Torts Outline
Week 1: Fundamentals
A. Elements of Tort Liability (Order in which it should be looked at)
1) Damage
2) Duty
3) Negligence
4) Causation
B. Fault Principle – “No liability without fault” – Must establish negligence.
C. Social Welfare Goal - Minimize the total cost of accidents and accident avoidance.
D. Corrective Justice - The victim’s entitlement to safety and the actor’s duty to avoid
exposing the victim to the risk of harm should reflect the parties’ basic moral obligation
to treat each other as equals. Want to put victim’s back in the original state they were at
before the damage. (fault is always needed to determine liability for corrective justice to
apply)
E. Deterrence - the action of discouraging an action or event through instilling doubt or fear
of the consequences (Deterrence through damages when negligence is present)
Fundamentals Case Law
“Falling Bag Case”
I.
Facts: A bag fell on the plaintiff while they disembarked from a plane
Holding: Not liable because there was no negligence present. To have the flight attendants
police people off the plane or have the planes retrofitted to stop bags from possibly falling would
bare a high cost to the plane industry and society as a whole due to the congestion it would create
in air traffic.
“Bouncy House Case”
II.
Facts: Bouncy house flew from one person’s backyard to the others damaging their deck.
Holding: B<PL formula should be applied because the plaintiff received no benefit from the
bouncy house. The defendant is liable for exposing their neighbor to a non-reciprocal risk.
Week 2: Understanding Negligence
A. The Learned Hand Formula (Establishing Negligence)
1) B < PL (Result: Negligence Present)
2) B = Burden of Precautions
3) P = Probability of damage occurring
4) L = Possible loss/damage that could occur
B. Economies of Scope & Scale
1) Economies of Scope – Using the same resource for multiple activities
2) Economies of Scale – Using the same resource for one activity over a period of
time (Done with a durable precaution that protects against multiple accidents.)
C. Durable Precaution - Any precaution that is only a one-time cost that could be
beneficial over a period.
1) Think of overall damage reduction when thinking of B (burden). If precaution
isn’t taken and the burden could help over a variety of activities the burden needs
to be divided by the number of those activities.
Understanding Negligence Case Law
I.
United States v Carroll Towing Co. (2nd Cir. 1947)
Facts: A barge got loose at night, causing damage to other boats in the harbor.
Holding: Because they didn’t take the precaution of employing someone at nights, they are
liable under B<PL. Employing someone would display economies of scope and scale because
that person could have stopped damage to their own barge and other boats and it could stop
multiple accidents over a period of time which reduces the B (burden) in the learned hand
formula.
II.
United States Fidelity & Guarantee Co. v. Jadranska Slobodna Plovidba (7th Cir.
1982)
Facts: Case where plaintiff fell through a hatch that was opened, after unpacking the ship. Sued
the boat owner.
Holding: The boat owner could not be held liable due to B<PL analysis. Stevedores have a
specific job to take precautions when unloading the boat. Holding the boat owner liable would
create duplicate efforts which are uneccessary. The stevedore is also aware of where everything
is on the ship including that all the hatches remain open for unloading purposes making the
probability very low.
III.
Bethel v. N.Y.C. Transit Authority (N.Y. 1998)
Facts: A moveable seat collapsed on a guy, while he rode the bus.
Holding: The defendant was found liable after a B<PL analysis because they did not hire
someone to check the seats. Hiring someone would be considered a durable precaution that
would protect against multiple accidents over a period of time dramatically reducing the burden.
Week 3: Negligence, Strict Liability, and Regulation
A. Ultrahazardous Activity (Strict Liability) - The decision to engage in ultra-hazardous
activity makes the defendant automatically liable, given that the plaintiff was completely
innocent.
1) Reasoning - If you’re a real expert, no harm will be done, if you’re not, you
shouldn’t engage in that activity.
2) Definition - An ultrahazardous activity is an activity that has a high risk and a
low social value.
B. Vicarious Liability (employer liability for employee during the job/strict liability)
1) Multifactor Test
a) Did tort take place during employee’s work hours?
b) Did the tort take place on the space of employment?
c) Were the employee’s actions motivated to benefit the employer?
2) Public Policy Reasoning: Because it is unlikely that people with low income will
be sued, vicarious liability was put in place to give these people a reason to be
careful because they want to keep their jobs.
C. Apparent Authority (Vicarious Liability Continued) (Not restricted to hospitals)
1) under certain conditions, a patient will be able to sue the independent contractor
and the hospital because the patient was under the assumption that the contractor
was an employee. (Can’t over advertise oneself while not taking on the liability.)
a. Elements (Must satisfy 1 or 2, and 3)
i.
Representation by the hospital that the allegedly negligent doctor
was its employee/agent; or
ii.
When the doctor creates the appearance of authority, the hospital
must know about and affirmatively accept or acquiesce in that
conduct; and
iii. Patient must show detrimental reliance. (Detrimental means that
some type of harm is suffered if nothing is done)
D. Homestead Laws - Homestead protection laws protect homeowners and other small
property owners from losing all their home equity during the bankruptcy process. These
laws are designed to prevent homeowners from losing their primary residence during
difficult times. Specifically, homestead laws allow individuals to declare a portion of
their property as "homestead" and therefore protected from a forced sale.
E. Estoppel - A bar against the assertion of a legal claim or right that contradicts earlier
conduct or the legal establishment of a fact.
Negligence, Strict Liability, and Regulation Case Law
I.
Defining Ultrahazardous Activities
Indiana Harbor: Railroad transportation case resulting in accidental spillage of 1,000 gallons of
carcinogenic chemical in a densely populated area – (Not Abnormally Hazardous)
Guille v. Swan: Riding a hot air balloon over Manhattan and accidentally landing on another
person’s cucumbers tomatoes and flowers. – (Abnormally Hazardous)
II.
Haddon v. Lotito (1960) (Ultrahazardous Activity)
Facts: Firework event that went wrong and led to injuries of multiple spectators.
Holding: The defendant was not liable under an ultrahazardous theory because it was a public
firework show making it have a high social value.
III.
Christensen v. Swenson (Utah 1964) (Vicarious Liability)
Facts: Car accident was caused by the negligence of a security guard, on his way back from
lunch. Plaintiff sued his boss.
Holding: The employer was liable because the multifactor test was satisfied (Displays the
broad interpretation the courts use in determining whether the multifactor test is satisfied
or not.)
IV.
York v. Presbyterian Hospital (Ill. 2006) (Apparent Authority)
Facts: Medical malpractice during surgery relating to the anesthesia
Holding: The plaintiff could not sue on a theory of apparent authority because he could not
satisfy neither 1 or 2 of the elements needed. The anesthesiologist was a private contractor and
the defendant knew about it because they were the ones who requested his services.
Week 4: Proving Negligence
A. Statutes - Compliance with a statute does not exonerate someone from liability.
However, not complying with a statute automatically imposes liability.
B. Customs - Custom or usage may be introduced to establish the standard of care in a
given case. However, customary methods of conduct do not furnish a test that is
conclusive for controlling the question of whether certain conduct amounted to
negligence.
C. Res Ipsa Loquitur - The circumstantial evidence doctrine of res ipsa loquitur (“the thing
speaks for itself”) deals with those situations where the fact that a particular injury
occurred may itself establish or tend to establish a breach of duty owed. Where the facts
are such as to strongly indicate that plaintiff’s injuries resulted from defendant’s
negligence, the trier of fact may be permitted to infer defendant’s liability. Res ipsa
loquitur requires the plaintiff to show the following:
1) Inference of Negligence - Plaintiff must establish that the accident causing his
injury is the type that would not normally occur unless someone was negligent.
Example: A windowpane fell from a second story window in Defendant’s
building, landing on Plaintiff. Res ipsa loquitur may apply.
2) Negligence Attributable to Defendant - Plaintiff must establish evidence
connecting defendant with the negligence in order to support a finding of liability,
i.e., evidence that this type of accident ordinarily happens because of the
negligence of someone in defendant’s position. This requirement often can be
satisfied by showing that the instrumentality that caused the injury was in the
exclusive control of defendant, although actual possession of the instrumentality
is not necessary.
 Multiple Defendants Problem - Where more than one person may have
been in control of the instrumentality, res ipsa loquitur generally may not
be used to establish a prima facie case of negligence against any individual
party. (Won’t be able to establish 2nd criteria)
3) Plaintiff’s Freedom from Negligence - Plaintiff must also establish that the
injury was not attributable to him, but may do so by his own testimony.
D. The English Res Ipsa Loquitur - shifts the actual burden of proof. (the down fall with
this is that it gives the plaintiffs two benefits; 1) satisfying res ipsa loquitor moves a case
to a jury AND 2) once to the jury the burden of proof (that there was no negligence) is
shifted to the defendant
E. Subsequent Measures - When measures are taken that would have made an earlier
injury or harm less likely to occur, evidence of the subsequent measures is not admissible
to prove: negligence; culpable conduct; a defect in a product or its design. (Policy: Don’t
want to stop people from fixing a problem that caused a previous injury).
Proving Negligence Case Law
I.
The T.J. Hooper (Customs)
Facts: Tug boats were responsible for losing barges and its cargo. They argued that they weren’t
negligent because it is customary for tug boats not to carry radios.
Holding: Following customs does not exonerate one from liability. With the use of a B>PL
analysis, the burden of buying a radio is far less than the probability of possible damage making
them liable.
II.
McCarty v. Convo Fuels (Ky. 2015) (Statute)
Facts: The plaintiff, an independent contractor was installing a 1500-pound door at a mine. The
door fell, smashed his ladder, and he died. They raised a statutory argument that related to
accidents in a mine.
Holding: The defendant was not liable because the statute only applied to mining activities.
III.
Lamprecht v. Schluntz (Neb. 2015) (Res Ipsa Loquitur)
Facts: The tractor in the defendant’s field exploded and set fire to the fields of his own and the
plaintiffs. The plaintiff sued on a theory of res ipsa loquitur.
Holding: Did not satisfy the first element of res ipsa loquitur. Res ipsa loquitur does not apply
where the occurrence alone, without more, rests on conjecture, or where the accident was just as
reasonably attributable to other causes as to the negligence of the defendant. Can not presume
that the tractor was negligently maintained.
IV.
Rabena v. City of New York (Res Ipsa Loquitur)
Facts: The infant was severely handicapped, mentally retarded, and unable to speak. The bus
company transported the infant in a special vehicle to the association's school. When the infant
returned home, he had an injured leg.
Holding: Since there were two defendants’, the second requirement could not be satisfied
because it is unknown who had control over the instrumentality (bus company) or (School), or
even what the instrumentality was.
V.
Scott v. Dutton-Lainson Co. (Iowa 2009) (Subsequent Measures)
Facts: Plaintiff was working in a boat yard and a lift fell on his foot. He brought a products
liability claim against the defendant alleging that it was defectively designed.
Holding: The court ruled against the plaintiff and refused to take into consideration that they had
changed their design after the accident.
Week 5: Damages & Misfeasance v. Nonfeasance
A. Damages
1) Compensatory – damages for the value of the destroyed asset (Policy Argument:
Corrective Justice: put people back in the state they were at before the accident)
 Personal Injury and Death
 Property Damage
 Freestanding Emotional Harm
 Economic Loss
2) Punitive - Damages for compensation beyond the value of the asset. (Policy
Argument: punish unlawful behavior and deterrence) (Intentional, egregious
negligence)
B. Considerations in Determining Excessive Punitive Damages (BMW v. Gore)
1) Degree of Reprehensibility (moral)
2) Reasonable Relationship between the two awards (4,000:2 million)
(compensatory: punitive)
3) Comparison of punitive damages to the civil/criminal consequences.
C. Misfeasance v. Nonfeasance
1) Nonfeasance - is the failure to act where action is required — willfully or in
neglect. (Continuous omission; won’t have to worry about statute of limitations)
2) Misfeasance - the willful inappropriate action or intentional incorrect action or
advice.
Damages Case Law
I.
BMW v. Gore (Excessive Punitive Damages)
Rule: A state’s assessment of “grossly excessive” punitive damages against a defendant violates
substantive due process.
Facts: BMW repainted a car and sold it as new. After 9 months of driving it the plaintiff realized
and sued BMW. He was awarded $4,000 in compensatory damages and $2 Million dollars in
punitive damages.
Holding: The punitive damages were “grossly excessive” and violated BMW’s 14th amendment
rights.
II.
Mathias v. Accor Economy Lodging, Inc. (Court of appeals 7th Cir. 2003) (Example
of Exception to Gore: Intentional Tort)
Rule: A punitive damages award imposed against a defendant must be supported by sufficient
evidence that the defendant’s actions amounted to willful and wanton conduct.
Facts: The lodging company were aware that their beds were infested with bed bugs and did not
warn their guests.
Holding: Because this was an intentional tort and the actions were egregious, the Gore ruling is
not applied since the high amount of punitive damages is warranted. (allowed to surpass a single
digit ratio in this scenario.)
(Gore Exception: when a lawsuit is unlikely to be filed due to small compensatory damages
then the parameters of punitive to compensatory damages aren’t as strict allowing punitive
damages to exceed the single digit ratio. (Mathia v. Accor) (must be intentional/egregious)
Wanton Injury - is one precipitated by a conscious and intentional wrongful act or by an
omission of a known obligation with reckless indifference to potential harmful consequences.
III.
Jacques v. Sleenberg Homes (Example of Exception to Gore: Intentional Tort)
Facts: The defendant needed to deliver a small home to its customer. To do that they needed to
cross through someone’s yard. Upon asking permission, the plaintiff said no. The defendant
proceeded to do it anyway. The damage done was only the removal of snow on his yard, which
was replaced by more snow.
Holding: Plaintiff received $100,000 in punitive damages because it was an intentional tort that
blatantly disregarded the property owner’s wishes.
IV.
Union Pac. Ry. Co. v. Cappier (Kan. 1903) (Nonfeasance)
Facts: Boy was a trespasser and crossed the tracks in the defendant’s train yard. He was hit by
one of the cars. The people there did nothing to help his injuries.
Holding: The people there had no duty to help the child.
Week 6: Duty of Care
A. Duty of Care: Established through special relationship through
1) Reliance instilled by the defendant in the plaintiff (Must be from one person to
another)
2) Risk imposed on the plaintiff(s) by the defendant (Can be to a group of people)
3) Statute (contractual)
B. Special Relationship Through Statute 3-part test
1) The statute’s beneficiary (was statute aimed to protect her as part of a group of
people?)
2) Promotion of the legislative purpose (will it promote statutory purpose?)
3) Consistency with the legislative scheme (Tort liability shouldn’t promote
excessive deterrence on top of penalties that already exist.)
C. Third Party Endangerment
1) Negligent Entrustment - where one party (the entrustor) is held liable
for negligence because they negligently provided another party (the entrustee)
with a dangerous instrumentality, and the entrusted party caused injury to a third
party with that instrumentality. (Tarasoff Case) (Giving someone a gun that does
not know how to use it)
a) Test: (1) the defendant entrusts another with an inherently dangerous
instrumentality, (2) the defendant knows or should know that the other
person is likely to harm another with that instrumentality, and (3) the
person entrusted does in fact cause harm to another.
2) The Social Host Rule – Social hosts are not liable for serving alcohol to fellow
travelers unless they control something or someone who is dangerous, and the
hosts act negligently in controlling them to create a risk of harm (Example:
someone drunk jumps in your pool, liable because you control the pool).
a) Social Host v. Commercial Vendors
 If someone brings alcohol to my party (byob) you are not liable, if
you give the alcohol to them you can be found liable (still not
liable to third parties)
 Commercial vendor is always liable for accidents that occur to
third parties when selling alcohol to minors
3) Control Theory – Theory to impose liability, that the doctor controlled his/her
patient. (Hard to prove, psychology, Tarasoff)
Duty of Care: Case Law
I.
Harper v. Herman (Supreme Ct. Minn. 1993) (Risk Imposed)
Facts: Plaintiff was a guest on the defendant’s boat. When the defendant anchored the boat, the
plaintiff asked the defendant is he was going in the water. When the defendant responded in the
affirmative, the plaintiff dove in and severed his spinal cord. Plaintiff sued defendant.
Holding: Summary judgement was entered in favor of the defendant because there was no
special relationship between the two parties. (he never mentioned anything about diving and it
was unforeseeable that he would, not possible to have a special relationship through risk imposed
in this scenario).
II.
Palka v. Servicemaster Mgmt. Serve. Corp. (N.Y. 1994) (Reliance)
Facts: Plaintiff was hit by a fan that fell from a ceiling in the hospital.
Holding: Plaintiff could not recover because she did not have a special relationship with the
service company. She had a special relationship with the hospital and the hospital had a special
relationship with the service company. Lawyer missed an easy winner by not suing the hospital
under a theory of res ipsa loquitor.
III.
Strauss v. Con. Edison (N.Y. 1985) (Statute)
Facts: Power was out for 25 hours leading to the plaintiff falling in the apartment building (not
his actual apartment)
Holding: Plaintiff could not collect because he had no reliance on the electric company. The
plaintiff had a special relationship with the apartment building owner through his contract. But
that was limited to the premises of his actual apartment, not the common area. He attempted to
use the contract that the apartment building had with the electric company, but he can’t use that
contract to establish a special relationship.
Notes: No special relationship because everyone lost power. The company is too big to fail, and
their social benefit is too high which would lead courts to interpret the special relationship
narrowly.
IV.
Tresemer v. Barke (Ct. App. CA. 1978) (Reliance and Risk)
Facts: Doctor installed “Dalkon Shield” a contraceptive IUD in the patient’s uterus. After the
patient moved to another town and stopped being his patient, the doctor failed to inform her that
Dalkon Shield was discovered to cause pelvic inflammatory disease and loss of fertility. Plaintiff
sued her doctor for the operation and not contacting her that the Dalkon Shield is
Holding: Doctor can be held accountable because of the special relationship they have through
the reliance instilled by being her doctor and through the risk he imposed by installing the
‘Dalkon Shield.” The statute of limitations also doesn’t have to be worried about because it was
a nonfeasance and continuous omission of letting her know of the risk. No way of quantifying
when the statute of limitations should have started.
V. Randi v. Muroc School District (Supreme Ct. CA. 1997) (Risk)
Facts: Action for sexual assault filed by a victim student against assailant’s school district that
recommended the assailant to her school as a teacher.
Holding: School district is liable due to their continuous nonfeasance of withholding information
from the school district the teacher was recommended to. Their special relationship with the
plaintiff comes from the risk posed when they recommended a sexual predator to another school
district.
VI.
Uhr v. East Greenbush Cent. School District (N.Y. 1999) (Statute)
Facts: Defendants violated NY statute (education law section 905 (1)) that required them to test
the infant plaintiff annually for scoliosis. (omission: owed duty to student)
Holding: The school will not be liable because the school already has a strong incentive to comply
with the statute because their funding could get cut etc. (Didn’t satisfy part 3 of the 3-part test)
VII.
Tarasoff v. Regents of University of CA. (Risk Imposed)
(DEVELOPED CONTROL THEORY)
Facts: Case where therapist was told by a patient that he was going to kill Tarasoff. Didn’t warn
her and patient ended up killing her.
Holding: Although it was difficult to prove the special relationship of risk because the patient was
allowed to leave the office, since the psychologist exercised control over the patient, she was held
liable.
Week 7: Emotional Harm & Economic Loss
A. Derivative Emotional Harm (Parasitic) – Always actionable when it is derived from
the victim’s physical injury. Juries will often give big damages for Pain, suffering, loss of
enjoyment of life.
1) Loss of Consortium (spousal and, in some states, filial as well), Includes: love,
companionship, comfort, affection, sexual relationships
 The person who suffered injury who has a spouse and that spouse can say
that "our spousal life has been partially or wholly destroyed from this act.”
 Works for people who have a stable marital relationship that endured for
substantial period of time and the derivative victim is in his or her middle
age then the recovery will be from 1 – 1.5 million dollars
 If there is no physical injury you will not get any of these ^
B. Emotional Harm/Witnessing the death/severe damage of a loved one
1) Orthodox Approach: The witnessing plaintiff must be present in the “zone of
danger” to recover. Simply seeing a loved one endure serious injury is not
sufficient to collect damages if one is not in the “zone of danger” (objectively).
Some courts require proof of physical manifestations; however, others allow
freestanding emotional harm.
a. Impact Rule: Holds that you can recover for freestanding emotional
harm, but only if there was actual impact (touching) as a result of
defendant’s negligence.
b. Zone of Danger: Holds that you can recover for free standing emotional
harm if you are in the “zone of danger” meaning that the endangerment
took place in a way that made you fear imminent harm
2) Modern Approach: plaintiff must be present at or close to the scene of the
accident, (but no recovery for standalone emotional harm when physical
manifestation not proven). Adopts a broad standard that allows recovery for
serious emotional harm with physical manifestations (minority approach) (Easier
to recover)
C. “Pure” Economic Loss – Not Actionable in Torts
1) E.g: Two buildings collapse due to negligence forcing a deli to temporarily shut
down because customers are unable to get to it because the road is blocked.
Because no actual damage was done to the asset, the owner of the deli can’t sue
for his pure economic loss because he has no rights to the customers that visit his
deli.
2) If the actual deli had been damaged, he could sue for the property damage and sue
further because the asset destroyed was a revenue generating asset which would
be calculated into his damages.
Emotional Harm & Economic Loss Case Law
I.
Wooden (Ca. 1998) (Emotional Harm)
Facts: Fright and emotional distress was alleged in a suit against a man who drove his car
negligently into the plaintiff’s property and almost hit the plaintiff.
Holding: This would be actionable under both approaches because the plaintiff was in the “zone
of danger” and he would need to prove some sort of physical manifestation caused from this
emotional harm such as nausea or vomiting when he tries to hang outside on his property again.
II.
Lawson (Ca. 1999) (Emotional Harm)
Facts: A plane crashed that was witnessed from a car dealership.
Holding: Would not be able to collect under emotional harm because they were not in the zone
of danger and the time that they were exposed to this alleged emotional harm only lasted 3
seconds.
III.
Zell v. Meek (Fla. 1995) (Emotional Harm)
Facts: Plaintiff sued apartment building owner for emotional harm after she witnessed her
husband die from a bomb that was set off in the building. The apartment building owner
apparently received bomb threats as well.
Holding: The defendant can be held liable because he had a special relationship with the
plaintiff (through their contractual agreement) that instilled reliance to her to keep the apartment
safe. However, since the impact rule was abandoned, plaintiff must prove physical
manifestations.
IV.
Metro-North Commuter R.R. v. Buckley (Supreme Ct. U.S 1997) (Emotional Harm)
Rule: To sustain a claim brought under the Federal Employers’ Liability Act for negligently
inflicted emotional distress, a plaintiff must sustain a physical impact or be placed in immediate
risk of physical harm.
Facts: Plaintiff was exposed to asbestos while on his job and sued for emotional distress.
Holding: Employer was not liable because the plaintiff was never actually in imminent danger
and because there was no actual harm done to him, he can’t sue for emotional distress.
V.
Madison Ave. Gourmet Foods, Inc. v. Finlandia Center, Inc. (N.Y. 2001) (Economic
Loss)
Facts: Accident led to a road being blocked off stopping consumers from reaching the plaintiff’s
food store.
Holding: Defendant is not liable because the plaintiff has no right to those consumers or be able
to prove that those consumers would go to her food store. Can not collect for economic loss.
Notes: There is no social loss either, since people can just go buy food elsewhere. It is merely a
reallocation of resources.
What would happen if driver drove into Madison Gourmet Foods store and it closed for 3
weeks?
 You must pay for the damage done to the store and for stopping the revenue generating
store. The asset you destroyed is profit generating making the defendant to have destroyed
something much more than just an asset.
 Difference from what actually happened – defendant didn’t do any damage to the asset
Exception to Pure Economic Loss
 If someone were to buy the opportunity to compete in a beauty pageant and then were
denied access to the competition, they would be able to collect because they purchased
the ability to compete.
 Difference from Madison Ave.: The plaintiff never purchased the right to sell food from
the defendant.
VI.
Cast Art. Industries v. KPMG (N.J. 2012) (Economic Loss)
Facts: Plaintiff purchased 15 million dollars’ worth of stock in Propel to merge his company
with in. He sued the defendant’s accountant stating that he reported false sales.
Holding: To sue under this theory, the plaintiff needs to have privity/near privity (special
relationship) with the accountant which he does not. The accountant only has a relationship with
his boss not with his boss’s clients. (common sense, who writes a 15-million-dollar check
without looking into the company’s books first).
VII.
Fisher Rule
 If a defendant negligently kills fish, fisherman can sue them. This is not a pure
economic loss case because no one owns the fish. This just creates incentive for
people not to negligently kill fish by allowing fisherman to sue.
 Parens Patriae – Attorney general suing someone for loss to society
Week 8: Cause in Fact
A. Causation Principle/Cause in Fact
1) A negligent defendant is only liable for the damage he/she caused and had a duty
to guard against or avoid
2) Both Cause in Fact and Proximate Cause need to be satisfied to be held liable
B. Cause in Fact Tests
1) “But For” Cause: but for the defendant’s negligence the damage would not have
occurred.
 Only if there is a multiplicity of causes can you move on to the NESS Test
2) Ness Test (Necessary element sufficient set): The defendant’s negligence being
necessary element in a sufficient set
Sufficient set – multiplicity of causes, the defendant’s negligence must be proven
to be a necessary component in this set of causes.
 Can only move on to sufficient cause test if Ness test can’t be satisfied
3) Sufficient Cause Test: (dichotomy) Must prove that damage would have
resulted regardless of the other causes.
4) Substantial Factor Test – has to be 51% responsible for damage (Need to go
through first three to use this)
C. Differential Etiology (Only applies to violations of public safety standard)
1) 2 step process done by an expert witness
2) Rules in every cause for damage (done by expert witness)
3) Rules out all causes with low probability (done by jury)
4) Leaving parties with one remaining cause
5) When adequate proof is available, and the damage suffered by the victim falls in
the category of damages that the statute aimed to prevent then there is a
presumption that the defendant is presumed to have caused this damage unless
they can prove otherwise (switches burden of proof to the defendant).
D. Alternative Liability – Liability imposed on negligent defendants, each of whom is
equally likely to have harmed the plaintiff. (Can choose to sue either defendant)
E. Market Share Liability – When an individual plaintiff can not determine which
manufacturer made the negligent product, damages will be split among all the
manufacturers based upon their market share.
Policy: It would stop people with small shares of the market to ever pay for damages and
they wouldn’t conduct themselves with a duty of care. (similar to vicarious liability, it
gives them a reason to conduct themselves with a duty of care.
Cause in Fact Case Law
I.
Hunter Hypo (Proximate Cause)
Facts: Hunter visits his friend’s cabin to have a beer. When he knocks on the door, his friend’s
nine-year-old child answers. The hunter asks the child to hold his shotgun while he joins their
father for a beer. The child drops the shotgun and breaks their toe. Is the hunter liable?
Holding: The hunter would not be liable because although the “but for” test is satisfied, the
proximate cause is not, exonerating him from liability. It is unforeseeable that a nine-year-old
doesn’t have the strength to hold a gun.
II.
Mahoney v. Beatman (Conn. 1929) (Cause in Fact)
Facts: A negligent drive caused an accident on a highway. This accident caused another driver in
a rolls Royce, who was speeding, to swerve off the road resulting in a crash of his own.
Holding: The defendant is liable for the damages because the cause in fact test is satisfied.
However, contributory negligence could be used to mitigate damages.
III.
June v. Union Carbide Corp. (10th Cir. 2009) (Multiplicity of Causes)
Facts: Town was created by defendant (mining corporation) for its employees. EPA deemed town
hazardous site and required remediation. Employees sued defendant after suffering from various
cancers/thyroid disease (don’t have to prove negligence, only causation) (didn’t bring up
differential etiology b/c no proof of statute violation)
Holding: Defendant was not liable due to the failure of the plaintiffs to prove the defendant was
the cause in fact. The “but for” test couldn’t be satisfied due to a multiplicity of causes (such as
smoking cigarettes or genetics). Since multiplicity of causes is present, analysis can be moved on
to the Ness test. However, the ness test can not be satisfied either.
IV.
Zuchowicz v. United States (2d Cir. 1998) (Differential Etiology)
Facts: Patient was taking prescription medicine that was labeled incorrectly. She was taking
double the normal dosage, resulting in her death halfway through the trial.
Holding: The defendant is liable due to his creation of the uncertainty to what caused the plaintiffs
death. Differential etiology was used to rule in all causes and rule out causes that were least
probably. Because after this was done and the dosage of the drug had the highest percentage of
causing the damage, the defendant is liable.
V.
Hendrix v. Evenflo Co. (11th Cir. 2010) (Differential Etiology)
Facts: Plaintiff alleged that her son sustained traumatic brain injuries when a child restraint system
manufactured by defendant malfunctioned during a minor traffic accident. Plaintiff further alleged
that those injuries caused the son to develop autism spectrum disorder (ASD) and a spinal cord
defect
Holding: Defendant was not liable because the plaintiff’s expert witnesses could not rule in the
cause using reliable scientific evidence.
VI.
Johnson v. Mead Johnson & Co. (8th Cir. 2014) (Differential Etiology)
Facts: plaintiff’s mother was feeding him formula that allegedly had bacteria in it. Plaintiff’s
mother alleged that this bacterium is responsible for the brain damage suffered by the plaintiff.
Holding: Defendant was not held liable because although the expert witness was able to rule in
that the bacteria could have been a cause for the damage, the jury decided that the cause was not
dominant.
VII.
Summers v. Tice (Cal. 1948) (Alternative Liability)
Facts: 3 hunters went hunting. When one of them called out a quail, two of the hunters shot at the
quail and the 3rd hunter was hit (in the eye). Both used same ammunition. Who’s liable?
Holding: Jointly liable unless one of the hunters can come to court and prove by fact that he wasn’t
liable. However, plaintiff gets to decide who he sues. Normally burden of proof is on the plaintiff
to prove 51% that defendant caused damage. However, this is an even split at 50-50 percent
switching the burden of proof to the defendant’s. Both are jointly liable because they either shot
the defendant in the eye or stopped him from getting the evidence needed to recover. (but for cause
test is satisfied in this scenario).
VIII.
Sindell v. Abbott Labs (Cal. 1980) (Market Share Liability)
Facts: Medication was taken by pregnant women that was linked to causing babies vaginal cancer.
However, medication was created by 5 manufacturers, making it difficult to figure out who is
liable. Plaintiff sued all 5 manufacturers.
Manufacturers Market Shares
a. 50%
b. 20%
c. 10%
d. 10%
e. 10%
Holding: Because it is impossible for the plaintiff to prove by the preponderance of the evidence
(51% percent responsible) because the highest market share is only 50%, each manufacturer will
be liable for a percentage of the damage that correlates to their market share.
Week 9: Lost Chances & Proximate Cause
A. Loss of Chances
1) When an already injured or ill plaintiff, chances of recovery is reduced by the
negligent actions of the defendant (ONLY APPLIES TO MEDICAL CASES)
2) Only applied to medical cases because health care providers undertake to
maximize a patient’s chance of survival, and that their failure to do so should be
actionable. (creates incentive to reduce negligence. Argument that people become
physicians because they want to help patients is not weighed enough to change
court’s decisions)
3) Loss of chance is only applicable when their pre-existing condition accounts for
more than 50% chance of death.
4) Damages = Original chance of survival – chance of survival after negligence
(39% - 25% = 14% of damages to be recovered) Then, if the difference, as
under your formulation, is 50% of less, the plaintiff gets the resulting
percentage of her damage; and if it's above 50%, then the plaintiff gets 100%
of the damage as causation will be proven by a preponderance of the
evidence.
B. Proximate Cause (Concerned with scope of liability not causation)
1) Proximate Cause (legal causation): The plaintiff’s damage must be within the
scope of the risk that the defendant had a duty to guard against or avoid.
2) A defendant’s negligence is a proximate cause of the plaintiff’s harm if causing
that harm was a foreseeable result of acting as the defendant did.
3) Harm-within-the-risk test: e.g. if a defendant negligently parks in front of a fire
hydrant the risk posed is that firemen won’t be able to access the fire hydrant
leading to the destruction of property/human life. If someone crashes into the car
and states that but for the defendant’s negligence of parking illegally, I would
have been able to stop.
4) Scope of risk: “an actor is not liable for harm when the tortious aspect of the
actor’s conduct was of a type that does not generally increase the risk of that
harm.”
5) Advanced Tests/Issues
a) Cases in which the harm the plaintiff suffers is remote in time or space
from the negligent conduct of the defendant (factor not determinative)
b) Cases of intervention and enablement, in which one party negligently
enables or increases the risk that another party will be engage in a tortious
act
c) Cases involving the issue of what must be foreseeable or, to put it another
way, when liability may be imposed even when some aspect of what
occurred was unforeseeable. (Unforeseeable plaintiffs & unforeseeable
type of harm) (Type: Palsgraf)
C. Egg Shell Rule
1) For proximate cause to be present there must be a duty for the defendant to
prevent the type of injury suffered by the plaintiff. (e.g. car accident, any physical
injury/property damages)
2) No duty to foresee the extent of damage, only duty to foresee type of damage, so
if my duty is to prevent injury to person, whether it is minor, or major is
immaterial, whatever damage you cause you pay for. (even if preexisting
condition is present)
Loss of Chances Case Law
I.
Dickhoff v. Green (Minn. 2013)
Facts: Plaintiffs sued alleging that the doctor negligently failed to diagnose their son with
cancer. No cause in fact because the patient already had cancer & can’t use preponderance of the
evidence because most patients have less than a 50% chance of survival
Holding: Doctor is held liable for the loss of chances the patient suffered due to the defendant’s
negligence making the defendant liable for a percentage of the damages.
II.
Matsuyama v. Birnbaum (Mass. 2008)
Facts: Doctor failed to timely diagnose patient of cancer reducing his chance of survival from
37.5% to 0%
Holding: Doctor is liable for the loss of chances the patient suffered from his negligence.
However, the damages are reduced by 62.5%.
Major Difference Between Dickhoff and Matsuyama: Matsuyama like most loss of chance
cases, recovered when negligence resulted in death. However, Dickhoff was able to recover
before death occurred.
Proximate Cause Case Law
I.
Palsgraf v. LIRR (N.Y. 1928)
Facts: When guy was trying to board train while it was moving, two train employees tried to help
him with his luggage by pushing him. During this, he dropped his luggage that contained fireworks
on the tracks setting them off and causing the plaintiff to become injured.
Holding: The LIRR is not liable due to proximate cause. Although the defendant’s acted
negligently, the fireworks were unforeseeable. They were negligent due to B<PL analysis,
however, this breach of duty was done to the man carrying the fireworks and not the plaintiff.
II.
Plonit v. Bnei Ziyyon Medical Center (Israeli Supreme Court)
Facts: An obstetrician negligently fails to notice that the patient’s fetus is oversized which
requires a C-section delivery and delivers the baby naturally. A knot of the umbilical cord that had
no prior indication asphyxiated the baby to death. The umbilical cord problem was completely
unforeseeable, yet a C-section would have saved the baby’s life.
Holding: Should have been in favor of the plaintiff although the defendant argued that this was
unforeseeable. Because the baby was overweight, the mother was entitled to a C-section and the
benefits that came with it, making the doctor’s actions fall within the scope of risk. Although it
was unforeseeable, and the probability was very low, the burden to the doctor was zero because
the baby needed to get delivered at the end of the pregnancy regardless.
Proximate Cause Case Law (Superseding Causes)
III.
Doe v. Manheimer (Conn. 1989)
Facts: Plaintiff sued defendant for his overgrown bushes that shielded the plaintiff’s attack while
she was raped.
Holding: Defendant was not liable because the overgrown bushes were not in the scope of his
liability, since the damage was rape. (defendant would be liable if the bushes caused someone to
trip)
IV.
Stewart v. Federated Dept. Stores, Inc. (Conn. 1995)
Facts: Plaintiff was killed in a Bloomingdales parking garage.
Holding: Because Bloomingdales has a special relationship with each invitee and they instilled
reliance that it would be safe, the damage to the plaintiff falls within their scope of liability.
B>PL analysis shows that negligence was present as well making defendant liable.
Difference Between Doe & Stewart: Stewart falls within the scope of liability while doe does
not.
Egg Shell Rule Case Law
V.
Sleeth v. Louvar (Iowa 2003)
Facts: The defendant aggravated the plaintiff’s arthritis after a car accident.
Holding: In determining B>PL analysis, it was asked to eliminate people with high damages,
which would favor defendant. However, this idea is rejected, and the defendant is held liable for
whatever damage he caused.
VI.
Amusement Ride Example
Rollercoaster hurtles down at an extremely high speed – a malfunction that could be prevented by
taking precaution that costs $10 for each rider (precaution costs 100,000 for every 10,000 riders)
(economies of scale example)
By not taking the precaution, the operator creates the following risks of injury.
Resilient victim - .1% x $2000 = $2
Ordinary victim - .1% x $6,000 = $6
Eggshell victim - .01% x $1,000,000 = $100
Average Harm Per Victim = 108/3 = $36
With Eggshell victim, the defendant will be liable, and he will have to pay as the injuries say.
Without eggshell victim, he wouldn’t have been liable. However, when conducting B<PL all
possible victims are accounted for not just the victims that were injured.
CAN’T ARGUE THAT EGGSHELL VICTIM WAS UNFORESEEABLE!!
Week 10: Medical Malpractice
A. Medical Malpractice Defined
1) Plaintiff has the burden of proving that the defendant's deviation from the medical
profession's customary practices and protocols resulted in the damage sustained.
a) Statutory cap on damages due to the scarcity of the resource (doctors).
Without a cap, doctors would raise their prices to compensate for losses
which would be harmful to society.
b) Plaintiffs must satisfy short time-bars for filing suit
c) Must comply with special and costly requirements in regard to getting
expert testimony.
B. Medical Malpractice: Liability Standard
1) Deviation from doctors' customs, practices, and protocols
2) The law delegates the formation of the standards of care to the medical
community (reason why expert testimony is needed).
3) If a plaintiff can't show this deviation, case will be dismissed.
C. Merit Certificate/Affidavits
1) To sue a doctor for medical malpractice, you must provide an expert
certificate/affidavit when you file your suit.
2) This stops people from filing extortionary lawsuits against doctors.
a) This is important because when doctors lose or settle in a medical
malpractice suit, the case is reported to the National Practitioners Data
Base (NPDB) which hurts doctor's reputations.
3) Public Policy Argument: This puts the defendant on notice and makes plaintiffs
spend money eliminating frivolous lawsuits.
D. Institutional Liability
1) Becomes viable when the doctor is an independent contractor that can't afford to
pay for the damages (doctor's insurance only goes up to 1.5 mil)
2) Before suit can be brought, medical malpractice needs to be proven first
3) Once malpractice is proven, suit can be brought by proving that the hospital is ill
equipped or has negligent operation. (look to hospital's rule book, if the rules were
followed during the procedure, and if the hospital enforced these rules)
E. Ways for Hospitals to Check Credentials
1) The amount of experience the doctor has
2) Check the National Practitioner Data Base (Statute provision presuming that
hospitals always know) (When there is a settlement, it doesn't necessarily mean
the doctor was negligent b/c insurance have the incentive to settle regardless)
F. Spoliation Doctrine
1) When someone loses evidence, the worst is always presumed against the
spoliator.
G. Informed Consent
1) General Rules: (1) the doctor failed to disclose required information about the
procedure, (2) the patient suffered harm from the procedure, (3) the harm resulted
from risks about which the plaintiff was not informed, (4) the plaintiff would have
foregone the procedure if the patient had known of the risk, and (5) a reasonable
person would have foregone the procedure if that person had known of the risk.
2) Patient Expectation Standard - Must disclose all possible treatments, disclose
low risks that have detrimental effects, and disclose success rates.
3) Doctor's Practice Standard (Majority of States Approach) - Need only to
disclose accepted treatments in the medical field.
4) Battery Jurisdiction – Only can collect for negligence in invasive treatments
5) Negligence Jurisdiction – regular negligence standard.
6) Doctor's cannot withhold any information on a theory that it would be
psychologically painful for the patient to hear. However, can withhold
information if the disclosure would be detrimental to the success of the treatment.
7) In the event that patient is asleep and there's no one close to ask, doctor should
ask herself whether the patient would agree with the treatment one wakes up and
won't be held liable if it is reasonable and made in good faith.
H. Locality Rule Standard - Standards of care varied from state to state, the locality rule
created the standard of care that should be followed within your state. (Issue: allowed
conspiracy to be created within the medical profession because under the locality rule a
plaintiff can only get an expert witness from within their state. Doctor's would agree not
to testify against one another. If they did, doctors would stop giving them referrals which
would have a major financial impact on them. e.g. Rhode Island)
I. Nationwide Standard - Would allow testimony from doctor's all over the country and
create a minimum standard of care needed to carry out procedures. (eliminates
conspiracy)
Exception to these Standards of Care: Emergency Room: you get the room as it is.
Small Places - should care about locality rules v. nationwide standard
Bigger Places - Not as relevant because more difficult to create conspiracy
It is the duty of the doctor to refer a patient to a better equipped hospital, if needed.
J. "Error in Judgment" - Judgment requested when multiple treatments could be used. in
NY, the question is whether the treatment chosen followed the book in the medical field.
1) Gives doctor entitlement to make mistake
2) To argue against, plaintiff needs a medical expert to come in and say they would
have used an alternative treatment given the same scenario.
3) Reasoning Defendant should have won - She treated the patient by the book. It
doesn't matter that she did not run further diagnostics, to make a better decision.
Many states allow the "error in judgment" instruction entitling doctors to
mistakes.
4) Mechanical Error is not an "error in judgment;" it is always malpractice
D. Proving Res Ipsa Loquitur in Medical Malpractice Cases
1) Need Statistical Evidence: Expert testimony could be used to show that bacteria
should not be present in an operating room.
2) Instrumentality Aspect: Must have come from the hospital's control (hospital
had control over the operating room).
3) Plaintiff could not have contributed: in this scenario the plaintiff was asleep at
the time, also why she pursued the suit on a theory of Res Ipsa Loquitur)
Medical Malpractice Case Law
I.
Ross v. St. Luke's Episcopal Hospital (Tex. 2015) (Med. Malpractice or Negligence
Case)
Facts: The floor in the lobby was buffed, resulting in someone slipping and falling. (regular
negligence case, since it was in the lobby) (creation of multifactor test to differentiate the two)
1. Did the alleged negligence of the defendant occur in the course of the defendant’s
performing tasks with the purpose of protecting patients from harm?
2. Did the injuries occur in a place where patients might be during the time they were
receiving care, so that the obligation of the provider to protect persons who require
special, medical care was implicated?
3. At the time of the injury was the claimant in the process of seeking or receiving health
care?
4. At the time of the injury was the claimant providing or assisting in providing health care?
5. Is the alleged negligence based on safety standards arising from professional duties owed
by the health care provider?
6. If an instrumentality was involved in the defendant’s alleged negligence, was it a type
used in providing health care?
7. Did the alleged negligence occur in the course of the defendant’s taking action or failing
to take action necessary to comply with safety-related requirements set for health care
providers by governmental or accrediting agencies?
II.
Hall v. Hilbun (Miss. 1985) (Locality Rule)
Facts: Patient died 14 hours after an exploratory laparotomy. During 8 of these hours she
complained of pain, difficulty breathing, and unstable vital signs. Husband of patient brought
two expert witnesses, to prove negligence, which were rejected by trial court.
Holding: Locality rule was abolished
III.
Zohar v. Zbiegien (Nev. 2014) (Merit Certificate)
Facts: 16-month old Zohar was taken to the emergency room after he was bitten by a parrot. The
doctors negligently wrapped his finger leading to a partial amputation.
Holding: Although the Merit Certificate did not explicitly list the doctor, it was sufficient
because it put the defendant on notice.Importance: Shows that the goal of Merit Certificates is
required to put the defendant on notice and shows that the claim is not frivolous.
IV.
Passarello v. Grumbine (Pa. 2014) (Error in Judgement)
Facts: Baby continued to have issues and visited the defendant for treatment multiple times. The
baby eventually went to the E.R. where she passed. Defendant requested an "error in judgment"
instruction which was rejected.
Holding: Supreme court affirmed the denial of the "error in judgment" instruction due to the
lack of necessity for it proved by the plaintiffs and the confusion it creates for juries.
V.
Schelling v. Humphrey (Negligent Credentialing)
Facts: Plaintiff alleged that she suffered injuries as a result of surgeries performed by the doctor.
Doctor declared bankruptcy, leading to the plaintiff suing the hospital for negligentcredentialing.
Holding: In the event that the plaintiff can prove medical malpractice of the doctor, she may
pursue her claim of negligent credentialing by the hospital. (allowed bifurcation of claim)
VI.
Smith v. United State (E.D. Ark. 2000) (Spoliation)
Facts: Plaintiff died during vascular surgery. There was no tape recording during the surgery.
Holding: Since there was no tape recording of the surgery, the patient can prove negligence
through expert testimony of the doctor's nonfeasance. Because this is spoliation the worst will be
presumed against the doctor and a verdict will be entered in favor of the plaintiff.
VII.
Sides v. St. Anthony's Med. Ctr. (Mo. 2008) (Res Ipsa Loquitur)
Facts: Plaintiff alleged that she was infected with E. coli due to negligence of doctors not
cleaning their operating room before her surgery.
Holding: Court allowed plaintiff to proceed with her theory of res ipsa loquitur by getting expert
testimony that this damage could only be done in the presence of negligence.
VIII.
States v. Lordes Hospital
Facts: Plaintiff needed a cyst moved, which was done properly. However, woke up with a
shoulder injury. Since the doctors did not work for the hospital it was hard to figure out who to
sue. Fortunately, it was a gynecology surgery, so the only person that could have been near her
shoulder is the anesthesiologist.
Holding: Unknown, however, anesthesiologist most likely liable for damages.
Week 11: Liability of the Federal Government
A. Government Liability
1) Discretionary Immunity – Court’s cannot second guess government decisions if
it is within the government’s powers (separation of powers).
a) If the government decides to make a highway and builds it negligently,
they can be held liable (Ministerial) (Operational)
b) If the government decides to spend funding elsewhere, instead of fixing a
damaged highway, they cannot be held liable. (Discretionary)
2) “Duty to all is a duty to none” – Government cannot be accused of a
nonfeasance. E.g. cannot sue police based on a theory that they should have
protected you.
a) To sue for a valid claim, the plaintiff must have established a special
relationship or a duty through a special statute, otherwise the government
owes no duty.
3) Residual Liability – Liability of the government for injuring a victim in a nondiscretionary matter.
B. Federal Tort Claims Act – Waiver of the federal government’s sovereign immunity.
1) Federal government assumes liability in torts under applicable state law as any
other person, subject to FTCA conditions.
2) Compulsory Administrative Claim Procedure – minimal period of 6 months &
Statute of limitations – 2 years from accrual of cause of action
3) Litigated through bench trial in federal court (can’t sue U.S in state court)
4) No punitive damages, and not liable for intentional torts except when committed
while enforcing criminal law.
5) Can only be liable if they were a private actor under state law (scope of liability)
6) Bivens Actions – When a constitutional right was violated by a federal officer
C. Feres Doctrine – Injuries incident to the victim’s military service are not actionable
under FTCA
1) Military has complete immunity from their activity, even when damage is due to
negligence.
Reasoning:
a) It would disrupt the military's chain of command
b) Although the FTCA say nothing about the Feres Doctrine, it does say that
the government is only liable if they were dealing with a regular person
which would never apply to the military
c) Military gets funded for their injuries by the VA (Veterans Affairs)
making it unfair if the tax payer would have to pay twice.
Liability of Federal Government Case Law
I.
McCall v. United States (Fla. 2014) (Interplay between State and Fed. Law)
Facts: Plaintiff sued for wrongful death with damages allotting up to 2 million dollars. However,
FTCA is sued under state law and in Florida there is a non-economic cap of 1 million dollars in
damages. Florida Supreme court was asked to rule on whether or not this cap was constitutional
based upon the Equal Protections Clause.
Holding: Florida statute putting a cap on non-economic damages is unconstitutional.
Reasoning: Statute is biased against poor people who can’t recover through economic damages
due to their low wages.
Note: Juries are not informed of this cap, when they make their decision because it is likely that
they will make up for the loss in non-economic damages by awarding the plaintiff an
unreasonable amount of economic damages (Crossover Effect).
II.
Blanche v. United States (7th Cir. 2016) (Illinois) (Statute of Limitations)
Facts: Plaintiff's child (mother suing as guardian although real plaintiff is the baby) was
diagnosed with Erb's Palsy (injury to nerves surrounding the shoulder) after the doctors struggled
to deliver the baby due to her size. Sued for medical malpractice, since they failed to give her a
C-section. Suit was filed three years after the incident because Illinois has a long statute of
limitations for minors and the lawyer was unaware that it was a Federally Qualified Health
Center.
Holding: The government was not liable due to the statute of limitations running out (FTCA is a
statute of limitations of 2 years regardless of whether it's a minor or not). There was no equitable
tolling either because the mother and the lawyer should have been aware that the hospital was a
FQHC. Was not a denial of due process either because congress technically gave them additional
rights by allowing them to sue during that 2-year period.
Notes:
For Equitable Tolling to be allowed: Plaintiff must have subjectively and objectively not
known she could sue the defendant (very rare in medical malpractice).
State Laws have a Statute of Repose - No matter what after the alleged negligence, you have
four years to file, otherwise nothing can be done.
Lawyers Mistake: Should have identified their defendant first (could've done so by asking for
his client's insurance information) (Lawyer malpractice isn't sufficient to enable equitable
tolling).
III.
Feres v. United States (1950)
Facts: An active duty service woman was admitted to a military hospital to deliver her baby. She
was given drugs that dramatically reduced her blood pressure that resulted in the baby being born
with severe brain damage.
Holding: Government was not liable due to the Feres doctrine.
Notes: Lawyer should have looked up in utero state law to determine the baby's civilian status.
The baby was the plaintiff and it would be unlikely that the baby would be considered a part of
the military. Because of this, the baby cannot recover from the VA and should have an actionable
claim against the government.
Week 12: Landowner's Liability
(Limited to accidents on the premises, does not include intentional torts)
A. Classical/Traditional Approach
1) Invitee - A person who expressly or impliedly is invited upon another's premises
for the purpose of aiding, transacting, assisting or furthering the business of the
other, or who is on the premises for a purpose mutually beneficial to himself and
to the possessor of the premises, is an invitee.
a) Public Invitee - Any department store that is open to the general public
will be liable for negligence regardless of the invitees reasoning for being
there because these stores want as many people in them as possible to
attract the attention of others.
2) Licensee - A licensee is one who goes upon another's premises with express or
implied permission, for a purpose unconnected with the business of the owner and
which is of advantage only to the entrant or to a third person other than the owner.
3) Trespasser - A trespasser is one who enters another's premises without an
express or implied invitation from the other person, and solely for his own
pleasure, advantage or purpose. (no willful wanton disregard)
a) Attractive Nuisance Exception (for child trespassers) - e.g., if a child
trespasses on one's property and falls into their pool, they will be held
liable because they don't have a fence around it and it is an attractive
nuisance.
B. Modern Approach - Follows a uniform negligence approach that is subject to special
statutes limiting liability to trespassers.
C. Apportionment Rules
 Economic damages are non-apportionable, only non-economic damages are
apportionable
 High-Tortfeasor - someone who is responsible for more than 50% of the damages
 Low-Tortfeasor - someone who is responsible for less than 50% of the damages
 Only low tortfeasors can apportion their damages. (equity amount is up to jury
discretion)
 Vicarious Liability - non apportionable
D. Statutory Intervention of Land Owner Liability (NY & CA)
 If a trespasser violates any of the enumerated offenses, the landowner will not be
liable.
 Since homeowners pay property tax, which pay legislators salary, they created
statutes to protect homeowners because the common law did not.
Landowner's Liability Case Law
I.
Heins v. Webster County (Neb. 1996) - Under traditional invitee-licensee classification,
a landowner does not owe a duty of care to warn a licensee of a known dangerous
condition.
Facts: Defendant went to go visit his daughter who was head of nursing in a hospital making
him a licensee. While approaching the door on the hospitals pathway, he slipped and fell. He
claimed he was an invitee because he had planned on dressing up as Santa for people in the
hospital. However, since his services weren't requested he cannot be considered an invitee.
Holding: Defendant is liable for the damages because the duty is already owed to invitees
because they use the same pathway/entrances. Because the marginal cost = 0 when adding in
licensees, the hospital is liable for their negligence (Economies of Scale)
E. Landowner's Liability for Criminal Activities
1) Imminent Harm - It is the duty of a owner/landlord to protect invitees from injury
caused by the misconduct of third persons if there is a reasonable apprehension of danger
from the conduct of third persons or if the injury could have been prevented by the
owner/landlord through the exercise of ordinary care and diligence
2) Similar Incidents - When the owner/landlord, knew, or should have known, about
a particular danger or defective condition because of the prior happening of a
substantially similar occurrence on his property.
3) Totality of Circumstances - A totality of the circumstances standard suggests that there
is no single deciding factor, that one must consider all the facts, the context, and conclude
from the whole picture whether a reasonable business owner would have foreseen the
event
4) Balancing (Duty adjusted to foreseeability) - The more foreseeable the harm is, the
higher the duty is. As an increase in the probability of a crime occurrence, an increase in
the duty to take precaution increases.
Landowner's Liability for Criminal Activities Case Law
I.
Bass v. Gopal Inc. (S.C. 2011)
Facts: Plaintiff was shot in the leg during an attempted robbery outside of his motel door. Court
applied a balancing test
Holding: Defendant is not liable because although there was a little evidence that an assault was
foreseeable, the defendant took necessary precautions of putting industry standard locks on all
the doors and provided adequate lighting. Was not enough evidence produced to make defendant
take extra precautions of putting in cameras or hiring security (no prior similar crimes).
II.
Chianese v. Meier (N.Y. 2002) (Apportionment)
Facts: Plaintiff was assaulted by an intentional tortfeasor in the defendant's building. The jury
held that the defendant (building owner) was 50% responsible for the damages. The defendant
moved to apportion the noneconomic damages, which was also given a 50-50 split. On appeal of
the apportionment verdict, the defendant made a mistake by arguing from a moral standpoint. He
should have argued that since the intentional tortfeasor, is the high-fault tortfeasor a 50-50 split
of the noneconomic damages make no sense economically.
Holding: Plaintiff received 50% of all damages from the building owner.
Week 13: Defenses/Products Liability
(All defenses are affirmative defenses)
A. Assumption of Risk Defense
Assumption of Risk - Assumption of Risk - The plaintiff may be denied recovery if he
assumed the risk of any damage caused by the defendant’s acts. This assumption may be
expressed or implied. To have assumed risk, either expressly or impliedly, the plaintiff
must have known of the risk and voluntarily assumed it. It is irrelevant that plaintiff’s
choice is unreasonable. (Comprised of a form + substance)
1) Implied Assumption of Risk (Form) - Implied assumption of risk situations are
harder to resolve as, of course, the fact issues are difficult to prove because the
plaintiff did not communicate their knowledge of the risk. However, it can be
inferred.
a) Knowledge of the Risk - Plaintiff must have known of the risk.
Knowledge may be implied where the risk is one that the average person
would clearly appreciate, e.g., risk of being hit by a foul ball in a baseball
game.
b) Voluntary Assumption - The plaintiff must voluntarily go ahead in the
face of the risk. However, plaintiff may not be said to have assumed the
risk where there is no available alternative to proceeding in the face of
the risk, e.g., the only exit from a building is unsafe
2) Expressed Assumption of Risk (Form) - The risk may be assumed by express
agreement. Such exculpatory clauses in a contract, intended to insulate one of the
parties from liability resulting from his own negligence, are closely scrutinized
but are generally enforceable (Plaintiff has communicated his knowledge and
acceptance of the risk). (Note that it is more difficult to uphold such an
exculpatory clause in an adhesion contract.)
a) Contract of Adhesion - When big business has too much bargaining
power and create contracts to escape all types of liability, the agreements
will be voided if it is a socially beneficial activity. (disparity of power)
3) Primary (Substance) - The activity itself and whatever is inherent to that
activity. e.g., risk of being hit by a foul ball in a baseball game
4) Secondary (Substance) - A contract that discusses the primary activity. (When
relying on secondary, the contract must include all the risks or at least the risk that
the defendant is being sued for).
B. Comparative Fault/Causality Based Defense
1) Pre-existing Condition - When a pre-existing condition has a causal relationship
to the damage suffered. (Was condition aggravated)
2) Comparative/Contributory Negligence - When the plaintiff acts negligently,
making them responsible for part if not all of the damage
3) Avoidable Consequences - Plaintiff owes a duty to mitigate damages to person or
property after the damage is inflicted. If he does not properly do this, then
damages will be reduced. Failure to do this, however, is an avoidable
consequence, not contributory negligence.
Assumption of Risk Case Law
I.
Coomer v. Kansas City Royals Baseball (Mo. 2014) - Anything risks that are
extracurricular to the primary activity must be stated in the secondary assumption of risk
or else the defendant will be held liable.
Facts: During a Royals baseball game, the mascot threw hotdogs into the stand because it is a
Kansas City tradition. The plaintiff (Coomer) was hit in the eye by one of these hotdogs and
suffered from a detached retina.
Defense Argument: Since it is tradition and the plaintiff had been coming to games for years, he
was well aware of the risk and voluntarily came to the game.
Holding: Since, the activity of throwing hot dogs isn't inherent to the baseball game, there is no
implied assumption of risk. Because the contract accepted when buying a baseball game ticket
says nothing about the risk of flying hot dogs, there is no expressed assumption of risk.
(defendant is liable for damages).
II.
Hanks v. Powder Ridge Restaurant Corp. (Conn. 2005) - Contract of Adhesion Case Contract violated public policy (activities that are beneficial to the public) because the
contract was offered at a "take it or leave it" basis without an opportunity to purchase
protection against negligence.
Facts: The defendant invited guests to their restaurant/attraction of snow tubing. The plaintiff
brought his family and one of his children broke his leg while snow tubing when it got caught in
between the tube and a snow bank.
Defense Argument: Since they signed a contract, they should be free of liability.
Holding: Defendant is liable for damages.
Comparative Fault/Causality Based Defense Case Law
I.
Ostrowzi v. Azzara (N.J. 1988) - Avoidable consequences can only be used to mitigate
damages, not prove comparative fault
Facts: Medical malpractice suit where the plaintiff needed to have a toenail removed. Surgeon
told plaintiff to get clearance from her doctor before he did the surgery. Plaintiff alleged she got
clearance (really did not) and the surgeon performed surgery which lead to complications
resulting in the amputation of her leg. Medical malpractice because surgeon took the patients
word instead of checking with her doctor himself which is straying from the norm in the medical
field.
Defense Argument: Had pre-existing condition of having diabetes and being overweight,
displayed contributory negligence by not refraining from smoking and eating unhealthy leading
up to the surgery, and did not avoid consequences by continuing to eat unhealthy and smoking
after the surgery.
Holding: Court reversed and remanded the case for a new trial because they considered
avoidable consequences in determining comparative fault. However, avoidable consequences can
only be used to mitigate the damages owed to her if the defendant is found liable.
Note: Should be able to recover some of her damages due to Loss of Chances
C. Firefighter Rule - (Homeowners that pay property tax) – will not be responsible for
negligence on their premises to emergency services. (double taxation)
1) Premises liability – doesn’t extend to emergency services on (if they get injured
during this, they get compensated by the taxpayers, so it would be unfair to allow
a cause of action and allow someone to get paid twice). (to recreational lands
because B would be too high to change the land)
2) Assumption of risk – must be specifically tied to a certain type of risk. However,
emergency service is very general.
3) Taxation & employment benefits
I.
Levandoski v. Cone
Facts: Police officer chased someone who he thought had marijuana on him into a yard. Officer
fell of a ledge of rocks and sued the criminal.
Holding: Where a defendant is not a taxpayer he is not at risk of double taxation for recovery in
tort. This court therefore refuses to extend the firefighter’s rule to the present case, in which
Cone is not a landowner. It was also reasonably foreseeable that Levandoski could be injured
while pursuing Cone, who was fleeing arrest.
D. Statute of Limitations & Equitable Tolling/Discovery Rule - The accrual of the cause
of action – statute of limitations begins
1) Accrues when negligence damage & causation is present even if it is unknown
2) if it is unknown it’s possible that the statute of limitations can be tolled by the
Discovery Rule – when damage should be known objectively or subjectively.
E. Statute of Repose - Starts from date of negligence and once statute of repose is over
cannot sue no matter what (Can beat statute of repose in some jurisdictions with
fraudulent concealment)
1) Medical malpractice statute of repose usually 4-5 years because causation is
difficult part of medical malpractice and it is unlikely that damage was caused by
doctor’s negligence.
D. Products Liability (Elements)
1) Design defects: (Strict Liability) risk-utility (RAD); reasonable consumer’s
expectation (B>PL analysis)
a) (1) the product poses a foreseeable risk of harm when used for its intended
purpose, or for any other reasonably foreseeable purpose; (2) the risk can
be avoided through an alternative design; (3) the alternative design is one
that the manufacturer has the ability to produce; (4) the alternative design
is economically viable; and (5) the alternative design will not impair the
product’s function.
2) Manufacturing Defects: strict liability (irrebuttable presumption of negligence)
(Wasn’t manufactured how it was designed)
3) Warning Defects: “state of the art”; negligence
a) (1) the product presents a risk of injury, (2) the manufacturer knows of the
risk, (3) the risk is present when the product is used in its intended
manner, or in any other reasonably foreseeable manner, and (4) the risk is
not obvious to a reasonable user.
4) Can easily assign liability to manufacturers, wholesalers, retailers, sometimes
warehouses.
5) PMA – Pre-Market Approved by FDA (can’t be sued for design defects)
6) 501K – Alternative to PMA, can sell product as a “substantial equivalent” but no
protection for design defect suits.
Products Liability Case Law
I.
Welge v. Planters & K-mart (7th Cir. 1994) (Manufacturing Defects)
Facts: Jar broke while plaintiff was opening it.
Holding: could not be a design defect because many jars have been produced with the same
design. Can not be a warning defect. Must be a manufacturing defect.
II.
Camacho v. Honda
Facts: Plaintiff suffered severe leg injuries when his Honda motorcycle collided with a car.
Claimed lack of crash bars as a design defect (“un-crashworthiness”)
Holding: Plaintiff needed to get an expert witness to do a Risk-Utility analysis on a bike that has
a similar price (RAD reasonable available design). If there was one available, the defendant
would be liable.
III.
Hood v. Ryobi (4th Cir. 1999)
Facts: Plaintiff used a Ryobi electric saw after removing blade guards, contrary to the warning
that mentioned “serious personal injury.” Blade flew off injuring the plaintiff.
Holding: if they are aware of the injury it is on them to accept the terms or not and if it was the
job of the manufacturer to list out each and every risk, it would deter people from reading the
warning because it is very small print and very extensive.
IV.
Riegel v. Medtronic (Preemption)
Facts: Medtronic’s Evergreen Balloon Catheter used to decalcify the patient’s coronary artery
ruptured. As a result, the patient developed a heart block, was placed on life support, and
underwent emergency coronary bypass surgery (successfully). The catheter received PMA.
Holding: products with PMA’s cannot be sued for design defects.
V.
Wyeth v. Levine (501K)
Facts: Directly injecting Phenergan into a patient’s vein (by the “push,” as opposed to “drip,”
method) creates a significant risk of catastrophic consequences (arm amputation). FDA approved
Wyeth’s warnings on Phenergan’s label, even though they failed to mention the “drip” method’s
unequivocal advantage and simply pointed to the risks of gangrene and amputation.
Holding: PMA products are not exempt from warning products liability suits.