier 52; owned by Conners Marine Co but leased to Pennsylvania Ry. Co.) had flour from US Govnt; Harbormaster sent a tugboat to release one barge from Pier 52 and in order to do that it released the line connecting the outer barges from Public Pier and Pier 52. Task cause a barge from Pier 52 to float southward. Bargee wasnt on board the Ann C. The sinking could have been prevented, but the Ann C sank. Initial accident was caused jointly by tug and bargee owners who caused collision damages. However, since lack of bargee presence lead to contributory negligence and the loss of sinking damages; therefore remedy granted under the pro rata rule. i. Example: Rhode Island Hospital National Bank v. Zapata i. employee stole checks from Zapata in early 1985 and began writing forged checks. Rhode Island Hospital Trust National Bank sent statement to Zapata in April 1985. Zapata did not check statements to determine forgery until July 1985. Zapata notified bank and Bank stopped processing payment and reimbursed Zapata for loses up until April 1985 when initial statement was sent. Zapata wants bank to reimbursement in full for all forgeries even after she could have caught them. Bank claims its policy only affords reimbursement before Zapata could have caught the mistake. Zapata claims bank policy of not checking all checks is negligent and the overall banking custom is not sufficient. Held that defendant (Trust bank) did not lack of ordinary care in implementing

18

more cost efficient way to check for check forgeries because new method warranted more economic feasibility. j. Example: McCarty v. Pheasant Run (Posner) i. Facts: plaintiff was attacked while in her 2nd floor hotel room. Police found that attackers entered through a sliding glass door that wasnt properly locked. ii. There must be a asymmetry in the parties positions, the defendant should probably be judged by a higher soc b/c hotel owner would know more about possible risk, but the plaintiff also presents a certain hollowness in the case bc she failed to exercise a elementary precaution. 2. Disproportionate Cost Theory a. If the burden is much greater than PL, then theres no burden because the cost is disproportionate. b. You will have a burden if cost is a little great, equal to, or less than PL. c. Rule: Negligence should be tested by a 3 tiered mode of analysis i. If risk of harm was unreasonably small-no obligation to take precautions ii. If risk of harm was not far fetched but still small- obligated unless precaution warrants disproportional burden iii. If risk of harm was substantial or material- obligated to take every possible precaution. d. Example: Bolton v. Stone (Lord Reid) i. A batsman hit a cricket ball over the fence. The ball struck Ms. Stone in the head while in her yard; she was seriously injured. Residences had been constructed 30 years before baseball field. Evidence showed that cricket balls have come over fence before but never injured

19

anyone. Mrs. Stone filed suit against the club claiming it should have erected a higher wall to prevent balls from escaping. Mrs. Stones suit fell under prong two and the foreseeability of harm was relatively low it would have placed an disproportionate burden on defendant to take precaution, so defendant was reasonable. 3. Moral Theory and Relational Wrongs a. Rule: Physical well being is more important than money or modest restrictions on liberty. b. People dont think torts is entirely about morality, but they also dont think its based purely on economics. g. Res Ipsa Locquitor i. General Rule 1. The injury speaks for itself. This is the one exception to the general rule that the action does not speak for itself. The manner in which the injury arose and the nature of the injury itself, is such that it could not have happened but for the carelessness of the defendant. 2. Its a presumption that the p has made the breach element of the prima facie case. 3. Rule: Res Ipsa switches the burden of proving what happened from the p to the d when there is: a. Duty established b. Action is of a sort that p can not prove what happened, but it is reasonable to assume a breach. ii. Effect 1. Changes burden of proof from p to the d who must then prove that either the accident was reasonably foreseeable in a normal circumstance or that someone else is responsible for injury. D has to show that they did not engage in carelessness under the circumstances. 2. Only goes to the element of breacheven if instructed on res ipsa, a p could still lose if d can prove it performed its duty owed. 3. Basically, guilty until proven innocent (reverse of normal rule). iii. Example: Byrne v. Boadle

20

1. Facts: Plaintiff (Byrne) was walking by Defendants (Boadle) factory and a barrel of flour came out of window to injure plaintiff. Plaintiff had no way to prove exactly what happened. Three witnesses gave conflicting testimonies. Plaintiff was not required to bear burden of proof for negligence under res ipsa loquitur so defendant could not be granted summary judgment. iv. Justifications (Why have Res Ipsa?) 1. Sometimes there is no way for p to prove or give evidence but still gives the opportunity to establish negligence. a. Evidence based i. Res ipsa can be understood in part as an information forcing rule ii. It asks the party in the better position to identify what happened to come forth with evidence as to what really happened. b. Obligation based i. Subtle shift from ordinary definition of carelessness. c. Strict liability i. Res ipsa is like strict liability in that the defendant is responsible because of his position as the least cost avoider. ii. It is different from strict liability because in a strict liability claim, the defense does NOT have the option to present evidence to say why liability shouldnt apply. v. Requirements and Applicability 1. Rule: A prima facie case of negligence exists and a p is entitled to have jury instructed on res ipsa loquitur if the p establishes proof of three conditions: a. The event has to be something that normally wouldnt occur without negligence. b. It must be caused by an agency or instrumentality within the exclusive control of the defendant. c. The injury must not have been due to any voluntary action or contribution by the plaintiff.

21

2. Presumption is in the favor of the P for res ipsa. a. Assuming that duty, causation, and injury has been established. b. Forces D to produce evidence. 3. To rely on res ipsa, a p need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the 3 conditions afford a rational basis for concluding that it is more likely than not that the injury was caused by the ds negligence. vi. Multiple Possible Causes 1. If its just as likely something else caused the accident, res ipsa doesnt apply. 2. You have to be able to identify the tortfeasor for res ipsa to apply. vii. Multiple Defendants 1. It is possible to invoke res ipsa upon multiple defendants, but it has to revolve around one act (acting together for the purpose of one common goal). They have to act in concert with each other. a. Example: operating roomgroup of people performing one act of surgery.

E. Causation Elementa) Causation in Fact i. General Rule and Principles 1. But for the defendants carelessness or breach, the plaintiffs injury wouldnt have occurred. ii. Coincidence v. Causation 1. Coincidence isnt causation. 2. P has the burden of showing that but for ds actions, the injury wouldnt have occurred. 3. Preponderance of the evidence standardthe p has to show that it is more likely than not that ds carelessness under the circumstance caused the injury. 4. Example: Skinner v. Square D. Co. Substantial Factors Test b) Substantial Factors Test i. Majority Application--- if you can show by 50% or greater that the likelihood that but for the breach of the defendant the injury wouldnt have occurred, you will have established that the d has had substantial part in ps injury. 1. Instead of using but-for-test, p only has to prove that the ds carelessness was a substantial factor (more than 50%) in bringing about the injury. ii. Minority Application (bad way) 1. It is a big factor, less than 50%, in bring about the injury. Leave it up to the judge and jure to figure it out. 2. Reason this is bad is because it takes preponderance of the evidence standard and says rather than 50% or greater likelihood, ds breach was a substantial factor in bringing about ps injury.

22

c) Redefining Injury in Light of Actual Case (Loss of Chance) i. Ex: Falcon v. Memorial Hospital 1. Loss of chance of survival in this case was 37.5%. They didnt give her a chance of survival, though. Theyre compensating her because one cannot know if she wouldve been one of the people who survived or one who died. 2. But for the failure to administer the iv, she wouldnt have lost her chance for survival. They took away her 37.5% chance. 3. While a plaintiff must show some probability than that the treatment would be successful, that probability need not be greater than fifty percent ii. Rule 1. Ask does the breach by a preponderance of evidence cause the loss of chance of survival. 2. Majority rule: the chance of survival has to be over 50% if the particular measure had been taken. Falcon was overturned by this. 3. Death casesloss of chance at survival d. Multiple Causes i. If the acts of two or more persons concur in contributing to and causing an accident, and but for such concurrence the accident would not have happened, the injured person may sue the actors jointly or severally, and recover against one or all, according to the proven or admitted factors of the case. McDonald v. Robinson ii. Multiple Necessary Causes: When each of two or more careless acts functions as the necessary cause of the injury, then each is deemed as the cause of the injury. When the independent careless conduct of two or more actors each functions as a but-for cause of the plaintiffs injury. iii. Multiple Sufficient Causes: When each of two acts committed by two actors would by itself have generated the injury that happens to have resulted from the confluence of those two acts, each is deemed responsible for the injury. Theyre both the but for cause. e. Tortfeasor Identification i. Presumption in favor of the plaintiff in tortfeasor identification. Shifts the burden to defendant to come forward with proof to demonstrate that they werent the but for cause of the ps injury. ii. Rule: The tortfeasor identification rule allows both tortfeasors to be held jointly and severally liable without the tortfeasors acting in concert when there are: 1. Nearly identical negligent actions toward the plaintiff by the Ds 2. Of the set of people one has to be the actual and proximate cause of the plaintiffs injury 3. No suggestion of any other tortfeasors being involved 4. Ps inability to prove which D caused the injury cant be because the P wasnt diligent in trying to prove who did it. iii. Reasoning: The practical unfairness of denying the injured person redress simply because he cannot prove how much damage each tortfeasor did, when it is certain that between them they did it all. They should be the ones to apportion it among themselves. iv. Example: Summers v. Tice 1. Summers instructed Tice and Simonson to stay in line and exercise care when shooting. Tice and Simonson shot at quail but one shot hit Summers in the lip and the other shot which hit Summers in the eye cause the injury. No proof of who fired what shot. Judgment against both Tice and Simonson for being jointly and severally liable is affirmed.

23

f.

Proximate Cause i. Rule: (established after but-for cause) If there exists no sufficiently tight nexus between the breach and the injury, then act or omission cannot be deemed the proximate cause. An act or omission cannot be deemed the proximate cause of an injury if the connection between the breach and the harm: 1. Is too attenuated a link and act just furnished a condition 2. The link is too remote or 3. The careless acts (the results of the breach) have run its course ii. Would a reasonable person expect this injury to have occurred as a result of this breach? 1. Requires an actual cause and foreseeability iii. Example: Union Pump v. Albritton iv. Doctrinal Tests 1. Natural and Ordinary: D is liable for chain of events that are natural and ordinary in the particular circumstance. a. One-Leap rule: cut off point for liabilitydont want to permit liability to be imposed beyond the offense committed. i. Reasoning: a more expansive notion of proximate cause would permit the imposition of liability quite beyond the offense committed. The one leap rule asserts that the link is too attenuated outside of one leap. ii. Problems with rule: many foreseeable consequences can take place more than one leap away. b. Example: Ryan v. NY Central RR Co. i. Due to railroad companys negligence sparks from one of the engines ignited wood in a shed on the yard. The fire spread to consume Ryans home 125-150 from the shed and to several other homes. B/c in this instance the fire had already traveled from the engine and spread to the shed before spreading to the plaintiffs house, burning plaintiffs house is a remote consequence for which defendant is not liable c. Directness Test: the ds carelessness was the direct cause of the injuries i. This is regardless of how unforeseeable the injury ii. The person closest to the injury is held responsible iii. Reasoning: if there is a direct link then foreseeability is immaterial because there is still a causal relationship (not too attenuated) between the breach and harm. d. Example: In re Polemis i. D drops log on ship, log causes spark, spark causes fire, ship destroyed ii. Even though it wasnt foreseeable, it was directly attributable to the Ds carelessness. e. Foreseeability: was the type of harm suffered by the p reasonably foreseeable to the d at the time of the careless act? i. Example: Wagon Mound 1 and 2 1. Wagon Mound docked at Moors Dock, where Corrimal was also docked. Wagon Mound spilled oil, the dock and Corrimal were set on fire when sparks from welding caught on oil. 2. 1 Dock sues Wagon Mound

24

a. Not foreseeable that oil spill would lead to fire damage to dock. i. Overruled directness test of Polemisgoes against justice/morality to hold d liable for all consequence however unforeseeable/grave they may be just because they are direct. 3. (2) Corrimal sues Wagon Mound a. Harm to ship was a foreseeable consequence of the oil spill i. Contrary outcomes because dock owner was told that there was no harm ant thats why he continued to work. ii. Example: Palsgraf 1. Man being pushed onto train drops a box of fireworks, which explodes and knocks scales off. P is standing further away and is injured. 2. Cardozono proximate cause; no duty is owed to the P because P is not in orbit of duty; the injury was unforeseeable. a. Duty and negligence are relational. Duty varies based on proximity and relationship to the other person. b. Duty is ex ante, not ex post (as Andrews sees it). Look in advance to see what it the duty owed to each person, not after the injury occurs. 3. Andrewsdisagrees that duty is limited to a certain scope and that breach must be directed towards P. If it directly flows from your breach, you are responsible for all of it because injury was foreseeable to you. a. Owe a generalized duty of care. b. Due care is a duty imposed on Ds t protect society from unnecessary danger, not to protect A,B, or C individually. 4. Palsgraf applies when injured P is someone who is unlikely to have been injured. a. Negligent ds only owe duty to foreseeable victims to their negligent acts. iii. Example: Petitions of the Kinsman Transit Co. 1. The Shiras (owned by the Kinsman Transit Co.) was negligently moored. Continental could have remedied the problem if it would have tested, checked, and lowered the anchor. The Shiras began floating southward. It damaged the Tewksbury which also began floating southward. The bridge crew was warned to raise the bridge 20 minutes before ships hit the bridge, but they also failed to act. The ships crashed into the bridge and formed a dam on the river that flooded the nearby homes. The responsibility for the damages will be divided

25

f.

among negligent actors and negligent non-actors. Continental and Kinsman are held liable for all actions resulting after their original negligence. The City will be held liable for all actions resulting after the failure to let up the bridge. It is most equitable to hold Continental responsible than to hold all the poor victims responsible. (a balance of the equities because property damage was foreseeable even if full scope of damages was not). 2. According to Palsgraf a. Cardozono duty because the carelessness wasnt negligence in relation to property owners. b. Andrewyes duty owed because flooding of the property was a proximate cause. Risk Rule Test i. Wide risk and narrow risk rules are guides to applying foreseeability. They can be about the mechanism or the manner. ii. More likely to win the more narrowly you characterize the risk. iii. Majority rule (Broad Risk Rule): Proximate cause can be determined according to the broad risk rule that the specific approach doesnt have to be foreseeable but the nature of the incident does have to be foreseeable. 1. The broad risk rule is upheld as the majority rule because what mush have been foreseen is not the precise injury which occurred but injury of a given description. Foreseeability is not as to the particulars but the genus; the description is formulated by reference to the nature of risk which out to have been foreseen. iv. Minority Rule (Narrow Risk Rule): Every possible risk cannot be deemed the proximate cause of a single breach. When the harm is one that a reasonable person could predict to occur from the breach, then the harm is the proximate cause of the injury. v. Egg Shell Plaintiff rule: If nature is foreseeable and magnitude is also foreseeable, then you must take your plaintiff as you find them (you are responsiblemust assume all possible dangers.) 1. This rule imputes the application of the broader risk rule which holds that one is responsible for all injuries foreseeable by the particular mechanism, not just the exact genus of the harm. 2. Doesnt matter that the magnitude of the harm was unforeseeable. vi. Example: Jolley v. Sutton London Borough Council 1. An abandoned boat is brought to an area where kids played. Boat had a danger sticker and was supposed to be moved within 10 days. Justin and Karl begin working on boat 6 months later. They prop is up to repair and it falls on Justin making him a paraplegic. The current case allows the broad description of the

26

risk as being that children would meddle with the boat at the risk of some physical injury. vii. Example: Ventricelli v. Kenney Sys. Rent a Car 1. Ventricelli rented a car from Kinney Sys. Rent a car. The car had a known defective trunk; the trunk popped open while plaintiff was driving. Plaintiff pulled over to shut trunk and was injured after another car jumped forward. Defendant cannot be held liable for damages because the collision between vehicles both parked a brief interval before the accident is not foreseeable. They were in a relatively safe place not an actively traveled lane. viii. Intervening and Superseding Causes 1. Rule: If an intervening or superseding act of another is reasonably foreseeable, it will not cut off liability for the earlier party in time. If it is not reasonably foreseeable, it will cut off the causal train; particularly if there is an act of carelessness by a third party. 2. Example: Pollard v. Oklahoma a. Millard Justes collected cans of blasting powder that Oklahoma city Ry. Co. negligently left on the side of the road. His father told him to stop bringing them near the house. Justes and Bernie Pollard decided to play with powder stash by the creek. Justes lights end first and Pollard is crippled for life. The acts of Millard Justes, his father and his mother were independent acts that were sufficient to break the chain of sequence and thereby render the original act of negligence not the proximate but the remote cause, so the company is not negligent. 3. Example: Clark v. E.I. Du Pont a. Van Gray (defendants agent of E.I. DuPont de Nemours Powder Co) negligently left a quart of solidified glycerine near a well on McDonalds farm which was near the plaintiffs home. McDonald saw the danger and attempted to move chemicals to his home and then a near by abandoned grave yard still on his land. McDonald didnt know children frequented the graveyard. Appellees sons found chemical after attempting to bring substance back to show uncle set off an explosion. McDonalds actions should have been expected and the injury still relates back to the original negligent act so DuPont is still held liable. g. Intersection of Duty and Proximate Cause i. Rule: if unforeseeable, a willful, malicious criminal act of a third party is an intervening act which breaks the causal chain between the alleged negligence and the resulting harm. ii. Reasoning: a duty of care may be created by a gratuitous or voluntary assumption and a partys act is the proximate cause of an injury if it is

27

the natural and probable consequence of the act and shouldve been reasonably foreseen and anticipated in light of the circumstances. However, if duty was breached and then an superseding and intervening act of such great magnitude occurred, it can create a new mechanism of harm that was in no way foreseeable to the original tortfeasor unless there was an affirmative duty to protect against the foreseeable superseding and intervening cause. iii. Example: Fast Eddies v. Hall 1. Woman is intoxicated at a tavern. Barkeep tells friends to take her home and another companion later goes home to find wife not there, then goes to friend's house and finds the woman passed out. He then assaults and murders her. 2. There is no proximate cause or affirmative duty a. the bar never assumed an affirmative duty, and even if there was one, it was only to protect against foreseeable harms b. the circumstances by which the woman was murdered, where too far removed from

II. Negligence Per Sea. b. General Rule: Unexcused violation of a statutory standard of care, if unexplained, is negligence per se. Effect: i. Allows you to establish duty and breach. Still have to establish but for cause, proximate cause, and injury. 1. A statute can create a duty, and violation of that statute can create the presumption of breach in favor of the plaintiff. ii. Evidence forcing rule--in a narrow set of cases the d can come forward and say the he violated the statute, but he did so because it was the much safer conduct and more reasonable thing to not follow it. Example: Dalal v. City of NY i. Plaintiff claims she was hit when defendant was crossing at the intersection of Booth Street and 66th Avenue in Queens. No proof of negligence was found by either party. The defendant admits that she was near sighted and driving without her glasses. The defendant is charged with negligence per se. A restriction placed upon the license requiring the wearing of glasses when driving relates directly to the actual operation of the vehicle; and the violation of the statute warrants negligence per se. Applicable Rules i. Negligence per se can extend to questions as a matter of law violations of certain CONDUCT based regulations. ii. Rule: in torts only look at conduct rule because if mere licensing and filing rules, then can't apply negligence per se. iii. If regulation (for conduct), have to decide the extent to which it is an important regulation to establish negligence per se. iv. If a statute, negligence per se is established. Requirements (Restatements 2d Torts)-in order for negligence per se to be established:

c.

d.

e.

28

f.

Must be a member of protected class--P has to be part of the class of persons that the statute was designed to protect. ii. Interest invaded--has to be the type of harm the statue aimed to prevent iii. Harm and hazard--has to be the right sort of hazard that is intended or anticipated by the statute. Defenses i. Statute is an administrative regulation, not a statute ii. Children are not expected to conform to statutory/regulatory commands iii. Safer alternative chosen Generally-->duty (to not cause incident) + maybe a breach + causation + injury = (no fault) liability i. Parameters ii. Invokes liability without any question of whether you were reasonable under the circumstances. iii. Generally talking about hazardous activities you engaged in, hazardous conditions; extraordinary activities. 1. If you're going to run the risk of engaging in inherently dangerous activities, you're going to be held responsible. iv. With products liability, we hold manufacturers strictly liable because they put the product in the market place. 1. Some characterize the companies as serving as insurers--they choose to engage in the market place so they should be responsible if something goes wrong. b. Property Torts i. Animal Bites (doesn't have to be a bite--violent activity) 1. Majority rule: you are held strictly liable for all animal bites that occur, regardless of whether you knew about the vicious propensity of your animal. 2. Minority rule: vicious history of propensity will make you liable and the dogs on the list (pit bulls, Dobermans) you are on notice for. Also, if you know you dog has vicious tendencies, you are notice---knowledge of your breed and your dog having vicious tendencies makes you strictly liable. 3. Statutory defense for domestic animals: a. You may say the animal was provoked, but only works for non-vicious breed cases. 4. For wild animals, always strictly liable. ii. Trespass to Land 1. General--normally about the interference or invasion of someone else's property. Can happen by you being on someone's property or your failure to leave. The invasion of the person's interest is the injury. 2. Only intention of the act of being on someone else's property is needed. a. Any interference is sufficient, beneath or above property (includes nuisance--i.e. smell, interfering with someone's use and enjoyment of their property) 3. Don't need to have a physical injury. 4. Who can Bring Claim a. Person must have a possessory interest. i. The person who has a possessory interest could be a renter, lessee--not just owners. ii. Possessory interest is usually extended to the members of the household. 5. Damages a. Physical: are recoverable when they are the proximate cause of the injuries that arise from the trespass.

i.

III. Strict Liabilitya.

29

iii.

b. Nominal: damages of $1 to recognize that the violation of a legal right is an actual harm. c. Punitive: damages for non-actual damages. 6. Example: Rogers v. Board of Road Commissioners Nuisance 1. General: Some voluntary act that continually interferes with the reasonable use and enjoyment of your property. Different from negligence, which requires that conduct be reasonable. With nuisance, it unreasonably interferes with someone else's use and enjoyment of their property. Must be that the ordinary person would find it a nuisance, must be voluntarily undertaken, and must be continuously undertaken. 2. Factors to assess nuisance: The location of the claimed nuisance, character of the neighborhood, the nature of the thing complained of, and the frequency of intrusion. 3. The compensation asked for is usually the stopping of the ac causing the nuisance (injunction). 4. Example: Sturges v. Bridgman a. Coming to the nuisance doesn't work as a defense. 5. Cosean Theorem a. Reciprocal Causation and Entitlements i. Torts are reciprocal. You can't have one person interfering with the use and enjoyment of someone's property without the other person doing the same. b. The Irrelevance of Entitlements in the Absence of Transaction Costs: The Coase theorem i. Where do you place the entitlement to achieve the greatest economic benefit. Assumption that there are no transaction costs. c. The irrelevance of Distribution: Kaldor-Hicks Efficiency i. Want the person for whom it would be cheapest to come forward to seek to negotiate. 6. Private Nuisance Distinguished a. Vs. Trespass i. Both frequently involve injunctive relief. Both require that the p have a possessory interest. Both involve interference with an interest in land. Neither requires physical damage. Neither requires intention. Neither requires a showing of unreasonableness with regard to conduct. Different because of degree of interference for trespass is minimal. Liability for trespass also more strict than liability for nuisance. Also with nuisance, it has to be continual. ii. You can have nuisance without trespass with sound and odor because can't show intentional interference of land. b. Vs. Public Nuisance i. This is a species of catch-all criminal offense that consists of an interference with the rights of the community at large. 1. Can be actionable from the government or people who have been individually harmed. Want them to suffer some individual harm to limit the amount of cases and make sure the evidence and claims are specific. 2. Example: City of Chicago v. Bereta c. Damages d. Rule: Just because there is a nuisance, it doesn't mean there should be an injunction: i. Must balance the equities: ii. Compare the interest of the Ps and Ds iii. Balance the use and enjoyment of the p vs. the cost to the d.

30

iv.

v.

vi.

iv. Example: Penland v. Redwood Ultra-hazardous Activities 1. General Rule: If you've engaged in a ultra-hazardous activity, then you're held liable if it was the but for cause of someone's injury 2. Reciprocal risks vs. Unilateral risks a. Reciprocal risk: you and the other person pose a risk to each other. Example-driving a car is a reciprocal risk. b. Unilateral risks: a risk that you are posing to other people that they are not imposing on you. Ultra-hazardous activities are unilateral risks. 3. Rationale: You should have to take every possible caution to prevent injury, and if an injury results, you are going to be held strictly liable because you are posing a unilateral risk. Also, the person engaging in the abnormal activity is in the best position to guard against it and appreciate the risk. 4. Defenses a. Comparative fault i. Proximate cause level--acts of p were an intervening or superseding act that gave rise to the injuries, therefore it's the p who should be responsible. They were the proximate cause. b. Assumption of risk 5. Un-natural Activities a. Example: Rylands v. Fletcher i. D's building of a reservoir caused flooding of P's mines. ii. Bringing un-natural activities on you land that pose a risk to other people is a ultrahazardous activity. iii. Rule: The person who, for his own purposes, brings on his land and collects and keeps there anything to do mischief if it escapes must keep it in at his own peril; if he does not do so, is prima facie answerable for all the damage which is a natural consequence of its escape. Distinguished 1. Vs. Trespass: Trespass requires intent to occupy someone else's land, and this is not required with ultra-hazardous activities. 2. Vs. Nuisance: Nuisance requires unreasonable interference with someone's use and enjoyment of their property. Biggest difference is property. Ultra-hazardous activities can arise anywhere. They don't have to just be on your property. Also, the people don't have to have a possessory interest to bring a claim against you. 3. Vs. Res Ipsa Loquitur: With res ipsa, there's a presumption of breach: the only way the accident could've arisen is by the careless actions of the d. With ultra-hazardous activities, not saying the only way the accident occurred was through the carelessness of the d. They could've been careful, but because of the inherent risk in the ultra-hazardous activity, no matter how careful you are and what you do, if injury arises, you will be held liable for the resulting injuries. Restatement of Torts 2nd Section 520 six factor test for abnormally dangerous activities 1. An 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 of the activity to the place where it is carried on; and

31

c.

6. Extent to which its value to the community is outweighed by its dangerous attributes. vii. Example: Klein v. Pyrodyne Corp. 1. Pyrodyne is a general contractor for aerial fireworks at public fireworks displays. During a fireworks display, one of the 5-inch mortars was knocked into a horizontal position. From this position an aerial shell inside was ignited and discharged. The shell flew 500 feet in a trajectory parallel to the earth and exploded near the crowd of onlookers. Plaintiffs Danny and Marion Klein were injured by the explosion. Courts draws the analogy of fireworks to dynamite (which courts have already held to be an inherently dangerous product which warrant strict liability for harm) in order to prove that similar items warrant similar imposition of danger. Fireworks also meet four out of the six elements required for determining abnormally dangerous activity. Fireworks can 1) have a high risk of potentially harming a high number of people 2) the likelihood of the harm will be great 3) even when exercising reasonable care some accidents can still occur and 4) using fireworks are not common usage (the 4th of July is only one time a year). Fireworks have an elaborate requirement of insurance, license requirements, and regulations governing usage. 2. Principle you're trying to find is if it's an activity that poses a high probability and/or high magnitude of harm to other people, and if you find this, it is probably an abnormal activity. Vicarious Liability i. Basic Doctrine: the person being held responsible is not the person who is the direct cause of the negligence (doesn't mean that there can't be a direct negligence claim, though. ii. Respondeat Superior 1. A form of vicarious liability in which an employer is subject to liability for the tortious conduct committed by its employee when employee is acting within the scope of his employment. 2. Rule: Respondeat superior liability is properly applied where an employee undertakes activities within his or her scope of employment that cause the employee to become an instrumentality of danger to others even where the danger may manifest itself at times and locations remote from the ordinary workplace. a. Scope of Employment i. One acts within the scope of employment "where the social or recreational pursuits on the employer's premises after hours are endorsed by the express or implied permission of the employer and are 'conceivably' of some benefit to the employer or, even in the absence of poof of benefit, if such activities have become "a customary incident of the employment relationship," an employee engaged in such pursuits after hours is still acting within the scope of his employment. ii. Detour or Frolic 1. Detour: things that are reasonably foreseeable and we would expect to happen. Consists of a slight deviation from the expected course or route that an employee would take in the course of doing his job. 2. Frolic: consists of an employee who so far deviates from his employment obligations that he is deemed to be on his own business. iii. Intentional Torts 1. Act like superseding causes. 3. Rationale: a. Employer should be liable for those faults that may be fairly regarded as risks of his business, whether they are committed in further it or not. b. Why hold employees liable?

32

iii.

i. Cost sharing ii. Least-cost avoider iii. Employers have more control over activities iv. Not unfair if acts are foreseeable 4. Requirements: a. Actor must be employee/agent of the company b. The activity must fall within the scope of employment c. Can both the employer and the employee be held responsible? i. Agency/apparent authority (was the employee acting as an agent of the employer) 5. Example: Walter v. Walmart a. Pharmacist case 6. Example: Taber v. Maine a. Case where drunk navy officer (all drinking happened on base)crashed into P injuring him severely. b. The fact that he drank with superior officers important. Possibly the officers endorsing the activity. Direct vs. Vicarious Liability 1. Acts of direct negligence that differ from respondeat superior acts; a. Wrongful act or failure to act by an employer that brings about the plaintiff's injuries. i. Example: Failing to screen or supervise employees

IV.

Products Liabilitya. b. Strict liability that may be imposed on manufacturers and distributors of faulty products that cause injuries. History i. Rule: "it should be now 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 have a defect that causes injury to human beings." ii. Rationale for rule (from Escola) 1. Even if there is no negligence, public policy demands that responsibility be fixed wherever it will most effectively reduce hazard to life and health inherent in defective products that reach the market. 2. Public policy calls to defendant against putting defective products on the market a. Manufacturers in the best position to mitigate the cost of accidents. b. Want to give them a strong incentive to take precaution c. In ordinary usage of product, don't have to do a detailed inquiry into how they are using it. d. Concerned about disparity between plaintiffs and manufacturers. Companies have least transaction costs relative to plaintiffs. e. Even if no negligence, the injured party still has the right to redress. f. Consumer no longer has means or ability to protect itself through investigation because of advertising and marketing under new technology. 3. Example: Escola v. Coca Cola Bottling a. After placing 3 Coke bottles in the refrigerator and had moved the fourth bottle about 18 inches from the case it exploded in my hand and inflicted a deep five-inch cut, severing blood vessels, nerves and muscles of the thumb and palm of the hand. The plaintiff asserted res ipsa. Majority says judgment affirmed but Justice Trayors Concurring Opinion:

33

b.

establishes strict products liability asserting that res ipsa just wont due. Accidents can occur even if there is no negligence. Hard to show negligence in this case because no duty was breached, and can't show res ipsa with a compelling argument, and negligence per se doesn't work because not part of the class the statute was intended to protect or the kind of harm.

c.

d.

e.

Implied Warranty i. Rule: Where the commodities sold are such that if defectively manufactured they will be dangerous to life or limb, then society's interests can only be protected by eliminating the requirement of privity between the maker and his dealers and the reasonably expected ultimate consumer. ii. Reasoning: Strict liability on the manufacturer and retailer alike afford maximum protection to the injured plaintiff and works no injustice to the defendants, for they can adjust costs of such protection between them in the course of their continuing business relationship. iii. Example: Henningsen v. Bloomfield Motors, Inc. (this case extended strict products liability to retailers) 1. Plaintiffs husband brought a car from a retail dealer but it is defective. Does the contractual warrant extended to third parties or only the person who bought the car? Not about individual warranty claim (which would be a breach) but about the circulation of a faulty product circulated regardless as to warranty. As a retailer strictly engaged in business of distributing goods to the public, Maywood Bell is strictly liable in tort for personal injuries caused by defects in cars sold by it. Strict Products Liability i. Rule: 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. Injury to the object itself doesn't count for strict liability (but it does for negligence). 1. P can establish strict liability if injured while using product for its intended use and not aware of product being unsafe for its intended use. ii. Rule Addendum: In order to take advantage of strict liability, the product has to be used for its intended purpose. iii. Reasoning: 1. Public policy rationale: if we know that the design defect can be the nature of the injury that could have been cause, then liable under the circumstance. 2. Rationales from book: a. The abandonment of the requirement of having a contract between the manufacturer and plaintiff b. The recognition that liability is not assumed by agreement but imposed by law c. The refusal to permit the manufacturer to define the scope of its own responsibility for defective products. 3. Example: Greenamn v. Yuba Power Tools a. Man injured by power tool that his wife purchased for him. b. To establish the manufacturer's liability it was sufficient that the p proved that he was injured while using the shopsmith in a way that it was intended to be used as a result of a defect in design and manufacture of which p was not aware of that made the shopsmith unsafe for its intended use. Rationales i. Cost Sharing Rationale-class 1. b/c they are putting the product in the market

34

f.

If they are pushing the product, then we want them to be limited and careful about what they say about the product. 3. Want every person along the chain to have an incentive to investigate if they have a good product they are willing to sell 4. P may only have access to or think of suing the retail a. The person whom you interact with is the most likely to whom you will file suit. ii. Book Rationales 1. Obligation Based Rationale a. A suggestion that manufacturers owe to consumers a particular demanding obligation to be vigilant of product safety. 2. Deterrence Rationale a. An argument that manufacturers are best suited to take precautions and therefore should be given strong incentives to take such precautions 3. Compensation Insurance Rationale a. An argument that manufacturers are best suited to spread the costs of accidental injuries caused by their products. 4. Causation-Strict Liabiltiy Rationale a. An observation that responsibility for injury stems from having marketed a product that caused injury, regardless of negligence. 5. Compensation-Equity Rationale a. An argument that victims' entitlement to compensation should not depend on the nature of the conduct that caused it 6. Litigation Structure Rationale a. An analysis of the disparities in power in litigation concerning evidence and procedure. 7. Judicial Candor Rationale a. An assertion that, if two ways of structuring the law lead to the same result, the more open and direct structure is preferable iii. Covered Parties 1. Retailers a. The p can sue the retailer if something happens. The retailer, if found guilty, can then seek indemnification from the manufacturer. b. Vandermark v. Ford Motor Co. extended defect-based liability to the retailer of a product. i. Rationale: The retailer is an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products. 1. Defendant is in better position to spread the cost and bear the cost of injury-applies to both manufacturer and retailer. 2. Encourages retailers to purchase from manufacturers who are more careful. 2. Users v. Bystanders a. Bystanders can sue the manufacturer. b. A bystander is in greater need of protection from defective products which are dangerous, and if any distinction should be made between bystanders and users, it should be made to extend greater liability in favor of bystanders. c. Comes full circle to Cardozo's opinion in Macpherson that liability should be extended to every person. d. Example: Elmore v. American Motor Corp. Basis of the Claim

2.

35

i.

ii.

SCIPD 1. Seller Caused an Injury with a Product that was Defective 2. above are the elements of the prima facie case. You skip duty and breach. 3. Hardest part is to find that there was a defect. Prima Facie Case 1. Injury a. The injury arises from the product and is not injury to the product itself. b. Destruction of the product itself is usually not actionable because they are protected by an express or limited warranty. i. Express warranty claims are almost always a pure contract claim. ii. Implied warranties can arise either in contracts or torts. 2. Product a. Foods and beverages: there are things in the margin that we're unsure if we'll be able to apply products liability law or some other kind of law. I.e. vitamins. b. Services are not considered a product. c. Real property is not generally considered a product, but if it's mass produced or prefabricated it can be. d. Human body products are not considered products. Policy rationale against selling body parts. e. Live animals are generally not treated as products, even though they are treated as property. f. Textual materials generally not treated as products, but maps and charts are sometimes. i. The thing that is the product is the gps that you purchase for your car. You're complaining of a defect. If it doesn't work as claimed, then that's a warranty claim. When relying on text, that's not a property claim. g. Intangibles (likely electricity) are generally not treated as products, but they occasionally qualify. h. Used products are not normally subject to strict products liability. If problem inherent in product itself, then you can still bring a design defect claim. If in control of manufacturer, we treat it as a product. i. Things like prescription drugs and vaccines are deemed products, but they are exempt from the reach if product liability laws. Deal with these drugs under negligence. j. Use your ordinary common sense when figuring out if something is a product or not. 3. Seller a. A seller is anyone who puts the product in the stream of commerce. b. You can sue anybody on the chain of sellers, and the sellers can seek indemnification up the chan. c. Bartering counts. d. A one time seller isn't traditionally treated as a seller. 4. Defect a. Three types: i. Manufacturing defect 1. Has a manufacturing defect if it diverges from the manufacturer's own specifications for the product. 2. There's a lemon or batch of lemons in the bunch. Ordinarily they're fine, but you have a batch of them that were produced poorly.

36

iii.

Easy to prove. Just have to come in with a proper product and show the difference between the two. Problem comes in when your product has been destroyed. ii. Design Defect 1. There is a flaw in the plan or specifications for the product. The two design defects are inherent in an entire line of products. 2. There may be a better product that performs in a superior way to your product, but that doesn't mean there is a design defect. 3. A design defect is where the product doesn't operate in the way it's supposed to operate. iii. Failure to warn or instruct 1. A product is defective for lack of adequate warnings when safety requires that the product be sold with a warning, but the product is sold without a warning (or adequate warning). 2. The defect is the "omission" of the language. b. Example: Gower v. Savage Arms, Inc. i. P shot himself in the foot and said the gun discharged even though it was not taken off the safe position and the rifle was designed to not fire when in the safe position. Gun was sold without proper warnings by retailer and wasn't in original packaging, which made a problem with the manufacturing defect claim. 5. Causation a. Often have a problem with causation because of proof reasons, so P is allowed to bring circumstantial evidence. i. Restatement 3d of Torts approach to circumstantial evidence supporting inference of product defect: 1. It may be inferred that harm sustained by the p was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the p: 1. Was of the kind that ordinarily occurs as a result of a product defect; and 2. Was not, in the particular case, solely the result of causes other than a product defect existing at the time of sale or distribution. Determinations of Defective Products 1. Rule: A product is not duly safe if it is so likely to be harmful to persons (or property) that a reasonably prudent manufacturer (supplier), who had actual knowledge of its harmful character would not place it on the market. 2. Rule addendum: it is not necessary to find that this defendant had knowledge of the harmful character of the (product) in order to determine that it was not duly safe. 1. Consumer Expectation Test (minority test) a. Rule: a product defective in design renders it more dangerous than ordinary consumer would expect it to be b. Reasoning: one might naturally say that products containing manufacturing defects disappoint ordinary consumer expectations. c. Application: The test we apply is relatively simply to meet: i. Has to be a real injury ii. Next apply the reasonable person or reasonable consumer standard

3.

37

2.

Problem: Not what the majority uphold b/c not about good products or bad products but about what you expected i. Too much subjective reasoning ii. No normative weight against it Risk Utility Test and Restatement 402A a. Rule: A product is defectively designed if the risks of its design outweigh its utility. i. A product is defective if it is unreasonably dangerous as marketed. It is unreasonably dangerous if a reasonable person would conclude that the magnitude of the scientifically perceivable danger as it is proved to be at the time of trial outweighed the benefits of the way the product was so designed and marketed. ii. A product is not duly safe if it is so likely to be harmful to persons (or property) that a reasonable prudent manufacturer (supplier), who had actual knowledge of its harmful character would not place it on the market. iii. It is not necessary to find that this defendant had knowledge of the harmful character of the (product) in order to determine that it was not duly safe. b. Application: before determining whether the case for liability should be given to the jury, the trial court should give consideration to whether a balanced consideration of he following factors did not preclude liability (these are the Wade Factors): i. The usefulness and desirability of the product--its utility to the user and to the public as a whole. ii. The safety aspects of the product--the likelihood that tit will cause injury, and the probable seriousness of the injury. iii. The availability of a substitute product which would meet the same need and not be unsafe. iv. The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility. v. The user's ability to avoid danger by the exercise of care in the use of the product. vi. The user's anticipated awareness of the dangers inherent in the product and their availability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions. vii. The feasibility on the part of the manufacturer of spreading the loss by setting the price of the product or carrying liability insurance. c. Example: Cepeda v. Cumberland Eng'g i. Plaintiffs duties were working on this machine whose function was to draw multiple strands of plastic extruded by another machine into position for cutting into very small pellets, so that the product could be stored and shipped; When the guard was on the machine, the strands were introduced by the workman into the machine through a horizontal opening in the guard adjoining the table, too narrow to admit a mans hand; There was no functional bar to the effectuation of the process in the absence of the guard; Plaintiff had worked on the machine with no guard for several hours before the accident; Plaintiff said the guard was not on when he came to work the night of the accident; The accident happened when the ribbon of plastic caught his hand and pulled it inside the rollers. ii. What constitutes a design defect subject to