Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Unit 1 – Causation in Fact Twentieth Century Tort Theory (3 theories of tort law) – John Goldberg (1) Compensation and Deterrence - Because courts have power to order defendant to pay damages, courts can, in principle, deter the defendant and other similar actors from engaging in conduct that they deem undesirable - Courts in turn have the ability to compensate at least some of the injured persons - Tort law is meant to accomplish only two things: deterrence and compensation (2) Enterprise Liability Theory and “Loss Distribution” - Existing tort law is supremely ill-designed for delivering relief to accident victims - Tort law takes three forms: i. Injuries resulting from predictable but unpreventable lapses accompanying large scale, repetitive conduct ii. Claims by persons lacking the means to cover out of pocket costs and lost wages iii. Defendant with the ability to spread looses through liability insurance or self insurance - Replace tort law with first and third party insurance schemes - More recently they advocate for mass tort claims that allow the deliverance of retail justice Ability to collect whereby costs of repetitive litigation are eliminated. No need to individualize issues like causation Settlements as opposed to awards to “make whole” (3) Corrective Justice o Libertarian Theory Links torts to concepts of property and ownership A person exercises absolute domain over himself The actor owns the loss (injury created) and must as a matter of justice make good on it by compensating the victim o Reciprocity Theory (Fletcher) Two distinct situations which harmful conduct can arise: 1. Individuals with the “community of activity” generate roughly comparable risks of harm to one another 2. The conduct of one party poses a risk of harm unilaterally on other inactive parties Case (1) traditional common law should rule (negligence in determining fault) Case (2) fault is never relevant use strict liability o Corrective Justice Theory Tort law is aimed at restoring an equilibrium that is distributed by the tortfessor’s conduct 1 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Tort law corrects the equilibrium by ordering the full value of the loss to be transferred to the responsible party via a damage payment to the value of the loss 2 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 New York Central R.R. Facts: - Angel Grimstad drowned after he fell off a barge he was working on. He could not swim. His wife, Alfrida Grimstad attempted to save him using a long rope. However, by the time she retrieved the rope from the cabin, Angel had already gone under. Alfrida sues NY Central RR for wrongful death because there were no life buoys or safety equipment on board that she feels could have saved her husband. Issue: - Was NY Central RR negligent and if so did this cause / lead to Angel Grimstad’s death? Ruling: - NY Central RR was negligent in not providing safety equipment but this negligence did not lead to Angel Grimstad’s death Reasoning: - There is no evidence to show that had there been a life-preserver or other safety equipment on the barge that Angel Grimstad would have been saved. o This is a very stringent approach to cause in fact How to determine causation - “But For” test of cause in fact o If the defendant had not been negligent, plaintiff would not have been injured o Did the negligent act set in motion the event causing injury - Preponderance of evidence – more likely then not o Evidence in favor of causation must “outweigh” evidence against causation o Likelihood of causation must Exceed 50% - Cause in fact is a separate matter that needs to be proven in order to connect negligence to injury o Negligent defendant is innocent if negligence did not cause the injury o To disprove causation you stretch out the chain of events to show how the negligence could not be linked to the injury Alberts v. Schultz (New Mexico: 1999) Facts: - Alberts sued two doctors for negligence related to the amputation of the plaintiff’s leg. Alberts condition grew worse and doctors did not perform certain tests that would have show the extent of his injury and in finding the extent of the injury may have saved his leg Arguments: - Defendant: Even if there was no negligence the leg would have still been amputated. Expert testimony could not prove that had the defendents performed the proper tests that the leg would have been saved. - Plaintiff: Cannot prove that the negligence caused the injury so instead argues that the negligence led to a lost chance for a better result Holding: - Plaintiff cannot show to a reasonable degree of medical probability that the proper tests would have prevented amputation. Therefore, there was no proof of a lost 3 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 chance. Cannot prove that there was a window of opportunity during which measures if taken could have prevented the amputation Comments: - Plaintiff could have argued that negligence prevented the necessary evidence from being presented because the tests were not performed and thus he cannot show whether there was a window of time in which measure if taken would have prevented amputation. Loss of Chance Theory – deterrence factor requires doctors to do their job in order to increase the chance of preventing harm - seems to say that if the chance of averting harm is less then 50% had there not been any negligence, then proportional liability cannot be used Lost Chance Example #1 - Likelihood of averting harm was 30% but due to negligence it was 0% o Sue for the 30% loss of chance of averting harm Lost Chance Example #2 - Likelihood of averting harm was 30% but due to negligence it was 20% o Sue for the 10% loss of chance of averting harm o Cts. need to determine if 10% is too small to be significant o There needs to be an injury for their to be a claim Lost Chance Example #3 - Likelihood of averting harm was 51% but due to negligence it was below 50% o Sue for the 100% loss because it was more likely then not that had there been no negligence there would have been no harm o This is not a lost chance claim 4 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Multiple Causes: Fire Hypothetical Example #1 A Negligently Starts Fire - P’s House Destroyed Single Causation “But for” test: But for negligence of A, P’s house would not have been destroyed Example #2 A Negligently Starts Fire P’s House Destroyed B Negligently Starts Fire - Multiple Causation: Both A’s and B’s negligence alone could not have destroyed house Plaintiff does not use “but for” test Plaintiff uses Substantial Factor Test Plaintiff must prove that A’s and B’s negligence was a substantial factor in the injury Example #3 - A Negligently Starts Fire P’s House Destroyed B Negligently Starts Fire P’s Garage Destroyed If you can separate the damages then it is not a multiple causation case and each defendant is responsible for their own damages 5 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Example #4 A Negligently Starts Fire A’s Fire destroys P’s house B’s fire passes over the rubble B Negligently Starts Fire - Substantial Factor Test” Does B get off free? Yes, there was no injury for B to inflict Need injury to have negligence Example #5 A Negligently Starts Fire P’s House Destroyed Fire Started by lightening - Substantial Factor Test A is responsible for all the damages Summers v. Tice (California: 1948) Facts: - Two hunters negligently shoot in the direction of a third hunter using identical guns and identical bird shot - The third hunter is shot in the eye by one of the other two hunters o he cannot prove which hunter actually caused his injuries - One hunter caused this action (50% chance that either of them did it) o cannot prove on a preponderance of evidence that either did it Holding: - Both hunters are jointly held liable for the plaintiff’s injuries Reasoning: - Ruling is based on the theory of alternative liability 6 Downloaded From OutlineDepot.com - Engel_Torts_Fall2013 o The plaintiff need not prove with particularity the identity of the injuring party in order to recover. In the absence of rebuttal, the defendants are held liable collectively. o Burden of proof shifts to defendants to prove they did not cause the harm Ct. should not allow defendants to blame each other and in turn keep injured party from collecting any damages Allowed plaintiff to win without proving causation o This is more likely to be allowed in cases of firearms due to policy (Wex Malone Article 18-36) Why did the court use this theory of tort law? - The court new that both (all) possible causes of the injury where in the courtroom. This guarantees that the right person is punished even if it means an innocent person is punished as well o Often the court cannot find all possible defendants - The defendant often has better evidence then plaintiff which justifies shifting the burden of proof to the defendant to prove they did not cause the injury - Wex Malone: careless use of firearms led court to loosen restrictions (policy) Hymowitz v. Eli Lilly & Co. (New York: 1989) Facts: - 300 manufactures produced DES over a 24 year period - Plaintiffs can prove negligence and injury as DES causes a “signature disease” - Plaintiffs cannot prove who exactly caused harm o Plaintiff’s did not know which manufacturer was producing their DES and pharmacists often gave different manufactures to different clients each time o Number of defendants and passage of time compound the problem of identifying the manufacturer who actually caused the individual plaintiff’s injury Holding: - All manufacturers are held liable for each plaintiff’s injury even if they did not necessarily inflict the harm Reasoning: - Market Share Liability – the percentage of the national market the each defendant owned becomes the percentage they owe o market share becomes a way to estimate the percentage of causation o some plaintiffs may not collect 100% of damages because not all the manufactures (not all of market share) was sued several liability but not joint liability o Even if a manufacturer can prove they did not cause a specific plaintiff’s injury they remain liable. This was a trade off essentially as there is no exculpation rule and no joint liability Causation Problem in Hymowitz - Why not use alternative liability (summers v. tice)? o You don’t know, like you did in Summers, if the guilty party was in the courtroom Some manufacturers are out of business or were not identified 7 Downloaded From OutlineDepot.com - Engel_Torts_Fall2013 o The percentage in Summers was 50% while the percentage in this case is extremely small How many defendants makes the percentage too small? o In Summers each defendant created an equal amount of risk but in Hymowitz each defendant created a different amount of risk depending on their market share Why not throw out the case? (why find a new theory of tort law?) o The legislature had acted to revive these claims after the statute of limitations prevented claims from being made. Court felt obligated to do something o This is a new issue (DES) so it allows a new way of dealing with it o The plaintiffs didn’t do anything wrong in waiting to make these claims It took time for injuries to become apparent o All defendants acted in parallel to produce an exactly identical product and all caused an identical unique disease Should not force the plaintiff to bear the burden The Challenge to the Individual Causation Requirement in Mass Products Torts By: Donald Gifford I. Instrumentalists (Calabresi and Posner) - Calabresi – particular victim does not need to identify a particular injurer in order to recover damages. The goal of tort law is to reduce “the costs of accidents” Subgoals of tort law: 1. any accident compensation system should “discourage activities that are “accident prone” and substitute safer activities as well as safer ways of engaging in the same activities 2. distribute the costs of accidents in a manner that inflicts “less pain” than if the accident costs were borne solely by the original victim a. distribute the losses resulting from an accident broadly across many people 3. “deep pocket” notion – the costs of accidents will cause less pain and disutility if paid for by people who will suffer less “social and economic dislocation as a result of bearing them” - Posner - Concludes that manufacturers that may have produced the product responsible for the harm of any particular victim, even when the particular manufacturer who produced the particular product causing the victim’s harm cannot be identified, should be held jointly and severally liable without a right of contribution against other manufacturers because “joint liability under a negligence standard creates incentives for both potential injurers to take due care.” II. Corrective Justice Weinrib - Particular plaintiff sues a particular defendant - Liability requires that a plaintiff have a right and that the defendant act in a breach of duty 8 Downloaded From OutlineDepot.com - Engel_Torts_Fall2013 i. Protecting Rights (Aristotle and Kant) Bipolar relationship that “locks the plaintiff and the defendant together” Coleman (different then Weinrib) - Wrongdoing is defined not by reference to Aristotle or Kant but by the violation of an appropriate social norm or convention - Tort liability enhances the liberal conception of society by providing stability - Coleman nevertheless sanctions liability without proof of individual causation Supports it as a form of social insurance or an alternative compensation system in which manufacturers who have imposed the risk are assessed for the damages - However, overall corrective justice does not give victims of diseases resulting fro exposure to harmful products a remedy Gifford’s Conclusion: a major extension of the Sindell / Hymowitz approach to other types of mass product or toxic exposure cases “seems more like a taxation and welfare function to be handled by the legislature and administrative bodies then it does a judicial function Why Gifford’s Conclusion does not work: The legislative function cannot anticipate all problems / issues of risk and injury. The legislature is not a forward thinking system. It is up to tort cases to bring these issues to the public’s attention Legislature can deter but not award damages Example – Ford Pinto cases – Ford followed every rule and regulation and it was not until Ford was sued that the government changed these regulations Liability of Multiple and Indeterminate Manufactures A. Market Share Liability – used in DES case (Hymowitz) - Each defendant will be held liable for the proportion of the judgment represented by its share of that Markey unless it demonstrates that it could not have made the product which caused plaintiff’s injury B. Concurrent Causation Resulting in Invisible Harm – used in asbestos cases - Plaintiff’s do not need to prove what manufacturer caused what problems - Defendants are not expected to prove the scientifically unknown - All defendants are held jointly liable for the entire injury even if there own product only caused a portion of the injury C. Alternative Liability – used in Summers v. Tice Case - The plaintiff need not prove with particularity the identity of the injuring in order to recover, in the absence of rebuttal, the defendants are held liable collectively - Most likely wont work in mass torts cases (seems to only work with a few negligent parties Judge Weinstein: this theory is unobjectable - prove general causation 9 Downloaded From OutlineDepot.com - Engel_Torts_Fall2013 must be a rational method for determining the percentage of total harm D. Enterprise or Industry – Wide Liability - If industry works together and this leads to negligence then the entire industry is held liable (almost universally rejected) E. Civil Conspiracy and Concert of Action – used in tobacco cases - Allows victim to overcome the requirement of industrial causation only in instances where it can be proven that there was an agreement to engage in tortuous conduct Robinson argues about market share liability - tort law has advanced to a point were multiple defendants can be sued “as long as liability is proportionate to the risks created by the defendant. Example: Workers gets cancer: - worked 20 years as asbestos installer - worked 10 years in chemical plant exposing him to chemicals - took drug for 10 years known to cause cancer Break up liability 60 / 20 / 20 Ruminations on Cause-In-Fact by: Wex Malone - policy may often be a factor when the issue of cause in fact is presented sharply for decision much as it is when questions of proximate cause are before the court - “But For” Test: judge / jury are often unable to determine what they would do had they been in the same case. Thus they make an estimate concerning facts that concededly never existed o This inherently opens the doors for conjecture o When conjecture is demanded it can be given a direction that is consistent with the policy considerations that underline the controversy - Judges’ power over the issue: o Judges enjoy extensive power to dismiss a claim, send it to the jury, or reject jury’s decision all on the idea of causation o Policy factors may determine a judge’s choices in a case - Substantial Factor Test o Must be evidence that the force set into motion by defendant was “a substantial factor” in bringing about the damages before the causal issue will be submitted to the jury o The opportunity for a free play of judgment afforded by an unrestricted use of the substantial factory formula enables the trier to adjust the required size of the defendants’ contribution to various policy factors which may appropriately affect the outcome 10 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Unit 2 – Negligence Emergence of the Negligence Standard (A Conventional Historical Account) Pre-1800 19th Early Century If Defendant injured Plaintiff then he was liable do not look at act must only prove causal connection do not need to prove the defendant acted wrongfully in causing injury (careful reasonable non-negligent person is still held liable) Mid 19th Century Late 19th & Early 20th Centuries Probable Strict Liability Trespass vi et armis Trespass on the case (Direct Injuries) (Indirect Injuries) Strict Liability Negligence Brown v. Kendall (and similar decisions in other states) NEGLIGENCE Strict Liability ??? This change begins to change because of the industrial revolution - concern that strict liability would put enormous costs on big industry and limit their growth - industry would be liable for some but not for all injuries - Courts see an influx of tort cases in which injury costs are too high under strict liability - Want to provide a subsidy for growing industry - It was difficult to determine direct v. indirect injury and thus a common theory would be easier Hypothetical: 1830 – Defendant cuts a branch that was hanging dangerously over the road - Branch falls onto a carriage passing by (Indirect Injury) - Branch falls onto a person standing under the tree (Direct Injury) 11 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Brown v. Kendall (1850) Facts: - Defendant’s dog and plaintiff’s dog were fighting - Kendall (D) tries to hit dogs with a stick to separate the dogs and accidentally strikes Brown (P) in the eye causing serious injury - In pre-1850 law this would be considered a direct injury and thus strict liability Holding: - A new trial is ordered in which Shaw’s new test of negligence will be used Reasoning: - Shaw (Judge) creates a new framework to analyze torts o Two ways to analyze (creates a single standard for analyzing tort law) Was this an intentional tort? If no, was the Defendant negligent? o Plaintiff cannot recover if: P and D were both using ordinary care D is but P is not using ordinary care P & D are both not using ordinary care - Ordinary Care – kind and degree of care which prudent and cautious men would use, such as required by the demands of the case, and such as is necessary to guard against probable danger The Common Law by Oliver Wendell Holmes - Holmes’ view on circumstances in which the state shall shift costs of injury from the injured to the injuree o State intervention is an evil o Status quo: injured persons pay their own injury costs (only state interference can change this) - Negligence is a natural rule and anything else is ridiculous - State should only interfere when the defendant is morally wrong in causing injury o Defendant must have had the ability to act in a way which would have prevented the harm yet defendant still chose not to - If both defendant and plaintiff are morally innocent then the injury costs should be paid by the plaintiff o It is bad public policy to burden active elements of society with costs of injury unless the active person is morally wrong Codling v. Paglia (Ct. of Appeals NY: 1973) - Do not use Negligence in product liability cases because the user cannot be expected to know all the risks of a product and it is therefore up to the manufacturer to make sure the product is free of risks o Deterrence to manufacturers from making unsafe products o Enterprise Wide Liability argument - If manufacturer of product injurers someone, the manufacturer is liable regardless if there is negligence or not o Strict liability if the product defect was a substantial factor in bringing about the injuries; provided: At the time of the occurrence the product is being used for the purpose and in the manner normally intended 12 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 If the person injured is the user of the product he would not by the exercise of reasonable care have both discovered the defect and perceived its danger That by the exercise of reasonable care the person injured or damaged would not otherwise have averted his injury or damages Adams v. Bullock (Ct. of Appeals NY: 1919) Facts: - Child was walking under a bridge which ran under elevated trolley line - Child was swinging an 8 ft. wire while walking on bridge - The wire hit the electric wires causing the child to be shocked and burned - Trial court rules that the trolley company was negligent in not protecting trolley wires and thus is liable for injuries Issue: - Was trolley company negligent in not covering trolley wires? Holding: - There was no negligence (Cardoza reverses trial court decision) Reasoning: - There is no evidence that defendant ignored the duty of reasonable care - Trolley wires were placed so that no one standing on bridge or even trying to reach the wires would be able to - Harm was not foreseeable: nothing like this had happened before o Nothing warned defendant that special precaution was needed and it was impossible for defendant to imagine this incident occurring United States v. Carroll Towing Facts: - Harbormaster and a deckhand aboard the Carroll readjusted the dock lines of the Anne C - The Anne C is owned by the Connors - Anne C subsequently breaks away from the dock because of harbormaster and deckhand’s negligence - Anne C crashes into another boat and sinks - Connors sue to recover the value of the barge - US sues to recover the value of the goods lost on the barge - Defendant Carroll sought to reduce damages based on fact that there was not a bargee aboard the Anne C when the barge broke free - Trial Ct. found no negligence on the part of the Anne C bargee Holding: - Bargee is negligent for not being on barge during the working hours of daylight - Case is reversed and remanded for reconsideration Reasoning: - Judge Hand uses the Hand formula o P varies depending on time Ct. finds that P increases during busy times NY harbor was very busy during the day o Cannot expect bargee to be onboard at all times however in this case the bargee was absent for 21 hours without an excuse This is beyond what would be reasonably expected of a bargee 13 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 14 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Hand Formula: In a negligence case, the judge (or jury) should attempt to measure three things to determine negligence: 1. Magnitude of the loss if an accident occurs (L) 2. Probability of the accident occurring in % (P) 3. Burden of taking precautions that would need to be taken to avert harm (B) if B > PL then Defendant is not liable if B < PL then Defendant is liable - If the product of the first two terms exceeds the burden of precautions, the failure to take precautions results in negligence Posner feels this is a very good formula in determining negligence - Put this formula in terms of economics o (risk benefit analysis / profit maximization) - If cost of preventing the accident (i.e. installing safety equipment) is more then what is paid in a judgment a rational profit maximization enterprise will pay the judgment before trying to prevent it Against the Hand formula: it is a radical simplification because things get left out: - Social value of the defendant’s actions o A life saving drug with life saving benefits… - No moral culpability (Holmes) in determining fault Lord Reid: the burden of preventing the harm is irrelevant. The only thing you need to know is the probability of injury if it is too risky then do not do it Bethel v. NYC Transit Authority Facts: - Plaintiff was injured when the wheelchair accessible seat collapsed under him - Plaintiff argues defendant did not take reasonable care in making sure passenger was safe o Seat was inspected but the problem was not found o Common carrier theory – common carriers have a duty to use the highest degree of care that human prudence and foresight This is a higher standard then the average reasonable person Holding: - Court reverses decision and sends case back to trial Reasoning: - Common carrier should be subject to the same duty of care as any other potential tortfeasor o Common carrier is no longer viable o This theory was better suited in the past when safety features were primitive technological advances and government regulation have made common carriers as safe as private modes of transportation 15 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Reasonable Person Test – do not ask about capabilities / qualities of defendant. Ask if defendant’s actions were different from that of a reasonable person in the community Holmes: you should not ask if defendant is able to be morally culpable (mental ability) Exceptions examples - Brain surgeon causes injury during surgery but argues that he performed as well as the average person in the community o If you have special skills then the community becomes those with the specific skill set - Ex: if you are blind you cannot be held liable for what you cannot see o Reasonable blind person not a reasonable person Are physical disabilities treated different then mental disabilities? - §283B – unless the actor is a child his insanity or other mental deficiency does not relive the actor from liability for conduct which does not conform to the standard of a reasonable man under the circumstances - §283C – if the actor is ill or otherwise physically disabled, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like disability Children are held to a lower standard unless they are engaged in adult activity (driving) at which point they are held to an adult standard Emergency Doctrine – a person confronting an emergency not of his or her making, “is required to exhibit only an honest exercise of judgment - The purpose of the rule was that a “person confronted with a sudden and unforeseeable occurrence, because of the shortness of time in which to react, should not be held to the same standard of care as someone confronted with a foreseeable occurrence 16 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Baltimore & Ohio Railroad Co. v. Goodman (Sup. Ct.: 1927) Facts: - Goodman was driving a truck at about 10-12 mph - He could not see past section house which obscured his view down the track - Goodman slows down to about 5-6 mph - Goodman crosses the track and is struck and killed by train Procedural History: - Jury in trial court finds for Goodman Reasoning (Holmes): - If the driver is considered negligent he collects nothing o Determining if driver is negligent or not is delivered the same way as if the defendant is negligent in a tort - Reasonable person would stop and get out of his vehicle o If he does rely on not hearing the train he does so at his own risk o This is a reversal of the jury trial - Holmes believed that the trial judge should have never let the decision to go to the jury Why did Holmes take this away from the jury? - This case dealt with standard of conduct and when the standard is clear it should be laid down once and for all by the courts o When standard of conduct (i.e. RR crossing) the judge should not send the case to trial because a standard from past rulings has been established Done for considering “Judges get it right all the time” Under what circumstances could someone driving across a RR crossing case collect? - Never o Holmes has put the entire burden on the plaintiff Get out and look, see the train and still cross: negligence Get out and look, don’t see the train and still cross: negligence because they couldn’t see well enough - Holmes tries to standardize conduct so people will know the standards of negligence for a given situation o Why is this true? Situations are always different This hurts deterrence factor because people don’t know standards so they don’t know what not to do 17 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Pakora v. Wabash Facts: - Pakora drives towards train track but view is obstructed by boxcars - The hood of his car is 5 ft long and the boxcars are 8 ft away from the track - Pakora stops to listen but does not hear a whistle - Pakora crossed track and his hit and killed by train Holding: - Ruling for Pakora Reasoning: - Plaintiff was reasonable on relying on sound (whistle) o If he got out and looked he may have still been hit because by the train because by the time he got back to his truck the train may have come and struck him - This goes against Holmes’s view in Goodman o Holmes went too far because you should want the jury to make the decision o Extraordinary situations may not wisely or fairly be subjected to tests or regulations that are fitting for the common place or normal Different standards depending on the situation, community norms, etc. Andrews v. United Airlines (US Ct. of App.: 1994) Facts: - Plaintiff is injured by a briefcase that fell from an overhead compartment o Airline was negligent because the injury was foreseeable - Trial court dismissed the suit on summary judgment Holding: - Send this case back to trial for a jury to decide Reasoning: - United is “responsible for any, even the slightest, negligence and is required to do all that human care, vigilance, and foresight reasonably can do under all the circumstances o It is not insurer of its passengers safety - Even a slight risk of serious injury to passengers may form the basis of liability if that risk could be eliminated o United has demonstrated neither that retrofitting overhaul bins with netting would be prohibitively expensive, nor that such steps would grossly interfere with the convenience of its passengers. Thus, a jury could find United has failed to do “all that human care, vigilance, and foresight reasonably can do under all the circumstances Argument to deny the just the right to hear the case: - Airline knew of the risk but they only needed to make an announcement given how few accidents occur 135 reported accidents on 175,000 flights per year Argument to give the case to the jury: - Even a slight risk of injury to passengers may lead to liability o It is up to the jury to decide 18 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Trimarco v. Klein Facts: - Plaintiff (tenant) was very badly cut when he fell through a glass door that enclosed his tube in defendant’s apartment building - Plaintiff thought the glass was tempered glass that was shatterproof - Plaintiff provided expert evidence that showed that shatterproof glass no longer conformed to accepted safety standards o The common practice was to use shatterproof glass Reasoning: - Custom can be used by plaintiff to show that defendant deviated from custom and is thus liable custom can be used by defendant to show they did not deviate o Custom is not always reasonable Distinguished between what is and what ought to be done - (Morris) If custom is no the same as reasonableness why use it? 1. If an industry adheres to a single way of doing something, the court may be wary of plaintiff’s assertion that there are safer ways to do that thing and may insist that plaintiff clearly demonstrate the feasibility of the asserted alternative 2. Even if the plaintiff can show a feasible alternative, the fact that it may not have been in use anywhere may suggest that it was not unreasonable for the defendant to be unaware of the possibility 3. The existence of a custom that involves large fixed costs may warn the court of the social impact of a jury or court decision that determines the custom to be unreasonable Reasonable Person Test: Can be argued Defensively: by defendant (everyone else acted this way) or Offensively: by plaintiff (defendant is negligent) because conduct deviates from norm. McDougall v. Perry Facts: - Plaintiff was driving behind a tractor trailer - Tractor trailer’s spare tire came loose and hits plaintiff vehicle causing injury o Defendant had replaced the pin that held tire in place with a nut and bolt o Defendant inspected chain that held tire in place prior to trip - Plaintiff evokes doctrine of res ipsa loquitor - Plaintiff did not have any proof of negligence other then it happened o Defendant cannot use claim for summary judgment because Defendant has evoked res ipsa - Res Ipsa Loquitor – protects plaintiff from summary judgment to get case to jury o Rule for circumstantial evidence when direct evidence is absent o Acts as an inference that a jury can infer negligence based on situation (weak or strong inference) o Need to establish: 1. Defendant had exclusive control over instrumentality that caused injury 2. Type of injury that normally wouldn’t occur without negligence 3. Plaintiff was not contributory negligence 19 Downloaded From OutlineDepot.com - - Engel_Torts_Fall2013 Plaintiff is not required to eliminate with certainty all other possible causes or inferences… all that is required is evidence from which reasonable persons can say that on the whole it is more likely then not that there was negligence If plaintiff carries burden of evoking res ipsa then jury is allowed to decide negligence based on inference o In some jurisdictions res ipsa is a presumption which shifts the burden of proof onto defendant to prove they are not negligent o If there is any form of direct evidence, you cannot use res ipsa Ybarra v. Spangard (Sup. Ct of Ca.: 1944) Facts: - Plaintiff went in for surgery - During surgery he was laying on two hard objects on the top of its shoulders - After surgery plaintiff had pain and then paralysis in his shoulder and arm - Plaintiff sues a long list of defendants because he was unable to prove who caused injury because he was unconscious during surgery o Unable to tell who was negligent (they were not all negligent) This differs from Summers and Hymowitz cases is which all defendants were negligent Holding: - Case is sent back to jury: res ipsa can be used Reasoning: - Proof of res ipsa o Type of accident negligence (yes) o Plaintiff was not contributory negligent (yes) o Instrumentality is in exclusive control by defendant (yes) - Defendant argues that there are multiple defendants so the guilty party had control over instrumentality but it was not exclusive o Difficult to see how the doctrine would be so restricted to become inapplicable to a patient who submits himself to the care and custody of doctors / nurses is rendered unconscious and receives some injury from instrumentalities in his treatment - In this case res ipsa becomes a way in which defendant can be forced to share what they know (conspiracy of silence) o Anyone with control of instrumentality which caused injury can be called upon to meet the inference of negligence by giving explanation of their conduct - Patient submitted himself into care of doctors / nurses: leads to a higher standard of care - It should be enough that the plaintiff can show an injury resulting from an extreme force applied while he lay unconscious in the hospital; this is a clear case of identification of the instrumentality as the plaintiff may ever be able to make Ybarra and Summers both came about at the same time (1940s) transition point of American tort law - Take a deterrence theory approach: o If plaintiff didn’t win then defs could do anything without being caught o This would lead to socially undesirable results - Res Ipsa is a disguised form of strict liability is this true? No 20 Downloaded From OutlineDepot.com o o o o Engel_Torts_Fall2013 Strict liability does not require negligence Res Ipsa requires negligence although plaintiff has no direct evidence of it Strict liability: even if you can prove you were not negligent you are still liable Res Ipsa: if you can prove you were not negligent you are not liable 21 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Unit 3 – Proximate Cause Unexpected Manner Gibson v. Garcia Facts: Defendant: LA Transit and Garcia Plaintiff: Gibson - Garcia crashed his car into a pole owned and operated by LA Transit Lines - LA Transit lines pole was rotten and negligently maintained because defendant knew of the problem - After Garcia crashed into pole it fell onto Gibson causing injury Procedural History: - Gibson received default judgment against Garcia but this remains unsatisfied - Trial judge finds LA Transit is not responsible Reasoning: - Even if the pole was not rotten it may still have fallen on plaintiff o If this is so then the negligence of defendant is not the cause in fact This is up to the jury to decide - Assume plaintiff can prove: injury, negligence, and cause in fact o Plaintiff must then prove proximate cause - If LA Transit negligence is not the proximate cause of the injury then plaintiff cannot recover from defendant - Proximate Cause – nothing more then a way to limit the liability of the defendant even when the plaintiff can prove injury, negligence, and cause in fact - Proximate cause problem: Intervening Cause Defendants Negligence - - - Plaintiffs Injury When does an intervening cause become a superseding cause? (preventing defendant from being held liable) doesn’t happen often o When it is a “normal intervening force” normal consequence of the situation o When it is unforeseeable o When it is “highly extraordinary” in retrospect o When it is a negligent act o When it is an “extraordinary force of nature” o When it is “intentionally tortuous or criminal act LA Transit Argues o Negligent driver crashing into a pole is not foreseeable o The driver was the intervening cause Is it highly extraordinary that a negligent driver would have crashed into pole? o If the actors conduct is substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable 22 Downloaded From OutlineDepot.com Unexpected Harm Engel_Torts_Fall2013 - How do you determine if something is extraordinary? o It depends: depending on who you represent you explain it in a manner that either simplifies it or makes it extraordinary Benn v. Thomas Facts: - Thomas (Defendant) rear ended a van in which Benn (Plaintiff) was a passenger - Benn suffered a bruised chest and fractured ankle - Ben died 6 days latter of a heart attack o The crash was the straw that broke the camels back o Crash would not have killed a normal person - Ben’s executor sues for his death and injuries Trial Court: - Has two options for jury instructions: o “Eggshell Plaintiff Rule” requires defendant to take plaintiff as he finds him even if it means that he defendant must compensate the plaintiff for harm an ordinary person would not have suffered o Conduct of plaintiff is a proximate cause of damage when it is a substantial factor in producing damage Substantial means the party’s conduct has such an effect that a reasonable person would regard it as the cause - Trial judge chooses the second set of instructions Holding: - Send case back to jury using the Eggshell plaintiff rule Reasoning: - Proximate cause instruction was inadequate - Eggshell plaintiff rule should have been applied o Rejects the limit of foreseeablity that courts ordinarily require in the determination of proximate cause o The negligent actor is subject to liability for harm to another although a physical condition of the other makes the injury greater then that which the actor as a reasonable man should have foreseen as a probable result of his conduct Hypothetical: - “A” hits car and passenger “B” is injured - “B” needs surgery - “B” is permanently injured by a negligent surgeon o “A” is responsible for this permanent injury caused by surgeon Deterrence theory does not deter surgeons from acting negligently in similar case - Not true because the def. can choose to sue either def. or surgeon - Deterrence theory can work by making def. super careful Eggshell plaintiff rule - Corrective justice – who owns the mess that was created (this theory makes more sense) 23 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Polemis (1921) Case Facts: - Plaintiff: Owns of the Ship - Defendant: Charters the Ship - Defendant is transferring benzene from one hold to another by means of a sling - A plank was used as a platform - Plank falls and causes a spark - Hold of the ship is full of vapors from the benzene - Spark sets vapors on fire and burns ship Holding: - Defendant is liable for fire because the falling plank was due to negligence and falling plank directly caused fire immaterial that the spark from falling plank was not reasonably foreseeable Reasoning: - Two ways to look at negligence: o Negligence requires a foreseeable harm occurring (careless act alone is not negligence need injury) o Careless act alone is negligence In this case both views are satisfied - Two views of proximate cause: o All Consequences Rule – the consequences which may reasonably be expected to result from a particular act re material only in relevance to the question whether the act is or is not a negligent act Forseeability is relevant to “open the door” foreseeable that act was negligence and not that the result was foreseeable responsible for all the harm that follows o Direct / Foreseeable Consequences Rule – the consequences are the test whether the damages resulting from the act, assuming it to be negligent, are or are not too remote to be recoverable The damages that are foreseeable should be paid for those that are not foreseeable do not need to be paid for - Polemis Court uses the all consequences in part o Defendant is responsible for the direct consequences of the negligent act This does not include any indirect results Court does not differentiate or give guidance of direct v. indirect “The Wagon Mound Case” Facts: - Plaintiff: The owner of the wharf - Defendant: Taken on furnace oil onto their ship - Furnace oil spills into the water - Plaintiff’s manager stopped work but felt that work could safely resume - Two days later molten metal falls into the water igniting oil - Wharf is destroyed o It was not foreseeable that spilling oil into the water would have caused a fire If Court used Polemis reasoning: 24 Downloaded From OutlineDepot.com - Engel_Torts_Fall2013 The defendant is responsible because it is foreseeable that damages from spilled oil would occur it does not matter that the fire was unforeseeable Polemis requires there to be a foreseeable harm and that this foreseeable harm occurred o Once this door is opened then all damage foreseeable or not becomes the responsibility of the defendant Another hypothetical using the same logic as Polemis - Defendant has loaded pistol and gives it to a child telling him to carry it to “X” - Child drops the pistol on Y’s foot breaking his toe - “Y” sues Defendant for negligence o Court finds that the defendant is not liable because the negligence was that the child was given a loaded gun and the foreseeable harm was that someone might get shoot. Since no one was then there is no negligence What rule does Wagon Mound Use? - Defendant should only be liable for consequenes that are reaonibly foreseeable Foreseeable Damage (Oil in Slipways) Unforeseeable Damage (Fire) A B Wagon Mound View “A” is the only one who can collect and can only collect on the foreseeable damage. “B” collects nothing Polemis View “A” is the only one who can collect and can collect both foreseeable and unforeseeable damages. “B” collects nothing Smith v. Leechbrand (1962) Facts: - Worker had a predisposition to cancer due to working in the gas industry - Defendant’s negligence leads to plaintiff’s burned lip - Burn develops into cancer - Plaintiff dies of caner Holding: - Defendant is responsible for plaintiff’s death - This comes one year after Wagon Mound but does not follow it The harm to lip was foreseeable but the extent of the injury was not o Extent of harm does not matter - None of these views are better then another There is no definite rule for unexpected harm 25 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Unexpected Victim Palsgraf v. Long Island RR (NYS Ct. of Appeals) Facts: - Plaintiff was standing on platform of railroad purchasing a ticket - Man unsteadily jumps on board the moving train carrying a package o Guard on board tries to pull him on o Another guard tries to push him on - Guard knock package out of passengers hand o Package contains fireworks o Package explodes - Plaintiff is injured when explosion knocks scales on her o Plaintiff was many feet away Procedural History: - Trial Ct. finds for plaintiff - Ct. of Appeals reverses the decision This case has two famous decisions: Rational Negligence (Cardozo) Finds for RR - Negligence requires there to be a legal duty to take care, and this duty must be one which is owed to the plaintiff himself and not merely to others o Duty extends to foreseeable dangers o Plaintiff must fall within orbit of foreseeability in order for their to be a relationship Defendant only owes duty to what ever danger is foreseeable If danger is beyond the arc of foreseeability then the Defendant does not owe a duty to this Duty Eye of Reasonable Vigilance Orbit of Foreseeability Danger “The risk reasonably to be perceived defines the duty to be obeyed” Cardozo’s duty relationship can be very specifically tailored o Duty to personal property and not safety o Duty to one body part but not another part Duty is only to what can be foreseen - However if negligence is established then defendant would be liable for any and all consequences however novel or extraordinary o How does of how far does this extend? Holding: - Because there was no duty to Palsgraf, she cannot recover - 26 Downloaded From OutlineDepot.com - Engel_Torts_Fall2013 o The danger was not foreseeable o Defendants cannot piggy back onto another person that the Defendant did have a duty to Two exceptions in which Plaintiffs can collect if there is no duty relationship: o Inherently dangerous act (shooting) o Defendant willfully act dangerously to X but not Y (Y can recover even if the harm to them was not foreseen Universal Negligence (Andrews) finds for Palsgraf - When there is an unreasonable act, and some right that may be affected there is negligence whether damage does or does not happen - Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others o Don’t need injury for their to be negligence o If negligence results in an injury outside what is foreseen then the Plaintiff is still able to “complain” not necessary recover - The right to recover damaged: o Damages must be se connected with the negligence that the latter may said to be the proximate cause of the former Policy reason as to why some defendants are not liable He does not go onto explain what this restricts o The crucial policy reasons in this case may be: Loss distribution theory Weight should be given to the original jury’s verdict Theory of Proximate Cause All Consequences Palsgraf (Andrews)? Unreasonable Act Unreasonable Act Plus Foreseeable Harm Foreseeable Consequences Polemis Palsgraf (Cardozo) Wagon Mound What Cardozo does with duty / negligence is limiting the liability of the defendant does this without using an proximate cause language Palsgraf combines negligence and proximate cause to achieve the same ened 27 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Unit 4 – Duty - - Nonfeasance and Misfeasance: The No-Duty Rule and Its Exceptions Nonfeasance Misfeasance Without a benefit - Positively / Actively work an injury Refuse to become an instrument of - Launch a force or instrument of harm good NO DUTY: Defendant has an - DUTY: Defendant must exercise obligation to Plaintiff reasonable care for a foreseeable Plaintiff Exceptions: Special Relationships and Rescuers If this was not true then the lines of tort law are blurred between contract and causation allows us to act morally if we want to No Duty Rule is different way of looking at the traditional view of negligence Harper v. Herman (1993) Facts: - Herman owns boat - Harper is a guest on the boat - Herman anchors in shallow water - Harper dives into shallow water and breaks neck Procedural History: - Trial Ct. grants summery judgment for Herman o Defendant did nothing to create the danger. Just foreseeing a danger does not create a duty - Ct. of Appeals held that defendant had a duty to warn plaintiff of shallow water - Sup. Ct. of Minnesota reverses Ct. of Appeals decision by finding in favor of Herman Issue: - Does boat owner who is a social host owe a duty of care to warn a guest on the boat that the water is too shallow for diving? Holding: - Herman is not liable Reasoning: - Affirmative duty to act only arises when a special relationship exists between the parties o Special relationship only found on the part of common carriers, innkeepers, possessosors of land for public use, and persons who have custody of another person under circumstances in which that person is deprived of normal opportunities of self protector - Did Herman have custody of Harper? o No allegations that Harper was vulnerable or lacked the ability to protect himself 28 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 o No allegations that Harper expected Herman to protect him - Superior knowledge of a dangerous condition by itself in the absence of duty to provide protection is insufficient to establish liability in negligence Farwell v. Keaton (1976) Facts: - Siegrist and Farwell are attacked after a night of socializing - Siegrist escapes unharmed but Farwell is severely beaten - Siegrist drives Farwell around and gives Farwell an ice pack - Farwell falls asleep in Siegrist’s car - Siegrist tries unsuccessfully to wake Farwell and just leaves him asleep - Farwell dies of injuries Holding: - Siegrist owed Farwell a duty of care Reasoning: - Farwell and Siegrist were companions on a social venture o Implicit in a common undertaking is the understanding that one will render assistance to the other when he is in peril if he can do so without endangering himself o Cts. will find a duty where in general, reasonable men would recognize it and agree that it exists o Once that special relationship is established the case is one of misfeasance Defendant must exercise reasonable care - Siegrist voluntarily entered a special relationship when he began to aid him (ice pack and car ride) o If defendant voluntarily attempts to aid him and he takes charge and control of the situation he has entered a relationship which is amended with responsibility Defendant will be liable for failure to use reasonable care for the protection of the plaintiff’s interest o Jury must decide whether the defendant attempted to aid the victim and he did a duty arose which required a defendant to act as a reasonable person - Does this encourage people to not attempt a rescue because they will be held liable for a failed rescue attempt? The Role of Judge and Jury - Dissent believes that existence of duty is a question that should be decided by judge - Consent believes that duty is determined by facts and should be left for a jury to decide 29 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Special Relationship Type II (Tarasoff) Special Relationship Type I Def. Duty Def. Plaintiff Control or Protect Against X Control Duty X Plaintiff Special Relationship Type II: actor who knows or should know the he or she has the ability to control the third person and knows or should know of the need for action comes under the duty to do so (parent-child, master-servant, Defendant-X) Special Relationships are simply individual policy decisions that make defendant liable Tarasoff v. Regents of the U. of California (1976) Facts: - Dr. Moore a psychologist treating Podder - Podder kills Tatiana Tarasoff - Tarasoff’s parents sue Moore alleging that Podder had confided his intention to kill Tarasof to Moore - Dr. Moore never warned Tarasoff of the threat Defendant’s Argument: - Imposition to exercise reasonable care is unworkable because therapists cannot accurately predict whether or not a patient will resort to violence - Breaching confidentiality will discourage people from seeking help from therapists Reasoning: - Moore predicated outcome (foreseeable) when he told campus police Poddar was a danger and knew that the Police released him and Moore did not warn Tarasoff Holding: - Moore failed to exercise reasonable care to protect Tarasoff from danger o If the defendant determined or should have determined according to profession that patient poses a danger there is a duty to warn the plaintiff Criticism of Tarasoff Rule: - Difficult to predict dangerousness - May limit willingness to share w/doctor - Tempts doctors to warn excessively - Unreasonable to expect doctor to have control 30 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Unit 5 – Emotional Harm Non-Parasitic Emotional Harm: Proof requirements for emotional harms beyond those associated with cases of physical harm (i.e. injury, cause in fact, negligence, and proximate cause) Direct Harm Falzone: -no physical impact requirement -reasonable fear of immediate PI -substantial bodily injury or sickness Indirect Harm Tobin/Bovsun: Restrictive View -no recovery -unless within Zone of Danger: (i) death/serious injury (ii) immediate family member (iii) severe & verifiable ED Metro-North: -ZOD or physical impact, not mere contact; -not mere exposure to future risk of disease Portee/Dillon: Expansive View Gammon: -no impact or consequential manifestations; -3 Dillon criteria, or -reasonably foreseeable psychic harm; -4 Portee criteria. -“severe” (“reasonable”) ED Johnson v. Jamaica Hospital (?) Falzone v. Busch Facts: - Defendant negligently drove car very close to the plaintiff - Plaintiff was not physically harmed but the car came so close to her as to put her in fear of her own safety o Fear leads her to become ill and require medical attention Issue: - Can plaintiff recover for bodily injuries resulting from fear of her own safety caused by a negligent defendant? Reasoning: - Previous to this case, courts has required actual “physical impact” to recover from emotional distress because they feared if you let emotional distress claims without “physical impact” courts would be flooded with false claims o Physical Impact can be something as small as dust getting in ones eyes (Porter) emotional distress can be hard to prove - This court disagrees with this reasoning o Fear of an expansion of litigation should not deter courts from granting relief in meritous cases, the proper remedy is an expansion of the judicial machinery o In any event, difficulty of proof should not bar the plaintiff from the opportunity of attempting to convince the trier of fact of the truth of their claim o This court still requires a physical manifestation substantial bodily injury or sickness This grounds injury in something that can be physically seen 31 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 However, you are recovering from the emotional distress and not the physical manifestation Metro-North Commuter RR v. Buckley Issue: - Can a railroad worker negligently exposed to asbestos but without symptoms of any disease recover under the FELA for negligently inflicted emotional distress o Is the physical impact of asbestos that accompanied his emotional distress amount to “physical impact”? This does not follow the Falzone reasoning Zone of Danger Test: plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct or who are placed in immediate risk of physical harm by that conduct Reasoning: - “Physical impact” does not included simple physical contact with a substance that might cause a disease at a substantially later time – where that substance or related circumstance, threatens no harm other then that disease related risk o Previous cases dealt with threat of immediate physical harm and not harm in the substantial future - The physical contact at issue here does not seem to offer any help in separating valid from invalid emotional distress claims o Large numbers of those exposed to carcinogenic substance will lead to “unlimited and unpredictable liability” - Should not matter if claim is valid / invalid (don’t look case by case) o If a claim is for emotional distress it should be categorized as whether or not there is a physical impact Norfolk & Western Railway Co. v. Agers (2003) - Court allows recovery for fear of cancer related to exposure to asbestos - Plaintiff was suffering from asbestosis (not cancerous) o Dissenters adhered to the “the separate disease rule” and would have withheld cancer related compensation until cancer actually appeared Gammon v. Osteopathic Hospital of Maine (1987) Facts: - Hospital sends plaintiff a severed leg instead of fathers ashes from creation - Plaintiff sues for negligent infliction of severe emotional distress o Suffered nightmares and bar relationships o No physical impact or physical manifestation Reasoning: - Arbitrary requirements (physical manifestation) should not bar claim o Psychic well being is as much entitled to legal protection as is his physical well being - Families are particular vulnerable at the time of death (foreseeability) - Abandon “artificial devices” (categories) and rely on the trial process o Goes directly against Bryer’s decision in Metro-North 32 Downloaded From OutlineDepot.com - Engel_Torts_Fall2013 Need to prove that defendant should have reasonably foreseen the action would have caused emotional distress and that was not negligent o This cannot be an extra sensitive person (average person would also suffer emotional harm) o Severe harm – harm that an average person would suffer harm Portee v. Jaffee (NJ 1980) Facts: - Plaintiff was watching son stuck between the elevator shaft and outer door cry for hours as a rescue attempt ensued - Son dies of injuries - Plaintiff became severely depressed and attempted suicide o Plaintiff was an indirect victim and was never in danger of physical harm Not within the “zone of danger” New York Rule: - Tobin case – rules no bystander should be able to collect damages - Bovsun case (exception) – bystander can only collect if they are within the zone of danger and witnessed the person suffer serious injury or death and person was an immediate family member of victim California Rule: - Dillon case – bystander can recover if three factors are followed (foreseeability) o Plaintiff was near scene of accident o The shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance (must witness it and not just hear about it later) o Plaintiff and victim must be closely related Reasoning: - In this case the court agrees with the 3 factors of Dillon and adds one more: o Event must result in severe emotional distress - The most important aspect is the marital or intimate familial relationship between the plaintiff and the injured person o What is included in this? Different courts have ruled in different ways 4 factors to Determine Indirect Harm: - Death or injury must be caused by defendant’s negligence - A marital or intimate familial relationship between the plaintiff and injured person - Observation of the death or injury - Resulting in severe emotional distress Johnson v. Jamaica Hospital (1984) Facts: - Mother delivers baby - Mother goes home but baby stays in hospital - Baby is kidnapped (missing for 4 months) - Parents suffer emotional distress - Parents sue hospital Reasoning: - If it is indirect victim they cannot recover did not witness it 33 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 - If it is zone of danger they cannot recover not at hospital - Only as a direct victim can they have a chance to recover Holding: - Hospital even if negligent in caring for child and directly liable to her, is not liable for emotional distress suffered by plaintiffs as a consequence of the abduction Dissent: - The hospital on the custodial rights of the parents Why do emotional distress claims go through this system as opposed to the same more simplified of physical injuries? - Harder to prove – frivolous law suits and flood of lawsuits - Skeptical of emotional claims Intentional Infliction of Emotional Distress - Not limited to cases where there is bodily harm - Required elements: o Conduct must be outrageous (average member in a civilized community) How does this work when people or groups are not liked in a community (blacks in the south) o Conduct is intentional or reckless o Conduct and emotional distress are causally connected o Emotional distress is severe – in some cases extreme nature or conduct is in itself important evidence that the distress has existed - “Hermit Crab” type of law – fits into other areas of law and can allow recovery in instances that aren’t specified in that type of law o Prevents / provides sanctions for those who go too far 34 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Unit 6 – Defenses Pre-Reform Traditional law – all or nothing If defendant could prove contributory negligence, assumption of risk, or fellow servant rule the plaintiff recovered nothing - Contributory Negligence – conduct on the part of the plaintiff which falls below the standard to which he should conform for his own prediction, and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiffs harm o Exceptions: courts attempt to water down this harsh rule Last clear chance – defendant had the ability to stop arm after both defendant and plaintiff acted negligently but did not stop the harm Recklessness – defendant was willfully reckless (exceeds negligence) but plaintiff is merely negligent then the plaintiff is not barred from recovery o Jury’s would find defendant negligent and plaintiff contributory negligent but as opposed to announcing plaintiff was negligent they would simply reduce the award - Assumption of Risk – see case below Murphy v. Steeplechase Amusement Co. (1929) – Cardozo Facts: - Plaintiff fractured knee while on an amusement park ride known as the “flopper” - Jury at trial court and appellate division found the defendant negligent - The ride was working properly Holding / Reasoning: - Cardozo overturns in favor of defendant because of assumption of risk o Two elements: knowledge of danger and voluntary consent need to be proven (KNOWLEDGE and CONSENT) The name itself warns the timid Plaintiff watched the ride and knew what it entitled The ride is no longer adventurous if there is no risk Plaintiff got on in his own free will - Volenti non fit injuria – one who takes part in a sport accepts the dangers that are inherent in it so far as they are obvious and necessary Firefighters Rule – prevents firefighters and police officers from suing negligent citizens if negligence leads to injury Li v. Yellow Cab Co. (CA 1975) Facts: - Plaintiff crosses over three lanes to turn into a driveway (turn is deemed negligent) - Defendant is negligently driving at an unsafe speed through a yellow light in the other direction - Defendant strikes plaintiffs car causing injury Holding: - Plaintiff can recover Assumption of risk does not bar recovery 35 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 o Replaced with Comparative Negligence Reasoning: - All or nothing approach of contributory negligence should be superseded by a rule which assumes liability in proportion to fault (comparative negligence) - Comparative Negligence is not applicable when one of the parties involved is guilty of willful and wanton misconduct - What happens to assumption of risk? (two kinds) o Overlap cases – plaintiff is unreasonable in consenting o Pure assumption of risk – no contributory negligence Not addresses (big question mark) o Comparative negligence merges the defense of assumption of risk into a general scheme of assessment of liability in proportion fault in these particular cases in which the form of assumption of risk involved is no more then a variant of contributory negligence - Two forms of comparative negligence: o Pure form (what this case uses) – direct proportion o 50% system – plaintiff is barred from recovery if they are 50% or more negligent NY Assumption of Risk: Shall not bar recovery, but damages would be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages - Broader then Li because it doesn’t distinguish between types of assumption of risk - The following case is not Assumption of Risk because the defendant did not breach a duty Akins v. Glens Falls City School District (NY 1981) Facts: - Plaintiff is struck with baseball while attending a baseball game and observing from an unsecured area - Baseball diamond provided screening behind home plate only - Trial Ct. finds school district 65% and plaintiff 35% liable (comparative negligence) Fences should have been taller along the bases Holding: - Costs and complaint are dismissed Reasoning: - Duty is to foresee how many people will choose to sit behind screened section and provide enough seats. Don’t need to foresee injuries of others not sitting behind fence to not breach duty - Owner of a baseball field is only under a duty to exercise reasonable care under the circumstances o “Reasonable Care” should be to screen just behind home plate (most dangerous) and have enough screened seats o Those who wish to watch without screen do so at their own risk 36 Downloaded From OutlineDepot.com - - Engel_Torts_Fall2013 To state a cause of action in negligence plaintiff must show: (1) existence of a duty on defendants part as to plaintiff (2) a breach of this duty (3) injury to the plaintiff as a result thereof o Duty was not breached in this case Strong policy arguments may have figured into this ruling Dissent: - Majority has decided what is reasonable in all circumstances to satisfy a baseball field owner’s duty of reasonable care - Should never have taken this away from the jury Knight v. Jewett (CA 1992) Facts: - Plaintiff is playing touch football - Defendant is warned he is playing too rough - Defendant knocked plaintiff down and stepped on her finger - Plaintiff’s finger needs to be amputated - Plaintiff seeks damages on theories of negligence and assault and battery Holding: - Defendant’s conduct did not breach any legal duty of care owed to plan Reasoning: - There are primary and secondary assumption of risk cases o Primary – defendant owes no duty to protect the plaintiff from a particular risk or harm (total bar – comparative does not apply) o Secondary – defendant has breached duty of care to plaintiff (Li should only apply here) Defendant is not entitled to be entirely relieved of liability for an injury proximately caused by such a breach, simply because the plaintiff’s conduct in encountering the risk of such an injury as reasonable rather then unreasonable - No legal duty to eliminate or protect a plaintiff against risks inherent in the sports itself, it is well established that defendants generally do not have a duty to use do care not to risks to a participant over and above those inherent in the spot o Careless conduct is treated as an “inherent risk” of the sport - Duty approach does not depend on the particular plaintiffs subjective knowledge or appreciation of the potential risk o Novice skier skiing over a mogul falls and is injured o Ski resort is not liable for injuries 37 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Unit 7 – Intentional Torts Vosburg v. Putney (Wisc. 1891) Battery Facts: - 12 year old boy kicks a 14 year old boy in a classroom during school hours - Kick was extremely light - Plaintiff became sick and will never recover use of the leg - Leg was already in a diseased state due to a previous injury - Theory of one medical witness was that the kick revivified the microbes which had entered a wound caused by the previous injury Holding: - Putney is found liable for the injury Reasoning: - If the intended act is unlawful, the intention to commit it must necessarily be unlawful o Applied to this case, if the kicking of Vosburg by Putney was an unlawful act, the intention of Putney to kick Vosburg was also unlawful - No implied consent to do the act complained of o Such an act was a violation of the order and decorum of the school o Had this occurred on the playground the judgement may have been different What is unlawful? (Customary law) - Behaviors that are not appropriate / normal for the setting Intent – requires (a) the person acts with the purpose of producing the consequence or (b) the person acts knowingly that the consequence is substantially certain to result Battery: Harmful or Offensive Contact – requires (a) intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results Diagram of Battery Intentionality Battery Desire (Purpose) or Belief (Knowledge) Harmful Contact or Offensive 38 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 With Substantial Certainty Do you need to intend the contact or that the contact be harmful or offensive? - Restatement is ambiguous on this point - Putney intended the offensive contact that turned out to be harmful What if Putney was only 4 years old? - Intentional Torts does not require reasonableness - 4 year old can understand that there will be contact but not that the contact will be harmful or offensive (Garret v. Daily) o Contact is enough to find a 4 year old liable McGuire v. Almy (1937) Battery (Insanity) Facts: - Nurse is taking care of an insane person - Patient has a violent fit while locked in a room - Patient warns nurse that he will attack her is she comes in the room - Upon entering the room the patient attacks the nurse causing injury Holding: - Insane person is liable for nurse’s injuries Reasoning: - Where an insane person by his act does intentional damage to the person or property of another he is liable for that damage in the same circumstances in which a normal person would be liable o Insane person in order to be liable must have been capable of entering that same intent and must have entered it in fact Will not inquire further into his mental condition with a view to excusing him if it should be appear that delusion or other consequence of his affection has caused him to entertain that intent or that a person would not have entertained it - Person must intend to make harmful or offensive contact Beach v. Hancock (1853) Assault Facts: - Defendant pointed a gun at plaintiff - Defendant clicked gun twice - Plaintiff did not know if gun was loaded or not o Gun was not loaded (Defendant wanted to scare not injure) Holding: - Defendant is guilty of assault Reasoning: - We have a right to live in society without being put in fear of personal harm o It must be a reasonable fear Assault – Intent to cause battery or intent to cause apprehension of battery Western Union Telegraph Co. v. Hill (1933) - Need implicit reasonableness of apprehension 39 Downloaded From OutlineDepot.com - Engel_Torts_Fall2013 o Must believe that the act may result in imminent contact unless prevented from so resulting by the other’s self defense action or by his fight or by the intervention of some outside force Because it was obvious that Defendant could not reach plaintiff it is unreasonable to believe that an assault could take place Cucinotti v. Ortman (1960) Threat of Battery Facts: - Defendant threatens plaintiff that he would beat and strike plaintiffs - Plaintiffs were put in fear that a battery might be committed against them o They suffered great emotional distress Holding: - No Battery occurred Reasoning: - To convert a threat an assault: o Words in themselves, no matter how threatening, do not constitute an assault o The actor must be in a position to carry out the threat immediately o Must take same affirmative action do so Defenses / Privilege in Intentional Tort Cases: - Consent - Self – Defense - Protection of Property - Necessity Hart v. Geysel (1930) Battery (Mutual Combat) Facts: - Plaintiff and Defendant engage in an illegal prize fight - Defendant is seriously injured Holding: - No recover using the Minority Rule in reasoning Reasoning: - Minority Rule – where parties engage in mutual combat in anger, the act of each is unlawful and relief will be denied them in civil action o Shouldn’t profit from illegal activity both consented to activity - Majority Rule – where parties engage in mutual combat in anger, each is civilly liable to the other for any physical injury inflicted by him during the fight o Deter such illegal activity Protection of Property Courvoisier v. Raymond (1896) Facts: - Defendant shoots a police officer by accident - Defendant thought that a threatening crowd outside included the officer - Defendant claims plaintiff approached him in a threatening him in a threatening manner and he thought the officer was apart of the mob o Defendant wasn’t wearing glasses 40 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 o Defendant claims self defense Reasoning: - Defendant must satisfy to the jury, not only that he acted honestly in using force, but that his fears were reasonable under the circumstances and also to the reasonableness of the means made use of o Reasonable belief that self defense was needed - Let jury decide reasonableness - Reasonableness o Encourages reasonable self defense o Discourages innocent people from appearing threatening Katko v. Brinery (1971) - Protection of property is a valid defense but it must be proportional to the possible harm Must act reasonable o Human life has always been valued more then property o Deadly / serious force is only valid if there is also such a threat to the defendants personal safety as to justify self defense Ploof v. Putnam (1908) Facts: - Family is sailing in lake - Storm forces family to dock boat on defendant’s dock - Defendant unmoored the boat and it is driven into the storm - Plaintiff’s boat is destroyed and family is injured o Plaintiff claims necessity storm justified action of trespass Holding: - Defendant (dock owner) is liable Reasoning: - Doctrine of necessity applies with special force to the preservation of human life - An entry upon land to save goods which are in danger of being lost or destroyed by water or fire is not trespass Vincent v. Lake Erie Transportation (1910) Facts: - Defendant is unloading goods at dock - Storm forces defendant to remain moored to plaintiffs dock keeps replacing frayed lines throughout the storm and old ones break - Defendant causes $500 worth of damage with the boat during the storm Holding: - Defendant is liable for the damages Reasoning: - Necessity is satisfied - By continuously replacing the dock lines the injury cannot be attributed to the act of God o Deliberate and direct effort saved the ship at the expense of the dock (makes this an intentional tort) - Had the dock lines not been replaced and the dock is damaged then plaintiff cannot recover 41 Downloaded From OutlineDepot.com - Engel_Torts_Fall2013 Defense or necessity is an incomplete privilege o Can asset privilege but then become responsible for damages after asserting privilege Don’t want to deter dock owners from helping Harrison v. Wisdom (1872) - In cases of necessity involving protection of the public, “a private mischief is to be endured rather than a public inconvenience” o Plaintiff cannot recover US v. Caltek - Whenever the government determines that one person’s property is essential to the war effort and appropriates it for the common good, the public purse, rather then the individual, should bear the loss o Public good / interest complete privilege Encourage people to protect the public without thinking 42 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Unit 8 – Strict Liability Fletcher v. Rylands Facts: - Plaintiff was mining on adjacent land to Defendant who runs a cotton mill - Contractor hired by Defendant to build a water reservoir (Contractor is negligent not the Defendant) o Negligently dug into an old mine shaft o Water from reservoir floods mine shaft Issue: - Can defendant be held liable even if they were not negligent? o Defendant brings water (harmless) onto his land but it become harmful when it escapes o Is obligation of strict liability or of reasonable precaution (negligence)? Reasoning / Holding: - If a person brings onto his land for his own purposes anything that will do damage if it escapes must be kept it in at his own peril o Only excuse would be showing that the escape was due to plaintiff’s negligence or an act of God When does negligence apply and when does strict liability apply? - Negligence is used when people enter risky world (roads, market, etc) - Strict liability is used when you are not entering risky world (stay at home) Rylands v. Fletcher (Appeal of Fletcher v. Rylands) - Strict liability applies in non-natural use of land - Negligence applies in natural use of land o Non-natural use – use that does not confirm to use of property in general In England in this area there were very few reservoirs o Natural use – use that everyone uses land for in that area Hay v. Cohoes (1849) - Blasting on owner’s property caused fragments to damage a neighbors house - Strict liability (sic utere tuo – can’t use your land to damage anothers) Losee v. Buchanan (1873) - Steam boiler explodes - Steam boiler lands on neighbors land, damaging several buildings - Negligence is universal rule with no exceptions - Hay is different because it was as if rocks were thrown at neighbors land o Natural v. Unnatural use of land Blasting (Hay) is inconsistent with what typical behavior Strict liability Steam boiler (Losee) is natural with the small industrial town Negligence 43 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Sullivan v. Dunham (1900) - Blasting of a tree hurls pieces of the tree, landing on nearby highway o Women on highway is killed - Strict liability – unnatural use of the land (Hay not Losee should be used) Exner v. Sherman Power Construction Co. (1931) Augutus Hand - Storage of explosives - Dominant idea of common law: man acts at his own peril - Strict liability – is ordinarily the rule when damage is inflicted o Believes strict liability trumps negligence McGuire v. Almy (1937) - Fault is by no means… a universal prerequisite to liability Cardozo believes that tort law is divided between intentional torts and negligence - Strict liability is an ancient form of liability (Palsgraf v. Long Island RR (1928)) Strict Liability Overview Hay v. Cohoes (NY 1849) Strict Liability – Sic utere tuo - - - - - - - -Brown v. Kendall (1850)- - - - - - - - - - Negligence is universal rule Fletcher v. Rylands (England 1866) Strict Liability – if D brings dangerous substance on land & allows it to escape Rylands v. Fletcher (England 1868) Strict Liability – if D engages in unnatural use of land Losee v. Buchanan (NY 1873) Negligence is universal rule with no exceptions Sullivan v. Dunham (NY 1900) Strict Liability – Sic utere tuo Exner v. Sherman Power Construction Co. (2d Cir. 1931) Strict Liability – is “ordinarily” the rule when damage is inflicted Compare Palsgraf v. Long Island Railroad (1928) Strict Liability – is “rare exception” and “survival…of ancient form of liability” Compare McGuire v. Almy (1937) “Fault is by no means…a universal prerequisite to liability” 44 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Second Restatement How to determine if an activity is abnormally dangerous - Existence of a high degree of risk of some harm to the person, land or chattels of others; - Likelihood that the harm that results from it will be great; - Inability to eliminate the risk by the exercise of reasonable care; - Extent to which the activity is not a matter of common usage; - Inappropriateness of the activity to the place where it is carried on; and - Extent to which its value to the community it outweighed by its dangerous attributes Indiana Harbor Belt Railroad Co. v. American Cyanamid Co. (1990) Posner Facts: - Defendant is the maker of dangerous chemicals in Louisiana - Defendant leases RR car to transport chemicals to Chicago (acrylonitrile) - Train from Missouri Pacific RR picked up the car and carried car to Indiana Harbor Belt RR yard to be switched lines - After car arrived it began to leak o Illinois Dept. of Environmental Protection ordered the switching line (Indiana Harbor Belt RR) to pay just under $1million in cleanup costs o Plaintiff sues defendant to recover the costs Holding: - Strict liability should not apply Reasoning: - Strict liability should only apply in a way that cost benefit analysis that shows that strict liability is the most effective way to deter injuries (Posner) o This accident could have been avoided if people were more careful Negligence is enough of a deterrence No compelling reason to move to a regime of strict liability, especially one that might embrace all other hazardous materials shipped by trains as well - It is easy to see how the accident in this case might have been prevented at reasonable cost by greater care on the part of those who handled the tanker car of acrylonitrile - It is difficult to see how it might have been prevented at reasonable cost by change in the activity of transporting the chemical. This is therefore not an appropriate case for strict liability When would Posner ever use liability? - When you need more deterrence then negligence could provide o When 6 factor test is applied and still negligence doesn’t offer deterrence - Posner has no sympathy for corrective justice of loss distribution Yukon Equipment v. Fireman’s Fund Insurance (1978) - Use and storage of explosives warrants the imposition of strict liability no matter how valuable the activity might be to the community and even if there were no safer place to store it 45 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Chavez v. Southern Pacific Transportation Co. (1976) - Strict liability is imposed even in situations were it may be unfair to put all blame on carrier who is required to accept dangerous cargo Unit 9 – Products Liability MacPherson v. Buick Motor Co. (1916) Cardozo Facts: - Defendant is the manufacturer of the automobile but not the retailer - Plaintiff is driving car and wheel collapsed throwing plaintiff from the car o Wheel was made of defective wood - Manufacturer had not purchased the wheel from another company Manufacturer of Wheel Manufacturer of Car Dealer Retail Purchase (consumer) Negligence Action Holding: - Manufacturer is liable Reasoning: - Rule (Pre-MacPherson): o No liability without previty (exception: inherently dangerous products) o In this case the driver could only sue the dealer - Rule (Post-MacPherson) o When something is negligently made it is reasonably foreseeable that harm will occur This then makes product inherently dangerous No longer need previty Obligation is in the law not the contract What are the drawbacks of negligence? Why cannot it be applied in product liability cases? - Consumers are not in the position to know how negligence occurred because they would be forced to look up the chain Consumers today can bring a products liability action and a warranty action Warranty Action – (express or implied) don’t need negligence (contaminated food) Escola v. Coca Cola Bottling Co. of Fresno (Ca. 1994) Introduces tort based strict liability Facts: - Waitress is injured when a glass soda bottle broke in her hand Holding: - Majority rules for plaintiff on basis of res ipsa loquitor Traynor’s Concurring Opinion: 46 Downloaded From OutlineDepot.com - - - Engel_Torts_Fall2013 A manufacturer incurs an absolute liability when an article that he has placed in the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings Why is strict liability applied: o Public policy – liability should be fixed where it can be reduced (deterrence) o Reduce costs / more efficient – obvious defects o If you cause the injury you should clean up the mess (corrective justice / deterrence) o Producer consumer relationship – need to guarantee the product is safe o Loss distribution – spread losses across public by making it a cost of doing business Manufacturer’s liability should be defined in terms of the safety of the product in normal and proper use, and should not extend to injuries that cannot be traced to the product as it reached the market What a plaintiff needs to prove in order to receive strict liability: - That product had defect and the defect caused the injury (causation but not negligence) Greenman v. Yuba Power Products (Ca. 1963) - Manufacturer incurs an absolute liability when an article that he has placed in the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings o This is different from negligence because the defendant’s conduct is irrelevant §402 of the Restatement (2nd) of Torts (1965) - One who sells any product in a defective condition unreasonably dangerous to the user or the consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property o Criticized for using the word “unreasonable” because it appears to add another aspect to strict liability Cronin v. JBE Olson Corp. (Ca. 1972) - Rejects the idea of the need for the product to be unreasonably dangerous o Keeps Traynor’s simpler precedent 47 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Issues of Coverage in Products Liability Cases: Mfr. ? ? Retailer Bystander - Consumer 2nd Hand Dealer 2nd Hand Purchaser Bystanders can sue manufacturer and impose strict liability 2nd Hand purchaser cannot sue either manufacturer nor the 2nd hand dealer and impose strict liability “Defect” As Mediating Concept Between Negligence and Absolute Liability Absolute Liability Strict Product Liability: Negligence “Defect” Three Types of Defects: Manufacturing Defect – product that is flawed because something went wrong during production - Product fails to conform to its own design - Deviation from the normal product characteristics - Usually treated differently from Design and Defective Warnings Design Defect – All manufactured products are defective because the design itself is flawed and thus makes the product dangerous - How to determine: o Consumer Expectations Test (CET) – defines defect as dangerous to the extent beyond that would be contemplated by consumer at time or purchase o Risk Benefit Analysis (RBA) – defines defect is risk associated with the design exceeds the benefit of it Imputed Knowledge Test (IKT) Reasonable Alternative (RAD) 48 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Defective Warnings or Instructions – words that reduce risk (safety instructions) and words advising of risk (warnings) - Were the words adequate? Soule v. General Motors Corp. (Ca. 1994) Facts: - Plaintiff’s ankles were badly injured when her GM car collided with another vehicle - Plaintiff sued asserting that defects in her car allowed its left from wheel to break free, collapse rearward, and smash the floorboard into her feet Holding: - Holding for plaintiff Reasoning: - Plaintiff gets the choose of either CET or RBA - CET – should be reserved for cases where everyday products users permits a conclusion that the everyday experience of the products users permits a conclusion that the products design violated minimum safety assumptions and is thus defective regardless of expert opinion about merits of design - RBA – plaintiff must prove that design of product caused injury o Shifts burden to the defendant who then must prove that the benefits of the design outweigh the risks inherent in the design - GM argues that CET should be abolished (575) Plaitiff chooses CET for this case and wins at trial o This should not have been a CET case because it is too difficult for the jury to understand. However, the error caused no prejudice and thus plaintiff should prevail Plaintiff should not have free choice: - CET can only be used for certain products - A complex product, even when it is being used as intended, may often cause injury in a way that does not engage its ordinary consumers reasonable minimum assumptions about safe performance o Consumer has no idea how product should perform in all foreseeable situations, or how safe it should be made against all foreseeable hazards 49 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Test for Defect in California Greenman v. Yuba Power Products, Inc. (1963) CET Cronin v. J.B.E. Olson Corp. (1972) CET Barker v. Lull Engineering Co., Inc. (1978) CET RBA (Burden of proof on D) Soule v. General Motors Corp. (1994) CET RBA “The Consumer Expectations Test is reserved for cases in which the everyday experience of the product’s users permits a conclusion that the product’s design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of the design…. Unless the facts actually permit an inference that the product’s performance did not meet the minimum safety expectations of its ordinary users, the jury must engage in the balancing of risks and benefits required by the second prong of Barker.” (Soule v. General Motors Corp.) 50 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Camacho v. Honda Motor Co. (Co. 1987) Facts: - Plaintiff crashed motorcycle - Plaintiff hurts legs because motorcycle did not have crash bars - Plaintiff sues Honda claiming the motorcycle was defective because it did not have crash bars - Trial Ct. grants summary judgment for defendant o Ordinary consumer would have expected the dangers Holding: - Summary judgment was improper Reasoning: - Consumer knew that motorcycle didn’t have crash bars to protect against injury o In cases of inherently dangerous products CET benefits defendant - Court chooses to use RBA o CET is inappropriate to determine whether a product is unreasonably dangerous where both the unreasonableness of the danger in the defect and the efficiency of alternative designs in achieving a reasonable degree of safety must be defined primarily by technical, scientific information o Manufacturers are better at reaching informed decisions about safety then consumer in complex products such as motorcycles - RBA allows jury to find the product was defective but this is a separate question from the assumption of risk In Ortho it was noted that the following factors are valuable to determine whether a product design is unreasonably dangerous: - The usefulness and desirability of the product – its utility to the user and to the public as a whole - The safety aspects of the product – the likelihood that it will cause injury and the probable seriousness of the injury - The availability of a substitute product which would meet the same need and not be as safe - The manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive too maintain its utility - The user’s ability to avoid danger by the exercise of care in the use of the product - The user’s anticipated awareness of the dangers inherent in the product, or of the existence of suitable warnings or instructions - The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance Phillips v. Kimwood Machine Co. (1974) Facts: - Plaintiff is injured when a board is shot back at plaintiff during the use of a sander - Plaintiff alleges machine is defective and unreasonably dangerous because it does not have any guard or shield Imputed Knowledge Test – assume that the manufacturer knew of the risks associated with the product design. With this knowledge would a reasonable manufacturer manufacture the product? - Doesn’t matter is a reasonable manufacturer did not know of the risk - Not negligence 51 Downloaded From OutlineDepot.com - Engel_Torts_Fall2013 Not strict liability – some products may be dangerous but of high utility or making them safe would make them too expensive to have any utility Is a design unreasonably dangerous? o Take into consideration the surrounding circumstances and knowledge at the time the article was sold, and determining there form whether a reasonably prudent manufacturer would have so designed and sold the article in question had he known of the risk involved which injured the plaintiff Policy goal of Escola and §402A Loss Distribution Policy goal of Phillips and RBA Deterrence Reasonable Alternative Design Test (RAD) – moves closer to negligence standard - A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design and the omission of the alternative design renders the product not reasonably safe - Justifications: o Risk utility balancing – allows manufacturers to determine how safe to make a product o Allows jury to decide if optimal amount of safety has been reached - Criticisms: o What if there is no alternative (asbestos) o Puts more pressure on the plaintiffs (need experts) Less pressure if defect law was closer to strict liability standard What if a product is inherently dangerous? - So dangerous that there is no reasonable alternative o Is there no defect under the 3rd Restatement because Plaintiff cannot show a reasonable alternative - There are very few cases of this and plaintiff can still prevail if a product is too dangerous to have an alternative Warranties and Instructions: Hood v. Ryobi American Corp. (1999) Facts: - Plaintiff takes guards of saw despite warnings and instructions not to do so - Blade flies off saw injuring plaintiff - Plaintiff contends the he was unaware that removing the blade guards would permit the spinning blade to detach from the saw o Warnings/Instructions didn’t specify what might happen if guards came off Holding: - Defendant was not found liable Reasoning: - Warnings were sufficient to appraise the ordinary consumer that it is unsafe to operate a guardless saw warnings which, if followed, would have prevented the injury - Very similar to negligence law 52 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Failure to warn against foreseeable misconduct makes the product defective How to determine if you need a warning: - Cost benefit analysis almost always requires warnings Heeding Presumption – requires the party responsible for the inadequate warning to show that the user would not have headed an adequate warning - Would not matter if warning was adequate - The Inadequate warning was not the cause in fact of the injury Allergy – courts have held that a manufacturer ordinarily has no duty to change a products design to guard against allergic reactions when the product’s benefit to the public outweighs the harm it may cause the idiosyncratic few Edwards v. Basel Pharmaceuticals (Ok. 1997) Facts: - Wife brings wrongful death after husband dies of heart attack caused from smoking and using the nicotine patch at the same time - Warnings of death were given to the physician but not plaintiff o Plaintiff was given pamphlet with warning that “overdose might cause you to faint” Learned Intermediary Doctrine: - Exception to the manufacturer’s duty to warn the ultimate consumer - Shields maker of prescription drugs from liability if the manufacturer adequately warns the prescribing physician of the dangers of the drug o The physician acts as a learned intermediary between the patient and the prescription drug manufacturer by assessing the medical risks in light of the patient’s needs Exceptions: - Mass Immunizations – there may be no physician – patient relationship and the drug is not administered as a prescription drug - FDA Mandates – if FDA mandates that a warning be given directly to the consumer - Direct Advertisements – Prescription drugs that advertise to create public demand (fast talkers in ads) - FDA has mandated that prescriptions for nicotine patches be accompanied by warnings to the ultimate consumer as well as to the physician Holding: - Manufacturer provided detailed warnings to the prescribing physicians. However, as to the warnings the plaintiff received, state products liability law must be applied to determine their adequacy o States can require more stringent warnings then the FDA o Bear compliance with the FDA is not enough 53 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Vacallo v. Baxter Healthcare Corp. (1998) Facts: - Defendant claims silicone breast implants were negligently designed accompanied by negligent product warnings - Warnings would not have made the product safe but would have given the plaintiff a more informed decision Holding: - Defendant’s warnings were inadequate Reasoning: - Time One Knowledge – A product is defective because of inadequate instructions or warnings when the foreseeable risks of harms posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings and the omission of the instructions or warnings renders the product not reasonably safe o Manufacturer is required to do reasonable testing to discover any possible defects o Manufacturer is liable for the knowledge it knew or should have known at the time the product was manufactured - This trumps the prior rule (Time Two Knowledge) that assumed the manufacturer knew all possible risks at the time the product was manufactured even if this was not possible o Form of strict liability o How can you require a manufacturer to warns of the risks that they could not possibly have known or foreseen at time the product was manufactured? Depends on what type of tort theory you use: Deterrence – deter production of unsafe products (more testing) Corrective Justice – the person who caused the injury is responsible Can you put a warning on a product that’s design is unsafe and thus be safe from liability? - Policing the Bargain – warnings should be enough because the seller is doing enough to warn purchaser - 3rd Restatement §2 L – when a safer design may be reasonably be implemented and risk can reasonably designed out of a product then adoption of the safer design is required over a warning that leaves a significant amount of risk 54 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Products Liability – Defenses: General Motors Corp. v. Sanchez (1999) Facts: - Plaintiff left truck running and gets out after putting the truck into park - Trucks transmission slips and the truck goes into reverse - Plaintiff is struck and dies - Jury applies comparative responsibility to strict liability NY Civil Procedures Laws and Rules: Sec. 1411 – Damages recoverable when contributory negligence or assumption of risk is established - In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages Holding: - Plaintiff can recover only 50% (Plaintiff was 50% at fault) Reasoning: - 402A comment n – contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence - If the user or consumer discovers the defect and is aware of the danger (assumption of risk) and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery - Consumer has no duty to discover or guard against a product defect but a consumers conduct other than the mere failure to discover or guard against a product defect is subject to comparative responsibility - Consumer has no reason to expect that a new product contains a defect and would have little reason to be on guard to discover it - Sanchez was comparatively negligent because he did not operate truck in a safe manner (not a failure to discover or guard against a defect) o Didn’t follow owners manual o Truck was still considered defective (could have designed it not to “slip”) - If misuse by consumer is unforeseeable by manufacturer then product is not defective If misuse by consumer is foreseeable by manufacturer and manufacturer to guard or warn against defect then product is defective o Plaintiffs conduct can still reduce damages through contributory negligence 55 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Defenses in Product Liability Cases Before and After Comparative Negligence (CMN) Analysis of General Motors Corporation v. Sanchez Pre-CMN Failure to discover or guard against defect Failure to discover or guard against defect may include all CN AR Not a defense Not a defense Complete bar to recovery Failure to discover or guard against defect CN AR Can reduce recovery Can reduce recovery Post-CMN Not a defense - Some argue that there should never be contributory negligence for defective products o A defective product will hurt both the virtuous and non-virtuous 56 Downloaded From OutlineDepot.com Engel_Torts_Fall2013 Beyond Products: - Services: require “negligence” - Products: require “strict liability” Royer v. Catholic Medical Center (1999) Facts: - Plaintiff underwent a total knee replacement - Prosthetic knee was defective Issue: - Is a health care provider that supplies a defective prosthesis in the course of delivering health care services a “seller” of prosthetic devices, or is merely providing a professional service Holding: - Hospital was not a seller and was only proving services, negligence law should apply Reasoning: - Defendant acted as both seller of prosthesis and as a provider of services in the transaction o Was defendant an entity engaged in the business of selling prosthetic knees so as to warrant the imposition of liability without proof of legal fault - Plaintiff did not go to the hospital to purchase a knee Policy arguments against strict liability: - Higher health care costs borne by the patients - Places an unrealistic burden on the physicians and hospitals to test al the products used in a hospital - Research and innovation in medical equipment and treatment would be inhibited Loss distribution in all cases will lead to strict liability (pgs. 654-655) Magrine – dentist who broke defective needle in patient’s jaw is not strictly liable Newark – beautician applied product to plaintiff’s hair causing burns - Court held that beautician was selling a product - Beautician was not relying on skill and judgment like a doctor Restatement Third, Torts: Products Liability §19. Definition of "Product" a. A product is tangible personal property distributed commercially for use or consumption. Other items, such as real property and electricity, are products when the context of their distribution and use is sufficiently analogous to the distribution and use of tangible personal property that it is appropriate to apply the rules stated in this Restatement. b. Services, even when provided commercially, are not products. c. Human blood and human tissue, even when provided commercially, are not subject to the rules of this Restatement. 57