Torts Outline – Fall 2022
Ch #1 – Development of a Liability Based on Fault (p.1)
1. Tort: an act or omission that causes harm to or injury to another – leads to civil liability
2. History/origins (2 theories)
a. Liability based on intent -> intentional torts
b. Liability based on harm caused (more commonly accepted)
i. Focused on keeping the peace
ii. Subst for private vengeance
iii. Focus on loss/damage to victim, not intent of actor
iv. Law favors the party suffering > the actor’s intent
v. Writs:
1. Trespass (general)
a. Causes direct harm/injuries
2. Trespass on the case (where modern tort originates from)
a. Indirect injuries/harm.
b. Examples:
i. Nuisance
ii. Defamation
iii. Conversion
iv. Malicious prosecution
v. Deceit
vi. Negligence
c. Forms of action:
i. Punishment of crime
ii. Injured party’s claim for redress
d. Cases
i. Hulle v Orynge, 1466 (king’s court)
1. If you do something, you’re liable for it
ii. Weaver v Ward, 1616 (two soldiers in a skirmish, accident)
1. A party is liable for damages based strictly on their actions and the
results of those actions, intent not important.
iii. Brown v Kendall, 1850 (dog fight/stick)
1. Lawful act/duty bound = ordinary care ok;
If not the above, then, extraordinary care rewithout consent and
quired
2. PL has burden of proof
a. Use “reasonable person” standard
iv. Cohen v Petty, 1933 (heart attack while driving)
1. Party not liable for damages incurred because of a sudden,
unexpected physical medical event
a. Mental events do not apply
v. Spano v Perrini Corp, 1969 (legal blasting in NYC)
1. If engaging in an abnormally dangerous activity and someone’s
property is damaged = strict liability
a. Even if no negligence
2. Shift from formalism -> realism
a. Formalism: ridged rules, rarely work, specific context, not
adaptable
b. Realism: law in real world, broader, “as they really are”
e. 3 kinds of torts:
i. *Intentional
1. Because the act itself was intentional, not the harm from the act:
a. Weaver v ward
b. Brown v kendall
ii. Negligence (breach of standard of care)
iii. Strict liability (incl products)
Ch #2 – Intentional Torts (p.17)
1. Only intent to act is needed, not intent to cause harm.
2. INTENT
a. Two elements:
i. Acting to Bring about a certain result
ii. Substantially certain of an outcome
b. Garratt v Dailey, 1955 (young kid pulled the chair)
i. Intent can be established in two ways:
1. Actual intent – intent to cause harm
2. *Knowledge that your action is “substantially certain” to cause
harm
c. Ranson v Kitner, 1889 (shot dog, not wolf by mistake – NOT accidentally)
i. If an action is intended, the actor is responsible for damages resulting
from that action (or inaction) – even if the damages were a mistake.
1. “Mistake in good faith” not a defense.
d. McGuire v Almy, 1937 (crazy patient attacked/assaulted nurse)
i. Insanity/mental instability not a defense to intentional tort
e. Talmage v Smith, 1894 (guy threw stick at kids on shed roof)
i. Transferred intent – can between people AND/OR torts.
1. Between torts (big 5):
a. Assault
b. Battery
c. False imprisonment
d. Trespass
e. Trespass to chattels
f. Sometimes: conversion
g. Not IIED
2. Between people (intended one victim, but caused action to
someone different)
3. BATTERY
a. From Restatement of Torts, p. 37-38
i. Harmful contact = dual intent
1. Harmful or offensive contact is intended; and
2. Harmful or offensive contact with another party occurs (could also
be something connected with the body).
a. Offensive contact:
i. If no harmful intent, then no battery.
ii. Exceptions for normal things
b. Wagner v State of Utah, 2005 (crazy guy attacked woman in K-mart)
i. To establish battery, no harm or offense needs to be intended. Intending
to perform the action that causes the harm or be offensive is enough to
establish liability.
c. Cole v Turner, 1704 (English law interpretation of battery)
i. Requires malicious intent
d. Wallace v Rosen, 2002 (teacher touches parent during fire drill)
i. exception, bc of circumstances.
1. *Totality of circumstances matter
e. Fisher v Carousel Motor Hotel (racist employee snatched plate from black guest)
i. Battery can occur if malicious intent is aimed at something [intimately]
connected with the body and not the body itself
ii. Physical harm not necessary, just offensive contact/act
4. ASSAULT (the emotional component of battery) – the actor (1) intentionally (2) causes
the victim reasonable apprehension (belief) of (3) imminent battery, (4) apparent
present ability to carry it out.
a. you have to “see it coming” (if you don’t see it coming then you can’t be scared =
battery but no assault)
i. can also have assault with no battery
b. A victim needs reasonable apprehension of contact/harm
i. Imminent physical contact, and
ii. The present ability to carry it out
c. Not necessary that DEF had actual ability to carry out threat
i. Western Union v Hill (love and pet customer to fix her clock)
1. Drunk not a defense
5. FALSE IMPRISONMENT – the (1) intent to confine (2) PL conscious of confinement (3) no
consent (4) without adequate legal justification/not privileged (and the victim is either
aware of or harmed by the confinement (p. 47))?
a. Big Town Nursing Home v Newman
i. Person endangering you cant put you in danger to escape (like taking
your clothes)
b. Parvi v City of Kingston
i. Inability to recollect events at a later time does not negate FI if person
can demonstrate that they knew of confinement at the time
1. Must be aware of confinement at the time – finding out later does
not qualify
c. Hardy v LaBelle’s Dist
i. No FI because PL was a volunteer
d. Enright v Groves
i. No legal authority for arrest
6. Intentional Infliction of Emotional Distress (IIED) – not transferrable
a. Definition:
i. DEF conduct intentional or reckless;
ii. Extreme AND outrageous;
iii. A causal connection between behavior and emotional distress; and
iv. Resulting emotional distress was so severe no one should endure.
b. Hardest intentional tort to prove
c. State Rubbish Coll Ass’n v Siliznoff
i. Threats qualify
d. Slocum v Food Fair Stores
i. Reasonable person standard used to evaluate
e. Harris v Jones (stuttering employee)
i. Very hard to win/prove IIED
f. Taylor v Vallelunga
i. They didn’t know she was there. So, no intent/causal connection est
7. TRESPASS TO LAND – Def has invaded another person’s land (“exclusive enjoyment of
your property”)
a. Easy to commit and easy to find
i. Lots of nominal damages
ii. No intent needed
b. Every entry onto another’s land is a trespass and warrants damages.
i. Actor has to have intended to act, but not intended to trespass
c. Herrin v Sutherland
i. Shooting over another’s land is a trespass to land
ii. Reasonableness standard
d. Rogers v Board of Road Com’rs for Kent County
i. A thing can be trespassing if on the and without current permission
ii. Continuing trespass
e. Continued trespass – staying past or starting before you have permission
8. TRESPASS TO CHATTELS
a. Elements
i. w/o consent
ii. w/o privilege
iii. intermeddles or used
iv. chattel is owned by another
v. chattel is impaired in condition, quality or value
b. If no damage to chattel, then no claim
c. Must interrupt ability to enjoy the thing
d. Damages = any damages that arise from the trespass, damages from ability to
enjoy it, punitive, emotional distress
e. Glidden v Szybiak
i. Kid didn’t harm dog when she taunted it, so no trespass to chattels
f. CompuServe v Cyber Promotions
i. Yes, trespass to chattels
1. Deprived compu serve of use
2. Damaged compu serve’s business
ii. Law Is frequently behind tech – be creative
9. CONVERSION
a. Permanent (or substantial amount of time) or irreparable damage to the
chattel/ability to enjoy it gone
i. Damages = only replacement value of the item
b. Pearson v Dodd (politicians docs were copied & contents distributed)
i. Not conversion bc the original docs were still there – did not deprive
owner of enjoyment of the chattel (permanently or at all)
Ch #3 – Privileges (p.107)
1. Defenses to intentional torts (not negligence or strict liability)
a. Consider totality of circumstances to determine
b. CONSENT – express or implied
i. O’Brien v Cunard, 1891 (negligent vaccination claim)
1. Can be implied/Does not have to be express (implicit)
a. Can be indicated through conduct
b. Examine totality of circumstances
ii. Hackbart v Cinn Bengals, 1979 (football player was intentionally assaulted by
another player during a game)
1. Implicit consent not= automatic consent
2. DEF cant break rules & customs of game
iii. Mohr v. Williams (doc intentionally performed surgery on L ear instead of R)
1. Limitations to consent/scope
a. For Dr.: “at risk of death or serious bodily harm”
2. Medical care providers may act in the absence of express consent if
a. Patient is unable to give consent
b. Risk of serious bodly harm if treatment is delayed
c. A reasonable person would consent to trtmt under the
circumstances
d. Physician has no reason to believe the patient would refuse
trtmt under the circumstances
i. Withdrawal of consent while medical procedure is
underway must be unquestionable response from clear
and rational mind and it must be medically feasible for
the doctor to stop
c.
d.
e.
f.
g.
iv. DeMay v Roberts , 1881 (doc misrepresents his friend to man and wife during
birth of their child)
1. Material misrepresentation
2. Deceit
3. Fraud
a. No disclosure = no consent
SELF DEFENSE –
i. Privileged to use reasonable force to defend self against a threatened battery
1. As it appears to DEF
2. Reasonable belief is sufficient
ii. Retaliation not privileged
iii. Provocation (insults, verbal threats, offensive language) not sufficient to
invoke privilege (unless accompanied by actual imminent threat of bodily
harm)
iv. Amount of force is justified up to the amount of force that is or reasonably
appears to be necessary for protection against a threatened battery
v. Deadly force – only ok if DEF had a reasobale apprehension of loss of life or
bodily injury
1. Retreat before use of deadly force (“Retreat to the wall”)
2. Now ok to “stand your ground”
vi. Injury to third party – if trying to defend oneself, one accidentally injures a
third party, that is defensible
DEFENSE OF OTHERS – emphasis on “reasonable force”
i. Reasonable mistake –
1. Some courts: If intervenor accidentally helps the aggressor, he is
liable
2. Other courts: intention considered if reasonable belief that
intervention was necessary
DEFENSE OF PROPERTY – only a privilege if the property is occupied
i. Katko v. Briney, 1971 (guy got his leg blown off by a shotgun booby trap
while looking for antique bottles)
1. You cannot use force calculated to cause severe bodily harm or death
to simply defend property (unless the property is occupied)
RECOVERY OF PROPERTY
i. Reasonable basis to believe that something has been stolen = reasonable
belief
ii. Plus, a reasonable search
iii. And a fresh pursuit
1. Immediate time, and
2. Immediate area
iv. Bonkowski v Arlan’s Dept Store
NECESSITY
i. Defense of public necessity – for general welfare of society
1. Usually exercised by public officials, but not always
ii. Not all necessity is public necessity
iii. Surocco v Geary, 1853 (fire chielf burned guys house down to stop spread of
fire)
iv. Vincent v Lake Erie Transp. Co, 1910 (private boat docked themselves to a
dock during a storm to prevent harm to their boat)
1. Private necessity = not necessity bc protecting your interests not= to
protecting public interests
h. AUTHORITY OF LAW
i. Arrest w a warrant - liable only if officer acts improperly
ii. Arrest w/o a warrant
1. Officer or citizen may arrest w/o a warrant to prevent a felony that is
being committed in his presence
2. Officer may arrest if he has info that affords reasonable grounds for
thinking that a felony has been committed and that he has the right
person
3. For a past breach that that is not a felony, either an officer or a citizen
may arrest w/o a warrant if the offense was committed in his
presence and he is in fresh pursuit
4. For misdemeanors – usually no arrest ok w/o a warrant
a. Sometimes officer can arrest if committed in his presence
5. No excessive force under any circumstance is ok
i. DISCIPLINE
i. Parents/parent like
1. Reasonable force and restraint ok
a. Whether it is disproportionate to the offense, unnecessarily
degrading or likely to cause serious or permanent harm
2. Applies to teachers
ii. Others
1. Military and naval officers
2. Captain over a ship
j. JUSTIFICATION – usually a last hope defense
i. Totality of circumstances
ii. Sindle v NYC Transit Auth (kids vandalizing a school bus)
1. Here: protect public property and safety of the kids
iii. Must incl significant risk to property and or people (can be yourself) & act in
a reasonable manner in response
Ch #4 – Negligence (p.151)
1. Elements of: (must have all but viewed under the totality of the circumstances/balancing
test)
a. Duty
b. Breach
c. Causation
d. Damages
2. 3 types:
a. Negligence
b. Negligence per se
c. Res ipsa loquitor
3. Negligence formula
a. Pipher v Parsell, 2007 (teenage meth heads get in a truck accident bc one of them
keeps grabbing and jerking the wheel)
b. Chicago B v Krayenbuhl, 1902 (kid lost his foot playing on some railway equip)
i. Negligent bc they should have acted to prevent harm
1. The RR co knew of harm
2. They only needed a padlock to prevent
3. Therefore, breached duty of care bc cost to prevent harm was very
low
c. Davidson v Snohomish Co, 1928 (insufficient guardrail claim)
i. Solution was too expensive
ii. You aren’t required to do things that are not possible/reasonable to prevent
harm
d. US v Carroll Towing, 1947
i. B > PL (burden of adequate precautions must cost less that the probability *
gravity of resulting injury)
1. Does risk outweigh burden?
2. Only use when considering harm prevention/when burden is an issue
4. The Standard of Care/The Reasonable Prudent Person
a. Everyone has a duty to act as a reasonably prudent person (“ordinary prudence” is
too vague)
b. Vaughan v Menlove, 1837 (hay stack caused neighbors property to burn down)
i. Still good law today
c. Delair v McAdoo, 1936 (guy driving on a bad tire caused an accident)
i. Negligence bc a reasobly prudent person would replace the tire, not drive on
it
d. Trimarco v Klein, 1982 (bathtub glass door shattered on tenant)
i. Look at facts of each case differently
1. Industry standards
e. Cordas v Peerless Trans, 1941 (gun chase led to taxi, taxi driver jumped out but
moving vehicle caused injury)
i. Totality of circumstances
ii. No breach of duty bc no one could be expected to act reasonably when they
have no opportunity to deliberate their actions
1. If no breach of duty, no negligence
f. Roberts v Louisiana, 1981 ((blind concession attendant wasn’t using his cane and
collided with customer)
i. Totality of circumstances
1. No negligence
g. Robinson v Lindsay, 1979 (kid lost his thumb tubing behind a snowmobile)
i. If engaged in adult activities, then treated as an adult (same standard of care)
h. Breuning v American Family Ins, 1970 (woman having psychotic episode caused
accident)
i. If sudden and no warning -> no liability
ii. If sudden but did have warning -> liable
5. The Standard of Care/The Professional (p.195) – RULE: a professional is held to the same
standard of care as the standard in that profession
a. Reasonably prudent professional
b. Knowledge, training and skill (or ability/competence) of an ordinary member of the
profession
i. Expert testimony needed to demonstrate/establish
ii. Teachers and clergy excepted
c. Heath v Swift Wings – was pilot negligent in small plane crash that caused deaths,
including his own?
i. Yes?
d. Hodges v Carter, 1954 – man is claiming his lawyers were negligent bc his fire
insurance claims didn’t get filed properly/in time
i. RULE: a professional is liable for any loss to his client which proximately
results from a want of that degree of knowledge and skill ordinarily
possessed by others of his profession similarly situated, or from the omission
to use reasonable care and diligence, or from the failure to exercise in good
faith his best judgment in attending to the litigation committed to his care
1. But, the DEFs in this case were not found negligent bc they were
acting in accordance with a decades-old industry custom (rather than
the law)
2. What a reasonably prudent professional would do in that area
ii. Elements of professionals DoC:
1. Knowledge and skill
2. Exercise oof discerning judgment
a. Must be above the accepted SoC
3. Use of due care (in application of knowledge and skill)
a. Mechanical > discretionary
e. Boyce v Brown, 1938 – doc put a screw in lady’s ankle. Years later it started hurting
and she went back. He made a few minor adjustments and sent her on her way.
Another doc took x-rays and found some necrosis. He removed the screw and the
ankle got better. Lady sued the first doc for malpractice.
i. New doc testified that he couldn’t know the condition of the ankle at the
time of first complaint so couldn’t state what the SoC would’ve been at that
time
ii. No negligence – must be violation of customary practice. Not taking an x-ray
at the tie was not so far a departure from ordinary medical standards that
even laymen would know it to be gross negligence.
1. Doctor negligence must be proven by expert testimony
a. In compliance with customary practice
b. Common knowledge exception (must be obvious)
f. Morrison v McNamara, 1979 – urethral smear test conducted standing up and
patient fell, hit his head and sustained serious injuries.
i. Nationall SoC v local SoC at issue – National wins
ii. 3 Standards:
1. Locality rule – antiquated
2. Same or similar locality rule
3. National standard
a. Court in favor of national SoC
b. For exam –
i. For GP: apply similar locality rule bc that’s what the
most widely adopted standard is
ii. For specialist: national standard
g. INFORMED CONSENT DOCTRINE:
i. DEF/doc failed to inform PL adequately of a material risk before securing
their consent to a proposed treatment
ii. If that party had been informed of the risks, they would not have consented
to the treatment
iii. The adverse consequences that were not made known did in fact occur and
the PL was injured as a result of submitting to the treatment
iv. Scott v Bradford, 1979 – lady had a hysterectomy but the surgery caused a
tear between her bladder and her vagina so urine leaked through. Three
surgeries later, she filed for malpractice claiming the DEF didn’t advise her of
the risks or of possible alternatives. She says that if she were properly
informed, she would have refused the surgery.
1. Doctrine of Informed Consent – duty of each physician or surgeon to
inform a patient of his options and their assoc risks
a. What the reasonable patient would want to know (majority
rule > what the reasonable physician would disclose)
b. Full disclosure of all material risks must be made
i. Risk is material if it would be likely to influence a
patient’s decision
ii. Exceptions:
1. Already known to the patient
2. Ought to be known by everyone
3. Full disclosure would be detrimental to the
patient’s best interests
4. Emergencies
c. if breach, physician liable bc consent is considered defective
i. if completely unauthorized treatment, then battery
ii. however, if consent, but breach of duty to fully inform
and injury resulting, then PL has right to bring suit,
regardless of due care exercised during treatment
v. Moore v The Regents of the Univ of CA, 1990 – guy had his spleen removed.
Doc did research with it after the surgery that resulted in a lot of profits,
patents, etc. PL filed for lack of informed consent.
1. RULE: physicians must disclose personal interests unrelated to the
patient’s health, whether research or economic, that may affect the
physician’s judgment – covered by informed consent
a. Physician failure to disclose such interests may give rise to
cause of action
b. Principles:
i. Adults have the right over their own bodies
ii. The patient’s consent, to be effective, must be
informed
iii. Physician has a fiduciary duty to disclose all info
material to the patient’s decision in obtaining consent
6. Rules of Law (p.233) – when courts establish a basis for SoC in negligence through case law.
a. Ridged, not totality of circumstances
b. Pakora v Wabash – Guy’s car got hit by a train after he got out and looked, but
boxcars were blocking his view
i. Trying to reduce negligence too strict rules
ii. Cardozo – these types of rules aren’t favored.
7. Violation of Statute (principle) – Negligence per se (application) = conclusive evidence of
breach of a duty
a. “A violation of a statute or regulation constitutes negligence as a matter of law when
the violation results in injury to a member of the of the class of persons intended to
be protected by the legislation and when the harm is of the kind which the statute
or regulation was enacted to prevent. “
b. Negligence and negligence per se are not mutually exclusive
c. Statute gives rise to a right/duty.
d. Violation of the statute is itself the demonstration of negligence
e. Still have to show causation and damages to be actionable
i. Osborn v McMasters, 1889 (perfect example of negligence per se) – DEF sold
poison without labeling it, as required by statute, and someone died.
1. PL was party who was supposed to be protected by the statute as
designed.
ii. Stachniewicz v Mar-Cam Corp, 1971 – guy gets injured/knocked out at a bar,
presumably bc of a bar fight. Statute says you can’t serve an already
intoxicated person. Regulation says no raucous behavior allowed on
premises.
1. Rule: violation of a statute or regulation constitutes negligence as a
metter of law when the violation results in injury to a member of the
class of persons intended to be protected by the legislation and when
the harm is of the kind which the statute or regulation was enacted to
prevent
2. Statute here was impossible to show causation so does not apply
3. Regulation applies – bc it was intended to keep community safe from
bar brawls. The owner violated and injury resulted.
iii. Perry v SN & SN, 1998 – alleged child abuse at a day care facility. DEFs charge
that PL was negligent in reporting under the Family Code and common law
claims
1. Just because a legislation adopts a statute for criminal liability,
doesn’t mean a court has to adopt it for civil liability
a. Look to statute for guidance
2. A general reporting statute is generally too braod to est negligence
(bc everybody could be alleged of violating)
a. Liability without fault
iv. Martin v Herzog, 1920 – guy driving at night without his lights on gets in a
head-on collision with another vehicle.
1. Automatic negligence per se
2. Rstmt § 288A
a. An excused violation of a legislative enactment or an
administrative regulation is not negligence
b. Unless the enactment or regulation is construed not to permit
such excuse, its violation is excused when
i. The violation is reasonable bc of the actor’s incapacity;
ii. He neither knows nor should know of the occasion for
compliance;
iii. He is unable after reasonable diligence or care to
comply;
iv. He is confronted by an emergency not to his own
misconduct;
v. Compliance would involve a greater risk of harm to the
actor or others
v. Zeni v Anderson, 1976 – woman walking in winter used a commonly used
footpath instead of the sidewalk and was hit/injured by a car.
1. No negligence - A legal excuse gives a legal reason why violating the
statute was ok
2. 3 approaches for proof of negligence per se:
a. No exception (like Martin v Herzog)
b. Provides basic evidence of negligence (take it or leave it by
jury)
c. Rebuttal presumption – used here
8. Proof of negligence – court/jury circumstantial evidence – totality of circumstances
considered
a. Burden of proof on PL:
i. Pleading – complaint with facts
ii. Presenting sufficient evidence
iii. Persuading jury using a preponderance of the evidence
b. Goddard v Boston & Maine RR Co, 1901 – customer slipped on a banana peel at a
train station.
i. No negligence bc the banana peel could’ve been there for just a moment or
quite a while – no evidence either way.
c. Anjou v Boston Elevated Railway, 1911 – Customer slipped on a banana peel at a
train station but this peel had obviously been there a while.
i. A “reasonably careful” employee should have picked up the banana peel
sooner
1. Judgment for PL = negligence
d. Joye v Great Atlantic & Pacific Tea Co, 1968 – Customer slipped on a banana at a
grocery store.
i. No negligence bc no evidence if banana had been there 30 seconds or three
days
e. Ortega v K-mart, 2002 – Customer slipped on a puddle of milk in K-Mart.
i. Milk had been there long enough that the store should have known and
taken precautions.
f. Jasko v FW Woolworth, 1972 – customer slipped on slice of pizza being served at a
store.
i. The method of doing something can be negligence
1. Here, how they served the pizza was dangerous
ii. RULE: when the operating methods of a proprietor are such that dangerous
conditions are continuous or easily foreseeable, then actual or constructive
notice of the specific condition need not be proved
g. HE Butt Grocery Co v Resendez, 1999 – DEF slipped on grapes near a grocery store
sampling display. Claimed the sampling itself was dangerous. The store had taken
numerous precautions.
i. No negligence because the store had taken reasonable precautions.
ii. Factors for the court to consider:
1. Did the DEF have actual or constructive knowledge of the condition?
2. Did the condition pose unreasonable risk of harm?
3. Did the DEF exercise reasonable care to reduce oor eliminate the risk?
4. Did the DEfs failure to exercise such care proximately cause the PL
injuries?
9. Res ipsa loquitor – “The thing speaks for itself”
a. Extremely rare
b. Mutually exclusive to showing breach of DoC (usually either res ispa claim OR
negligence claim)
c. RULE:
i. The thing must be in the exclusive control of the management or its servants
ii. The accident is such that it wouldn’t occur in the normal course of
things/wouldn’t happen in proper use or care
iii. Reasonable evidence (in absence of explanation by DEFs) that the accident
arose from want of care
d. Rstmt 2d § 328D Res Ipsa Loquitor (p.271)
e.
f.
g.
h.
i.
j.
i. (c) Type of event: a conclusion that these types of events don’t normally
occur unless someone has been negligent. Many accidents occur without
fault by anyone (tire blows out, man falls down the stairs). But, many do not
(elevator falling, objects falling from premises, escape of gas/water/electric
from mains or wires, derailment of trains, explosion of boilers)
ii. (d) basis of conclusion: The basis of which a conclusion can be drawn is
common knowledge to the community, and is a matter oof general
knowledge. May be supplemented by evidence, expert testimony.
Byrne v Boadle, 1863 – Barrel of flour fell on PL when he was outside a bakery in a
public place
i. Res ipsa loquitor bc the incident seemingly arose from lack of care while the
object was in the exclusive control of the DEF
Larson v St Francis Hotel, 1948 – a chair fell out of a window and onto a passerby
when they were walking outside a hotel.
i. DEF didn’t exclusively control the item bc there were guests staying in the
rooms where the chair allegedly fell from
Cruz v Daimler-Chrysler Motors Corp, 2013 – airbags deployed during a routine
cleaning of mini van
i. DEF did not have exclusive control of the airbags
ii. Other likely reasons couldn’t be excluded
iii. No res ipsa loquitor
TEST (2 approaches);
i. Something that wouldn’t happen in the absence of negligence ordinarily AND
can eliminate other responsible causes (like Cruz), OR
ii. *Same test as above PLUS DEF was in exclusive control
James v Wormuth, 2013 – where med/mal meets res ipsa – doc intentionally left a
guide wire in a patient after surgery. A second surgery was needed to remove it.
i. No res ipsa
ii. In med/mal, res ipsa is established when “an object is unintentionally left in a
patient following an operative procedure”
1. PL provided to evidence or expert testimony
2. In surgery, it’s hard to determine exclusive control/prove
Sullivan v Crabtree, 1953 – Hitchhiker in truck died in accident when driver lost
control of the vehicle.
i. Driver offered evidence of loose gravel on the road
ii. Res ipsa loquitor can have three effects:
1. Warrants an inference of negligence that the jury can decide;
2. Raises a presumption of negligence which requires the jury to find
negligence if DEF doesn’t produce sufficient evidence to rebut the
presumption; or
3. Not only raises the presumption, but shifts the burden of proof to the
DEF using a preponderance of the evidence
iii. RULE: res ipsa provides evidence of negligence but not more (#1 above)
1. so, here – no res ipsa
Ch #5 – Causation in Fact (p.289)
1. Sine Qua Non
a. Perkins v TX & New Orleans R Co, 1962
i. The negligence must be a cause in fact/substantial factor for the damages
1. Rule: “but for” -> “substantial factor” (if you can show
material/substantial factor, usually “but for” is satisfied)
ii. Need both Cause in fact AND
iii. Proximate cause
2. Proof of Causation
a. Reynolds v Texas & Pac Ry Co, 1885 (obese lady fell at a train station)
i. Affirmed for PL bc no evidence, speculative
b. Gentry v Douglas Hereford Ranch, Inc, 1998 (a man tripped and on a stair, his gun
discharged killing an innocent woman)
i. No negligence against the ranch bc couldn’t prove there was cause in fact
c. Kramer Svc Inc v Wilkins, 1939 (glass fell on a hotel guest, causing injury. Three years
later, he got skin cancer there and sued)
i. No negligence
1. PL needed to show “more likely than not” through a “preponderance
of the evidence”
d. Smith v Providence Health & Svcs, 2017 (PL suffered permanent brain damage bc of
a stroke. Claims medical negligence bc he complained of symptoms but his Dr didn’t
take proper steps to treat)
i. “loss of chance” (usually only med-mal cases) – loss of substantive chance
for better medical outcome = injury
1. PL proves by showing there is X% chance that PL would have had a
better outcome (don’t have to show cause in fact)
a. If >50% = substantial factor
b. Need an expert to show
2. To win, must show:
a. Exact thing you lost chance of happened,
b. PL has the burden of proof
c. You can only recover for whatever % you lost
3. Concurrent causes
a. Hill v Edmonds, 1966 (a car crashed into a truck that was left in the midle of the road
with its lights off)
i. Both parties negligent so responsible for entire event
4. Problems in determining which party caused the harm
a. Joint & several liability
i. Anderson v Minneapolis, St P & S St M Ry Co, 1920 (a fire caused by the DEF
merged with another fire and burned the PLs property)
1. Cant show “but for” causation, but can show “substantial factor”
b. Determining which party caused the harm
i. Summers v Tice, 1948 (three guys hunting, two of them shot in PL’s direction
and he was shot in the eye but doesn’t know by whom)
1. Burden pf proof shifts to DEFs to prove it wasn’t them
2. If they can’t, they are both liable to the PL
c. Sindell v Abbott Laboratories (DES), 1980 (an adult woman whose mother took DES
when she was pregnant got cancer from the drug but cant prove who the exact mfgr
was of the exact pill that her mom took so she brought suit against the main 5
mfgrs)
i. All mfgrs held liable for their proportion of their market share
Ch #6 – Proximate or Legal Cause: Scope of Liability
(p.335) (a judge-made doctrine)
DUTY
NEGLIGENCE
BREACH
Cause in fact
CAUSATION =
Proximate cause
DAMAGES
1. Atlantic Coast Line R Co v Daniels, 1911 (
2. Unforeseeable consequences: Unforeseeable = NO PROXIMATE CAUSE
a. Foreseeability (to a “reasonably prudent” person)
i. If harm is foreseeable -> can be proximate cause
1. Always consider totality of the circumstances
2. Jury makes the call
ii. If there is actionable negligence on the part of the DEF, they can look to
contributory negligence for recourse
b. Proximate cause
i. (1) harm in foreseeable
ii. (2) no intervening/superseding causes (they cut the causal chain)
1. No negligence bc no causation
iii. (3) temporal proximity (close in time)
iv. (4) special proximity (close in space)
c. HYPO: you hit a parked car and there’s explosives in the trunk. It blows up.
i. Across the street someone is hurt = foreseeable, so proximate cause
ii. Next door the building shakes and someone is injured by shattered glass =
foreseeable so, proximate cause
iii. 3 blocks away same scenario = not foreseeable so, no proximate cause
d. Bartolone v Jeckovich, 1984 (DEFs caused a 4-car accident that PL was in. Afterward,
the PL had a psychotic break due to a pre-existing condition)
i. Verdict for PL –
ii. About the flow of events, not the consequences
e.
f.
g.
h.
iii. Rstmt § 31 - Eggshell skull doctrine - DEF must “take the PL as you find
them”
iv. Foreseeability refers to the injury, not the specific results
In Re Arbitration Bet Polemis & Furniss, Withy & Co, Ltd, 1921 (Cargo ship leased by
PL to DEF to bring petrol to Morocco. DEF let a plank fall, it caused a spark, and the
ship burned)
i. Negligence is negligence regardless if the negligent party foresaw the result
or not – just that your negligence could cause harm
ii. Like Falsgraf
Overseas Tankship Ltd v Morts Dock & Engineering Co “Wagon Mound #1”, 1961
i. Dock owner loses
ii. Negligent DEF only responsible for damages that were foreseeable
iii. No proximate cause
Wagon Mound #2, 1966
i. Same case but different findings
ii. Court says it was foreseeable this time bc it had happened before
1. Doesn’t have to be that it will definitely happen, just that it was
foreseeable
Palsgraf v Long Island RR Co, 1928 (PL was injured at a train station when a guard
tried to help a customer onto the train and the customer’s package fell. The package
contained fireworks and there was an explosion. The explosion caused some scales
to fall and the PL was injured)
i. Proof of negligence in the air will not do
ii. DEF needs to have had a breach of duty to the PL, not vicariously
iii. Concl – (Cardozo) Focuses on duty/breach. Here, the PL injuries were not a
reasonably foreseeable consequence of the negligence. PL loses
1. Duty of care only owed to foreseeable PLs = “zone of danger” test (to
establish the relationship in time and space):
a. Is harm to PL foreseeable?
b. Were there intervening/superseding causes?
c. Temporal proximity (time)?
d. Spatial proximity? (space)
2. “The risk reasonably to be perceived defines the duty to be obeyed”
a. This approach is only relevant if you have an unforeseen PL (if
you aren’t a foreseeable PL, then I don’t owe you a duty
iv. Dissent (Andrews): DEF owes duty to society in general. Focus on causation.
duty to one= duty to all. If injuries can be traced to breach of duty, then Def
should be liable (“cause in fact”/“but for”) . If harm is caused, the only
question is causation. If cause in fact then, question becomes proximate
cause
1. *est proximate cause as limit for tort liability (causal chain)
a. DEFs conduct must be a substantial factor in an injury that was
a reasonably foreseeable consequence of that conduct
b. Limited to those causes which are so closely connected with
the result and of such significance that the law is justified in
imposing liability
i. Direct connection w/o intervening causes
i. Yun v Ford Motor Co, 1994 (a spare tire fell off the PL’s car while she was driving. Her
father/passenger crossed the highway to retrieve it and was struck by another car.
Seven months later he died as a result of his injuries.)
i. Issue: intervening superseding cause so unforeseeable (bc dad crossed the
busy highway)
1. Superseding cause here
a. So, DEF can’t be liable/wouldn’t have foreseen
ii. Foreseeable v extraordinary consequences
1. Here, PL caused their own injuries
iii. DEFs are only responsible for injuries that are reasonably foreseeable
consequences of a DEFs conduct
iv. Product liability act – strict liability unless a DEF can demonstrate that an
intervening superseding event was the proximate cause of th ePL’s injury
1. No proximate cause if another, extraordinary event superseded,
causing injury
a. Here, PL crossing a busy highway to retrieve the tire was not
reasonably foreseeable
b. Chang’s actions broke the chain of causation = superseding
cause
v. Dissent - should be left to jury to decide (everybody besides Ford and Kim
should be on the line)
1. Bc judges are far more conservative than most people are
3. Intervening/superseding causes (p.369) cut the chain of actionable causation = no
proximate cause = no negligence bc no causation
a. If no proximate cause -> cut the causal chain.
i. To cut the causal chain, an event must be superseding (comes before the
DEF’s negligence)
1. Test is foreseeability (were damages from negligence foreseeable
despite intervening force?
a. Foreseeable = proximate cause
b. Unforeseeable = no proximate cause
c. Jury decides
ii. Act of god will not cut the causal chain
4. Intervening causes (p.369) – most do not cut the causal chain (to cut the chain, an event
must be superseding)
a. Derdiardian v Felix Contracting Corp, 1980 – DEF says no causal link between their
negligence and the accident/injury/the other driver cut the causal chain
i. Rule – where the acts of a third person intervene between the DEFs conduct
and the PL’s injury, the causal connection is not automatically severed. In
such a case, liability turns upon whether the intervening act is a normal or
foreseeable consequence of the situation created by DEF’s negligence
ii. TEST: If the intervening act is
1. (1) extraordinary under the circumstances,
2. (2) not foreseeable in the normal course of events,
3. (3) or independent of or far removed from the DEF’s conduct, it may
well be a superseding act which breaks the causal nexus
4. To be decided by the court
iii. Reas – (1) no bc construction site, (2) yes bc Felix no lacked safety measures,
(3) they should’ve had a safety protocol in plaCE (NEGLIGENCE) – and that
happened before the accident.
iv. Concl – (1) yes bc Felix lacked safety measures; (2) no bc it was foreseeable
bc it was a construction site; (3) they should’ve had a safety protocol in place
b. Watson v Kentucky & Indiana Bridge & RR Co, 1910 (p.375) – was the match causing
an explosion at the RR a mere contributing cause or the proximate cause?
i. Concl – Against RR for PL. -for jury to decide.
ii. Reas – If accident -> RR could’ve foreseen explosion. But, if intentional -> RR
would not foresee.
iii. Rule – The fact that the concurrent cause or intervening act was unforeseen
will not relieve the DEF guilty of the primary negligence from liability. But, if
the act is something so unexpected or extraordinary as that he could not or
ought not bound to anticipate the criminal acts of others by which damage is
inflicted and hence is not liable therefor
1. Intentional or criminal acts are generally viewed as intervening
superseding causes
a. Exception: acts of god cut the causal chain
b. Always run it through the test!
c. Fuller v Preis, 1974 (p.381) – PL (Dr. Fuller’s estate). Dr. Fuller was driven crazy by a
car accident and committed suicide seven months later after getting seizures.
i. Concl – Here, for PL bc the suicide was an irresistible impulse due to the
accident. So, not a superseding cause
ii. Rule – normally suicide would be an intervening superseding cause (bc
normally it is intentional).
iii. Reas – was the suicide an “irresistible impulse” (recovery available) or
intentional (no recovery)?
d. Mc Coy v American Suzuki Motor Corp, 1998 (p.385) – a good Samaritan stopped to
help at the scene of a Suzuki accident by waving flares in the road to direct traffic. Before he was back at his car safely, the police officer drove away. -The man was
struck by another car. Suzuki says no rescue doctrine for product liability claims (and
that the person that caused the accident is liable).
i. Concl – Liability to DEF bc rescue doctrine does apply. For jury to decide if
there was proximate cause or not.
ii. Rule – rescuers are protected under the rescue doctrine (rescue not an
intervening superseding cause):
1. Allows an injured rescuer to sue the party which caused the danger
requiring the rescue in the first place. (varies the normal rules of
negligence)
2. Informs a tortfeasor that it is foreseeable that a rescuer will come to
the aid of the person imperiled by the tort-feasor’s actions
3. Negates the presumption that the rescuer assumed the risk of injury
when he knowlingly undertook the dangerous rescue, so long as he
does not act rashly or recklessly
iii. Rescuers:
1. Demonstrate that the DEF was negligent to the person rescued and
such negligence caused the peril or appearance of peril to the person
rescued;
2. The peril or appearance of peril was imminent;
3. A reasonably prudent person would have concluded such peril or
appearance of peril existed; and
4. The rescuer acted with reasonable care in effectuating the rescue.
5. Rescuer must show proximate cause
5. Public Policy (p.393)
a. Kelly v Gwinnell, 1984 (p.393) – a man got into an accident after leaving his friend’s
house where he had a few scotch on the rocks drinks. -Was social host liable?
i. Rule - here, bc of public policy, liability exists where it wouldn’t normally. The
court weaved them together.
1. most jurisdictions limit social host liability. But, NJ public policy strong
against DD.
2. Here, bc of public policy, liability for negligence exists where it
normally wouldn’t (the court weaved them together)
ii. Concl – here, DEFs/social hosts liable bc the event was foreseeable.
iii. Dissent – can’t hold Zak to same standard as commercial bc he is just a social
host = unfair bc he is not trained
b. Enright v Eli Lilly & Co, 1991 – two PLs, mother and daughter. The grandmother took
DES and now PLs have reproductive issues that they allege are from the DES.
i. PxHx – trial court dismissed the claims. PL appealed. Appellate court affirmed
– dismissing all but the strict liability claim (in support of public policy) – Sup
Ct NY affirmed, PL loses. No cause of action
ii. Rule – Liability in DES cases is limited to those who ingested DES or were
exposed to it in utero. An injury to the mother that results in injuries to a
later-conceived child does not est a cause of action for the child against the
original tort-feasor
iii. Reas – it Is the court’s duty to confine liability within manageable limits – The
mfgr is still liable to a class commensurate to the risk created – there is also
the FDA to deal with this issue (need for the tort/court system to promote Rx
drug safety is diminished) – liability predicated on the failure to warn ppl of
the dangers of which the mfgrs knew or with adequate testing should have
known
c.
d.
e.
f.
1. negligence
a. Reasonable care
b. Foreseeability
2. Also, dangers of deterring Rx drugs. *public policy consideration*
By way of synthesis (p.407) – should DEFs liability to PL be cut off even though the
DEF’s conduct was both negligent and a factual cause of the PL’s injury?
i. Only comes up in unusual situations
ii. A weighing, evaluative process is preferred to a clear-cut rule of law
1. Reasonably prudent person standard
iii. Examined through elements of negligence:
1. Duty – like in Palsgraf
2. Causation (most courts) –
Proximate cause – two approaches:
i. Hindsight/direct-causation
ii. Foreseeability – may produce less liability
1. Risk idea (p.408)
2. Derived from purpose-of-statute test (p.241)
iii. If no proximate cause -> complaint dismissed, summary judgment, or verdict
directed for DEF
Definitions p.411-412
Shifting responsibility (p.412)
i. Possible for another party to take the risk over, but not usual
Ch #7 – Joint Tortfeasors (more than one DEF) (p.415)
1) General rule – joint tortfeasors are joint and severally liable (if situation is 50/50, each party
is liable for all if other party(s) can’t pay (legal rule)
a) Not all DEFs need to be acting in coordination, just need to cause the same harm
i) Used to be concurrent requirement, not anymore
2) Liability and Joinder of DEFs
a) Bierczynski v Rogers, 1968 – DEFs were racing on a highway an accident occurred. action for concurrent negligences -neg of each was a proximate cause of the accident. –
Race was in the Westbound lane but DEFs car was coming so he tried to get back into
the other lane, lost control and crashed into PLs car at about 70mph -Bierczynski was
always in proper lane
i) PxHx – trial court for PLs against both DEFs jointly. -DEF Bierczynski appealed.
ii) Concl – affirmed against PL/Bierczynski
iii) Reas – general rule – if no statute on the subject, racing a motor vehicle on a public
highway is negligence (concurrent negligence = old standard) -all who engage in
these races are liable for injury or damage caused by it. -all parties engaged in
highway racing are wrongdoers who have, in effect, induced and encouraged the
tort
b) Joinder – permitted when PL’s claims arose from the same transaction, occurance, or
series of transactions or occurrences.
i) Now permitted when the DEFs acted in concert, when the DEFs acted separately to
cause the same harm, and even when the DEFs acted independently to cause
different harms
ii) Joinder of DEFs permitted but not required
(1) DEF cannot compel joinder of another DEF if PL opposes it
c) Liability – joint and several = PL can collect from any one of them or any group of them
for complete amount of damages
i) When tortfeasors act in concert/together
ii) DEFs fail to perform a common duty to the PL
iii) DEFs who act independently to cause an indivisible harm
(1) Coney v JLG Industries, Inc, 1983 – ILLINOIS Coney for estate of Jasper, who died
at work operating heavy machinery (hydraulic lift). -DEFs manufactured the
equip. -Strict liability claim. DEF says PL and his employer committed
contributory negligence.
(a) Reas – PL says 4 reasons to retain joint and several liability: (1) injuries are
indivisible; (2) PL would be unable to recover for his loss if one party was
rendered unable to pay; (3) PL was not tortious; (4) serious and unwarranted
effect on the ability of a PL to collect.
(b) Rule - -under contributory negligence, a PL is only able to collect for the
percentage of the damages that they were not responsible for (are
attributable to him), but in comparative negligence, a PL can recover for the
entire injury (bc none of the injuries are attributable to him)
(i) Contributory negligence (old rule) -> comparative negligence
(ii) In IL, joint and several liability survives after comparative negligence
1. Majority rule
2. Better bc the negligent DEF has to pay someone for their negligence
as opposed to the NM standard where the PL would get onky a
percentage of their damages
3. If PL is more negligent that the remaining DEFs -> DEF is only
responsible for their percentage of negligence
4. IF PL more negligent than DEF -> DEF only owes what they are
responsible for (no joint & several liability)
PL = 30%, DEF1 = 25%, DEF2 = 45%
(2) Bartlett v New Mexico Welding Supply, Inc, 1982 – NEW MEXICO three car
accident. – driver of lead car is unknown. -PLs sued for negligence. -DEF says the
lead car caused or contributed to cause the accident.
(a) PxHx – Trial court $100k for PLs (DEF’s negligence 30% and unknown driver
70% responsible) . PLs asked for judgment for 100k, not granted. -Trial court
ordered a new trial based on jury instruction. -PLs appealed.
(b) Reas – joint and several liability rests on two grounds – neither is defensible:
(1) the PL’s injury is indivisible (each DEF’s negligence is a proximate cause of
the entire indivisible injury)
(c) Concl – DEF only liable for 30% - judgment for PL. No new trial.
(d) Rule – Joint and several liability is not to be retained in comparative
negligence on basis that PL must be favored (In NM, joint and several liability
is gone after comparative negligence)
iv) Joint and several liability – the PL can collect from any of the DEFs in totality and
leave it up the the DEFs to get reimbursed from the other DEFs
(1) Several liability – each tortfeasor pays only his apportioned share
3) Satisfaction & Release
a) A claim is settled when it has actually been paid = satisfied (“acceptance of full
compensation for the injury.”)
i) Satisfied party cannot bring any more action, but DEF who paid can sue other DEFs
for contribution
b) Release is surrender of the PLs claims
i) v Covenant not to sue (p. 434)
c) Bundt v. Embro, 1965 (p.428) – SATISFACTION - Two car crash with five passengers. Action brought against the two drivers and a contractor who negligently blocked the
view of a stop sign. -DEFs moved to discharge when PLs recovered a judgment for the
same injuries against the State of New York/the judgment has been satisfied. –
i) Reas – there may be many perpetrators of a wrongful act, each of whom is
separately liable, yet the act and its consequences are indivisible, and the injured
person is, therefore, limited to a single satisfaction.
ii) Concl – If the trial court determines that the DEFs were joint tortfeasors with the
state, the satisfaction of a judgment against the state would operate as a discharge
of the DEFs.
iii) Rule – the PL is entitled to only one compensation, and full satisfaction of his claim,
by full payment, prevents further enforcement (has been substantially changed over
time)
(1) Any partial satisfaction of the claim must be credited to the other parties who
are also liable
d) Collateral-source rule (p.431) applies to insurance policies maintained by the injured
party, gratuities to him, employment benefits , and to benefits from social legislation
e) Cox V Pearl Investment Co, 1969 (p.432) – RELEASE v covenant not to sue - Mrs. Cox, the
PL fell at a Goodwill store. -The property was owned by the DEFs. -She had agreed in
writing to take $2500 from goodwill in exchange for signing a “Covenant not to proceed
with suit”.
i) PxHx - -Trial court said the document served as a release and prohibited further
action against Pearl as joint tortfeasors even though there was a clause in the
document reserving her right to do so. -Sup Ct CO reversed and remanded for
further proceedings.
ii) Common law rule – OLD: the release of one tortfeasor releases all others who may
have liability – unless the PL instated a covenant not to sue in the K/a partial release
(1) NEW RULE: it is possible to release only one DEF, but you need to make sure you
are being clear about that intention. = encourages settlement
f) Vicariously liable tortfeasors (p.434)
g) Successive tortfeasors
h) General release (p.435) – “any and all other persons who are or may be liable for
injuries arising out of said accident”
4) Contribution and Indemnity (p.441) – they are mutually exclusive remedies
a) Contribution – when multiple joint tortfeasors contribute to the damages (usually in
proportion to their relative fault) – only a cross-claim or a claim after the fact
i) Most states permitting contribution do not require that a judgment be obtained
against a tortfeasor before he pays and seeks contribution
ii) Only available where joint and several liability is recognized
b) Indemnity – (p.449) shifts the entire cost of the judgment or settlement from a
tortfeasor whose liability to the PL was not based on its own wrongful conduct, but
imposed on it by law because of its relationship with the tortfeasor whose wrongful
conduct caused the injury. – almost always a separate claim after
i) Only exists when one party pays 100% of the damages that another party was
partially responsible for
ii) Not available to negligent DEFs
c) Knell v Feltman, 1949 (p.441) -Mr and Mrs Langland were passengers in Knell’s car when
they were in an accident with a taxi that was owned but not being operated by Feltman.
-Mrs. Langland was seriously injured. -The Langland’s sued the taxi owner, Feltman. After answering the complaint, Feltman filed a third-party complaint against Knell,
claiming contributory or sole negligence on his part.
i) PxHx – The jury found that both Feltman and Knell were negligent and PL’s damages
were $11,500. -Awarded judgment against Feltman for $11,500 and for Feltman
against Knell for $5,750 with a contingency clause. -Knell said he shouldn’t be on the
line for this because the PLs had not named him as a joint tortfeasor (p.441); nor had
the court found a judgment against him. So, his liability was not established. -App Ct
Affirmed.
ii) Rule – when a tort is committed by the concurrent negligence of two or more
persons who are not intentional wrongdoers, contribution should not be enforced. A
joint judgment against joint tortfeasors is not a prerequisite to contribution between
them, and it is immaterial whether they were, or any of them was, personally
negligent. (p.442)
(1) FRCP 14(a) allows DEFs to bring additional parties into the action even if PL is not
seeking action against that party.
(2) If bringing the additional party in was prohibited, it could allow collusion
between PL and potential DEFs
d) Yellow Cab Co of DC, Inc v Dreslin, 1950 (p.444) -Dreslin and a taxi got into a car accident
that involved injuries. -Dreslin’s wife and others sued the taxi Co and Dreslin joined the
suit. -As a defense, the Taxi Co claim contributory negligence. -Taxi Co also made a
cross-claim against Dreslin for damages to the taxi and for contribution for money
recovered by the other PLs against it.
i) PxHx - -Trial court found concurrent negligence. -Judgments in varying amounts for
all PLs besides Dreslin, etc (p.444). -App Ct affirmed.
ii) Rule – neither husband nor wife is liable to each other for tortious acts by one
against the other (this rule is pretty much gone in most juris)
(1) If DEF is immune to a particular PL, there is no contribution
(2) Today they would grant the spousal contributory negligence
e) Contribution sought by nonsettling DEFs (p.446)
i) Slocum v Donahue, 1998 -Donahue was convicted of vehicular manslaughter for the
death of the Slocum’s 18-month old son. -The Slocum’s brought civil negligence suits
against Donahue and a third-party complaint against Ford, who mfgr’d the car that
was in the accident. -At criminal trial, the expert witness testified that the mats were
faulty, which led to it getting lodged under the gas pedal, contributing to the
accident that caused the Slocums son’s death. -Before trial the Slocums signed a
settlement agreement with Ford for $150k for release of further claims; then moved
for summary judgment
(1) Concl – Trial court dimissed the third-party claim against Ford. -Slocums
appealed. -App Ct affirmed (for Ford). The jury found that Donahue was solely or
jointly negligent with Ford. His liability is not vicarious. He is not liable for an
indemnity from Ford. The Donahues shouldn’t be held liable to the Slocums for
the conduct of Ford.
(2) Rule – when a release is given in good faith to one of two or more persons liable
in tort for the same injury, it shall discharge the tortfeasor to whom it is given
from all liability for contribution to any other tortfeasor.
(a) No contribution from settling DEFs (not in all juris)
(i) 1939 Uniform Act = permits nonsettling DEF to seek contributions from
the settling DEF.
(ii) (p.448) The right to contribution, unlike the right to indemnity, is based
on the shared fault of the joint tortfeasors. Indemnity, on the other hand,
allows someone who is without fault, compelled by operation of law to
defend himself against the wrongful act of another, to recover from the
wrongdoer the entire amount of his loss, including reasonable attorney’s
fees. Indemnity is permitted only when the would-be indemnitee does
not join in the negligent act. This right to indemnity is limited to those
cases in which the would-be indemnitee is held derivatively or vicariously
liable for the wrongful act of another. (here, Ford wasn’t found negligent
at all)
5) Apportionment of damages (p.450)
a) Bruckman v Pena, 1971 -Pena was injured in a car accident in which Bruckman was
driving and Armored Motors Service owned the vehicle. -Almost a year later, Pena was
in another accident and his injuries from the first accident were aggravated. -Pena
brought suit only against the driver and owner of the vehicle from the first accident. Bc
there was no way to apportion the damages.
i) PxHx – Trial court found for Pena for $50k. -Bruckman and vehicle owner sought
reversal due to incorrect jury instructions. –App Ct reversed the judgment.
ii) Rule – PL is entitled to recover for injury or pain received in first collision, but is not
entitled to recover for any physical ailment or disability which he may have incurred




subsequent to the collision. Jury is to try to separate the difference and apportion
damages accordingly.
(1) (p.451) – where a pre-existing diseased condition exists, and where after trauma
aggravating the condition disability and pain result, and no apportionment of the
disability between that caused by the pre-existing condition and that caused by
the trauma can be made, in such case, even though a portion of the present and
future disability is directly attributable to the pre-existing condition, the DEF,
whose act of negligence was the cause of the trauma, is responsible for the
entire damage.
(a) Eggshell skull rule – driver in second accident takes PL as they find them. So,
second DEF would be responsible for harm exacerbation
(i) If issue apportioning, it’s up to experts to help the jury make the call
iii) Reas – Jury was given additional, incorrect instructions that if the evidence doesn’t
permit such apportionment, the DEFs are liable for the entire amount/injury.
(1) DEFs not responsible for subsequent injuries
(2) Here, the injury was not a pre-existing condition
Concurrent tortfeasors (related incidents)
Successive tortfeasors (unrelated incidents)
Successive tortfeasors (related incidents)
Successive tortfeasors (related incidents – allocation between actors)
Ch #8 – DUTY OF CARE (p.455)
1) Rstmt 3d of Torts §7 – Duty
a) (a) an actor ordinarily has a duty to exercise reasonable care when the actor’s conduct
creates a risk of physical harm.
b) (b) in exceptional cases, when an articulated countervailing principle or policy warrants
denying or limiting liability in a particular class of cases, a court may decide that the DEF
has no duty or that the ordinary duty of reasonable care requires modification.
2) Where a person creates through his or her negligence a risk of physical harm a duty is
imposed.
a) Recall Palsgraf (p.352)
3) Three main areas where a duty of care is central to establishing liability:
a) (1) The, often wrongful, act of a third party or a natural event has caused physical harm
to PL that DEF has failed to take affirmative steps to prevent or ameliorate;
b) (2) the negligent act causes non-physical harm, ie, emotional distress or pure economic
loss; and
c) (3) the negligent act causes losses in birth or conception where the traditional
cetegorizations of personhood are incapable of bestowing a cause of action. This third
area demonstrates that technological advances and social change may give rise to new
interests that may be protected by negligence.
d) PRIVITY OF CONTRACT (p.456) – not the law anymore/no longer required (only in “pure
economic loss” negligence)
i) Duty in tort arose from law
ii) Duty in K arose from agreement of parties
iii) Nonfeasance – breach of promise is not a tort.
(1) Exceptions:
(a) Public utility or common carrier has a duty to serve the public and is liable tin
tort when they fail to do so
iv) Malfeasance – when a party mis-performs a K
v) Election and gravamen - when you can bring an action in either K or tort.
(1) Two avenues:
(a) PL chooses
(b) Court chooses = gravamen (gist) of the action
4) FAILURE TO ACT – as a general matter, there is no duty to act. Over time, significant
exceptions have arisen such that now there is usually a duty to act
i) Medical professionals
ii) “special relationship”.
iii) Acting to prevent harm from an instrument that is under your control
(1) Being in a unique position to prevent harm
b) Commonwealth v Peterson, 2013 – Virginia Tech shooting. -The shootings appeared
targeted, so police didn’t lock down the campus. -But then, a few hours later, the mas
shooting began at a different dorm. -An email blast was sent out to lockdown. -Two of
the victims’ estates filed against the commonwealth (state) claiming that they had a
“special relationship” with the decedents and that they breached their duty by not
informing them and that this breach was the proximate cause of their deaths.
i) PxHx – The jury awarded $4million to each family (which was reduced to $100,000).
-The families appealed. -Sup Ct of VA reversed Circuit Ct. and held that there was no
duty for the commonwealth to warn students of the potential for criminal acts by
third parties = no “special relationship”.
ii) Reas – The lower court erred in finding a “special relationship”. -Even if they did
have a special relationship, the evidence did not give rise to a duty to warn. –Here, it
was not “known or reasonably foreseeable”
iii) Rule – (p.472) a person does not have a duty to warn or protect another from the
criminal acts of a third person (esp when there is unpredictable/unforeseen
assaultive criminal behavior). -narrow exceptions but before exception comes into
play, there must be a “special relationship” established.
(1) Special relationship – between PL and DEF or between third party criminal actor
and the DEF
(a) Carrier/passenger
(b) Innkeeper/guest
(c) Employer/employee
(d) Others = only warn if imminent probability of injury
(i) Business owner/invitee, or landlord/tenant
(2) Foreseeable harm – two levels
(a) (1) known or reasonably foreseeable harm
(b) (2) “imminent probability of harm” where the DEF “knows that criminal
assaults against persons are occurring, or are about to occur, on the
premises”, based upon “notice of a specific danger just prior to the assault.”
c) Hegel v Langsam, 1971 (p.475) – Parents said the university was at fault because their
daughter became associated with criminals, got seduced, became a drug user, and
didn’t come home when they requested. –
i) Reas – people are permitted to attend a university and are presumed to have a
sufficient maturity level to act right
ii) Rule – no law requires universities to regulate the private lives of their students –
only a law requiring universities to maintain law and order on their campuses.
d) LS Ayers & Co v Hicks, 1942 (p.476) -a kid got his fingers stuck in an escalator at a
department store. -The store delayed in stopping the escalator which made the injuries
worse. –
i) PxHx – Trial court found for PL. -DEF appeals. –App Ct reversed for PL. New trial.
ii) Reas – the law does not deal with purely moral obligations. But, there are some
situations where the relationship of the parties may render a duty where there
wasn’t one before, even without negligence. -Here, the victim was an invitee and
the instrument was under the DEF’s control.
iii) Rule – Sometimes, the mere happening of an accident gives rise to a legal duty to
help the victim even though there is no negligence where one is a master or invitor,
or when injury resulted from an instrument under the control of the DEF (p.478).
(1) Duty exists even if the PL or a third party was negligent and there is no fault on
the part of the DEF
(2) PL recovers for aggravation of the injury, not the injury itself
(3) Concl – PL should be permitted to collect for the aggravation of his injuries but
not for the injury itself.
e) JS and MS v RTH, 1998 (p.479) -Action was brought against a man and his wife after he
sexually abused two neighbor girls (children) for over a year. -He was criminally
convicted and owns up to intentional and negligent injuries. -The wife, however, says
she isn’t negligent. -Mary says she had no control over John; nor did she know what was
going on.
i) Issue – Does a wife who suspects or should suspect sexual abuse by her husband
owe a duty to prevent the abuse? And, if there is a duty, does a breach constitute
proximate cause of the harm that results?
ii) PxHx – Trial court granted summary judgment to Mary. -App Ct reversed and
remanded, granting PLs extended time for discovery. _State Sup Ct. affirmed
iii) Rule – (p.484) when a spouse has actual knowledge or special reason to know (or
should know) of the likelihood of his or her spouse engaging in sexually abusive
behavior against a particular persob or persons, a spouse has a duty of care to take
reasonable steps to prevent or warn of the harm. A breach of such duty constitutes
a proximate cause of the resultant injury, the sexual abuse of the victim.
(1) balancing test: (p.480)
(a) Nature of underlying risk of harm – its foreseeability and severity;
(b) The opportunity anf ability to exercise care to prevent the harm;
(c) The comparative interests of, and the relationships between or among, the
parties; and
(d) Considerations of public policy and fairness (societal interest)
(e) See foreseeability elements (p.480)
(f) Scope of duty to warn (p.481) “totality of circumstances” and must be
“reasonable”. Factors
(i) Risk of harm involved
(ii) Practicability of preventing it
(iii) Reasonableness is an objective consideration based on facts of the
situation
iv) Reas – (p.480) -Foreseeability is the foundational element/crucial. -Objective
analysis. -See element analysis (p.480-81). -Duty is not a ridged formalism, instead
courts must draw on “notions of fairness, common sense, and morality”. -Duty
changes as society changes. -Scope and boundaries exist for duty. -A wife is in a
particularly advantageous to have knowledge or opportunity to know if such abuses
are occurring = particularized foreseeability”. -Public policy strongly supports
protecting children from being abused. –“Duty to report” statutes support this
(Megan’s Law). -Societal interest in protecting marital relationships does not
outweigh the societal interest of protecting children from sexual and other abuse. -A
flexible duty of care standard can be applied where a spouse is required to take
reasonable steps to prevent or warn of the harm. -The harm from the wife’s breach
of duty is both direct and predictable. -Mary could have discharged her duty by
confronting her husband and warning him, by insisting that the girls not come over
any more, by keeing a watchful eye, or by warning the girls parents or the girls
themselves. (reasonably warn or protect)
(1) She knew or should’ve known (bc he was a convicted pedo)
(2) Knew of his propensities
(3) Didn’t tell anybody
v) Concl – Yes, there is a duty. -If breach = proximate cause? Yes.
f) Tarasoff v Regents of University of CA, 1976 (p.486) -A doctor was caring for an
outpatient. -The patient told the Dr that he planned to kill a woman who had refused his
romantic advances. -The Dr reported it and the patient was detained at the hospital. After some discussion among the psychiatrists, he was released. -Two months later, he
did kill the woman. -The woman’s parents brought a wrongful death claim against the
four psychiatrists. -They also claimed that the Dr’s had a duty to warn them and the
decedent of the danger.
i) PxHx – Trial court rejected the claim bc Dr’s are protected under CA statute. –This
court amended the pleadings for the PLs.
ii) Rule – the single relationship of a doctor to his patient is sufficient to support the
duty to exercise reasonable careto protect others against dangers emenating from
the patient’s illness. (p.487)
(1) Therapists need only exercise a “reasonable degree of skill, knowledge, and care
ordinarily possessed and exercised by members of that professional specialty
under similar circumstances.”
(2) If not a known victim/victims/specific location, there may be no duty to report
iii) Reas – A special relationship existed between the killer/patient and the Dr’s. -The
victim was a third party to this relationship and is covered under this rule. -Here, the
therapists knew how dangerous the patient was and predicted that he would kill. They were negligent in their failure to warn. -The risk of unnecessary warmings is a
reasonable price to pay for the lives of potential vixctims to be saved. -Public
interest of saving lives outweighs the risk of patients not having full privacy in their
communications with their therapists.
(1) The duty to protect comes with a duty to warn.
5) Emotional distress (p.504) (pure economic loss – loss that is not dirextly connected to your
business or person)
a) NIED – negligence claim with no physical injury or impact, only emotional)
i) Different from IIED:
(1) No requirement of intent
(2) No extreme or outrageous conduct required, just negligent
(3) Emotional distress must be SEVERE enough to cause a physical manifestation
(but different from IIED where distress must be “so severe …”
(a) Many jurisdictions don’t require the physical manifestation of the distress.
b) Daley v LaCroix, 1979 -A car accident led to a utility pole break, caused a number of
electric lines to snap and caused an explosion. -PLs claimed that, in addition to property
damage, the Mrs suffered “traumatic neurosis, emotional disturbance, and nervous
upset”; the child experienced emotional disturbance and nervousness. –
i) PxHx – the trial court directed a verdict for the DEFs bc MI law denies recovery for
NIED. -Court of Appeals affirmed.
ii) Rule – OLD RULE: NIED recovery requires a physical impact upon the PL. NEW RULE:
The impact rule is gone. Where a definite and objective physical injury is produced
as a result of emotional distress proximately caused by DEF’s negligent conduct, the
PL in a properly pleaded and proved action ay recover damages. (ex’s: HBP, throwing
up, not being ale to sleep, stress reactions, nightmares, weight loss, weight gain,
etc). Subject to limitations:
(1) DEF’s standard of conduct is measured by reactions to be expected of “normal
persons” (no hypersensitivity is recognized)
(2) PL must prove that the physical harm or illness is the natural result of the fright
proximately caused by DEF’s conduct (men or ordinary experience and judgment
must be able to conclude)
iii) Reas – as the world changes, so must the laws adapt. -Here, there was no expert
testimony offered for Timothy. -For the Mrs, only vague, uncertain, and indefinite
testimony was presented. –
iv) Concl – The child, Timothy, should be able to present his case at trial. -So should the
Mrs, Estelle. -Reversed and remanded.
v) Notes – Dissenting (Brennan) (p.508): PLs suffered indefinite and subjective injury
and the trial court was correct.
c) A duty to avoid NIED is recognized where the DEF has an obligation to care for the PL’s
emotional wellbeing or the PL’s emotional wellbeing is necessarily implicated by the
nature of the DEF’s undertaking to or relationship with the PL, and serious emotional
distress is especially likely to be caused by the DEF’s negligence.
d) PL must prove causation in fact by “clear and convincing” evidence – expert testimony
e) Most states retain a physical manifestation requirement
f) Thing v La Chusa, 1989 (p.512) – mom didn’t witness but showed up right after and
discovered the scene.
i) Court says PL can’t recover
ii) Rule: 3 requirements from RWA
(1) CSO
(2) CR
6) Unborn children (p.520)
a) Endresz v Friedberg, 1969 (p.520) -a pregnant woman was in a car accident and two
days later gave birth to stillborn twins. -Brought suit for wrongful death. -Those actions
were dismissed bc wrongful death isn’t available for unborn children. –Th ecourt
affirmed.
i) There is a human right to begin life unimpaired by physical or mental defects
resulting from the negligence of another.
(1) If the child was born impaired, there would be recovery available. But, since he
didn’t survive, there should still be recovery available.
(2) Bounty to the PLs, representing punishment to the DEF
(a) Parents can collect for injury to her body, suffering as a result of the still
birth, and him for the loss of her services and consortium
(b) “distributes” of the fetus
(3) The parents don’t get more than what they already could collect
ii) Rule – No additional damages are available to parents if a fetus is stillborn as a result
of negligence. The damages recoverable by the parents in their own right afford
ample redress for the wrong done.
(1) Fetuses are not people for the purposes of collecting tort damages until they are
born.
iii) Dissent – illogical and unreasonable to distinguish between injuries wrongfully
inflicted upon a viable fetus which result in death just prior to the infant’s separation
from the mother and those which cause either permanent injuries or death itself,
but at some short interval after birth has occurred.
iv) Reasons to deny are threefold:
(1) The fetus is presumed to have no separate existence from its mother. (later
found to be inaccurate)
(2) Proving causation would be overwhelming.
(3) Damages thought to be too speculative bc we don’t know how long the child
would live
v) Notes:
(1) Wrongful death for an unborn child
(2) Where to draw the line?
(3) “special relationship” between surrogates, brokers and parties to the
arrangement
(4) Does Dobbs v Jackson 2022 alter this?
(a) No, not really bc it is still. A matter f state law if they recognize this or not
(b) By the time Dobbs was decided many states had created statutes giving
rights to a fetus.
(i) Some say: The situation is so speculative that is it is unenforceable
Ch #9 Owners and Occupiers of Land (p.537)
1) Outside the Premises
a) Taylor v Olsen, 1978 -A tree broke and fell across a road. -The PL hit it in her car. –The
road was a two-lane highway, serving approx. 800 vehicles/day. -DEF had been logging
on the property and had recently logged the trees near the one that fell.
i) PxHx – Trial court for the DEF. -Appeals court says It would be for the jury to
determine if the DEF had taken reasonable care. -Here, no evidence, so affirmed for
the DEF.
ii) Reas – Totality of the circumstances > “urban v “rural” classification. -A vehicle
would likely encounter a fallen tree within two minutes, depending on the time of
day. -Evidence shows that the tree was rotted in the middle but that it didn’t show
through to the bark. -Only would’ve known of the tree’s condition by chopping or
boring into it. -Chopping into tor boring into the tree was unreasonable .
iii) Rule – It would require evidence either that the DEF should have been on some
notice of possible tree decay or that inspecting trees by cutting into them is common
and ordinary method of examining trees. Reasonableness standard.
(1) *Need notice of possible harm
(2) Applies to any natural circumstance, not just trees.
b) Landowners generally not responsible to protect people not on the premises.
i) Exception: trees – IF the owner knew or should have known of the tree’s condition
ii) Self-help rule for trees coming onto one’s property
iii) Once altered, a landowner owes “reasonable care” for the protection to those
outside the premises
iv) Duty to maintain natural and artificial conditions so they do not dangerously obscure
highway visibility
c) Salevan v Wilmington Park, Inc., 1950 (p.539) -PL was walking past a ballpark and was
hit in the head with a baseball. -The DEF owns the land, maintains and rents out the
ballpark for over 8 years. -During one game, an average of 16-18 balls fly out of the park
and near Thirteenth street; 2-3 over the safety fence (where the PL was struck) per
game. -Average of 68 games per season.
i) Rule – the public has a right to the free and unmolested use of public highways and
abutting landowners are not permitted to use their land so as to interfere with the
public’s use of the highways.
(1) The only precautions that are necessary are what the inherent nature of the
game anf its past history in the specific location make necessary.
(a) Reasonableness standard – if you knew or should have known, you have a
duty to take action/take precautions
(b) Once you alter the property, you don’t need actual notice
ii) Reas – DEF knew or should have known that baseballs were escaping the park
regularly. -The DEF’s precautions were insufficient
iii) Concl – Judgment for the PL for $2500.
2) On the premises (p.543) – duties shift w each category (NOW BASED ON TOTALITY OF
CIRCUMSTANCES, no distinction between invitees and licensees)
a) Trespassers
i) Sheehan v St Paul& Duluth Ry. Co., 1896 –PL was walking on RR tracks and his foot
got caught between the tracks and a cattle guard. -He couldn’t get it out and it was
run over by a train. (1) PxHx – Trial court for DEF bc there was no evidence of any wrongdoing on their
part. -PL appeals. –Affirmed foor DEF.
(2) Reas – PL was trespassing in an area not open to travel. -No breach of duty was
involved. -Duty only starts when the injured party is discovered.
(3) Rule – The RR company has a right to a free track and is not bound to any act or
service in anticipation of trespassers. Trespassers assume all risks.
(a) Trespassers are contributorily negligent.
(b) Exception:
(i) DEF not allowed to injur trespassers with traps directed at them (DEF
liable to trespasser for conduct that is “willful or wanton”) = duty to not
act “willfully or wantonly”
1. But, no duty unless you are aware.
2. Then, duty to try to prevent unnecessary harm with reasonable
precautions
3. Once they hit him, they had a duty
(ii) When presence of trespasser is known, there is a duty to use reasonable
care to avoid injuring him.
(iii) Durable v nondurable precautions
(iv) Frequent trespassers on a specific area requires more care
(v) Tolerated intruders allows permission
(vi) Ordinary v flagrant trespassers
b) Licensees – does not exist anymore in most jurisdictions
i) Barmore v Elmore, 1980 (p.547) –PL was visiting the DEF and co-DEF (47-year old
son) at their house to discuss Masonic Lodge business. -The son, who had a history
of mental illness, tried to attack the PL with a knife. -The father tried to hold back
the son so the PL could escape the house. -Efforts were only partially successful bc
the son also escaped the house and wound up stabbing the PL several times. -The
father DEF summoned help. -PL says the landowners were negligent.
(1) PxHx – Circuit court for DEFs. -PL appeals. -Affirmed for DEFs.
(2) Reas – Was the PL an invitee or licensee? -PL says Invitee = entering the land in
furtherance of the owner’s business/duty of reasonable care. -DEF says Social
guest = a licensee who has entered the premises by permission, but for the
owner’s own purposes (companionship, diversion, or entertainment). -PL says he
was invitee status. -Primary benefit of the visit was for fraternal business of
which both parties were members. -So, court says PL was a licensee so the only
duty wed to him was to warn him of hidden dangers unknown to the PL but
which the DEFs had knowledge. -Court says there was not sufficient evidence
that the DEFs knew the son was likely to attack. – DEF son had attacked before
but not in a decade and PL had had interactions with him before with no
incident.
(3) Rule – A greater duty is owed to an invitee than to a licensee. - Licensee takes
the premises as he finds them (owner has duty to warn licensee of any hidden
dangers). -Invitee are owed a duty for owner to exercise reasonable care in
keeping the premises safe. -Sometimes this duty is extended to protect the
invitee against criminal attacks.
c) Invitees
i) Campbell v Weathers, 1941 (p.551) –DEF operated a business selling food, cigars and
beer to the public. -DEF visited one day and, without making any purchases, went to
the back hall to use the bathroom. -On his way, he stepped into an open trap door in
a dark hallway and was injured.
(1) PxHx – Trial court for the Def. -PL appeals. –
(2) Reas – Determining the PL status: trespasser, licensee, or invitee? -Evidence
shows that DEF operated a business open to the public (= a general invitation to
the public). -DEF went to this business numerous times over the years and had
used the toilet multiple times, having never been informed that it was not for
public use. -But, PL did not make an actual purchase that day before he was
injured. -Not only customers, but everyone was allowed to use the toilet. Shopping and purchasing are two different things and one is not required to
make a purchase to be considered a customer/invitee.
(3) Rule – An invitee is one who is either expressly or impliedly invited onto the
premises of another in connection with the business carried on by that other. Shoppers are invitees (as long as they intend at some point present or future to
actually become a customer).
(a) Rstmt – discarded “invitees” and uses “business visitors” (higher duty of
care)
(b) On public land, the state, city or county owes a duty to use reasonable care
to keep the premises safe to all persons enetering the premises.
ii) Whelan v Van Natta, 1964 (p.554) -PL purchased cigarettes from DEF at DEF’s tore. When he inquired about another box, the clerk told him to go to the back and find
them there. -The storage room was dark and the PL fell into a stairwell. -DEF said the
light was on that morning so he didn’t warn the PL.
(1) PxHx – Trial court for DEF. Said PL was a licensee at the time of the incident. -PL
appealed bc he said he was an invitee. -Appeals court affirmed for DEF.
(2) Issue – Did the PL’s status change from licensee to invitee after he made the first
cigarette purchase?
(3) Rule - Rstmt Invitee ceases to be an invitee after a reasonable time in which to
accomplish the purpose for which he was invited to enter, or to remain. After
that he either becomes a trespasser or a licensee, depending on whether the
owner does or does not consent to him remaining on the land. -If the invitee
goes beyond the area of his invitation, he becomes a trespasser or a licensee.
(4) Notes –
(a) Natural hazards not covered
(b) inviter’s duty to invitee injured at hands of a third party:
(i) (1) invitor failed to take reasonable measures to reduce the likelihood of
criminal activity
(ii) (2) invitor’s actions in the face of the crime negligently endangered the
invitee
d) Persons outside the established categories
i) Children (p.557)
(1) Higher SoC
(2) Society’s interest in protecting children
(3) Attractive Nuisance Doctrine (p.558) – when kids are lured onto property by
something attractive to them and then injured by it (long dead)
(a) “Artificial Conditions Highly Dangerous to Trespassing Children” (Rstmt)
(i) A possessor of land is subject to liability for physical harm to children
trespassing thereon caused by an artificial condition upon the land if
1. (a) the place where the condition exists is one upon which the
possessor knows or has reason to know that children are likely to
trespass, and
2. (b) the condition is one of which the possessor knows or has reason
to know and which he realizes or should realize will involve an
unreasonable risk of death or serious bodily harm to such children,
and
3. (c) the children bc of their youth do not discover the condition or
realize the risk involved in intermeddling with it or in coming within
the area made dangerous by it, and
4. (d) the utility to the possessor of maintaining the condition and the
burden of eliminating the danger are slight s compared with the risk
to children involved, and
5. € the possessor fails to exercise reasonable care to eliminate the
danger or otherwise to protect the children.
ii) Persons Privileged to enter irrespective of landowner’s consent (p.559) – public
employees or officials
(1) Private persons who enter the land for protection or to rescue or aid someone
else
e) Rejection or merging of categories – modern standard
i) Rowland v Christian, 1968 (p.561) –PL was a social guest at DEF’s home. -A cracked
handle on the sink caused him to sever tendons and nerves on his hand.
(1) PxHx – District court for DEF. _PL appeals. –Appeals Court reversed for PL.
(2) Rule – Everyone is responsible, not only for the result of his willful acts, but also
for an injury occasioned to another by his want of ordinary care or skill in the
management of his property or person, except so far as the latter has, willfully or
by want of ordinary care, brought the injury on himself.
(3) Reas – considered a departure from the common rule above. -As society
changes, so must the law evolve. -so, More subtleties are necessary. -But,
Subclassifications among categories of visitors are confusing. -Reasonable person
standard can cover all of this (what would a reasonable person do under a
totality of the circumstances). -Factors to consider (bear little relationship, if any,
to the licensee, trespasser, invitee classifications):
(a) Closeness of connection between injury and DEF’s conduct;
(b) Moral blame attached to DEF’s conduct;
(c) The policy of preventing future harm; and
(d) The prevalence and availability of obtaining insurance
(e) SO – assuming DEF was aware the faucet handle was cracked, and the PL was
about to come into contact with it, she either needed to have warned the PL
or remedied the issue.
(4) Dissent – (p.564) keep the classifications. He would affirm for DEF.
ii) Today:
(1) (1) even CA doesn’t apply this to criminal trespassers (apply old trespassers rule
– don’t’ act willfully or wantonly);
(2) (2) * the vast majority have gotten rid of the distinction between licensee and
invitee (more are getting rid of it regularly)
(a) Many still keep the category of trespasser separate
(3) For exam – unless the question mentions specifically that the categories exist,
then the categories do not exist (use Rowland rule – duty of care to everyone).
3) Lessor and Lessee (p.567)
a) 3 types of jurisdictions (can use as separate tests or combine):
i) (1) follow the 6 exceptions (next case);
ii) (2) abandon those & use a “standard of ordinary care”; or
iii) (3) still use 6 exceptions. But, if those don’t apply, look at the duty of ordinary care.
iv) (a very few still use the old transfer rules)
b) Borders v Roseberry, 1975 –-PL was visiting the home of a friend who leased the home
from DEF. -There was a spot where water dripped from the roof and froze on the front
steps. -PL slipped and fell. -Says homeowner/landlord is responsible.
i) Issue – Is the landlord of a single family home under an obligation or duty to a social
guest of his tenant to repair or remedy a known condition?
ii) Concl – Affirmed for DEF = no landlord liability.
iii) Reas – Tenant usually has the responsibility to keep the property reasonably safe. -A
lease is like a sale but for the term of the lease. -Here, the tenant had full knowledge
of the icy condition on the steps. -Landlord could reasonably assume that the tenant
would inform guests (old common law rule: leases were land transfers)
iv) Rule – Landlords are exempt from liability for injuries arising from a defective
condition: (exceptions)
(1) (1) undisclosed dangerous conditions known to lessor and unknown to the lessee
(a) Internal stuff (floorboards, electric)
(2) (2) conditions dangerous to persons outside of the premises.
(a) Like if a tree falls in the road
(3) (3) Premises leased for admission to the public
(a) Shopping mall
(4) (4) parts of land retained in lessor’s control which lessee is entitled to use.
(a) Common hallways, shared spaces, kitchens
(5) (5) where lessor contracts to repair.
(a)
(6) (6) Negligence by lessor in making repairs
(a) During the repair itself, there is an injury to the tenant or PL
c) Pagelsdorf v Safeco Ins. Co of America, 1979 (p.570) –DEF Mahnke owned a two-story
duplex with four balcony porches. -Upper unit was rented to the Blattner’s. -PL was
helping Mrs Blattner move some furniture. -When he leaned against the front balcony
railing, it collapsed.
i) PxHx – Judgment for the DEF bc DEF had no knowledge of the dangerous conditions.
-Judgment reversed and remanded (for PL). -Landlord is responsible. (exception)
ii) Rule – landlord must exercise ordinary care toward his tenant and others on the
premises with permission.
iii) Reas – none of the exceptions apply in this case. -Better public policy would be to
abandon the general rule of nonliability and adopt a rule that the landlord is under a
duty to exercise ordinary care in the maintenance of the premises. -General
principles of negligence should apply (duty to exercise ordinary care to prevent
foreseeable harm). -Modern day leases are considered a contract, not a
conveyance/sale. -No modern day justification to cloak landlords in immunity.
iv) Rule – landlord has a duty of ordinary, reasonable care
(1) abolish common law distinctions between licensees and invitees.
(2) If a person lawfully on the premises is injured as a result of the landlord’s
negligence in maintaining the premises, he is entitled to recover from the
landlord under general negligence principles.
v) Notes:
(1) Exculpatory clauses void.
d) Kline v 1500 Massachusetts Ave Apt. Corp., 1970 (p.574) -a Lesee of DEF was assaulted
and robbed in the common hallway of the building and sustained injuries. -Entrances
were unguarded at the time. -Building was mixed-use (live-work). -DEF had notice that
crime was increasing in the area. –
i) PxHx – District Court held that there was no duty for landlords to protect lessees
from criminal acts by third parties. -App Court said there is a duty and that it was
breached. -Reversed and remanded for PL.
ii) Reas – landlords ahev control of common hallways, lobbies, stairwells, etc used by
all tenants. -So, they also have the power to protect in those common areas. -So,
they also have a duty. -Similar to innkeeper-guest duty. - Since the ability of one of
the parties to provide for his own protection has been limited in some way by his
submission to the control of the there, a duty should be imposed upon the one
possessing control (and thus the power to act) to take reasonable precautions to
protect the other one from assaults by third parties which, at least, could reasonably
have been anticipated.
iii) Rule – in landlord-tenant multi-dwelling situations, where the landlord has notice of
repeated criminal incidents, he has reason to believe such incidents will occur again.
So, he has the duty to take the steps which are within his power to minimize the
predictable risk to his tenants (ordinary, prudent landlord standard). *Landlords are
the only ones with the power to remendy the issue*
(1) Landlords are not insurers of safety of their tenants. – can pass cost to tenants.
(2) Innkeeper-guest
(3) Landowner-invitee
(4) Businessman-patron
(5) Employer-employee
(6) School district-pupil
(7) Hospital-patient
(8) Carrier-passenger
iv) Notes:
(1) Intervening superseding cause – don’t get confused.
(a) Usually, criminal acts are intervening superseding causes. But, there are
situations where the negligence itself facilitates the criminal act. Under those
circumstances it is not an intervening superseding cause.
(i) If landlord not resp, then no breach of duty.
(ii) OR, criminal act was intervening superseding
1. When negligence facilitates the crime, not intervening superseding
Ch #10 Damages (p.579)
1) Proof of damages is an essential part of PL’s cause of action for negligence.
a) Types:
i) Nominal – small sums of money for vindication; sets the record straight; sets
precedent.
(1) Based on conduct and characteristics of DEF rather than PL.
(2) Rarely avail outside intentional torts
ii) Compensatory – intended to represent the closest possible financial equivalent of
the loss or harm suffered by the PL, to make the PL whole again, to restore the PL to
the position they were in before the tort occurred.
(1) the BIG one!
(2) Try to make you whole (med bills, property restoration, lost wages, emotional
distress)
(a) Anything not nominal or punitive
iii) Punitive (punishment) – an additional sum, over and above compensatory, awarded
to punish the DEF, to make an example of the DEF, and to deter DEF and others from
engaging in similar conduct.
(1) Almost exclusively avail for intentional torts
(2) V exemplary damages (make an example of someone)
iv) Equitable relief – essentially performance (much less common than monetary
damages)
v) Underlying themes – review only available if the award is so high or low that it
“shocks the conscience”
vi) Injunctive – an equitable remedy where the court issues an injunction for someone
to stop or start doing something
(1) Not usually in torts
Ch #11 Wrongful Death and Survival (p.631)
1) It used to be more profitable for a PL to kill someone than to injure him.
2) OLD rule – action doesn’t survive the party (if PL or DEF dies, there is no action.)
a) Gone in every state
3) Two statutes: (NOW actions survive the death of either party)
a) (1) survival statute
i) Cause of action for personal injury survives the death pf the PL or DEF or both.
ii) If DEF dies, action can be brought against his estate
iii) If PL dies, a claim can be brought against the executor or administrator of the estate
on behalf of the estate.
b) (2) wrongful death statute – family of or estate of PL is the party bringing claims on
behalf of the deceased party
i) A new cause of action is created by the death of an individual due to tortious
conduct of another.
ii) Remedies avail to deceased party and to the survivors
Ch #12 Defenses (p.659)
1) PL’s conduct
a) Contributory negligence – if PL is even a teeny bit responsible, they get nothing. (all or
nothing) – different from comparative negligence (next class)
(1) Today, only 4 jurisdictions still have contributory negligence: (all the rest use
comparative negligence)
(a) Maryland
(b) VA
(c) NC
(d) AL
(i) exception
ii) Butterfield v Forrester, 1809 -DEF was repairing his house and placed a pole in one
lane of the street near his home, blocking it. -There was another lane available. -The
DEF could’ve seen the pole and avoided it if he was riding his horse normally. -But,
he was riding his horse “violently”; and so he struck the pole, was knocked off his
horse, and injured. –
(1) PxHx – District court found for DEF bc PL could have avoided the obstacle if he
was using reasonable care. -PL appealed. -Affirmed.
iii) Notes: Options:
(1) Contributory negligence = no claim for the PL
(2) Ignore PL’s culpable conduct
(3) Adopt one of the first two as the general rule and make exceptions
(4) Compare PL’s fault with DEF’s and reduce PL’s damages accordingly
(comparative negligence)
iv) Burden of proof on DEF
v) Jury decides
vi) Proximate cause
vii) Dual standards of care
b) Applicability of contributory negligence in particular circumstances (p.663)
i) DEF engaged in intentional, wanton, or willful or Reckless conduct.
(1) Contributory negligence is not a defense to an intentional tort
ii) Strict liability
iii) DEF violates a statute
iv) Statutes explicitly abolishing the defense in limited situations
v) Statutes intended to protect a PL unable to protect himself
c) Davies v Mann, 1842 (p.664) -DEF ran over PL’s donkey that he had let graze on the side
of a public highway. –
i) PxHx – Jury found for the PL. –
ii) Reas - DEF could have easily avoided the accident using proper care so he liable for
the consequences.
iii) Rule - doctrine of last clear chance (exception to contributory negligence)
(1) All four jurisdictions that still have contributory negligence use this exception
(2) DEF had last clear chance to avoid the accident/damages
(a) Therefore, the PL gets everything (illustrates problem with contributory
negligence rule)
(i) When it harms PLs, it harms them in a massively damaging way
d) Comparative negligence (reduced recovery) (p.666) (as opposed to contributory/no
recovery) = the most common and most important defense in negligence cases
i) A reduction in damages for the PL based on the PL’s own negligence
ii) Burden of proof on DEF to show that PL was negligent
iii) Only a PL can be comparatively negligent
(1) Does away with last clear chance and contributory negligence
(2) Most jurisdictions have kept joint & several liability (use what’s in the class notes
for j&s)
iv) McIntyre v Balentine, 1992 -drunk drivers crash into one another. -one sues for
negligence. –Introduced comparative negligence. –
(1) PxHx – jury found that both parties were equally at fault. – Trial court for
Balentine (contributory negligence). -App Ct affirmed (no comparative
negligence in Tennessee) – Tennessee Sup Ct replaced contributory with
comparative, but remanded the case for further proceedings bc the PL and DEF
were found to both be equally at fault.
(2) Here, TN uses modified.
v) Rule – PLs can collect in proportion to their negligence
(1) Pure – PL can recover for whatever % of the accident that was caused by the
DEF, no matter how negligent the PL was
(a) If PL is 99% negligent and DEF is 1%, PL can collect for the 1% (theoretically)
(i) Second most common kind
(b) *Modified – (50-50/equal or less (perspective of PL)/“not as great as”) if DEF
is more negligent than the PL, OR equal to, the PL may recover some
damages.
(i) If PL neg is = to or less than the DEF, the PL can recover
1. If PL negligence is > DEF, PL collects nothing
(ii) Now, no more: contributory negligence, last clear chance, and joint and
several liability
(iii) Most common kind
(iv) Default
(c) Modified – PL (less than/51-49/“not greater than”)
(i) PL must be less negligent than DEF.
1. Only difference is if it’s 50-50.
(ii) Lest common of the three systems
(d) Slight – (v gross/weighty/significant)
(i) Only South Dakota
(ii) Don’t worry about this one for the exam
e) Failure to take advance precautions before injury – mitigations of damages after injury
(p.676)
i) Before injury –
ii) After injury – doctrine of avoidable consequence
f) Assumption of risk (p.678)
i) Express = the only kind of assumption of risk that is still around
(1) There will be a K of some sort
(2) Seigneur v National Fitness Institute Inc, 2000 (p.678) – exercise at the gym at
your own risk. –
(a) Rule – exculpatory clauses valid unless they are for an essential service,
language is not ambiguous, and parties’ bargaining power is not grossly
unequal.
(i) Patently offensive = two factors:
1. 1 – were the parties’ bargaining powers grossly unequal?
a. No, bc it was her choice to give the gym her business
2. 2 – did the K comprise an essential service?
a. Gyms are not essential (recreational activity)
i. (many courts will/have found the opposite)
(b) Concl – exculpatory clause enforceable
(c) Rule – 3 exceptions:
(i) 1 – if DEF acted with gross negligence (rock climbing instructor let go
while belaying as a joke)
(ii) 2 – bargaining power of one party is grossly unequal/unfair
(iii) 3 – public interest involved/essential service (schools hospitals)
ii) Implied (p.686) – affirmative defense for which the DEF bears the burden
(1) Does not exist in most jurisdictions anymore – for exam: NO implied assumption
of risk
(a) Has been folded into comparative negligence
(2) Rush v Commercial Realty Co, 1929 (p.686) -lady fell into a pit under the
outhouse at the house she was renting from DEF. -DEF said PL assumed the risk.
_PL said DEFs were negligent.
(a) PxHx – Trial court for PL. –
(b) Issue – did tenant assume the risk?
(c) Concl – no, assumption of the risk can only be voluntary.
(i) Voluntary would be when PL must have actual knowledge of the risk and
proceed to encounter it voluntarily
1. It’s only voluntary if you have a choice
(3) Primary v secondary assumption of the risk (p.690)
(a) Secondary – PL act voluntarily but unreasonably
(i) Now = comparative negligence
(b) Primary – PL acts voluntarily and reasonably
2) Statutes of Limitations and Repose (p.692) – automatic malpractice to miss filing
a) Negligence usually 2-3 years, some have 4
b) Some contextual shorter SoLs (ex: med-mal)
c) Teeters v Currey, 1974 (p.692) -PL underwent two tubal ligation procedures. -Filed
against the first doctor 3 years and five months after the first surgery, but only 11
months after discovering her second pregnancy. -Tennessee SoL said one year after the
cause oof action occurred. –
i) PxHx – Trial court for Currey. -Sup Ct Tenn revered for Teeters
ii) Rule – in med-mal cases, the SoL begins running when the PL discovers or reasonably
should have discovered the resulting injury
iii) Discovery doctrine/rule
(1) Tolls the statute (statute isn’t running between initial injury and discovery) – law
in almost every jurisdiction
iv) Concl – Teeters didn’t discover until second pregnancy and filed within the SoL
d) Which state? Law of forum state, or borrowing rule
e) Statutes of repose (p.700) – limits potential liability by limiting the time during which a
cause of action can arise
i) No tolling
3) Immunities (p.701) – differs from a privilege, justification, or excuse; but mostly by degree.
i) Avoids liability in tort under all circumstances, within the limits of the immunity
itself.
ii) Conferred bc of the status or position or relationship of the favored DEF or activity.
b) Judicial Proceedings (p.703) protects judges, attorneys, witnesses, court appointed
guardians ad litem, and court-appointed psychiatrists
i) Does not cover statements made outside of litigations (like press releases)
c) Employer immunity – workers’ comp
d) Sovereign immunity – governmental immunity
i) 3 kinds
(1) Fed govt
(2) State govt
(3) Tribal govt
ii) Some states under state const, localities can also be sovereigns
iii) Sovereigns must make themselves amenable to suit
(1) Immune from intentional torts
(2) *In negligence, you can sue states bc they’ve made themselves amenable to
those suits
e) Families
i) Spousal – requires substantial evidence that the injurious contact was plainly
excessive or a gross abuse of normal privilege.
(a) Mostly gone in more jurisdictions
(2) Freehe v Freehe, 1972 (p.704) -spousal immunity abolished. -wife owned the
farm and all its financial interests. -Clifford injured himself and sued her for
negligent. -She moved for summary judgment -Granted for interspousal
immunity
(a) PxHx – said he could bring the action against her. -Reversed and remanded.
(b) Reas – Interspousal immunity based on two things:
1. 1 – husband and wife seen as one person
a. Outdated.
2. 2 – public policy implication of preserving peace and tranquility in the
home
a. Flawed
3. 3- availability of adequate remedies for the victim
a. Not adequate compensation
4. 4 – prevent collusion and fraud in insurance cases
a. Courts shouldn’t immunize tortfeasors bc of the possibility of
fraud.
(ii) SO, abandon the doctrine
1. Most jurisdictions have abandoned interspousal immunity
2. Also applies to same-sex marriage
ii) Parental
(1) Zellmer v Zellmer, 2008 (p.708) -parental immunity as a defense for setpdaughter drowning? -DEF says he was immune bc he was in loco parentis. -PL
says no way.
(a) PxHx – For step-dad = immunity. -app Ct affirmed. -Wash Sup Ct = summary
judge improper, matter oof material fact
(b) Rule – parental immunity doctrine does apply to step parents if they act in
loco parentis
(i) Exceptions:
1. Intentional torts
(ii) In loco parentis (only for context of parent-child immunity)–
(iii) Is not automatic to step parents or eliminated bc not bio related
(iv) In most jurisdictions it is a practical evaluation
1. Depends on the relationship
2. Fact-sensitive
3. NOT babysitters
(v) Financial support and caretaking not 100% necessary; instead a totality of
the facts
(c) Reas – here, a question of fact re: loco parentis for jury.
Ch #13 Vicarious Liability (p.751)
1) Vicarious Liability = liability of one party or entity for the tortious actions of another person
or entity
a) respondeat superior (90% of cases involve respondeat superior)
(1) – liability imposed upon both parties when one can’t pay up
ii) ex: employer-employee (what makes employers liable for the actions of
employees?)
(1) there is a difference between employer liability for employee conduct
(respondeat superior/vicarious liability) as opposed to employer liability for
negligent hiring, supervision, retaining an employee (regular negligence)
(a) can be both
iii) RULE: respondeat superior is only available for intentional torts that either:
(1) Benefitted the employer;
(2) Were ratified by the employer; or
(3) Were instructed by the employer.
iv) Bussard v Minimed, Inc, 2003 -employee got sick at work from inhaling bug spray
and got into a car accident on the way home. -Is the employer liable? -declined to
see the company doctor before she left. -the person she hit sued the woman’s
company. –court said company is liable bc the accident was foreseeable due to
something that happened at work. -employer is liable here
(1) Rule – under respondeat superior, an employer can be held liable for injuries
its employees cause to others in the course of work
(a) Going and coming rule (not applicable here) – an employer is not usually
responsible for what happens when an employee is going to or coming
from work
(i) Exceptions:
1. If the is arising from or related to work
2. Foreseeable? If yes, then employer liable
a. If condition created at work
b. And a typical consequence of the condition
v) O’Shea v Welch, 2003 -guy (DEF) was driving his own car (which was predominately a
work vehicle) on a work errand and crashed into someone when he stopped on a
personal detour. -PL sued both the guy and the employer. -Dist Ct said he wasn’t
acting in scope of employment. –Does slight deviation rule apply? -for jury to decide.
(1) Slight deviation rule (v substantial/no vicarious liability) – (was employee acting
within the scope of employment? If slight -> generally within the scope of
employment) employer still liable for employee’s actions. test is not whether the
employee was doing something authorized by the employer, but rather, if the
activity could have been reasonably foreseen
(a) Slight deviations do not exonerate the employer (employer vicariously
liable)
(b) Consider: (to determine the type of deviation)
(i) Employee’s intent
(ii) Nature, time, and place of the deviation,
(iii) Time consumed
(iv) Employee’s responsibilities,
(v) Incidental acts the employer could reasonably expect the employee to do
(vi) Freedom afforded the employee in his job
(c) Both negligence and intentional torts
(i) OLD rule = a frolic or detour
b) Independent Contractors (p.760)
i) Context
(1) Corporate
(2) Medical
ii) Murrell v Goertz, 1979 -lady got in a physical fight with a newspaper’s independent
contractor salesperson/distributor. -was the newspaper vicariously liable? –No
(1) Rule – employer not vicariously liable for independent contractors’ actions in
this case (an individual hired to perform services for a company while retaining
control over their own methods and manner of performance) (control over
work’s physical details)
(a) How much control does the entity have over the work of the IC?
(i) If a lot -> more likely vicarious liability
(2) Reas – indep contractor hired by another independent contractor
(a) IC Collects own money
(b) IC Makes own route
iii) Exceptions:
(1) nondelegable duties = certain things you cannot delegate to other people. (the
duty stays on you) – most common is duty to maintain your vehicle
(a) Maloney v Rath, 1968 -DEF’s brakes failed and she crashed into PL’s car. -3
months earlier, she had her brakes overhauled by a local mechanic and the
same mechanic had inspected the car two weeks earlier for a different
collision. -Turns out it was his negligence why the brakes failed. –should the
DEF be liable for the independent contractor’s negligence? -YES
(i) Rule – nondelegable duty to keep car maintained
1. Duty to select appropriate contractor
(ii) she could file an indemnity claim (can get everything you paid out back)
1. Or for contribution
(2) apparent authority
(3) inherently dangerous activities or peciuliar risk of harm
(4) illegal activities
(5) negligence in selection of contractor
Ch #14 Strict Liability (p.783) = vis major
1) Strict Liability – absolute liability – imposition of liability without fault (does not require
negligence or tortious action)
a) Animals – for those who keep, possess, or harbor an animal (not just the owner)
(1) Not responsible for wild animals, unless…
ii) Trespassing animals – owners of animals of a kind likely to roam and do damage is
strictly liable foor their trespasses
(1) Four possibilities:
(a) Fencing out
(b) Fencing in
(c) Strict liability
(d) No liability without fault
iii) Wild animals strict liability if brought somewhere and the animal injures someone
(1) If you keep wild animals (strict liability) and one gets loose or if someone is on
your property and someone gets injured, you’re strictly liable
(a) Domesticated animals that are known to be violent
(i) Some breeds first bite is enough
(ii) Past history of violence for other breeds
iv) Domestic animals only liable if the owner knew or had reason to know that the
animal had dangerous propensities (abnormal to its class) (aka: scienter)
(1) Classification based on customs of community
(2) Domesticated animal – then negligence comes in
b) Abnormally dangerous activities – is an activity that is unusually dangerous for the area
in which it occurs = STRICT LIABILITY
i) Rylands v Fletcher, 1865 (p.791) -rylands had a res built at his mill property by an
engineer. -the engineer discovered old coal mining shafts but didn’t tell rylands and
built the res on top of one. -the neighbor, PL, had a coal mining operation next door
and eventually the res collapsed, flooding the underground network, putting the PL
out oof business.
(1) Lower court (judge Blackburn) = Jury found for Fletcher (anything that escapes
your land, you’re responsible for). -reversed on appeal bc Rylands had no
knowledge. -reversed by higher court. –
(2) MODERN RULE (on appeal) – clarification between non-natural (DEF
responsible) and natural (DEF not responsible). if a person brings or
accumulates a dangerous substance on his land, or alters/modifies the land,
then he is responsible for its effects.
(a) He did it, so he is liable for its effects
(i) Human intervention
ii) Miller v Civil Constructors, Inc, 1995 (p.797) -cops were practice target shooting at a
fire range -a guy was injured when a bullet ricocheted. -PL said strict liability should
apply to the shooting range owner. -Lower court dismissed. -PL appealed. –
(1) Issue – does shooting at a firing range constitute an “ultrahazardous” activity?
(2) Concl – no.
(3) Reas –
(a) Abnormally dangerous (term used today) activities (ex: explosives)
(i) “Ultrahazerdous” (original/old term)
(ii) Court considers the appropriateness of the activity to its location in light
of the place and its surroundings
1. 6 factors (p.798): (balancing test, don’t need them all. When in doubt,
look at factor 3)
a. 1) existence of a high degree of risk of some harm to the person,
land, or chattels of others;
i. Here, can be eliminated by using higher degree of care
b. 2) likelihood that the harm that results from it will be great;
i. No
c. * 3) inability to eliminate the risk by the exercise of reasonable
care; (if you can eliminate the risk with reasonable care then it’s
negligence, not strict liability)
i. No
ii. strict liability generally reserved for activities that can’t be
made safe, no matter how much care is exercised
d. 4) extent to which the activity is not a matter of common usage;
i. No
e. 5) inappropriateness of the activity to the place where it is carried
on; and
i. No
f. 6) extent to which its value to the community is outweighed by its
dangerous attributes.
i. Needed for police to have target practice
iii) Indiana Harbor Belt RR Co v American Cyanamid Co, 1990 -toxic chemicals leaked
from a train car at a railyard. -cost $1m to decontaminate -Pl sued chemical mfgr for
strict liability. -Dist Ct summary judgment for PL -High court reversed
(1) Issue -what constitutes an “abnormally dangerous activity”? Does shipping a
hazardous chemical subject the shipper to strict liability?
(a) Court said no – bc risk can be eliminated with due care.
(b) This was negligence
(i) Lack of due care
(2) Rule – strict liability for abnormally dangerous activities is designed to address
activities that the threat of negligence can’t control (bc if we find this dangerous,
the whole system goes down)
(a) “an activity is abnormally dangerous if accidents can’t be prevented through
reasonable care”
(b) Abnormal dangerousness is determined by the activity, not the
substance/material
(c) If negligence can apply -> no strict liability
(3) Notes:
(a) Must be abnormal (not everyday activity like driving)
c) Limitations on strict liability (p.809)
i) Foster v Preston Mill Co, 1954 -PL owned a mink ranch. -blasting for a new road
caused the moms to trampled many of their kittens. -PL sued and won at lower
court bc DEF was strictly liable for damages that happened after they were put on
notice.
(1) Higher court said no bc the strict liability would only apply to consequences from
the risk that makes the risk abnormally dangerous.
(2) Here, injury to persons or property nearby
(a) Not the nervous nature of minx (not what makes blasting abnormally
dangerous. Maybe if the blasting was near a mink farm and the blasters
knew the dangers to the mink)
(b) PL was using the land extraordinarily
(c) Harm suffered must be reasonably expected
ii) Golden v Amory, 1952 (p.812) -hydroelectric plant that flooded after a once-acentury storm. -fletcher v Rylands does not apply when an act of god that the owner
had no reason to anticipate intervenes/actually causes the damage
(1) Could be negligent but not strictly liable
iii) Sandy v Bushey, 1925 (p.813) -PL let his horses onto a neighbor’s property. -Other
horses, including the DEF’s were kept there. -PL was kicked by DEF’s horse.
(1) Aggressive domestic animals (known to be vicious) - PL must prove:
(a) DEF kept a vicious animal;
(b) Animal had vicious tendencies; and
(c) DEF knew of the tendencies
(2) DEF can raise defense of contributory negligence (but, not today)
(a) PL excites the animal;
(b) Put’s him or herself in the animal’s way;
(c) If so = no recovery
(3) Here, strict liability but no contributory negligence
(a) Today, comparative negligence could apply
(4) RULE – owners of domestic animals generally aren’t strictly liable for injuries
caused by the animal unless the owners are aware of the animal’s vicious
tendencies
(a) Comparative negligence is generally a defense
(5) Notes:
(a) Assumption of the risk
(b) Legal sanction/privilege
Ch #15 Products Liability (p.819)
1) Causes of action (claims can overlap with K’s and with each other) – all still good law
a) Negligence (not usually the main claim)
b) Warranty
i) Express
ii) Implied
c) Defects
i) Manufacturing – strict liability
ii) Design – strict liability
iii) Warnings – not strict
2) Separate tests for defects in manufacture, design, and accompanying warnings.
3) Most products liability claims are under strict liability today
a) Mfgr defects
b) Design defects
c) Warnings defects
4) Theories of Recovery (negligence, warranty, defects)
a) Negligence (still a valid route to recovery)
i) Mac Pherson v Buick Motor Co, 1916 (p.821/460) -Buick model 10 -PL bought one
from a dealer. -wheel collapsed, car spun out and PL was injured. -DEF bought the
defective wheel from a supplier. -An inspection would have revealed that it was
faulty. -Case was dismissed. -Then, PL won on appeal. -Buick appealed.
(1) Issue – is a duty of care owed to anyone besides the initial purchaser?
(2) Concl – yes bc they have the last ability to inspect the product before it goes to
market. Foreseeable.
(3) Rule – known use rule = a manufacturer owes a duty of care to users beyond the
initial purchaser if the mfgr knows the product:
(i) Is reasonably likely to create a danger if it is negligently mfgr’d (known
danger) +
(ii) Will be sued by people other that the original purchaser without
additional testing (known use)
(iii) (Rule of privity expanded/has been eroding = rejected.)
(iv) “the mfgr knows that in the normal course of events the product will be
used by people beyond the initial user and without additional testing.
1. Mfgr owes a duty of care to foreseeable users to guard against the
foreseeable dangers of negligent mfgr
5) Warranty (p.823)
a) A matter of tort and of K
i) But can arise just in tort between parties with no privity
(1) Damages usually only for breach of K, but may be avail for wrongful death, as
well
b) Express warranties (p.824) –
i) Notes:
(1) apply to property damage as well as personal injury
(2) Consumer Protection Acts – fx in tandem w express warranties
ii) Baxter v Ford Motor Co, 1932 (p.824) -are mfgrs still liable to customers who
purchased through a third oarty? -baxter bought from a ford dealer. -signed a
purchse K saying the dealer was making no express oor implied warranties about the
car. -Ford was not a direct party to the agrmt. -ford claimed of shatterproof glass. but, when a pebble hit the windshield, pieces of glass got into his eyes. -PL provided
copies of the sales materials ford had given to the dealer as evidence. -trial court
refused to allow the materials into evidence.
(1) PxHx – trial court entered judgment for the DEFs –
(2) Reas -PL said the sales materials were warranties. -Ford said they weren’t bc no
privity/mutual assent. –court said it would be unfair if mfgrs could entice
consumers with claims and then avoid liability if the claims were false and
someone was injured as a result
(a) Here, PL relied on Ford’s claims bc he wouldn’t have been able to tell on his
own.
(b) Against the dealership, they were not liable bc they didn’y actually make any
claims
(3) RULE – a mfgr can be liable to a consumer for breach of express warranty even if
there’s no privity of K between them.
(a) Generally, no liability without privity
(b) Ads count as express warranty
(i) when a purchaser is injured bc a product doesn’t have the qualities the
mfgr represented the product to have if an ordinary purchaser couldn’t
readily discover the absence of those qualities, the mfgr is liable
1. (no need to establish reliance)
c) Implied Warranties (p.829) (more complicated) -started with food -> intimate bodily use
-> all products
i) Notes:
(1) Uniform Sales Act – superseded by the UCC
(a) 2-302, 2-316
(b) Notice (in case below) – 2-607
(2) Henningsen v Bloomfield Motors, Inc, 1960 (829) -PL bought a car from DEF. -at
the bottom of the PO, in VERY small font, were 2 para’s that said the PO
comprised the entire agreement & no express or implied warranties. -+ the
mfgr’s liability was limited to factory-inspected parts that are deemed defective.
-after ten days, the PL’s wife got into a bad car accident going 20mph. -the
insurance investigator said something was wrong with the steering wheel. -no
inspection could be conducted. -PLs sued for breach of express and implied
warranties
(a) PxHx – trial court for PLs. -Appeals court affirmed for PLs.
(b) Issue – does a mfgr who offers a product for sale and engages in promotional
activities to entice buyers incur an implied warranty obligation in relation to
that product?
(c) Conclu – yes. Here, there was no express warranty, so borrow from the UCC
(d) RULE – there is an implied warranty that a product is reasonably suitable for
its advertised use /that a product will safely function for its intended use
(i) An implied warranty that a vehicle is reasonably suited for use goes with
it to the ultimate purchaser
(ii) A mfgr who markets products directly to consumers has a duty to those
consumers.
(e) Reas – K law will generally hold a party to to the agreement it signed.
(i) But, in car purchases, the parties do not have equal bargaining power
1. Mfgrs advertise heavily;
2. Consumers have to rely on their claims;
3. Buyers are unable to assess the quality;
4. Buyer can’t negotiate for better treatment;
5. SO, the parties shouldn’t be held
d) Strict liability in tort (p.834)
i) Defects = mfgr, design, or warnings (distinct but potentially overlapping)
(1) Warranty claims can be trickier so bring a defects claim if you can
ii) Categories weren’t clear yet:
(1) Greenman v Yuba Power Products, Inc., 1963 (p.834) –(expanded strict liability
beyond food) -guy got a power tool for xmas -DEF mfgr’d -PL added an
attachment and was injured. -PL claimed breach of warranty against both the
retailer and the mfgr. -Expert witness for PL testified that the tool design was
defective and that there were sufficient designs available. -PL also introduced
evidence that his injuries were caused by the defective design and mfgr.
(a) PxHx - -trial found no evidence of breached an implied warranty -Jury to
consider if an express warranty was breached. -Jury found for PL for $65k. –
App Ct affirmed
(b) Issue - does a consumer need to give a mfrg timely notice of a breach of
warranty to recover for injuries from a defective product?
(c) Concl – no.
(d) RULE – the notice requirement governing warranties isn’t appropriate in
actions by injured consumers against manufacturers with whom the
consumers haven’t dealt
(i) Precursor to RSTMT
1. A mfgr is strictly liable in tort when it places a product on the market
that proves to have a defect that causes injury to a person
a. PL must prove
i. 1) defective product
ii. 2) defect caused the harm/injury
2. Permits an injured consumer who is not in privity with the mfgr a
path to recovery (do not need to show a breach of K)
(e) Reas -PPL was using the product in the way it was intended to be used, and,
was injured bc of an unknown defect that made it unsafe for its intended use
(i) Costs of injuries should be the burden of the mfgr (incentivizes the mfgr
to not put defective products out on the mkt)
(ii) Adopt RStmt of torts 402-A (p.837)
iii) RSTMT 2d 402A Special Liability of Seller of Product for Physical Harm to User or
Consumer
(1) (1) one who sells any product in a defective condition unreasonably dangerous
to the user or consumer or to his property is subject to liability for physical harm
thereby caused to the ultimate user or consumer, or to his property, if
(a) (a) the seller is engaged in the business of selling such a product, and
(b) (b) it is expected to and does rach the user or consumer without substantial
change in the condition in which it is sold.
(2) (2) The rule stated in subsection (1) applies although
(a) (a) the seller has exercised all possible care in the preparation and sale of his
product, and
(b) (b) the user or consumer has not bought the product from or entered into
any contractual relation with the seller.
(3) Notes:
(a) Costs of accidents placed on party best able to prevent them
(b) Singular definition of defect: “any product in a defective condition
unreasonably dangerous to the user or consumer”
(c) Types of defects:
(i) Manufacturing defects (failure in quality control) - Not a defect in the
entire product line
(ii) Defect from failure of design - Defect in entire product line
(iii) Failure to warn of risks
iv) Product defects (p.840) – warranty & negligence claims
(1) Categories:
(a) Mfgr defect – when one product differs from its design and that causes an
injury
(i) always strict liability
(b) design – when the entire line is defective
(i) not exactly strict liability, combine with negligence
(c) inadequate instructions or warnings
(2) RSTMT 3d TOPIC 1: Product Defectiveness
(a) (1) Liability of Commercial Seller or distributor for harm caused by defective
products
(i) (a) one engaged in the business of selling or otherwise distributing
products who sells or distributes a defective product is subject to liability
for harm to persons or property caused by the defect
(b) (2) Categories of Product Defect A product is defective when, at the time of
sale or distribution, it contains a manufacturing defect, is defective in design,
or is defective because of inadequate instructions or warnings. A product:
(i) (a) contains a manufacturing defect when the product departs from its
intended design even though all possible care was exercised in the
preparation and marketing of the product;
(ii) (b) is defective in design when the foreseeable risks of harm posed by the
product could have been reduced or avoided by the adoption of a
reasonable alternative design by the seller or other distributor, or a
predecessor in the commercial chain of distribution, and the omission of
the alternative design renders the product not reasonably safe;
(iii) (c) is defective because of inadequate instructions or warnings when the
foreseeable risks of harm posed by the product could have been reduced
or avoided by the provision of reasonable instructions or warnings by the
seller or other distributor, or a predecessor in the commercial chain of
distribution, and the omission of the instructions or warnings renders the
product not reasonably safe
(3) Rix v General Motors Corp, 1986 (p.842) -PL was injured when an altered GM
truck rear-ended him –PL strict liability bc prduct was unreasonably dangerous
bc of design and mfgr defects -brake failure caused the accident either a flare or
the tube broke. -PL says flare. -DEF agrees that the tube was defective but says it
was altered after it left the assembly line.
(a) PxHx – Jury found for DEF -PL appeals (was jury properly instructed?) -App Ct
reversed on other grounds.
(b) Reas - jury was told that PL must establish three things
(i) 1) DEF mfgr and sold a product that was in defective condition
(ii) 2) the product was expected to and did reach the consumer without a
substantial change in condition, and
1. PL says this improperly states the state law
2. Court says no to PL
(iii) 3) the defect proximately caused injury to the PL
(c) RULE – mfgr defect is when a product that went on the market deviates in
any way from the product designed = always strict liability .
(d) Notes:
(i) Material defect in construction = strict liability (only one product)
(ii) Defective design or inadequate warnings, the test varies by jurisdiction
(iii) PL must prove that the product deviated from the design, not what
conduct of the mfgr led to the defect
Ch #15 (con’t)
 DESIGN DEFECTS (p.845) – rule = what would a reasonable mfgr put on the market given
the risk of a product and availability of alternative designs, weighed with the utility of the
product?
 Cannot escape the standard oof care – mfgr has to weight alternative designs & assess
risks when the product came t market (not after)
 “state of the art” – wat is possible to assess risks at time product was put on
market (not after)?
 Different from industry standards, which are lower standards – can serve as
evidence that you might be ok with risk-utility analysis
 Prentis v Yale Mfg. Co, 1984 – PL had a forklift accident at work and sued the forklift
mfgr for design defect liability (bc no seat for the operator)
 PxHx – jury said design was not defective bc the jury got instructions to combine
negligence and implied warranty. App Ct reversed (for PL).
 Issue – how is the jury to be instructed?
 Concl – App Ct decision reversed (for DEF). in defective design case, the jury
need only be instructed on unified theory of negligent design, not breach of
warranty as well
 Reas – approaches/tests to design defect cases:
 1) negligence risk-utility analysis at the time of mfgr
 USE THIS ONE -> *2) negligence risk-utility analysis of the product at the time
of mfgr – necessary
 So, consider: (best done through principles of negligence)
 What a “reasonable” mfgr would do/think -> Mfgr’s alternatives
(based on knowledge and technology at the time of mfgr, not at the
time of trial), and
 Risk of putting product on the market the way it was designed ->
Reasonable care in handling known risks
 V utility of the product when on the market
 3) consumer expectations of the product (only a few jurisdictions)
 Closer to strict liability
 4) combine risk-utility & consumer-expectation approaches (in some
jurisdictions)
 RULE – Model Uniform Product Liability Act pure negligence standard
 Design defects are the result of deliberate decisions by manufacturers
 They should be accountable
 High-ish bar of proof for the PLs
 Breach of warranty in defective design is Similar to a negligence claim
 1) has the mfgr used reasonable care
 2) were the PL’s injuries proximately caused by the mfgr’s negligence
 Some products are so dangerous and lack utility that they are per se defective
 Category Liability (tobacco, alcohol, butter) – only subject to liability for defective design
if PL can prove that a better design is available
 Rx drugs and medical devices
 Rx drugs = unavoidably unsafe category v case-by-case analysis
 Strict liability only if “the foreseeable risks of harm posed by the drug or medical
device are sufficiently great in relation to its therapeutic benefits that reasonable
health-care providers, knowing of such foreseeable risks and therapeutic benefits,
would not prescribe the drug or medical device for any class of patients”
 Still qualify for mfgr defects and inadequate warning liability
 Food – if injury is bc of a substance in the food
 Foreign-natural test v reasonable expectations
 WARNINGS DEFECTS (allergic reactions to food and drugs fall here) – what a reasonable
mfgr knew or should have known when the product goes to market
 Anderson v Owens-Corning Fiberglass Corp, 1991 – PL sued bc he got sick from asbestos
at work. But, at the time, no one knew asbestos was dangerous. State of the art
evidence was excluded and PL’s claim was barred. PL appealed and won. App Ct for PL.
 ISSUE – CAN A MFGR be liable for failure to warn if a risk in unknown? Is actual or
constructive knowledge of the potential risk an essential element?
 State of the art evidence issue
 Concl – CA Sup Ct said the mfgr must know of the potential harm to be liable for it
 Reas – strict liability not the same as absolute liability
 RULE –
 strict liability
 Unreasonably dangerous to sell without a suitable warning
 And product is provided without that warning
 Duty to warn
 If mfgr knows or could’ve known of danger – if they knew, they are strictly
liable for injuries caused by failure to warn
 Absent knowledge of the danger, mfgr is not liable (BUT, if PL can show mfgr
knew or should have known -> duty to warn -> if not fulfilled = strict liability)
 State of the art evidence is admissible only in strict liability failure-to-warn cases.
If PL can demonstrate a product is unsafe, they can recover damages.
 Notes:
 Learned intermediary rule
 Post-sale duty to warn; recall
 PROOF (p.866)
 Friedman v General Motors Corp, 1975 – Car leaped forward. Sued GM for strict liability
for design in transmission bc engine started when the car was in drive.
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PxHx – GM wins bc no direct evidence. App Ct reversed for PL bc a jury could’ve
found defect using circumstantial evidence. Sup Ct OH said circumstantial evidence
was allowed. Case remanded.
Issue – what if product was lost or destroyed and defects can’t be proven? Allow
circumstantial evidence?
RULE – a defect can be proven by circumstantial evidence if evidence establishes
that the injury was caused by a defect, not other possibilities – use evidence most
favorable to the nonmoving party
 A PL does not need to eliminate all other causes of injury
 For a jury to decide (though often rejected by juries)
Reas - PL must prove three things:
 1) a defect in the product exists
 2) the defect existed when the product left the mfgr’s hands
 3) the defect was the direct and proximate cause of the incident and injuries
 Can prove in five ways:
 1) expert testimony that a defect exists
 2) testimony from user or otherwise
 Both 1) and 2)
 Evidence to negate the existence of probable causes not attributable to the
maker
 Physical condition of the product after the accident
Dissent - PL’s burden of proof has not been satisfied
Notes:
 Product safety statute (acts like negligence per se)
 General defect/malfunction theory
FOR CLASS WEDS 12/1 (p. 873-881, 884-896, 907909)
 DEFENSES
 PL’s conduct
 Daly v General Motors Corp, 1978 -PL (widow) alleged a defective door latch. If the
dorr wouldn’t have opened, the PL’s husband would’ve survived. DEFs argued that
the door was not locked and that he was not wearing a seatbelt (and he was drunk).
 PxHx – PL loses in trial court. Sup Ct CA reversed.
 Issue – does comparative negligence doctrine apply to strict products liability
claims?

Concl – Yes. Comparative neg is a defense to product liability (same priciples as
in a neg case – but, in prod liability context implied assumption of risk can apply
in some jurisdictions. For exam, most jurisdictions combine them)
 Reas – Strict liability used to be all-or-nothing. Now, comparative negligence can
reduce the mfgr’s fault based on the PL’s conduct. GM strictly liable and Daly
also negligent. So, damages reduced.
 RULE – DEFs remain strictly liable for defective products but PL’s damages may
be reduced if PL’s lack of reasonable care also contributed to their injuries
 Ford Motor Co v Matthews, 1974 -Ray bought a tractor from Ford. Later, Ford
warned Ray that the kill-switch plunger was potentially defective. Ray sold it but
later reacquired it. Ford techs refurbished the tractor but kept undamaged parts, like
the defective plunger. Ray sold the tractor to Matthews and no one warned him
about the plunger danger. Matthews did not read the warnings first, started the
tractor and was killed. Estate filed on his behalf.
 PxHx – Trial court for PL.
 Issue – is a mfgr strictly liable for a product defect when they know that
consumers often ignore recommended precautions and the injured consumer
carelessly used the product?
 Concl – Yes.
 RULE – a mfgr is strictly liable for a product defect even if the consumer is
careless with the product so long as the mfgr knows consumers use the product
carelessly.
 Products defect claims require PL to prove two elements:
 1) DEF’s product was “unreasonably dangerous” (greater than the normal
consumer would expect
 2) The unreasonable danger caused the injury (est if the danger was a
significant factor in the injury)
 If consumer misused the product (used for an abnormal purpose), the mfgr
won’t be liable
 If foreseeable misuse, not a good defense
 Can use comparative negligence, though
 If unforeseeable, can use as a defense (a complete defense = they’re off
the hook)
 But, contributory negligence is when the product was used properly but
carelessly and won’t bar recovery (just reduce)
 DEFs other than Mfgrs – Harm other than Personal Injury
 Other suppliers of Chattels (p.884)
 Peterson v Lou Bachrodt Chevrolet Co, 1975 -Pl alleged that a used Chevy had
defective brakes that caused a child to get injured. Car was missing parts. Did not
allege that the dealer caused the defect or that the car was defective upon leaving
the dealership.
 Issue – does strict liability extend to retailers in secondary markets?
 PxHx – Trial court dismissed. App Ct reversed. Sup Ct IL
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Concl – dealership not strictly liable.
RULE – only retailers in the original distribution stream can be held strictly liable
 Primary distribution stream = mfgr -> dist -> retailer (could be a new car
dealer, but not a used one) -> consumer
 Dist or retailer can indemnify mfgr, if need be
 Exception: if the secondary-market retailer is the cause of the defect
 Used product retailers are not strictly liable unless they caused the defect.
(could bring a negligence claim, though)
 Reas – losses should fall on the originators of defective products. Defect may
have developed after it left the mfgr. Mfgrs are not insurers.
Erie Ins Co v Amazon.com, 2019 – a lamp from amazon caused a fire. Ins company
sued to recover money it paid out. Amazon said it was immune under the
Communications Decency Act (key: bc [RULE] they never had possession of the
product AND the title, so you have th right to determine what happens to the
product).
 PxHx – Dist Ct for Amazon (summary judgment). App Ct affirmed for Amazon.
 Issue – is a distributor who doesn’t hold title to the goods, the seller of the
goods?
 Concl – No. Amazon not liable bc amazon not the “seller” bc no title (avoided)
 Reas – Comm Decency Act does not immunize Amazon (bc the suit was about
selling the lamp, not publishing anything about it).
 Sellers may be liable for defective products
 PL often brings negligence, breach of warranty, and strict liability claims
 PL must show defect in product that is present when it leaves the
seller
 Defect must be attributable to the seller
 Show that the defect caused injury
 Seller = someone who sells goods
 Sale = exchange of title for a price
 RULE - Shippers, brokers, and auctioneers facilitate sales without ever
holding titles = not sellers, just middle people (bc no title) – but, physical
stores take responsibility of products they sell on the shelves
 Entrustees = handle goods and have the power to transfer title
 Amazon website ID’d dreamlite as the seller and was only compensated by
dreamlite after a sale was made for its fulfillment services (amazon brand
stuff Amazon would be responsible for )
 Notes: transfer of title v sufficient control
T.H. v Novartis Pharmaceuticals Corp, 2017 -a brand name drug to stop premature
labor did contain a warning but not a warning that it could cause deficits in fetal
brain development. So, in compliance with FDA law, neither did the generic version
(bc generic drug co’s have to give the same warning as the original drug did = duty to
give same warning as the brand name drug has). If new information arises, it is up to
yje originl mfgr to update the warning/product label. Twins born with
developmental delays and autism. DEF claimed insufficient facts to support a cause
of action.
 PxHx – Twins lose. App Ct twins win. Sup Ct
 Issue – is a brand name drug mfgr liable to users of its generic drug for
inadequate warning label even if they don’t make the drug anymore/sold the
rights?
 Concl – Yes. A brand name drug mfgr owes a continuing duty to all those who
may foreseeably and proximately be harmed by an inadequate warning label on
all versions of its drug
 RULE (a minority approach that we are responsible for) – brand name mfgrs are
the ones in the best position to prevent harm. Them or the FDA are the only
ones in a position to change it, even if they sold the rights.
 Generic mfgrs not responsible for inadeauate warning bc they have no duty
to update the warning
 Mfgr, even if they sell the drug are the ones who created the orig warning so
could be sued if it’s inadequate
 Reas – label on brand name drug was deficient so, consequently (and
foreseeably), so was the label on the generic version. The lacking label caused
the injury.
 Notes:
 Preemption
 Legislation and Products Liability (p.907)
 UCC
 Rstmt of Torts 2d § 402A
 Tort Reform: The Legislature Enters the Tort law Arena (states)
 Uniform Product Liability Act (UPLA) (FederaL) – promote interstate commerce
 Tort Reform in the State Legislatures and Congress – more broadly applicable tort
reform (not just product liability) – not adopted and abandoned
 Tort Reform in the 21st Century