Torts Fall 2015 Outline
TORTS FALL 2015 OUTLINE ......................................................................................................................................................... 1
INTRODUCTION ................................................................................................................................................................................ 3
SPECTRUM............................................................................................................................................................................................................... 3
Introduction to Torts .............................................................................................................................................................................................. 3
Procedure..................................................................................................................................................................................................................... 3
INTENTIONAL TORTS – COMPILED ............................................................................................................................................ 4
BATTERY ................................................................................................................................................................................................................. 4
Elements ....................................................................................................................................................................................................................... 4
Harmful or Offensive Touching Cases: ........................................................................................................................................................... 5
Intent.............................................................................................................................................................................................................................. 5
ASSAULT .................................................................................................................................................................................................................. 7
Elements ....................................................................................................................................................................................................................... 7
Intent: Transferred Intent .................................................................................................................................................................................... 8
STANDARD DEFENSES TO ASSAULT AND BATTERY ......................................................................................................................................... 9
CONSENT ..................................................................................................................................................................................................................... 9
Self Defense and Defense for Others ..............................................................................................................................................................10
Defense and Recapture of Property ...............................................................................................................................................................10
FALSE IMPRISONMENT........................................................................................................................................................................................11
Elements .....................................................................................................................................................................................................................11
Defense of Investigative Detention and Arrest .........................................................................................................................................12
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS ...................................................................................................................................13
Emergence of IIED .................................................................................................................................................................................................13
Elements .....................................................................................................................................................................................................................13
Employment Discrimination .............................................................................................................................................................................14
ACCIDENTAL INJURIES ................................................................................................................................................................. 16
Negligence? Strict Liability? .............................................................................................................................................................................16
Arguments for and against Strict Liability ................................................................................................................................................17
NEGLIGENCE ..................................................................................................................................................................................... 18
BRIEF OVERVIEW.................................................................................................................................................................................................18
Elements .....................................................................................................................................................................................................................18
DUTY ELEMENT AND GENERAL DUTY OF REASONABLE CARE ....................................................................................................................18
QUALIFIED DUTIES OF CARE ..............................................................................................................................................................................20
Affirmative Duties to Rescue and Protect ...................................................................................................................................................20
Premises Liability ...................................................................................................................................................................................................22
Pure Economic Loss ..............................................................................................................................................................................................23
Meaning of Duty......................................................................................................................................................................................................24
NIED – NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS ........................................................................................................................26
Background...............................................................................................................................................................................................................26
From No Injury to the Zone of Danger .........................................................................................................................................................26
Special Relationships and Undertakings to be Vigilant of Another’s Emotional Well-Being .............................................28
Bystander Claims....................................................................................................................................................................................................29
BREACH ELEMENT ...............................................................................................................................................................................................31
Duty + Breach ..........................................................................................................................................................................................................31
Defining “Ordinary Person” ...............................................................................................................................................................................33
Custom.........................................................................................................................................................................................................................34
Reasonableness/Balancing/Cost-Benefit Analysis .................................................................................................................................36
1
Res Ipsa Loquitur ...................................................................................................................................................................................................37
ACTUAL CAUSATION ............................................................................................................................................................................................38
Actual and Proximate Cause .............................................................................................................................................................................38
Actual Cause, the Jury and the But-For Test ..............................................................................................................................................38
Two Meanings of Caused ....................................................................................................................................................................................38
“A” Cause, not “The” Cause.................................................................................................................................................................................38
Proving Actual Causation Under the Preponderance Standard ......................................................................................................38
Multiple Necessary and Multiple Sufficient Causes ................................................................................................................................39
Alternative Liability ..............................................................................................................................................................................................40
Market Share Liability .........................................................................................................................................................................................41
PROXIMATE CAUSATION .....................................................................................................................................................................................42
Proximate Causation ............................................................................................................................................................................................42
The Relational Aspect of Breach of Duty; Palsgraf.................................................................................................................................43
Superseding Causes ...............................................................................................................................................................................................44
NEGLIGENCE PER SE ...................................................................................................................................................................... 45
Definition/overview ..............................................................................................................................................................................................45
DEFENSES .......................................................................................................................................................................................... 46
CONTRIBUTORY NEGLIGENCE & COMPARATIVE RESPONSIBILITY ..............................................................................................................46
Previous Approaches ............................................................................................................................................................................................46
Comparative Fault in Action .............................................................................................................................................................................46
ASSUMPTION OF RISK .........................................................................................................................................................................................47
Express Assumption of Risk ...............................................................................................................................................................................47
Implied Assumption of Risk ...............................................................................................................................................................................48
Other Defenses .........................................................................................................................................................................................................48
IMMUNITIES ..........................................................................................................................................................................................................48
Governmental Immunity .....................................................................................................................................................................................49
PROPERTY TORTS.......................................................................................................................................................................... 50
TRESPASS ..............................................................................................................................................................................................................50
Trespass and Necessity ........................................................................................................................................................................................50
ABNORMALLY DANGEROUS ACTIVITIES ..........................................................................................................................................................51
Modern Strict Liability.........................................................................................................................................................................................51
Ultrahazardous (Abnormally Dangerous) Activities.............................................................................................................................51
PRODUCTS LIABILITY ................................................................................................................................................................... 53
INTRODUCTION ....................................................................................................................................................................................................53
Intro Cases:................................................................................................................................................................................................................53
BASICS OF A PRODUCTS LIABILITY CLAIM .......................................................................................................................................................54
Prima Facie Case: ...................................................................................................................................................................................................54
TYPE OF DEFECTS ................................................................................................................................................................................................55
Overview Case ..........................................................................................................................................................................................................55
DESIGN DEFECT ...................................................................................................................................................................................................56
Risk Utility Test .......................................................................................................................................................................................................56
Consumer Expectations Test .............................................................................................................................................................................57
Standards of Defectiveness for Prescription Drugs ................................................................................................................................58
FAILURE TO WARN OR INSTRUCT .....................................................................................................................................................................59
Which Risks Require Warning? .......................................................................................................................................................................59
Proving Actual Causation in a Failure to Warn Case ............................................................................................................................60
Affirmative Defenses to Product Liability Claims....................................................................................................................................61
TORT LAW AND THE ADMINISTRATIVE STATE: PREEMPTION ....................................................................................................................61
POLICY................................................................................................................................................................................................ 63
2
Introduction
Spectrum
Intentional
Reckless
Carelessness
Strict Liability
Intentional torts – liability for fault you did something and you meant to do something.
- Focus on plaintiff’s injury
Negligence torts – liability for fault  you did something but you didn’t mean to
- Focus on defendant’s conduct; carelessness
Strict Liability – Liability without fault. You might not have even known you did anything
- Property torts
- Strict products liability
- Abnormally dangerous liability (previously, ultrahazardous)
- NOT based in fault or intent.
Introduction to Torts
Torts law is common law based (judge-made law that is based on body of cases).
 It’s about injuries and responsibility for injuriescost allocation
 It handles injurious wrongs that one person can commit against another through compensation for damages. It typically
empowers the victim.
 Question before the court is who bears the burden of the injury?
 In tort law, you do not have to prove something beyond a reasonable doubt
o Just have to show that what is said is more likely than not true (preponderance of the evidence)
Criticisms of torts system
 Because liability is limited, torts may not provide the victim with the total amount of damages that an event causes. So the
defendant may not have to bear the entire burden
Damages:
 Compensatory damages: reflects what happened to the plaintiff, out-of-pocket losses; based on loss to plaintiff
 Punitive damages: reflects culpability
o The court goes beyond the necessary amount to compensate
o Additional damages of redress for the victim to show the defendant that their conduct was unacceptable
o Usually for intentional torts that demonstrate malice, willfulness, wantonness, or extreme indifference
“Make Whole” rule:
 The type/amount of harm determines the damage
 If found liable, the defendant is supposed to make the plaintiff whole again
 Court can impose large liability on the defendant just because the plaintiff suffered from a hidden sensitivity or
vulnerability.
Eggshell Skull Rule:
 The defendant takes the plaintiff as he finds him
 This rule holds one liable for all consequences resulting from his tortious (usually negligent) activities leading to an injury
to another person, even if the victim suffers an unusually high level of damage (e.g. due to a pre-existing vulnerability or
medical condition). The term implies that if a person had a skull as delicate as an eggshell, and a tortfeasor who was
unaware of the condition injured that person's head, causing the skull unexpectedly to break, the defendant would be held
liable for all damages resulting from the wrongful contact, even if the tortfeasor did not intend to cause such a severe
injury.
o Actual contact is not necessary, although most cases do involve direct contact
Procedure
Burden is on the plaintiff to prove that a tort has been committed – needs to prove the prima facie case.
- Burden of supporting her allegations by presenting physical evidence, witness testimony, and the like.
- Plaintiff also has the burden of persuasion
o Must prove her allegations by a preponderance of the evidence.
 More likely than not true.
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Intentional Torts – Compiled
Intentional Torts(requires intent to accomplish certain consequence or w/ actual knowledge that such a
consequence is substantially certain to occur)
-
Battery
Assault
False Imprisonment
IIED (Intentional Infliction of Emotional Distress)
Trespass to property/land
Battery
Infliction of harmful or offensive contact by an actor upon another with the intent to cause such contact (example: deliberate punch
in the nose)
 Wrongfulness of battery resides in the purposeful touching, not the causing of physical harm (Vosburg)
 You don’t have to mean to harm the person, just have to mean to touch (single intent standard)
 Victim can obtain damages with or without lasting physical harm
 The touching can be direct or indirect
 Battery involves intent and is infliction of harmful or offensive contact
 Battery protects your body from harm and invasions that are offensive as a matter of law (to create a protective zone)
 Flesh on flesh contact not necessary for battery charge (ex. Shooting, or causing someone to hit floor)
 Touching of something closely connected to someone’s body or in someone’s hand may constitute battery (extended
personality, Fisher v. Carrousel Motors)
 Touching does not have to be physical for batteryexplosion, poisonous gas, smoke, etc.
 When dealing with battery, courts want to strike a balance between preserving the bodily integrity of others and
recognizing/accommodating the realities of our world (Wagner)
 If the act is unlawful, the intention is unlawful.
 An act can be harmful if the individual clearly communicates that it is unwanted, giving ∆ special knowledge
 If a case makes it hard to prove intent to touch, you can prove that the defendant knew that the touch was likely to
happen
Elements
Prima Facie Case
Intent to do a certain type of contact (in a way society thinks will cause harm or offense)
1. A acts
a. External manifestation of the actor’s will; volitional movement.
b. Does not include unconscious acts or reflex actions.
2. Intending to cause contact with P
a. Incapacity is not a good defense.
b. Did the defendant have the desire to cause the result or believe that the result was substantially certain?
c. Malice is not required, but if it is present  may be liable for punitive damages.
3. The contact with P that A intends is of a harmful or offensive type
a. There needs to be actual physical contact.
b. Harmful – injures, disfigures, impairs, causes pain
c. Offensive – would it offend a reasonable person’s sense of personal dignity?
i. Objective test
ii.  Hypersensitive reactions may be insufficient.
1. Only exception to this is the defendant has knowledge of the hypersensitivity.
4. A’s act causes P to suffer a contact that is harmful or offensive
a. Direct cause of the defendant’s act or some force that the defendant’s act set in motion.
b. Doesn’t have to be flesh on flesh contact
i. “Extended personality” zone around body (Fisher case)
c. Offensiveness can vary based on context and relationship b/w people
d. Intent to do a certain type of contact (in a way society thinks will cause harm or offense).
- What Whitman likes.
4
Harmful or Offensive Touching Cases:
Cecarelli v. Maher (1943) (ballroom beat down)
HARMFUL CONTACT CASE
Facts: Cecarelli suffered injuries after being beat up by Maher and Heinz who were mad at him.
Because Maher (defendant) did not respond in time  the Court believes Cecarelli’s (plaintiff’s) account of the events
- Default case.
Issues: Were the actions of Maher & friends “harmful” or “offensive”?
Holding and Reasoning:
YES – Damages:
- Special damages – shown by bills (loss of wages, medical treatment)
- “Pain and suffering” are a multiplier – punitive damages.
o Intended to be a deterrent, especially for intentional torts or extreme recklessness/negligence
This was an intentional tort because they decided to hit and harm him
Intent to cause contact  shown by deliberate motion.
Intent to cause contact  shown by deliberate motion.
Harmful or offense conduct  shown by result/injury.
Dangerous instrument – any instrument, article or substance which, under the circumstances in which it is used, is highly
capable of causing death or serious physical injury
- Enhances level of a battery offense
Paul v. Holbrook (1997) (especially sensitive plaintiff)
OFFENSIVE CONTACT CASE
Facts: Holbrook made sexual comments to coworker, Paul, repeatedly and tried to massage her shoulders from behind. Paul
pulled away and Holbrook left her alone. Paul eventually complained to PMP and afterward they worked different shifts and
improper behavior ended. Paul originally sued for assault, battery, negligence, IIED, and negligent hiring and retention. Trial
court previously granted summary judgment for Holbrook and ruled that Holbrook did not commit battery because it was
just “casual touching.”
Issue: Could a reasonable jury infer that Holbrook’s touching was “harmful” or “offensive?”
Holding and Reasoning:
Yes – the touching could be seen as offensive – a question for the trier of fact to decide.
According to Prosser – the tort of battery is to protect the integrity of the person.
The plaintiff just needs to prove that there was intent to contact (and then that the conduct was harmful or offensive)– not
intent to cause harmful or offensive contact.
Notes:
- Employer responsibility for employee torts
o Paul’s battery and negligent hiring claims stand on 2 different legal grounds
o Battery: employer is vicariously liable
 Respondeat superior: an employer has to answer for the wrongs committed by the employee
o Negligent hiring: employer is directly hiring because that was an action of the employer
- Offensive touching: test is objective
o Does the contact violate prevailing social standards for what is acceptable?
 Not a question of whether the person is actually offended by the contact
o Context-dependent:
 What constitutes offensive contact is determined by social norms
o Jury will determine if the contact was harmful/offensive in context (this particular workplace)
- Seemingly inoffensive touch can be rendered offensive id D knew P was unusually averse to it
Intent
-
Intent requires attention to what the law requires an actor to have intended and the evidence that will prove that the
defendant acted with intent
Battery plaintiff must rely on circumstantial evidence
The onus is usually on the plaintiff to prove that a tort has been committed
o Plaintiff has burden of supporting allegations
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Vosburg v. Putney (1891)
(Eggshell skull ruledefendant takes plaintiff as he finds him and is liable for unforeseen injuries)
Facts: Putney kicked and injured Vosburg while in class. After the kick, Vosburg lost functioning of his leg, due in part to preexisting injury. Vosburg was attempting to recover damages for assault and battery. Doctor testified that the kick is what
caused Vosburg to lose.
 Vosburg originally won, defendant appealed because he alleges that his contact was not intended to cause harm.
 Error in testimonypoor doctor testimony is grounds for reversal and retrial
- Intent to cause harm is the wrong standard. In battery – only need to prove the intent to act/contact
To recover damages for an alleged assault and battery, plaintiff must show either that the intention was unlawful, or that
defendant is at fault. If the intended act is unlawful, the intention to commit it must necessarily be unlawful. The kicking of
Plaintiff by Defendant was an unlawful act because he intended to cause unconsensual contact and thus the intention of
Defendant to kick Plaintiff was also unlawful. Under these facts, Plaintiff can show that the intention was unlawful. Plaintiff
has a cause of action for assault and battery.
 Context was important herethe act happened in a classroom during class, not a playground
o If this had happened on a playground, the court would hesitate to find defendant liable
Eggshell skull rule implied here (tortfeasor takes victim as he finds him)
Cole v. Hibberd (1994) (Statute of limitation casefriend drunkenly kicks friend in the back)
Facts: After Hibberd had been drinking, she kicked Cole in her lower back. She began laughing after Cole was hit, even though
Cole said she was in pain. Cole filed a personal injury complaint against Hibberd and argues that the court erred in concluding
her claim was one of assault and battery instead of negligence. Cole even admitted that she believed Hibbard did not mean to
kick her.
Issue: Does intent to cause harm matter in determining battery?
Holding and Reasoning: **The intentional nature of the contact with the plaintiff controls the definition, not the
intent to cause actual harm or injury. Although Hibberd may have not intended to cause harm to Cole, her action of kicking
Cole was intentional and offensive thus, it is battery.
Differs from Vosburg: action may not have violated rules of the context (i.e. friends horsing around is normal)
Dissent: a reasonable jury could find it as negligence because it was a playful kick b/w friends
Wagner v. State (2005) (attack in K-martmentally disabled people can be held liable for battery)
(injured person suing government for injuries inflicted by government employees)
Rule: A person need not intend to cause harm or appreciate that his contact will cause harm so long as he intends to make a
contact, and that contact is harmful. Mental capacity is not relevant to a liability determination in civil battery, but mental
incompetence may insulate him from criminal liability.
Facts: A mentally handicapped man who was in the custody of the Utah State Development Center (USDC) attacked Tracy
Wagner in K-Mart. Attacker had a history of violent behavior. Plaintiff wants to sue the employees for negligence for not
supervising Giese appropriately.
- Government entity cannot be held liable for injuries that government employees wrongly inflict upon others in the
course of performing their official duties.
Issues: Did Giese have intent to cause contact? Does it need to be intent to cause harmful or offensive contact? Does the
government have to pay? Or is it able to escape liability according to the doctrine of sovereign immunity?
Another issue is whether mental capacity is relevant to a liability determination involving civil battery.
Holding and Reasoning: Giese committed battery. Intent to make contact is sufficient  state has retained immunity.
(Plaintiff’s argument: Giese’s mental condition meant he could not formulate intent to cause harm.)
 Battery vs. negligence
o Battery is intent to make contact
o Moving your hand and accidentally making contact and injuring someone is negligence
o One who intentionally fires a gun in an attempt to shoot a bird, but accidentally shoots a person  intended
the act not the consequenceliable for negligence, not intentional tort
Policy considerations: allowing suits for actions of those in custody would incentivize state to be more restrictive.
Government is not vicariously liable for intentional torts of its wards.
Knowledge versus Foresight
Do not conflate the negligence concept of foreseeability (requires actors to take care against causing injuries that one
could foresee as a result of careless conduct) with the intentional tort concept of knowledge.
- Knowledge – Sufficient but not necessary
- Proof that the defendant knew his act would cause a harmful or offensive touching is sufficient but not necessary to
satisfy the intent element.
- Plaintiff can prove intent by proving the defendant acted for the purpose of causing such a touching, even if he did
not know that his contact would have the ultimate effect.
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Assault


The tort of assault derives from the concern to protect individual bodily integrity
o Protects against the apprehension of contact, not contact itself
Assault is apprehension of being subject to a battery
Elements
Prima Facie Case
Actor A is subject to liability to person P for assault if:
1. A acts
a. Needs a volitional movement; words are rarely sufficient
2. Intending to cause in P the apprehension of imminent harmful or offensive contact with P; and
a. Intend to inflict a harmful or offensive touching or put the plaintiff or third person in apprehension of an
imminent harmful or offensive touching.
b. Words alone are insufficient unless context suggests harmful contact threatened by words could actually
happen imminently or “without significant delay. There needs to be present ability to act on threat
3. A’s act causes P reasonably to apprehend such a contact
a. Fear is not necessary
Law of assault
- If you don’t apprehend the actionno cause of action
- Assault is not the same as a threatin threats, there are preventive remedies available
o In assault, the act is imminent and very few preventive remedies
- Plaintiff does not have to be fearfulit’s enough just to be aware that contact might happen
- Apprehension and fear are not synonymous, but lack of fear may affect compensation
Beach v. Hancock (1853)
(threatening with gun that was not loaded)
Rule: Pointing a gun at someone in a threatening manner (pulling the trigger) constitutes assault, whether the gun was
loaded or not.
Facts: Beach and Hancock were in an argument when Hancock went into his office and brought out an unloaded gun.
Hancock aimed the gun at the plaintiff and pulled the trigger twice, and Beach did not know whether the gun was loaded or
not. Beach sued for assault.
Issue: Did the defendant’s action of pointing an unloaded gun at the plaintiff constitute assault if the plaintiff did not know
the gun was unloaded?
Holding and Reasoning: Yes. All members of society should feel secure against unlawful assaults and reasonable fear of
personal injury or harm. Because the defendant, in pointing a gun at the plaintiff, intended to cause fear of harmful contact, it
was not unreasonable for the plaintiff to fear personal harm, particularly without knowing whether the gun was loaded or
not. Because the plaintiff did not know whether the defendant’s gun was loaded, he could reasonably believe his life was in
danger. Thus the defendant’s action constituted assault.
We have a right to live in a society without being put in reasonable fear of personal harm.
Brooker v. Silverthorne (1919)
(Threat over telephonewords insufficient)
Rule: Words cannot constitute an assault if there is no imminent threat of harmful or offensive contact. A threat of future
harm is not sufficient because there is no imminent threat (lack of physical proximity).
Facts: Brooker, a night operator at a telephone exchange, tried and failed to get Silverthorne the phone connection he
wanted. Silverthorne threatened that he would break Brooker’s neck if he were at the telephone exchange, which shocked
and unnerved her so much that she was unfit for work, had to take sleep medication, and she continues to suffer mentally and
physically. The defendant alleges that he never used such language, which was corroborated. He apologized to her and she
seemed to accept the apology.
Issue: Can words constitute an assault?
Holding and Reasoning:
No. The threat was not there – no imminent threat of contact.
- A threat of future harm is not sufficient because there is no imminent threat.
*Gender might have played a role: seems like they thought she was overreacting.
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Vetter v. Morgan (1995)
(Words with imminent threat can constitute assault)
Rule: Words, coupled with apparent ability, to do bodily harm to another, can result in immediate apprehension of bodily
harm. Words with other acts or circumstances they put the other in reasonable apprehension of imminent harmful or
offensive contact with the person. No bodily contact is necessary.
Facts: Vetter was driving alone late at night when Morgan and Gaither, and another friend, drove up beside Vetter and
Morgan began screaming vile and threatening obscenities at Vetter and threatened to remove her from her car and spat on
the car door (unwanted touch of her carbatterydoctrine of extended person). When the light turned green, Gaither
veered into her lane and causing Vetter’s car to strike the curb, causing her to fall to the floor of her car after her head hit the
steering wheel.
Issues: Did the defendants’ words and actions constitute assault?
Holding and Reasoning: Yesreasonable apprehension of contact (woman alone at night with more than one guy, who
could have easily broken her window
Note: context (gender, time of day, number of intimidators, etc.) can make apprehension more/less reasonable.
Intent: Transferred Intent


Transferred intent
o You can intend an assault and cause battery and vice versa
o You can intend to hit one victim and hit another
o Can transfer intent across torts and victims (unintended victim suffered unintended tort)
o Defendant meant to hit a thing (ex. Dog) but hit a person
o All you have to do is prove intent
o Intent does not transfer from property to living person
Doctrine of transferred intent
o “If one intentionally commits an assault or battery at another and by mistake strikes a third person, he/she is
guilty of an assault and battery of the third person if “defendant’s intention, in such a case, is to strike an unlawful
blow, to injure some person by his act, and it is not essential that the injury be to the one intended.””
In re Write (1982)
(Tried to scare one person and shot another on accident transferred intent)
Rule: Still liable if there is transferred intent from one person to another and from one intentional tort to another. One who
intends a battery is liable for that battery when he unexpectedly hits a stranger instead of the intended victim.
Facts: White was engaged in an argument with Tipton and pulled out a gun and pulled the gun on Tipton to scare him. Tipton
sped away and White said that the gun fired after he tripped over a rock. The bullet missed Tipton and hit Davis, who was
within 25 feet of Tipton, in the stomach.
Issue: Question of intentWhite said he did not intent to shoot Davis, just to scare himintends to commit assault but
commits battery; intends to scare Tipton but shoots Davis.
Holding and Reasoning:
White is guilty of assault and battery; transferred assault intent on Tipton  battery as to Davis
- White’s act of shooting was ruled as intentional and produced injury but not to the person (Tipton) White intended
to injure.
- Injury does not require it to be directed against a victim; it includes any entity other than the intended victim.
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Standard Defenses to Assault and Battery
There are some defenses that are available to people alleged to have committed intentional torts (assault, battery, false
imprisonment)helps them defeat liabilityburden of proof is on the defendant to establish justification
Affirmative defensesdefendant was “privileged” to act the way he didjustification, not excuse
 “Even if everything the plaintiff says is true, and they would win, I still win with affirmative defense”
 Defendant bears burden of proof on affirmative defense
 Plaintiff bears burden of proof on prima facie case
Set of affirmative defenses
 ConsentMany states require plaintiffs prove absence of consent, rather than leaving it to the defendant
 Self-defense
 Defense of property
 Necessity
o “I was driven to this”
Statutory Defenses
 Statute of limitations
 Sovereign immunity
NOTE: for intentional torts, longstanding law is that comparative fault or contributory negligence not an available defense
CONSENT
Doctrine of consent:
- Person has agreed, under appropriate conditions, to endure a bodily contact, or an apprehension of a contact, or a
confinement that would otherwise be tortious
- Consent can be communicated expressly, through a written or spoken statement, or it can be communicated
implicitly through conduct.
o We implicitly consent to a range of contacts just by being out in the world
 Voluntary participation in contact sport
 Taking public transportation
o Cannot argue that P would/should have given consent
Actual consent vs. objective indicia of consent
- If person reasonably and actually believed the other person consented
- Mistaken inference of consent has to come from the plaintiff and not someone else
- Whether or not the defendant reasonably thought the plaintiff knew what he was giving consent to
Consent is not a defense when:
- Acts are in excess of the consent given
- Fraud or coercion
- Duress
- Mistake
- Incapacity to consent
- Defendant argues plaintiff “should have” consented
- Consenting because other person is in position of power
- Consent to illegal activities
o Depends on whether the conduct in question was rendered criminal by the legislature in part to protect the
consenting person from his own choices
- Comparative fault is not a defense
- Can’t say the plaintiff should have known what was happening and acted with apparent disregard
Koffman v. Garnett (2003) (scope of consent matters)
(Case of implied consentdid not consent to specific type of contact)
Rule: You can have implied consent by participating in particular activity, but not have consented to particular act because
you did not foresee it happeningdid not know assistant coach would tackle himonly consented to being tackled by other
students
Facts: 13 y/o football player’s family sue football coach for gross negligence, assault, battery after he slammed the player into
the ground during practice and broke his humerus bone
Issue: Did Koffman consent to such contact from his coach due to his voluntary participation in football, which requires
tackling/aggressive contact?
Holding and Reasoning: Koffmans’ alleged sufficient facts “to establish a cause of action for the tort of battery,” as well as
the claim of gross negligence (but not assaultact happened so fast he could not have seen it coming)
9
-
Andy did not consent to participation in aggressive contact with coaches, only other players. Koffmans allege that
Andy consented to be tackled by players of “like age and experience,” but not coaches.
Self Defense and Defense for Others
Self-defense is a privilege that permits a person to protect bodily integrityself-preservation

Available to a person who actually and reasonably believes it is necessary to injure another to avoid imminent
injuries to himself such as harmful contact or confinement

Applies when injury consists of physical harm, inappropriate touching, or confinement

If you start the fight, you usually cannot claim self-defense

You can only invoke the use of deadly force as self-defense if you reasonably perceive imminent death or
serious bodily injury or you are being attacked in your house

You have to respond at the same levelcan’t use more force than required
Defense of others

Defendant can use force if he reasonably thinks the plaintiff is going to injure a third party

But defendant can’t use a third party to defend himself from the plaintiff (no human shield)
Haussler v. De Loretto (1952)
(Guy mad about missing dog goes to confront neighbor Justifiable self-defense and reasonable force)
Rule: One who is involved in an altercation with another has the right to use such force as is necessary to protect himself
from bodily injury, and the question of the amount of force justifiable under the circumstances of a particular case is also one
for the trier of the fact. Who started the escalation of force is important.
No obligation to retreat when you’re in your own home
Facts: Haeussler went to De Loretto house (neighbor) to ask about his lost dog. De Loretto asked the plaintiff to leave
(revoked implied consent), but Haeussler continued to wave his hands, causing De Loretto to think the plaintiff was going to
hit him. De Loretto then struck or pushed the plaintiff, injuring him, and then shut the door.
Issue: Were De Loretto’s actions self-defense and were they justified? Were his actions considered reasonable force?
Holding and Reasoning: Yes – D used reasonable force to protect himself from bodily injury and thus the force was not
unlawful. Plaintiff failed to sustain burden of proofcould not prove by a preponderance of evidence that the defendant used
or attempted use willful and unlawful force.
- D had to feel like he was about to be imminently hurt by D and that he used reasonable force.
- Other means were tried.
Court found that a reasonable jury could find D’s response reasonable? – OBJECTIVE TEST.
- Reasonable to act in that way
- Reasonable to think D was threated by imminent injuries.
o Appeals judge uses D’s facts (defer to finder of fact of Trial Court’s decision)
Defense and Recapture of Property
Katko v. Briney (1971) (Can’t use of deadly force in breaking and entering)
Rule: The use of deadly force in an unoccupied property is not reasonable or justified; threat needs to be commensurate.
Property owners are not allowed to use excessive force (including force that can cause death or great bodily harm) to protect
their property except to prevent the commission of felonies of violence and where human life is in danger. Property owner
cannot arrange his premises to cause death or serious bodily harm to a trespassercan only repel.
 Property owners cannot have dogs that are silent but vicious.
 Human life and limb outweigh the potential damage to property.
Facts: Katko and friend broke into and entered Briney’s unoccupied farmhouse and suffered serious injury after being shot
with a spring gun. The gun could not be seen from the outside and D alleges he did not intend to injure anyone. D had
suffered from trespassing and attempted to stop the intrusions with signs, boards, etc.
Issue: Did defendants have the right to use deadly force to protect personal property against trespassers and thieves?
Holding and Reasoning: Briney’s actions were not reasonable or justified. He would’ve been justified in defending himself
with the shotgun if he had been home during the intrusion, and the intruder threatened bodily harm to someone. Defendant
may use reasonable force in defense of her property; he has no right to willfully and intentionally injure a trespasser in a
manner that may result in loss of life or great bodily injury.
Privilege to use force to defend property applies only preventively.
- If the property has, in the owner’s absence, momentarily been occupied by an intruder who has no right to be there,
the owner may use reasonable force to remove him.
- If the owner were to forcibly evict a person who is not entitled to occupy the land, yet enjoys “peaceful,” nontransitory possession – the owner could run the risk of criminal penalty or tort liability, even if the force is
reasonable.
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False Imprisonment
Tort provides redress for those whose freedom of movement is compromised or one subject to the indignity of being
confined by another.
Elements
The tort of false imprisonment provides redress for those whose freedom of movement is compromised and those who are
subject to the indignity of being confined by another.
Prima Facie Case:
Actor A is subject to liability to other person P for false imprisonment if:
1. A Acts,
a. Some act by the defendant caused the confinement of the plaintiff.
b. Words can be sufficient such as threats of physical force or words asserting legal authority.
2. Intending to confine P;
a. Purpose is to cause P to be confinedhas to be intentional
b. Accidents are not actionable as false imprisonments. If such imprisonment causes harm, may be liable for
negligence.
3. A’s act causes P to be confined; and
a. Is there a reasonable means of escape (without risking harm to self or others)? If yesno imprisonment
claim
b. The plaintiff is restricted to a limited area without a reasonable means of escapedoes not actually have to
be locked up
c. Consider gender, size, experience, demeanor
d. Must be in a fairly small place
e. Can be in moving object
4. P is aware of her confinement.
a. P must know (can’t sleep through it, etc.)
b. Or P must be harmed.
The immediate legal remedy for false imprisonment is for release. The second legal remedy is for damages.
Confinement:
- If exit is available to the victim but can only be used in a way that poses a risk of physical harmconfined
- Allowing person to leave but forcing return is confinement.
- If victim reasonably perceives that the tortfeasor will try to prevent him from leavingconfined
- If victim can leave with only minimal inconveniencenot confined
- Confinement can be achieved indirectlycausing victim to be detained by officials for no reason
o If A arranges for others to confine P but A knows that confinement is illegal  A is responsible
Legal Standards: Elements of False Imprisonment
- Willful detention by the defendant
- Without consent of the detainee
- Without authority of the law
False imprisonment can be achieved through violence, threats, or restraint:
- Small loss of reputation could be seen as coercive force in false imprisonment
- If done by a threatburden of proof is on the plaintiff
- Many factors determine whether the threat is sufficient or not
Fojtik v. Charter Med. Corp. (1999)
((Voluntary?) False imprisonment at in-patient treatment center)
Facts: Fojtik (45 y/o) voluntarily admitted himself to Charter after an intervention due to his alcohol abuse because he
believed the alternative was forceful and involved handcuffs. Upon his admittance, he consented to inpatient treatment. Fojtik
sought to leave the facility on temporary “passes.” He was given passes to leave for a few hours at a time and he always
returned to the facility, only because he wanted to comply with its rules in order to gain earlier access to release, but he said
he felt like he was locked up and couldn’t get away. Charter alleges that a patient can leave at anytime.
Issue: Did Charter’s actions constitute false imprisonment?
Holding and Reasoning:
NO – Fojtik was not confinedcould have left if he really wanted to and he consented to being there. No one locked him or
physically restrained him from leaving. Charter used persuasion, not coercion to keep him in the facility. Sometimes
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persuasion can be enough to prove false imprisonment because it can be seen as coercion (Black v. Krogerstore held liable
for false imprisonment because plaintiff was 18 y/o with 10th grade educationyoung, inexperienced woman), but Fojtik did
not have the type of vulnerabilities that would elevate intense persuasion to coercion. Threats are not enough to overcome a
plaintiff’s free will.
Court says defendant used persuasion, not coercion, in keeping him in the program.
- Court says he does not have the type of vulnerabilities that would elevate intense persuasion to coercion
Note: Defenses against false imprisonment include consent, self-defense, defense of property and investigative detention and
arrest
Defense of Investigative Detention and Arrest
Enables officials and private citizens to advance the cause of law enforcement.
Arrest: person held for the purpose of securing his presence at a judicial proceeding or to aid administration of the law
Citizen’s arrest: limited privilege for a private citizen to arrest even in the absence of a warrant. (A serious criminal offense
has to be committed, or the defendant is in the process of attempting a serious criminal offence or commits a breach of peace)
Grant v. Stop-N-Go Market (public accusation and threat of police can make you feel confined)
(Shopkeeper’s privilege defense)
Rule: Shopkeeper can only detain person (in reasonable manner and for a reasonable time) if there is reasonable ground for
their belief that he stole. There does not have to be physical detention. Threat of police involvement is enough.
Shopkeeper’s privilege: if a person reasonably believes another person has stolen, or is attempting to steal property, he is
privileged to detain that person in a reasonable manner and for a reasonable amount of time to investigate
 Reasonable belief person stole or is attempting to steal
 Detention for a reasonable time
 Detention in a reasonable manner
Not based on customer’s guilt or innocenceonly based on reasonable belief
Facts: Grant was accused of stealing by the store manager, loud enough for other patrons in the store to hear (coercion to
staypublic accusation). Calhoun told Grant he had him on surveillance stealing. Grant claimed that Calhoun told him he
could not leave and that Calhoun was calling the police. Grant claimed that he was afraid of what would happen if he left, so
he remained. The police arrived fifteen to twenty minutes later, and took Grant into police custody for about an hour. Police
found that the defendant’s allegations were unfounded after reviewing the tape.
Issue: Did the threats by defendant establish/constitute false imprisonment?
Question of the affirmative defense – shopkeeper’s privilege?
- Was there a reasonable belief that Grant shoplifted?
- Was the detention reasonable?
Holdings and Reasoning:
YES FALSE IMPRISONMENT; even though threats by themselves do not constitute false imprisonment, the fact Calhoun
followed through on his threat to call the police establishes false imprisonment. Grant was afraid to leave.
Stop-N-Go said the shopkeeper’s privilege – authorized its actions.
- Provides that a person who reasonably believes another has stolen, or is attempting to steal property, is privileged to
detain that person in a reasonable manner and for a reasonable time to investigate ownership of the property.
o Exercised at the peril of the shopkeeper.
 Need probable cause or reasonable grounds for their belief.
- Because the videotape was not produced, Stop-N-Go does not get shopkeeper’s privilege.
- Grant was detained for more than 10-15 minutes, which is what was allowed under Resendez.
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Intentional Infliction of Emotional Distress
Clinton case – in notes and on page 698.
Emergence of IIED
IIED did not used to be a cause of action, but then the courts began to side step the black letter rule (Magruder):
- Actors should be liable for conduct that is:
o Outrageous
o Undertaken for the purpose of causing the victim emotional distress so severe it could be expected to
adversely affect his physical health
o Actually causes such distress
Notes:
- IIED deals with cases that closely resemble assault: D intentionally induces apprehension of harmful contact in
indefinite future
- Most jurisdictions have held IIED does not need to directed at a particular person
Elements
In order to prove IIED:
1. Act by a defendant that is extreme and outrageous conduct
a. High threshold
b. Words alone are not enough, but words plus context can be enough
2. Intent to cause emotional distress (purpose)
a. Intent to cause severe emotional distress or mental anguish
b. Can prove also by showing reckless behaviorhowever reckless behavior cannot extend to all potential
bystanders
c. An action can become reckless if done to a P that D knows is particularly vulnerable
3. Causes severe emotional distress.
a. Early view – physical injuries were required and other types of injuries were parasitic.
b. Now – manifestation of physical harm/distress is NOT necessary, but it’s often looked for by courts
Defenses to IIED
Good faith and reasonable mistake are not relevant. There are constitutional defenses (freedom of speech, religion, etc.)
Dickens v. Puryear (1981)
(Threats when coupled with other actions can sometimes constitute IIED, even if they are not imminent)
Rule: A threat of future harm that is apparently intended to and which does inflict mental distress is actionable as an
intentional infliction of mental distress. Threats for the future are actionable as intentional inflictions of mental distress.
Facts: After Dickens (31) had sex with Puryear’s 17 y/o daughter, Puryear and several accomplices lured Dickens into a rural
area, threatened him with a pistol, almost beat him to death, and threatened to castrate him. Defendant told the plaintiff to
leave the state otherwise he would be killed threat needed to claim IIEDhave to have intent to harm. Plaintiff sued for the
severe and permanent mental and emotional distress and physical injury he suffered.
Issue: Is there sufficient evidence to establish an IIED claim? To claim IIED, does the threat need to be imminent?
Holding and Reasoning: Yes. The factual showing indicated that the victim could prove a claim for intentional infliction of
emotional distress but not assault (no imminent threat). The court believed that the threat, coupled with the assaults and
batteries were designed to give added impetus to the conditional threat of future harmthe plaintiff reasonably believed
that they could and would harm him again.
Littlefield v. McGuffey (1992) (racist landlord caused IIED due to threats and stalking)
Rule: IIED must show severe emotional distress but not necessarily physical manifestations
Facts: Littlefield rented a property from McGuffey in 1988. Upon McGuffey realizing Littlefield’s boyfriend was a different
race from Littlefield, McGuffey made threatening, racist phone calls to Littlefield and her family, physically followed them,
kicked them out of the apartment and issued a death threat against Collins, the boyfriend. These events caused her severe
emotional distress. Littlefield sought relief under the Equal Opportunity in the Housing provision of the Civil Rights act and
the Fair Housing Act as amended by the Fair Housing Amendments Act in 1988.
Issue: Is McGuffey liable for IIED? Is there enough evidence to support that claim? Are the damages awarded too high? Were
the attorney fees too high?
Holding and Reasoning:
- Yes – liable for IIED. Has to pay 50k in compensatory damages and 100k in punitive damages (high to reflect defendant’s
outrageous conduct)
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-
o High bar for outrageousnessdifferent from offensive, insulting, or careless conduct
o Plaintiff has burden of proofhas to prove emotional distress was severe
Attorney fees not too high –compensation is necessary to incentivize attorneys to take on the case.
McGuffey argues no physical manifestation of injury; court holds it does not matter for IIEDshe did not need to prove
her situation physically manifested (might still matter for NIED)
Applies reasonable person standard (i.e. conduct is sufficiently outrageous to distress a reasonable person; thus the
conduct speaks for itself, not the constitution of the victim)
Although FHA limits claims to $1000, IIED is unlimited so plaintiff can collect full amount
McGuffey had no witnesses and he was a witness with credibility problems (crazy)
164 Mulberry Street Corp v Columbia University (2004) (stupid professor messed with restaurants saying he
got food poisoning reckless disregard for plaintiffsIIED)
Rule: A claim of intentional infliction of emotional distress may be maintained where there is evidence that the defendant
engaged in a campaign of harassment with reckless disregard for its consequences and where the plaintiff does not pursue an
alternative theory of recovery for the same conduct (no other tort).
Facts: Flynn, a professor at Columbia, sent letters to various restaurants in NYC, falsely claiming to have gotten food
poisoning from them. Columbia was unaware of the study. The restaurants (Da Nico and Chez Josephine) sued Flynn and
Columbia, alleging IIED and NIEDNYC restaurant scene is competitive and allegations of food poisoning could do
irremediable damage. Owners of the restaurants alleged physical and psychological ailments resulting from the stress caused
by Flynn’s accusations.
Issue: Could a reasonable jury find Flynn’s (Columbia researcher) conduct extreme and outrageous? Is there sufficient
evidence?
Holding and Reasoning:
- Da Nico case: Dismissed IIED, but allowed libel claims
- Chez Josephine – allowed IIED claims, but dismissed libel claims.
For New York – IIED is a gap filler (if you have libel, you can’t have IIED).
- Only use IIED if there is no other tort.
Conduct is outrageous
- Conduct/nature – determined by reckless disregard.
- Should have known better as a professor, and should have gone through the university’s approval system in creating
the experiment
Libel: a publication, in writing, of a statement about another that is false and is the sort of statement that, if credited, tends to
lower a person’s standing in the eyes of others (victim’s loss of reputation)
 Plaintiff has to prove publication (given to 3rd party) and proof of economic loss
 Opinion is protected, but falsehoods are not
Injurious Falsehood – recovery against a person who, with “malice”, publishes a false statement about another or their
business so as to cause the other pecuniary loss. It does not necessarily have to diminish his/her/their reputation.
- In the 164 Mulberry Street case: There was no publication of the fake complaints to a 3 rd party, and the restaurants
could not prove then that the publication caused them to suffer a loss in business.
Reckless IIED: failure to heed a very obvious and very significant risk of serious injury. IIED requires either a) intent to cause
distress or b) being reckless as to the risk of causing the victim severe emotional distress.
- Also question of the defendant’s knowledge of a plaintiff’s vulnerability
Restatement – rejects requirement of conduct – allows for action “directed at”
- Example: Transferred Intent + Bystander Claims
First Amendment concerns – public figures (famous people) are less likely to be recover from IIED (Hustler v.
Falwell)depictions or descriptions of public figures can never be deemed outrageous b/c they consent to parody/ridicule
Employment Discrimination
Wilson v. Monarch Paper Co. (1991) (poor guy got demoted so much at work due to ageIIED)
Rule: Workplace conduct supports liability for intentional infliction of emotional distress where it is entailed by purposeful,
systematic, and severe humiliation.
Settlement:
 Under IIED – over $3 million
 Age discrimination - $300,000.
Claims for IIED often come from the workplacepower relations and the potential for abuses of power
Facts: Wilson worked at Monarch, and despite the fact that he was a good employee who regularly got bonuses and raises;
the company basically conspired to get rid of him. They gave him ultimatums, verbally harassed him and basically demoted
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him to janitorhe developed respiratory and mental and emotional problems, had a psychotic episode, and was
institutionalized. Wilson filed a suit for IIED.
Issue: Was the company’s conduct extreme and outrageous?
Holding and Reasoning: Yes Monarch intentionally and systematically set out to humiliate Wilson in hopes that he would
quit and the company’s actions were so severe that it resulted in Wilson’s institutionalization. The degrading and humiliating
way Wilson was stripped of his duties and demoted was outrageous and constituted intentional infliction of emotional
distress.
Stockett v. Tolin (1992) (girl was sexually harassed by bossIIED)
Quid Pro Quo Sexual Harassment – Sex or get fired threat
Hostile Work Environment Sexual Harassment – Pervasive, campaign of harassment; tolerated by company
Rule: An employer’s intentional, pervasive, unwelcome acts of an offensive sexual nature may render the employer liable for
both sexual harassment under Title VII of the Civil Rights Act and intentional infliction of emotional distress.
Facts: Plaintiff sues former employer under Title VII of Civil Rights Act and common law torts - including IIED.
Tolin, who had a history of sexually harassing other women, continually sexually harassed Stockett. He grabbed her in
inappropriate places, used vulgar language and eventually gave her an ultimatum to have sex or get fired (quid pro quo
sexual harassment)
- Battery: offensive touches
- Assault: degrading comments about having sex with her
- False imprisonment: restraining her for a few seconds
- Invasion of privacy: entering women’s bathroom
- IIED: combination of all actions and pervasiveness/continuousness of conduct
Issue: Did the defendant’s actions constitute IIED?
Holding and Reasoning: Yes all of Tolin’s actions viewed together were outrageous and showed total disregard Tolin had
for her rights, constituting IIED (Stockett suffered severe emotional distress).
Entitled to punitive damages that must be large enough to have a deterrent effect against defendant, who said 20 million is a
small fraction to him.
- Sexual harassment can be the “beyond/plus” to prove IIED.
About 1 million in punitive damages. Plus attorney fees.
 Smaller than in Wilson; less physical manifestation
o Judge vs. jury decided damages
 *SCOTUS recently decided court can only consider case at hand (not other women who had been harassed) in
determining damages; however other women could sue and potentially receive damages if they can prove case
 Plaintiff sued under Title VII because it’s easy to prove and you get attorney’s fees
NOTE: sexual harassment does not need to be sexual; can just be based on someone’s gender. BUT it can also be sexual and
often is.
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Accidental Injuries
Negligence? Strict Liability?
Two options
1. Negligence
a. Fault-based liabilitycan engage in risky behavior as long as reasonable care is exercised
2. Strict Liability
a. Whitman rejects the use of this term. The authors use the term “liability without fault.”
b. Liability that attaches without proven or presumed carelessness, recklessness or intentional wrongdoings.
c. Applies to:
i. Conduct that interferes with a person’s interest in real or private property
ii. “Ultrahazardous” activities (explosives, wild animals); and
iii. Manufacturing, design and sale of defective products
Default Duty: One person owes to another is to exercise same degree of (ordinary) care a reasonable person would use
under same circumstances.
Hammontree v. Jenner (1971) (guy had a seizure and ran into store and hurt owner’s wifenot strictly liable)
Should fault be a basis for recovery?
Facts: Defendant had seizure and crashed his car through the wall of a Hammontree’s shop and hit Hammontree’s wife.
Defendant had a history of epilepsy but could not tell seizure was about to happen (no intent) and his doctor said it was ok
for him to drive (the chance was worth taking). Plaintiff sued Defendant for personal injuries and property damage and
argues for strict liability.
Issue: Is liability without fault/strict liability applicable? Should D pay P for damages?
Holding and Rule: The driver is only liable if the seizure is foreseeable and he took no special actions to prevent it. The
standard for liability is essentially negligence. D did not have a reason to expect to have a seizure and was therefore not
liable. He took all possible precautions and it would be unfair to make him pay without wrongfulness.
Nonreciprocal risk: Hammontree did not pose a risk to Jenner
Arguments for strict liability:
D’s fault imposed risk on the plaintiff – he is the cheaper cost avoider because he could not drive. Plaintiff, to avoid accident,
would have to relocate.  Accident is more foreseeable to Defendant.
Driving benefits the defendant but imposes costs on others.
Brown v. Kendall (1850) (inevitable accident when trying to stop dogs from fightingno negligence b/c ordinary
care was used)
(Rejection of strict liability when there is a purely accidental injury from a lawful act)
Rule: A party will not be liable however if a purely accidental injury arises from his lawful acts. Recognizes fault &
duty. The plaintiff has the burden of proof to show that the defendant did not use ordinary care (no set standard – depends
on the circumstances and is based on what a prudent person would do.) The plaintiff must show that either the intention was
unlawful or that the defendant was at fault. If the injury was unavoidable and the conduct of the defendant was free of blame,
he is not liable. NEGLIGENCE, NOT STRICT LIABILITY
Facts: Brown’s dog and Kendall’s dog were fighting. Kendall was trying to separate the dogs with a stick and accidentally hit
Brown in eye. Brown brought an action of trespass against Kendall for assault and battery.
- Question of how you caused the injury:
o Direct? Indirect? – Hard to draw the line.
Did the defendant have to do the action?
- If Yes
- If No
o Test is ordinary care
o Test is extraordinary care.
Issues: Can a party be liable in trespass without a showing of negligence or fault on the party of that party? Were the
defendant and plaintiff exercising reasonable care?
Holding and Reasoning: The plaintiff cannot recover if both plaintiff and defendant were using ordinary care, or if the
defendant was using ordinary care and the plaintiff was not, or if neither party was using ordinary care. Defendant’s act was
lawful and proper. Defendant’s act was lawful and proper, albeit risky. When a Defendant unintentionally injures another
while undertaking a lawful act, the Plaintiff must prove that the Defendant acted without due care. A party will not be liable if
a purely accidental injury arises from his lawful acts. The plaintiff cannot recover if both plaintiff and defendant were using
ordinary care, or if the defendant was using ordinary care and the plaintiff was not, or if neither party was using ordinary
care. An inevitable accident is one, which the defendant could not have avoided by the use of the kind and degree of care
16
necessary to the exigency under the circumstances. In this case Kendall was doing a lawful act and unintentionally injured
Brown. Brown cannot recover unless he can prove that Kendall was negligent.
Holmes: if you’re doing a good deed, you shouldn’t necessarily have to use extraordinary care, just ordinary care, because you’re
morally admirable
NY Central RR Co. v. White (1917) (husband died at workworker’s comp is good)
Facts: White’s husband died b/c of accidental injury during work at New York Central R.R Company. She filed under
Workmen’s Comp Law, which posed a little hurt on everybodybut eventually removed litigationkeeps limit on what’s
paid out. Due process (14th amendment) concerns for both employers (no fault liabilityresponsibility-based, cost of
business; business has no recourse of law to defend themselvesjust have to pay, period) and employees (restricting the
amount of recovery).
Issue: Does awarding compensation based on strict liability deprive the railroad of its property without due process of law or
equal protection?
Holding and Reasoning: Employers are required to either purchase insurance or maintain adequate funds to cover liabilities
to its workers. This case centers on the Workers’ Compensation Scheme
- NOT a tort solution. There is no regard to fault  strict liability for the employers.
- “Negligence is inapplicable to modern conditions of employment” (page 809).
The scheme is necessary to make sure an injured workman does not have to bear the greater part of an industrial
accidental loss. The scheme benefits the employee: entitled to moderate compensation in all cases of injury and has a speedy
remedy. It is good for employers because it ensures the relief goes to the right person; it is a “just settlement.”
Employers have a duty of making moderate and definite compensation in money to every disabled employee or in case of his
death, to those who are entitled to look to him for support in lieu of the common-law liability confined to cases of negligence
 direct interest to the public. Worker’s Comp is not unconstitutional and does not violate due process rights of employers.
Arguments for and against Strict Liability
Fairness Argument
For Negligence: It is not fair to hold someone liable if he/she did nothing wrong
For Strict Liability: Between two innocent people, the victim should not have to bear the loss.
Economic Argument
For Negligence: Strict liability too strongly discourages productive activity. There would be no businesses because they are
too worried about liability.
For Strict Liability: To ensure careful behavior, there may have to be a decrease in conduct.
Negligence discourages careless behavior if one believes court/jury can determine who is careless.
Strict liability says that it is an expensive option and that you cannot trust judges and juries to make such determinations.
For strict liabilityless litigation
Strict liabilityputs cost on cheapest cost avoiderefficiently allocates cost and incentives to the person who can best bear
the costs
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Negligence
Brief Overview


Negligence: failure to heed a duty of reasonable care owed to another that causes injury to that other
o Claimed in suits for injuries caused by careless driving, incompetently rendered professional services, and
unsafe premises
Negligence claims tend to arise out of physical harms
o Car accidents, medical errors, and unsafe premises
o Physical harms help provide clear examples of injuries
Elements
Prima Facie Case
Actor A is subject to liability to other person P for negligence if:
1. INJURY: P has suffered an injury;
2. DUTY: A owed a duty to a class of persons including P to take care not to cause an injury of the kind suffered
3. BREACH: A breached that duty of care
4. CAUSATION: A’s breach was an actual and proximate cause of P’s injury
Injury Element
Injury is the first and most basic condition of a viable tort claim; the plaintiff has to demonstrate that he/she suffered the
right kind of adverse effect that she is entitled to pursue her action for redress.
What is an Injury?
- Physical Harm
o Bodily harms (fatal and non-fatal)
o Damage to or destruction of tangible property (land, personal property, structures)
- Loss of wealth
o Economic loss
- Emotional Distress
o Observed now; previously it was declined.
Duty Element and General Duty of Reasonable Care
-
The plaintiff must establish that the defendant owed her, or a class of persons including her, an obligation to take
care not to cause the type of injury that she has suffered.
If an actor was not under an obligation to take precautions against causing the sort of injury suffered by the victim to
persons such as the victim, she cannot be liable for failing to take those precautions.
Easy duty cases cases where the litigants and the court wont spend much time on the duty issue because its
obvious that the person being sued owed it to the complainant to take reasonable care
o Ex. Physician, pharmacist, drivers, etc.court doesn’t need to specify why
Provider of services is treated as having undertaken to be careful for the benefit of certain other peoplekind of like
a contract
o Does not have to be relationship between victim and wrongdoer
Reasonable foreseeability
o People need to think of the reasonably foreseeable consequences that could cause physical harm
Duty and rule of privityWinterbottom v. Wright
o No contractual privityno dutyno liability
 Odd way of thinking
 Doesn’t hold up when dangerous (potentially and imminently) products sold
 Thomas v. Winchesterpoisoned because of mislabeled bottle that was sold to pharmacist
o Imminent danger here, but not in Winterbottom
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Common law rule:
Assume no duty and find exceptions to the no-duty rule.
- Special relationships
o Way to pick out Defendant – has a relationship with P.
 Easy compared to the rest of the public.
o Rarely do “friendships” qualify (page 87)
- Voluntary undertaking
o Quasi-Contracts
o Assume responsibility  duty to exercise reasonable care.
- Imperilment by defendant
o Defendant causes imminent peril to the Plaintiff.
- Statutes
- Professional incompetence (malpractice) – context is relevant (i.e. doctor at work vs. off-duty)
- Contractual Privity (no longer required after Macpherson)
- General duty: When you do act (affirmative) – you have a common law duty to act carefully (not increase undue risk
on other people or property) (e.g. driving cars)
MacPherson v. Buick Motor Co. (1916) (car w/ messed up wheel not sold from manufacturer to userrejection
of the privity rule)
*Cardozo opinion
- Excellent legal writing. He articulates a new principle but says it is not new.
- Broader principle of duty without reference to privity; death/imminent danger existed here – almost an “inevitable
consequence”
o In effect, rejects/distinguishes itself from the Winterbottom rule that required privity for one to sue.
Facts: Buick Motor Co – a manufacturer of cars – sold their cars to a dealership and it was resold to the plaintiff, MacPherson.
MacPherson’s car wheel collapsed and the plaintiff was injured. The defendant did not make the wheel (bought from another
manufacturer), but the defendant had not inspected the car (which would have allegedly prevented the injury).
Issue: Did the defendant owe a duty of care and vigilance to any one but the immediate buyer of the car (aka retailer and not
consumer)? (Negligence)
Precedence:
Thomas v. Winchester– poison falsely labeled by seller and sold by a druggist, customer recovered damages from the seller
who affixed the label
 Imminently dangerous – party guilty of negligence (the one who affixed the label) is liable to party injured whether
there is privity between them or not
 Not imminently dangerous – negligent party is liable only to the party with whom he contracted, and on the grounds
that negligence is a breach of the contract
Loop v. Litchfield – manufacturer pointed out defect in small balance wheel used on a circular saw to buyer. Buyer made a
lease of the machinery. Court held that the manufacturer was not answerable to the lessee.
Losee v. Clute – exploding steam boiler. Manufacturer not held liable because risk of injury was too remote (cannot have
foreseen that many uses down the line)
Devlin v. Smith – contractor (D) built scaffold for painter, whose servants were injured. Contractor was held liable, since he
knew the scaffold was to be used by the workmen and since was building it for their use, owed them a duty, irrespective of
their master, to build with care
Statler v. Ray Mfg. Co – defendant manufactured coffee urn, which was placed in restaurant and explored upon use. Court held
manufacturer liable, because when it was used the way it was supposed to be used, it was liable to become a source of danger
to many people if not properly constructed
Heaven v. Pender – an unqualified duty to take reasonable care not to cause physical harms is owed to another whenever a
person of “ordinary sense” would recognize that careless conduct would create “danger of injury”  language of “reasonable
foreseeability”
Holdings and Reasoning: Yes. The court recognizes the fluid nature of the Winchester rule (not limited to poison or other
things of destruction) and that if the nature of a thing is such that it is reasonably certain to place life and limb in peril
when negligently made, it is then a thing of danger. If to the element of danger there is added knowledge that the thing
will be used by persons other than the purchaser and used without new tests, then, irrespective of contractual
privity, the manufacturer of this thing of danger is under a duty to make it carefully. So, defendant owes a duty of care
and vigilance to the consumer of the car and not just the buyer.
- Does not apply only to ultra-hazardous products but anything foreseeably dangerous
 REJECTS THE NECESSITY OF A PRIVITY OF CONTRACT
19
The fact that it was sold to a dealership does not necessarily matter; the defendant knew that it would be used by other
people other than its buyer (the dealer) and knew the danger of a defective car. (Danger was to be expected as reasonably
certain  duty of vigilance).
The more probable the danger, the greater the need for caution
- Horizontal privity = parts manufacturers up until a product is whole
- Vertical privity = with person final product is sold to/used by
Expansion of duty: Manufacturers have a duty to anyone who will foreseeably use product and that could be harmed if it is
not made properly
Notes
 Plaintiff didn’t sue the dealer because the dealer may not be able to thoroughly inspect the car
 If the defendant sued the dealer, the dealer could then sue Buick
o People would just keep suing up the chain
 Regular car isn’t imminently dangerous but defective car is
o Expands duty to all products when it's foreseeable that making them defectively could pose imminent risk
Mussivand v. David (1989) (guy got STD from wife who got it from doctor loverlover owes husband duty b/c
foreseeability even though no privity)
Facts and Procedural History: Mussivand sues David for contracting an STD after David had sex with Mussivand’s wife. He
is suing for David’s failure to disclose his infection. Defendant filed motion to dismiss, stating that he owed no duty of care to
the plaintiff and the trial court dismissed Mussivand’s complaint, but the intermediate appellate court reversed it.
Issue: Does David owe a duty to Mussivand to disclose his STD? Was the trial court correct in dismissing the plaintiff’s cause
of action?
Syllabus by the Court and Holdings:
1. A person who knows, or should know, that he/she is infected with a venereal disease has the duty to abstain from sexual
conduct or, at a minimum, to warn those persons with who he or she expects to have sexual relations of his or her condition
(not everyone)
2. A spouse is a foreseeable sexual partner and a person who has a venereal disease who fails to inform a married person
with whom he/she is engaging in sexual contact of his or her condition is liable to the third-party spouse until the initially
infected spouse knows or should have known he/she is infected with a venereal disease.
Reasoning: YES – Owes duty of care.
Duty is a question of law (for the judge), but needs to be considered with a few facts.
- Common law duty of due care – avoid injury to others.
o Do not need to disclose to everyone, but those who are foreseeably affected.
Public policy argument:
- Health is a valuable economic asset.
- Transmission of venereal diseases is serious and likelihood of transmission is high.
Test of foreseeability – whether a reasonably prudent person would have anticipated that an injury was likely to
result from the performance or nonperformance of an act.
- Reasonable person, particularly David who was a doctor, could anticipate that Mussivand and his wife would have
sex.
- Mussivand was a foreseeable third-party (spouse)
- Court notes David does not have to disclose to all of Mussivand’s wife partners – others are not foreseeable.
- Lover is only liable until spouse knows or should have known she was infected
Qualified Duties of Care
Courts sometimes limit or qualify duty; 3 Categories of qualified or limited duty cases in which D is
alleged to have:
1.
2.
3.
Unreasonably failed to provide assistance or protection to the plaintiff (affirmative duty or duty to rescue)
Permitted or maintained unreasonably dangerous conditions on property in his/her possession (premises liability)
Acted without reasonable care for the plaintiff’s economic prospects (pure economic loss cases)
Affirmative Duties to Rescue and Protect
Nonfeasance – omit to act; bystander failure to come to aid
Misfeasance – wrongful action
20
Osterlind v. Hill (1928) (drunk guy on canoe died and rental place has no duty to rescue)
Facts: Defendant rented out “frail and dangerous canoe” to plaintiff and friend, knowing they were drunk (should’ve known
they were unfit to go on the lake). Intestate went on the lake after the canoe overturned and he hung on for a half hour calling
for help. The canoe renter (defendant) did not help him and the intestate died. The defendant was charged with negligence
and willful, wanton, or reckless conduct
- Plaintiff is the administrator of estate of Osterlind.
o Survival action = the estate can bring action for anything victim could have had he lived
Issue: Did defendant owe a duty of reasonable care to the plaintiff?
Holding and Reasoning: No, D had no duty. It does not matter about the intoxication of the intestate or the defendant’s
“reckless conduct.” The intestate was not entirely helpless; he could have helped himself. Defendant didn’t have duty to
respond to the plaintiff’s cries for help. Generally, canoes are “frail and dangerous.” No negligent entrustment back then (now,
handing gun to a toddler is negligent entrustment).
Order sustaining each demurrer is affirmed.
Plaintiff argument: should not rent a faulty canoe, should not rent a canoe to one is drunk, should help Plaintiff when he
called for help, etc.
- *Today, may win under negligent entrustment: giving somebody something that is dangerous because of their
state/capacity
Strain of Libertarianism
Government should not reward or punish you for acting/failure to act when there is no duty. The government should not
compel you to take action – may be a violation of your liberty. SEARCH
Baker v. Fenneman & Brown Properties, LLC (Taco Bell Invitee)
Duty to rescue case – (duty is more common outside the United States)
Facts: Baker lost consciousness and suffered physical injury in a Taco Bell. He alleges Taco Bell did not assist him. Taco Bell
asserts an employee asked Baker if he was okay after his first fall and he said he was. Baker fell a second time in and lacerated
his chin, knocked out his four front teeth, and cracked the seventh vertebra of his neck. When Baker regained consciousness,
he was choking on the blood and teeth in his mouth. Baker stumbled out of the store to a friend, who contacted Baker's fiancé
to take him to the hospital. Baker sued for breach of duty, gross negligence, wanton disregard and wanton recklessness. He
sought damages for medical bills, lost wages, pain and suffering, and mental anguish.
Injury: physical injury from second fall.
Causation: lack of employee helping him after the first series of convulsion (argument is – if TB intervened before second fall,
there would be lesser injuries.)
Issue: Did Taco Bell owe duty to the defendant (customer/invitee)? Does the factual dispute get to the jury?
- Mixed question of law and fact
o Jury tends to decide who is telling the truth and then decide what is reasonable under the circumstances?
Was there a breach of duty? What does Taco Bell owe the Defendant?
Holding and Reasoning:
YES – Taco Bell owed a duty. Section 314A establishes that the special relationship between P and D gives D a duty to aid and
protect. Baker is on Taco Bell property  he is a business invitee so Taco Bell has a duty to use reasonable care to one on
their land (mutual advantage because benefitting from his business).
Taco Bell has full control of the land/real property (“special powers to control what occurs on…”) – cheapest cost avoider
argument. Taco Bell does not have to cause the injury (TB argued for limited liability). Court did not intend to limit the
application of section 314A (Duty to Aid or Protect), which says:
1) A common carrier is under a duty to its passengers to take reasonable action:
(a) to protect them against unreasonable risk of physical harm, and
(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until
they can be cared for by others.
(2) An innkeeper is under a similar duty to his guests.
(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in
response to his invitation.
(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to
deprive the other of his normal opportunities for protection is under a similar duty to the other.
Public Policy argument: storeowner gains economic benefits from opening the store, and in return, it should assume the
affirmative duty (to help customers who need aid). Not all employees need to have a medical background; they are just
expected to “exercise reasonably care under the circumstances.”
 Whitman: business has the resources (staff, phones, etc.) to best address situation
 People would not want to patronize a business that left a customer lying on the floor just because the business
didn’t cause the injury
21
It is good for TB to help; if the court accepted TB’s argument that they are only liable for injuries caused by TB, a business
might “risk liability claims caused by an employee’s failure to act, act promptly when an illness/injury was in fact caused by
the business.”
Notes
- Individuals don’t have duty to aid or protect another person, even if they know that person needs assistance
- Taco Bell employees should want to look into what caused the injury because it could have been their faultthey
could be liable
o Sometimes the injury will be their fault, so they need to look closely anyway to ensure it’s not their fault
 This is a cost of doing business
- Some states punish people who don’t render aid to those in peril
- TB would only have to just make reasonable efforts to rescue
- Good Samaritan statutes really only extend to “off-duty” professionals who help people
o Immune from liability of negligence
- Jury could decide that the Taco Bell employee should/could have done more
- This case is all about duty
o If there is no duty, the whole case is irrelevant
- In cases where there are many bystanders, whom is duty imposed on?
Cases where there IS a duty:
- D has harmed or put P in imminent danger; duty to prevent P further suffering or risk of greater harm (Baker)
- D volunteered to protect P from physical injury or property damage. Once voluntarily undertaken, rescuer owes duty
to victim to perform rescue with reasonable care (“Good Samaritan” statutes immunize volunteer rescuers from
liability)
- Special relationship (Beul): common carrier (passenger has limited options), innkeepers/business owners (Baker)
- Friendships / “joint social ventures” under certain circumstances (Farwell)
- Ltd case: certain person may have duty to warn 3p of reasonable/foreseeable threats posed by others (Tarasoff)
- Contractual promise or statutory obligation (VT)
o BUT courts also consider contributory negligence, trespasser status, etc.
Premises Liability
Premises liability is more about dangerous conditions on property (traps, holes, etc.) rather than dangerous activities.
There is immunity for property owners who allow public to use property (e.g. skating pond in winter)
Leffler v. Sharp (2004) (duty to trespasser; change of status of plaintiffcant climb roof w/o permission)
Facts: Leffler filed suit against Free (owner of Quarter Inn) and Sharp (owner of the building that housed Inn) for injuries
sustained when he feel through the roof of the premises immediately adjacent to the Inn. One night, he saw the rooftop
through a small window and glass door that contained a “NOT AN EXIT” sign. Plaintiff entered roof through the small
window, without permission or invitation but under the belief it was “open to the public” because he saw others there and fell
through the roof. The area had once served as a terrace but had been closed off because it was unsafe.
Trial Court granted summary judgment and ruled Leffler was a trespasser, thus dismissing all of his claims.
Court affirms summary judgment.
Issue: Should Leffler be classified as invitee, licensee, or trespasser at time the injury occurred? What duty is owed to him?
Holding and Reasoning: Leffler is a trespasser on the roof  only duty is to not willfully or wantonly injure the
trespasser. The court held that Leffler was not an invitee at the location and time of the accident and, therefore, was not
owed the duty given to an invitee  no breach of duty.
- Leffler became a trespasser when he went through the window, even though he was a guest of hotel (invitee)
3-step process to determine premises liability:
1. Classifying the status of the injured person as an invitee, licensee, or a trespasser.
2. The duty which was owed to the injured party is determined
3. Determine whether this duty was breached by the landowner or business operator
Status of Plaintiff Arguments:
Invitee: a person who goes upon the premises of another in answer to the express or implied invitation of the owner or
occupant for their mutual advantage
- Typically for businesscustomer (mutual advantage)
o More resources, staff, etc.
- Under common law – duty is to make the property reasonably safe.
Licensee: one who enters upon the property of another for his own convenience, pleasure or benefit pursuant to the license
or implied permission of the owner.
- Social Guest
22
-
No profit from licensee’s presence
Expectation of guest is that it is safe enough for resident to live there
Under common law – duty is to warn of known dangers; put guest in the same position you’re in
o NOT duty to actually make safe
 Want to give people incentive to use their land and “invite” people over.
 Duty would impose too much on the homeowner.
Trespasser: one who enters upon another’s premises without license, invitation or other right (permission)
- Under common law – duty is to not willfully or wantonly injure (can’t set a trap).
- Trespasser expected to take care of self
- Landowner cannot anticipate trespassers
- No opportunity to warn because doesn’t have permission
NOTES:
- Some states have eliminated the distinction between licensee and invitee
o Two reasons to keep distinction between an invitee and licensee
 No benefit received from licensee, so property owner should not be obligated to assume cost
 Don’t want people to be scared to host/socialize
- The status of the plaintiff can change (inviteetrespasser) therefore duty can change
- *Categories describe plaintiff, but refer to what a defendant would have to do based on plaintiff’s status
- A person doesn’t need to be an owner of the property to be a possessor for purposes of premises liability claims
o Tenant in apartment is possessor
Exceptions:
-
-
Children/Minors
o Attractive Nuisance – pique children’s interest but contains a danger that would not be apparent to the
child if a kid is attracted to come on your property by some specific thing (ex. Pool), you have a duty to do
something or you could be held liable if the kid drowns
Trespassers where the possessor knows the trespassers constantly intrude upon a portion of the premises to be
exposed to danger.
Drinking aspect could be brought up
o More duty for landowner because they were getting people drunkdrunk people do dumb stuff
De Novo*
-
Without any deference to any previous decision makers.
o What appellate courts do when deciding questions of law
Pure Economic Loss
Courts are reluctant to extend liability for those who negligently cause pure economic loss (no physical damage), especially
when damage is not direct. There needs to be a line between harm to property and loss of revenue.
Aikens. v. Debow (2000) (guy caused accident that messed up bridge; plaintiff’s motel not easily accessible
anymore)
No recovery for pure economic loss must be parasitic to physical or property injury
Facts and Procedural history: Circuit Court – certification of the suit (invites higher court to resolve a question of law) – to
adopt or reject the majority rule of no-duty with respect to negligence causing pure economic loss.
Aikens owned motel, which was easily accessible on I-81. A truck driver’s truck was too big, hit a bridge, and closed off part of
the overpass. Repairing the bridge resulted in a closure of the overpass for 19 days. Aikens sued Debow for negligence,
seeking to recover $9,000 in alleged losses caused by a reduction in patrons while the overpass was closed.
Issue: May a claimant who has sustained purely economic loss as a result of an interruption in commerce caused by negligent
injury to the property of a third person recover damages absent either privity of contract or some other special relationship
with the alleged trespasser?
Holdings and Reasoning: NO. Cannot recover. Absent privity of contract or special relationship, a plaintiff could not recover
for purely economic losses resulting from an interruption in commerce caused by the defendant the ordinary man in the
defendant's position would not anticipate that harm of the general nature of that suffered was likely to result (not reasonably
foreseeable). There was no duty and no injuryno damages
Considerations for determining duty
- Foreseeability
- Policy considerations
- Magnitude of the burden of guarding against it
- Likelihood of injury
23
-
Consequences of placing the burden on the
- Risk**
defendant
Policy Arguments for no damages from pure economic loss:
- Procure insurance: if available, would be difficul to limit number of Ps; make insurance prohibitively expensive
- Insufficient culpability: liability that would be imposed disproportionate to P’s culpability
- Too much litigation: would open floodgates to litigation b/c of the econ ripple effect
o Cardozo – in an indeterminate amount for an indeterminate time to an indeterminate class
- High assessment costs: difficult to determine pure econ loss from one event / control for other variables
- No economic justification: not a net loss to society; resources merely shift from one party to another (Aikens,);
whereas injury to person/prop is a deadweight loss on society as a whole
- The more remote, the harder to prove that economic loss was caused by the injury/incident
Legal liability does not always extend to all of the foreseeable consequences of an accident – does not square up with public
perception. Forcing liability to all those who negligently cause economic loss not realistic
* Aikens could have proved REAL loss by comparing the number of people who stayed there after the accident to the number
of people who stayed there the same time last year
Drawing the Line:
Other jurisdictions conclude that economic loss alone will not warrant recovery absent some special relationship.
Remoteness is important to consider – the similar case of Rickards v. Sun Oil Co. ruled that the defendant’s action was not the
natural or proximate effect of the plaintiff’s loss  not actionable. (D is only responsible for natural/probable consequences
of his act).
Minority View – New Jersey and California permit recovery of economic damages without damage to person or property.
Exception to the No Duty Rule:
- People Express Inc. v. Consolidated Rail Corp case The more particular the foreseeability that economic loss will be
suffered by the plaintiff as a result of defendant's negligence, the more just is it that liability be imposed and recovery
allowed
o Toxic Chemicals from a railway car cased airline to evacuate HQ. Plaintiff sought to recover expenses
o Special Foreseeability
 Liability and foreseeability are proportional to each other.
o But did not impose that much more liability.
 Defendant could buy insurance.
- If you threaten economic harm to someone and have special relationship with them (accountant, auditor, etc.)
Meaning of Duty
Rule in most states - no act, no duty (only duty of care in affirmative actionsexceptions are for special relationships,
voluntary undertakings to rescue, etc.)
California – exceptional state – default rule is that there is always a presumption of duty/obligation.
Rowland v. Christian (1968) (cracked knob caused injury in friend houseduty to warn of danger on property)
Facts and Procedural history: Defendant (tenant) told lessor about a cracked faucet knob and said she would replace it. 29
days later, plaintiff enters apartment at invitation of Defendant and is injured while using the fixture (did not warn; condition
of faucet was not obvious) sues for negligence. Plaintiff was a social guest – licensee. Defendant alleges that P was
contributorily negligent and assumed risk. At the time, no duty to warn licensees in California.
Legal Rule: Section 1714 of the Civil Code – “Everyone is responsible, not only for the result of his willful acts, but also for an
injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far
as the latter has willfully or by want of ordinary care, brought the injury upon himself.
- General reasonable care
- NOT Common law; common law requires category/relationship-based duty
Issue: Should common law or civil law be used in determining a possessor of land’s liability? Did the rules of trespasser,
licensee, or invitees, apply when addressing liability for fault to either the owner or host?
Plaintiff’s argument: Host breached duty that a reasonably and prudent person would exercise in similar situations; failure to
warn of a known dangerous condition.
Defendant’s argument: The injured party was either a licensee or invitee and as such different rules apply to determine the
level if any liability.
Holding and Reasoning: Civil law – Section 1714
Courts previously relied on common law, which created different duties based on seven considerations. The one discussed
the most in the case is the plaintiff’s status (invitee, licensee, trespasser) which common law says a land possessor owes
different levels of duty for.
However, the application of common law is arbitrary and difficult. Historical justifications for the considerations do not apply
anymore to modern times.
24
Defendant had duty to warn of the dangerous condition (so guest can take proper precautions) and duty to repair
the condition  court does not use distinctions and establishes a general duty of care owed to all visitors on the land
(plaintiff’s status does NOT matter in California)
However, no duty of reasonable care to flagrant trespassers (no liability to trespassers injured on the premises in the course
of committing certain classes of felonies)California Civil Code 847
Court moves from duty to reasonable care standard
Rowland Factors (standard, not rule):
-
Foreseeability
Degree of certainty of injury
Closeness of connection between Defendant’s
conduct and Plaintiff’s injury
Moral Blame
-
Policy to prevent future harm
Burden on defendant and consequence of
imposing duty
Availability, cost and prevalence of insurance.
-
Standards: Open-ended
Standards vs. Rules
-
Rules: Tightly defined
Tarasoff v. Regents of Univ. of Cal. (1976) (therapist should have warned potential victim or family about
murderer, despite confidentiality)
Facts and Procedural History: Tarasoff was killed by Poddar after he had told his therapist that he intended to kill her. The
therapists/doctors told the police of the threat who took Poddar into custody but he was released because the police believed
him to be “rational.”
**Police typically do not have an affirmative tort obligation.
- Don’t want to encourage the police to take away one’s liberty
- Don’t want police to choose between two conflicting liabilities
- Police should decide how to use their own resources.
Issue: Did the therapists have a duty to warn Tatiana and family of impending danger?
Holding and Issue: YES – DUTY. A special relationship is established between the therapist and Tatiana because she is a
foreseeable victim of violence of therapist’s patient  exception to the no duty rule under Common Law (NOT California
Approach). The protective privilege ends where the public peril begins.
If a therapist determines his patient presents a serious danger of violence to another, he incurs an obligation/duty to use
reasonable care to protect the intended victim, even if the victim does not have a relationship with the therapist.
Reasons to impose duty:
- Put cost pressures on someone in the system that can do something (therapist)
- Put cost pressure on the cheapest cost avoider – spreads the cost most widely
- Therapists have expertise – can better predict.
- Does not intrude on therapy (primary policy counterargument)
o Confidentiality is a privilege – patient must not be in a mental state that makes him dangerous.
- Police had no such dutyno special relationship to anyone
o Public employee is not liable for an injury resulting from his act or omission where the act or omission was
the result of the exercise of the discretion vested in him
Counterarguments to the imposition of duty:
- Without substantial assurance of confidentiality, those requiring treatment will be deterred from seeking assistance
- The guarantee of confidentiality is essential in eliciting the full disclosure necessary for effective treatment
- Patients who would not become violent if treated according to existing practices, will engage in violent conduct as a
result of unsuccessful treatment.
Notes:
- Physicians who know of patient’s contagious disease have duty to protect family members and significant others
- Therapist doesn’t actually need to be aware that patient is contemplating an attack  just needs to have reasonably
known of risk
o Particular victim must be known to the therapist (or easily found out)
- Example: Priest will not be held liable if someone reveals that they are going to kill someonenot an expert in
determining what threats are real/possible
- If you predict enough danger to call the police, you probably should call the possible potential victim
o You clearly see it as a viable threat
- If therapist reveals confidential information, and is wrong, he/she could risk being sued
- Why not sue the police for failure to warnpolice not experts in evaluating who’s a threat, but therapists are
o California Supreme Court said police cant detain someone unless they are threat beyond a reasonable doubt
25
NIED – Negligent Infliction of Emotional Distress
Background
NIEDbreach of duty
 Defendant committed wrong of failing to be sufficiently vigilant of the plaintiff’s emotional well-being
 Defendant was supposed to take care not to cause injury (emotional distress)
 Inattentive to emotional well-being
If you react out of fright to someone’s negligence and your reaction causes a physical injury, the other person could be liable.
Different Rules/Approaches vary by state
- Impact Rule
- Zone of Danger
Raises the question of – what is an injury?
- Does pure emotional distress count? And if so, what duty is owed?
Gendered
- Women were seen as not normally constituted – more vulnerable
o  More cases were brought by women because it was “embarrassing” for a man to bring the suit.
In NIED cases, the defendant threatens physical harm, but the plaintiff doesn’t suffer physical injuryWyman, Robb, ConRail
Origins
“Women” and “gender” is the face of the law but that is not explicitly noted.
19th century – gendered conceptions are not hidden in early distress cases.
- “Emotional” – attributable to extra sensitivity of a woman.
o Cause was the extra sensitivity – NOT the defendant’s conduct.
- Link between emotion and reproductive health.
o Women were assumed to not feel physical pain at the same level – evidenced by childbirth.
Late 19th century – more open to emotional distress.
- Loss of consortium cases – basis for US not recognizing emotional distress as an injury  no cause of action.
o Different standards existed between husband and wife.
o Husbands only could recover – argued they suffered a material loss.
o Wives could not recover – saw that they only suffered an emotional loss.
Today – most states allow both spouses to recover for loss of consortium.
Evolution from no duty to impact rule to zone of danger to qualified eyewitness/bystander
Negligence requires being careful, where strict liability really causes people to reconsider the activity.
Negligence in the US dominates tort law.
From No Injury to the Zone of Danger
Wyman v. Leavitt (1880before NIED was a valid claimimpact ruleblasting rocksno physical injury)
Emotional distress is not an injury
Facts: Wife sues for NIED after defendant blasted rocks that came onto their propertywife suffered anxiety and feared for
the safety of herself and her child, but no one was physically injured
- Wife was not seen as the owner of land  had to bring the suit with her husband.
Husband sues for damage to property
- If sued for NIED – he could recover because it is a parasitic damage.
Defendant appealed the trial court’s award for the plaintiff.
Issue: Is mental/emotional damage alone from negligence sufficient to state a cause of action?
Holding and Reasoning: No – mental/emotional distress can be used in other torts. But mental suffering alone can’t
sustain an actioncourt could not find any case that would allow for defendant to be held liablethere would be too many
cases if mental suffering alone was a valid cause of action. The wife’s testimony of her fears/emotional distress was
erroneously admitted.
Impact rule applies: any contact, no matter how small, would have allowed her to recover
 Reasons for Impact Rule
o Fright alone does not give rise to a cause of action, thus, consequences of fright will not give rise to a cause of
action.
o Physical consequences of fright are too remote and the causal connection is unprovable.
o Public policy and expediency demand that there be no recovery for the physical consequences of fright in the
absence of physical injury. It is done to prevent fraudulent claims from coming to court
 Fright is a subjective state of mind, difficult to evaluate
26
Robb v. Pennsylvania R.R. Co. (1965) (car got stuck on railroad and train destroyed car; rejection of impact
rulezone of danger)
Facts: Plaintiff was in car when it got stuck in a rut at a railroad track. Plaintiff alleges that defendant should have taken care
of the rut (negligent care). She jumped out of the car right before a train hit and destroyed her car. Only impact was dirt in
face & impact to property (car) but out of mere fright, Robb went into shock and in the aftermath, suffered physical injuries
due to the fright and nervous shock, which included the cessation of lactation (impaired her ability to nurse her child and do
her job).
Issues: Is mental/emotional damage alone from negligence sufficient to state a cause of action?
Holdings and Rulings: Yes.
Court rejects impact rule (recover only if you were impacted)
The liability exemption is arbitrary so the court holds – where negligence proximately caused fright, in one within the
immediate area of physical danger from that negligence, which in turn produced physical consequences…the injured party
is entitled to recover.
- Courts are much happier to allow recovery for women for emotional distress
- Court thinks her cessation of lactation is important
o Easier to prove that this was the effect of negligence
o Mental injuries are harder to prove
Easier to persuade court with injuries to reproductive/female organs
Zone of Danger Rule – no more people are brought in as potential victims  creates a more coherent line.
- To cover the “near miss” cases.
Zone of Danger Rule – What you need to prove
1.
2.
Risk of physical injury
Causation – almost got hit (fear of possible physical injury)
a. Result  Emotional distress
3. Immediate area of physical danger
4. Physical damage
a. “Such as would be elements of damage if a bodily injury was suffered.”
b. Narrow conception.
5. Contemporaneously observe that you are at risk
a. Aware at time – not after.
Consolidated Rail Corp v. Gottshall (1994) (guy scared b/c coworker died at workzone of danger is real)
Facts and Procedural History: 2 male plaintiffs under FELA – Federal Employer’s Liability Act. Gottshall was working for
Conrail on a very hot day and one of his coworkers collapsed. Other workers tried to help him but the supervisor instructed
they go back to work. The coworker died of a heart attack, but the supervisor made them continue working. Gottshall was
institutionalized, diagnosed with major depression and PTSD and had other symptoms. Carlisle – train dispatcher who had
to work long hours under unsafe working conditions. He was promoted – high stress job. He sued Conrail for NIED –
breached duty to provide him with a safe workplace
Issue: Under FELA, can one state a cause of action for NIED?
Holding and Reasoning: YES – can recover.
Court uses the zone of danger rule  limits recovery to Plaintiff who sustains physical manifestation as a result of the D’s
negligent conduct – placed in immediate risk of physical harm by that conduct.
- Limits to trauma  does not apply generally to all “high stress jobs.”
Gottshall – under some physical risk of his friend who died. He was “right there” (zone of danger)  TRAUMA  Remanded
– to recover, has to prove breach of duty & injury (prove he thought was going to die)
* Could have IIED claim—outrageous and extreme
Carlisle – Danger was not immediate. Carlisle’s emotional distress was cumulative – based on too much work, not too
dangerous work.  Cannot recover (one chose to work in a high stress job – assumption of risk?)
Worried about genuine claims – floodgate arguments.
- Lots of emotional distress claims that may be valid if simply allowed for stressful jobs
o  Increases burden on court, attorneys, litigation, etc.
Notes and Questions
Impact rule was slowly rejected and liberalization of liability began first by expanding notion of physical injury.
- Some courts allowed those with emotional injury if it manifested physically
Impact rule eliminated – could sue for emotional distress in and of itself  reject Wyman
- Burden of proof on plaintiff to provide sufficient evidence.
Note the importance of policy considerations in court decisions – does it trump all other considerations?
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Special Relationships and Undertakings to be Vigilant of Another’s Emotional Well-Being
Certain jobs where defendant assumes responsibility to plaintiff
- Foreseeable emotional distress that Plaintiff could suffer  Defendant is supposed to watch out for it.
People can recover if a telegraph company carelessly fails to deliver news of imminent fraud.
Courts have recognized duty to take reasonable care not to cause distress to family when undertaking to dispose properly of
decedent corpse, regardless of who had the contract.
Prima facie case
- An actor whose negligent conduct causes serious emotional disturbance to another is subject to liability to the other
if the conduct:
o Places the other in immediate danger of bodily harm and the emotional disturbance results from the danger;
or
o Occurs in the course of specified categories of activities, undertakings, or relationships in which the
negligent conduct is especially likely to cause serious emotional disturbance
Beul v. Asse Intl’ Inc. (2000)
Sues ASSE – doctrine of respondent superior (vicarious liability) – employers are responsible for negligent employee conduct.
Facts: Beul was a foreign exchange student apart of the ASSE Student exchange program and her area
representative/supervisor was Marianne Breber. Beul, 16, began a sexual relationship with her host father, Mr. Bruce. Breber
never asked to speak to Kristin alone, did not inquire about her absences from school, and did not stop conduct between Beul
and Bruce after Beul was taken out of the Bruce’s home. Bruce committed suicide after being interviewed by police and Beul
suffered severe emotional distress.
Issue: Did Breber owe a duty of reasonable care to Beul? Was the risk of injury foreseeable?
Holding and Reasoning: Yes – DUTY OF CARE.
ASSE and Breber have duty “of a parent.”
- Cheapest cost avoider. Beul has no one else
o Contractual relationship: job is to ensure she is not harmed
o Had Breber inquired at all about Beul, she probably could have realized something was wrong
- Plaintiff not in position to protect herself
o ASSE = Third party between host student and host family.
 Subject to regulations of the United States Information Agency that require sponsors to train their
agents, "monitor the progress and welfare of the exchange visit," and require a "regular schedule of
personal contact with the student and host family."
 ASSE is also a member of a private association of sponsors of foreign exchange students, which
requires members to "maintain thorough, accurate, and continual communication with host families
and school authorities."
School can’t be sued the criminal activities with their bizarre suicide sequel were not foreseeable
Breber was not actual employee of ASSE but respondeat superior is not limited to employeeperson can just be in similar
role of employee (volunteer)
3 Defendant arguments:
- (1) Insufficient Proof: Even though Kristin tried to conceal her relationship, Breber did very little to check up on her.
If she had inquired about her sick days, the story would unravel.
- (2) Bruce’s criminal activity was the sole cause of the injury. Defendant used the doctrine of superseding cause as an
excuse.
o Doctrine does not apply here. Duty of care was to protect against exactly this type of thing.
o Part of ASSE’s duty and Breber’s function – protect foreign girls from “sexual hanky-panky.” Sexual abuse by
stepfathers is not uncommon.
- (3) Harm was too remote
o Two factors: (1) too many factors outside defendant’s control, including lack of information. (2) Company is
not the primary accident avoider.
o Neither factor applies here. ASSE – assigned to take on the role as a parent.
Jury Instructions Argument –
- Ideal jury instruction: Should tell jury how to take the age of consent into account in deciding how much
responsibility to assign Kristin.
o Tell that the State had made a judgment that girls below 18 should be protected from sexual activity, even if
they consented (statutory rape laws)
Judgment affirmed (41% Kristin’s fault, 59% ASSE’s fault)age of consent was important in this regard
Hedgepeth v. Whitman Walker Clinic: Patient alleged that he suffered serious emotional distress when doctor negligently
and incorrectly informed him that he was HIV positive. The court held that a duty to avoid negligent infliction of serious
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emotional distress would be recognized only where the defendant had an obligation to care for the plaintiff's emotional
wellbeing or the plaintiff's emotional wellbeing was necessarily implicated by the nature of the defendant's undertaking to or
relationship with the plaintiff, and serious emotional distress was especially likely to be caused by the defendant's negligence.
Bystander Claims
Courts are hesitant to extend NIED theories outside the “zone of danger” and “undertaking” cases
- Exception to the tendency involves the imposition of bystander liabilityrelative bystander test
o Permits recovery by relatives of a physical-injury victim who is traumatized by contemporaneously
observing the victim being injured by the carelessness of the defendant (typically requires close relationship
to person being harmed)
The injuries usually have to be horrific enough to cause emotional distress
Cases involving bystander/eye-witness recover usually involve women/mothers
- More sensitive/fragile according to court
- HOWEVER, there are special cases where NIED allowed for unrelated bystandersusually when P in confined space
with victim and something grisly happens.
Waube v. Warrington (1935) (mom saw daughter get killed by car accidentwife not in zone of dangerno case)
Survival action The cause of action survives the wife. Wife sued for NIED.
Husband cannot sue for NIED for himself because he was not there, but could have brought a wrongful death action
Facts: Husband brings survival action for wife who, from a window of her house, saw her daughter get run over and killed by
Warrington who was driving.
Wife died “from grief” two weeks after daughter died but was already frail prior to accident.
- Damages are calculated through life expectancy.
Issue: Can a mother of a child who, although not put in peril or fear of physical impact, sustains the shock of witnessing the
negligent killing of her child, recover for physical injuries caused by such fright or shock?
Holding and Reasoning: No cause of action.
Adopts the zone of danger test – wife was not in the zone of danger. She was in the house  had protection and there was
no risk of physical injury, so driver had no duty to her
(This also fails the impact test)
Zone of danger is defined by if physical risk is possible/fear of physical injury is reasonable.
 Court wants to limit liability to if you actually could have gotten physically injuredmust be fear of personal injury
- Does not want to impose disproportional liability  does not expand duty.
- Foreseeability of mother’s reaction deemed irrelevantnot reasonably foreseeable that she would see the accident
and DIE
**Line Drawing problems.
Hambrook v. Stokes Bros.  the court held that there should be no distinction between shock sustained by a mother as a
result of fear for her own safety, and that sustained by reason of peril to her child.
- However, it was recognized that had the mother there merely been told of the injury to her child, instead of actually
witnessing it, there would have been no liability.
Dillon v. Legg (1968) (guidelines that change the Waube caseno more zone of dangermom who saw daughter
die can recover)
Facts: Mom saw daughter die and suffered emotional trauma and physical injury. The mom was in close proximity to the
collision, but the little girl’s sister was standing right next to the daughter.
Issue: Can a defendant be liable for the negligent infliction of emotional distress to a plaintiff when he or she is outside the
zone-of-danger?
Holding and Background: YES CAN RECOVER
Tobriner turns on the foreseeability issue (foreseeable that mother would be nearby) and creates 3 guidelines. (NOT a rule)
Duty is on a case-by-Case determination.
1. Where the plaintiff is located
2. If shock was from the direct emotional impact upon the plaintiff from the sensory and contemporaneous observance
of the accident
3. Whether the plaintiff and victim were closely related.
4. (Not explicit) – If direct emotional impact caused a physical injury/manifestation
REJECTS the zone of danger rule – says it is “ancient” and “outdated.”
- The shock of the mom is obvious
- It does not justify the rejection of a whole class of claims. The court can handle an increased amount of cases.
- Potential for fraudulent claims already exist (parasitic injuries – such as mental injuries are allowed)
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-
Retributive argument – cannot let the difficulties of adjudication frustrate the principle that there be a remedy for
every substantial wrong.
Duty is a conclusion of balancing policy considerations**
Thing v. La Chusa (1989) (mom not there to see son hurtno recoveryhave to be physically at the scene of injury
and be close relative)
Facts: Mother hears of son being seriously injured by defendant who was driving his automobile. Mother suffered great
emotional disturbance, shock, injury, etc. when she saw him bloody and unconscious (thought he was dead)
Plaintiff loses – not physically at the scene – does not meet contemporaneous observation standard.
They adjust the Dillon holding (do not overrule)
 RULE
- Stops precedent from expanding  needs to draw somewhat arbitrary lines to limit liability and establish
meaningful rules.
o A “bright line” in this area of the law is essential. – Otherwise, there is too large of a burden on society.
In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only
if the plaintiff
- Is closely related to the injury victim
o Blood or marriage. Need to draw an arbitrary line to limit liability  unrelated people cannot recover.
- Has to be present.
- Does not require physical injury
- But requires “severe” emotional distress (beyond what is anticipated)
Court goes through California history of bystander claims.
- Siliznoff- claims limited to circumstances in which P was himself injured ("impact rule") or if P had been in the
"zone of danger" but did not suffer injury.
- Amaya- Damages could not be recovered by persons outside the zone of danger created by the D's negligence even
when that shock was reflected in physiological symptoms.
- Dillon- overruled Amaya. Gave a vague rule, saying there could be no bright line test for foreseeability, and that
courts had to make sure Ds weren't "infinitely liable" for injuries.
- Molien- "direct victims" of the defendant's negligence could bring suit. Tortious conduct directed at the victim and
was also reasonably foreseeable.
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Breach Element
The Breach Element
- Duty proceeds breach
o If no duty owed, there cant be a breach
- Breach: did defendant act with degree of care he was duty-bound to exercise?
- To establish breach, have to show that:
o D deviated from standard of care expected/required under circumstances, and
o D’s deviation was proximate cause of actual harm to P.
Negligent and negligencecareless course of conduct
Courts are more comfortable to say there is a duty  limits the argument of what breach is.
Did the defendant act with the degree of care that he/she is duty-bound to exercise?
Question for the jury
Range of different ways to approach fault:
- Strict liability (e.g., dog bite statutes)
- Extraordinary care (e.g., what common carriers owe their patrons) highest duty
- Ordinary care (e.g., the reasonable duty of care expected in most situations)
- Gross negligence (e.g., really bad negligence and is usually excluded from good Samaritan laws)
- Recklessly (e.g., obligation to refrain from acting this way toward a trespasser)
Duty + Breach
Myers v. Heritage Enters, Inc. (2004) (CNAs are not professionalsno professional duty)
Facts: 2 CNAs dropped a patient while trying to use a Hoyer lift. The patient died 2 weeks later and the executor of the estate
brought suit, alleging violation of the Nursing Home Care Act.
- “Owners and operators are liable to a resident for injuries caused by the intentional or negligent acts of their
employees/agents.”
Issue: Which jury instruction – professional negligence or ordinary negligence?
The defendant wanted to use the professional negligence instructionshigher standard
- Defendant says that the jury needs to rely on expert testimony and could not use any personal knowledge.
- **Professional negligence term is not universally defined
o Typically requires high training, one to make a decision and not just regurgitate information.
The plaintiff wanted to use the ordinary negligence standard-of-care instructionslower standard
- “Failure to do something which a reasonably careful person would do.”
At the trial court – only the defendant’s expert testimony was admissible  makes it impossible for the plaintiff to win with
the professional negligence instruction.
Holding: Jury is improperly instructed  YES, Breach of duty (had a duty and didn’t use due care)
Reversal is warranted:
- Operation of the Hoyer Lift does not constitute medical treatmentnot only used by professionals
o Nothing they did required skilled medical carejury can use their own judgment
- CNAs were not party to the lawsuit. Plaintiff brought suit under the Act, which imposes liability on facilities for the
negligence of its employees
Defendant neglected to say that jury could also use the evidence of professional standards or conduct in deciding the verdict.
CNAs are not medical professionals; they just provide primarily personal care and require minimal training.
 Should use ordinary care standardbreach would then be they were not careful when they used the lift.
Martin v. Evans (jury decision that shocks judge’s conscience; judge gets to overrule)
Facts: Truck driver who backed up his truck and hit someone at a rest stop case.
Breach is an issue for the jury to determine. A court cannot reverse the verdict that the jury found and order a new trial.
Negligence is the absence of ordinary care that a reasonably prudent person would exercise in the same or similar
circumstances. The mere occurrence of an accident does not establish negligent conduct burden is on the plaintiff to prove
that the defendant deviated from the general standard of care expected.
- Here, jury found that the defendant was not negligent; the court disagreed and thought defendant was negligent 
ordered a new trial b/c “shocks the sense of justice”
o  Appellate court says that is wrong and reinstated jury verdict
- Judge overruled jury’s decision
o Said finding for the defendant shocked his conscience
o Not reasonable for a person to look back and sit in the car
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o
Feel more confident if another jury also decides
Pingaro v. Rossi (strict liability for dog bites for people who allowed to be on property legallyplaintiff negligence
irrelevant)
Facts: Pingaro was a meter reader who entered Rossi’s property that had a vicious dog. Defendant told other meter readers
to avoid entering the house when no one was home and even had a sign that said “Bad dog, knock.” Plaintiff thought the yard
was clear, unhooked the gate and the German Shepherd knocked her down  injury.
Holding and Reasoning: YES – strict liability
It does not matter whether Rossi knew of the dog’s dangerous propensities.
- Dog bite statute – dog bit the victim who was on the dog owner’s property/public place legally.
o She was there legally and defendant not entitled to present evidence of plaintiff's comparative negligence
because plaintiff did not voluntarily expose herself to a known risk.
Cheapest cost avoider argument – defendant can take more precautions against dog bites than plaintiff canconfine dog
better
- Can buy more insurance  spreads costs over time
- Strict liability increases incentives for dog owners to buy the insurance  change behavior
Jones v. Port Authority (common carrier owes higher degree of care for safety of passengers)
Facts: Man was injured on a PAT bus. When he was entering the bus and climbing the stairs, the bus pulled out and stopped
suddenly. He injured his arm. (Breach pulling out when the door was not closed) PAT alleges no accident occurred. 
Plaintiffs appeal TC verdict for defendant.
Issue: Do common carriers owe a higher duty of care? (Question of jury instructions – explicit enough?)
Holding and Reasoning: YES – higher degree of care required for the safety of its passengers.
- Stricter standard than ordinary care – need a more explicit standard  new trial ordered
o Hard to determine what the “higher degree” is  plaintiffs argue the instructions should be more explicit.
-  Failure to meet higher standard is a breach
- Issue of proximate cause should have been left for jury reasonable men could differ on the issue
Note: Kovich’s were being sued because they were vicariously liable and owned the propertyMinish seen as independent
contractor.
Campbell v. Kovich (hit in the eye by something from lawnmower)
Facts: Campbell was struck in the eye by an unknown object that she alleges was ejected from a lawn mower being operated
by Minish, who was mowing the Koviches’ lawn.
Issue: Was there sufficient evidence to establish that Minish breached his duties?
Holding and Reasoning: NO – not enough evidence  affirms summary judgment.
No Michigan authority addresses the degree of care a person mowing a lawn must exercise.
 Ordinary care standard is used.
Lawn mower ordinarily removes debris and he inspected his path. He did not do anything unusual and did not fail to use
reasonable care.
 "Removing debris from the mower's path is a routine precaution, which any careful contractor could be expected to
take in the exercise of ordinary care ."
This was an “accident of unclear causation.”
(For the plaintiff to win – she would have to prove that the defendant’s carelessness caused her injury)
Adams v. Bullock (kid pulled wire that touched another wire on a trolleynot a passenger thoughfreak accident)
Facts: Defendant runs a trolley line with an overhead system, which goes over a bridge.
12 y/o plaintiff was on the bridge and swung a long wire. It got caught on the defendant’s trolley wire  plaintiff was
shocked and burned when the wires contacted each other.
Issue: Did defendant breach its duty in putting wire overhead?
Holding and Ruling: NO Breach of duty
Wire was placed where no one standing or bending over the parapet could reach it.
 Result of an extraordinary casualty (only way to make it a thing of danger.)  Court calls the plaintiff a “mischievous and
thoughtless boy.”
“Ordinary care did not involve forethought of this extraordinary peril.”
 Defendant could not have foreseen the risk  defendant only has a duty to adopt all reasonable precautions.
Additionally, Adams wasn’t a passengerno extra duty owedduty to act as reasonably prudent personordinary care
Defendant does not owe duty to insulate wires or put them underground. In order for the defendant to fail, plaintiff has to
articulate something else the defendant could do.
 No custom was violated – custom was to have exposed wires
 Preventative measures of insulating the wires would have been extraordinary care
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 Only ordinary care is required
Policy: A huge factor is the cost associated with taking the preventative measure. The likelihood of these accidents is very
low to prevent these types of accidents; the trolley company would have put the wires underground, a huge expense for the
company.
*This was a freak accident that had never happened before.
NOTE: Foreseeability doesn’t mean the incident had to have happened before. Just about the possibility of it happening.
Defining “Ordinary Person”
Whitman Opinion
A “reasonably prudent person” is not a real human being.
Normal human beings are inattentive at some points  a reasonably prudent person is assumed to always be attentive.
 Does the law ask for more than what a person can do?
- Sometimes being inattentive is the efficient thing to do
Fault standards – least onerous  most onerous
Reckless – should have known of risk
Gross Negligence – conscious and voluntary disregard to use reasonable care.
- Ex: Good Samaritan laws
Ordinary Care – “reasonably prudent person”
- Middle ground
Extraordinary Care – example: common carrier
Strict Liability – example: dog bite
Vaughan v. Menlove (Menlove was warned of fire risk and decided to chance itstupidreasonable person standard)
OBJECTIVE STANDARD
Facts: Menlove built a hay/rick near the boundary of his property, near the Vaughan’s cottages. Menlove was warned that the
rick was a fire hazard. Menlove had insurance and said he would “chance it.” D built a chimney through the rick; however the
heat generated ignited the rick and the ensuing fire damaged Vaughn’s cottages. The trial court instructed the jury to apply
the standard of care of that of a reasonable person standard (objective). D wanted an instruction that asked whether D had
acted true to his best judgment as the standard of care (subjective)
Issue: 1) Is the standard of care under negligence based on the judgment of each individual?
2) What is the standard of care owed by a landowner in the use of his land?
Holding and Reasoning:
1) No. The standard of care under negligence is not based on the judgment of each individual (NOT SUBJECTIVE)
- Court adopts a more objective standard. The defendant cannot escape liability for just “making a dumb decision.”
- Defendant was willing to take the risk
2) A landowner is under a general duty of care to use his land without negligently causing injury to others. The standard for
negligence is that of a reasonable person under the same or similar circumstances.
The court held that even though defendant did not light the fire he was as much responsible for it as if he had put the candle
to the rick himself; it was a well known fact that hay will ferment and take fire if not carefully stacked.
*Moral component of negligence law: jury decides if person was properly concerned for well being of others
NOTE: Defendant ignored the advice because he was stupidplaintiff shouldn’t have to pay because of the defendant’s
stupidity. Can’t be careless, foolish, or selfish, or accident-prone, or just too stupid. Reasonably prudent person can’t be selfish
Appelhans v. McFall (in some cases, you are too young to be negligent (ILLINOIS)jurisdiction is important)
Facts: 5 year old on a bicycle hit a 66-year-old woman from behind who suffered a fracture hip.
Plaintiff sues:
1. Parents
Child
a. Negligently failed to instruct son to
a. Negligently caused the collision
properly use bike
b. Negligently failed to supervise
Issue: Does child’s age render him incapable of negligence? Were there enough facts to have put parents on notice that he
might ride his bike negligently?
Holding and Reasoning: YES – Child is not capable of negligence.
Illinois adopts the tender years doctrine (child is incapable of negligence if he is under 7 years old – too young to be
reasonably prudent or understand the risk)
- Plaintiff wants Massachusetts Rule that is supported by Minnesota and the Second Restatement
o Standard: “reasonable person of like age, intelligence, and experience under like circumstances.”
o Arguments for: Illinois rule is arbitrary, Societal changes undermines stare decisis, cannot magically exercise
due care after 7th birthday
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-
Court says that the plaintiff’s modification is too far sweeping and should be reserved for a higher court or
legislature.
o Court should not depart from rules just because the court believes that it might decide an issue differently.
 Flips the plaintiff’s stare decisis argument.
NO – parents were not negligent.
Parent-Child relationship does not automatically render parents liablekids should have chance to explore
Plaintiff must prove:
- Parents were aware of specific instances of prior conduct to put them on notice
- Parents had opportunity to control child.
Plaintiff’s argument extends to that all parents should be liable for negligent acts of their children  to hold them strictly
liable is unreasonable (cites the Lott case.)
Normal Rule – children are held to a higher standard only if they are doing an adult activity.
Note: 4 years old and undersimply cant be negligent (held to adult standard of care)
Objective or Subjective?
- “Conduct of the defendant was reasonably careful” – Objective – Conduct Based
- “Defendant’s attitude was one of trying to be reasonable careful” = Subjective - State-of-Mind Based
- “Ordinary person, acting reasonable” – Objective – Non-Individualized
- “How a person with defendant’s attributes” – Subjective – Individualizes the standard of care.
Accommodations are made when they are easily visible and do not feed into one’s intelligence/judgment
- YES Accommodations made:
NO Accommodations:
o Youth
o Clumsy
o Physical disability
o Old Age
o Special Expertise
o Recklessness
Custom
TJ Hooper Approach:
- Evidence of compliance with or failure to comply with custom is a question for the jury
o It is relevant but not dispositive
- It does not protect the defendant necessarily (if they comply with custom), and a failure to comply may not be
dispositive.
Anti TJ Hooper Approach – used typically in professional and medical malpractice
- Custom is dispositive
o Compliance with custom should protect defendants especially if the plaintiffs have no expert testimony of
what custom is.
 The expert functionally substitutes for the jury
- VERY protective of defendants  professionals can define their own standards  it is hard for the plaintiff to find an
expert who would say otherwise/testify against other professionals.
o When there are conflicting testimonies  question for the jury
o Very protective of the Medical and legal professions.
The TJ Hooper (tugs w/o radios lost barges in storm rule: custom is relevant but not conclusive or dispositive)
Facts: The plaintiffs were shipping two barges of cargo and they were towed by two tugs, owned by the defendant. They got
caught in a storm, and the cargo was lost. Plaintiff claimed the tugs were “unseaworthy.” Because they did not have radio
receiving sets that would of allowed them to get warning of the storm. Defendant argues that because there was no custom to
have a radio, they were not negligent.
Issue: Is not having a radio receiving set on a tug a breach of duty? Is the vessel unseaworthy?
Holding and Reasoning: YES there is a duty to have a radio receiving set. It was shown to be a low-cost but high-award
investment (builds in protection).
- The court acknowledges that there is no uniform practice regarding radios.
- But the cost/benefit analysis of having radios indicates that vessels should have it.
“There are precautions so imperative that even their universal disregard will not excuse their omission.”
TJ Hooper Rule: Custom can be admitted as evidence of reasonableness but not dispositivehave to look @ feasibility
Custom helps tell you what is reasonably prudent
 However, custom and prudence do not always overlap.
Notes:
- Rule: If the utility of a safety precaution outweighs the cost of the precaution, then it is negligent not to carry the
safety precaution. An industry’s general custom does not dictate the standard of care. The courts decide what is
required of the parties.
- In admiraltyno juryjudge is finder of fact
- Admiralty is treated as negligence
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- Admiralty lawsplit the damage pro rataequally between the parties at fault
*Origin of Coase Theorem in torts: Use custom when parties are repeat actors with equal bargaining power; since
both can internalize costs, if change is worth it, parties will bargain to adopt it.
Johnson v. Riverdale Anesthesia Associates (hospital didn’t preoxygenate; victim died during operation)
ANTI-TJ HOOPER RULE custom is dispositive in medical malpractice cases
PLAINTIFFS HAVE TO PROVE FAILURE TO COMPLY WITH CUSTOM.
Facts: Mr. Johnson, administratrix of his wife’s estate, brings suit against Riverdale Anesthesia Associates for failing to
preoxygenate Mrs. Johnson, which caused massive brain trauma and death.
Trial Court grants defendant’s “motion in limine” to prevent plaintiff from cross-examining the defendant’s medical expert
about whether he would have preoxygenated Mrs. Johnson.
Issue: Can plaintiff establish a breach of care through the testimony of an expert witness?
Holding and Reasoning: NO.
Standard of care should be based on what is ordinarily employed by the medical profession generally – not what one
individual doctor thinks is advisable.  REASONABLE DOCTOR = AVERAGE DOCTOR?
Georgia Case Law says that the plaintiff’s desired questions were irrelevant to determining whether there was malpractice.
The questions also are irrelevant for purposes of impeaching the expert. There are different physicians who use different
treatments  a small difference cannot mean that one fails to comply with applicable standards of care.
Note:
- It is hard for doctors to testify against each other.
- Medical expert witness cannot testify as to how HE would have treated plaintiff, b/c not relevant to/indicative of
general standard of care.
Condra v. Atlanta Orthopaedic Group (overrules Johnson but does not depart from the Anti-TJ Hooper rule)
It is easier for the plaintiff to question the credibility of the defendant’s witnesses.
Facts: Condra was prescribed medicine by her orthopedist that caused her to be hospitalized for aplastic anemia. Plaintiff
alleges that the disease could have been avoided had the doctor conducted blood count monitoring.
Issue: Were plaintiffs properly prohibited from inquiring at the trial the personal practices of the defendants’ expert
witnesses? Are the hindsight jury instructions appropriate?
Holding and Reasoning: NO to both.
One should be able to ask what the individual actor would do (ought question)  it is more normative about what the
doctors think they should do  it testifies to what good practice is, not just the ordinary practice.
- If a good/credible expert does what he thinks is good practice  infers what good practice should be.
Court overrules Johnson – Georgia enacted the Tort Reform Act in 2005 – new government statute governing the
admissibility of expert testimony – necessary to assess qualifications.
- It would “defy logic” to find such experience categorically irrelevant in assessing the credibility…The jury is entitled
to fully evaluate the credibility of the testifying expert.”
- Allows for a thorough, vigorous and sifting cross examination – a right to people in court.
Largey v. Rothman (exception to the anti-TJ Hooper approachprudent patient standard)
Facts: Woman had issues in her breasts. After an operation that removed the lymph nodes, she developed a right arm and
hand lymphedema. It resulted from the operation and the defendant did not advise the plaintiff of the specific risk.
Issue: Was the jury properly instructed in using the “professional standard?”
Holding and Reasoning: NO – Supreme Court discards Kaplan’s professional standard (what reasonable medical
practitioners in the same/similar circumstances would have told their patients,”) and adopts the Canterbury “prudent
patient”/”materiality of risk” standard (what the physician should disclose to a reasonable person in order that the person
might make an informed decision.”)
- Approach is more patient focused.
- Objective standard – what a prudent patient wants to know (not a particular, individual patient)
 Doctor is not as protected here, but the plaintiff still must prove that he/she was a prudent patient, there was a material
risk, causation (information would change the patient’s decision – hard for the plaintiff to win), and damages (you are worse
off due to the decision)  very hard for patient to win
Until 1972 – the court adopted informed consent and the professional standard; it was the belief that only the physician can
effectively estimate the physical and psychological consequences.
1972 – New standard in Canterbury – “prudent patient.” Does not necessarily draw a bright line – but does establish a rule
of reason.
Reasons to prefer over professional standard:
- There is no discernible custom reflecting a medical consensus – varies patient-to-patient
- Physicians have to consider non-medical factors – professional standard is only okay if it is a purely medical
judgment
- Professional standard is subject to the whim of the physicians  unlimited discretion
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o Contrary to the patient’s right of self-determination
Requirement that the patient present expert testimony to establish the professional standard  problems. Hard to
find physicians willing to breach the “community of silence.”
Most important concern: Patient’s right to self determination – prerogative of the patient, not the doctor, to determine
for himself/herself the direction in which his standards try to lie. The professional standard seems to be paternalistic and
thus at odds with this right.
To prove causation – the court adopts an objective determination approach – i.e. in terms of what a prudent person in the
patient’s position would have decided if suitably informed.
Breach question – would a prudent patient want to know the risks that he/she was not told?
Essentially, to collect, she has to prove that prudent patient, if they had known, wouldn’t have consented
-
Reasonableness/Balancing/Cost-Benefit Analysis
US v. Carroll Towing Co. (Important case: economic perspective on tort lawtort law is economically based)
Learned Hand Formula – B<PL (probability x injury > cost of burden care)
Balancing test – very utilitarian – maximizes the level of utility/minimizes costs
 Balancing test/algebraic to determine whether a breach of the duty of ordinary care occurred. Most courts employ
Judge Hand’s formulation: a comparable risk-benefit model.
 If P X L > B, then defendant is liable
 “Liability depends upon whether the burden is less than the injury multiplied by its probability.”
If the burden is zero  you would take any action regardless of how small the risk is.
BPL – is better for companies, rather than individuals and seems to add more clarity if you have the data.
If the harm could be avoided for less than the cost of the harm (B is less than PL), then the individual should take the
precautions, rather than allowing the harm to occur. If precautions were not taken, we find that a legal duty of care has been
breached, and we impose liability on the individual to pay for the harm.
Criticisms of the formula:
- May change based on person or location
- May not work when the stakes are high (ex: loss = death; Ford Pinto case)
- Does not capture the moral significance that society attaches to certain activities.
- Alternative approach: Disproportionate Cost Test
o Three tiered mode of analysis:
 1. If, at the time of acting, the risk that the actor’s conduct would cause harm of the sort suffered by
the plaintiff was exceedingly small, there was no obligation to take precautions against it
 2. If the risk of harm was not far-fetched – “real”- but still very small, the actor was obligated to take
precautions against the harm unless the taking of those precautions would have imposed a burden
on the actor entirely disproportionate to the harm risked
 3. If the risk of harm was “material” or “substantial,” the actor was obligated to do everything
possible to prevent the harm, even if that would entail adopting very expensive precautions to avoid
the modest expected loss.
- RP is economically prudent; tort law should encourage Ps to bring imprudent people to court to be sanctioned
- Use Hand formula to argue reasonable precautions of D, esp. if only business expenses/profits involved.
- Sometimes better not to avoid risk; but when stakes very high, model breaks down (Ford Pinto)
- Hard to apply in practice; jury always instructed w/RP standard (intuitive), not c/b analysis (academic)
-
No externalities: D must consider c/b’s imposing on others; in Zapata, all costs already internalized
Calabresi: Cheapest cost avoider (CCA) (put burden on private actor best able to determine cheapest route)
Posner: Court should decide what is cost effective, and punish people if they get it wrong.
o Both approaches think tort law should encourage cost-efficient behavior.
Rhode Island Hosp. Trust Nat’l Bank. V. Zapata Corp. (Forged bank statementsnot bank’s fault)
Facts: An employee of Zapata stole checks and forged many of them to over $100k. The bank had processed and paid the
forged checks. Zapata started to receive statements that included the forged checks in April, but did not notice them until July.
The Bank must legally reimburse Zapata for the checks it cleared before April 25, 1985 under the UCC.
Issue: Did Zapata Corp show that the system used by the bank for detecting forged checks lack ordinary care that a bank
must exercise under the Uniform Commercial Code? Does the Bank have to reimburse the checks cleared?
Holding and Reasoning: NO. NO.
One can only be reimbursed for checks before there is a chance to catch the forgeries. If there is a chance to catch the
forgeries (by examining bank statement)  it’s on customer and he/she is precluded from asserting against the bank.
The only exception to this exception is if the bank did not use ordinary care.
 Bank uses ordinary care  No exception to exception to liability.
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-
Zapata had used a system of bulking and would randomly choose 1 percent of checks between $100 and $1000 to
check. The bank made out a prima facie case of ordinary care and the court concluded the system saves expenses and
does not lead to a significant increase in undetected forgeries. (Plaintiff wanted a system where the bank checked all
the checks)
Here – application of BPL
Burden  increased cost in checking all checks (includes morale and labor costs)
No change in the number of forgeries detected if different system used  most banks follow this practice.
Res Ipsa Loquitur
Tort plaintiffs play an investigative role of who to sue  the best lawyers are able to construct a persuasive
explanation/narrative of identifying the defendant and explaining what the defendant did wrong.
 Sometimes – all we know is that an accident occurred  is that enough evidence to get to the jury?
The circumstantial evidence is so strong that a jury can conclude the defendant did it/was negligent.
Requirements:
- The accident would not happen without the defendant’s negligence
- It is in the defendant’s exclusive control. There was no contribution to the plaintiff’s injuries by the plaintiff or any
third party
- The plaintiff is passive (not contributorily negligent)
Res Ipsa Loquitur = the thing speaks for itself.  WAY TO PROVE BREACH AND CAUSATION
- Gets the plaintiff a specific jury instruction.
- An evidentiary doctrine applicable to certain torts – including negligence.
- Jury can infer the plaintiff’s injury was caused by defendant’s carelessness even when the plaintiff presents no
evidence of particular acts or omissions on the part of the defendant that might constitute carelessness.
- The defendant is allowed to introduce evidence to rebut the inference of carelessness  information forcing rule
o Asks the party in a better position to identify what happened to come forth with evidence as to what really
happened.
o In some states, if the defendant is silent  the plaintiff will likely win.
 Even though the jury does not need to find for the plaintiff, they typically do.
 California = exception  if defendant is silent  plaintiff automatically wins.
Byrne v. Boadle (falling barrels of flourstore owner with barrels at fault for them rolling out)
Facts: Plaintiff was walking when a barrel of flour fell from the defendant’s house. The plaintiff did not present really any
evidence of negligence of the defendant, other than an eyewitness account.
Issue: Can liability for negligence lie solely on account of the type of accident that occurred, without direct evidence of
negligence?
Holding and Reasoning: YES.
Liability for negligence can lie solely on account of the type of accident that occurred, without direct evidence of negligence –
res ipsa loquitur.
The presumption of negligence can arise from an accident; the only way a barrel could roll out of a house is from negligence.
The mere fact that they were dealing with something big and heavy means that they need to take more care.
Kambat v. St Francis Hosp. (eating a pad is not normalres ipsa loquitur)
Facts: Plaintiff’s decedent sues for medical malpractice after a laparotomy pad was discovered in her abdomen after a
hysterectomy operation.
Issue: Was the plaintiff entitled to submit the case to the jury on the theory of res ipsa loquitur?
Holding and Reasoning: YES! Doctrine of res ipsa loquitur allows a jury, in certain circumstances, to infer negligence merely
from the happening of the event and the defendant’s relation to it.
Three elements the plaintiff must prove:
1. Event must be the kind that ordinarily does not occur in absence of someone’s negligence
a. In this malpractice case, it requires no expert to enable the jury to reasonably conclude that the accident
would not happen without negligence.  Lay jury does not need expert testimony to conclude the pad is not
ordinarily discovered inside a patient’s abdomen following a hysterectomy in the absence of negligence 
satisfies first element.
2. It must be caused by an agency or instrumentality within the exclusive control of the defendant
a. Proven because the pads were used during the decedent’s surgery and she was unconscious.
3. It must not have been due to any voluntary action or contribution on the part of the plaintiff.
a. Proven because the pads were not accessible to the patients and it is impossible to swallow the pads.
 Plaintiff only needs to prove that “it is more likely than not” the injury was caused by defendant’s negligence; the plaintiff
need not eliminate all possible causes of injury.
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Actual Causation
Question for the JURY
- Would the plaintiff still have been injured even if the
defendant had acted with the care he was duty bound to
exercise?
o If no  actual causation is established
o If yes  actual causation is not established.
Actual and Proximate Cause
Actual cause question – Did an actor’s carelessness play
some role in bringing about a victim’s injury?
Proximate cause question – Did the actor’s cause the
victim’s injury in such a fortuitous manner that is
inappropriate to hold the actor responsible for the injury?
- If you do not establish proximate cause  actor is
not liable for the injury.
Actual cause is also known as factual cause or cause-infact.
Proximate cause is also known as legal cause.
Two Meanings of Caused
1.
2.
Cause imports the idea of responsibility.
Cause is divorced from any assessment of moral
or legal responsibility
a. Non-blaming/neutral sense
“A” Cause, not “The” Cause
Actual Cause, the Jury and the ButFor Test
Actual causation analysis does not search for the sole
cause of the victim’s injury; it serves to isolate a particular
actor as having played a special role.
Finding of actual causation does not necessarily entail the
conclusion that A is the only person whose carelessness
played a role; there can be multiple actors  contributory
negligence and comparative fault.
Questions of causation are typically left to the jury, subject
to the judge’s power to rule on the issue as a matter of
law.
Default standard – “but-for” test of causation
(counterfactual test).
Proving Actual Causation Under the Preponderance Standard
The plaintiff must prove that it is more likely than not that the defendant caused the plaintiff’s injury.
Actual causation needs to be proved because of issues of accountability and deserts.
- People want systems that point out people who injure others and thus are held responsible.
The one-on-one connection is important  if it was not required  it could lead to over deterrence.
- Problem: torts may under-deter?
Moral justification for torts: causal link b/w D’s acts and P’s injury (accountability; D gets just deserts)
- Cannot justify torts based solely on P’s injury, since many injuries go uncompensated
- Cannot justify torts based solely on D’s negligence, since much negligence goes unpunished
BUT as torts get more costly, more diff to maintain causal link  carve outs (no-fault insurance, workers comp)
Skinner v. Square D Co. (start of causationman electrocuted by homemade machine)
Facts: Plaintiff built his own tumbling machine that used a switch made by the defendant. The machine involved a drum
reversing direction that required the switch to be off, before disconnecting wires from the motor. One day, plaintiff was
electrocuted and died. Plaintiff claims that the switch was defectively designed because it had a large “phantom zone” that
sometimes made the switch appear to be “off” when it was actually on.
Issue: Did the plaintiffs offer sufficient evidence that a reasonable jury could infer that the alleged defect caused the
decedent’s death?
Holding and Reasoning: NO  Summary Judgment is affirmed b/c the plaintiffs were unsuccessful in showing causation.
 Burden of establishing causation is on the plaintiff.
According to Kaminski, the plaintiff’s proof must facilitate reasonable inferences of causation, not just mere speculation
(probable, not just possible – tied to the preponderance of the evidence standard)
Here, circumstantial evidence did not afford a reliable basis from which reasonable minds could infer that more
probably than not, but for the defect in the defendant’s switch, Skinner would not have been electrocuted.
NOTE: Plaintiff made the machine so he couldn’t sue the manufacturer because it was himself, so he had to show that a
specific part of the machine was defective
Alternative Test:
Substantial factor test – is the actor’s conduct a substantial factor in bringing about the injury? (California)
- Any cause would be sufficient to cause harm
- “But for” misconstrues the instruction and juries try to isolate the sole cause
- More plaintiff friendly standard
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Falcon v. Memorial Hospital (loss of a chance doctrineshe would have had substantial chance to live)
Facts: Nena Falcon died after giving birth to a healthy child from an amniotic fluid embolism. If an intravenous line was
connected to the patient prior to the onset of the embolism, it could have increased the survival rate to 37.5%.
Trial Court dismissed the complaint; Court of Appeals reversed.
Arguments:
Falcon: by not inserting an IV, the physician deprived Nena of a 37.5 opportunity to survival.
Defendants: since it is not probable (more than 50%) that Nena would have avoided physical harm had the procedure not
been omitted, Falcon can’t assert the defendant’s negligence caused harm.
Issue: In determining negligence, what is the required amount of probability than an omission caused the harm?
Holding and Reasoning:
- “We are persuaded that loss of a 37.5 percent opportunity of living constitutes a loss of a substantial opportunity.”
- If there is a substantial possibility of survival and the defendant has destroyed it, he is answerable.
Some courts have permitted recovery from physical harm on showing that the lost opportunity was a substantial all be it 50%
or less, factor in producing the harm. In reducing Nena’s opportunity to survive by failing to insert the IV, her physician
caused her harm.
A patient goes to a physician to take care of the patient; there is a matter of express agreement. Physicians are supposed to
provide a patient an opportunity to survive  failure to do so is a breach  subject to liability.
Carelessness (no IV)cause in factinjury (not death, but loss of chance of survival).
When someone loses 80% chance of livingthey fully recoverless than 50% chance, they get proportional damages
Loss-of-a-chance doctrine – plaintiff complains of a breach of duty to take care not to reduce her chances for avoiding death
or bodily harm (re-definition of the injury)
- Injury is the reduction of the victim’s chances to escape death or physical injury.
- Damages correspond to the percentage chance of which the decedent was deprived.
- Adopted by many state courts in suits for medical malpractice  should it be extended to other professions?
Multiple Necessary and Multiple Sufficient Causes
You only need to prove that the defendant was a cause – not the cause. Can also include breaches of affirmative duties. A
plaintiff’s carelessness will also count – comparative fault/contributory negligence.
Paying for damages among multiple defendants
Joint and Several Liability: A plaintiff can pick between the defendants and get 100% of the damages from one person
- The defendant is then responsible to get help from other defendants.
Several Liability: Juries determine how much each defendant is responsible for  defendant pays that percentage of the
damages
- If the defendant cannot afford it  the plaintiff loses out because the other defendants are not liable for other
defendant’s damages.
Multiple Sufficient Causes:
-
-
-
They are not “but-for” causeseither cause is enough to cause injury
Anderson case – Plaintiff alleges the defendant’s fire caused damage to plaintiff’s property. Defendant says that his
fire was swallowed up by another, larger file.
o Jury verdict for the plaintiff.
o Each fire itself was of sufficient magnitude to have caused the fire. – Defendant’s fire was a “material factor”
in the destruction of the property, even granted that neither fire was necessary for the damage to occur.
In contrast – Cook case – a merger of the defendant fire and another fire that caused damage to the plaintiff’s
property was sufficient to spare the defendant from liability.
Preempted causation: D was negligent, but his action was (lucky-for-him) too late
o e.g., P gets hit by car and dies in road; D negligently speeds down street, runs over P’s body
Doomed plaintiff: D is negligent, but P was going to be harmed anyway even if D weren’t
o e.g., Aikens P would have fallen off bridge and died even if not electrocuted by D’s wires
McDonald v. Robinson (two car collisionboth negligent so both liable)
Facts: Two cars driving collide and hit the plaintiff who sustained serious and permanent injuries.
Legal Rule: If the act of two or more persons occur in contributing to and causing an accident, and but for such concurrence
the accident would not have happened, the injured person may sue the actors jointly or severally and recover against one or
all, according to the proven or admitted facts.
Issue: Was there such concurrence of negligent acts on the part of the two car drivers, which united and produced the
plaintiff’s injury?
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Holding and Reasoning: YES. The injury could not have possibly happened without the concurrence of such negligence. 
Both defendants are applied the but-for test  each are held liable both necessary, neither sufficient
Aldridge v. Goodyear Tire & Rubber Co. (TOXIC TORT CASE – Consolidation of cases)
Facts: This is a consolidated case (66 cases). Plaintiffs allege that they are entitled to compensation from defendant for
occupational diseases contracted by them during their employment at Kelly-Springfield. Goodyear (defendant) supplied
around 10% of K-S’s chemicals and many employees contracted various diseases.
Issue: Did plaintiffs produce evidence that “particular, identifiable chemical supplied by Goodyear” was cause of the injuries?
Holding and Reasoning: NO – not enough evidence – NO causation proven.  Summary judgment affirmed.
Causation is one of the “landmines”  very hard to overcome in toxic tort cases.
Goodyear only provided 10% of around 200 potentially hazardous chemicals. 28 different chemicals had the capacity to
cause cancer and many could not be exclusively attributed to Goodyear. Some also needed to be combined with other
products to be hazardous.
 Fails the “but for” test – if you took out Goodyear, the result may not change  no evidence of whose negligence caused the
injury
 Not Necessary or sufficient to cause result has to be more than 50% chance of causal connection
Plaintiffs want to use the substantial factor test  that was adopted in Maryland but it first needs to be established that the
cause is sufficient. Here, it is not.
- Cannot be used to get around requirements for the “but for” test
- Substantial factor – sufficient but not necessary have to prove that more probably than not, drug played
substantial role
o Each drug alone needs to be able to cause injury
- But for test – necessary and sufficient
Admissibility of Expert Opinions
Dr. Lipsky (plaintiff’s expert) changed his testimony from the Heinrich case to this case (had previously said he could not say
which chemicals contributed to the disease, said he was not qualified, etc.)  he seems to just be filling in the holes of the
plaintiff’s proof  can disregard this because it conflicts with previous testimony.
Two part analysis key:
- Ensure it is reliable and consists of scientific knowledge
- Ensure it is relevant (assists the trier of fact)
Role of the court = gatekeeper – must assess reliability and helpfulness of the expert testimony
- Courts are to screen experts to ensure the experts present jurors with scientifically valid theories of causation
o Now  judges are expected to review the studies the testimony is based on.
o If not reliable  expert is not permitted.
- Issue of causation is aired out at the pre-trial hearing.
**Daubert rule (Rules of evidence/admissibility of expert witnesses/testimony).
- Question regarding federal rule of evidence: whether evidence had to be generally accepted by the scientific
community in order to be admissible as evidence?
- Judges have authority to determine if methodology is sound in order to accept expert witness testimony
- Judge can consider general acceptance of view but can consider other things as well
- Gives trial judge a lot of power; hard to reverse if judge bans evidence not sufficiently accepted/grounded
- “’General acceptance’ is not a necessary precondition to the admissibility of scientific evidence, but the Rules of
Evidence do assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable
foundation and is relevant to the task at hand.”
Alternative Liability
Distinct from Multiple Necessary Cases:
- Multiple necessary causation–independent careless conduct of 2+ actors each functions as a cause of plaintiff’s injury
- Alternative Liability – only one actor’s careless conduct functions as a but-for cause of the plaintiff’s injury; the other
defendant’s action has no effect.
Alternative liability reduces the plaintiff’s burden  requires the defendant to disprove his carelessness was the result of the
plaintiff’s injury.
Summers v. Tice (two guys quail huntingshot to the facecan’t prove who didn’t do itboth at fault)
Facts: Plaintiff and defendants went quail hunting. The plaintiff was between two defendants, and the defendants both shot
uphill at a quail. Plaintiff was injured. The shot that entered the plaintiff’s eye was the major factor in assessing damages, but
no one knows which defendant shot the plaintiff there.
Issue: Is there sufficient evidence to show which defendant was guilty of the negligence which caused the injuries?
If two defendants are negligent in concert and damage is caused such that only one or the other would be liable, which party
will be held liable for the damage if the plaintiff is unable to show which defendant in fact caused the injury?
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Holding and Reasoning: YES – If 2 defendants are negligent in concert and damage is caused such that only one or the other
would be liable, both defendants liable for the damage if the plaintiff is unable to show which defendant caused the injury.
Even though the plaintiff cannot say who actually shot him in the eye, defendants should still be liable; otherwise, it allows
both to be exonerated and the injured plaintiff cannot recover.
 The burden of proof shifts to the defendant; the defendant has the burden of proving that the other person/act was the
sole cause of the harmall liable unless they can say/prove who did it.
The defendants are in a better position to offer evidence in determining the injury and it is unfair to deprive the wronged
party the right to redress.
NOTE: Res ipsa not necessarycarelessness was them shooting toward plaintiff
Notes and Questions
Aiding and Abetting  express agreement between two tortfeasors to work together – even if only one is the but for cause,
both are liable (derivative liability).
Concert of Action – two tortfeasors are acting jointly, but there is no express/explicit agreement.
Market Share Liability
If a plaintiff sues a substantial portion of the market/manufacturers and wins – each is subject to liability for its market share
unless it can prove it did not manufacturer the specific product
 Shifts the burden to the defendant
 Several liability
The burden is on the plaintiff to prove which market.
Courts vary on the apportionment of damages if you only have part of the market present.
Sindell v. Abbott Labs (market share liabilityall made the drugall responsible)
Facts: Plaintiffs bring suit against drug companies who manufactured, promoted and marketed the drug, DES. DES was
administered to the plaintiffs’ mothers but caused cancerous diseases in the plaintiffs. Plaintiff brings various causes of
actions – but all allege the defendants were jointly liable.
Legal Rule and Exceptions: The imposition of liability depends upon a showing by the plaintiff that his/her injuries were
caused by the act of the defendant or by an instrumentality under the defendant’s control.
Exceptions:
- Summers doctrine
o It does not help the plaintiff. The burden of proof may shift to the defendants because it is unfair to require
the plaintiff to isolate the defendant responsible. However, it is much harder in this case than in Summers.
 There is a huge time lapse – the plaintiffs are a generation removed  very hard to identify.
 There are approximately 200 drug companies that could of manufactured the judge  it is unfair for
each defendant to exonerate itself.
 Burden is still on the plaintiff.
- Concert of Action
o Plaintiff alleges the defendant’s wrongful conduct is the result of planned and concerted action – argues for a
tacit understanding
o  Court says this is insufficient to allege a cause of action.
- Industry Wide Liability
o There are over 200 manufacturers; this concept only really works with fewer defendants.
o Drug industry is closely regulated by the FDA, which controls its testing and manufacturing of drugs.
Holding and Reasoning: Even though 3 above exceptions do not apply, the court still holds in favor of the plaintiff’s
cause of action. Modifies Summer’s Rule.
- Instead of applying to a rigid prior doctrine of denying recovery, the court wants to change/adapt the rules of
causation and liability to be more appropriate.
o (Due to advances in science and technology –hard to trace back to a specific producer.
- Cheapest Cost Avoider Argument: Defendants are better able to bear the cost of injury.
o Better position to discover and guard against defects  gives incentives to increase product safety.
Only 5-7 companies produced 90 percent of DES marketed; if the plaintiff joins in the action the manufacturers of a
substantial share  chances of the actual tortfeasor escaping liability is greatly reduced. Each manufacturer is liable for an
equivalent portion of the injury as to its share of the defective drug it manufactured.
NOTES:
- Different than Summersnot a 50/50 chance of finding who caused the injury
o Also possible that the person who caused the injury was not in court (maybe out of business)
o Because the products are fungibleevery defendant did some damage to someone
- New York irrebuttable presumption
o Defendants have to pay 100% to people who can prove they took drug and market share to everyone else
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Proximate Causation
Two categories:
1. Proximate Cause cases
a. Proximate causes is used to filter out claims by plaintiffs who cannot establish that the elements connect up
with one another in the right way; it sets an additional condition for liability that the breach must have
caused the injury in a “natural and foreseeable” rather than serendipitous manner.
b. Connection of injury and causation
c. If no proximate causation  No liability
2. Relationality Cases
a. Relational aspect of breach of duty → plaintiff has to demonstrate that the breach of duty about which she is
complaining is a breach of a duty owed to her, rather than a duty owed only to persons differently situated
from her.
b. Connection of duty and breach
Framing Matters – facts make connections look looser and tighter.
- The more broadly you define the risks  seems to be more proximately caused
- The more specifically you define the risks  less likely to be proximately caused.
It is not fair to impose liability when it includes coincidence/fortuity/luck.
Proximate Causation
Framing Proximate Causation
Ryan – Natural and Ordinary
 Court established the one-leap rule for negligence
 Hyper-literal and extremely narrow conception of directness.  Court was weary of expanding the notion of
proximate cause because it did not want to impose too much liability.
  Backed away from the rule.
Polemis – Directness
 Was the injury directly caused by the defendant’s carelessness?
 Polemis case  courts say it was direct because it was very quick.
 Even though the injury was unforeseeable, the courts imposed liability because of directness.
Wagon Mound – Foreseeability
 A crew was not held liable because they could not have foreseen that by spilling large amounts of oil into the harbor,
it would have caused the fire
  Overrules/abandons Polemis.
 Test for proximate cause – whether the type of harm suffered by the plaintiff was reasonably foreseeable to the
defendants at the time they acted carelessly.
Risk Theory (Whitman’s FAVE)
 Adopted in the third restatement – “Scope of the risk”
 Is it a risk worth avoiding? (In addition to the foreseeability question)
*Most American courts adopt the foreseeability test.
Union Pump Co. v. Allbritton (walking on wet pipe after fire due to malfunctioning pumpnot defendant’s fault
she fell off wet pipe)
Facts: There was a fire due to a malfunctioning pump manufactured by defendant. Allbritton, a trainee employee had finished
her shift and later, she and a co-worker went to go block off the valve. They took a shorter, but more dangerous route and
walked across the pipe rack, Allbritton was injured when she hopped or slipped off the pipe rack; the rack was still wet from
the fire. Plaintiffs allege the defendant’s pump was defective.
Issue: Was the condition, act, or omission of which a personal injury plaintiff complains was, as a matter of law, too remote to
constitute legal causation? Was Union Pump’s conduct a legal cause to Allbritton’s injuries?
Holding and Reasoning: NO – defendant’s conduct was not a legal cause  no liability (even though it is an actual cause)
Proximate cause is necessary and consists of both cause-in-fact and foreseeability. If it is too remotely connected  one is
not held legally responsible.
Legal causation is limited to ensure that responsibility is only given if the defendant’s negligence was not only a cause of the
plaintiff’s injury, but also a substantial factor of the plaintiff’s injury. Defendant’s carelessness didn’t increase the
riskcoincidence
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The forces of the fire had come to rest when she fell off the pipe rack; the pump fire did no more than create the conditions
that made the injuries possible, but circumstances surrounding her injuries are too remotely connected with Union Pump’s
conduct or pump to constitute legal cause.
- May have also considered plaintiff’s contributory negligence
- Attorney has to balance arguing for generality without seeming too broad (see Jolley below)
Jolley v. Sutton London Borough Council (kids fixing boatadult activitynot foreseeable)
Facts: Jolley, a boy age 14, was repairing an abandoned boat that was left in a public area, even though it was said the boat
would be moved. He and a friend had lifted the boat off its trailer, painted the boat and attempted to fix holes. One day, the
Jolley was under the jacked up boat working on it. The boat started to rock and Jolley tried to get out. He couldn’t, the boat fell
on him, and Jolley suffered a broken back and paraplegia.
Defendants argument: plaintiffs were not playing with the boat as children – repairing the boat is an adult action and thus, it
was not foreseeable  no proximate causation.
- The more specific you define the situation  it becomes less foreseeable  more pro-defendant.
Framing:
1. “Falling through” or “child play”– broader interpretation  plaintiffs can recover
2. “Boat falling on kid” or “child play as work”  narrower interpretation  not foreseeable  no recovery
The Relational Aspect of Breach of Duty; Palsgraf
Certain things do NOT need to be foreseeable
- The extent of the injury (egg-shell skull rule)
- Manner in which the accident came about (more narrowly defined)NEVER has to be foreseeable
Things that DO need to be foreseeable
- The type of accident (more broadly defined)
- Particular plaintiff (issue in Palsgraf)
Palsgraf v. Long Island Railroad Co. (explosives at train stationher injury was not foreseeable)
Facts: Woman who is on the other end of a platform suffers injuries from explosives that fell from another passenger as he
was assisted onto a moving train.
Holding and Reasoning: Cardozo (majority) asks a duty question – not a proximate cause question.
- Defendant is only liable for those he foreseeably puts at risk
o Plaintiff here was too far. If a plaintiff nearby was injured  more foreseeable  recovery.
o Here, the defendant did not breach a duty owed to the plaintiff.
- The plaintiff does not recovery even though the plaintiff was injured and the defendant had a duty because there was
no breach.
o Assumes that proximate cause is proven.
- “Carelessness to the plaintiff” is key
o Needs a tighter connection between the plaintiff’s injury and the defendant’s carelessness for the plaintiff to
recover.
Dissent: Andrews (minority) – “right to all”
- Cares more about the defendant’s carelessness and any injury to the plaintiff is something the defendant is liable for.
- A defendant should be punished for careless conduct.
- Determination of proximate cause should be in part driven by policy considerations such as the ability for different
actors to defray the costs of the harm at issue (also seen in Kinsman) – page 335.
Petition of the Kinsman Transit Co. (lots of shit happened on the Buffalo River  everyone at fault)
There are multiple plaintiffs and defendants in this casedeparture from Palsgraf.
Key takeaways:
- All three defendants breached a duty of care: Kinsman and Continental failed to properly moor and anchor
the Shiras; the City failed to timely raise the Bridge.
o The fact that much of the harm occurred by reason of the City’s failure does not release Kinsman and
Continental from liability for such harm.
o Where an actor’s negligence triggers a chain of events leading to harm, the actor’s liability is not limited by
the fact that another person in the chain failed to act so as to diminish the ultimate harm.
- If an actor’s negligence directly results in a harm that was within the nature of the risk—though the chance of such
harm be small—the actor is responsible for the harm.
- You can make a risk seem more foreseeable if you describe it broadly.
- You can make a risk not seem foreseeable if you describe it narrowly/specifically.
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Superseding Causes
When you have joint tortfeasors – how do you split/determine liability?
- When, if ever, does a 3rd party relieve a defendant of responsibility, even if the defendant’s carelessness was a cause
in fact?
-  Did the intervening actor create a new risk? Or substantially increase the existing risk?
Two Cases:
1. Pollard v. Oklahoma City Ry. Co (kid collected blasting powder)
- 3rd party was a superseding cause  defendant is relieved
- Parents should of taken more affirmative action and could of stabilized the situation with their knowledge
- There was more effort needed by someone other than the defendant to make the situation dangerous (i.e. the
substance was made more dangerous by collecting it)
o Kid intervened and so did his parentsoriginal negligence was so remote
2. Clark v. E.I. Du Pont (kids found glycerine)
- 3rd party is not a superseding cause  defendant is still liable
- There was no knowledge of the explosives – the situation was stabilized
- Danger was left out and existed without any intervention (i.e. glycerine was already dangerous as is)
Port Authority of NY and NJ v. Arcadian Corp (intervening cause terrorist used chemicals to make bomb)
Facts: Defendant who manufactured chemicals that could be made into an explosive is not liable for bombings that were
caused by the defendant’s products.
Holding and Reasoning:
- Terrorists = intervening cause – they themselves created a new risk and made a product dangerous that was not
inherently dangerous
o *Even though the potential for injury was very high and the cost of precautions were low.
- Defendant has no control over future uses of the product once it is sold.
- Misuse and alteration are not foreseeable.
o  If it is not foreseeable  not the proximate cause.
Foreseeability:
Subjective – what the actual person foresaw
Objective – what a reasonable person would foresee
Fast Eddie’s v. Hall (tavern not at fault for murderunforeseeable)
Facts: Tavern knew about issues guy had when drinkingstill served himlater that night he murdered fellow patron from
the bar.
Holding and Reasoning: The defendant is not held liable – the murder is not foreseeable (arguably a sexual assault would
be).
- The intentional criminal acts of the murderer is a deliberate action that was not influenced by the defendant
o Murder not a foreseeable consequence
- Alleged defendant negligence – continuing to serve the victim and murderer alcohol when they were clearly
intoxicated
o But court argues that the murder is not something that the defendant could be liable for  too far removed.
 Also did not assume a common law duty.
 No affirmative step to provide for Hall’s safety was taken to create a duty.
 Under common law, a tavern owner’s duty to protect a third party is limited to situations where the
harm to such third party was reasonably foreseeable
Dram Shop Act – imposes tort liability and is created by statute.
- Act makes a tavern owner liable for a tavern patron’s injury to a third party where the tavern knowingly served the
patron alcohol despite being aware of such person’s intoxication and where the intoxication of the patron
proximately caused the harm to the third party.
o Inadequate proof that Lamb’s intoxication proximately caused Hall’s assault and death. Murder and sexual
assault are willful, deliberate acts that do not regularly occur as a result of intoxication
- Lamb’s criminal act was an intervening cause that broke the chain of causation between any negligence of Fast
Eddie’s and Hall’s sexual assault and death
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Negligence Per Se
Statutes impact tort liability
- Create expressed causes of action
o People that do X  liable to Y
- Implied causes of action
o People should not do X
- Can eliminate Common Law tort liability
o Example: heart balm actions
-
Replace tort law with remedial schemes
o Worker’s compensation
Alter remedies
o Caps on damages
Abolish defenses
Change procedural requirements
o Statute of limitations
Definition/overview
Typically this only applies to safety statutes – it is important to look at the intent of the statute
- It is only negligence per se if what occurred is something that the statute is intended to prevent
- However, the statute can be relevant in showing ordinary negligence, if it is not relevant for negligence per se.
Question of breach – it is not a question for the jury
**NEEDS TO BE THE RIGHT TYPE OF RISK – FOR IT TO BE NEGLIGENCE PER SE. PLAINTIFF NEEDS TO BE APART OF THE
PROTECTED CLASS
Criticisms of negligence per se – may be invoked too much; if the issue is controversial/close/hard to decide  should err
against using it so that it can go to a jury trial.
Excused violations:
- Youth or physical incapacity
- Reasonable efforts by defendant to comply
- Excessive vagueness/ambiguity of the statutory standard
- Compliance poses a greater danger than non-compliance.
- Lack of knowledge of need to comply (didn’t know taillight went out while driving)
- Inability to comply (blizzard prevents compliance)
- Emergency (e.g. driving across center line to prevent hitting a child)
- Justified ignorance (minor presents very credible fake ID to get alcohol)
If a plaintiff loses on the negligence per se question, the court must still also undertake the standard/ordinary
negligence test.
Dalal v. City of New York (can’t drive w/o glasses if license says soviolation of statute-negligence per se)
Defendant did not wear his glasses (driver’s license required her to wear corrective lenses) during car accident  negligent
per se because he violated a statute that was intended for safety (statute prohibits the operation of a motor vehicle in
violation of a restriction on the operator’s driver’s license).
- On appeal, plaintiff has to prove cause-in-fact only (that driver should have seen him and would have stopped)
o Even w/ negligence, still have to prove actual causation
o Act is negligent because it violates a statute
- Point of negligence per se is that jury can’t disagree
Bayne v. Todd Shipyards Corp (violation of administrative regulation/ordinance is negligence per se)
Facts: Plaintiff sued for injuries sustained while he was unloading goods at the defendant’s premises, which did not have a
guardrail.
Issue: Is a violation of an applicable administrative safety regulation by a party that had reason to know of such regulation
negligence per se?
Holding and Reasoning:  YES, negligence per se even though the statute is an administrative regulation (ordinance too!).
The plaintiff is a part of the protected class under the statute, even though he was not the defendant’s employee (all
employees count, including contractors).
Victor v. Hedges (NOT negligence per se where the statute was not designed to protect against the event that
caused injury)
Facts: Defendant drove his vehicle onto the sidewalk to show plaintiff something. Another car struck plaintiff while she was
on the sidewalk
Holding and Reasoning:  NOT negligence per se – the statute the defendant violated was intended to protect pedestrians
from vehicle collisions with the illegally parked vehicle, not another vehicle (accident wasn’t the type statute meant to
address)
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Defenses
A defendant can respond not just by showing plaintiff failed to satisfy prima facie case, but also make an affirmative defense.
Contributory Negligence & Comparative Responsibility
Previous Approaches
Contributory Negligence
-
All or Nothing at common law (couldn’t recover if any contributory negligence)
Mainly abolished now – courts now apply comparative fault
Not a defense to intentional torts
If you show that the plaintiff was negligent at all  the plaintiff cannot recover.
ALL OR NOTHING RULE
Doctrine of Last Clear Chance
If the defendant had the last clear chance to prevent the accident  defendant is liable (no defense)
- Just looks at the final slice of time.
Comparative Fault in Action
Rejects the rule that negligence claims must be dismissed upon finding that some carelessness on the part of the claimant
contributed to injury.
- Percentages are typically determined by a jury
 Question is – how should a plaintiff’s carelessness affect her claim?
1. Plaintiff’s fault has no effect – applies to intentional torts
2. Responsibility should be split evenly among all parties whose fault is found to have contributed.
Does not apply to intentional torts.
Different regimes:
-
“Modified” regime is if a plaintiff is found to be more than 50% responsible  barred from negligence recovery
“Pure” regime is if a plaintiff is found to be 99% responsible  can still recover that 1 percent.
United States v. Reliable Transfer Co. (got rid of divided damagescomparative responsibility)
Facts: Plaintiff was found 75% responsible. Defendant was found 25% responsible.
 Due to the settled admiralty rule of divided damages, each party bore one half of the damages to the vessel.
Issue: Should the damages be divided evenly among parties?
Holding and Reasoning: NO – All courts, except the US abandoned the divide damages rule in favor of a rule that apportions
damages on the basis of “degree” of fault (doctrine of proportional fault) comparative responsibility.
A divided damages rule is only acceptable when it is difficult/impossible to fairly allocate degrees of fault. Here, that rule
should not be applied.
Going to court helps the party who is not as responsible – litigating the controversy helps persuade the court to absolve the
minor party from all or part of its responsibility.
Different outcomes under different rules:
- Common law: plaintiff cannot recover because of contributory negligence
- Divided damages: plaintiff recovers 50%
- Pure comparative negligence: plaintiff recovers 25%
- Modified comparative negligence: plaintiff cannot recover – more at fault than the defendant
o If the plaintiff is more at fault than the defendant (over 50%)  cannot recover.
Hunt v. Ohio Dept. of Rehabilitation and Correction (duty to inmate to train how to use snowblower…but
don’t stick your hand in a snowblower)
Facts: Plaintiff carelessly used a snowblower but was also not properly instructed  suffered injury while she stuck her hand
in a chute to clean it.
Issue: Did the defendant breach their duty? Was the plaintiff negligent as well? How does that affect damages?
Holding and Reasoning: Defendant owed plaintiff a duty of reasonable care  duty to warn her of potential risks associated
with the operation of the snow blower, and failed to give her more detailed and hands-on safety training.  YES Defendant
is negligent
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However, the plaintiff is also 40% responsible because she disregarded a potential hazard and failed to use common sense.
- Damages awarded were only 60& of total damages (took 40% off due to plaintiff’s negligence).
o 18,000 = 100% of damages  damages paid to plaintiff = 18,000 – (40%)(18,000) = 10,800.
Aggregate Defendants
If states do aggregate defendants  it is a question of the apportionment of damages
- If joint and several liability, the plaintiff can sue any of the defendants for all and that defendant needs to get
contribution from the other careless defendants
- Now – more likely to be several liability – can only get the percentage of damages allocated to each defendant.
o If a defendant cannot pay  loss is borne by the plaintiff.
If you find a defendant after the judgment is made  the initial judgment is still final (res judicata).
Assumption of Risk
A plaintiff knew about the risk but voluntarily and knowingly encountered the risk, which materialized.
Types:
1. Express assumption of risk
a. Agreement is written and signed by the plaintiff acknowledging the risk.
b. Plaintiff has agreed in advance to waive the right to sue for injury for actions described in the
defendant’s agreement
c. Parallel to the consent defense in intentional torts
d. Almost always a total bar  replaces torts by contracts.
Ways to attack express assumption of risk:
- Terms of exculpatory clause do not cover accident (Dressel)
- Clause was unclear/ambiguous
- Enforcement of the clause against public policy (Dalury)\
2. Implied Assumption of Risk
a. There is no agreement here.
b. It is not necessarily tied to negligence – plaintiff may be barred because she was aware of a discrete,
immediate and significant risk of injury posed to her by carelessness on the part of the other, yet freely
chose to proceed so as to expose herself to that risk.
Express Assumption of Risk
Jones v. Dressel (exculpatory agreement validnonessential services)
Colorado
Summary judgment was granted to the defendant; exculpatory agreement was valid.
Facts: Plaintiff signed a contract with defendant to use recreational skydiving facilities. There was an exemption from liability
in the contract and offered an alternate provision that allowed plaintiff to pay reasonable fees to not release defendant from
liability for negligence. The next year, after the plaintiff turned 18, he suffered serious injuries.  Plaintiff signed his right
away to sue for defendant’s negligence.
3 Plaintiff Arguments/Holding/Reasoning
1. Disaffirmed the contract with Defendant within a reasonable time after he attained his majority
a. Court says that Jones ratified the contract by accepting the benefits when he used the facilities on the day of
the injury.
2. Exculpatory agreement is void as a matter of public policy
a. This was not a contract of adhesion, and there was no disparity in bargaining power. (not take it or leave it)
b. Exculpatory agreement is not void as a matter of public policy.
i. Court cites the Tunkl test.
1.  Not public interest
a. Not an essential service, no decisive advantage in bargaining and not a standard
adhesion contract.
ii. There is no duty to the public, the service is not essential, the contract was fairly entered to, and the
intention of the parties were clear and unambiguous.
c. Not a common carrier here  business of operating a service for the general aviation public.
3. Injuries sustained were beyond the scope of the agreement (injuries sustained were inherent to the activity)
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RULE: Exculpatory provision in a contract for nonessential services relieves the defendant from liability for simple
negligence where the contract was fairly entered into and the intent of the provision was clear and unambiguous. Contracts
involve duties to the public where they relate to the provision of essential services by entities that tend to be regulated. The
services provided by Free Flight were not essential.
Dalury v. S-K-I, Ltd. (exculpatory agreement void in skiing incidentcontrast w/ Jones case)
Vermont
Background/Facts: Plaintiff sustained serious injuries when he collided while skiing with a metal pole. Dalury had
purchased a pass and signed a form that released defendant from liability.
Reverse trial court’s summary judgment  Exculpatory agreement are void as contrary to public policy.
 Court focuses on the public policy question because the release was not ambiguous.
Holding and Reasoning: Defendant’s exculpatory clause is void as against public policy.
Defendant argues that because the service is not essential, they owe no duty. The fact that the defendant opens up the facility
to the public, and many people buy tickets every day  it is in the public interest.
 Duty of business/land owner is to make sure premises are in safe and suitable conditions for its customers/invitees.
 Defendant is the cheapest cost avoider – has the expertise and opportunity to foresee and control hazards and to guard
against negligence and maintain its premises.
MOST RECREATIONAL SPORTS CASES UPHOLD THE WAIVER (NOT AGAINST PUBLIC POLICY)
Implied Assumption of Risk
Smollet v. Skayting Dev. Corp (she knew there was no guard rail and skated anywayassumed the risk)
*Paradigmatic assumption of risk case (indicated she wanted to participate in a risky activity)
Facts: Plaintiff had skated at defendant’s skating rink. She noticed there were no guardrails and defendant told her it was
because they were dangerous as they could collapse. There were several signs that said, “skate at your own risk” and the rink
was elevated higher than the carpeted floor surrounding it. On the last lap, plaintiff tried to avoid a crash, swerved into the
carpeted area, and broke her wrist.
Trial court says plaintiff was 50% at fault  jury verdict for plaintiff, but damages were reduced from 50 to 25 thousand.
Holding and Reasoning: Plaintiff had assumed the risk
Assumption of risk is a limited defense. Here, it is clear that the plaintiff understood the risk and voluntarily chose to enter
the rink  implicitly assumed the risk of injury. She knew that there were no guardrails, the skating rink was elevated and
the areas surrounding the rink were carpeted.
 Reverse, enter judgment for defendant
Dissenting Opinion
- Plaintiff was aware of the hazards, but not necessarily the combination of the hazards.  Combined hazard was not
so obvious that the plaintiff assumed the risk and that the defendant owed no duty to the plaintiff.
Adoption of comparative fault may have completely eliminated implied assumption of risk as a defense; defendants can argue
that the plaintiff was aware of the risk of injury and chose to encounter it; however a plaintiff will not be entitled to a
complete defense. The proof is factored into the allocation of fault. – page 452
Defense may only apply if the plaintiff’s decision to encounter the risk was reasonable (Keegan holding – page 452).
Other Defenses
Sovereign ImmunityDOES NOT APPLY TO CITIES
Statute of Limitations – when the plaintiff can bring suit for the injury; shorter for intentional torts, longer for negligence
Statute of Repose – gives defendants a time after which they can’t be sued; measured by tortious act, not discovery of injury
Immunities
Examples/Types:
Charitable Immunity: Beneficiaries of a charity cannot bring suit  prevents the diversion of resources
- Mostly eliminated since liability insurance introduced
Familial Immunity: You cannot sue another family member (seen as a tricky way to re-allocate money, worried about
exploitation of insurance). There are limited cases in which a kid can sue his parents (distinction varies by state)
- Has also been eroded, but still some limits to what parents can be sued for
Governmental/Sovereign Immunity
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Governmental Immunity
Background Rule:
Government cannot be sued
- At common law, municipalities (cities) not protected by the immunity because they were not tied to the king.
Riley v. US (exercise of discretion by gov’t agency is shielded by sovereign immunity)
Facts: Mailboxes obscured view of traffic; a pickup truck hit plaintiff’s vehicle, causing injuriesUSPS decided to put the
mailbox there (their discretion)
Issue: Can plaintiff sue government for negligently placing/maintaining mailboxes?
Holding and Reasoning: NO LIABILITY; immune from suit for discretionary decisions
Under FTCA, government can be liable for certain torts, but exceptions include:
1) Conduct is a discretionary decision
2) Judgment is the kind of discretionary decision that the exception was designed to shield
Policy consideration: separation of powers; judges should not be second guessing discretionary policy decisions
- Government has to make trade-offs in decisions (budget constraints, benefits/burdens, etc.)
- Acknowledges limited resources of government; can’t just go out of business like a corporation
Discretionary vs. Ministerial/Mandatory distinction
- Discretionary: government cannot be sued for mistakes made by employee’s own discretion
- Mandatory: if employee has a statutory mandate but doesn’t comply, government CAN be sued
- ***the firmer the mandate, the more likely employee to deviate; incentivizes government to allow discretion?
- Justification: insulates certain decisions so they can’t be changed by judicial intervention (separation of powers)
o Court can judge if a mandate was violated, but standard must come from legislature
NOTE: US can only be sued with its consent.
Riss v. City of NY (police not liable for failing to protect lady from stalker)
Facts: Plaintiff was terrorized by a stalker for 6 months, but the police repeatedly tried to help her. One day – she was injured
by the stalker.
Issue: Should liability be imposed of a municipality for failure to provide special protection to a member of the public who
was repeatedly threatened and eventually injured?
Holding and Reasoning: NO LIABILITY – public duty rule negates the duty element.
A municipality has a general duty to protect the public, not a specific person
It is not in the court’s power to increase the scope of liability; to do so would be unpredictable and a way to unfairly dictate
the allocation of police resources.
- A police department’s responsibility to provide protection is limited by its resources, and the proper allocation of
those resources is a legislative-executive decision. A court imposing tort liability here would not only limitlessly
increase the city’s potential liability, but also would effectively amount to a judicial determination of where public
funds should be allocated.
It is up to the legislature to increase the scope of liability. “To foist a presumed cure for these problems by judicial
innovation…would be foolhardy.” It is hard to know in advance what a credible threat is.
Dismissal affirmed.
Dissent: If plaintiff went to a private citizen, asked for help and the private citizen accepted  if plaintiff had still suffered
injuries, the court would require the private citizen to pay damages.  It should be no different for the city/police.
Dissent fears that the “public duty” rule is really just “sovereign immunity” in disguise  need to draw limitations but ones
where liability should be imposed if public protection is negligent/fails to do its job.
Strauss v. Belle Realty (can’t allow suit for lack of electricity b/c then millions could sue)
Facts: Old man fell down stairs during blackout caused by Consolidated Edison. The power company had a contractual
agreement with the tenant in regard to the tenant’s space and a contractual agreement with the landlord as to the common
areas. Strauss also sued Realty Company for failing to maintain the stairs he fell on.
Issue: Did Consolidated Edison owe Strauss (not their customer) duty of care?
Holding and Reasoning: No. Because millions of people were affected by Consolidated Edison’s gross negligence, liability for
injuries sustained in the common areas of buildings should be limited to those with a contractual relationship with the
company, as a matter of public policy. Further, their negligence was not reckless and wanton; it was just gross negligence.
Courts must fix an orbit of duty that limits liability to manageable levels (want to prevent defendant from crushing liability),
even where this may exclude parties who would ordinarily have been able to recover under traditional tort
principlesdifferent result in Moch Co. v. Rensselaer Water Co. (their conduct was reckless and wanton
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Property Torts
Trespass
Trespass to land involves a certain kind of interference with rights conferred under the terms of property law
- Involves a tangible invasion by an actor of property possessed by another, whether by the actor herself, or by persons,
animals, mechanized devices or natural or artificial substances for which the actor is responsible.
To make out a prima facie case – only relevant question is whether the actor set out to make contact with the land in question,
and whether the actor did in fact make such contact.
- Intentional
o Intent to touch land
- Strict Liability
o Do not need to know it is another person’s land
o There does not need to be an intent to invade.
Elements of the Prima Facie Case
1.
2.
3.
4.
5.
Act by defendant
a. Volitional movement by defendant that results in an intrusion onto another’s land.
Intent
a. Intend to do the act that causes
Intrusion upon land
Plaintiff possession or entitled to immediate possession
Causation
Trespass and Necessity
Ploof v. Putnam – decided two years before Vincent – opposite holding of Vincent
The owner of the island untied the boat, which was damaged when it ran aground. There, the court held that the boat owner
was not liable for the trespass under the circumstances, but the island’s owner was required to pay for the damage to the boat.
By analogy, it seems clear that had the boat remained tied to the dock, the boat owner would have been forced to compensate
the island owner for any damage done to the dock. Necessity applies with special force to the preservation of human life. One
assaulted and in peril of his life may run through the land of another to escape from his assailant. One may sacrifice the
personal property of another to save his life or the lives of his fellows.
Burns Philp v. Cavalea (fence caseyou don’t need to be made aware that you trespassed to be sued)
Facts: Burns and Cavalea purchased adjacent portions of industrial real estate. B/c of error in property records, Burns paid
property taxes on land owned by Cavalea for several years. Burns told Cavalea of the mistake and Cavalea refused to pay.
Burns sued for restitution. Cavalea filed a counterclaim, alleging that Burns had erected a fence that trespassed on their
property (accidental), even though he never told Burns that the fence was on his property. The surveying job was poorly done,
and the fence gave Burns 2,000 square feet of Cavalea’s land. Cavalea had been aware of the trespass for some period of time
before filing the counterclaim and they took down the fence the following year.
Issue: Does a trespass claim require that the claimant first give notice to the trespasser?
Holding and Reasoning (Easterbrook): NO. Trespass is a strict liability tort and an obligation to notify the intruder is
inconsistent with the idea of strict liability. Not a case where Cavalea actually or effectively consented to the trespass.
Vincent v. Lake Erie Transp. Co. (if you mess up someone’s property out of necessity, still have to pay)
Facts: Defendant tied his boat to the plaintiff’s dock during a violent storm (boat was in danger), which caused damage to the
dock.
- Tangible invasion = tighter mooring after the storm started
- If defendant’s ship were not tied, it would have drifted to sea.
Issue: Is Defendant, acting under the privilege of private necessity, liable for damages incurred to Plaintiff’s property?
Holding and Reasoning: Even though the mooring was arguably necessary, the defendant is still liable. If you act deliberately
to protect your property, even if your actions are entirely reasonable under the circumstances, you will be liable to another
property owner for damages that result.
STRICT LIABILITY – gives incentives for dock owners to help. (If the dock owner is liable  may close off the dock)
- You do not try to maximize the societal benefit
- Limit = causation
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This is not a case where life or property was menaced by any object or thing belonging to Plaintiff, the destruction of which
became necessary to prevent the threatened disaster. Nor is it a case where, because of the act of God, the infliction of the
injury was beyond the control of Defendant. In this case, Defendant prudently availed itself of Plaintiff’s property for the
purpose of preserving its own more valuable property. Plaintiff is entitled to compensation for the damage done to the dock.
Sturges v. Bridgman (can’t build loud shit next to neighbor, even plaintiff moved closer to that loud shit)
Facts: Confectioner was deemed a nuisance even though plaintiff came to the nuisance by building a sitting room near
confectioner’s business.
Issue: May a property’s occupant state a claim for nuisance where the character of the nuisance arose only after the claimant
validly altered the use of his property? Came to the nuisance = contributory negligence? Is nuisance a trespass?
Holding and Reasoning: YES. A manufacturer’s decision to locate in a residential versus an industrial area may influence
whether the neighbors have a justifiable claim of nuisance. NO – those who impose industrial nuisance should buy enough
property so that others’ land is not affected
- Otherwise gives industry the right to devalue the land of others
Abnormally Dangerous Activities
Modern Strict Liability
Ultrahazardous (Abnormally Dangerous) Activities
Strict liability for ultra-hazardous activities requires
- Foreseeable that there is a
- Highly significant risk of physical harm: and the activity must
- Not be of common usage; and be dangerous even if
Reasonable care is used
Rylands v. Fletcher (strict liabilitycan’t use land in non-natural/dangerous way if it damages others’ land)
Facts: Rylands built a reservoir on his property, which was adjacent to the land Fletcher worked on. The reservoir was
constructed “without reasonable care and caution” and thus flooded the mines of the neighbor. The initial judgment was for
the defendants, but was reversed.
Issue: Was the use of Defendant’s land unreasonable and was he liable for damages caused to Plaintiff?
Holding and Reasoning: Yes--Where the owner of land, without willfulness or negligence, uses his land in the ordinary
manner of its use, though mischief should thereby be occasioned to his neighbor, he will not be liable in damages. But if he
brings upon his land any thing which would not naturally come upon it, and which is in itself dangerous, and may become
mischievous if not kept under proper control, though in so doing he may act without personal willfulness or negligence, he will
be liable in damages for any mischief thereby occasioned. When you bring something onto your property – you assume the
risk.
 Unfair for you to get the benefits and for others to bear the costs. However, some plaintiff’s business or pleasure is too
vulnerablethey should have to bear the cost
Rylands could not sue the contractors because of the privity bar.
Natural vs. Non Natural Uses:
- Defendant would not be liable, according to Lord Cairns, if the water accumulated “naturally.” (similar to
inevitability?)
- Defendant is liable if the use is “non-natural.”
Klein v. Pyrodyne Corp. (fireworks are abnormally dangerous and operator is strictly liable)
Issue: Is a fireworks show something that falls into the category of “abnormally dangerous”?
 Should fault be determined based on fault or should it be strict?
6 Factor Test in determining whether an activity is “abnormally dangerous”
(If abnormally dangerous  strict liability) (A-C are liked the Learned Hand Formula (BPL) – A = probability, B = degree of
harm, C = a risk that cannot be decreased without abandoning the activity – where it differs)
A. Existence of a high degree of risk of some harm to the person, land or chattel of others
a. Present. Rocket/shell can malfunction or be misdirected.
B. Likelihood that the harm that results will be great
a. Present. Lots of regulations prove that there is a high risk of serious injury and that it is very dangerous.
C. Inability to eliminate the risk by exercise of reasonable care
a. Present. Risks are inherent – reasonable care cannot eliminate the risk.
D. Extent to which the activity is not a matter of common usage
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a. Present. Not many people have the ability/license to set off fireworks.
b. Dissent disagrees. Lots of people attend fireworks displays
E. Inappropriateness of the activity to the place where it is carried on; and
a. Not present. A fairground is an appropriate place.
F. Extent to which its value to the community is outweighed by its dangerous attributes
a. Not Present – value of fireworks on the 4th of July outweighs the risk of injuries and damage.
b. IF it is not valuable, but dangerous  you do not engage in the activity
i. Not the case with fireworks
 YES. Strict liability – not all factors need to be present, but several of them have to. The opinion also draws similarities to
the use of dynamite also is subject to strict liability
Where do you put the insurance pressure?
- You should put it on the defendants because they are the cheapest cost avoider
- Ways to get the plaintiffs to help/spread the cost:
o Charge an admission fee
o Ask the town to reimburse
o Medical insurance.
Calabresi v. Posner Discussion**
Calabresi introduced the argument of the “cheapest cost avoider.”
- Economics in law professor
- General Deterrence v. Specific Deterrence
o Generic: allocate costs to the activity – people decide whether to pay the cost
 Government assigns the cost
o Specific: Government makes a decision that certain people should not engage in the activity
 Example: Licensing, prohibition, criminal sanctions.
3 kinds of costs that torts should try to reduce:
1. Primary Accident Costs
a. Captured in the Learned Hand Formula (BPL)
b. Cost of the accident
c. Cost of avoiding the accident
2. Secondary Accident Costs
a. Can be minimized if spread
b. Should be spread across people over time
i. Example: insurance costs
3. Tertiary Costs
a. Costs of administering the adopted system
i. Torts = very expensive!
Posner makes the argument for negligence law
- Courts can decide what should not be done and assign the costs
o  The government should not impose sanctions if I did something good
- Worried that strict liability would over deter people because they are too worried about the cost.
- Posner likes the BPL formula – establishes the law of negligence is primarily concerned with the maximization of
aggregate social wealth by encouraging actors to take only cost-efficient precautions. – Page 208
o In McCarty v. Pheasant Run – “Unreasonable conduct is merely the failure to take precautions that would
generate greater benefits in avoiding accidents than the precautions would cost.”
Calabresi response –
- Negligence is more expensive, because you have to do more of a case-by-case analysis
- With strict liability – you can just decide if an activity falls into the category
- Negligence does not provide enough incentives for people to act effectively
o  Calabresi says the market should decide. The courts should not decide after the fact.
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Products Liability
Introduction
Product liability is now at the center of modern tort law; it is for those to cover for injuries caused by “defective” products. It is
a controversial area of tort law.
Before – there were two approaches:
- One could sue under negligence
- One could sue under contract/warranty
Today – suits today for product-related injuries are almost always grounded in a separate body of law called “strict products
liability.”
 Own principles of responsibility, distinct from the law of negligence and warranty but incorporates a combination of
different tort theories. (Page 888)
Section 402A of the Second Restatement of Torts.
Controversial area – there are differing opinions on whether or not a victim should have to prove fault.
- Questions of strict liability? Should fault be a threshold for liability?
Intro Cases:
Escola v. Coca Cola Bottling Co. of Fresno (manufacturing defect of coke bottleliable)
Facts: Plaintiff was injured from a Coca Cola bottle exploding in her hand.
Issue: Whether a manufacturer may be held absolutely liable for placing an article on the market, when he knows the article is
to be used without inspection, if the article causes injury to human beings.
Holding and Reasoning: Majority said that plaintiff could use Res Ipsa Loquitur  the defect could not have occurred
without the defendant’s carelessness. If an injury-causing instrumentality is under the exclusive control of the defendant, and
the instrumentality causes injury of the type that would not normally occur without negligence, absolute liability for the
defendant may be presumed a bottle typically will not explode without excessive pressure. Excessive pressure typically does
not occur without negligence in the pressurizing phase
 TRAYNOR (Concurrence) – indicates a manufacturer’s negligence should no longer be singled out as a basis for the right to
recover
- Manufacturer is responsible if there are no inspections further down the line before distribution
- Must prove bottle was defective when left the defendant’s possession
- Uses MacPherson language to say that manufacturer always responsible
- Considers primary, secondary, and tertiary costs
- No privity required
 STRICT LIABILITY for products on the market that proves to have a defect, irrespective of the privity of contract
Henningsen case
Contract’s disclaimer of liability for personal injuries was void as against public policy
- Changes in the market with mass marketing and manufacturers becoming remote means privity of contract should
not matter when assigning liability
- Implied warranty “runs with” a product – passes through an immediate seller.
- The one who should bear the losses is the one who can control the dangerCHEAPEST COST AVOIDER
Modern Warranty Law:
The implied warranty of merchantability is a promise that goods are safe and fit for ordinary use.
Greenman v. Yuba Power Prods., Inc. (design defect caseliable if plaintiff is injured using product the way it
was meant to be usedofficial adoption of SPL)
Facts: Plaintiff was injured using a Shopsmith combination power tool; the alleged defects were the screws.
 Strict product liability - From the evidence, it can be shown (1) that the manufacturer placed a product on the market; (2)
knowing that it is to be used without inspection for defects; (3) that proved to have a defect and (4) that caused an injury. To
establish liability, it is sufficient that Plaintiff was injured while using the Shopsmith in a way it was intended to be used, as a
result of a defect in design and manufacture.
- Traynor indicates that using the alternatives (Res Ipsa Loquitur and warranty law) is circuitous  SPL is more
straightforward
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-
“Public policy demands the manufacturer to be held responsible even if not at fault.” (in Escola’s dissent, but Traynor
wrote the majority in Greenman)
o Manufacturer = cheapest cost avoider – consumer is relatively powerless and needs protections
 Best position to decrease primary accident costs – Calabresi argument.
o Manufacturers create expectations in consumers that the product will be safe.
o Manufacturers will have more incentive to create a safer product if they know they are liable.
o Cost spreading – can increase the cost
 If people do not want to buy at a higher price  indication that the risk does not outweigh the utility
o Decreases tertiary costs (cost of manufacturing the system)
o Strict liability as opposed to warranty
- Have to prove:
o Manufacturer placed product on market
o Product was used for intended purposes
o Manufacturer knew it would be used w/o further inspection for defects before distribution
o Plaintiff unaware (not an obvious defect)
This case was used to justify the Restatement of Torts §402A, which said:
o Sellers are generally liable for physical injuries to persons or property without the need to prove fault.
o Privity rules are abolished.
o Strict liability is enforced.
o The consumer's reasonable expectations defined what counts as a "defective product."
NOT absolute liability  still need to prove that the injury was caused from a product defect (not just any injury while using
product).
Defects substitute for DUTY and BREACH.
Basics of a Products Liability Claim
Prima Facie Case:
Actor A is subject to liability to person P in products liability if:
1. P has suffered an injury
2. A sold a product (does not include prescription drugs or vaccines)
3. A is a commercial seller of such products
4. At the time it was sold by A, the product was in defective condition, and
5. The defect functioned as the actual and proximate cause of P’s injury
From negligence – imports injury and causation element
There is no duty or breach element but there are 3 new elements: (2) sale of the product; (3) by a seller; (4) in a defective
condition.
Bystanders are also protected under SPL.
SPL is NOT absolute liability (there must be a defect) b/c others also have information such that they can become CCA (ie,
waitress that dropped coke bottle)
Restatement (2nd) section 402A:
1. One who sells defective product dangerous to consumer or property is liable for physical harm to ultimate user or his
property, if:
a. Seller engaged in business of selling product
b. Expected to and does reach user w/o substantial alterations in its condition
2. The rule applies although:
a. Seller exercised all possible care (not negligence-based)
b. User has not bought product from or entered into contract w/ manufacturer (not warranty/privity based)
*Everyone in chain can be a defendant: retailer, manufacturer, and distributor
- Does not apply to service providers
o E.g. can’t sue hair salon for bad service, but can if you buy product and use at home
Restatement (3rd): more pro-manufacturer, requires plaintiff to show alternate reasonable design
Seller – who qualifies
Products liability extends further than manufacturers; retailers may be liable as well. Distributors are part of the chain and are
subject to products liability law.
Sellers may be subject to strict liability even though they play no role in the design, manufacture or inspection of the product.
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- Truly “strict liability” because the seller often has little or no direct control over product quality
Buyers and users of the products can sue the sellers.  being the buyer of the product is not required.
- Bystanders can possibly also sue  more vulnerable because they have no choice in the purchasing/use of a product
o Privity of contract does not matter.
A seller must “be in the business of selling or marketing such products” not just someone who puts shit on EBay
Selling – if an actor took steps to place the product on the market or figured into some distributional chain that put the product
on the market.
Type of Defects
Strict in the sense of focusing on the condition of the product at the time of the sale, rather than focusing on the prudence with
which the seller acted.
 NOT absolute liability. Injury has to be caused by the defect, not just by the product.
Definition of defect is at the center of this branch of tort law.
Manufacturing Defect:
-
Diverges from the manufacturers own specifications for the product
o Escola case – flawed Coca Cola bottle
Does not need to be mass-produced to be a product with a manufacturing defect
Design Defect:
-
Inhere in an entire line of products
There is a flaw in the plan or specification of the product.
o Can be small, technical or essential.
o Greenman – set screws were two small to hold certain items in the pool
Issue as to what criteria to use is controversial and hotly debated.
o Most common factors:
 How ordinary consumers would expect the product to function
 Is there a feasible, safer and affordable alternative design
o Hard to turn into a legal, operative test.
 Risk utility or consumer expectation?
Failure to Warn or Instruct
-
Distinct category of product defect
Product has to be sold with a warning or with a label.
o If mislabeled or there is no warning  defective
o Example: medication. Microwave that fails to warn that heating metal objects can cause a fire.
Omission in language.
Overview Case
Plaintiffs typically have a lot of causes of action (negligence, implied warranty, express warranty, misrepresentation, etc.) 
diversify the causes of action so she is in the best position possible
Gower v. Savage Arms, Inc. (manufacturing and design defect claims about messed up gun)
Facts: Plaintiff was injured when he shot himself in the foot but thought the gun was in the “safe” position.
Manufacturing defect claim – metal ridge impaired function and movement
- Can go forward because the plaintiff’s rifle had a metal ridge that other products didn’t have – easier to prove.
Design defect claims – (1) detect defect and (2) unloading defect
- Unloading defect claim is dismissed.
o No causation
- Detect defect
o Plaintiff says the product could have been made in a more user-friendly way. Court says there needs to be
more information on both sides – Daubert rule (need good expert witness)
Failure to Warn
- Dismissed
- When the product left the manufacturer, there was a warning
- Plaintiff knew the Ten Commandments of Firearm Safety  disproves causation.
RULE: A manufacturer is subject to strict products liability where the plaintiff shows that the product was defective at the time
it left the manufacturer’s hands and that such defect caused injury to the plaintiff.
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Design Defect
Evaluates the choices of the designers in creating a product.
- How easy or difficult should it be for plaintiffs to recover on a claim that a manufacturer has designed and produced a
line of products with features that pose excessive risks of physical injury to product users?
o A product does not meet external standards  should the product be designed differently?
Two Tests
-
Risk Utility (dominant approach)
o Accepted in the third restatement
 To limit SPL
o What defendant lawyers want.
- Consumer Expectations
o Pro-Plaintiff
A plaintiff can win under either approach
Risk Utility Test
Chow v. Reckitt & Colman, Inc. (lye is dangerous no matter whatutility does not outweigh dangerBUT plaintiff
has to show product can be designed to be safer)
Facts: Plaintiff used lye to clean a clogged drain. He “learned by example,” and poured too much into a drain and suffered
injuries from a splash back. The directions had indicated serious injury was possible and one should wear protective eyewear
and not pour lye directly into the drain.
 Defendant cannot just rely on the product being inherently dangerous to escape liability; defendant must also demonstrate
the product is reasonably safe for its intended use and pass the risk utility test
- RISK UTILITY TEST: DOES THE UTILITY OF THE PRODUCT OUTWEIGH ITS INHERENT DANGER?
- Court uses the Wade factors that are similar to the Learned Hand Approach
o Factors are used to deal with complex situations where rules may not be the best approach. Factors give the
judges/juries flexibility and leeway.
WADE FACTORS:
1. The product’s utility to the public as a whole
2. Its utility to the individual user
3. The likelihood that the product will cause injury
a. Considers the availability of a substitute – now 3rd restatement belies the availability of the alternative design
should be part of the plaintiff’s prima facie case.
4. The availability of a safer design
a. Considers the availability of a substitute – now 3rd restatement belies the availability of the alternative design
should be part of the plaintiff’s prima facie case.
5. The possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably
priced
6. The degree of awareness of the product’s potential danger that can reasonably be attributed to the injured user
a. Focus on the consumer
7. The manufacturer’s ability to spread the cost of any safety-related design changes
a. Options here: have consumers pay more for a more dangerous product?
b. Have the manufacturer pay the cost of necessary precautions.
Wade: would a reasonable person who knew of the dangers still have marketed the product?
Risk Utility v. Negligence
Hindsight or Foresight?
- Should the factors be applied at the time the product went on the market or at the time of the trial?
o If at the time the product went on the market  hindsight
 More like negligence
o If at the time of the trial  foresight
 What the restatement adopts.
Burden of Proof
- In SPL, defendant bears the proof of reasonableness
- If there is a 50/50 split  the plaintiff wins.
Reasonable alternative design?
- Plaintiff has to come up with it.
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o
o
Now required by the third restatement – if not present  dismissed because the case does not go to the jury
Requires an expert.
TODAY – most states use the Risk-Utility test and require an alternative/safe design
- Burden is placed onto the plaintiff
- Foresight approach
- Some states offer the consumer expectations test as an alternative
o Example: for ordinary, simple products
o This is because consumer lobbies are not as organized as manufacturers  do not push back  explains the
increase in the Risk-Utility test.
Consumer Expectations Test
Alternative test to the risk-utility test: Consumer Expectations Test
- A product is defective in design if aspects of its design render it more dangerous than an ordinary consumer with
ordinary knowledge would expect it to be.
o Compare the product to a prototype in the mind of an ordinary consumer
Two scenarios in which the consumer expectation test is an obstacle to recovery (otherwise – very pro-plaintiff)
1. Product is of a kind which consumers lack familiarity
2. Product should have been designed more safely, even though the product’s danger was relatively obvious, and hence
not more dangerous than ordinary consumers would expect.
Problems with CET: expectations change over time; consumers expect perfection (unfair: some risks worth taking)
Juries often determine the expectations; a plaintiff can use an expert but does not need to.
Jackson v. GM Corp (consumers expect (and should expect) seatbelts to restrain them)
Facts: Plaintiff sustained injuries when his face slammed into a steering wheel during a low speed collision. The alleged defect
was the seatbelt (shoulder harness and lap belt)
Issue: Under Tennessee law, may a plaintiff in a products-liability action establish that a seatbelt was unreasonably dangerous
through application of the consumer-expectation test?
Holding and Reasoning: Yes. It is Jackson’s burden to create a question of fact as to whether the seatbelt was more dangerous
than would be contemplated by an ordinary consumer with ordinary, common knowledge.
 People expect that a shoulder harness should restrain you.
 Jury determined the plaintiff could use the consumer-expectations theory
- Warranty based? Seems to be a question of what the manufacturer represents to the consumer.
- Seatbelts are “familiar products” about which consumers had an “opportunity to develop expectations.”
- One response to consumer expectations argument is to inform public of risks (e.g. medical side effects)
***Neither test applies Calabresi idea of allocating costs of risks to manufacturer so they can build cost into product
- If product is then priced out of the market, suggests that the utility DID NOT outweigh the risk
Branham v. Ford Motor Co. (risk utility test ok when there is something technical about product/defect)
Facts: Cheryl Hale purchased used 1987 Ford Bronco II 4×2. Hale was driving with her child in the passenger seat and Plaintiff
Jesse Branham, III (“Plaintiff”) in the backseat. No one was wearing a seatbelt. Hale veered toward the shoulder of the road and
the right wheel left the roadway. She responded by overcorrecting to the left. The overcorrection led to the vehicle rolling
over, and Plaintiff was thrown from the vehicle and injured.
Opinion is very pro-defendant; the dissent however is correct regarding the admissibility of the evidence.
- Should have been allowed b/c corroborates evidence that car was in fact more dangerous than normal, which they
knew BEFORE marketing the car (actually pertains to foresight, not hindsight)
- If later studies showed a danger no one was aware of, would be hindsight issue
Alleged defect was stability issues, the suspension system which negatively affected the car’s center of gravity.
Court used the Risk-Utility Test due to tech nature of product, RUT appropriate
- Plaintiff meets this burden probably with demonstrating the MacPherson suspension system is a reasonable
alternative design
o Increases the handling and stability
o Lowers the center of gravity
o Maintains the designed sport utility features
o Would not have increased costs very much
- Court had adopted the restatement view  with the third restatement; the legislature is probably fine with the Courts
moving to the risk utility test.
o Better due to objective factors and focus on the product, rather than the consumer.
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RULE: (Risk-Utility Test): Numerous factors must be considered when determining whether a product is unreasonably
dangerous, including: (1) the usefulness and desirability of the product, (2) the cost involved for added safety, (3) the
likelihood and potential seriousness of injury, and (4) the obviousness of danger. 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 by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission
of the alternative design renders the product not reasonably safe.
Standards of Defectiveness for Prescription Drugs
Prescription drugs – important but dangerous products and we do not want to drive manufacturers out of production.
Decision in Brown v. Superior Court:
- Very pro-defendant
- “A plaintiff alleging injuries caused by use of a prescription drug, sold by the seller with adequate warnings of health
risks that are posted by the drug’s use and of which the seller knew or should have known at the time of the sale may
not invoke either the consumer expectations test or risk utility test to impose liability on the seller.”
-  Forced plaintiffs to proceed on theories of manufacturing defect, negligence, warranty, misrepresentations and
failure to warn.
- Rationale for the rule: if strictly liable  dis-incentivizes research programs for fear of large adverse monetary
judgments. (Worried about the cost of insurance)
Freeman v. Hoffman-La Roche, Inc. (Accutane is dangerous, court rejects blanket immunity)
Facts: Plaintiff was prescribed Accutane and suffered multiple health problems. The drug was designed as an acne medication,
but had much more serious side effects.
Design Defect Claim: Plaintiff alleges that Accutane was not fit for its intended purpose, the risks outweighed the benefit and
it was more dangerous than anticipated due to undisclosed side effects.
(Defendant could argue that the utility outweighed the risk – the probability of a serious complication is low and the medicine
helps the majority of people)
 Court adopts the Second restatement 402A, comment K
- Differs from the previous McDaniel case which adopted a blanket immunity rule  Overrules McDaniel
- Court decides to have the courts decide on a case-by-case basis.
o Uses the risk utility test with the burden of proving the various risk utility factors on the defendant.
o To satisfy the defendant must show the product was safe with adequate warnings, its benefits justified the
risks, and the product was the safest it could be at the time of manufacturing and distribution.
o Allows the consumer/plaintiff to use the consumer expectations test.
- Court does not adopt the 3rd restatement approach section 6, which imports a reasonable physician standard (learned
intermediary rule) in which strict liability for a design defect should apply; applies 2nd restatement instead
o “No basis in the case law.”
o Too artificial to apply, not flexible, could be easily defeated by the defendant – does not protect the plaintiff
enough?
o Very pro-defendant – just has to find one group who needs it.  goes too far?
Holding: YES theory of recovery based on a design defect. Standard SPL rules will apply; drug manufacturers then can have
affirmative defense that it’s in public interest to take risk of making/distributing drug.
Court adopts a case-by-case basis analysis: does comment k apply to the case at hand?
The learned intermediary doctrine
A prescription drug or medical device is not reasonably safe due to inadequate instructions or warnings if reasonable
instructions or warnings regarding foreseeable risks of harm are not provided to:
 Prescribing and other health-care providers who are in a position to reduce the risks of harm in accordance with the
instructions or warnings; or
 The patient when the manufacturer knows or has reason to know that health-care providers will not be in a position
to reduce the risks of harm in accordance with the instructions or warnings
HOWEVER
 MacDonald v. Ortho Pharmaceutical Corp. (manufacturer owes a duty to warn the consumer directly of health
risks associated with use of contraceptive)
 Perez v. Wyeth Labs (when a drug manufacturer advertises directly to patients, it can incur liability for failing to
include adequate warnings of health risks in the advertising itself)
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Failure to Warn or Instruct
Failure to warn asserts that a product is defective because it should have been delivered in a more informational way to
consumers
- Does not talk the manufacturing of the product
Calabresi’s argument concerning the cheapest cost avoider is not looked at in failure to warn cases
- Argues that sometimes a warning may mean a manufacturer is liable
o Depends on if the plaintiff can do anything about it
 Example: plaintiff is the cheapest cost avoider if she knows she is pregnant and decides to take a
medicine she is not supposed to
o If the plaintiff can’t identify herself as someone who is risk prone and is forced to take the risk  the
manufacturer is the cheapest cost avoider (can improve the product)
- Rationale: Plaintiff should know what she is getting herself in to.
 How would Calabresi think about FTW cases?
o In general
 Risks of accidents should be reflected in price; let market decide.
 Manufacturers shouldn’t make product risk-free; just market them at price that reflects price of accidents
 Who is the cheaper cost avoider?
 Sometimes manufacturer (better info, easier access to info, no collective action problems; no psych
obstacles to acting in purely economically rational ways), and sometimes consumer
o But some consumers won’t be able to pay for their bad/risky choice; public will cover this somehow,
either in higher cost of product, health care, or welfare
o If injury specific to certain portion of population, warning is enough; consumer (CCA) should do rest
 e.g., Accutane’s injury to children in utero
 Here, mother is CCA b/c she can know more easily than manufacturer if she is pregnant
o But, in cases where certain number/percent of people are going to get sick and they
can’t do anything about it, then there should be an informed consent standard,
because the person must choose to run the risk
 BUT, manufacturer still in better position to do research and fix the drug
o As regards Anderson and asbestos
 CET
 Obviously a no-go, because no one knew (consumer didn’t have expectations)
 RUT
 D cannot be liable for failure to warn: state of the art not yet developed (D had no way to know of danger)
o However, if failure to warn is really SL, then we shouldn’t care about state of the art
 Shows negligence is really influencing the situation
 We are judging conduct, not product, even though from a SL/Calabresi perspective, makes
more sense to keep it true SL and put cost on manufacturer
 Better cost spreading
 Manufacturer can find defects easier that are shown over time
 Cheaper admin costs: state of the art lit (and fault based lit in general) is very expensive
o All of this shows failure to warn is STILL ABOUT SANCTIONING WRONG BEHAVIOR
o Failure to warn under the CET and RUT
 Sometimes easier for P to use CET, and sometimes RUT

e.g., motorcycle leg guards (lack of guards makes CET void, since
Which Risks Require Warning?
Anderson v. Owens-Corning Fiberglass Corp. (can’t warn about what you don’t knowstate of the art)
Facts: Asbestos case where plaintiff suffered from lung ailments. Defendant wanted to introduce state of the art evidence.
Issue: Can a defendant in a products liability action based upon an alleged failure to warn of a risk of harm present evidence of
the state of the art – evidence that the particular risk was neither known nor knowable by the application of scientific
knowledge at the time of manufacture and/or distribution?
Holding and Reasoning: YES – can introduce state of the art evidence – relevant for the failure to warn claim and if the court
had used the R-U test for design defect.
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California indicates that knowledge or know-ability is a component of strict liability for failure to warn; otherwise,
liability would turn into absolute liability.
- It is impossible to warn of something that one does not know about.  Forces the manufacturer to be the role of
the insurer beyond any reasonable application.
- If a warning automatically precluded liability, a manufacturer would just produce overly broad yet useless warnings.
Difference between negligence and strict liability:
- Negligence: requires a plaintiff to prove that a manufacturer did not warn of a particular risk for reasons which fell
below the standard of care
- Strict liability: requires a plaintiff to prove only that the defendant did not adequately warn of a particular risk that
was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge
available at the time of manufacture/distribution.
o A defendant’s reasonableness does not matter.
- One can be liable under strict liability, but not under negligence.
RULE: A manufacturer must have knowledge of a potential risk or danger inherent in its product before strict liability can be
imposed for failure to warn
Notes and Questions
-
Obvious dangers – not actionable
Warnings do not substitute for the need for a reasonably safe design.
Proliferation of warnings may give consumers too many choices  consumers become dismissive and ignore the
warnings.
Adequacy of the warning matters (placement/prominence, precautions that should be taken, etc.)
Arguably, a defective warning leads to a defective product.
If there is a fair warning and something goes wrong, the consumer cannot use the CE test, but rather has to use the RU
test.
o If there is a fair warning – the burden is put on the user to do something safe.
o Adequacy of the warning is for the jury
Proving Actual Causation in a Failure to Warn Case
Even if warnings are given, they are sometimes not read  failure to warn claims pose issues of causation
Learned Intermediary Doctrine
-
To whom should the warning be given?
o For ordinary products – goes to the consumer
o For prescription drugs – goes to the prescribing physician/medical professional.
o Exceptions are made today due to increasing direct-to-consumer advertising
Motus v. Pfizer Inc. (have to prove warning would have changed doctor’s behavior)
Facts: Widow of patient who committed suicide while taking antidepressant medication sued manufacturer of medication,
alleging that manufacturer failed to warn of alleged suicide risk associated with medication.
Defendant concedes they did not have adequate warning, but this issue centers on the question of causation.
Issue: To prove that a prescription drug’s inadequate warning caused injury under California law, must the plaintiff show that
an adequate warning would have caused the prescribing doctor to treat the patient differently?
Holding and Reasoning: Yes. Under California law, a prescription drug manufacturer’s duty to warn runs to the prescribing
physician, not the patient. Plaintiff could not show that an adequate warning by Pfizer would have altered Trostler’s conduct.
Defendant is entitled to summary judgment. California does not adopt the rebuttable/heeding presumption.
Here – plaintiff does not provide sufficient evidence to show proximate causation
- Plaintiff’s lawyer asked the wrong question – did not ask if the adequate warning would have changed the
doctor’s decision
o Demonstrates even the plaintiff’s lawyer doubted the causation argument.
- He would NOT have acted differently if Pfizer provided an adequate warning
- There is no evidence that the risk of suicide was so high that it would have affected the Doctor’s decision
Notes and Questions
Actual causation in these cases raises the question of whether someone would have selected a different course of action with
different/greater information provided.
- Heeding and rebuttable presumptions are devices to ease the burden of the plaintiff
o But courts are not as receptive to this because of fears of increasing products liability.
Heeding presumption – Comment J of Section 402A = authority
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If a plaintiff establishes the manufacturer provided inadequate warnings, the burden shifts to the defendant to show
than an adequate warning would not have affected the doctor’s conduct. If the defendant fails  presumption satisfies
the plaintiff’s burden in proving proximate cause
Corollary to the learned intermediary doctrine – eases burden on the plaintiff.
Way to easily allocate costs to the defendant.
Affirmative Defenses to Product Liability Claims
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Plaintiff contributed:
o Comparative Fault
o Assumption of Risk
o Misuse must be very dramatic misuse
Statutes of Limitation
Regulatory compliance
Preemption
Tort Law and the Administrative State: Preemption
Supremacy clause of Article VI of the constitution – federal states preempt conflicting state laws.
- Extends to tort law; state tort law that would impose liability could be preempted by federal law on that issue at hand
only
Express Preemption
- Congress includes within a regulatory statute a clause or provisions that specifically declares that the statute is
intended to preempt the operation of conflicting state law
Implied Preemption
- Conflict or Impossibility Preemption
o Particular federal law/regulation is so directly opposed to a state law that the two bodies of law
simultaneously authorize and prohibit the same conduct
o Federal law says do X; state law says don’t do X.
- Frustration of Purpose or Obstacle Preemption
o If the application of a state tort law to a particular activity would interfere substantially with the attainment
of the objectives of purposes of a federal regulatory scheme.
o Geier case.
- Exclusive federal control
o Congress gives to a domain of activity the power for federal law to occupy the field exclusively
Wyeth v. Levine (not impossible to comply w/ state and federal law when state law is stricterno preemption)
Political decision – made during the Bush administration, which protected businesses.
Facts: Patient was given Phenergan (to treat nausea) through the IV-push method and the injection was in a high-risk area by
a physician’s assistant. The medicine entered Levine’s artery and she developed gangrene, forcing the doctors to amputate her
forearm.
- IV Push was a method that was suppose to be the last resort
- Wyeth had consulted with the FDA and adjusted his warnings multiple times over a few decades.
Issue: Whether the FDA’s approvals provide Wyeth with a complete defense to Levin’s tort claims. Whether the FDA’s drug
labeling judgments preempt state law product liability claims premised on the theory that different labeling judgments were
necessary to make drugs reasonably safe for use.
Holding and Reasoning: Majority looks to the purpose of congress and assumes that the historic police powers of the state
were not to be superseded by a federal act unless that was the clear and manifest purpose of congress.
- State law is only invalidated if there is a direct and positive conflict
- Congress did not have an express preemption clause concerning prescription drugs.
- Manufacturers are responsible for updating their labels, not the FDA.
State law will be preempted if it is impossible to comply with the state law and applicable federal law, or if the state law is in
some way an obstacle to achieving Congress’s intent evident in a federal law. In the current case, neither situation applies.
Thus the court holds that state tort law products liability claims for failure to warn are not preempted by the FDA regulations
including the FDCA.
Plaintiff argument 1: It would have been impossibly to comply with the state-law duty to modify the labeling without
violating federal law
- FDA regulation is not needed if one strengthens the warning; one can make the labeling chance upon filing an
application.
- A strengthened warning would not have rendered a new drug or misbranded the drug.
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With the increased risk of gangrene apparent, Wyeth has a duty to provide a warning that adequately describes the
risk, before FDA approval.
- There is no evidence that indicates the increased label would not have complied with both federal and state law.
o NOT IMPOSSIBLE to comply with both
Plaintiff argument 2: Recognition of Levine’s state tort action creates an unacceptable “obstacle to the accomplishment and
execution of the pull purposes and objectives of Congress.”
- Congress enacted the FDCA to bolster consumer protection
o It did not provide a federal remedy  believed the states were sufficient for relief.
- Wyeth looks to the Preamble but this is not persuasive to the court
o Court believes it does not “merit deference” and is contrary to the legislative history and Congress’s purpose
concerning the FDA and FDCA.
 FDA regarded state law as complementary to drug regulation
 State tort suits uncover unknown hazards and provide incentives to the manufacturer to disclose
safety risks.
  An added layer of consumer protection
 Judgment of the Vermont Supreme Court = Affirmed.
Dissenting: The question should be whether the FDA or the Vermont jury should have the authority and responsibility in
determining the adequacy of the warnings.
 Dissent believes it should be the FDA; they have a long history of success and have researched whether drugs are safe and
effective and have mandated labeling.
- A state jury does not have the knowledge to fulfill the role of the FDA.
- The FDA requires a long process for a manufacturer to be able to distribute the product on the market
o Applications, manufacture investigation and periodic reporting of adverse events  center of risk
management = labeling.
o Labels must be sufficient and adequate – warn of purpose, side effects, how to deal with those effects, etc.
- FDA = Expert Opinion/Judgment that is needed.
Here – Wyeth’s label had a lot of warnings regarding the risks of IV Push
- Injury thus seems to be due to carelessness of the physician’s assistant.
Pliva, Inc. v. Mensing (can’t be sued for not following state laws if you follow federal laws)
Facts: Plaintiff’s used a generic form of Metoclopramide for longer than the recommended period. They suffered from tardive
dyskinesia, a disease that was on the warning label and a known side effect. The generic drug’s label was approved by the FDA
because it was the same as a brand-named product, Reglan.
With the Hatch-Waxman Amendment, generic drugs’ labels had to be the exact same as the brand name drugs’. The only way
the generic drug could change its label is if:
- The brand name drug changed it and received FDA approval
- If the generic or brand name manufacturer discovered a risk that should be revealed/on the label and informs the
FDA.
- Traditional changes-being effected (CBE) process does not apply.
Issue: Can generic drug makers be sued for not warning about potentially dangerous side effects on their drug labels even
when they follow federal rules that only require their labels to match those of their brand-name equivalents?
Holding and Reasoning: NO – there is conflict preemption
- Defendant could only have changed his label if it proposed to the FDA that a stronger warning was needed; this does
not mean that it would have met the state tort law requirement of a “safer label.”
- It is conceivable for the FDA to approve the label but it still fall short of the state’s expectations.
o Federal law only dictates the generic drug and brand name drug have the same label; it does not dictate what
should be said.
o  If it is possible to comply with both federal and state law, but it is also impossible to not comply  court
says preemption.
- Court recognizes it is unfortunate for the determination of whether a plaintiff can recover on whether the pharmacist
gave her a brand name drug or generic drug.
Dissent: NO preemption
- Believes the majority goes too far indicating that a possibility of non-compliance means there is preemption
o Mere possibility of impossibility is not enough to satisfy preemption.
- Whether one recovers should not be determined on what drug (generic or brand name) the pharmacist gave.
- Manufacturers should have to bear the loss
o Increased profit from increased market share
o Best position to know the risks and insure against them.
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For health and safety – states have regulated it traditionally and the Congress has not expressly preempted state-law
tort actions.
o Amendment of the FDCA was to preserve state law.
Impossibility preemption defense should be very hard to get
o Burden is on the defendant to show that impossibility.
 Existence of a hypothetical or potential conflict is insufficient
Policy argument: creates a distinction regarding compensation/recovery based on what type of drug
o May threaten to reduce consumer demand for generics, which is the counterproductive to the goals of the
Hatch-Waxman Amendment, if generic drug consumers cannot recover.
Generic Drugs – not subject to tort failure to warn cases. Rationale: large part of the market.
Criticism: hard for a plaintiff to control what drugs he/she receives.
POLICY
Calabresi: If everyone has perfect knowledge and equal bargaining power (no trans costs), negotiating easy; entitlement will
go to most efficient use. Tort rules should be set up to promote most efficiency in real world (injunctions that allow D to
continue conduct if pay P $X in damages replicate bargain parties would have entered into)
The Costs of Accidents: Intro’d econ principles to tort law. Should consider 3 costs:
Primary: costs of injuries and cost of avoiding injury (Hand)
Secondary: extra expense of having cost fall all at once; minimized by spreading loss over time/people
Tertiary: costs of administering systems (lawyers, insurance co, experts)
Costs may cut diff ways. If just deterring people from being inefficient, doesn’t matter if use negligence or SL (only a
distribution diff; in SL, D pays; in negligence, P pays); shouldn’t affect how many accidents we’ll have if everyone has perfect
information.
SL not always right choice or easy to swallow, but from econ efficiency standpoint, same as negligence.
Criticisms: not feasible to integrate legal categories to achieve goal of primary/secondary/tertiary accident cost reduction;
unrealistic to expect economics to act as general deterrence for primary accident costs; trying to reduce all three costs will
likely require legislation, not just judicial creativity.
Posner criticism of Calabresi: framework oversimplified (though good for law profs with no econ background); thinks
Calabresi dislikes negligence b/c considers duty of care, proximate cause, etc., which are not econ terms; makes faulty
assumption that tort litigation is inherently bilateral; just a theory, doesn’t offer concrete practical alternatives to negligence
scheme (i.e., posits negligence actors should have to pay “tort fines,” thus a negligence pedestrian who is run down would be
compensated but would also have to pay a fine  no private tort liability); assumes compensation will reduce incentives of
potential accident victims to take care to avoid becoming victims (i.e., treats potentially victims as fully economically rational);
neglects real world.
Social norms may be best deterrence (more than sanctions)  “order without law”
Merits of negligence versus strict liability
o The argument for negligence: SL will discourage people from using their productive energy to take risks, since they will be
scared that they will liable for anything that they do, and this will hurt the economy, etc.
o The argument for SL is the reciprocal: SL says it is the only way to encourage people to go out in the world without fear.
Otherwise, every time you drive a car, you could be hit by someone and not be compensated (bc they happened not to be
negligent (Hammontree)), and this will scare people into staying indoors and not partaking in economy, etc.
 SL also argues that is more efficient system, since doesn’t need judges, juries, and lawyers to help determine negligence.
More cut and dry  reduces transaction costs associated w/transfer of damages from one party to another.
 Further, SL argues legal system often errs. Society’s knowledge that it errs encourages reckless behavior, since people
reason they might not be sued (or lose a lawsuit) anyway, even if they cause harm in a way that is negligent.
Logue on negligence vs. SL:
“Under a negligence rule, the injurer is let off the hook completely for any harm she causes if she can show that she
was not negligent, that she behaved reasonably, that she took what the doctrine calls “due care.” 17 And if we assume that the
court defines the due care standard at the efficient level (that is, that courts get the negligence analysis right, from an efficiency
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perspective), then the negligence rule, backed up by a sufficiently large sanction, will induce potential injurers to behave
efficiently in terms of care levels. This is because potential injurers can avoid any responsibility for whatever harm they might
cause if they act reasonably. Due care, in a sense, is a sort of universal safe harbor for avoiding tort liability… This is why, in the
theoretical deterrence literature on torts, a negligence rule is thought to optimize potential injurers' ex ante “care levels” …
induces potential injurers to take all cost-justified steps to avoid, or minimize the risk of, harm to third parties.
While negligence can optimize potential injurers' care levels, it also tends to produce excessive potential injurer
activity levels. With most risky activities, there will always be some residual (not-cost-justifiably-avoidable) risk of harm, even
if the potential injurer makes all optimal investments in care. Under a negligence regime, in other words, this risk of
unpreventable harms is externalized to the third-party victim, causing an efficiency problem. Hence, if a product manufacturer
satisfies the risk-benefit product-defect test, it can safely ignore the possibility of harms caused by its products. The resulting
excessive injurer activity levels is, again, a sort of negative externality.
Another drawback of negligence is the amount of information that it requires of courts. To do the analysis properly,
the court must have an enormous amount of data, considerably more than is required to do strict liability. To apply a strict
liability rule, the court need only determine the amount of the harm actually caused to the victim by the injurer. To apply the
negligence standard, by contrast, the court must not only do the causation and damages analysis, but must also have
information about the cost of the precaution to the injurer, as well as information about the precise effect of the safety
investments on the expected harm to third parties. And if the precaution reduces the benefit of the activity itself to the
potential injurer, that fact has to be taken into account as well, as part of the cost of precaution. This is a lot of information to
expect a court to acquire and process accurately.
Despite the relative simplicity of the strict liability analysis, it is sometimes said that negligence may have lower
administrative costs than strict liability, for two different reasons. First, under a negligence standard, it is true that each case
may be relatively costly to administer (because of the higher information burden associated with the BPL analysis); but a
negligence standard should also produce fewer actual trials than strict liability, as any cases involving clear compliance with
the negligence standard (clear absence of fault on the part of the injurer) will not be brought at all. Under the strict liability
standard, by contrast, the injured victim need not show fault and therefore will have an incentive to bring a suit whenever he
believes he can demonstrate that the injurer caused his harm (and when the likely damage award exceeds the victim's costs of
litigation). Thus, the question is whether the higher-administrative-cost-per-case effect of negligence is overwhelmed by the
larger-number-of-cases effect of strict liability.”
Policy reasons for SPL
- Market has changed; consumer has little information the manufacturer has a lot
- Manufacturers have created the expectation that products are safe
- Manufacturer is cheapest cost avoider
- Better compliance, since manufacturers know that they will be liable
- Manufacturer is better at spreading of secondary costs
o If product gets too expensive it will just mean that it is not worth its utility
- Lower tertiary costs
o Since there is no cost associated with finding fault
Policy reasons against SPL
- Products become so expensive that the poor cannot afford it
- Law patronizing the consumer and saying that he cannot appreciate the danger
o e.g., kids pajamas
Purposes of torts
- Corrective justice and civil redress – provides cause of action to remedy harms. Wrongful or unjust gains/losses should
be rectified, eliminated, or annulled. Restore moral balance.
- Optimal deterrence (efficient behavior) – Calabresi law and economics approach. Minimize cost of accidents
(number/severity; societal costs; admin costs), and consider loss-spreading.
o Loss spreading: was the party able to evaluate the risk and protect against the loss?
- Compensation to victims (insurance scheme)
- Redress for social grievances
- Sanctions (duties created by courts) – Holmes reasonable conduct approach; morality moot point
Defects inherent in torts system
- High cost of litigation
- Slow pace of tort actions
- Tendency to either over- or under-compensate
- Increased costs that potentially affect market (Calabresi)
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Unpredictability of jury decisions
Difficulty of evaluating professional’s conduct (in med mal cases)
Lay people tend to think of tort law as rewarding people who claim to be victims (McDonald’s coffee case), rather than
as encouraging responsibility for the harms people’s actions inflict on others
Alternatives to torts system
- Victim compensation funds (9/11, Virginia Tech, punitive damages); worker’s comp
- No-fault insurance
- Mandatory strict liability (i.e., special vaccine defects courts; technically still treated in tort)
Punitive damages
Constitutional limits on punitive damages: Ds have the right not to have money taken w/out due process. Argument: not
enough restraints on how punitive damages are determined. Need to better constrain state tort law (gov’t-approved
punishment). Phillip-Morris v. Williams: unconstitutional to take into accounts victims other than P when determining PDs.
PDs extraordinarily rare; possibility of being held over and over for PD’s is v. fanciful.
PDs are a way to keep companies from saying “not many people will sue; OK to take risk, we can afford some comp/lit”
SCOTUS: ratio between comp damages and PDs shouldn’t be more than 10. It is appropriate when talking about PD’s to talk
about wealth of D, because the damages need to be effective as to that particular D.
Sometimes PDs will go to a victim comp fund to award Ps who didn’t have capital/ability to bring suit (Calabresi likes this)
Calabresi on PDs: “Punitive damages can ensure that a wrongdoer bears all the costs of its actions, and is thus appropriately
deterred from causing harm, in those categories of cases in which compensatory damages alone result in systematic
underassessment of costs, and hence in systematic under deterrence … Additional (punitive) damages may be an appropriate
way of making the injurer bear all the costs associated with his activities.”
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