Tort Law
Professor Baker, Penn Law, Fall 2008
Tort assignments
1: 9/2 Introduction, 3-44
2: 9/4 Duty cases leading up to MacPherson: 47-67
3: 9/5 Duty II: 67-75
4: 9/9 Duty III (no new reading but reread MacPherson and Mussivand)
5. 9/11 Duty to rescue: 74-88
6: 9/12 Premises liability duty: 88-97 & 110-119
7: 9/15 Pure economic loss duty: 97-110
8: 9/16 Tarasoff: 119-134
9. 9/18 Damages I: LA Transit v. Seffert (to be posted on Course Portal).
10: 9/19 Damages II: Sabia v. Norwalk Hospital (in Damages)
11: 9/23 137-57
12: 9/24 156-71 (makeup class at 1:30 in 240B)
13: 9/25 171-89
14: 9/26 Sabia v. Norwalk Hospital (breach issues)
15: 10/2 189-210 (the cost benefit approach & res ipsa)
16: 10/3 337-354 (negligence per se)
17: 10/6 217-31 (actual cause)
18: 10/7 231-39 + Sabia v. Norwalk Hospital (causation issues)
19: 10/10 239-59 (multiple causes)
20: 10/16 259-63 (burden shifting) + Sabia v. Norwalk Hospital (insurance issues)
21: 10/20 267-87 (proximate cause)
10/21 No class
22: 10/23 287-99 (proximate cause)
23: 10/24 299-324 (Palsgraf)
24: 10/28 MMM (remember that you should feel free to skip chapters 3 and 7)
25: 10/29 MMM
26: 10/30 MMM
27: 10/31 389-404 (contributory & comparative negligence)
28: 11/4 404-24 (assumption of risk)
29: 11/5 424-43 (statutes of limitation; family & sovereign immunity)
30: 11/6 443-61 (no duty rules for local government and private entities)
31: 11/7 502-26 (vicarious liability and joint liability)
30: 11/10 443-61 (no duty rules for local government and private entities)
31: 11/11 502-26 (vicarious liability and joint liability)
32: 11/13 Heather Hanson guest speaker
33: 11/14 843-68 (products liability historical development)
34: 11/18 868-901 (products liability: manufacturing and design defect)
35: 11/20 901-927 (products liability: design defect)
36: 11/21 927-56 (products liability: prescription drugs)
37: 11/25 956-81 (products liability: failure to warn)
38: 12/2 Handout: Hammontree v. Jenner (on Course Portal)
39: 12/4 484-502 & 1012-20 (punitive damages)
40: 12/5 review
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Case list
Introduction, 3-44
Walter v. Walmart Stores, Inc.
DUTY: evolution of the rule 47-67 , 67-75
Winterbottom
Heaven v. Pender
Losee
Devlin
MacPherson v. Buick p59
Mussivand v. David p67
DUTY: to rescue: 74-88
Osterlind v. Hill p76
Baker v. Fenneman & Brown Properties, LLCp77
DUTY: Premises liability duty: 88-97 & 110-119, 119-134
Leffler v. Sharp p 88
Rowland v. Christian p110
Tarasoff v. The regens of the Univ. of CA p 119
DUTY: Pure economic loss 97-110
Aikens v. Debow p97
DAMAGES I:
LA Transit v. Seffert (to be posted on Course Portal).
Sabia v. Norwalk Hospital (in Damages)
BREACH: Duty, breach and the meaning of “negligence” 137-57
Meyers v. Heritage enters. Inc. p138
Martin v. Evans guy hangs out in back of a large semi. (no breach) p142
Pingaro v. Rossi p147
Jones v. Port Auth. Of Allgheny County p148
Campbell v. Kovich (lawnmower debris case, no breach )p150
Adams v. Bullock (idiot child with wire, trolley company didn’t have duty)p151
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BREACH: Reasonable person 156-71
Vaughan v. Menlove (reasonable person is an objective thing)p158
Appelhans v. McFall p 160
BREACH: Industry and professional custom 171-89
The T.J. Hooperp171
Johnson v. Riverdale Anesthesia Assocs.PC p173
Largey v. Rothman p177
BREACH: cost benefit approach & res ipsa 189-210
United States v. Carroll Towing Co. p189
Rhode Island Hosp. Turst Nat’l Bank v. Zapata Corp p194.
Byrne v. Boadlep205
Kambat v. St. Francis Hosp.(doctor breached duty by not doing the thing) p 206
CAUSATION: 337-354 (negligence per se)
Dalal v. City of NY p338
Bayne v. Todd Shipyards Corp p338
Victor v. Hedgees p342
CAUSATION: 217-31 (actual cause)
Skinner v. Square D Co.p221 (can’t prove that the switch was the cause of the death)
CAUSATION: 231-39 + Sabia v. Norwalk Hospital (causation issues)
Falcon v. memorial Hospital p231 (dr took away knowing causation b/c of negligence, 37.5% of survival; pays
37.5% of wrongful death)
CAUSATION: 239-59 (multiple causes)
McDonald v. Robinson p239
Aldridge v. Goodyear Tire & Rubber co p242 .(can’t prove that it was Goodyear’s chemicals)
CAUSATION: 259-63 (burden shifting) + Sabia v. Norwalk Hospital (insurance issues)
Summers v. Tice p259
CAUSATION: 267-87 (proximate cause)
Union Pump Co. v. Allbritton (lady slips, was in the scope of the accident)p269
Jolley v. Sutton London Bororugh Council (kid playing with the boat, ) p 277
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CAUSATION: 287-99 (proximate cause)
Pollard v. Oklahoma City Ry. Co p288 .(kid collected gun powder, RR not responsible since kid acted on his own
and supercedes RR’s negligence)
Clark v. E.I. Dupont de Nemours Powder co p292.(company shouldn’t have left nitroglycerine around, they
CAUSED)
CAUSATION: 299-324 (Palsgraf)
Palsgraf v. Long Island Railroad Co.p299
Petitions of the Kinsman Transit Co.p314
DEFENSES 389-404 (contributory & comparative negligence)
US v. reliable transfer co.p393
Hunt v. Ohio Dept of Rehabilitation and Correction p395
DEFENSES 404-24 (assumption of risk)
Jones v. Dressel p404
Dalury v. SKI Ltd. P409
Smollett v. Skayting Dev. Corp p414
DEFENSES 424-43 (statutes of limitation; family & sovereign immunity)
Ranney v. Parawax co p242
Riley v. US p437
DEFENSES 443-61 (no duty rules for local government and private entities)
Riss v. City of NY p443
Strauss v. Belle realty Co p453
DAMAGES 502-26 (vicarious liability and joint liability)
Taber v. mainep502
Ravo v. Rogatnick p513
Bencivenga v. JJAMM p513
PRODUCTS LIABILITY 843-68 (products liability historical development)
Escola v. coca cola Bottling Co. p845
Greenman v. Yuba Power Prods., Inc, p854
Cronin v. JBE Olson Corp. p861
PRODUCTS LIABILITY 901-927 (products liability: design defect)
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Cepeda v. cumberland Eng'g Cop886
Barker v. Lull Eng'g Co. p901
Soule v. General Motors Corp p911
PRODUCTS LIABILITY 927-56 (products liability: prescription drugs)
Sindell v. Abbott Labsp929
Freeman v. Hoffman-La Roche, Inc p944.
PRODUCTS LIABILITY 956-81 (products liability: failure to warn)
Anderson v. Owens-Corning Fiberglas Corp. p957 (whether Δ in failure to warn may present evidence of "state
of the art" that risk was unkonwn or unknowableHOLD: YES, Δ can provide state of the art evidence in failure
to warn RATIONALE: it's STRICT liability not ABSOLUTE, so you've got to know of the risk before you can warn
about it.)
Squib Oakes v. EI Dupont de Nemours & Co.
Squib Brown v. Superior Ct (1988)
Motus v. Pfizer Inc. p969
PRODUCTS LIABILITY : extending beyond products Hammontree v. Jenner (on Course Portal)
Hammontree v. Jenner automobile accidence
Hoven v. Kelble: medical services
Royer v. Catholic Meidcal Center: liable as seller of defective knee part?
DAMAGES 484-502 & 1012-20 (punitive damages)
National by products, Inc. v. Searcy House Moving co. p 485
Mathia v. Accor Economy Lodging, Inc. p489
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BOOK OUTLINE
Part One: Overview
Chapter 1. An Introduction to Torts
I.
What is a tort?
II.
An example of a tort suit
Walter v. Wal-mart Stores, Inc (lady gets her prescription drugs filled, they gave her the wrong
meds, make her extra sick; duty! Breach! Negligence!)
A.
B.
C.
D.
Common Law and statute
Responsibilities in Tort
The role of Lawyers
Proceeding through court
III.
Tort law in context
A. Tort contrasted with other areas of law
B. Politics of tort law
C. Some statistics concerning the tort system
IV.
Using this book
Part Two: Negligence: Liability for Physical Harms
Chapter 2. The Duty Element
I.
Negligence: a brief overview
A. Elements of the Prima Facie Case
B. The injury element
C. Focusing on Physical Harms
II.
The duty element and the general duty of reasonable care
A. Easy cases: the unqualified duty to conduct oneself with reasonable care for the person and property
of others
B. A sampling of easy duty cases drawn from English law
C. Evolution of duty rules
Macpherson v. Buick Moto Co (eliminate privity; duty to ppl who buy your cars)
Mussivand v. David (duty to the husband of the woman you’re sleeping with NOT to give STDs)
III.
Qualified duties of care
A. Affirmative duties to Rescue and Protect
Osterlind v. Hill (you don’t have to NOT rent to drunk ppl, or rescue them)
IV.
Baker v. Fenneman & Brown Properties, LLC
B. Premises Liability
Leffler v. Sharp (you don’t get to go out on roof, no duty to trespassers)
C. Pure Economic Loss
Aikens v. Debow (unpredictable loss, truck breaks part of overpass, no duty to hotel owner)
Rowland, Tarasoff and the Meaning of Duty
Rowland v. Christian (faucet cuts guest’s hand----)
Tarasoff v. The regenst of the Univ. of Cal.( the univ should have informed girl and family that guy
wanted to kill her; duty to inform)
Chapter 3. The Breach Element
I.
Duty, Breach, and the meaning of “Negligence
Meyers v. Heritage enters. Inc.
Martin v. Evans guy hangs out in back of a large semi. (no breach)
Pingaro v. Rossi
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Jones v. Port Auth. Of Allgheny County
Campbell v. Kovich (lawnmower debris case, no breach )
Adams v. Bullock (idiot child with wire, trolley company didn’t have duty)
II.
Defining the Reasonable Person
Vaughan v. Menlove (reasonable person is an objective thing)
Appelhans v. McFall
III.
Industry and Professional Custom
The T.J. Hooper
Johnson v. Riverdale Anesthesia Assocs.PC
Largey v. Rothman
IV.
Reasonableness, Balancing, and the Cost-benefit Analysis
United States v. Carroll Towing Co.
Rhode Island Hosp. Turst Nat’l Bank v. Zapata Corp.
V.
Proving Breach: Res Ipsa Loquitur
Byrne v. Boadle
Kambat v. St. Francis Hosp.(doctor breached duty by not doing the thing)
Chapter 4. The Causation Element
I.
Key Terms and Concepts
A. Actual and Proximate Cause
B. Actual Cause, the Jury, and the But-For Test
C. Two Meanings of “Caused”
II.
Proving Actual Causation under the Preponderance Standard
Skinner v. Square D Co. (can’t prove that the switch was the cause of the death)
Falcon v. memorial Hospital (dr took away knowing causation b/c of negligence, 37.5% of survival;
pays 37.5% of wrongful death)
III.
Multiple Necessary and Multiple Sufficient Causes
McDonald v. Robinson
Aldridge v. Goodyear Tire & Rubber co.(can’t prove that it was Goodyear’s chemicals)
IV.
Causation and Burden-shifting
Summers v. Tice
Chapter 5. Aligning the Elements: Proximate Cause and Palsgraf
I.
Proximate Cause
A. Directness, Foreseeability, and the Scope fo the risk
Union Pump Co. v. Allbritton (lady slips, was in the scope of the accident)
Jolley v. Sutton London Bororugh Council (kid playing with the boat, )
B. Proximate cause and intervening wrongdoing(superseding cause)
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Pollard v. Oklahoma City Ry. Co.(kid collected gun powder, RR not responsible since kid acted on
his own and supercedes RR’s negligence)
Clark v. E.I. Dupont de Nemours Powder co.(company shouldn’t have left nitroglycerine around,
they CAUSED)
II.
The persistent Puzzle of Palsgraf
Palsgraf v. Long Island Railroad Co.
Petitions of the Kinsman Transit Co.
III.
Proximate Cause and Affirmative Duties
Fast Eddie’s v. Hall
Chapter 6. Statutory Supplements: Negligence Per Se, Wrongful Death Acts,
and Implied Rights of Action
Duty, Breach, and the meaning of “Negligence
I.
Negligence Per Se
II.
Wrongful Death Acts
III.
Implied rights of Action
Chapter 7. Defenses
Chapter 8. Damages and Apportionment
Part Three: Battery, Assault, False Imprisonment, and Infliction of Emotional Distress
Chapter 9. Battery, Assault, and False Imprisonment
Chapter 10. Infliction of Emotional Distress
Part Four: Liability Without Fault and Products Liability
Chapter 11. Property Torts and Ultrahazardous Activities
Chapter 12. Products Liability
Part Five: Torts at the Supreme Court
Chapter 13. Torts at the Supreme Court
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Introduction, Sep 2
pg 3-44
A. Two big Picture Goals
1. Be able to make internal arguments about tort laws, such as the rules, etc
2. What is tort law? What are the external perspectives? What is the role of tort law? Purpose? What do
we think about it?
B. How do we read cases?
C. Five Fingers of Tort Law
1. Duty
2. Breach
3. Cause
4. Damages
5. Defenses
D. Stock forms of Legal Argument
1. Precedent (case law)
2. Policy
E. Goals of Tort Law:
1. Compensation
2. Deterrence
3. Retribution (Case book editor’s focus)
F. What is the place of tort law in the total US compensation scheme?
with insurance, workers comp
G. What is the relationship between insurance and tort law?
H. Take home final: issue spotter, policy type question!
I.
Fact versus Legal question
Fact
Mixed Questions!
What is ordinary care?
Legal
What is the duty?
Did it cause?
J. Walters v. Walmart (lady gets cancer drugs at Walmart, pharm gave wrong meds, she gets really sick)
 You can sue the employer and recover from the employer if employee breaches duty in course of
employment
 Naming and blaming the claims are important (name: wrong med, blame: Lovin-pharmacist)
 most cases settle, why didn’t this one?
o b/c Walters didn’t get medical attn sooner?
o Both believed they had a good case?
 The five fingers:
1. Duty: from precedent-- Tremblay v. Kimball (1910) estb “ordinary care”
o But is it ordinary as avg or as aspirational?
2. Breach: Lovin testified that he didn’t’ do what he was supposed to do (a. check meds b. consult
with patient)
3. Causation: Dr. Ross (P’s doctor) testifies that the med made her sick
4. Damages: medical bills, the difference between what she could do before wrong meds, and now
can’t do
o $$ is what we have to set things straight, right again.
5. Defenses: she was also responsible (didn’t work for walmart), comparative negligence
o Mitigation of damages, the limit of $$ by what the P also did, more in K
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Duty
Sep 4. Duty I 47-67
A. Game of Privity: Being able to find the facts to follow or distinguish precedents.
B. The Cases
Winterbottom—broken wheel
Thomas v. Winchester--mislabeled poison as meds; **imminent danger (poison); obviously going to be a 3rd
party.
Loop v. Litchfield—refurbished wheel lead breaks!
Losee—exploding boiler destroys neighbor’s property
Devlin—faulty scaffolding kills painters
Torsee—exploding soda bottle
Statler—coffee urn explosion
Sep 5. Duty II: 67-75
“Duty is the court’s expression of the sum total of those considerations of policy which lead the law to say that the
particular plaintiff is entitled to protection. Any number of consideration may justify the imposition of duty in
particular circumstances, including the guidance of history, our continually refined concepts of morals and justice,
the convenience of the rule, and social judgments as to where the loss should fall.” ~ Prosser, a legal realist,
distrusts categories, in Mussivand v David
A. Review: be able to use precedent based legal arguments
Follow
Distinguish
 ID the similarities
 ID the differences, and show that they are
 ID differences between prior case
significant
that made THAT stronger, a
 Distinguish an earlier v. later on the facts; show
fortiori
outcome is NOT reconcileable
 EX: even though Buick is a car like
Winterbottom, a)times have changed; b)
different jurisdiction; c) that was a BAD rule, no
longer good
B. From the game…Devlin begins to eliminate privity, idea that non-contractual ppl can recover
C. HYPO: defective trigger lock on a gun leads to accidental shooting on a hunting trip;
Manuf Sears consumer  victim
1. If you distinguish from Thomas, no duty b/c
a) poison will injure; trigger lock won’t always shoot a person;
b) poison is dangerous to everyone, guns are not.
c) Self reliance—undertake a risk when you buy a gun; not meds.
D. HYPO: defective steel in a sled runner leads to broken runner and injurs child on first use
1. Follow Thomas to estb. Duty; since it’s an imminently dangerous like poison
E. McPherson v. Buick
1. Devlin v. Smith establishes groundwork by getting rid of privity
2. Cardozo’s opinion:
a. Follow Thomas to say there is duty
b. Dist. Loop b/c wheel lasted for awhile
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c. Dist Losee b/c manuf. Knew steamboiler would be tested
d. Follow Devlin b/c owe duty to person using it; and dangerous if improperly
constructed/defected
e. Follow Statler b/c source of great danger if not carefully and properly constructed
3. New Rule: As long as there is a foreseeable danger from (defective) product, there is a duty!
Sep 9. Duty III (no new reading but reread MacPherson and Mussivand)
SWBAT:
1. Figure out what the case says
2. Figure out similarities/differences
3. Use #1 and #2 to make an argument
What does Cardozo do in his opinion in MacPherson v. Buick?
 Follow Thomas v. Winchester to find duty. Establishes it as the foundations
 Distinguish from Loop to find duty b/c wheel lasted for a while.
 Distinguish from Losee to find duty b/c mnft knew steamboiler would be tests, confine to it’s special
facts, while care would NOT be tested by consumer.
 Follow Devlin to find duty b/c Δ owed duty to person using it to make it safe, not just those in privity.
Sep 11. Duty to Rescue pg74-88
Affirmative Duties to Rescue and Protect
Osterlind v. Hill (MA 1928)
Drunk dudes rent canoe, one falls out, screams for help. Canoe rental guy ignores. Drunk dies after 30 min. H:
there is no duty to rescue and to protect . Court was correct in denying claim. π claims that Δ had a duty to not rent
to drunks and then, duty to rescue. Ct says: no duty not to rent, nor to rescue. If sober enough to scream for help,
sober enough to rent.
Baker v. Fenneman & Brown Properties, LLC, (Ind, appeals, 2003)
Taco bell has a duty to rescue even though it was not their fault the customer fell and hit his head. R: when there is
a special relationship, even if the business did not cause the injury, they have a special duty to care for those they
invite to make use of their business.
ISSUE
Does TB have a duty to assist a customer who falls to the floor and loses consciousness when the
customer's fall was NOT due to any fault of TB?
RULE
When there is a special relationship, even if a business did not cause the injury, you have a duty to
a standard of care not to make the injury worse.
HOLDING
Possible Duty, Question of material fact, summary judgment reversed
FACTS
Baker walks into TB to buy a soda. He faints, falls backwards and hits his head. Employee might
have offered help, an ambulance; he might have said he's okay, and then employee goes back
behind counter. Baker then faints and falls FORWARD, hitting his face, breaking teeth and a
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vertebrate.
When he regains consciousness, he's choking on blood and teeth, stumbles outside and calls for
help.
Plaintiff argues:
TB had a duty to help him and they did not help him
Duty to assist from Section 314 A of restatement
Taco Bell asks for summary judgment and is granted; NO duty.
Defense (Taco Bell) argues:
o NO duty because Did not cause injury
o Can't be expected to have medics as employees
Court's opinion:
o In general a person has no duty to aid or protect (LS Ayres v Hicks, IN 1942)
o Kellner v. Lowney, NH 2000; motel owner liable when guest hurt while crossing hwy
between two portions of motel property (rooms to religious service location)
o LS Ayres; notliable for initial injuries, liable for aggravation from failure to stop escalator
o Depue v. Flatau, Minn 1907; liable for aggravated injuries to man that was sent away during
a cold winter night
o Public policy suggest TB had duty to provide reasonable care; esp those they hope to gain
econ benefit from
o Lloyd v. S. S. Kresge, 1978; helping others is a cost of doing business
Baker has the task of proving for NEGLIGENCE:
o Taco bell had a duty to standard of care from relationship with Baker (store, customer)
o Taco Bell failed to conform to standard of care
o Baker incurred injuries b/c of breach of duty
To determine duty, balance 3 factors:
Relationship between parties
Reasonable foreseeability of harm to person injured
Public policy concerns
Required for a summary judgment:
o Is there a legal issue question?
o Are you entitled to a summary judgement?
→ NOT if there is a dispute over FACTS (did the TB worker help out?)
Sep 12. Premises Liability 9/12 pg.88-97 & 110-119
Rule Exception framework:
drives legal arguments. Sometimes you add other simple reasaons like public policy, ideals, practicality of
administration
In Premises Liability Cases:
1. ID category
a. Trespassers
b. Licensee
c. Invitee : invited, welcomes, mutually beneficial, commercial purposes?
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2. Define duty rule:
a. Trespassers
b. Licensees
c. invitee
3. Breach: when is someone liable and someone not?
4. Show the broad spectrum, do we need the categories at all? CA factors/ rejection of categories [policy
alert]
Leffler v. Sharp: no duty to trespassers
Rowland v. Christian: gets rid of 3 cateogries; general duty
Ct doesn’t like…
CA ct trying to wipe out distinctions
CA factors:
1. Closeness of the connection
2. Moral blame
Baker POLICY questions:
1. Correct factors?
2. What are they?
3. Do they get the right answers?
4. Does it work?
5. How do they attach onto compensation? Deterrence? corrective justice?
Caerter v. Kinney: bible study = licensee
Holliday v. pizza Inn: invitee b/c of mutual advantage
Hoffman v. Planters: : conscious disregard of a known serious danger.
HYPO: playingbasketball @ school yard on Sat. morning. Backboard breaks.
1. Locked fence, climbed over→ trespasser = no duty
2. PTA program—no admission→ invitee or licensee?
3. Just open, fence, 25 years, licensee
4. School knew, did nothing→ licensee
** biggest difference between ivnitee and licensee, is if you don’t know/know about the danger.
Takeaway: rule exception framework; distinction of duties.
Sep 15. Pure Economic Loss 9/15 pg.97-110
Liability for “pure” economic loss = “liability in an indeterminate amount for an indefinite time to an
indeterminate class” ~ J. Cardozo.
Baker Goals:
1. Why do we treat pure econ loss different from other injuiries?
2. ID boundaries of exceptions
3. Apply exceptions.
Exceptions to NO DUTY in $$ loss:
1. Connected to Bodily injury
2. Connected to property damage
3. Professional/client relationship
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a. Accountants→ users of statements
b. Lawyers→ beneficiaries of wills, etc
c. Contractors→ tenants of bldg.
4. Public property damage (eg: commercial fishermen, pollution)
5. People in close proximit/relationship with Δ, through chain of contracts.
a. Termite inspectors → buyer
b. Realtors
c. Architects/engineers → contractors
d. Surveyor → buyer
Easy for Δ to differentiate for exceptions:
1. No reason to drive safely for econolodge’s well being.
2. Lots of ppl could be injured not specifically by highway being damaged.
Public Policy Argument against duty in Pure Econ Loss:
1. Limit # of lawsuits (floodgates)
2. Avoid undue burden on Δ
3. Slippery slope: where do you draw the line (of duty)?
4. Proportionality between action/consequence/wrongness
5. Torts/less protective of wealth, protect π’s hard work
6. Administrability
7. Life is tough—you should plan for it.
LA Transit
Dissent: widely regarded as supporting MORE tort law but arg for smaller damages.
How come??
Sep 16. Tarasoff: 119-134
“legal duties are not discoverable facts of nature but merely conclusory expressions that in cases of a particular
type, liability should be imposed for damage done.”
Duty: there is some coherence to the rules → can predict rules
CA factors in Tarasoff:
1. Foreseeability
2. Certainty that π injured
3. Closeness of connection between Δ→ π’s injury.
4. Moral blame→ Δ’s conduct
5. Preventing future harm
6. Extent of burden to Δ
7. Consequences to community if duty imposed.
8. Insurance avail/cost/prevalence.
Public Policy Args: hierarchy of injuries deserving damages
Rowland v. Christian
(2) certainty of injury → no!
(3) close ness of connection between Δ→ π’s injury→ NO!
(4) moral blame? (a) who knows? (b) yes, b/c it’s a friend.
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(7) consequences to community → no. bc opens up to too many people (don’t want to incentive people NOT to
invite people over ever.
Aikens v. debow
Certainty of π’s injury? No, can’t prove injuries when it’s purely $$.
Tarasoff v. UC Berkeley
Balancing Factors:
1. Foreseeability: lower end? But Moore TRIED to confine
2. Certainty that π injured? She’s dead
3. Closeness of connection?
4. Mroal blame? Low b/c physician’s relationship (confidential)
5. Preventing future harm? Better safe than sorry (about what?)
6. Extent of burden to Δ?
7. Consequences to community (ppl ceasing to seek help?)
8. Insurance…
HOLD: duty to notify foreseeable victim when….
For this topic:
Rowland v. Christian
Mussivan v. david
Aikens v. debow
tacobell
Sep 18. Damages I: LA Transit v. Seffert
“orderly distribution of losses through
insurance the prices of goods or of
transportation”
“the bus dragged her for some distance and then threw
her to the pavement …9 operations…painful skin
grafting…difficulty standing.
Spasms…depressed…humiliation and embarrassment.”
Questions about Damages:
1. Why lump sum?
a. Annuity/structured/who controls it?
b. Who does a better job of investing? Tony sr. thinks he could
c. What happens when he dies? Do the payments stop?
2. What about collateral sources such as insurance?
Tort law is not just about compensation.
3. What about dead people?
Wrongful death… more difficult to recover.
4. Why not a schedule of payments(like workers comp)?
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a. Goes against tort law.
b. Damages → each case is individual
c. NOTE: even settlements are based on past settlements
Damages:
Rule: tort law is about compensation of harm.
Evolution over time
The arguments
What does that mean about purposes of tort law
How to use ideas about tort to relate back?
Damages that Compensate the π (restore to SQ)
1. Non Controversial:
a. Medical costs incurred
b. Wages lost
2. controversial
a. Future medical expenses
b. Future loss of earnings
c. Pain and suffering
d. Loss of life’s enjoyment.
Hedonic, non economic
Controversial/non compensatory: punitive damages
 Important culturally
 As deterrence
** 1960s/70s: pecuniary/hedonic and damages were about 1:3 for lower value claims.
Tort reform started capping at 250,000 and 500,000
Seffert v. LA Transit
Majority opinion
tort law rights individual
wrongs;
about the particular π only,
rehetorical tool, her injuries.
Traynor Dissent
tort law sets right price for harms to people in society.; damages ease
pain and pay attorney fees;  illustrates that trots should be like a
schedule (more worker’s comp-like), per diem is inappropriate.
Societal insurance, correct payment for injuries important to pay for
everything, P&S is punitive.
THINK ABOUT: major parallel in Δ strategies w/ traynor and majority.
Sep 19. Damages II: Sabia v. Norwalk Hospital (in Damages)
Medical expenses = (life expectancy) (school, surgeries, supplies, medication, transportation, equipement, care,
therapy, hospitalization.
Lost wages = (life expectancy) (income)
Reasons for caps on pain and suffering damages don’t always work:
1. Doesn’t influence med expe
2. π finds creative ways to determine med expenses
3. insurance policy coverage
LE: reasonable probably of Tony’s LE? ← major disagreement point
Statistics about other children are irrelevant.
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Sep 23. 137-57
Sep 24. 156-71 Breach (makeup class at 1:30 in 240B)
incompetence
amtrak
myers/martins
jones
commercial carrier
pingaro v. Rossi
Strict
Liability/Perfection
Breach—differrent standards:
1. ordinary care
2. professional
3. perfection
4. common carrier
is it the judge or the jury who decides where the duty lies?
In the middle—it goes to the jury, at the ends, it’s settled or dismissed.
Adams v. bullock and Martin v.
Similarities
o Jury verdict
o Something could have been done to prevent injury
o Some evidence Δ acted reasonably
o Strength of case against jury verdict
o π acted unreasonably
Differences
A-π
M- Δ
Procedural postures
Martin: new treial when they shouldn’t have, so first trial stands.
Adams-no new tirla when they should have, so New trial.
To follow adams to say martin’s 1st verdict stands: Judges supposed to do hard work
To distinguish martin from adams: martin was less one sided, adams obvious no duty for Δ
That was then, this is now,
No facts were contested in adams.
Anti-judge authority→ more cases to go to the jury
Majority in seffert
macPherson
Tarasoff
Rowland v. Christian.
Prejudge authority
Traynor
Aiken limited duty
Adams v. Bullock
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Vaughn v. Menlove, (UK 1837)
Reasonable for THAT person or for the average person? ← court says, external average person
Even if used Δ’s def, STILL had a duty and he breached.
How tailored is the reasonable person? Not very.
Ordinary care?
How do we reconcile menlove and appelhans?
Why aren’t children liable? tender years doctrine
Reconcile prudent person and tender years?
Time slice is narrow, not over your whole life! Were you reasonable in this instance? ← a sort of strict liability
Sep 25. 171-89
"the applicable standard of
care is that employed by the
med prof generally"
" in most cases reasonable
prudence is in fact common
prudence, but strictly it is
never its measure a whole
calling may have unduly
lagged"
to safe guard the patients,
interest... the law must itself
set the standard."
What is reasonable? Asks Vaughn
o personal/individual standard
o avg person
o average prudent person?
Appelhan—some groups exempt?
Do we treat ppl different for age/disability/profession?
→ tort law DOES sometimes treat age different (like criminal law)
Custom : should it be a floor or a ceiling? Is it aspirational or the average?
o In TJ custom was floor, it wasn’t enough to meet the reasonable care.
What are the implications for corrective justice?
TJ Hooper: π has to prove breach of reasonable standard of care
Hypo: custom not to have radios?
Custom: something that is regularly done by similar ppl in similar situations not necessarily a formality
Johnson v. Riverdale: anesthesia killed wife
Is preoxygenation customary?
Precise issue: can you ask witness what he would do?
Why is custom a ceiling in the medical profession?
Don’t rely on custom as a floor b/c:
1. Professional is responsible for others→ do the good (aspirational) thing
2. Reliance on custom inhibits innovation
3. Custom not necessarily a good guide to cost/benefits.
4. Custom not developed to achieve goal of tort standards
5. Rely on custom, then we have to fig out what it is
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6. Customs are sticky (outadate) (do we want law to push law?)
7. Customs VARY: not a clear idea of what the right thing to do
8. Custom serve as signal
Why is custom a ceiling in professional standards?
1. Juries may not understand byond b/c it’s technical
2. Professional get to set their own standards (so the custom).
If π proves custom and Δ unable to prove it was met→ breach?
If π proves custom and Δ able to prove it was met→ no breach?
Sep 26. Sabia v. Norwalk Hospital (breach issues)
In the war between doctors and lwyers standard of care was the most fiercely contested front”
“He blamed Koskoff and those like him for all the ills of the malpractice industry and in a general sense for the
breakdown in society he believed that industry exemplified”
*why do we treat custom differently for professionals than for ordinary standards?
Honor/autonomy of a prof prevents others to seek redress
Informed consent: surgery vs. battery
Island in sea of med mal: doctors need to tell patients everything they may need to know.
Donna(Mrs. Sabia): no fetal monitoring, didn’t very 2 heartbeats, left delivery room.
P: schiffin: beats per min.
Δ : FM NOT the standard of care, Humes ASKED..
→ enough dispute of fact so NO sum judgment.
Hospital: didn’t treat appropriately as high risk pregnancy.
Res Ipsa Locator/Cost Benefit Approach
Oct 2. 189-210 (the cost benefit approach & res ipsa)
“the owner’s duty…to provide against resulting injuries is a function of three variable:
1. The probability that she will breakway (bad stuff happens)
2. The gravity of the resulting injury, if she does (value of injury/loss/liability)
3. The burden of adequate precautions
B< pL
1. Understand algebraic formula of learned Hand's equation
2. Cost-benefit analysis as balancing approach to legal rule
3. First consideration of law and economic approach
US v Carroll Towing
 If P negligent, damages reduced by # of D.
 Bench trial in admiralty law→ ex. Of judge centered fact finding
 Learned hand's fromula
 Why does it matter why the bargee was gone? Reason for not being on the boat fits into B→ burden of
forcing bargee to live on barge (bathroom/food)
 Off the boat for a good reason--may meet co. policy→ of no one can leave the boat coasts more, increases the
burden
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




Cost-Benefit Analysis
Myers v. Heritage (pro v. reg std of care)
L=injuries to patients from lift
P= prob of injury if incorreclty used
B=bruden to train staff correctly/use it properly
Difficult in individual use, easier in training
Legal Q: professional std and expert testimony
Martin v. Evans:
b= getting out of truck and checking
p=likelihood of injury from backing up w/olooking
L=injury to foreseeable people,
L= value of injury to a person injured? Or
L= value of a loss to ppl injured?
Applying B <pL
Truck HYPO: it’s hard to use the equation;
if it’s just a conceptual too it seems to make more sense!
Dog bite case:
1. Doesn’t matter in SL← said legis.
2. L is so large B and p doesn’t matter.
Bus injury: common carrier: p is so high, increase L b/c ppl’s trust, so B can be pretty high too. So, π
couldn’t’ show a reasonable B…
However, custom can show, as evidence, that everyon thinks the B is not worth it (like in the lawn mower
debris case)
Kid with wire: B is rather too big, p is so small.
Anathestic/preoxygenation case—what is custom doing there re cost/benefit analysis?
Does B<pL need to be determined by more than just 1 expert? Needs to be estb by the custom? Who
know what the custom is? Just b/c he would do it doesn’t mean its necessarily worth it.
Cost benefit analysis as a useful tool for thinking.
Res ipsa locquitor: the thing speaks for itself.
2. Jury instructions—jury might think they can’t use common sense otherwise.
3. Restrains judges from dismissal.
Cost benefit analysis:
a. Was the omitted thing 9burden) worth risking the injury?
b. Introduces the econ analysis of law
c. Payoffs: from intuitive applications NOT complicated models
Oct 3. 337-354 Negligence per Se
The court may adopt as a standard of conduct… a legis enactment or admin regulation to protect:
a. A class of person which includes the one who interest is invaded
b. The particular interest which is invaded
c. Against the kind of harm which has resulted
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d. Against the particular hazard from which the harm results.
What circumstances will tort law allow standards from toher institutions (admin agencies/statutes/legis)?
HYPO: park in the wrong direction and this someone while pulling out.
Need to know: 1. Purpose of statue
Who was it supposed to protect?
Against the kind of harm which resulted?
Against the particular hazard from which the harm results?
The cases:
Dalal v. city of ny (1999)
Lady w/o her lenses hits dude; trial ct should have stated neg per se.
Bayne v. todd shipyards corp (1977)
under appropriate circ, violation of admin= neg per se.
Overturns 2 piror cases.
Cost benefit analysis can go both ways (marginal cost for protect everyone vs. …
Licensee/invitee (Diff duties)
it’s only an admin regulation.
Victor v. hedges
Lady gets hit while checking out cd player on the sidewalk.
Why shouldn’t administrative regulations be negligence per se?
1. Admins are not elected, legislators are
2. Admin regulations is more like a custom
3. Aren’t they just aspiration?
When was custom no good for estb the standard of care? Purpose of custom was diff?
Restatement!
Oct 6. 217-31 Actual Cause
Ordinary std of care—aspirational or average?
Reasonable person –tailored to prof/kids
Starbucks HYPO: coffee spill and hit by a car in the parking lot by a young driver on his cell phone.
Who can we blame?
1. Victim
2. Barista
3. His mother
4. Kid
5. Kid’s father for lending him the car
6. Person the cellphone with the kid
7. Mom & dad
8. Starbucks
9. Other drivers
Breach that CAUSED the harm.
Causation in fact leads to moral luck problem. (similar to crim)
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HYPO 2: 2 drivers
Mr. Unlucky hits pedestrian;
Mr. Lucky sees the accident, swerves, avoids hitting the pedestrian.
Who is more morally blameworthy? Both equally, idea of MORAL LUCK.
Skinner v. square D. (1994)
For π to prove cause:
(1) need to show it was in “off” position and
(2) he relied on it (looked at it)
(3) machine wasn’t running
(4) clips not on the machine.
For liability:
(1) was in OFF positions, but slipped into ON
Against liability:
(1) it was the alligator clips,
(2) homicide, someone came to turn it on
(3) he didn’t look at switch (it was “on’) → his own negligence led to his death.
switch moved from
off to phantom
zone-liable
wires attached
yes--no liabiility
or, no liability
motor running
no
switch off--faulty
wires not attached
switch phantom-looks, thinks off, PL's
theory
switch on--> no
liability
2 dudes hunting, 1person’s pelle hits a guy’s eye—but whose pellet?
π has to prove more likely than not.
CT says, both liable b/c destroyed chance to find out → evidential harm.
Evidential harm: situation where can’t determine who hurt the person, injures ability to collect damages.
So is a phantom switch an evidential harm?
Reasonable inference vs. impermissible conjecture
What is the difference between loss of a chance and evidential harm?
In settlement laywers treat uncertainty over cause/fault the same.
Oct 7. 231-39 + Sabia v. Norwalk Hospital (causation issues)
The recognition of mere chance as a recoverable item of loss fundamentally contradicts the essential notion of
causation” (dissent in falcon p237)
Falcon
 can someone recover if there was a loss of a chance of survival? When less than 50% vs. skinner: has to be
more than 50%!
 Arguments of the majority: YES
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o Special responsibility for phsycians (business of giving a person chance for life)
o Substtial factor in productin harm/precedent
o Reconceive the harm as loss of chance instead of death
o Δ cause uncertainty of outcome
 Dissent: NO!
o Precedent says needs to be > 50%
o Not fair to doctors
o Mere chance, not a probable cause of survival!
 Different from skinner in that manf could have done something? Opportunity in time. Potentially
observable interference? It’s medicine! He could have lived even with defective switch, she was sure to
die!
Sabia causation:
 Omission→ caused harm.
 Duty → breach→ harm.
 Check baby → help earlier
 Koskoff just have to show tony healthier if Michael was alive on Fri, tongy should have been fine if
discovered/delivered then.
 Jury will be asked: did breach of duty cause harm??
 Different from loss of a chance: experts said diff things
 Similar to loss of a chance: if they did test on fri they might have had chance to save Michael& Tony.
Lost chance to know what caused HARM.
 Does every med mal case become loss of a chance??
 Could we allow recovery when o<P ,<50% expanding moral luck?
 Could we get recovery if could have caused injury but most likely didn’t?
 Liability insurance means less MORAL LUCK in the world…
Oct 10. Multiple Causes
“That the mere presence of a particular chemical may have increased the risk of harm hardly constitutes causation
of fact” ~ from Goodyear
Summers v. Tiess : two shooters, one pellet, whodunit? estb idea obscuring clarity of fault also is a harm
Can we see a similar harm in Sabia?
McDonald v. Robinson (1929) pg 239
o Car accident, P was hit by D’s car after another car hit D. dragged under car, major injuries.
o Is Robinson liable for the car crash that injured π even if it wasn’t JUST him?
o Trial Ct. said jointly and severely liable
o Can’t prove that 1 person caused harm; neither one is sufficient BUT each was Necessary in the
causation jointly and several liable.
o Joint and several liability is GREAT for when 1 Δ has no $$ and other has a lot.
o Can lead to litigation between Δs
HYPO: 1 company makes 1 chemical that’s toxic  liable; 2 diff companies 1 chemical each provides 50%
 If 50% exposure is enough and all workers were expose?
 Timing?
 You don’t need to prove each indiv company was sufficient on its own; just that the combo was necessary
What kind of evidence to show that the chemical was at fault?
a) That is was NOT other risk factors: personal habits; genetics; compare to control!
What if 10 ppl get it anyway, and 25 got in this exposed pop?
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b) Can show more likely than not? YES! You’d end up compensating 10 ppl who would have gotten it
anyway
If 10 ppl get anyway and 15 ppl get? Probably NOT going to get compensation
 Even if ppl would have gotten disease anyway, the cause is different so there is STILL a breach of
duty; analogy: guy falling to the ground, shooting him in midair is still murder
 If you can show extra sickness, earlier sickness, not as hard a case
 Why can’t we just analogize to OBSCURING cause as a harm itself like 2 guys w/ guns? …what if
there are 100 potential Δ?
 Signature Disease vs. Background Disease
HYPO: 1 substance, provided by 2; 2 diff substances, disease has background potential
 π needs to prove?
1)exposure
2) concurrence? Makes toxic?
3)??
 10 anyway, 20 in this population?
 Substance A ↑2x ; Substance B ↑0.25x
 Need to prove more likely than not they CAUSED the harm (from Goodyear)
 What do we allow insurance companies to consider in setting risk categories?
 Pulling back from ________/ going beyond more likely than not?
1) Loss of a chance (Falcon)
2) Obscuring cause/ evidential damage (Summers)
3) Asbestos—as long as you prove presence of a single fiber
4) DES-synthetic estrogen—example of mnfc liable by % of market share in the area b/c disease is
SOOO rare
Workers compensation
a) Administrative approach sought after ind. Revolution in Europe
b) First sought in Germany; Bismark used ti to unite Ger from small states
c) Tort law discouraged recovery so it was difficult;
d) Wc= get less $$ faster
e) $ given out on a schedule
f) Law makes employers not just laible, also reqs purchase of insurance
g) Allows workers to recover, but also prevent sthem from suing
h) Baker thinks it fuels products liability (a logical)
1) Compensation gap
2) Worker who isn’t desparate
i) Research suggests WC paid for by LOWER WAGES
j) Workers comp deliver s a lot more $$ to ppl than other insureance!
Oct 16. 259-63 (burden shifting) + Sabia v. Norwalk Hospital (insurance issues)
“Koskoff proudly made a point of
not going after doctor’s assets
except n cases in which hey were
not responsible enough to buy
adequate coverage.”
“she was willing to do the most distasteful thing that she
could imagine, surrender for the sate of expediency to
people that she despised—the Koskoffs—on a grave charge
that she considered baseless. Yet even that excruciating self
betrayal was denied her. Again she was reminded that it was
not her but her insurance policy that the Sabias wanted, and
then it was the owner of that policy that made the decisions.
Insurance influences:
o Amt of coverage shaped settlement w/ Humes
o Hospitals’ big ins coverage → bigger target
o DR. Humes carrier was in control → didn’t let her settle earlier
o Hospitals carrier is in control → sack Ryan, hires Doyle
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o
o
o
Ins. Liability coverage incentive for ins company to settl e(can be sued if they don’t and lose)
Ins companies are repeat players→ incentive invest in research /capital to change the rules of the game
Humes hires lawyer to watch the ins copany’s moves/actions—ins company fires Bai, hires
Monstream.
Insurance companies decides to not/ go to trial based on settlement market “litigotiation”
Laibilty ins cost→ pressure on Dr’s practice
Liability ins gives Δ’s access to repeat player lawyer.
o
o
o
Other:
o Tony loses job/health insurance→donna goes to clinic
o When Tony had job, ins covered much but not all expenses (collateral source rule)
5 fingers of Tort law in Sabia
1. Duty: what was Dr. Hume’s duty? The hospitals duty of care for twin pregnancy?
2. Breach: what is the standard of care? Did their actions breach it? The standard of care is determined in
ltigation. Koskoff wants to draw bullseye around; don’t need standard unless in litigation.
3. Causation: did it cause Tony’s injuries? Or not? Having insurance makes the π want to FIND causation.
4. Damages: insurance coverage affects $$ collected? Can inflate/deflate the settlements
5. Defenses
6. Insurance should be 6th finger b/c presence /absence affects whether people sue!
Insurance and torts
o Collateral source rule: People cannot benefit
from π having ins coverage. π’s ins probably
makes them less likely to sue.
o But π having insurance also gives π access to
better care and more tangible costs.
o π has insurance→ more time to wait it out for
better settlements.
Liability
insurance
Subrogation: allows 1st party to step into π’s shoes.
Mental gymnastics—think about cases in torts may
have been impacted by insurance!
1st party
insurance
Proximate Cause
Oct 17. 267-87 (proximate cause)
10/20 267-87 (proximate cause)
Proximate cause
o legal doctrine that acts to cut off liability when breach is cause
o asks questions of whether the injury was fortuitious or too remote.
o 3 tests:
1. Directness: polemis drop wooden plank; some injury so duty; direct connection
2. Foreseeability
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3. The kind of injury that is foreseeable? Scope of the risk approach (no additional risk from getting gin
car lator starbucks hypo)
Operation of foreseeability test depends on the wide angle of the lens/generality!
Wagon mound.
Spilled fuel in harbour, decided it wouldn’t burn in water, welding
It was foreseeable that spilling fuel oil would cause some kind of injury
Injurry of the fire was NOT foreseeable.
If follow Polemis→liability
Ct said NO liability b/c fire was not foreseeable.
Union pump Co. v. Allbritton ( ) p269
Made defective pump, caused fire, allbriton was hurt while investigating.
Breach of duty was cuase in fact.
Arguments against liability
Arguments for liability:
o Too remote
Water there, she’s still at the scene (dissent)
o She decided to return in an unsafe way
o Not a legal cause if you furnish condition
o Scope of defective pump doesn’t include external
injuries created by fighting fire
It’s like her drivng home after work?
No it’s not! Increases risk of injury while there, not on
drive home.
HYPO: she slipped on the pavement
Baker: it would have turned out the same b/c slipping otn eh way back is not covered by scope of the risk
from defective pump.
Jolley v. Sutton London Borough p277
Breach estb injury estb.
Foreseeable risks: playing on the boat, no under it! (appellate ct)
Majority opinion: foreseeable of any injury from playing
Case in book: illustrates how foreseeability turns on generalizing
FORK!! Is the activity “playing” or “playing UNDER the boat”
HYPO A: suppose kids attach motor and fire up the boat; cut off kid’s finger?
HYPO B: trailer, towboat to local river, boat falls off and crushes him? More foreseeable than a?
Relational duty: duty from relationship
10/23 287-99 proximate cause II.
“it cannot be considered that in all cases the intervention even of a responsible and intelligent human being will
absolutely exonerate a preceding wrongdoer. Many instances to the contrary have occurred and these are
usually cases where it has been found that it was the duty of the original wrongdoer to anticipate and provide
against such intervention, b/c such intervention was a thing likely to happen in the ordinary course of events.”
Examples on page 285
a) Fortuitous (speeding got him there earlier?
b) Scope of the risk
c) Scope of the risk
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d) Scope of the risk. Diff from allbriton b/c fire created mess. Car driver did not create basement stairs , prox
cause—closer relationship in allbriton.
**how wide/narrow of a lens for prox cause?
Intervening wrongdoer (superceding cause)
Pollard collects powder,
Alternative: if injury occurred on the railroad premises? → liability
Alternative: intervening actor has to be 3p! if π himself hurt himself it’s contributory negligence.
Clark boy did not transform the explosive
Differences between Pollard and Clark:
Pollard boys knew about dangerous aspects
Pollard changed properties of danger
Not foreseeable that boys would collect the powder?
Clark did not
Clark did not transform
Foreseeable danger from missing explosive?
Use Dupont to argue claim in Pollard:
Liability in accident, so they’re more culp indiscarding powder that way (deterrence)
Crevice in rock, 2 years later is prox→ so isn’t boys and powder MORE foreseeable?
Taking it, hiding it didn’t add danger → kids did’nt add danger.
Big Picture: these cases can be argued both ways.
3 different areas for intervening actor
1. Premises liability: hotel has garden, patio doors, defective lock, burglar assaults?
a. not a prox cause b/c criminal act is not foreseeable scope of the risk.
b. Prox cause b/c the area is dangerous and thus risk is foreseeable?
2. Social host liability in drunk driving
a. Every time ct finds liable, legis passes new statue against it.
b. Is person who served alcohol a legal cause?
NO→ 3P had a lot of choices (1 drink, dd, bike, taxi)
YES→ someone driving home hits someone, it’s foreseeable, but perhaps not a direct cause.
3. Gun manufacturer sells a lot of guns to shop in high crime area.
** a policy question that gets put into the hands of a jury.
10/24 299-324 (Palsgraf)
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“what the π must show is a ‘wrong’ to
herself…”
"what we mean by the term
'proximate' is that, b/c of
conveniences of pulbic policy, of a
rought sense of justice, the law
aritrarily declines to trace a series of
events beyond a certain point. this is
not lgoic. it is practical policy."
"we see no reason why an actor
engagin in conduct which entails a
large risk of small risk of greater
damage of the same general sort..."
Cardozo: It’s not enough that Δ has duty to prevent harm. Has to be this particular harm
Andrews: As long as there is duty, it’s enough.
Take sum judgment only if NOBODY can find prox cause, natural and probable.
Why don’t we talk about dude w/ the fireworks?? b/c we don’t’ know who it is.
HYPO: Who does the chauffeur have a duty to? After hitting car /w dynamite? P 306
Victim
Cardozo
Andrews
Driver of car
Yes
Yes
A—walking on street
Yes
Yes
B sitting inside a café overlooking
Yes
Yes
C—in a café a block away
No*
Yes
Baby—dropped by nanny 10 blocks away
No
Yes
*You can say C is like Ms P b/c only an explosion would hurt her and explosion is NOT foreseeable given the
package.
**for Andrews, duty is on/off
***Textbook authors: duty is relational.
How is kinsmen different from Palsgraff?
How do we reconcile wagon mound from Kinsmen?
Injury was a different kind from those that were foreseeable.
Fast Eddie? When you do duty analysis—statutory duties are not relational so everything goes to prox cause.
10/28 MMM (remember that you should feel free to skip chapters 3 and 7)
Oct 28. Shayne Spector
 What is involved in case selection?
o Econocmics—since he’s doing it on a contingency, can’t take a case unless he thinks he’ll win.
o Getting cases: internet, referrals from local attnys
o Frustrating b/c even with obvious malpractice and injury, the math may not work out to make costs of suit
worth it.
 Do we provide better/worse health care b/c medicine is immune from liability?
 Role of insurance in shaping way they litigate:
o In PA, doctors mus carry $1 mill in malpractice ins. Reduced to $1 mil from $1.2; hurts ppl w/ really bad
injury who need more than that. if we want to restrict # of suits, why not a floor? (as in, your injury most
be bigger than x to bring a suit)
 Joint liability→ you’re in for everything if you contributed anything
o When you get rid of joint liability your transfer wealth to insurance companies
 Several liability→ you’re only responsible for the % you contributed to injury
 Caps
o Result of caps/collateral src rule, etc. is that poor ppl have less access to ct sys.
Causation: how do we really know what would have happened?
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Eg: breast cancer wasn’t detected a year ago…
Oct 29. Medical Malpractice Myth
 Evidence based reform
 Myths v. realities
 Realities:
o if tort law is the feedback, that’s bad b/c it’s WAY delayed (for preventable injuries)
o Patients are not informed of what happened
o Poor compensation for the injuries
o Doctors distrust the system
 Insurance premium derived from: sales costs/overhead, predicted future income, predicted investment income.
 b/c we don’t have good ways to measure amt paid out→ they use PINK line (bad at guessing the future)
 perhaps tort law is what we have until we can figure out a better way to pay for quality medicine.
Oct 30. Medical Malpractice Myth II. Law & Patient Safety. Baker’s ideas
Make reform evidence based instead of myth based
o disclosure (ethical obligation anway)
o apology and restitution
o supplemental, no fault compensation (wouldn’t this really scare myth holders?)
o enterprise liability insurance
Offer of judgment
o Δ can offer π in writing; or π offers to Δ “I will settle for $”
o If at the end, the Δ doesn’t take, and π wins, Δ pays for π’s attorney’s fees starting at that time.
o Eg: in NJ having a REAL offer of judgment decreased costs…
o Close claim—most of the $ goes to cases where Df’s own experts sees some sort of mistake/negligence
anyway.
No fault
o Compensation is like workers comp would not be cheap! (for
cases don’t get compensated now would get included too!)
small amount of
claims being
brought
Enterprise liability insurance
o doctors get ins through hospital
o
o
small amount of
claims actually
being litigated
feels very behavioral psych—how do we get doctors to practice
safe medicine?
Ppl in congress keeping the rich rich and poor poor by
restricting tort law? Keeps $$ in insu companies hospitals.
majority of claims NOT being brought and NOT
being compensated currently, could be a major
amount of money if they changed to a payment
schedule/nofault type compensation.
Tort reforms
o Damage caps: (*previous goal of reformers)
a. Punitive
b. Non-econ damages (P&S)
c. Overall
d. For govt entities
o Restriction of contingency fees
o Health courts (juries of Drs, special judges w/ no juries; idea is that ct picks 3P but may not get the best
experts, could backfire b/c of costs) (** current goal of reformers)
o No fault/worker’s comp like
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o
o
o
o
o
o
o
o
o
Reducing statue of limitations
Eliminating Joint liability ←reduces liability for hospitals
Eliminating lumpsum payments (takes off longevity concerns)
Immunity for doctors
Forced arbitrary agreements → private courts (currently not usually enforced for tort liabitiles)
Reductions or eliminations of liability ins (FL)
Collateral src rule elimination
a. Could reduce payments by reducing damages
b. Reduce attractiveness of cases for lawyers
Damage caps do work in that it lowers $$ insurance pays out but there is a question about if it benefits drs
in reducing their payments.
Database set up to protect solvency of insurance companies we don’t really know how much insurance
companies pay…
Nov 5. 389-404 (contributory & comparative negligence)
“but even if this argument were more persuasive than it is, it could hardly be accepted… congestion in the courts
cannot justify a legal rule that produces unjust results in litigation simply to produce speedy out of court
accommodations” US v. Reliable Transfer
Comparative Negligence
The “unholy trinity” according to Prosser:
o Fellow servant rule—cant’ sue employer just the coworker who caused injury
o Contributory fault—you caused it too! Too bad.
o Assumption of risk—you knew there was a risk! Too bad.
→ almost impossible to recover for work place injuries (1800s)
Modified Comparative fault
π only collect if less than 50% of cause
Baldwin v. City of Omaha
Purposes of tort law?
o Corrective justice
o Compensation—no wouldn’t have modified.
o Deterrence—no wouldn’t have modified.
HYPO: Seatbelt cases
 Not wearing seatbelt, gets in an accident, brain injury. Δ clearly at fault b/c talking on cellphone.
 π argues liability
o cuts it broad to who is responsible for the accident
o apply eggshell skull?
o Analogize Spier π’s omission not a but/for cause
o Dist from martin in that the kind of statue violated is so different
o Is not wearing a seatbelt even illegal?
o Δ cannot benefit from victim wearing a seatbelt.
 Δ argues no liability:
o Cuts it narrow to who is responsible for the brain injury
o Even if there were an accident, if he were wearing a seatbelt, he’d be fine.
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GENERAL TORT LAW Questions
 IF purpose of tort law is corrective justice, then address both wrongs by asking who is responsible for
the accident.
 IF it’s deterrence—want to deter accidents, not the injuries.
 Do we want juries to know consequences of assigning responsibility %?
Nov 6. 404-24 assumption of risk
waiver
Assumption of risk
contract law
plaintiff's fault
comparative fault
no duty
special "limited duty" rule
Elements of Assumption of Risk
 Δ has to prove
o π had duty not to hurt self
o Breached ordinary care
o Which was cause of injury
 Damages are not at issue, just WHO caused.
FORK:
OLD
•contributory negligence & assumption of risk were
complete defenses.
TODAY
•shifted to comparative fault and 3 ideas developed in
AOR
•1. Waiver: voluntarily give up right to hold Δ liable
•2. Fault: π caused it!
•3. No duty: (eg: recreational sports), have limited duty
for public policy reasons
•→ even though it could be decomposed into the 3 diff
categories/other laws, label sticks
Assumed risk is ordinary negligence, NOT willful and wanton (idea 3)
Can you contract to give up tort rights?
o Waiver: intentional relinquishing of a right.
o Cf. Settlement: waiving tort right after injury for $$; AOR: waiving liability before injury for $$
Jones v. Dressel p 404
 NB: he’s a minor, can parents waive child’s right? (not an issue here, since he signed again after
becoming 18.
 H: tough luck you signed the K, waived the tort rights for saving $50.
Dalury v. SKI ltd. P 409
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o
o
o
H: not enforceable b/c so many ppl go skiing, Δ invited public to spend $$ there, duty to keep premises
safe.
Differences: sky diving more hazardous than skiing, significant number more ski than sky dive
TUNKL Factors p408
o Business of type suitable for public regulation?
o Service to public that may be practical necessity to some?
o Any member of public who seeks is invited?
o Decisive advantage of bargaining strength
Implied AoR—no waiver , but the π assumed the risk b/c they were aware of the risk.
Smollet
 Skater lady @ rink w/o guard rails breaks risk.
 Baker thinks most juries won’t go as Ct did b/c there isn’t a waiver, we should think of it as “no duty”
 Ct said: she knew of risk and voluntarily assumed it.
Nov 7. 424-43 (statutes of limitation; family & sovereign immunity)
“ our court’s application of the discovery notice doctringe when a reasonably diligent investigation would not
disclose “guts” ths basic requiremtn that the limitation period begins when the employee discovered or should have
discovered th probable compensable character of the injury”
Ranney
o DUTY: employer has specific relationship duty
o BREACH: prove employer was negligent
o CAUSATION: prove toxic chemical caused it.
Why do we cut off worker’s rights b/c of time?
a. Encourage prompt action
b. Filter mechanism (serious vs. non-serious)
c. Protect Δ’s defense abilities
d. Consisten w/ deterrence
e. Anti-tort
Discovery notice doctrine
SOL runs from when he discovered or should have discovered
Subject to judicially created reuglartions such as discovery rule, SOL runs when you discovered casue, then the
inquiry notice!
*was it reasonable that he didn’t investigate further?
If yes—does it matter for SOL? Or is it Neg tough luck?
If no—oh well.
o
o
o
o
o
Majority uses Nasim (p427) asbestos case—he was on notice to inquire.
If you said it was work and doctor was wrong—too bad (robinson)
Majority is creating incentive just to file even if you don’t’ think likely
If we allow ppl to wait until probable, then is that too much benefit for π?
At some point, is the time so long that law says ppl need to get on w/ life?
Immunities
o Key point! Disbelief!
o Kicks in when there would be duty/liability otherwise.
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o
o
o
Govt discretioinary imunities are important
1. Discretion exercise? (as in a decision/choice)
2. Kind of discretion protected? To prevent judicial 2nd guessing of resource allocation?
Understood as Δ, but it’s actually “no duty” rules
Justifications
A. Intra-family:
3. Prevent colluding to get insurance
4. Freedom/autonomy of “family”
5. Prevent disharmony (diverting family resources)
**family usually only suese each other if there is $$ ← should we allow insurance companies to
change tort law?
B. Charities
1. A sort of subsidy (like tax, but diff b/c it’s on individual)
2. Implicit waiver of receiving a benefit, (you can’t bit the hand that feeds you)
C. Government: it’s the king’s court. Can’t to anything to him unless he allows it
1. Don’t want cts encroaching on other branches
2. Interference of lawsuits w/govt policy
a. Democracy—it’s what the ppl decided
b. Don’t disturb resource allocation
3. Save govt $$ (when made against municipality)
Riley
Fed govt waived immunity but, there’s an exception for discretional decisions
Test for discretionary decisions (that are exempt from
1. Was it discretion? Was there a choice?
2. The kind that discretionary immunity is designed to protect?
Here: 1. Yes—it was a choice, too expensive to move closer to homes, 2) not moving b/c of convenien—yes. Not
moving b/c of safety: no!
HYPO: open up playground after hours, no security guards.
a) Johnny gets beat up→ 1 decision, yes, 2. Designed to protect? YES
b) Security guard hired is talking on phone. 1. Decision? Yes. Protet? No. not about resource allocation.
c) Hired security, saw Billy and Bobby trussling, didn’t kick bobby out. Protect? NO.
HYPO: football coach decids to toughen boys up on a hot day
HYPO: Teacher sees little billy hurting little bobby, doesn’t separate them.
**Some say it’s discretionary, some say it’s not.
**Freedom of action for govt employees
3. Statues of Limitation and Repose
o Statutes of limitations, clock starts related to
a. Tortious conduct
b. Harm to Π caused by the conduct
o Statutes of repose: refer to tortious act, or some other date, ie, date product purchased or
manufactured
424
Ranney v. Parawx Co.
HOOHA!
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FACTS &
PROCEDURE
Π worked for Δ from 1975-1981. Quit work 1985.
Diagnosed with Hodgkin in 1985. Doctors did not confirm causal relationship of exposure to
toxic chemicals at work with disease.
1991 doctor confirm it may be causal.
1992 Filed claim.
Commissioner said, too late, beyond 2 year SOL from discovery of injury.
D CT affirm.
ISSUE
Whether 2 year SOL starts at discovering the probable cause or a possible cause.
RULE /

REASONING






HOLD
Π has to have "actual or imputed knowledge of the nature, seriousness, and probable
comensable character of disease in order to commence SOL."
Injury occurs when discovered.
INQUIRY NOTICE : "knowledge imputed to a claimant when gains info sufficient to alert a
reasonable person of the need to investigate"
"once a claimant knows or should know that his condition is possibly compensable, he
has duty to investigate"
Purpose of investigation is to ascertain if compensable
Π knew by 1988 that possibly compensable. Should have investigated.
DISSENT: he did investigate. Didn't have enough info to know if probably compensable
until 1991! CT decision is getting rid of DISCOVERY RULE: that SOL beings when employee
discovered PROBABLE compensable character of injury
2 YR sol did bar and commissioner did not err.
NOTES
NOTES AND QUESTIONS
o Worker's compensation: even if it's workers comp and not litigation, judge may review rulings.
o Varying limits: different states, different injuries.
o Accrual rule versus discovery rule:
a. Accrual rule: SOL clock runs as soon as
1. Δ acted carelessly and
2. act caused some harm to π
b. Discovery rule: stalls SOL clock until
1. Π knows, or has reason to know of injury and
2. sufficient reason to believe Δ conduct causally linked to injury. And inquiry itno
connection warranted.
o Statues of Repose: can be strict if harm doesn't show for years, AFTER the SOR has run. (architects,
doctors, products)
o Continuing torts:
a. Continuous nuisance: one tort that took place over 5 years
b. Permanent nuisance: SOL runs when nuisance first occurred
 Some courts think domestic violence is continuous, some think permanent.
o
Tolling: stopping the running of the SOL clock.
4. Immunities and Exemptions from Liability
o Complete defense to liability granted to certain entities, and actors in certain relationships
o Intra-family:
a) spousal, b) parental;

 designed to prevent family from suing each other as extension of patriarch authority over
family;
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
today--eroded
Charitable :
 Protected only negligent, NOT reckless or intentional torts
 Significant b/c most US hospitals in 1900s were charitable.
 Rejected today, but charities protected by damage caps
C. Sovereign:
 Jurisdictional doctrine that said courts have no authority to order federal or state govt into
court
 Courts should not second guess or influence policy decisions of other branches
 FTCA 1946, eroded blanket immunity, put in place partial immunity and courts can still use "noduty" rules
o
A. Intra-familial and Charitable Immunities
 Spousal immunity,

historically women had no legal identity; Married Women's Property Acts later allowed to
mainatin suit against husband to protect property
 Husbands remained immune for injury suits b/c it was a "private" interaction
 Cts thought that spouses may collude to collect auto insurance
 1970s: partial or complete elimination of spousal immunity. Except "consent" defense, and
"guest statutes"
 Parental immunity:

1891 MI declare parents immune from torts suits from child.
 1930 Schneider v. Schneider, mom sues son for driving carelessly. MD said parents cannot sue
their children.
3. Immunity versus the privilege to discipline: willful and wanton mistreatments are NOT ok. But it's a
privilege to discipline, and lost if abused.
4. Negligent parenting : parent giving child motorcycle was NOT negligent… why not?
5. Charitable immunities: immunities are a type of subsidy for non-profits; implicitly waiving rights when
going to charity hospital and receiving benefits ; exceptions made for bad hiring decisions in sexual
abuse priests..
6. Special protections for charities: tight damage caps
7. Chartiable immunity and individual liability: clinton passed Volunteer protection act to encourage ppl
to volunteer by not making liable for negligent injuries. Still liable for GROSS neg.
B.
Sovereign Immunity
Riley v.United States (8th Cir, 2007)
HOOHA!
FACTS & PROCEDURE
Mailboxes disrupted Π's sight at intersection, hit by a truck. Sues govt.
D.Ct dismiss
ISSUE
Whether USPS exception under 28 USC § 2680 (a) applies and is immune.
RULE
& HOLD
Discretionary function exception applies when:
a. Conduct at issue must be discretionary involving element of judgment or choice
b. Judgment at issue be of the kind that discretionary function exception was
designed to shield
H: affirm dismissal. The USPS is immune b/c the exception applies.
REASONING/RATIONALE It's just like the Lopez case.
Exception where US does NOT WAIVE immunity:
"the exercise or perofrmance or the failure to exercise or peroform a discretionary
function or duty on the part of a federal agency or employee of the govt, whether or
not discretion involved be abused.
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NOTES
NOTES AND QUESTIONS
1. respondeat superior and the FTCA: US govt is now vicariously liable for tortious acts by employees
committed in scope of employment
2. Paradox of treating govt as a "private person": what if it's a function only the govt does? STILL liable.
3. Protections built into the FTCA: judges determine all issues of fact and law.
4. Discretionary functions and discretion: even if it's a decision made unreflectively...
5. Why the exemption? Just in case it meets the duty/breach elements??
6. Immunity from liability to military personnel: military can't sue govt for injuries from their service.
7. Personal immunity of govt employees: private employees are not immune but WESTFALL ACT makes govt
employees immune; but not for violations of constitutional rights.
8. State and local govt: not the same immunities as feds, some immunity for govt related activities like police
but not proprietary (like utilities)
Nov 10. 443-61 (no duty rules for local government and private entities)
“we need not blind ourselves to the
obvious impact of a citywide
deprivation of electric power or to the
impossibility of fixing a rational
boundary once beyond the contractual
relationship or to the social
consequences of rampant liability.
“there simply is no basis other than
majority’s say so for it’s assumptions…”
Riss v. City of New York p 443
o Does this fall under govt immunities?
o Discretionary immunity:
1. There was a choice—to send protection or not, to arrest or not
2. Kind protected?
**Govt doing former private things v. govt doing what govt does?
o NOTE: this is not a discretionary immunity case, it’s public duty case. Both are judge decisions, uses same
justifications (we don’t’ want to interfere w/ r. allocation)
HYPO: govt immunities
o GW level shutdown protected? Yes
o GW pothole not fixed? NO
o Allocation of officers to precinct? NO
o Things contrary to policy NOT protected
o Things under policy/following policy is protected.
Strauss v Belle Realty p435
o Can coned win sum judgment by saying no duty?
o Prior history: coned found grossly neg previously
o H: ct said no duty b/c no K relationship between injured man and coned.
o **what happened to McPherson v. Buick? Return to Privity!??
o MOCH: Cardozo said privity after McpHerson.
o DISSENT: this isn’t going to bankrupt ConEd.
o **this case only useful in limited cases. Example of how ct developed no duty rules.
Joint liability
holding ppl who may not be liable b/c of only small part, liable. Δ only partially at fault but can be fully liable!
Baker comments:
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o
o
o
o
o
Irony that those immune to liability are those w/ most pwr to raise funds (tax and increase rates in a
monopoly)
Tarasoff/Traynor wants society to share risks?
Products liability allows risk spreading via built in costs
Slippery slope args need a ice pick remedy
Is privity doing the prox cause job here?
Liability Exemptions: No-Duty Rules for Local Government and Private Entities
Riss v. City of New York
HOOHA!
FACTS & PROCEDURE
ISSUE
Whether municipality liable for failure to protect a person who was repeatedly threatened?
RULE
& HOLD
Can't make new liabilities.
Dismissal should be affirmed.
REASONING/RATIONALE 










To have liability, govt needs to provide services or facilities for direct use by members of
the public; or be something private enterprise used to provide.
Different from govt activities which have displaced or supplemented traditionally private
enterprises, (rapid transit, hospitals, public assembly)
Different from govt provided highways, public buildings..
To proclaim a new and general duty of protection, could and would inevitably determine
how limited police resources are allocated, without predictable limits
Instead of courts deciding duty, LEGISLATURE shoud
"to foist a presumed cure for these problems by judicial innovation of a new kind of
liability in tort would be foodhardy indeed and an assumption of judicial wisdom and
power not possessed by the courts!"
DISEENT:
That's ridiculous. If a govt sets out fire dept, police dept, etc. they should do their duty, to
protect.
If we say no duty, they won't even have minimal police on duty and everyone's lives at
PERIL!
Their fear of unlimited liability is a silly arg, there is evidence it doesn't occur
Judges have enough brains to apply tort law even with liability.
Even if there wasn't enough evidence initially for Π, when she got phone call, someone
should have followed up, investigated threats, etc… conspiracy and solicitation are also a
CRIME!
==> linda should get jury trial.
NOTES
NOTES AND QUESTIONS
1. Public duty rule: even if govt owes the public duty, doesn't have duty to any indiv member of public. Not an
immunity defense, but a rule affecting Π estb duty element in PFC
2. Exceptions to the public duty rule: a) if they volunteered to help; b) special relationship
3. From public entities to public utilities:
Strauss v. Belle Realty Co
HOOHA!
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FACTS & PROCEDURE
77 YO man hurts self while fumbling in the dark to get water.
ISSUE
Can he recover from con ed even though he's not a customer?
RULE
& HOLD
Dismissal affirmed.
REASONING/RATIONALE Yes, he could theoretically recover, but since it's this massive blackout affecting millions of
people, it would result in too many potential suits.
NOTES
NOTES AND QUESTIONS
1. MacPherson to Moch: Back to Privity?
2.
Utilities
3.
What is the worry?
4.
Should the breadth of the tort matter?
5.
Duty liability exemptions and the public duty rule revisted
6.
Calabresi and the cheapest cost avoider
7.
Duties, immunities, and exemptions
Nov 11. 502-26 (vicarious liability and joint liability)
Taber v. Maine p502
o US liable for seamen’s drunk driving.
o Don’t worry about FTCA—since it allows respondeat superior pretend it was normal..RS
o Is it scope of employment? Where on the line?
permitted actions
on premises
[stricter]
carrying out duties
foreseeable
typical of/broadly
incidental to
enterprise (rodgers
v. Kemper)
[broader]
HYPO 1 : Associate at law firm…is it scope of employment?
a) Driving to ct hour from house? Yes.
b) Rental car in LA going to restaurant? Yes; Does employer know about going to the restaurant?
Customary? Easier than Taber
c) Out in Walnut Creek-going to play squash? It’s your own frolic. Seems more so than a or b.
HYPO 2: Working in CC, driving from BC→ CC, scope of employ?
NO, going and coming doctrine excludes RS for commutes b/c it’s a cost of working. However, there are a lot
of exceptions, such as if an employer needs you to have a car with you (eg. contractor)
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HYPO 3: security guard 30 min lunch, no cafeteria, not paid during lunch, accident on the way back…
a) In the scope of employment? Y, what are the risks employer is imposing?
b) Going to post office? Customary to do errands at lunch→ “detour” Yes.
Maine
What is it about drinking on the base that can be attributable to US govt?
Creates incentive to govt to control navy better (cheapest cost avoider? Best to bear costs?)
Ravo v. rogatnick p513
o Pediatrician neg, also pays 20% of damages.
o In a world of joint liability it’s not in π’s interest to put evidence of one or other Δ’s liability. Best to keep
vague so that both are liable.
o Trial strategy: perhaps Δ should have tried to say only 10% or less liable or some other benchmark for jury
to use
o Nobody has incentive to put on evidence!
Benavenga v. JJ amin (1992) p 521
Enabling: Δ creates risks that enable ppl to commit injury; ability to recover against enabler no bite w/o joint
liability!
Nov 13. Heather Hanson guest speaker
Mediation is confidential (by statute)
Δ attorneys NEED medical records
He said she said,
Explaining super complicated medicine to hs educated jurors
Pretrial analysis includes figuring out % of liability, total amt, theories…
Lots of little lines are BAD for Δ.
Arbitration:
agree on high/low; and apportionment. Good for Δ since practioners don’t have to report if not liable and good for
π since they get money no matter what!
Nov 14. 843-68 (products liability historical development)
"It is a mistake to privilege either "stirct liability" or "negligence" as the principle of our
tort law, in part b/c it is a mistake to suppose that either of those concepts has a single
or consistent meaning"
Escola v. CocaCola Bottling Co (1944) p 845
Majority: res ipsa loquitor
Evidence: glass company tests carefull + coke doesn’t test
2 ways glass breaks: 1. Defective bottle 2. Too much pressure.
For re-used bottles: either test or don’t reuse them. Since there was no visible defect it must have been somewhere
in bottling.
Standard demanded by majority: 100%
Coke bottles used to explode a lot!
Traynor concurrence: negligence is not the reason coke is liable. We should make it strict liability.
Only need to prove that it’s defective. Anything makes it not function as it’s supposed to . same avg vs.
aspirational.
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Justifications for Strict Liability
1. It’s already done in food
2. Manufacturers are in position to fix/prevent
3. Mnft has money
4. Cost internalization (more testing, better products, better research, part of cost of being in business) B<pL
5. Administrative cost saving
6. Keep courts in good light
7. Mnfct /sales have changed→ advertise to be safe, and thus should be responsible.
8. Evidentiary
9. Risk spreading, risk distribution
Extending liability beyond moral wrong:
o Tort law as a system for compensation (like insurance)
o Aspirational-when trying to make 100% safe products, internalizing costs
o Tort law also has SL for FOOD
o Cfrom K doctrine of merchantability,
→ also seems like a custom since products are getting safe, all products should be.
o 2 areas of tort law that also has SL:
1) property torts—trespass—on the property, and nuisance→ stinking neighbors.
2) Ultra extra hazardous liability: fireworks, dams,
Greenman p 854
o Normal but demanding use of a lathe
o Trial ct reasons: implied warranty & negligent (general verdict)
o Traynor says: justification for holding DF liable: 1) risk spreading and 2)
HYPO: tomato cutting, knife slices hand? NO! b/c the knife is not defective
Nov 18. 868-901 (products liability: manufacturing and design defect)
402 a (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 physcial harm thereby caused"
Design defects
Difficult to decide what is defective
2 tests:
1) Consumer expectation test (from K, seems SL)
2) Risk-utility test (from B< pL, similar to negligence)
Cronin 861
o Breadtruck case
o π’s witness said metal was too weak for impact of accidents/collisions
o it was more of a manufacturing defect
o H: trial ct did not err
o Why was “unreasonably danger in 402 A?
o In order to limit liability for inherently or possibly dangers products (sugar, alcohol, knives)
o If so, should it apply to hasps?
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Traynor’s vision in Escola: manufacturers SL to injuries from defects, majority is trying to say Δ is attempting to
hijack products liability away from spirit of Escola and back into negligence.
Gower v. Savage Arms, Inc. p876
o Guy shoots himself in the foot.
Potential defects:
Kind of defect 5 fingers
a. safety not user friends b/c can’t tell if it’s on or not
Design
b. couldn’t’ be unloaded w/ safety engaged
Design
No causation
c. metal ridge that impairs safety
Mnft
d. improper warning
warn
No causation
o Case is good for showing: a) even if there is Pliability you still need to show causation
o Design defect: you need to show specific dangers, A survives Sjudgment; show another reasonable/better
design? Or enough to show it’s bad?
o Mnfct defect evidence: compare to prototype (obtained in discovery)
Cepeda p 886
o Immigrant worker loses fingers in machine ←v common case (employee using machine w/o safety feature
that is removable
o Design defect
o Other applicable ideas:
o Enabling torts: can create ppl liable for creating conditions
o Prox cause—supervening actor (foreman took guard off→ but not suing him b/c of workers
compensation limits
o Comparative fault (limited recovery to jury’s 125k
o Cost benefit of having safety feature
o How is that different from reasonable care? What kinds of evidence do you need to show breach
reasonable care?
A. π needs evidence he was suing it in a reasonably foreseeable way
B. Other industry standards—similar machines w/ lock system
C. If industry knew of danger but wanted to save costs and ingored
D. Cost of system is $25.
What evidence for design defect? Difference from ne/breach evidence b/c don’t need to show mnfct knew
of defect and of foreseeable injuries.
Timing: when do you apply the risk-utility test? At manufacturing or at injury?
With products—manufacturer can recall. Duty doesn’t have to stop at time it was manufactured.
Nov 20. 901-927 (products liability: design defect)
R3rd. § 2: A product is defective in design when the foreseeable risks 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.
Escola—doesn’t really ift res ipsa, probably traynor just wanted to talk.
First bucket: products liability is better/ administratively easier with SL
2nd bucket: transformation of products:
a) Manufacturers can best prevent the harm
b) Manufacturer can best spread risk/costs.
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Cost internalization/spreading is heart of products liability…leaves out the idea that tort law is about righting a
wrong. When ppl talk about tort law functioning as insurance it originated in thinking about products liability.
Greenman? 1 reason drop out?
Gower v. Savage arm: illustrates mnfct defect vs. design, show how tis easier to prove mnfct defect
Cepeda: sign – makes clear that in π foreseeable misuse is writhin scope of risk; ie. Guard shouldn’t have been
removed but it was foreseeable.
Crohn:
…raises question of whether you assess risk utility at time of design/nft or can you use hindsight?
state of the art defense
we designed product the best way we could have, given the technology existing
different form neg (reasonable care IF π is SL and is it safe now?
Barker, p 91
o 2 claims:
1) No way to stay safe in case of rollover
2) No outriggers to stabilize and prevent rolling
o CA sup ct here leaving open question of state of the art Δ.
o In NJ (cepeda) unreasonably dangerous= tailing risk utility test
o Barker ct is saying that
a) you can’t instruct jury “unreasonably dangerous”
b) You have to choose either consumer expectation or risk utility test.
CA in Cronin said you can’t use “unreasonably dangerous” phrase in jury inst (maybe b/c it sounds too much like
negligence?)
HYPO: “red” daiquiris in blender
a) Manufacturing defect? No
b) Design defect? Which test? Is there an alternate design?
a. R3rd says that π has to come up with alternate designs.
HYPOS:
o naked motorcycle—messed up legs;
Risk v. risk—there are risks either way, but which is worse?
o Pool w/ diving board
o Screwdriver; should/can consumer use?
o Old 2 seater Mercedes w/o head rests (state of the art Δ, but lose on the CE test)
o Barker altnerative, Δ proves he didn’t know it would happen, π says they should have outriggers, more for
state of the art.
Nov 21. 927-56 (products liability: prescription drugs)
“In our complex society, advances in science and technology creat fungivle goods which may harm consumers and
cannot be traced to any specific producer… therefore, should we acknowledge that some adaptation to the rules of
causation and liability may be appropriate? “pg936
Proof
Test
Negligence
π has burden of proof
Reasonable/ordinary care?
Defense State of the art judged for when it
Torts Fall 2008
Products liability
SL→ easier for π
Consumer expectation
Risk utility (risk > benefits?)
If we allow state of the art evidence→ more like negligence
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YJ Kim
was made
If we don’t allow→ more strict!
Sindell v. Abbot Labs (CA, 1980)
o SOL doesn’t start until injury discovered. (discovery notice rule)
o But inquiry notice said it’s from when you should have discovered it!
o FORK: does it mean ppl need to go out (inquiry notice rule) and test w/o cause? OR CL there was an
injury that notified ppl?
o DES causation:
a) taken a long time ago
b) Generic durg mnfct by many companies w/identical formula → can’t sue b/c she doesn’t know WHO
made it that her mother took.
o FORK:
she is allowed→ then tort law is about deterrence,
she is not allowed→ specific injury/compensation corrective justice righting a wrong
o BUT, 5 or 6 companies made the stuff.
o Difficult to bring design defect in pharmaceuticals
o For warning defects: state of the art Δ works (did you know could have known at that time)
o Is there joint and several liability? It seems to be several, every company is liable for % of market share
(comparative fault) and thus the likelihood of having manufactured it
o Maybe when we’re more confident (hgier probability), more comfortable w/holding ppl liable.
o Compensation or deterrence?
o DES was marketed expansively and not limited to experiment, did not warn as FDA required.
HYPO: kids have lead poisoning, lead paint all over, turns out manufacturer knew it was harmful.
Challenges:
o the injury also feels very “gray” because it’s lower IQ
o so many sources for lead (toys, gas, pipes, etc)
o painting done by small company so sellers were not major retailers, can’t track down mom and pop stores
and their paints, etc.
HYPO: asebestos
Only a few manufacturers/mines, and only a few suppliers, and it’s a very specific diseas→ market share
liability
Tort Law = remedies for harm
Freeman v. Hoffman La Roche (2000) p 944
o Accutane case
o Design defect-CE test fails, even though easier than RU test
o NE had said drugs are different , if FDA approves them, the drugs shouldn’t be “defective” in design; but
is this govt standard a custom? As a floor? Avg or aspirational?
Is FDA immune? Probably yes.
R3rd: if it’s safe for anybody it’s not defective for anybody. Ct rejects the r3rd b/c it’s NOT the law.
Instead, approves defects that fail CE test and Δ can use comment k as affirm defense as part of RU test.
FORK: valuable in this circ? Or valuable generally?
Case by case→ suggests that RU test is more narrow than R3rd. of “anyone”
RU test in specific areas or RU test in general?
Learned intermediary defense: special prox cause rule.
HYPO: oxycotin—huge secondary market. Ppl get it, but resell it to neighbors. Mnfcts knew, but didn’t do
anything about it→ failure to warn
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HYPO: vioxx—reasonable ALT design = another drug
Failure to warn is easier to win.
CE/RU test are not ppl specific, a bit more objective
FORK: especially if it’s a cost spreading BUT if it’s corrective justice then more subjective CE/RU test.
Nov 25. Products liability: failure to warn 956-81
Products Liability:
1. Manufacturing defect
2. Design defect
a. Consumer expectation test
b. Risk utility test
3. Failure to warn defect
HYPO: pain medication only 2x/day.
 Defect 1: instructions were wrong—said to take 6x/day → warning defect
 Defect 2: concoction wrong—was 3x as strong→ manufacturing defect
 Either way, result is the same, hence, failure to warn is part of Products Liability.
Delaney Clause: can’t put something in food until you know it’s safe.
Q: Does information that insurance companies don’t insure a good influence judicial decisions about relevance of
state of the art evidence?
In design defect: π can bring CE test, Δ can use RU to defend.
Q: can you use state of the art evidence on failure to warn cases? Allowing the state of the art evidence seems to
push FtWarn towards negligence and away from SL.
Motus




Needing presumption
CivPro Connection: Court does the ERIE guess
Justifications are same as for P Liability
Think about the counter args!
Dec 2. Extending products liability Hammontree v. Jenner (on Course Portal)
Strict-er Products Liability: Not absolute, but more strict than regular negligence.
Justifications;
1. Cost internatlizations/prevention (traynor)
2. Compensation→ difficult through cost spreading
3. Administrative efficienes, b/c otherwise, difficult for π to prove.
Heeding presumption: don’t forget about causation
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Market share liability: relaxing causation a little to achieve cost internalization
Extending π: 3 cases that failed!
Hammontree v. Jenner
1. Ct justification for π: engaged in business of …→ cost intern/risk spreading!
2. Why doesn’t it fit?
Δ cannot be the risk spreading enterprise while manufacturer’s can. Driver doesn’t have control over the
car accident where manufacturers do over products!
Drivers have self interest in avoiding accidents unlike manufacturers
Drivers are not engaged in a business
3. What’s the real difference between NEG and SL? Here, not much…
Automobile liability factoid
o Columbia commission, absolute liability for auto accidents for cost spreading/ turn into workers comp
SL w/ limited damages.
o Forgotten until NO FAULT → compensation regardless of fault.
Hoven v. Kelble
SL for medical services? NO.
1. Reasons for π given on p8
2. Application here?
1. Yes, cost internalization
2. Yes, reliance but no marketing
3. Risk dist, yes, in position, BUT do they? Can’t b/c svcs are necessary
4. Burden of proof? Yes
5. Detereence
3. Reasos for not applying:
a. Cost may go up (b/c med is necessary and ppl need to access it)
b. Can’t predict how much it’ll cost
$$ in the system—more transaction costs in getting $ from TPI b/c need for litigation to prove/access the $$
Difference (that judge IDs) between NEG and SL: is that in medicine, need experimental procedures; doctors not
willing to take necessary risks?
Is medicine more individual or scientific application?
Factoid 2: Ali 1980 tentative report SL for medical services.
Royer v. catholic medical ct (NH 1999)
o No SL for the knee replacement
1. On pg 12
2. Hospital not in the business of selling kneews [essential vs. incidental]
3. Difference?
Questions: is it b/c they can paint knee part as a medical svc and not a product?
That BMEngineering is exempt from π b/c ti’s more like Abramson?
Dec 4. 484-502 & 1012-20 (punitive damages)
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Chapter 8 Damages and Apportionment
B Punitive damages
Three different choices
Compensation
Risk spreading perspective
Where the difference is
Getting the $$
No Fault
Current tort Law
Less; but note, ppl who are currently not being
Potentially more if victim
compensated may be getting money.
is severely injured
Not clear that there are major difference of living in world where all ppl have health
ins/ways to get income.
Really bad injuries b/c ppl only buy small amt of
Under Tort, potentially a
insurance and under NF, may not be enough
lot more.
Get $$ through ins claim
Call insurance, then
lawsuit
National by-Products, Inc. v. Searcy House Moving Co.
o Good evidence late, speeding faulty brakes,
o conflict evidence: whether he tried to stop
o Injury: klls 2 girls, damages house
o Issue: does evidence support punitive damage for house moves?
o What do they have to show to get punitive damages?
o RULE: df acted wantonly or with conscious indifference
o Wantonly= indffereence to consequences and intentionally acting n a way and natural probable consq was
injury to π
o This is someone who breaks rules by small amounts that incrased is negligible usually
o REAL Q: did the guy try to stop?
o HOLD: he didn’t intentionally hurt them so NO!
o Dissent: it was a jury decision let it stand!
For punitive dmage do we require some MR on the vicarious liability?
Judges have more control voer punitive damages than compensatory damages.
Comparative fault only affects compensatory not punitive damages.
Mathias v. Accor p 489
o Bed bugs at Motel 6
o 2q: standard for punitive damages?
o Willful and wanton conduct
Purposes of punitive damages:
a) Limiteing Df’s ability to profit from its fraud (deterrence)
b) Compensation is not enough in dignatory harm to pay for attorney to bring suit in the first place!
c) Corrective justice
d) Reprehensibility
Principle of the RIGHT amount:
a) Proportionality (relative to harm)
b) Make em whole
c) What makes Δ hurt/wake up?
d) Expectancy?
NOTE: Traynor believes:
the more specific harm the less need for punitive damages b/c compensation is enough;
the more spread out/little harm→ more need for punitive damages, otherwise they will hurt a lot of ppl in little
amts!
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Teaching Real Torts: Damages in the Classroom by T. Baker
Other approaches to Tort Law:
 Law and econ
 Corrective justice
 Traditional
 Critical legal studies
>> all miss that “tort law in action as a pragmatic search for money through in instituional landscape”
5 fingers of negligence tort law:
1. Duty
2. Breach of standard of care
3. Causation
4. Defenses
5. Damages
+ strict liability
External perspective questions
o What are the purposes of tort law and how should those affect tort remedies?
o Why is money the dominant remedy?
o How can we possibly decide the right amount of money for a given harm?
o Should tort law calibrate the damages according to the moral wrongfulness of the defendant’s conduct?
o Can tort law, in practice, avoid that calibration?
o Why do we compensate in a lump sum fashion?
o What are the practical consequences of that and other aspects of damages doctrine?
o How does the money-dominated reality of tort law in action affect which cases are brought and how they
are handled?
o To what degree should we acknowledge the shaping pwer of money in the development of tort doctrine?
Seffert v. LA Transt Lines
o Majority: takes individual justice perspective, where tort law is about righting individual wrongs, so P&S
being 3x the compensation is okay.
o Traynor, dissent:
1. tort law is about
a. “distributing costs of misfortune that are the inevitable consequence of modern life”,
b. Establishing social norms,
c. Set a price for violating those norms—that satisfies the reasonable needs of injured victims at
minimal admin and other expenses
2. Appellate judges should exercise greater control over P& S damages b/c juries are too easily affected
by needs of the particular π.
o Applied to Sabia case:
1. Koskoffs argue the majority’s perspective of an individual π and injuries,
2. defense takes the view that it’s just a bad baby case.
Breach of a standard of Care
o “standard of care is a legal concept, developed by and for courts for the purpose of assessing blame”
o “Damages shows that π’s laywers don’t first determine the standard of care and then examine whther the
doctor breached it” first figure out what the doctor did and then try to see if they can make a case that what
she did breached the dstnadard of care”
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Nov 5 Mini course review
B. Duty (judge decides)
 Distinctions among kinds of injuries
4. Bodily injuries (and limitations)
5. Pure economic (need relationship to find duty)
6. Pure emotional
 Act/omission
A. Breach (jury decides, jury instruction includes the legal rules)
 Is reasonable an average or aspirational?
 If average is the answer, then custom is important, b/c it shows average
 If aspirational, then custom may not matter
B. Causation
 Cause in fact (but for causes) did breach of duty actually cause?
 Proximate/legal cause
o Is it too remote?
o Fortuitous?
o Is there an intervening actor that cuts off unforeseeable interventions?
 Palsgraff
o Cardozo used duty to do what prox cause usually does; you may have a duty to ppl, but only to
foreseeable ppl.
o Andrews dissent, OK, then let prox cause do the work.
o Book Authors love responsibility to avoid injuring specific ppl only.
o R3d: limiting liability in remote causes by prox causes so jury can decide.
C. Damages
 All about compensation; restoring to whole
 Something about punishment
 Deterrence?
D. Defenses
 Contributory negligence/comparative fault
 Assumption of risk
 Immunities (govt, family, charities)
 No duty rules
 Statute of limitations
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Dec 5. review
FINAL EXAM HOT LIST
 Think about finding LIABILITY both ways (duty & prox cause!) like Cardozo in Palsgraff
 Sep 16: on the exam: think about the shape of duty doctrine. With regards to bodily damage, rule
exception framework through cases we looked at.
 Use CA factors approach (spec cases use factors to get rid of rules…. To ID facts about case that are
important for follow/dis cases.
 Understand cases leading up to mcpherson b/c of how c/l changes over time.
 Public policy question: think about kinds of analysis
 Issue spotter: 1 page outline, 5 fingers of tort law and sub issues!
 Hit all the obvious issues, but then max out pts on each!
Dec 16 review session
How baker grades:
o He splits up by Π and Δ
o Decides how many points are allowed in each section … max or less no more.
o → go deeply into everything if you have the time.
o If you see something , write it down.
o Policy question:
o looking for the person really understands the question
o Alternatives?
o Pros/cons of status quo.
o Five fingers of torts…
o ** think like a lawyer but be practical..
o Make reasonable predictions about insurance…
2000 columbia exam issue spotter
o Jane v. tom
o All about breach
o Is there a duty?
o Was there a breach?
o Jane v. car company.
o Products liability
o Consumer expectation
o Design/risk utility
o Jane v mechanic? Brakes failed!
o Tom, guardian of mikey v. Frank (for the rope swing)
o Landowner duties?
o Jane v. frank?
o Mikey v. dad (family immunity)
o Mikey v. jane
o 5 fingers…
o Joint liability/ contributory neg…
o Mikey v. chevy.
Policy questions:
Tarasoff
Traynor!
** medical malpractice for policy questions!!
Question 3: work with the facts, work with the precedents
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Torts Checklist
I.
Duty
A. General duty to act with reasonable care
1. Evolution of duty
C.
D.
IV.
B.
II.
III.
Distinctions among the kinds of injuries
1. Bodily injuries
2. Pure economic loss
3. Pure emotional loss
C. Act/omission
a. Generally no duty to act
b. Exceptions to no duty:
D. Premises liability
1. Invitee
2. Licensee
3. Trespasser
E. Vicarious liability—respondat superior
F. Joint liability: potentially on the hook for everything even though only contributed
a little.
G. Products liability
1. Strict-er liability for products
2. Justifications
a. Cost internalization
b. Risk spreading/compensation
c. Evidentiar difficulties fo neglgigence; admin benefits of SL
3. 3 types:
a. Design defect
b. Manufacturing defect
c. Failure to warn
Breach of standard of care
A. Reasonable care standard
1. Objective
2. Differences
a. Age
b. profession
B. Average or aspirational?
C. Custom
Causation
A. Cause in fact ←-necessary but not sufficient
B. Proximate/legal cause
1. Too remote?
2. Fortuitous?
3. Intervening actor?
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V.
VI.
Res ipsa
Palsgraff—can use no duty to do what others use proximate cause for.
Defenses
A. Comparative fault
1. OLD: contributory negligence.
2. TODAY: comparative fault and its limitations.
B. Assumption of risk
1. Waiver (from contracts)
2. Comparative fault (also blameworthy for getting into situation)
3. No duty (some activities have obvious risk)
C. Statute of limitations
1. Discovery rule: SOL only starts running from when π discovers injury
2. Notice inquiry rule: if you discover the injury, you’re put on notice in inquire
into cause
D. Immunities
1. Govt
a. Exception! Discretionary immunity: in order to balance pwr between
judicial and other branches of govt.
2. Family
3. charity
E. no duty rules
F. Fellow servant rule
G.
Damages
A. Purposes of tort law
B. Compensation, restoring to whole
C. Punitive damages
1. Deterrence?
2. Corrective justice?
3.
Insurance
A. Third party:
1. Decision to sue whom/if
B. First party:
1. Enabling claims
C. And the 5 fingers!
1. Duty: as an element of tort law.
2. Breach: insurance sets up targt
3. Causation: insurance sets up target
4. Damages: defacto cap, duty to settle dynamic
YJ Kim
Torts Overview
torts
five fingers
of tort law
duty
in general
breach
act vs.
inaction
reasonable
care
standard
exceptions
custom
external
questions
causation
professional
standards
but for cause
damages
proximate
cause
evidential
harm
loss of a
chance
old:
defenses
controversial
non
controversial
pain and
suffering
medical
expenses
incurred
current:
proposed
caps.
Duty
general duty
action/inaction-> no duty to act
act with
reasonable care
Exceptions to no
duty to act
relationship
causing of
situation
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voluntary
undertaking
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comparative
fault
old-complete
defense
today-partial
recovery
assumption
of risk
waiver
comparative
fault
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