I.
INTRODUCTION TO LIABILITY:
a.
b.
c.
d.
e.
CATEGORIES OF TORTS:
i. Intentional (we haven’t covered this yet)
ii. NEGLIGENCE:
1. The D did not intend to bring about a certain result, but has merely behaved “carelessly”.
iii. STRICT LIABILITY:
1. D is held liable even though he did not intend to bring about the undesirable result, and seen though he
behaved with utmost carefulness.
2. Two categories:
a. Conducting go abnormally dangerous activities
b. The selling of a defective product which cases person injury or property damage
EXAM APPROACH:
i. PRIMA FACIE CASE: say whether this has been made
ii. DEFENSES: analyze what defenses and justification, if any, D may be able to raise
iii. DAMAGES: what are available to the P?
1. Punitive
2. Emotional distress
3. Loss of companionship of another
4. Unlikely or far-reaching consequences
5. *Economic loss (when there is no personal injury or property damage)- we don’t need this
LITIGATION PROCESS:
i. Procedure
1. P files complaint that seeks relief.
2. D must answer.
3. Demurrer: even if p proves allegations no legal claim for which relief can be granted.
4. If demurrer not granted Summary Judgment may be sought.
5. Motion for a directed verdict:
a. P did not prove allegations in complaint.
6. Jury will be charged
7. If jury is in equipose – cannot return a verdict – they are to return a verdict against the party who had the
burden of persauding them.
8. If the judge finds the verdict “against the wieght of the evidence” he must direct a new trial.
ii. Damages:
1. Traditional goal is to restore p to position she was in before.
2. Mostly $$$ damages
3. Injunctions
4. Most suits are handled on “contingent fee”
LIABITLITY:
i. Hammontree v. Jenner (Seizure Case)
1. Unless harm is foreseeable, no cause for recovery
VICARIOUS LIABILITY
i. Vicarious liability- defendant’s held liable for the acts of another
ii. RESPONDIATE SUPERIOR - Employee is held liable for employee’s acts
1. Goals:
a. Safety: Preventing future injuries
i. Incentive to carefully select employees
ii. Employer has control over conduct hired to perform
b. Compensation: Assuring compensation to victims
i. deeper pockets
c. Fairness: spreading losses caused by enterprise equally.
2. Determined by:
a. BIRKNER CRITERION : those acts which are so closely connected with what the servant is
employed to do – fairly and reasonably - incidental to it, that they may be regarded as methods,
even though quite improper ones, of carrying out the objectives of employment
i. The employees conduct must be of the general kind the employee is hired to perform
ii. Ordinary spatial boundaries of employment and within hours of employment
iii. The employee’s conduct must be motivated, at least in part, by the purpose of serving the
employer’s interest
iv. Employer is benefiting (p.21)
3.
CASE(S):
a. Christenson v. Swenson- (Security Guard Car Accident)
i. Used Birkner Criterion used to determine if employer is held liable
ii. Holding: reasonable minds could differ on issue = summary judgment is not appropriate
iii. OSTENSIBLE AGENCY THEORY:
1. RULE: in general, principles are not held liable for the actions of independent agents
a. Agent: A fiduciary relationship created by express or implied contract or by law, in which one
party (the agent) may act on behalf of another party (the principal) and bind that other party by
words or actions
b. Independent Contractor: An independent contractor is not under the control of the principle
(NOT AN EMPLOYEE)
2. Ostensible Agency Theory 3 Criteria: (restatement second quoted below)
a. Principle by conduct
b. Caused another to reasonable believe that the agent was an employee or agent
c. He justifiably relied on the appearance of agency
3. Dueling Restatements Regarding Ostensible Agency (each beneficial to a side)
a. Ostensible agency theory: RESTATEMENT (Second) of Torts Section 267i. More helpful to D b/c it takes its position
ii. The party asserting ostensible agency must demonstrate that (1) the principle, by its
conduct (2) caused him or her to reasonably believe (3) that the putative agent was an
employee or agent of the principal, and that he or she justifiably relied on the
appearance of agency (see section 2 above)
b. Torts Theory: RESTAEMENT OF TORTS SECTION 429
i. More helpful to P b/c it takes its position
ii. One who employs an independent contractor to perform services for another which are
accepted in the reasonable belief that the services are being rendered by the employer or
by his servants, is subject to supplying such services to the same extent as though the
employer were supplying them himself or by his servants
4. CASE(S):
a. Baptist Memorial Hospital v. Sampson (Spider bite)
i. RULE: If steps are taken to notify an individual of the lack of relationship between
principle an agent, then there is no cause for liability (ostensible agency test used)
ii. EXCEPTION: Principles are held strictly liable if ostensible agency is not met
II.
NEGLIGENCE PRINCIPLE
a.
b.
c.
a.
NEGLIGENCE (GENERALLY): the tort of negligence occurs when D’s conduct imposes an unreasonable risk upon
another, resulting in an injury to that other.
i. Liability for accidental harm requires fault
ii. Negligence = failure to exercise reasonable care
iii. D’s mental state is irrelevant
NEGLIGENCE v. NEGLIGENCE PER SE
i. When there is no question that a particular act is negligent, usually because it is set out in a statute
FAULT PRINCIPLE:
i. (Justice Shaw): Liability for accidental harm requires fault. No liability for unavoidable injury that occurred while
doing lawful act
ii. Brown v Kendell (Established Fault Principle)
1. Facts: 2 Dogs fighting in presence of their masters. To stop fighting, D took stick to beat dogs. As De
raised stick, D caused serious eye injury to P
2. Issue: Can one be held liable for accidental harm? Only if there was fault.
3. RULE: There needs to be fault for there to be Negligence.
4. Holding: To be held for accidental harm we must have fault (see HOLMES below). To recover, P needs to
shows (1) Unlawful intent or that (2) D was at fault
5. Note:
a. an inevitable accident is such that could not have avoided by the use of the kind o degree of care
necessary to the circumstances
b. Holmes and Posner want to encourage a regime where people will take steps to avoid liability.
c. Justice Shaw in Kendall is consistent with assumption or risk doctrines arising out of industrial
times, making it more ecomically feasible to take risks
d. This leads to Hands formula (seen below)
ELEMENTS OF NEGLIGENCE




d.
DUTY- a legal duty requiring D to conduct himself according to a certain standard; so as to avoid unreasonable
risk to others
BREACH- failure to adhere to legal duty
LOSS OR DAMAGECAUSATION(D’s negligence actually caused the harm. If D was negligent but his negligence did not cause the
harm, then we do not have causation)
STANDARD OF CARE (IN GENERAL):
i. ORDINARY CARE- degree of care, which prudent and cautious men would use, such as required by the exigency
of the case, and such as is necessary to guard against probable danger
1. Defines the scope of the general duty of care of all people.
2. Requires a person to exercise the amount of care that a reasonably prudent person would exercise under the
circumstances (see subsection below)
ii. TEST
1. HAND’S FORMULA Used to Decide Neg. (Carroll Towing)Used to consider if there was negligence
a. Ground for liability/ Due Care: The probability it will happen + the gravity of injury resulting
from occurrence (if it happens) must be greater than the burden of adequate precautions
b. Used to calculated risk in determining standard of care
c. Liability depends on whether B is less than L multiplied by P
1. B<PL
a. P= Probability
b. L= Injury
c. B= Burden
iii. CASE(S):
1. Adams v. Bullock: (kid with a wire and a trolley car)
a. RULE: there is no liability for freak accidents
b. Holding: in order to prevent the accident the wires would have had to been insulated, and entirely
different and expensive change. P relied on this argument as an “untaken precaution” and the ct
rejects it stating that the burden is too high for the court to require
2. United States v. Carroll Towing Co. (boats break loose)
a. RULE: Used hand’s formula
i. (note: jury not instructed to use this test)
Holding: it was not beyond reasonable expectation thtat it was fair requirement that the Connors
Company should have a bargee aboard during the working hours of daylight
3. Bolton v. Stone: (Lord Reid)
a. Holding: the risk of driving the ball over the fence (6 balls in 28 years( was so mall that the D club
might reasonably disregard it.
b. Note:
i. Compliance Error: In crowded conditions of modern life, eventhe most careful person
cannot avoid creating some risks and accepting others
REASONABLE PERSON STANDARD: (External and Objective Standard)
i. REASONABLE PERSON STANDARD:
1. Conduct rather than state of mind matters
2. That conduct is measured against the reasonable person
3. Justifications:
a. Administrative flexibility
b. Deterrence (find out what standards are)
c. Holmes Community Norms
i. Its impossible to measure man’s actions individually, so we look at average conduct (the
basic conduct that will allow us all to live in a society together)
ii. COMMON CARRIER STANDARD:
1. CASE(s)
a. Kellly v. Manhattan Ry. Co.
i. OLD RULE: “Common Carries must exercise the “utmost care, so far as human skill and
foresight can go”
b. Bethel v. New York City Transit Authority (man hurt in wheelchair seat/ p relied on constructive
notice)
i. NEW RULE: duty of highest care should not apply to common carriers, thus realigning
standard of care required by common carriers with the traditional, basic negligence
standard of reasonable care under the circumstances.
c. Stewart v. Motts:
i. Rule: handling of dangerous circumstances necessarily involves higher standard of care
proportionate to the danger
d. Wood v. Ghro:
i. Holding: parents owe the highest degree of care to public when possessing gun in their
house
iii. VARIATIONS TO REASONABLE PERSON STANDARD (note: some are not exceptions):
1. MENTAL ABILITY:
a. RULE: Mental ability does not excuse from reasonable standard
b. Restatement Section 283 (B)
i. “unless the actor is a child, his insanity or other mental deficiency does not relieve the
actor from liability for conduct which does not conform to the standard of a reasonable
man under like circumstance”
c. Bashi v. Wodraz: (driver who had two separate accidents)
i. Holding; court rejects sufficiency of claim that she was “wigged out” b/c her insanity was
not that of a pronounced type
d. Justifications:
i. Difficulty in drawing a satisfactory line
ii. May be faked
iii. Their wealth would be used to compensate victim as a result of damage
iv. Motivate those who have charge of mentally disabled to take care
2. PHYSICAL DISABILITY: (SAME STANDARD FOR MENTAL DISABILITY)
a. RULE: Standard the same as a person with the disability
b. RESTATEMENT § 283 (c)
i. “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”.
c. Reaction to disability:
i. Discernible Disability (reasonable person aware of disability):
1. Disabled person held to reasonable standard of another with same disability
2. Ex: Deaf, Blind, Wheelchair
ii. Non-Discernible Disability (reasonable People wouldn’t be aware of disability)
b.
e.
1.
2.
3.
f.
Disabled person held liable as if he did not have the disability. Normal RP
Standard.
Disabled person will be held to standard of RP if they have physical shortcoming
that does not constitute a readily noticeable disability.
a. Ex: You honk at a deaf driver
INTOXICATION:
a. RULE: Not an exception to reasonable person standard
4. SUPERIOR ATTRIBUTES: (attention, perceptions, knowledge, judgment, intelligence)
a. Individuals are treated as “themselves” – expected to exercise superior attriubtes
i. The policy justification is not fairness, but accident prevention (what’s best for society)
5. CHILDREN:
a. Held to the standard of conduct reasonable to a person their age
b. Most states hold that children under 7 are unable to associate risks with their actions
c. Justifications:
i. Children are identifiable
ii. They are not experience and are subject to adult supervision
iii. They don’t usually engage in high risk behavior
d. EXCEPTION: when children engage in adult activities they are held to the standard of an adult
(Dellow v. Pearson- kid driving motor boat)
6. BEGINNERS:
a. RULE: Some activities are so dangerous that the risk must be born by the beginner rather than the
innocent victim
7. EMERGENCY DOCTRINE:
a. When in an emergency, standard of care is a REASONABLE PERSON UNDER
CIRCUMSTANCES
b. Many states will not exercise this doctrine because it makes no difference considering that
reasonable person standard is under the circumstances.
ROLE OF JUDGE AND JURY
i. BURDEN OF PROOF:
1. ON P: 51% “more likely than not”
a. BURDEN OF PRODUCTION: must produce evidence
b. BURDEN OF PURSUASION: must prove more probable than not that injury is due to neg.
ii. Allocation: (Note- there are policy implication for the allocation of power)
1. JUDGE DECIDES LAW
2. JURY DECIDES FACT
3. Some issues are mixed:
a. Standard of care is USUALLY left to jury
b. EXCEPTION; when the facts are so one sided that the a reasonable jury couldn’t find otherwise
(matter of law)
i. For a judge to decide standard of care, as a matter or law, they are engaging in judicial
rule making
ii. P’s are entitled to summary judgment only when there is no conflict at all in the evidence
and the D’s conduct fell far below any permissible standard of care
4. OPPOSING VIEWS: Holmes and Cardozzo
a. Holmes (Goodman): When it is obvious that victim himself is negligent, the judge can make this
decision and not send issue to jury
i. Favors rules over standards
b. Cardozo: (Pekora): It is for jury to decide whether or not defendant was negligent
i. Favors standards over rules (claims rules can’t cover standard of care)
iii. CASE(S):
1. Baltimore & Ohio Railroad v. Goodman (Guy hit by train- court tells him to get out and look)
a. RULE: If a man cannot be sure if a train is coming, he must stop his car and check. If no
precautions are taken, the accident is his own fault. (stop and look rule)
b. Holding: judgement for D as a matter of law
2. Pokora v. Wabash Railway Co. (Another guy hit by train)
a. RULE When there is no guide of customary conduct, a JURY should decide if D took reasonable
care or not
i. Note: this contradicts Goodman
3. Andrews v. United Airlines Inc. (guy hit by briefcase from overhead bin)
a. Standard of care is up to jury
b.
g.
h.
Holding: (Used B<PL to determine standard of care) Precautions not very expensive, jury could
have found that taking precautions were necessary under the circumstances
i. Note: this is how juries can influence custom practices in business
ROLE OF CUSTOM:
i. Temarco v. Klien- (Lady cut by glass shower door)
1. RULE: Custom may influence safety standard = it is for jury to decide
a. Note: Custom of practice need not be universal- When proof of an accepted practice is
accompanied by evidence that the defendant conformed to it, this may establish due care
ROLE OF STATUTES:
i. RULE: Where a statute defines the standard of care and the safeguards required to meet a recognized danger- no
other measure may be applied in determining whether a person has carried out the duty of care imposed by law.
1. EXCEPTION: Where statutory general rule of conduct fixes no definite standard of care- but codifies of
supplements a common law rule which has always been subject to limitation- public convenience and
safety- in the absence of clear language to the contrary- should not be construed as intended to wipe out the
limitation and exception of judicial discretion attached to common law.
ii. NEGLIGENCE PER SE DOCTRINE: when a safety statue has a sufficiently close application to the facts of the
case art hand, an unexcused violation of that statute proves negligence
1. RULE: breach must be causal to be consequential
a. CLASS OF PERSON: Must be designed to protect class of person (P must be in that class)
b. TYPE OF HARM: Must be designed to protect from that kind of harm
iii. STAUTORY PURPOSE DOCTRINE (p.81 CB)
1. Violation may be evidence of negligent if the cause of the action is the harm that the statute purposely
addresses to prevent
a. Must not be read to strictly
b. Question for judge or jury
c. Difference to legislative body or body with special expertise
2. Not a rigid rule- There are excuses and exceptions
3. Doesn’t end the inquiry – must ask – would it be reasonable to comply with the statute
iv. Section 286 of the Second Restatement
1. “the court may adopt as a standard of conduct of a reasonable man the requirements of a legislative
enactment or an administrative regulation whose purpose is found to be exclusively or in part (a) to
protect a class fo persons which includes the one whose interest is invaded, and (b) to protect the
particular interest which is being invaded, and (c) to protect that interest against the kind of harm which
has resulted, and (d) to protect that interest against the particular hazard from which harm results.”
v. Martin v. Herzog: (Wagon driving without lights)
1. RULE: Unexcused omission of statutory requirement is negligence (jury must consider)
vi. Telda v. Ellman: (Junk collectors on Sunrise highway)
1. RULE: If violation of statue is reasonable- no liability
a. A general rule of conduct – may accomplish its purpose under regular conditions but when the
unusual occurs – strict observance may defeat purpose.
b. Note: state statute for the protection of human life is to complied with. Juries do not have the
power to decide this, it is a matter for the court (matter of law)
vii. De Hagen v. Rockwood Sprinkler
1. Holding: violation does not = neg. because it is possible they meant for it to have a broader cope
a. Note: Cardozzo says: don’t read to restrictively
viii. Gorris v. Scott (sheep case)
1. Statute was concerned with the spread of communicable diseases (view chart below)
ix. Hubbard- Hall v. Silverman1. Holding: congress did not intend compliance with its statute to mean that D had met possible higher
standard of care imposed by common carrier law
x. CUSTOM v. STATUTE:
1. No defense to say that violation of statute is customary (Robinson v. District of Colombia
xi. COMPLAINCE WITH STATUTE:
1. Rule: Compliance with statute does not eliminate negligence, it depends on circumstances
MARTIN
Cause of Accident
Purpose of Statue
D- in middle of
road
P- NO LIGHTS
“Guidance and
protection of
travelers”
(p.74)
Result
Violation of statue
= NEG
TEDLA
P- pedestrians on
wrong side of road
D- doesn’t contest
neg.
Provides
predictable orderly
behavior on
roadways
To ensure safety
“rule of the road”
statute
Statues must guide
conduct in
reasonable
circumstances, if
excuse exists, no
blame
DE HAEN
Radiator fell from
shaft because lack
of barriers and
safety precautions
GORRIS
Sheep unenclosed,
washed overboard
Required barrier to
prevent workers
from falling
Pen to prevent
spread of disease
Violation of statue
= neg.
Violation of statue
does not = neg.
III.
PROOF OF NEGLIGENCE: (note: burden on P- 51% “more likely than not)
a.
b.
c.
P’s burden is to prove that D’s conduct fell below the standard of reasonable care
i. (See Elements of Negligence in Above section)
ii. most convincing type of evidence is direct evidence, but sometimes circumstantial evidence will suffice (see section
B below con constructive notice)
WHEN THERE IS A CONDTION THAT D SHOULD BE AWARE OF:
i. VIEW RES IPSA LOQUITOR BELOW (b/c constructive notice cases follow under that section but are divided for
clarity during application for the exam)
ii. CONSTRUCTIVE NOTICE(a kind of circumstantial evidence) : Whether evidence supports a finding that he
defendant should have known about the dangerous condition in time to have taken precautions
1. Defect must be visible & apparent for sufficient length of time prior to the accident to permit d to
remedy it
2. CIRCUMSTANTIAL EVIDENCE: Other facts or conditions are used to establish the happening of
some event in lieu of direct witness testimony
3. CASE(S)
a. Negri v. Stop and Shop (Lady slips on broken baby food bottles)
i. RULE: Defect must be visible & apparent for sufficient length of time prior to the
accident to permit d to remedy it
b. Gordon v. American Museum of Natural History (Man slipped on wax papers)
i. RULE: Occurrence of accident (through fault) must have constructive notice to remedy
or no negligence
1. To constitute constructive notice, a defect must be visible and apparent and it
must exist for a sufficient length of time prior to the accident to permit
defendant to discover an remedy
ii. Holding: No constructive notice- not evidence established it
iii. EXCEPTION TO CONSTRUCTIVE NOTICE: BUSINESS PRACTICE RULE
1. Designed to deal with business that use open bins
2. business that uses this type of display must bear the burden of showing what steps were taken to avoid
harm
a. Some states do not require constructive notice for “business practices that create a foreseeable risk
of harm”
3. Merchant obligated to anticipate dangerous conditions
RES IPSA LOQUITOR “The thing speaks for itself”
i. Injury situation where negligence can be inferred
ii. Aims to promote all 3 tort aims
REQUIREMENTS OF RES IPSA LOQUITOR



Accident that normally does not happen normally without negligence
D’s exclusive control of instrument that causes harm
P has not contributed to the act
iii. § 328D Restatement (Second) Torts: Res Ipsa Loquitor applies in rare circumstances where
1. Type of Event: Must be event that normally only occurs if someone is negligent.
2. There are many accidents that can occur without negligence:
a. Not Negligent: Man falls down stairs, Tire blows out
b. Negligent (generally): Object falls from P’s premise, Elevator falls, Gas or Water escape, derailed
train, boiler explodes, electrocution from wires
iv. RES IPSA LOQUITOR v. STRICT LIABILITY
1. Res ispa says two elements satisfied though inference
a. Defendant can show that there is not negligence
b. In strict liability, checking chain not good enough
i. Anything that happens is responsibility
v. Various Views of States:
1. Inference View: a fact situation may arise that is so strong that the jury is instructed that it must find
negligence in the absence of persuasive exculpation (NY has this!!!)
a. Inference of neg. inescapable if not rebutted
b. (NY) Farina v. Pan American World Airlines- passenger was injured when plane went off
runway at airport
2.
“Presumption affecting the burden of producing eveidnce”- if the D offers no other plausible rebutting
evidence the P is entitled to directed verdict on liability.
a. If the D offers the evidence, burden shifts back to P
3.
vi. EFFECTS OF RES IPSA LOQUITOR:
1. Permits an inference that D was negligent even though there is not proof
2. BURDEN OF PROOF SHIFTS TO D to prove not negligent (note this in multiple D’s cases)
a. BURDEN IF AFFECTED 3 WAYS: (judge instructs jury)
i. Permissible Inference: That it may but not need find the D neg. (Negri)
ii. That it must find the D neg. unless the D presents plausible rebutting evidence (Cali)
iii. That it must find the D negligent unless persuades that d was not neg.
1. D’s burden is the highest here (Farina)
vii. Justifications:
1. Fairness (Wigmore say’s P has better access to the information)
2. Compensation
3. Safety
4. Note: without Res Ipsa P would have no remedy
viii. CASES:
1. Byrne v. Boadle (Flour Falling)- YES RES IPSA
a. RULE: When a pedestrian is injured by a falling object, the accident alone is sufficient to show
negligence. Defendant has the burden to rebut presumption
b. Holding: Yes, duty of perons who keep barrels to take reasonable precautions
2. Mc Dougald v. Parry (Old chain results in car accident)
a. RULE: Proof that the instrument causing the injury was under the exclusive control of the D and
the injury does not ordinarily happen unless neg.
b. Note: The mere fact that the accident occurred does not support the application of doctrine
i. Goodyear:; “an injury alone, of course, ordinarily does not indicate negligence. The
doctrine of res ipsa loquitur simply recognizes that in rare instances and injury may
permit an inference of negligence is coupled with a sufficient showing of its immediate
precipitating cause.”
ii. If the accident avoidable and control in hands of neg. (guilt is found)
3. Helton v. Forest park Baptist Church (kid gets eye injury at daycare)
a. RULE: When instrumentality of harm is unidentifiable, no RIL
4. Yabarra c. Spangard- (guy goes in to hospital for appendicitis comes out with neck problem)
a. RULE: Proof that the instrument causing the injury was under the exclusive control of the D and
the injury does not ordinarily happen unless negligent.
i. Constructive Control: D was unconscious when harm occurred
b. Holding: All persons and instrumentalities exercising control over a person are liable for any
unnecessary harm that results.
i. Note: not all courts use Yabarra as law b/c they feel it opens up too many people to
possibly becoming a D
5. Larson v. St. Francis Hotel ( bystander struck by chair thrown from room of hotel)
a. Holding: Hotel doesn’t have exclusive control over what guests do in the hotel thus there is not
reason to connect negligence to D rather than guest
6. Connolly v. Nicollet Hotel (rowdy convention leads P to lose eye)
a. Holding: D held liable but not Res Ipsa:
i. In a situation where they could have done something about the potential harm there is
neg, but this case was not really Res Ipsa b/c specific acts of neg. were alleged
ii. Note: many res ipsa cases will turn into specific neg. cases as they develop
IV. DUTY REQUIREMENT:
a.
b.
c.
NOTES: in previous case, D did no deny obligation to behave reasonably toward P
i. In most cases this issue won’t arise
ii. Negligence is often referred to as “breach of duty”
iii. There must be a duty “negligence in the air” will not do
iv. There is no set standard and it is hard to imagine a case where a judge could not find some duty
RULE: FOR THERE TO BE NEGLIGENCE THERE MUST BE BREACH OF DUTY
i. FAILURE TO ACT: law does not impose general duty to act (but it may be emerging)
1. Knowledge of harm does not create duty
a. Note: Andrade v. Ellefson (children injured b/c of overcrowding of day care)
i. Holding: County not immune to charge of improper supervision
ii. RULE: actual knowledge of dangerous condition, without duty, usually does not impose
special duty to do something about that condition
1. note: this case involved P’s that has little opportunity to protect themselves and
looked to P for protection.
ii. RELATIONSHIP TO VICTIM: for there to be negligence, there must be a duty, this duty is created by a
relationship- Negligence arises from breach of duty
1. Restatement Second of Torts § 314A: Duty of care arises when both:
a. D realizes or should realize that action on his part is necessary for another’s aid or protection, and
There is special relationship between the actor (D) and other, which gives the other the right to
protection from the actor (D)
b. Generally Special Relationship Exists Between:
i. Common Carriers
ii. Innkeepers
iii. Possessors of land who hold it open to the public
iv. Persons who have custody of another under circumstances where other person is deprived
of normal opportunities of self-protection
iii. PRIVITY TEST: (restrictive view of duty)
1. Held that the manufacturer of a product generally owed a duty of care in its maufacture only to the person
who acquired the product from the maker
2. MacPhenson v. Buick Motor got rid of it
a. Cardozo said: “it is reasonably certain to place life and limb in peril when negligently made, it is
then a thing of danger… if to the element of danger is added knowledge that the thing will be used
by persons other than the purchase, and used without new tests, then irrespective of contract, the
manufacturer of this thing of danger is under a duty to make it carefully…:
iv. MALFEASENCE/MISFEASENCE v. NON-FEASENCE
1. Malfeasance is acting negligently
a. Action/Doing something
b. Unlawful act (but not criminal)
c. An act from which liability will follow
i. (Note: no need to distinguish between Misfeasance and Malfeaseance)
ii. Difference between misfeasance v. malfeseance
1. Whether there was unlawful conduct
2. Non-Feasance is not acting
a. Non-Action/Passive
b. Similar to omission to act (crim law)
3. Generalization:
a. There is generally liability only on affirmative acts
b. There is generally no liability to on non-feasence but court can usually create action out of nonfeasence
v. Arguments for and against imposing duty:
1. FOR: safety/ compensation
2. AGAINST: individual autonomy
3. MIDDLE GROUDN: see duty of easy rescue
TYPES OF DUTIES/ EXCEPTIONS TO DUTY RULE:
i. DUTY OF EASY RESCUE:
1. Vermont Statute: When is wouldn’t cause harm to prevent injury to another (B<PL)
a. Few states have these stipulations
ii. DUTY TO REPORT CHILD ABUSE:
1.
iii.
iv.
v.
vi.
vii.
viii.
Every state has now adopted some form of law requiring reports by those who have knowledge of or reason
to suspect child abuse
DUTY TO REPORT A CRIME (Sherrice Iverson Case Las Vegas)
1. Seven year old girl killed by David Cash and his friend did not intervene
2. California adopts statute named after Iverson
a. Requires- “any person who reasonably believes he or she has observed the commission of a
murder, rape, or other listed sex crimes when the victim is under the age of 14 years shall notify a
please officer”
b. Failure to comply is a fine and possible jail time
DUTY OF A SOCIAL HOST:
1. Harper v. Herman (Guy dives in shallow water on D’s boat- Misfeasance)
a. RULE: Knowledge does not create duty, there must be a relationship to victim
b. Holding: no duty for a social host to warn a guest that water is too shallow for diving
VOLUNTRAY ASSUMPTION:
1. RULE: once D voluntarily begins to render assistance (even if under no legal obligation) she must
proceed with reasonable care
2. Changes the situation from non-feasence to misfeasance
3. Continuing obligation once a voluntary undertaking has occurred
4. Duty arises only is the rescuers change of heart has worsened the victims condition
a. “Worse off” stipulation- provides more protection
5. This is consistent with the justification for superior attribute stipulation
a. We want people who can, to take care of each other
6. § 324 of the Second Restatement:
a. One who has not under any duty, but nonetheless takes charge of another who is helpless is
subject to liability caused by:
i. failure of the actor to exercise reasonable care to secure the safety of the other while
within the actor’s charge, OR
ii. actor’s discontinuing his aid or protection, if by doing so he leaves the other in a worse
position than when the actor took charge of him
b. (While § 324 does not mention if one is liable for harm resulting form actor’s discontinuance of
aid, is has been stated that “A, who has taken B from a trench filled with poisonous gas, does not
thereby obligate himself to pay for B’s treatment in a hospital, he cannot throw B back not the
same trench, or leave him lying in the street where he may be run over”)
COMPANIONS IN A SOCIAL VENTURE: (relates to voluntary assumption)
1. Farwell v. Keaton (Two guys out together at night, one gets hurt in fight- Misfeasance)
a. RULE: courts will find a duty where a reasonable men would recognize that one exists
b. Holding: Jury reinstated the verdict that D did have an affirmative duty to act based on a special
relationship
2. Ronald M White: (minor drinking and drugging in car)
a. Holding: they were obligated to restrain others from driving b/c they voluntarily assumed the duty
by excluding P from help from others.
3. Haben v. Anderson (kid dies from alcohol trying to join a school club/frat)
a. Holding: D allowed member to place decedent unconscious in his room, thus he voluntarily
assumed duty to protect from harm and he did not do that = breach of duty
PREVENTING A THIRD PARTY FROM ASSISTING:
1. Section 327 (Creates basis for liability against one who negligently prevents aid)
a. “one who intentionally prevents a third person from giving to another aid necessary to prevent
harm to him, is subject to liability.” (Malando case)
2. Molando (train ran over trespasser and employees tried to dissuade rescuers)
LIMITING THE STRETCH OF RELATIONSHIP:
1. Strauss v. Belle Reality Co. (old man falls down stairs in a blackout trying to get water)
a. RULE: No relationship= no duty = no neg.
b. Note: this case was also based on policy reasons, to cover foreseeable parties while at the same
time contrain liability to manageable levels
c. Dissent said: different view of public policy, ignore the burden of those who are physically injured
d. FAVORS INDIVIDUAL AUTONOMY
2. Moch v. Rensselear Water (Cardozzo’s weakest opinion)
a. A fire results from water companies failure to supply water
b. Was dismissed at court of appeal
c. Cardozzoo says this at most was a denial of a benefit
d. Dichotomy collapses- fear of overwhelming tort liability drives this case.
Pulka v. Edelman (P struck by driver pulling our of D’s garage)
a. Holding: No duty b/c garage has no reasonable opportunity to control the conduct of drivers
i. It would put an unreasonable burden on garage
b. Dissent: they should have taken precautions (sign)
c. FAVORS INSURANCE RATIONALE
STAUTES AND DUTY:
1. Uhr v. East Greenbush Central School District (Scoliosis Testing)
a. RULE: Statutory command does not necessarily carry right of private enforcement by means of
tort litigation (Mark G. v. Sabol)
b. Holding: No duty
2. Three Prong Test: (from Sheehy v. Big Flats Community Day)
a. CLASS OF PERSON: whether the plaintiff is one of the class for who’s particular benefit the
statue was enacted
b. LEGISLATIVE INTENT: whether recognition of a private right of action would promote the
legislative purpose; and
c. PURPOSE: whether creation of such a right would be consistent with the legislative scheme (this
was not met in case)
3. Second Restatement § 874(a)
a. “when a legislative provision protects a class of persons by proscribing or requiring certain
conduct but does not provide civil remedy for the violation, the court may, if is determines that the
remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the
effectiveness of the provision, accord to an injured member of the class a right of action, using a
suitable existing tort action or a new cause of action analogous to an existing tort action.”
CAUSE OF HARM:
1. § 321 of Second Restatement:
a. One who has done an act and later realizes or should realized that the act creates an
unreasonable risk of physical harm to another is under a duty to exercise due care to prevent the
risk for occurring, even though at the time the actor had no reason to believe his act would create
the risk
2. MOTOR VEHICLES STATUTES: some states has adopted criminal statutes imposing a duty to a driver
of any vehicle involved in a accident resulting gin injury is required to render to any person injured
reasonable assistance regardless of fault.
DUTY TO PREVENT ADDITIONAL HARM:
1. § 322 of the Second Restatement:
a. Actor has a duty to prevent further harm if he knows or has reason to know that by his conduct,
(whether tortious or innocent), he has caused bodily harm to another as to make him helpless and
in danger of further harm
LIMITING DUTY:
3.
ix.
x.
xi.
xii.
d. OBLIGATIONS TO A THIRD PARTY:
i. Justification: access to information will promote safety
ii. Note: View arguments in appendix for legislative debate on Tarasoff
iii. RULE: The relationship between D and a third-party may be such that the D has a duty to control that party and
prevent him from harming the P. No relationship required between P and D, on that P is a FORESEEABLE
VICTIM.
a. NOTE: when there is no foreseeable victim, no duty arises
2. § 315 of the Second Restatement
a. Duty of care can arise from
i. A special relation between the actor and the third person which imposes a duty upon the
actor to control the third person’s conduct, OR
ii. A special relation between the actor and the other which gives to the other a right of
protection
3. CA CIVIL CODE: therapists are immune from liability for failure to warn unless:
a. Patient has communicated serious threat of physical violence against a reasonably identifiable
victim
4. § 316-319 of the Second Restatement
a. explain what constitutes a relationship under these circumstances
b. An actor who knows or should know that he or she has the ability to control the their person and
knows or should know of the need for the action, comes under a duty to do so to
1. Parent child (316)
2. Master-servant (317)
3. Possessor of land or chattels (318)
§ 319 of the Second Restatement:
a. “One who takes charge of a third person whom he know or should know to be likely to cause
bodily harm to others if not controlled is under a duty to exercise reasonable car to control the
third person to prevent him from doing such harm”
CRITERIA COURTS USE TO SEE IF DUTY ARISES:
1. ** Foreseeability of harm (Most Important Criteria)
2. Degree of certainty that P suffered injury
3. Closeness b/w D’s conduct and injury suffered
4. Moral blame attached to D’s conduct
5. Policy of preventing future harm
6. Burden on D and consequences to community of imposing a duty to exercise care and imposing liability for
breach of duty
7. Availability, cost, and prevalence of insurance for the risk involved
8. Specific Identity of potential victim was known
CASE(S):
1. Tarasoff v. Regents of University of California (Girl gets killed by Dr’s patient)
a. NON-FEASENCE
b. RULE: When there is a foreseeable victim there is a duty
c. RULE: The therapist is required to exercise 'that reasonable degree of skill, knowledge, and care
ordinarily possessed and exercised by members of (that professional specialty) under similar
circumstances.
IMPOSING DUTY BEYOND A PHYSICIAN PATIENT RELATIONSHIP:
1. See long version of notes for cases involving this topic
DUTY TO UNIDENTIFABLE 3rd PARTIES/FALSE STATEMENTS AND DUTY:
1. Section 311 Restatement Torts
a. (1) One who negligently give false information to another I subject to liability for physical harm
caused by action taken by the other in reasonable reliance upon such information, where such
harm results
i. (b) to such third persons as the actor should reasonably expect to be put in peril by the
action taken
b. (2) Such negligence may constitute of failure to exercise reasonable care
i. In ascertaining the accuracy of the information, OR
ii. In the manner in which it is communicated
2. CASE(S):
a. Randi W. v. Muroc Joint Unified School District (Misleading recommendation leads to sexual
abuse of student by principle)-MALFEASENCE
i. RULE: In general, ALL person have a duty to use ordinary care to prevent others from
being injured as a result of their conduct.
ii. Holding: ruling for P on basis of fraud and negligent misrepresentation.
1. Liability may be imposed if the recommendation letter amounts to an
affirmative misrepresentation presenting a foreseeable and substantial risk of
physical harm to a third person
2. P’s school reasonably relied on statements that were misleading
iii. NOTE: lost of negligence per se – D’s failure to report charges of Gadam’s improper
activities to the appropriate authorities pursuant to state statutory law fails to afford an
alternate basis for tort liability in this case
1. Deceit= suppression of a material fact by one who gives misleading information
of other facts.
b. Garcia v. Superior Ct:
i. Holding: under section 311 a parole officer has a duty to exercise reasonable care in
giving victim information regarding paroled who killed her
c. Boone v. Rivera- (woman says husband is not dangerous- he shoots cop)
i. Holding: False statement exposed her to liability
d. Palmer v. Farmer (husband molested little kids she invited over to play in their pool)
i. Holding: there was a special relationship with children that required her to exercise due
care
e. Eric v. Better (woman and son move in with molester)
i. Holding: No duty b/c the mother didn’t know he still behaved this way
f. Hopkins v. Fox
5.
iv.
v.
vi.
vii.
i. Whether a person owes a duty of reasonable care toward another turns on whether the
imposition of such a duty satisfies an abiding sense of basic fairness under all
circumstances in light of considerations of public policy
ii. Must identity, weigh, and balance several factors
1. relationship between parties
2. nature of attended risk
3. opportunity and ability to exercise care
4. Public Interest
g. Jawarski v. Kiernan(suit brought against parents of a 13-year old rape victim)
i. §316 of Restatement:- A parent is under at duty to exercise reasonable care so to control
his minor child as to prevent it from intentionally harming others or form so conducting
itself as to create an unreasonable risk of bodily harm to them, if the parent
1. knows or has reason to know that he has the ability to control his child
2. knows or should know of the necessity and opportunity for exercising such
control
ii. Limits legal consequences to controllable degree
1. foresseablity
2. likelihood of injury
3. consequences of guarding against injury
4. similar to Hand’s formula
viii. SUPPLIER OF CHATTELS:
1. Restatement of Torts Section 390
a. One who supplies directly or through a third person a chattel for the use of another whom the
supplier knows or has reason to know to be likely because of youth, inexperience, or otherwise, to
use it in a manner involving unreasonable risk of physical harm to himself and others whom the
supplier should expect to share in or be endangers by its use, is subject to liability for physical
harm resulting to them
1. Extended the rule to individuals such as sellers
b. Restatement Comments: Rule applies to all sellers, lessors, donors lenders, and all kinds of bailers
i. Negligent entrustment theory requires a showing that the entrusted knew or should have
known by some reason why entrusting the item to another was foolish or negligent
c. KEYS IN THE IGNITION (see extended notes)
d. GUNS (see extended notes)
2. CASE(S)
a. Vince v. Wilson: (Car accident cause by boy who didn’t have license and grandmother bought him
the car- misfeasance)
i. RULE: Negligent entrustment should be applied to a person who knowingly provides
funds to an incompetent driver and a person who sells car to diver
1. “Liability arises out of the combined negligence of both, the negligence of the
one in entrusting the automobile to an incompetent driver and of the in its
operation”
ii. Holding: Liability for a person who provides the instrument of harm liable if that person
knows or has reason to know that because of incompetence driver might harm another
Therapist
Employers – School
district
Parents of victim
P killed by d’s
patient –
D has a
relationship to
foreseeable victim
Failing to warn
the victim.
Girl who was molested
Third party – relationship
between p and school
district
Defendant
Plaintiff
Relationship between P & D
Negligent Act
Injury
Death
Affirmative
recommendations leading
to injury =
misrepresentation
Molestation
Car salesman
Driver
Wilson - $$$
Aunt in accident
D supplied money- third party injured
Bought car for unlicensed driver.
Car accident
D’s Relationship to
Instrumentality
Misfeasance/Nonfeasance
Other Important factors
Access to
information –
therapist patient
relationship
- didn’t take
necessary steps.
Nonfeasance
(courts are more
likely to find
liability once they
find misfeasance)
Violence
predicted on
specific victim.
He had knowledge of
previous acts –
misrepresentation
- recommender.
Knowledge
D put dangerous instrumentality into d’s
hands.
Misfeasance
Misfeasance
Stronger relationship –
stronger case is
Possible innocent construction – didn’t
intend for him to drive it until he got a
license.
- Case for liability stronger in Vince
than in Tarasoff – high risk – she put
the time bomb in his hands unlike the
therapist in Tarasoff.
ix. Social Host Liability to a third party:
1. Hansen v. Friend: (minor who is injured as a result of alcohol intoxication)
a. Holding: P has a cause of action against a social host who supplied the alcohol based on statutory
violation.
b. Note: P’s try and use this to extend to third parties
2. Reynolds v. Hicks: (Drunk kid at wedding)
a. RULE: no duty to 3rd person injured by intoxicated minor
b. Holding: Social Hosts owed no duty to third persons injured by the intoxicated minor
c. Policy reasons:
i. Social Hosts do not profit
ii. Social host liability would extend too far
Year
1988
Case
Burkhart
1992
Hansen
1990
Reynolds
Parties
Adult guest v. social
host
Minor v. social host
(violated statute)
3rd person hurt by
minor guest v.
social host
Liable
No
Yes
No
V.
CAUSATION:
CAUSE IN FACT: connection between D’s negligence and P’s injury
i. “BUT FOR” TEST:
CASE(S):
i. Stubbs v. City of Rochester (P contracted typhoid b/c of sewage in water)
1. RULE: A party establishing facts from which it can be said with reasonable certainty that the direct cause
of harm was one for which D was responsible
a. If two or more possible causes exist, for only one of which the D is responsible, P must prove that
it can be said with reasonable certainty that D’s neg. was the direct cause of his injury
2. Holding: Trial court granted non-suit (entitled to most favorable inference deduced from evidence) Appeal
reversed and ordered a new trial
a. Note: we are unsure of who one here- all the court says is that reasonable certainty is sufficiently
in doubt that a jury verdict either way would be tolerated
ii. Zuchowicz v. United States (Drug over dose) (issue over expert testimony)
1. Holding: (testimony) affirm ct’s ruling on allowance of expert witness testimony. Evidence has shown
enough o permit the jury to conclude excessive dosage caused harm
2. Note: P Must prove that negligence (in over prescribing the drug) was the cause of the harm
3. Note: Logical Fallacy of: Post Hoc Ergo Properto Hoc:
a. Must be direct evidence linking wrong ot harm
i. Cardozo1. increased chances that a particular type of accident would occur
2. mishap of that sort did happen
3. Up to the neg. party to bring evidence denying “but for” cause
a.
b.
c.
RECOVERY FOR FUTURE HARM:
i. Three Approaches to Probabilistic Recovery for Future Harm: (When D sues for future injuries that will result)
1. Present Recovery: if reasonable medical certainty that disease will develop
a. Mauro- present recovery from enhanced risk if “ a reasonable medical probability” exists that
disease will develop
2. Present Probabilistic Recovery: (lesser amount b/c not certain)
a. Award for increased risk
3. TWO DISEASE RULE: Sue When injury occurs:
a. P is told to sue again when injury occurs (most common)
b. Simmons (Pa.)- the “two disease” rule; no recovery for enhanced risk- recovery only when the
anticipated, more serious disease if fact occurs (that is, for the second disease itself)
1. mental anguish claim is added to second recovery
Pro – For Waiting (Wait for $)






Compensation is otherwise potentially denied to
those actually harmed, if there is a limited pool of
funds;
Compensation is being awarded to some who never
develop the disease, or who die from a unrelated
cause, or who contribute (e.g., through smoking) to
the eventual development of the disease;
Fairness- not awarding damages before injury exists
For P’s own good to wait- in order to get fair
compensation in the future
A great deal of authority is being given to (perhaps
non-robust) statistical evidence of probabilities
Intervening causes (smoking for example)
Con – Against Waiting ($ NOW)





Possibly insolvency of D before the disease
develops (D may go out of business)
Evidence and Proof Problems: (Stale evidence when
the disease develops)
Better deterrence if current liability
Awarding the compensation when it can still be
enjoyed by the prospective victim
Don’t want to subject someone sick with a disease to
have to come to court
d.
EVIDENCE SUBMISSION:
i. GATEKEEPING ROLE OF JUDGES: they determine if evidence is allowed
ii. Traditional Frye Test:
1. regarded as reliable in scientific community
iii. TEST FOR EVIDENCE:
DAUBERT FACTORS:
(Note: rejected ad overturned the Frye rule: required that a scientific theory be generally accepted by scientific community to be admissiblesee notes for frye test information)
1- Whether the theory can be (and has been) tested according to the scientific method
2- Whether the theory or technique had been subjected to peer review and publication
3- In the case of a particular scientific technique, the known or potential rate of error
4- Whether the theory is generally accepted
e.
LOSS OF CHANCE CAUSATION:
i. Liability for “loosing your raffle ticket”
ii. RULE: to recover for loss of chance, P must show (51% ) that the harm for which the treatment was sought was
made worse by loss of chance
iii. Reduced chance v. Ordinary Neg.
1. must prove to a reasonable certainty that b/c of D’s neg. he has lost a 25% chance of saving his leg
a. reasonable degree of medical probability that he has a 25% chance of saving his leg
b. (51/100) say’s he had a 25% chance of saving leg except for neg.
iv. THREE APPROACHES – (reasonable courts differ on effectiveness)
1. Deny all recovery unless victims chances were originally over 50%
a. P shouldn’t recover without loss
2. Allow damages based if jury determines D’s neg. was a substantial factor in hastening or precipitating
a. leave it to reasonable person standard
3. Allow damages based on % difference - P’s damages v. D’s neg.
v. Alberts v. Schultz: (medmal case, doctor recommends that he see another doctor in 2 weeks w/o doing any tests. As
a result of the delay, he needed to have leg amputated)
1. Issue: Should New Mexico recognize a cause of action for the increased risk of harm to a patient as a result
of doctors neg? If so, should this doctrine apply to the facts of the case?
2. Holding; Claim must fail, no causal link
3. Rule: No causal link = no liability
4. Note: did not should a window of time which during his leg would have been saved, f he was suitable
candidate for surgery, incomplete medical records, unsupported assumption.
LOSS OF CHANCE ELEMENTS:
Must prove that neg. reduced the change of avoiding the injury actually sustained
Loss of chance is the damage
Casual connection must be made between neg. and harm
Damages should be awarded on proportional basis as determined by the percentage value of patient’s chance for a better outcome prior to the
neg. act
Percentage change is multiplied by the total value of person’s life or limb
vi. Examples: (view chart next page)
Loss of Chance
Dr. Leave clamp in p
Dr. Misdiagnosis breast
cancer and performs
mastectomy on healthy
p
Dr. tell p to wait and see
about a suspicious mole,
which turns out to be
cancer
It’s September and Dr.
says she can’t see
patient until January
Ordinary Neg.
X
No Neg.
X
X
X
VI. PROXIMATE CAUSE: (legal cause)
TO REACH THIS POINT – P MUST HAVE PROVED
1- DUTY
2- BREACH
3- CAUSE IN FACT
(or they are sufficiently in dispute and can not be disproved by D as a matter of law)
a.
b.
c.
d.
e.
f.
g.
PROXIMATE CAUSE REQUIRES:
i. Cause in Fact and
ii. Policy considerations limiting D’s liability to persons and consequences that bear reasonable relationship to the
negligent act
1. Examples:
a. Unforeseen consequences
b. Intervening actors
Note: wherever proximate cause line is drawn it hinges on basic fairness principle
i. Must be an end to one’s responsibility to another to ordinary careless behavior at some point
ii. One Possible test: when D creates special extraordinary risks that p wouldn’t be subjected to otherwise
iii. At some point, there must be recognition that P has returned to the ordinary course of his life, even though, in some
sense, they have been altered forever by D’s neg.
SECOND RESTATMENT § 435
i. Considers:
1. If the actor’s conduct is a 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
2. The actor’s conduct may be held not to be a legal cause of harm to another where after the event and
looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary
that it should have brought about the harm.
CAUSE IN FACT V. PROXIMATE CAUSE:
i. The difference between the two is that:
ii. Cause in fact “but for” D’s act = no injury
iii. Proximate cause:
1. Arises only after cause in fact
2. Undefined policy considerations which limit D’s liability responsibility to person and consequences who
have some reasonable relationship to the cause in fact.
D’S ARGUMENT:
i. Instead d will argue that even a negligent d who actually caused the harm in question should not be liable for p’s
harm. NOT THE PROXIMATE CAUSE.
ii. Something unexpected has contributed to the occurrence of the harm or the severity.
HOW DO YOU ANSWER A PROXIMATE CAUSE PROBLEM:
i. Look for:
1. Evidence that D is cause in fact
2. Policy considerations that limit D’s liability to person and consequences which bear a reasonable
relationship to tortuous conduct
a. Examples;
i. Unforeseen consequences
ii. If there is an intervening cause (was there something else that happened)
TESTS:
i. GOOD TEST
1. Street in Foundations of Legal Liability 110 (1906)
a. It is always to be determined on the facts of each case upon mixed considerations of logic,
common sense, justice, policy, and precedent…The best use that can be made of the authorities on
proximate cause is merely to furnish illustrations of situations which judicious men upon careful
consideration have adjudged to be on one side of the line of the other.
ii. BAD TESTS (KIONKA)
1. Nearest Cause – Proximity in time or space has little bearing. Causes remote in this sense may be legally
proximate because they are directly and foreseeably related to the result.
2. Last Human Wrongdoer – May or may not be liable depending on intervening causes and scope of risk he
created (neg. hospital)
3. Cause v Condition: Some courts have sought to distinguish active “causes” from passive “conditions”
(eggshell) upon which they operate. Such a characterization is purely arbitrary in many cases
4. Substantial Factor Test – The substantial factor test is useful on the issue of cause in fact (BUT FOR), but
has little value on question of proximate cause, which is not factual or quantitative (Summers v Tice)
AREAS OF CONCERN:
IDIOSYNCRATIC REACTION (extent of harm)
UNFORSEEN HARM
UNEXPECTED MANNER
UNFORESEEN VICTIM
h.
i.
UNFORESEEN EXTENT of HARM
i. EGGSHELL PLAINTIFF RULE:
1. requires the D to take P as he finds him
2. even if that means the D must compensate the P for harm an ordinary person would not suffer
ii. RESTATEMENT § 461 :
1. “the negligent actor is subject to liability for harm to another although a physical condition of the other
makes the injury greater that that which the actor as a reasonable man should have foreseen as the
probable result of his conduct.”
iii. CASE(S):
1. Benn v. Thomas (fender bender results in heart attack b/c of prior heart condition)
a. RULE: Eggshell plaintiff rule applied- “a tortfeasor whose act, superimposed upon a prior latent
conditions results in a an injury may be liable in damages for the full disability.
b. Note: must first find neg.
2. View Extended Notes for other related cases
iv. SUICIDE: can be liable
1. Fuller v. Preis - Jury could find that irresistible impulse caused him to take his life
v. EMOTIONAL DISTRESS: can be liable
1. Actionable harm must be such that it would cause distress in the ordinarily sensitive person or the
reasonably constituted person.
vi. SECONDARY HARM: can be liable
1. Stoleson v. US- Developed hypochondria. Court observed the possibility that cause was medical advice
given to her after the injury. Can collect incremental as well as original damages – second harm would not
have occurred but for first harm.
2. Pridham v. Cash- Died in ambulance when driver had a heart attack. D liable for further injuries.
Reasonably requires medical attention be sought. Irrespective of if done in a proper of negligent manner.
Necessary step
3. Anaya v. Superior Court- Liability for aggravation during transportation.
4. Wagner v. Mittendorf- rebroke his leg when his crutches slipped.
UNFORESEEN TYPE OF HARM:
i. POLEMIS CASE: IN RE POLMIS – (agrees with wagon mound #2)
1. Facts: Moving benzine from one hold to another on ship a worker carelessly dropped a wooden board into
the hold. Fire broke out and the ship was destroyed.
a. Affirmed an award of full loss to the owners
2. Rule: Once the act is negligent it does not matter whether it was foreseeable.
3. Note: no longer good law. (its too harsh/unfair)
a. Reasonable foreseeabilty test should not be replaced with direct consequences test in neg.
ii. (WAGON MOUND #1) OVERSEAS TANKSHIP (U.K.) Ltd. V. MORTS DOCK & ENGINEERING CO., LTD.
1. Facts: Mort Docks operated a wharf for shipbuilding and repair in Sydney AUS. The freighter Wagon
Mound, (df), was moored when she discharged furnace oil into the harbor. The oil was ignited by molten
metal dropped by PL’s workmen
2. RULE: We can only hold defendant liable for the direct consequences of his negligent act if the direct
consequences were foreseeable
j.
k.
3. Holding: not liable
iii. Wagon Mound II (owners of Corrimal brought a separate action against the charters of the WM. Some evidence
that D should have been aware of some slight risk- absence of utility of D’s conduct)
1. RECOVEY WAS ALLOWED IN THIS CASE
2. Trial court held against P on neg. claim- appeal reversed
3. Judge interpreted trial courts’ to mean: d might have forseen a very slight danger of fire
4. If P made argument that D should have known potential hazard- D could have argued that P should have
known as well- contributory neg.
5. View Class notes to additional analysis
iv. Difference between TYPE and EXTENT:
1. (English case) WM + Smith v. Leech Brain (man develops canse) courts make distinction later on byt in
Polemis they didn’t
v. Proximate cause scenarios:
1. Idiosyncratic reaction (Benn)
2. Secondary Add on Harm (notes p 403)
3. Intervening misconduct
INTERVENING MISCONDUCT:
i. McLaughin v. Mine Safety Appliance Co. (heat bricks improperly used by nurse burn victim)
1. RULE: Gross intervening neg. breaks the causal link
2. Black Letter Law: The Negligent act of a third party may allow a defendant to be excused from liability for
his negligent act
a. When knowledge of the latent danger or defect is actually possessed by the original vendee, who
then deliberately passes on the product to a third person without warning, liability is not extended.
b. Intervening gross misconduct eliminates liability against manufacturer
3. Holding: Fireman’s conduct = gross intervening neg.
UNFORESEEN VICTIM:
i. Psalgraf v. Long Island Railroad (fireworks in a bag)
1. BLACK LETTER RULE: If there was no foreseeable hazard as the result of an outwardly-seeming
innocent act regarding the injured party, the negligent act is not deemed a tort
2. Holding: Railroad’s neg. was not the proximate cause of D’s injuries
3. Note: used B>PL
ii. CARDOZO V. ANDREWS:
1. Cardozo: (looks backwards) Duty is relational matter.
a. Negligence toward someone is not enough, must be breach of duty and cannot be any unless
harm was foreseeable, person must sue for harm on won behalf
b. duty is a prerequisite before the other element of a prima faci torts case matter
c. Harm must be foreseeable!
d. Restatement §281 Consequences must be rooted in a “wrong”. I
e. f there’s wrong at all it’s only in property interest
f. Referenced Polemis
2. Andrews (dissent): (looks forward)
a. Every man owes the duty to the world at large to refrain from acts that may unreasonably threaten
the safety of others.
b. Liable for harm that’s proximate cause of his negligent act even if not foreseeable. Only issue is
“proximate cause” policy reason to limit liability in a certain case.
c. Only issue is where there is a policy reason for limiting recovery in a particular case
d. Negligence in Psalgraf was pushing the passenger
iii. KINSMAN: (Crazy flood in Buffalo during spring melt- boats get caught at bridge and flood area)
1. Palspragh test: foreseeable, identifiable victim
a. Victim in this case all downstream
b. Claim of neg. against city was for failing to maintain the bridge
c. Difficult case b/c Contential (boat) was neg. b/c failure to inspect a divide at its dock over an
extended period of time. This neg. was not time specific- problem with holding them liable for the
flooding that occurred. Judge Friendly stated his agreement with WM case in his opinion (also
mention Polemis)
d. Less foreseeability against dock owner
e. Type v. extent of harm (raised in dissent of Polemis)
f. Makes effort to distinguish WM- noting damage caused by very forces that required exercise of
greater care than was taken
g.
The weight of authority reject the limitation of damages to consequences foreseeable at the time of
neg. conduct when consequences are direct and the damage, although other and greater than
expectable is of the same general sort.
iv. KINGSMAN II:
1. Another set of claims, here court rejected claims based on the higher costs of unloading ships due to
inability of tugs to reach them and the costs of obtaining substitute
2. In this case, negligence and an claim are too remote
Cause in Fact
Proximate Cause
Evidence that D’s act or omission was a necessary
- issues arise only after cause in fact established
antecedent to P’s injury - “but for” cause
- more or less undefined policy considerations
which limit d’s liability to persons and
consequences which bear some reasonable
relationship to the tortious act
- Unforeseen Consequences (palsgraf)
VII. JONT AND SEVERAL LIABILITY:
a.
b.
c.
d.
e.
f.
JOINT LIABILTY: if more than one person is a proximate cause of the P’s harm and the harm is indivisible, each D is
liable for the entire harm.
i. Example: 2 cars collied, if either D has been careful accident would not have occurred
1. P can sue together or separately
ii. Traditional Rule:
1. P may sue and collect from either or both D.
2. Risk of one D’s insolvency is put on the remaining D (not P).
3. Applies where D’s actions are concurrent (but independent) or joint (acted in concert). Based upon the
substantial factor test: their substantial factor caused the harm
4. But; where harm is divisible each D will only be liable for the harm he caused.
5. Modern trend is away from joint and several liability
6. Where one D has paid more than his share (of joint liability) he may often receive contribution
(reimbursement) from other D’s.
SEVERAL LIABILITY:
i. P has burden to secure recover from each responsible party
ii. D can only be liable for their portion of harm
Rationales:
i. Without this D’s would remain silent
ii. P does not have access to the proof
iii. Small # of wrongdoers all of whom breach duty- high likelihood of injury
iv. Fairness justification come into question when on D is solvent and is liable for entire harm, he is then forced to try
and collect from other D who may not have $, less of a problem when both D’s are solvent
Modern Developments
i. Comparative Negligence:
1. An attempt to modify the all or nothing approach to contributory neg.
2. Attempt to make comparison’s among D’s bear only the responsibility for the harm caused
ii. 5 Legislative Approaches :
1. Abolish Doctrine: solvent D only responsible for his share of harm
2. Abolish in cases where D is les than certain a % of fault – usually 50%
3. CA retained joint and several liability for economic damages but abolish for non-economic
4. Abolish doctrine when P partially at fault, but otherwise retained it
5. Abolished in many kinds of torts but retained it in toxic and environmental
6. VIEW CHART IN APPENDIX
Other Issues with Joint an Several Liability
i. Intentional Crimes:
1. sometimes allocating fault ot a person who was neg. rather than the one who committed the criminal act
ii. Absent Tortfeasors
1. Depends on state statue
iii. Immune tortfeasors
iv. Non-Delegable duties
1. one party may indemnity the other party
APPORTONMENT OF LOSSES
i. MARKET SHARE LIABILITY: Causation can be established against multiple defendants despite possibility of
specific identification of responsibility
1. ELEMENTS: If and only if the D’s
a. produced a common product
b. Represented a substantial portion of the market
2. Several liability only, named D’s only pay their [market] share (for 100% recovery must name all D’s)
3. No inflation (don’t inflate market shares of named D’s to make %100)
4. No exculpation (doesn’t matter if D can prove it wasn’t him)
5. National market used (rather than state, local, etc. )
6. Where product is socially valuable ct is less likely to apply market share.
a. Left open a bunch of issues
i. companies representing less than 100% of market could be held for 100% of damages
ii. Whether D’s were jointly or severally liable
iii. Whether market was national or some smaller unit
7. Fungiblity: products made pursuant to a single formula
a. Also in asbestos, lead pait, and vaccines
8.
g.
h.
Statutes of Repose:
a. May be applicable in these cases so SOL does not run, does not start running until a specific event
occurs
9. MARKET SHARE APPROACH IN NY:
a. NY doesn’t recognize a defense even if D can prove he did not produce the cause of harm of P
b. cuts liability from causation
c. establishes funding for legislative compensation
MUTLIPLE DEFENDANTS:
i. CASE (S):
1. Stubbs v. City of Rochester, Zuchowicz v. US
a. Traditional approach is that P must prove specific person caused harm.
2. Summers v. Tice (Hunters both shoot, one hits, which one?)
a. RULE: Where a group of persons are on a hunting party and two of them negligently fire a gun in
the direction of another, who is thereby injured, both of those firing are liable for the injury
suffered.
b. Holding: Both liable when can not establish who is at fault
3. Hymowitz v. Eli Lilly & Co. (drug consumed by pregnant women has adverse effect on children)
a. RULE: In general, in products liability suits you must identify manufacturer that cause the harm,
DES cases area n exception.
i. If plaintiff can’t prove specifically which of several possible defendants caused his
injury, but is able to show that all manufacturers produced the same fungible product, all
defendants manufacturers will be held liable based on their proportion in the market
share.
b. MARKER SHARE LIABILTY USED
SPECIAL CASE OF TOXIC HARM:
i. 4 CRITERION FOR RECOGNIZING CLAIMS:
1. significantly exposed
2. to proven hazardous substance
3. tortuous conduct of d
4. as a proximate result of the exposure p has suffered increase risk
5. reasonably necessary for p to undergo diagnostic medical exams
6. monitoring procedures that make early detection of a disease possible.
ii. 3 MAIN PROBLEMS IN ENVIRONMENTAL LIABILITY
1. Identification
a. Often breed disease rather than cause immediate harm
b. Time lag issues.
c.
Intertwined with other risks of living
d. relies on a lot of evidence and probability judgments.
2. Boundary
a. Post generational consequences
b. Victims of exposure that fear that they will develop the disease.
c. Unpredictable need and cost of treatment in the future
d. Intergenerational harm
3. Source
a. Traditional tort system two party system
b. Aggregate risk created by a considerable number of independent actors
c. Common pool = collective harm
iii. FOR OUR PURPOUSES WE FOCUS ON TWO POINTS:
1. Medical Monitoring - Sought as form of Damages by P. P says that D must give money for medical
monitoring and then once they get the money the P will spend it (to both sick and exposed)
2. Class actions – boundaries
iv. PROCEDURAL DIFFICULTIES:
1. Castano v. American Tobacco – variations in state law and doubts about Rule 23 (b)(3) - tobacco
litigation not suited for aggregate tort treatment.
2. Amehem Prodcuts v. Windsor – interpretation of Rule 23, court of appeal through out major class action
claim. Included already injured and exposure only victims. Wide variety of diseases.
i. Victims share little in common
3. Ortiz v. Fibreboard – failure to prove that the fund was limited except by agreement of the parties
v. MEDICAL MONITORING:
1. Bower v. Westinghouse
a. No present injury, future medical monitoring
b.
c.
Court said usually recognized when coupled with present injury
Court then refused to treat physical harm as a necessary condition to allowing medical monitoring
costs
2. Potter v. Firestone Tire
a. Public health interests for medical monitoring
b. Deterrence value
c. Availability of remedy before harm manifests (cure, treatment)
d. Fairness & justice.
vi. DISEASE DOES NOT HAVE TO BE FATAL
1. Bourgeois v. AP Green Indus - Peace of mind in knowing fate (either does not have disease as shown
through medical tests) or does and can get his affairs in order