Introduction to American Tort Law
Syllabus, Outline of Course and Course Materials
University of Insubria, Como, Italy
July 9-13, 2012
Ann C. McGinley, William S. Boyd Professor of Law,
University of Nevada, Las Vegas,
William S. Boyd School of Law
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Outline and Syllabus: Introduction to American Tort Law
University of Insubria, Como, Italy
July 9 – 13, 201
Ann C. McGinley
William S. Boyd Professor of Law, University of Nevada Las Vegas
Students: Please find the Course Materials for our course on American Tort Law. This
document includes the outlines, syllabus and background materials as well as the materials for
all the classes I teach to you separately. Please read the materials BEFORE the class for which
they are assigned. Also, at the end of each day’s reading is a list of “key terminology.” Look
at these words BEFORE you do the reading and try to understand what they mean in context.
As in American law school classrooms, I intend to ask you questions about your readings.
Please be prepared. Do NOT worry about your English. Your English is much better than
my Italian!
Course Outline
1. The American System
A. Courts – Federal, State
1. Jury system
2. Alternative Dispute Resolution
B. Legislatures – Federal, State
C. Executive Branch – Administrative regulations, courts
2. Tort Law
A. Primarily state law (occasional federal statutes)
B. Common law (at times supplemented by state statute)
C. Usually enforced in state court (But may be brought in federal court if federal law or diversity jurisdiction—citizens of two states – but even where diversity jurisdiction, federal
court will apply state law); some administrative law – e.g. OSHA
3. Common Law
A. Ordinarily in state court
B. Progression and interpretation of law via courts’ interpretations
C. Binding/Persuasive precedent
D. Each state: lower courts, Supreme Court (most have intermediate courts)
E. Higher courts binding on lower courts
F. How to defend against binding precedent? Importance of the facts of the
case—distinguish the case; look at the policy underlying the precedent and argue based on
policy;
G. Supreme Court’s Stare decisis - argue to overrule old precedent—no longer up to date;
rule no longer supports underlying policy; policies have changed
H. Common argument: Not for the judiciary – for the legislature to decide
4. Procedure
A. Judge vs. Jury
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B. Mechanisms for avoiding trials (Motions to Dismiss; Summary Judgment)
C. Appeals and Standards of Review
5. Coverage
A. The American System
B. State v. federal law
C. Common law v. statutory law
D. Torts
1. Intentional Torts
2. Negligence/ Contingency Fees
3. Special Topics in Negligence (Medical Malpractice, Health Care Reform)(Class
3)
4. Strict Liability/Products Liability
5. Remedies
E. Exam
Background for Class Materials, Outline of Class Materials and Materials for Class
American Tort Law
University of Insubria, Como, Italy
The American torts system is a common law system that is generally a matter of state, not
federal, law. Thus, the 50 states may have slightly varying law in torts, and it is up to the state
Supreme Court to determine what the law is in the particular state. Historically, torts developed as
common law without statutes, but there have been statutes emerging in many states that deal with
some of the law of torts. We will see some of these statutes as we go along. Also, there is a body
called the American Law Institute that writes the Restatements of the Law. The Restatements are
similar to statutes. They have provisions and commentary and examples explaining the provisions.
They are not binding on the state courts, however, unless the state Supreme Court has adopted the
Restatement provision as the law of the state. Because the American Law Institute is a very
prestigious organization, the Restatements are influential, however, and are followed by many courts.
In Torts, there is a Restatement (Second) of Torts, which was published in 1965. There are other
Restatements that deal with tort law. For example, there is a Restatement of Products Liability, which
was published in 1998.
Outline of Readings
I.
Intentional Torts
A. Battery (Cohen)
B. Assault (Raess)
C. False Imprisonment (Fuerschbach)
D. Trespass; Conversion
E. Practice Problems and Questions
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II.
Negligence
A. Duty (Doe)
B. Breach of Duty (Doe)
C. Causation
1. Actual Cause (Zuchowicz)
2. Proximate Cause (Palsgraf)
D. Harm
III. Medical (or other professional) Malpractice
A. Standard of Care
B. Expert testimony – importance -- lecture
C. Policy supporting medical malpractice
D. Policy Issues: Concern about the rising costs of healthcare and the legislative response – Nevada statute limiting non-economic damages
IV. Vicarious Liability
V. Strict Liability
VI. Products Liability
A. Restatement (Second) Section 402A
B. Restatement (Third) of Products Liability
C. Manufacturing and Design Defects
1. Consumer Expectations Test (Leichtamer)
2. Risk/Utility Analysis (Honda)
D. Warning Defects (Liriano)
E. Case Study: Hepatitis C Case
VII. Remedies
A. Compensatory Damages
B. Punitive Damages
VIII. Insurance
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Prof. McGinley Class Materials
Wednesday, July 11, 2012
12-1:30 class
READING MATERIALS FOR CLASS (The following readings will be discussed in Class.
Please be prepared to discuss them.)
I.
Intentional Torts
What does “intent” mean?
1. acting with the purpose of bringing about the result; or
2. acting with the knowledge that the result is substantially certain
A. Battery
PATRICIA K. COHEN and JOE COHEN, Plaintiffs-Appellants, v.
ROGER SMITH, Defendant-Appellee.
NOS. 5-94-0203 & 5-94-0204
APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
269 Ill. App. 3d 1087; 648 N.E.2d 329; 1995 Ill. App. LEXIS 185; 207 Ill.
Dec. 873
March 24, 1995, FILED1
JUDGES: JUSTICE CHAPMAN delivered the opinion of the court: MAAG, P.J., and HOPKINS, J.,
concur.
OPINION BY: CHAPMAN
OPINION
JUSTICE CHAPMAN delivered the opinion of the court:
1
Citations to cases have been omitted. Throughout the materials, I have edited the cases and other materials without
indicating where the editing takes place, but I have not changed the meaning of any case or other material.
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Patricia Cohen was admitted to St. Joseph Memorial Hospital ("Hospital") to deliver her baby.
After an examination, Cohen was informed that it would be necessary for her to have a cesarean
section. Cohen and her husband allegedly informed her physician, who in turn advised the Hospital
staff, that the couple's religious beliefs prohibited Cohen from being seen unclothed by a male. Cohen's doctor assured her husband that their religious convictions would be respected.
During Cohen's cesarean section, Roger Smith, a male nurse on staff at the Hospital, allegedly
observed and touched Cohen's naked body. Cohen and her husband filed suit against Nurse Smith
and the Hospital. The trial court allowed defendants' motions to dismiss. We reverse.
The Restatement (Second) of Torts provides that an actor commits a battery if:
"(a) he acts intending to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such a contact, and
(b) a harmful contact with the person of the other directly or indirectly results."
(Restatement (Second) of Torts, § 13 (1965).)2
Liability for battery emphasizes the plaintiff's lack of consent to the touching. "Offensive contact" is said to occur when the contact "offends a reasonable sense of personal dignity." Restatement
(Second) of Torts § 19 (1965).
Cohen alleges that Roger Smith knowingly violated her privacy interests and religious standards
and beliefs by touching her without her consent.
The only reason there is some hesitancy over the issue of whether a battery occurred in this case is
because the contact took place in a hospital between a medical professional and a patient. If Patricia
Cohen had been struck in the nose by Nurse Smith on a public street, everyone would agree that a
battery occurred, and under those limited facts, there would be no defense to the battery. In contrast,
medical professionals are allowed to touch patients during the course of medical treatment because
patients consent, either explicitly or implicitly, to the touching. The violation of a plaintiff's right to
bodily and personal integrity by an unconsented-to touching is the essence of a claim for battery.
II. CAUSES OF ACTION
A. Battery
The plaintiffs' complaint against Nurse Smith alleges that Smith touched Cohen's naked body
after being informed of her moral and religious beliefs against such touching by a male. According to
the complaint, despite being informed of Cohen's religious beliefs, Nurse Smith, an agent and employee of the Hospital, intentionally saw and touched Cohen's naked body.
The allegation that both Nurse Smith and the Hospital were informed in advance of plaintiffs'
religious beliefs is important in this case, because the religious convictions of plaintiffs might not be
2
The Restatement (Second) of Torts is not a statute. Rather, it is a compilation by the American Law Institute, a prestigious body of lawyers, judges and academics, who study the law and its trends and attempt to codify it. It is not binding
on any court unless the Supreme Court of the state in which the court sits has adopted it as the law of the state. But, it is
influential.
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those of most people who enter the hospital to give birth. As a matter of fact, plaintiffs' counsel
candidly conceded that there would be no cause of action for battery if Patricia Cohen had been
placed in Nurse Smith's and the Hospital's care in an emergency situation in which Patricia had been
unable to inform the Hospital or its agents of her beliefs. Plaintiffs' attorney acknowledged that his
clients' moral and religious views are not widely held in the community and, because of this, plaintiffs
could state a claim against defendants only if the plaintiffs plead that the defendants had knowledge
of those beliefs. Specifically, plaintiffs contend that defendants' knowledge is clearly illustrated by an
allegation in the plaintiffs' amended complaint that Nurse Smith requested the presence of the
Murphysboro City Police at the Hospital to prevent Mr. Cohen from objecting to Nurse Smith's
presence in the operating room while Mrs. Cohen was naked, and to physically restrain Mr. Cohen if
necessary.
Although most people in modern society have come to accept the necessity of being seen unclothed and being touched by members of the opposite sex during medical treatment, the plaintiffs
had not accepted these procedures and, according to their complaint, had informed defendants of their
convictions.
A person's right to refuse or accept medical care is not one to be interfered with lightly. As Justice
Cardozo stated, "Every human being of adult years and sound mind has a right to determine what
shall be done with his own body; and a surgeon who performs an operation without his patient's
consent commits an assault, for which he is liable in damages."
Knowing interference with the right of determination is battery. Our examination of the record
reveals that facts charging that interference are pleaded in plaintiffs' complaint against Nurse Smith
and against the Hospital. For purposes of a motion on the pleadings, a court must accept these facts as
true.
Based on the information found in the Cohen’s complaint against Nurse Smith and the Cohen’s
complaint against the Hospital, we find that the trial court erred in dismissing both complaints.
Reversed and remanded.
B.
Assault
DANIEL H. RAESS, M.D., Appellant (Defendant), v. JOSEPH E.
DOESCHER, Appellee (Plaintiff).
No. 49S02-0710-CV-424
SUPREME COURT OF INDIANA
883 N.E.2d 790; 2008 Ind. LEXIS 313; 155 Lab. Cas. (CCH) P60,601
April 8, 2008, Decided
April 8, 2008, Filed
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OPINION BY: Dickson
OPINION
Dickson, Justice.
This is an appeal by defendant Daniel Raess, M.D., a cardiovascular surgeon, challenging a
$325,000 jury verdict and judgment on a claim for assault brought by plaintiff Joseph Doescher, a
hospital operating room perfusionist (the person who operates the heart/lung machine during open
heart surgeries). The Court of Appeals reversed and remanded for a new trial. We granted transfer and
now affirm the judgment of the trial court.
In his action against the defendant surgeon, the plaintiff perfusionist sought compensatory and
punitive damages for assault following a verbal altercation adjacent to the open-heart surgery area at
St. Francis Hospital in Beech Grove, Indiana. The jury found for the plaintiff on his assault claim and
awarded compensatory but not punitive damages.
1. Denial of Judgment on the Evidence
The defendant argues (a) that there was no evidence to support liability for assault and seeks entry
of judgment in his favor.
The defendant first argues that there was no evidence to establish the following: (a) that an assault
occurred, (b) that he acted with the requisite intent, or (c) that the plaintiff's reaction was reasonable.
The elements of assault were explained to the jury in Instruction 10C, to which neither party objected.
To establish assault, Mr. Doescher [the plaintiff] must prove, by a preponderance of
the evidence, that Dr. Raess acted in such a manner that Mr. Doescher was in reasonable
fear of imminent harm at the time when Dr. Raess had the ability to inflict harm. No
physical contact had to occur so long as Mr. Doescher was reasonably afraid that such
contact would occur. If you find from the evidence that Dr. Raess committed an assault
upon Mr. Doescher, then Dr. Raess is liable for damages caused by the assault.
Assault is effectuated when one acts intending to cause an imminent apprehension of a harmful or
offensive contact with another person as we have explained, "Any act of such a nature as to excite an
apprehension of a battery may constitute an assault. It is an assault to shake a fist under another's
nose, . . . ."
We find testimony from the plaintiff that the defendant, angry at the plaintiff about reports to the
hospital administration about the defendant's treatment of other perfusionists, aggressively and rapidly advanced on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins, and
screaming and swearing at him. The plaintiff backed up against a wall and put his hands up, believing
that the defendant was going to hit him, "[t]hat he was going to smack the s**t out of me or do
something." Then the defendant suddenly stopped, turned, and stormed past the plaintiff and left the
room, momentarily stopping to declare to the plaintiff "you're finished, you're history." In light of this
evidence, there has not been a complete failure of proof. To the contrary, there is substantial evidence or reasonable inferences to support the jury's conclusions that an assault occurred, that the
defendant acted with the requisite intent, and that the plaintiff's reaction was reasonable.
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C.
False Imprisonment
MARCIE FUERSCHBACH, Plaintiff-Appellant, v. SOUTHWEST
AIRLINES CO.; CITY OF ALBUQUERQUE; DUANE HOPPE; ELDON MARTINEZ; MICHAEL SANTIAGO; and TINA MARIE
TAPIA, Defendants-Appellees.
No. 04-2117
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
439 F.3d 1197; 2006 U.S. App. LEXIS 5108; 44 A.L.R.6th 723
February 28, 2006, Filed
JUDGES: Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and McCONNELL,
Circuit Judge.
OPINION BY: LUCERO
OPINION
LUCERO, Circuit Judge.
Several supervisors at Southwest Airlines convinced two Albuquerque police officers to stage an
arrest of Marcie Fuerschbach, a Southwest Airlines employee, as part of an elaborate prank that included actual handcuffing and apparent arrest. This was a "joke gone bad," and turned out to be anything but funny, as Fuerschbach allegedly suffered serious psychological injuries as a result of the
prank.
I
Marcie Fuerschbach worked as a customer service representative for Southwest Airlines
("Southwest"), serving travelers at Southwest's main ticket counter in Albuquerque's Sunport airport.
Southwest prides itself on being a "fun-loving, spirited company." As part of this fun-loving atmosphere, newly hired employees who have successfully completed an initial probationary period
often find themselves subject to a prank commemorating the occasion.
Fuerschbach's supervisor, Tina Marie Tapia, and other customer service supervisors had discussed various pranks to commemorate Fuerschbach's successful completion of probation. Tapia
suggested a mock arrest. The others agreed. On the day of the incident, one of the supervisors called
the Albuquerque police department and requested that officers come to the Southwest counter.
When Officers Duane Hoppe and Eldon Martinez arrived at the ticket counter, the supervisors told
them of the plan to arrest Fuerschbach as a celebratory prank. The officers, who were employed by
the City of Albuquerque's City Aviation Department and detailed to the Sunport, asked if Fuersch9
bach "would be okay with it," and Tapia assured them that she would. With the assistance of the
supervisors, the officers developed and executed the plan for staging the arrest.
Fuerschbach was working at a ticket counter when the two uniformed and armed police officers
approached her. One of the officers ordered Fuerschbach to go with him to answer some questions,
and proceeded to escort her to the end of the ticket counter. Once there, the other officer informed
Fuerschbach that the City Aviation Department discovered an outstanding warrant for her arrest. The
officers asked Fuerschbach if she had ever been arrested before, and she replied that she had not. The
officers demanded that she take off her badges and turn them in.
The officers then placed Fuerschbach's hands behind her back and handcuffed her tightly. A
crowd of employees and customers formed to watch the unfolding arrest. One of the officers said to
Fuerschbach, "we don't want to embarrass you anymore so we'll take you to the elevator so we don't
have to walk in front of all those people." Fuerschbach continued to cry. The officers led Fuerschbach
in handcuffs fifteen feet to the elevator, at which point someone jumped out and yelled, "congratulations for being off probation." The officers removed the handcuffs and people began to clap.
Fuerschbach, however, continued to cry. Later that day, she was found in the break room weeping and
was sent home. As a result of her distress, Fuerschbach began seeing a psychologist for treatment.
The psychologist diagnosed Fuerschbach as suffering from post-traumatic stress disorder ("PTSD").
In discussing intentional torts, the Restatement provides:
The fact that the defendant who intentionally inflicts bodily harm upon another does
so as a practical joke, does not render him immune from liability so long as the other has
not consented. This is true although the actor erroneously believes that the other will
regard it as a joke, or that the other has, in fact, consented to it. One who plays dangerous
practical jokes on others takes the risk that his victims may not appreciate the humor of
his conduct and may not take it in good part.
Thus, the common law of torts instructs that an intentional tortfeasor is held to the applicable
standard of care, notwithstanding the characterization of the tort as a prank, or even a good faith but
incorrect belief that the tort victim will enjoy the joke.
III
Fuerschbach asserts several state tort claims against Officers Hoppe and Martinez. Specifically,
Fuerschbach alleges that the officers committed false imprisonment.
A
"Under New Mexico law, 'false imprisonment consists of intentionally confining or restraining
another person without his consent and with knowledge that he has no lawful authority to do so.'" The
district court found that the officers had a good faith and reasonable belief that their actions were
lawful because they only "briefly restrained Plaintiff as part of a prank at the request of SWA."
Neither the brevity of the seizure nor its characterization as a prank enable the officers to prevail
on summary judgment. False imprisonment may arise out of a brief encounter. Moreover, a good faith
belief in the lawfulness of the action ordinarily requires probable cause to arrest. The defendant of10
ficers lacked probable cause, and indeed did not even suspect Fuerschbach of wrongdoing. Although
they seized Fuerschbach at the invitation of her employer, and did so in the context of a prank, they
nonetheless had no lawful authority to inform her that she was under arrest, restrain her in handcuffs,
and direct her movement.
***
D.
Trespass, Conversion
These are intentional torts dealing with real property (land) and personal property. Trespass is
the intentional entry upon the property of another without permission. Conversion is the taking of
the personal property of another and treating it as if it belongs to the converter. These are intentional
torts, but even if the trespasser mistakenly believes that the property belong to him or her, s/he can be
liable for trespass or conversion.
E.
Practice Problems
1. Cohen v. Smith – What if the plaintiff had not told the doctors that she did not want to be
viewed naked or touched by a male doctor? Would there still be a battery? Why? Why
not? Consent can be a defense to battery. How would a defendant attempt to make out
this defense in a case similar to this case?
2. Cohen v. Smith – If you were a member of the jury, would you vote for the plaintiff in the
battery case?
3. Raess v. Doescher – Should the doctor be liable for this behavior? Isn’t this ordinary
behavior in workplaces, especially stressful workplaces? Did the defendant in this case
have a purpose to bring about Raess’ distress? If not, how can Raess prove intent?
4. Fuerschbach v. Southwest Airlines – The defendants in this case were playing a prank on
the plaintiff. How, then, can the plaintiff prove intent in this case? Does the intent have
to be to harm the plaintiff or in a false imprisonment case, to confine the plaintiff against
her will?
Key Terminology: You should study and understand these key terms:
Liability
Battery
Consent
Privacy
Personal integrity
Damages
Complaint
Attorney
State a claim
Allegation
Reversed and remanded
Jury verdict
Assault
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Affirm the judgment
Trial court
Court of appeals/appellate court
Compensatory damages
Punitive damages
Plaintiff
Defendant
Evidence
Intent
Burden of proof
Preponderance of the evidence
Substantial evidence
Motion for summary judgment
False imprisonment
Good faith and reasonable belief
Trespass
Conversion
II. Negligence
A. Duty
B. Breach of Duty
JANE DOE and INFANT DOE by her Next Friend John Smith, Plaintiffs, v. EARVIN JOHNSON, JR., Defendant.
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
817 F. Supp. 1382; 1993 U.S. Dist. LEXIS 4367
February 18, 1993, Decided
February 18, 1993, Filed
HON. RICHARD A. ENSLEN
OPINION
This case is before the Court on defendant's motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6).
Facts
This case raises unique legal and policy issues, but has fairly straight forward facts. Plaintiff, Jane
Doe, alleges that defendant, Earvin Johnson, Jr., wrongfully transmitted the human immunodefi12
ciency virus ("HIV virus") to her through consensual sexual contact. Ms. Doe alleges that the
wrongful transmission of the HIV virus occurred on or about the evening of June 22, 1990, or the
morning of June 23, 1990, or both, at her home in Ingham County, Michigan. Ms. Doe and Mr.
Johnson had "sexual contact" which allegedly led to the transmission of the HIV virus. Ms. Doe alleges that immediately prior to the encounter, she asked Mr. Johnson to use a condom. Mr. Johnson
allegedly refused to do so. Nonetheless, Ms. Doe engaged in consensual sexual contact with Mr.
Johnson.
Prior to the evening of June 22, 1990 or morning of June 23, 1990, Ms. Doe claims that Mr.
Johnson "was sexually active, having sexual contact and engaging in sexual intercourse with multiple
partners." Thus, Ms. Doe claims that Mr. Johnson "knew or should have known" that he had a high
risk of becoming infected with the HIV virus because of his "sexually active, promiscuous lifestyle."
Accordingly, Ms. Doe argues that Mr. Johnson should have (1) warned her about his past lifestyle; (2)
informed her that he "may have HIV"; (3) informed her that he did in fact "have HIV"; (4) not engaged in sexual contact with her; or (5) used a condom or other method to protect her from the HIV
virus.
As a result of this wrongful transmission, Ms. Doe states that she suffers, and will continue to
suffer, many consequences including physical illness, severe emotional distress, loss of enjoyment of
life, extreme embarrassment, humiliation, shame, medical expenses, and lost wages and benefits.
Moreover, Ms. Doe notes that she will eventually develop acquired immunodeficiency syndrome
("AIDS") and "suffer a slow, certain, and painful death."
DISCUSSION
In his motion to dismiss, defendant attacks each count on essentially the same ground: that defendant must have had "knowledge" of his HIV-positive status in order to have a duty under negligence [theory].
Count I of the Complaint alleges that defendant negligently breached a legal duty he owed to
plaintiff Jane Doe not to transmit the HIV virus to her because he knew or should have known that
he had the HIV virus. In order to state a claim for a cause of action arising from a tortious injury in
the state of Michigan, such as that alleged by plaintiff Jane Doe in count I, a litigant must allege: (1) a
legal duty owed by defendant to plaintiff; (2) a breach of that duty; (3) causation (proximate and
causation in fact) between the breach of the duty and the injury; and (4) resultant damages.
Additionally, as is somewhat obvious from these factors, courts often consider public policy
implications in making a determination whether a legal duty exists in any given situation.
Decision as to Count I
Under Michigan law, courts generally use the following test to determine the existence of a "legal
duty": (1) a balancing of the societal interest involved; (2) the severity of the risk; (3) the burden upon
the defendant [to meet the duty]; (4) the likelihood of occurrence; and, (5) the relationship between
the parties. A number of considerations arise when balancing these factors in the context of sexual
transmission of the HIV virus.
13
***
In balancing these factors, I find that a defendant owes a plaintiff a legal duty to, at the very
least, disclose the fact that s/he may have the HIV virus, if: (1) the defendant has actual knowledge
that s/he has the HIV virus; (2) the defendant has experienced symptoms associated with the HIV
virus; or (3) the defendant has actual knowledge that a prior sex partner has been diagnosed as
having the HIV virus. When an individual has knowledge that rises to the level of one of these three
fact scenarios, the burden on that individual in revealing his or her HIV virus information is minimal
when compared to the high risks of the disease.
As a general rule, an individual will not be held liable for risks which are not known, not apparent, or not foreseeable to him or her. In this case, if defendant had no actual knowledge of his own
infection, had no symptoms of the HIV virus whatsoever, nor was he aware of any prior sex partner
who had been diagnosed as having the HIV virus, I find that as a matter of law it was not foreseeable
that he would pass the HIV virus to Ms. Doe simply because he had unprotected sex with multiple
partners prior to his encounter with Ms. Doe.
"High Risk" Plus is Relevant
Nonetheless, I find that the fact that one may have engaged in "high risk" activity is relevant to a
claim for wrongful transmission of the HIV virus. Certainly, my ruling that a defendant owes a
plaintiff a legal duty to, at the very least, disclose the fact that s/he may have the HIV virus, if one of
the factors set forth [above] is present, allows room for inquiry into a defendant's past sexual and/or
other "high risk" activity. For instance, a plaintiff will need to inquire whether any prior sex partners
of a defendant have been diagnosed as having the HIV virus; when such diagnosis was made; when
defendant learned of the diagnosis, etc.
I find that defendant's knowledge of his past "high risk" behavior may be relevant to this action.
Questions
1. Do you believe that Magic Johnson should have had a duty to inform his partner that he had
engaged in high risk sexual behavior? Why? Why not?
2. Under what conditions do you believe that an HIV positive person should reveal his or her infection before engaging in sex?
3. Comment: American law distinguishes between malfeasance and nonfeasance. Ordinarily, a defendant is liable for malfeasance, but not for nonfeasance. Example: I am not liable for failing to
rescue someone who is drowning even though I am a very good swimmer, but if I negligently took
the person out on a boat and the boat capsized, I will be liable for not making reasonable attempts
to rescue the person.
14
McGinley Class Materials
Thursday, July 12
10-11:30 class
C. Causation
1. Actual Cause
STEVEN ZUCHOWICZ, Plaintiff-Appellee Cross-Appellant, v.
UNITED STATES OF AMERICA, Defendant-Appellant
Cross-Appellee.
Docket No. 97-6057, 97-6099
UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
140 F.3d 381; 1998 U.S. App. LEXIS 5366; 49 Fed. R. Evid. Serv. (Callaghan) 495
October 22, 1997, Argued
March 20, 1998, Decided
JUDGES: Before: NEWMAN, ALTIMARI, and CALABRESI, Circuit Judges.
OPINION BY: CALABRESI
[Note to students: Judge Calabresi is a very prominent Italian American jurist. He left Italy as a child
when his family fled during World War II. His family was Jewish and he was from Ferrara. He was
a professor at Yale Law School, one of the best in the USA. He was known for his scholarly works
on Torts. He eventually became the Dean of Yale Law School and was then appointed a Judge of the
United States Court of Appeals for the Second Circuit. He continues to serve as a distinguished
judge].
OPINION
CALABRESI, Circuit Judge:
This suit under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2671-2680, was originally filed
by Patricia Zuchowicz, who claimed to have developed primary pulmonary hypertension, a fatal lung
condition, as a result of the defendant's negligence in prescribing an overdose of the drug Danocrine.
15
Following Mrs. Zuchowicz's death in 1991, her husband, Steven, continued the case on behalf of his
wife's estate, claiming that the defendant was responsible for her death. After a bench trial, the district court awarded the plaintiff $ 1,034,236.02 in damages.
I. Background
A. Drug, Illness, and Death
1. The Overdose
The facts, as determined by the district court, are as follows. On February 18, 1989, Mrs. Zuchowicz filled a prescription for the drug Danocrine at the Naval Hospital pharmacy in Groton,
Connecticut. The prescription erroneously instructed her to take 1600 milligrams of Danocrine per
day, or twice the maximum recommended dosage. The defendant has stipulated that its doctors
and/or pharmacists were negligent and violated the prevailing standard of medical care by prescribing
this wrong dosage.
Mrs. Zuchowicz took the 1600 milligrams of Danocrine each day for the next month. Thereafter,
from March 24 until May 30, she took 800 milligrams per day. While taking Danocrine she experienced abnormal weight gain, bloating, edema, hot flashes, night sweats, a racing heart, chest pains,
dizziness, headaches, acne, and fatigue. On May 30, she was examined by an obstetrician/gynecologist in private practice who told her to stop taking the Danocrine. During the summer,
she continued to experience severe fatigue and chest tightness and pain, and began having shortness
of breath. In October 1989, she was diagnosed with primary pulmonary hypertension ("PPH"), a rare
and fatal disease. At the time she was diagnosed with the disease, the median life expectancy for PPH
sufferers was 2.5 years.
Mrs. Zuchowicz was on the waiting list for a lung transplant when she became pregnant. Mrs.
Zuchowicz gave birth to a son on November 21, 1991. She died one month later, on December 31,
1991.
2. Primary Pulmonary Hypertension
Pulmonary hypertension is categorized as "primary" when it occurs in the absence of other heart
or lung diseases. PPH is very rare. A National Institute of Health registry recorded only 197 cases of
PPH from the mid-1980s until 1992. It occurs predominantly in young women.
3. Danocrine
Danocrine has been extensively studied and prescribed since the late 1960s for endometriosis.
According to the testimony of plaintiff's expert Dr. W. Paul D'Mowski, who personally performed
much of the initial research on the drug, Danocrine is safe and effective when administered properly.
Based on studies by Dr. D'Mowski and others, Danocrine was approved by the Food and Drug Administration ("FDA") for use in dosages not to exceed 800 mg/day. Mrs. Zuchowicz was accidentally
given a prescription instructing her to take twice this amount -- 1600 mg/day. According to Dr.
D'Mowski no formal studies of the effects of Danocrine at such high doses have been performed, and
very, very few women have received doses this high in any setting.
B. The Expert Testimony
1. Dr. Matthay
16
Dr. Matthay testified that he was confident to a reasonable medical certainty that the Danocrine
caused Mrs. Zuchowicz's PPH. When pressed, he added that he believed the overdose of Danocrine to
have been responsible for the disease. His conclusion was based on the temporal relationship between
the overdose and the start of the disease and the method of excluding other possible causes. Dr.
Matthay further testified that the progression and timing of Mrs. Zuchowicz's disease in relation to
her overdose supported a finding of drug-induced PPH. Dr. Matthay emphasized that, prior to the
overdose, Mrs. Zuchowicz was a healthy, active young woman with no history of cardiovascular
problems, and that, shortly after the overdose, she began experiencing symptoms of PPH such as
weight gain, swelling of hands and feet, fatigue, and shortness of breath.
II. Discussion
B. Were the District Court's Factual Findings with Respect to Causation Clearly Erroneous?
The case turns only on the difficulty of showing a but for cause. On whether, in other words, the
plaintiff has sufficiently demonstrated: (a) that defendant's act in giving Mrs. Zuchowicz Danocrine
was the source of her illness and death, and (b) that it was not just the Danocrine, but its negligent
overdose that led to Mrs. Zuchowicz's demise.
3. Connecticut Law and Experts
The expert must deal not in mere possibilities, but in "reasonable medical probabilities." At the
same time, it is well-established that causation "may be proved by circumstantial evidence," and that
"the causal relation between an injury and its later physical effects may be established by the direct
opinion of a physician, by his deduction by the process of eliminating causes other than the traumatic
agency, or by his opinion based upon a hypothetical question."
4. Was Danocrine a But For Cause of Mrs. Zuchowicz's Illness and Death?
We hold that, on the basis of Dr. Matthay's testimony alone, the finder of fact could have concluded -- under Connecticut law -- that Mrs. Zuchowicz's PPH was, more likely than not, caused by
Danocrine. The evidence presented showed that the experts had not only excluded all causes of
secondary pulmonary hypertension, but had also ruled out all the previously known drug-related
causes of PPH. In addition, Dr. Matthay testified, based on his expertise in pulmonary diseases, that
the progression and timing of Mrs. Zuchowicz's illness in relationship to the timing of her overdose
supported a finding of drug-induced PPH to a reasonable medical certainty.
5. Was the Overdose a But For Cause of Mrs. Zuchowicz's Illness and Death?
To say that Danocrine caused Mrs. Zuchowicz's injuries is only half the story, however. In order
for the causation requirement to be met, a trier of fact must be able to determine, by a preponderance
of the evidence, that the defendant's negligence was responsible for the injury. In this case, defendant's negligence consisted in prescribing an overdose of Danocrine to Mrs. Zuchowicz. For liability
to exist, therefore, it is necessary that the fact finder be able to conclude, more probably than not, that
the overdose was the cause of Mrs. Zuchowicz's illness and ultimate death. The mere fact that the
exposure to Danocrine was likely responsible for the disease does not suffice.
The problem of linking defendant's negligence to the harm that occurred is one that many courts
have addressed in the past.
17
If (a) a negligent act is deemed wrongful because that act increased the chances that a particular
type of accident would occur, and (b) a mishap of that very sort did happen, this is enough to support
a finding by the trier of fact that the negligent behavior caused the harm. Where such a strong causal
link exists, it is up to the negligent party to bring in evidence denying but for cause and suggesting
that in the actual case the wrongful conduct had not been a substantial factor.
The case before us is a good example of the above-mentioned principles in their classic form.
Moreover, it is often true that the higher the dosage the greater is the likelihood of such negative
effects. At the approved dosages, the benefits of the particular drug have presumably been deemed
worth the risks it entails. At greater than approved dosages, not only do the risks of tragic side effects
(known and unknown) increase, but there is no basis on the testing that has been performed for
supposing that the drug's benefits outweigh these increased risks.
Under the circumstances, we hold that defendant's attack on the district court's finding of causation is meritless.
Notes and Comments:
1. The suit in Zuchowicz was brought alleging a violation of a federal law, the Federal Tort
Claims Act, because the defendant was the Naval Hospital, a federal entity.
2. The trial judge acted as the fact finder in this case. In other words, there was no jury and it
was a bench trial. The court of appeals looks to see whether the trial judge’s factual findings
were clearly erroneous. This is the standard of review for judges who sit as fact finders. If the
judge’s factual findings are not clearly erroneous, they will be upheld, even if the court of
appeals would decide a different way if it were conducting the trial.
2. Proximate Cause
What is proximate cause? Read the following example:
Assume that Dr. Miller performs a tubal ligation on a woman (sterilization procedure) so that
she will not have any more children. He performs the operation negligently and a baby boy, James,
is born. Fifteen years later, James sets fire to John Walsh’s house. Can John Walsh sue Dr. Miller
for the harm caused by his negligence in performing the tubal ligation? It is true that Dr. Miller’s
negligence is a but for cause of James’ existence and without James’ birth, he would not have burned
the house, but the law would not hold Dr. Miller responsible for the damage to John Walsh’s house.
This is because the law requires proximate cause as well as actual cause for there to a recovery.
Proximate Cause is a limitation on liability. The courts look to see whether the injury was a foreseeable result of the negligence. Even if there is actual cause, a plaintiff will not prevail without a
showing of proximate cause. The fire in Walsh’s house is not a foreseeable risk of Dr. Miller’s
negligent performance of the tubal ligation.
The following case is the most famous proximate cause case decided in the United States. Justice
Cardozo was a famous American judge. He concludes that there was no duty to the plaintiff because
her injury was not foreseeable. The dissent, authored by Justice Anderson, which appears in part
below, is much closer to the current law of proximate cause. Although foreseeability is considered a
18
keystone today, and Anderson does not seem to care much about foreseeability, he makes important
points about how to determine whether there is proximate cause.
Palsgraf, Respondent, v. The Long Island Railroad Company, Apellant
Court of Appeals of New York [In New York, this is the highest court].
248 N.Y. 339; 162 N.E. 99; 1928 N.Y. LEXIS 1269; 59 A.L.R. 1253
February 24, 1928, Argued
May 29, 1928, Decided
[The plaintiff, Mrs. Palsgraff was injured when the employee of the railroad (called
the “chauffeur” in the opinion below) pushed a man who was boarding a train to
help him onto the train. The push caused the man to drop a package which contained fireworks. The package exploded on the tracks which caused a large scale
at the other end of the station to fall on Mrs. Palsgraff. She sued].
Justice Anderson (dissenting)
What we do mean by the word "proximate" is, that because of convenience, of public policy, of a
rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point.
This is not logic. It is practical politics.
Once again, it is all a question of fair judgment, always keeping in mind the fact that we endeavor
to make a rule in each case that will be practical and in keeping with the general understanding of
mankind.
Here another question must be answered. In the case supposed it is said, and said correctly, that
the chauffeur is liable for the direct effect of the explosion although he had no reason to suppose it
would follow a collision. "The fact that the injury occurred in a different manner than that which
might have been expected does not prevent the chauffeur's negligence from being in law the cause of
the injury." But the natural results of a negligent act -- the results which a prudent man would or
should foresee -- do have a bearing upon the decision as to proximate cause. We have said so repeatedly. What should be foreseen? No human foresight would suggest that a collision itself might
injure one a block away. On the contrary, given an explosion, such a possibility might be reasonably
expected. I think the direct connection, the foresight of which the courts speak, assumes prevision of
the explosion, for the immediate results of which, at least, the chauffeur is responsible.
It may be said this is unjust. Why? In fairness he should make good every injury flowing from
his negligence. Not because of tenderness toward him we say he need not answer for all that follows
his wrong. We look back to the catastrophe, the fire kindled by the spark, or the explosion. We trace
the consequences -- not indefinitely, but to a certain point. And to aid us in fixing that point we ask
what might ordinarily be expected to follow the fire or the explosion.
This last suggestion is the factor which must determine the case before us. The act upon which
defendant's liability rests is knocking an apparently harmless package onto the platform. The act was
19
negligent. For its proximate consequences the defendant is liable. If its contents were broken, to
the owner; if it fell upon and crushed a passenger's foot, then to him. If it exploded and injured one in
the immediate vicinity, to him also. Mrs. Palsgraf was standing some distance away. How far
cannot be told from the record -- apparently twenty-five or thirty feet. Perhaps less. Except for the
explosion, she would not have been injured. We are told by the appellant in his brief "it cannot be
denied that the explosion was the direct cause of the plaintiff's injuries." So it was a substantial factor
in producing the result -- there was here a natural and continuous sequence -- direct connection. The
only intervening cause was that instead of blowing her to the ground the concussion smashed the
weighing machine which in turn fell upon her. There was no remoteness in time, little in space. And
surely, given such an explosion as here it needed no great foresight to predict that the natural result
would be to injure one on the platform at no greater distance from its scene than was the plaintiff.
Just how no one might be able to predict. Whether by flying fragments, by broken glass, by
wreckage of machines or structures no one could say. But injury in some form was most probable.
[Justice Anderson would have held the railroad responsible for Mrs. Palgraf’s injuries even
though she was standing at a distance from the explosion].
***
D. Harm
In a negligence action, the plaintiff must prove that he or she was harmed and that the defendant’s
negligence was a cause of the harm. Harm includes economic and non-economic damages such as
loss of future income, medical costs, future medical costs, pain and suffering, emotional distress.
Key Terminology:
Negligence
Duty
Breach of Duty
Motion to Dismiss
Breaches a legal duty
Cause of action
Knew or should have known
Balancing factors
Actual knowledge
Foreseeable
Duty to act as a reasonable person under the circumstances
Duty to inform
Actual cause
20
Bench trial
Stipulate
A reasonable medical certainty/A reasonable degree of scientific certainty
But for cause
Circumstantial evidence
Proximate cause
Economic damages
Non-economic damages
Special Problems in Negligence: Medical Malpractice and Health Care Reform
III. Medical Malpractice
A. Standard of Care
In order to prove medical or other professional malpractice, the plaintiff must establish what the
standard of care is. The standard of care is the duty to the patient. A breach of this duty is negligence. If the patient can prove that the breach of the duty was an actual and proximate cause of the
plaintiff’s injuries, the plaintiff will prevail. Ordinarily, the standard of care is established through
an expert who testifies what a reasonable physician under the circumstances would do. Usually
doctors will be held to the standard of care of a physician with that physician’s specialty or expertise.
Of course, a doctor without expertise in a particular area (a general practitioner) may be negligent if
that doctor does not refer the patient to someone with specialized expertise.
B. Expert Testimony
The following statute codifies in part a common law doctrine called res ipsa loquitur. Res ipsa
loquitur is a doctrine that provides that in some situations the plaintiff does not have to establish
negligence by expert medical testimony because the “act speaks for itself.” In other words, it is
obvious that there was negligence and it would be unjust for the plaintiffs to have to prove negligence.
It began in medical malpractice cases in situations where the plaintiff could not testify because the
plaintiff was unconscious due to anesthesia. The courts did not want to permit doctors to refuse to
speak and therefore to escape liability. Nevada has codified this doctrine, but has also limited it in
the following statute.
N.R.S. 41A.100 [N.R.S. stands for “Nevada Revised Statutes.” These are statutes that apply to the
state of Nevada].
41A.100. Required evidence; exceptions; rebuttable presumption of negligence
1. Liability for personal injury or death is not imposed upon any provider of medical care based on
alleged negligence in the performance of that care unless evidence consisting of expert medical tes21
timony, material from recognized medical texts or treatises or the regulations of the licensed medical
facility wherein the alleged negligence occurred is presented to demonstrate the alleged deviation
from the accepted standard of care in the specific circumstances of the case and to prove causation of
the alleged personal injury or death, except that such evidence is not required and a rebuttable
presumption that the personal injury or death was caused by negligence arises where evidence is
presented that the personal injury or death occurred in any one or more of the following circumstances:
(a) A foreign substance other than medication or a prosthetic device was unintentionally left within
the body of a patient following surgery;
(b) An explosion or fire originating in a substance used in treatment occurred in the course of treatment;
(c) An unintended burn caused by heat, radiation or chemicals was suffered in the course of medical
care;
(d) An injury was suffered during the course of treatment to a part of the body not directly involved in
the treatment or proximate thereto; or
(e) A surgical procedure was performed on the wrong patient or the wrong organ, limb or part of a
patient's body.
2. Expert medical testimony provided pursuant to subsection 1 may only be given by a provider of
medical care who practices or has practiced in an area that is substantially similar to the type of
practice engaged in at the time of the alleged negligence.
3. As used in this section, "provider of medical care" means a physician, dentist, registered nurse or a
licensed hospital as the employer of any such person.
***
[Following is a media description of a terrible event happening during an operation to put in a
pacemaker. Consider whether the above statute would be applicable in this case].
22
23
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C. Policy Supporting Medical Malpractice
The policy behind medical malpractice is to compensate victims and to deter negligent behavior. Courts often talk about the need to encourage more careful behavior and the need to reform
how professionals behave is a central theme in medical malpractice litigation. An important question is whether the law is actually encouraging and causing the types of behaviors it hopes to encourage. Doctors often criticize the law and argue that it encourages decisions that lead to very high
costs – needless tests, etc. Consider these issues when you read the policy section below.
D. The Rising Costs of Health Care: Policy Considerations
Below is a sample of news articles and opinion pieces written about the rising cost of health care and
its alleged link to medical malpractice litigation.
The New York Times, February 22, 2010 Monday
HEADLINE: How the G.O.P. Can Fix Health Care
BYLINE: By NEWT GINGRICH.
NEWT GINGRICH, former speaker of the House of Representatives and founder of the Center
for Health Transformation, a health-care policy consulting firm
BODY:
CAT scans, blood tests, ultrasounds, Caesarean sections -- in many instances, these diagnostic
tools and procedures are vital for treating patients. Too often, however, such procedures are ordered
unnecessarily and drive up the cost of medicine for patients, taxpayers and insurance carriers.
A new Gallup poll, commissioned by Jackson Healthcare, indicates that doctors believe an
astounding one in four health care dollars is now spent on unnecessary care.
Doctors order these procedures to protect against frivolous suits filed by trial lawyers seeking an
easy payout, particularly after a doctor makes a simple mistake. Seventy-three percent of the doctors
surveyed said they had practiced defensive medicine in the past year. As a result, American patients
not only endure extra hours of tests and treatments but also pay more for health care.
If President Obama and Congress are serious about reducing health care costs, then the more than
25
$600 billion a year in unnecessary care should be at the top of the list. Congress must give states the
incentive to reform their civil justice systems so that lawyers will think twice before suing doctors for
frivolous cases. There is a place for health courts that address only medical malpractice cases, and a
need for caps on damages for ''pain and suffering'' that have nothing to do with lost wages or actual
damages. Doctors who incorporate best medical practices should be protected from lawsuits altogether.
These reforms would allow doctors to stop playing defense, and make it possible for patients and
taxpayers to better afford health care.
***
The New York Times, March 10, 2005
HEADLINE: False Diagnosis
BYLINE: By Bernard Black, Charles Silver, David Hyman and William Sage.
Bernard Black and Charles Silver are law professors at the University of Texas at Austin. David
Hyman is a professor of law and medicine at the University of Illinois. William Sage is a law professor at Columbia.
BODY:
MEDICAL malpractice litigation reform is a high priority for President Bush, who contends that
juries are running amok, multimillion-dollar settlements are on the rise and greedy trial lawyers are
filing frivolous suits. The results, Mr. Bush and others argue, include skyrocketing insurance prices,
abandoned medical practices, defensive medicine and a crisis of access to care. Their proposed solution: caps on jury awards to patients and on lawyers' contingent fees.
No one disputes that insurance premiums have risen significantly. The question is whether a
crisis in states' tort systems accounts for the increase. Consider Mr. Bush's home state of Texas,
America's second most populous state and the third largest in terms of total health care spending.
After studying a database maintained by the Texas Department of Insurance that contains all insured
malpractice claims resolved between 1988 and 2002, we saw no evidence of a tort crisis. Adjusting
for inflation and rising population, we arrived at the following findings:
Large claims (with payouts of at least $25,000 in 1988 dollars) were roughly constant in frequency.
The percentage of claims with payments of more than $1 million remained steady at about 6
percent of all large claims.
The number of total paid claims per 100 practicing physicians per year fell to fewer than five in
2002 from greater than six in 1990-92.
Mean and median payouts per large paid claim were roughly constant.
Jury verdicts in favor of plaintiffs showed no trend over time.
The total cost of large malpractice claims was both stable and a small fraction (less than 1 percent)
of total health care expenditures in Texas.
26
In short, as far as medical malpractice cases are concerned, for 15 years the Texas tort system has
been remarkably stable. Texas's situation is not unique. One study of Florida's experience from 1990
to 2003 also found declines in paid claims per 100 practicing physicians as well as per 100,000
population. Over the same period in Missouri, the total number of malpractice claims fell by about
40 percent and the number of paid claims dropped almost by half.
Malpractice premiums have risen sharply in Texas and many other states. But, at least in Texas,
the sharp spikes in insurance prices reflect forces operating outside the tort system.
The medical malpractice system has many problems, but a crisis in claims, payouts and jury
verdicts is not among them. Thus, the federal ''solution'' that Mr. Bush proposes is both overbroad and
directed at the wrong problem.
***
Limiting non-economic damages in Medical Malpractice cases
The following statute was passed by Nevada citizens in response to a petition that was put on the
ballot. It limits non-economic damages in medical malpractice cases. This resulted from a very
political debate in which many including former President Bush and the American Medical Association took the position that there was a litigation explosion that was a primary cause of rising health
care costs. There was concern that medical doctors would leave the state because they were having
trouble getting reasonable medical malpractice insurance.
Nev. Rev. Stat. Ann. § 41A.035 (2009)
41A.035. Limitation on amount of award for noneconomic damages.
In an action for injury or death against a provider of health care based upon professional negligence,
the injured plaintiff may recover noneconomic damages, but the amount of noneconomic damages
awarded in such an action must not exceed $350,000.
Questions
1. What are non-economic damages? What are economic damages?
2. Are any particular groups of plaintiffs harmed more by the restriction on non-economic
damages?
Key Terminology
Standard of care
Medical malpractice
Res ipsa loquitur
Rebuttable presumption
Compensate victims
Deter negligent behavior
27
District court
Informed consent
Conflicting evidence
Credible evidence
McGinley Class Materials
Friday, July 13, 2012
15-16:30
IV. Vicarious Liability
Employers are liable for the torts committed by their employees that occur within the scope of the
employee’s employment. This is called respondeat superior. The employer need not be at fault or
negligent to be liable for the negligence of the employee. The purpose of respondeat superior is to: 1.
Prevent injuries; 2. Assure compensation to victims; and 3. Spread the loss caused by the business
equitably. In other words, the law presumes that respondeat superior will make the employer pay
more attention to how its employees perform their jobs to assure that the employees are not acting
negligently. When there is negligence of an employee, the employee will often not have sufficient
money or insurance to pay the victim, so respondeat superior assures that the victim will be compensated through the greater resources of the employer. Finally, there is loss-spreading because
companies will charge their customers for their products or services enough to cover the cost of insurance and damage payments to plaintiffs. Thus, those who use the products or services will pay to
compensate the victim through the cost of the product or service.
Case law establishes the boundaries of what “within the scope of employment” means. The
courts have interpreted this phrase fairly broadly. Behavior can occur within the scope of employment even if the employer would not, or did not, condone the behavior.
V.
Strict Liability
As we have seen, ordinarily a defendant will be liable for fault that is measured by the defendant’s
intent or negligence. While negligence is the predominant form of tort liability, there are still a
number of situations where the defendant will be strictly liable. Strict liability is liability of the defendant without fault. In essence, American law holds defendants strictly liable for injuries caused if
the activity in which the defendant is a engaging is unreasonably dangerous or a nuisance.
Examples—Nuisance – when the defendant’s use of his or her land substantially and unreasonably invades the plaintiff’s interest in his or her land and affects the plaintiff’s use and enjoyment of
his or her property.
E.g. – the defendant blasts very loud music in a residential neighborhood
E.g. – the defendant operates a pig farm in a residential neighborhood and the smell is awful.
Remedies would include damages but also injunctive relief.
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E.g. – the defendant builds a golf course next to a residential community and the balls enter through
the windows of residents in the community
NB – Many of the nuisances have been controlled by zoning laws.
Unreasonably dangerous activities – blasting of dynamite, dumping of waste, environmental
toxins, etc., will also lead to strict liability.
Historically, certain defendants such as common carriers (trains, airplanes, etc.) and hotels are
strictly liable for injury to their customers.
VI. Products Liability
A plaintiff may sue for injuries caused by defective products if the products are negligently
manufactured or designed. This suit is a common negligence action.
A plaintiff may also sue for injuries caused by defective products using strict liability. In the
U.S., different states apply the products liability law differently. The first recognition of strict
products liability throughout the states occurred in 1965 with the Restatement (Second) of Torts. It
made a manufacturer and seller of a product strictly liable for defects in manufacture, design and
warnings. Note that the Restatement uses the “unreasonably dangerous” standard from other strict
liability cases and applies it to products.
A. Restatement (Second) of Torts 1965
§ 402A Special Liability of Seller of Product for Physical Harm to User or Consumer
(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) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation
with the seller.
Section 402A does not distinguish between manufacturing and design defects. Early on,
however, the courts did distinguish between them. A manufacturing defect or “production flaw” can
occur even if the design is not defective. Under 402A the courts used the “consumer expectations
test” to determine whether a product’s design is defective. As we will see below in the Honda case,
under the new Restatement of Products Liability (Third), a defect in design requires a balancing test
under the risk/utility test.
29
The following case is an example of the Consumer Expectations Test:
LEICHTAMER ET AL., APPELLEES, v. AMERICAN MOTORS
CORP. ET AL., APPELLANTS
No. 80-1354
Supreme Court of Ohio
67 Ohio St. 2d 456; 424 N.E.2d 568; 1981 Ohio LEXIS 602; 21 Ohio Op.
3d 285; CCH Prod. Liab. Rep. P9036
August 5, 1981, Decided
PRIOR HISTORY:
APPEAL from the Court of Appeals for Stark County.
This litigation arises out of a motor vehicle accident which occurred on April 18, 1976. On that
date, Paul Vance and his wife, Cynthia, invited Carl and Jeanne Leichtamer, brother and sister, to go
for a ride in the Vance's Jeep Model CJ-7. The Vances and the Leichtamers drove together to the
Hall of Fame Four-Wheel Club, of which the Vances were members. The Vances were seated in the
front of the vehicle and the Leichtamers rode in the back. The club, located near Dundee, Ohio, was
an "off-the-road" recreation facility. The course there consisted of hills and trails about an abandoned strip mine.
While the Vance vehicle was negotiating a double-terraced hill, an accident occurred. The hill
consisted of a 33-degree slope followed by a 70-foot long terrace and then a 30-degree slope. Paul
Vance drove over the brow of the first of these two slopes and over the first flat terrace without incident. As he drove over the brow of the second hill, the rear of the vehicle raised up relative to the
front and passed through the air in an arc of approximately 180 degrees. The vehicle landed upside
down with its front pointing back up the hill. This movement of the vehicle is described as a
pitch-over.
The pitch-over of the Jeep CJ-7, on April 18, 1976, killed the driver, Paul Vance, and his wife,
Cynthia. Carl Leichtamer sustained a depressed skull fracture. The tail gate of the vehicle presumably struck Jeanne Leichtamer. Jeanne Leichtamer is a paraplegic as a result of the injury.
Carl and Jeanne Leichtamer, appellees, subsequently sued American Motors Corporation,
American Motors Sales Corporation and Jeep Corporation, appellants, for "enhanced" injuries they
sustained in the accident of April 18, 1976. The amended complaint averred that the permanent
trauma to the body of Jeanne Leichtamer and the other injuries to her brother, Carl, were causally
related to the displacement of the "roll bar" on the vehicle.
DISPOSITION: Judgment affirmed
OPINION BY: BROWN
Appellants assert that the instructions of law given to the jury by the trial court improperly submitted the doctrine of strict liability in tort as a basis for liability. The scope of this review is limited
30
to the question of whether an instruction on strict liability in tort should have been given. For the
reasons explained herein, we answer the question in the affirmative.
The doctrine of strict liability evolved to place liability on the party primarily responsible for the
injury occurring, that is, the manufacturer of the defective product. Any distinction based upon the
source of the defect undermines the policy underlying the doctrine that the public interest in human
life and safety can best be protected by subjecting manufacturers of defective products to strict liability in tort when the products cause harm.
We turn to the question of what constitutes an unreasonably dangerous defective product.
Section 402A subjects to liability one who sells a product in a "defective condition unreasonably
dangerous" which causes physical harm to the ultimate user.
The concept of "unreasonable danger," as found in Section 402A, provides implicitly that a
product may be found defective in design if it is more dangerous in use than the ordinary consumer
would expect. Another way of phrasing this proposition is that "a product may be found defective in
design if the plaintiff demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner."
Thus, we hold a cause of action for damages for injuries "enhanced" by a design defect will lie in
strict liability in tort. In order to recover, the plaintiff must prove by a preponderance of the evidence
that the "enhancement" of the injuries was proximately caused by a defective product unreasonably
dangerous to the plaintiff.
A product will be found unreasonably dangerous if it is dangerous to an extent beyond the expectations of an ordinary consumer when used in an intended or reasonably foreseeable manner.
***
The Third Restatement, which was adopted in 1998, has not been accepted by all courts in all
states. It does have a following, however. It makes it much more difficult to prove a design defect
because it uses a risk/utility test instead of a consumer expectation test. The plaintiff has the burden
of proving that the risk of harm was foreseeable and that it could have been avoided by a reasonable
alternative design. This proof often requires expensive expert testimony.
Restatement 3d of Torts: Products Liability, § 2 (1998)
§ 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:
(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;
(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;
31
(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.
In the following case, the court used the Restatement Third’s definition of a product that is defectively designed. This definition is less consumer-friendly. How would this case have come out if
the court had used the consumer expectations test?
HONDA OF AMERICA MANUFACTURING, INC. AND HONDA
R&D CO., LTD., Appellants v. BRIAN NORMAN, INDIVIDUALLY
AND AS SOLE ADMINISTRATOR OF THE ESTATE OF KAREN
LESLIE VIVIENNE NORMAN, DECEASED, AND MARY NORMAN, INDIVIDUALLY, Appellees
NO. 01-00-01263-CV
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
104 S.W.3d 600; 2003 Tex. App. LEXIS 1263; CCH Prod. Liab. Rep.
P16,518
February 6, 2003, Opinion Issued
OPINION
This is a products liability suit. A jury awarded Brian Norman, individually and as sole administrator of the estate of Karen Leslie Vivienne Norman, deceased, and Mary Norman, individually,
(the Normans) $ 65 million in compensatory damages in a suit the Normans brought against Honda of
America Manufacturing, Inc. and Honda R&D Co., Ltd., after the Normans' daughter, Karen Norman, drowned in her Honda Civic automobile. The jury found that a design defect in the car's seatbelt
was the producing cause of Karen's death.
In five issues, Honda argues (1) the evidence was legally and factually insufficient to prove
causation; (2) the evidence was legally and factually insufficient to prove a safer alternative design;
(3) the trial court abused its discretion in admitting unqualified and unreliable expert testimony; (4)
the trial court abused its discretion in admitting evidence of other incidents; and (5) the evidence was
legally and factually insufficient to support the jury's award of "grossly excessive damages, which
were influenced by improper motivations." We reverse and render a take-nothing judgment.
Facts and Procedural Background
The Accident
At approximately 2:00 a.m. on December 2, 1992, Karen attempted to back her car up to turn
around, and she accidentally backed down a boat ramp into the water in Galveston Bay. Her pas32
senger, Josel Woods, was not wearing a seatbelt and was able to get out of the car by crawling out the
passenger side window. After escaping, Woods reached back into the sinking car to get her purse.
Woods testified that Karen was calm and did not appear scared. As Woods was swimming to the
ramp, she heard Karen say, "Help me. I can't get my seatbelt undone." Woods testified that, after she
reached the ramp, she heard Karen yell to her again that she could not get out of her seatbelt.
A dive team located Karen's car at 8:53 a.m. All of the windows were rolled up, including the one
Woods testified she had escaped through, and all the doors were closed. Karen's body was found in
the back seat. An autopsy revealed Karen's blood-alcohol level was .17.
The Car
At the time of the accident, Karen's four-door 1991 Honda Civic was equipped with a two-point
passive restraint system--an automatic seatbelt that was mechanically drawn up over the shoulder
when the door was closed--supplemented with a manual lap belt. The automatic seatbelt fastened
itself with no action on behalf of the occupant. Robert Hellmuth, a former National Highway Traffic
Safety Administration employee, testified that, in 1990, all cars were required to have either a passive
belt system or an air bag.
The shoulder belt on both front seats was attached to a "mouse" that ran along a rail above the
door. When the door was closed, the mouse moved from its starting position, near the front of the car,
along the length of the door and then part-way down the pillar between the front and back doors,
pulling the belt over the shoulder of the driver. When the door was opened or the ignition was turned
off, the mouse moved forward, allowing the occupant to get out of the car. The shoulder belt could be
manually disengaged by pressing an emergency release button located at the juncture of the belt and
the mouse. Like most seatbelts, the shoulder belt was naturally taut across the body, but it was easy to
spool out more belt to allow the occupant to lean forward and/or sideways. If the car experienced
rapid deceleration (such as that encountered here when the car hit the water) or substantial tilting of
the vehicle, however, the belt's emergency locking retractor would engage, preventing spooling of the
belt and holding the occupant in her seat.
The Lawsuit
The Normans sued Honda, alleging that the seatbelt system in Karen's car was defectively designed and prevented her from getting out of the sinking car. The case was retried after the original
trial resulted in a hung jury.
The Normans contend that the emergency locking retractor locked as Karen backed down the
ramp and that she pulled on the door latch, causing the mouse to move and then stall and the seatbelt
to pin her to her seat. Because she was pinned to the seat, Karen was unable to reach the emergency
release button located over her left shoulder. The Normans argue that the evidence showed the
seatbelt system was defectively designed because (1) the mouse was able to move even when the
retractor was locked, allowing the seatbelt to pin an occupant in the seat; (2) the seatbelt, when fully
extended, could not be released easily and rapidly by pressing the emergency release button; and (3)
the emergency release button was improperly located, in that Honda failed to provide an easy and
rapid way to get out of the seatbelt under conditions it knew would occur.
The jury found that Karen was 25% contributorily negligent, awarded Karen's parents $ 60
million in actual damages, and awarded $ 5 million to Karen's estate. The trial court reduced the
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award to $ 20 million for Karen's mother and $ 18 million for Karen's father, and it denied Honda's
motion for remittitur as to the estate.
Design Defect
Safer Alternative Design
The Normans had to prove that an economically and technologically feasible alternative seat belt
and release system was available and would have prevented or significantly reduced the risk of
Karen's death without substantially reducing the utility to the "intended users" of the product--namely, all automobile drivers. If no evidence is offered that a safer design existed, a product is
not unreasonably dangerous as a matter of law. The jury charge read, in part, as follows:
Was there a design defect in the seat belt restraint system at the time it left the possession of
Honda that was a producing cause of the occurrence in question?
A "design defect" is a condition of the product that renders it unreasonably dangerous as designed,
taking into consideration the utility of the product and the risk involved in its use. For a design defect
to exist, there must have been a safer alternative design.
"Safer alternative design" means a product design, other than the one actually used, that in reasonable probability 1. would have prevented or significantly reduced the risk of the occurrence in question without
substantially impairing the product's utility and
2. was economically and technologically feasible at the time the product left the control of Honda
acting by and though [sic] its agents and/or employees by the application of existing or reasonably
achievable scientific knowledge.
Two of the Normans' experts, Thomas Horton, a mechanical engineer, and Kenneth Ronald
Laughery, a human factors expert, testified that there were three potential alternative seatbelt system
designs: (1) the mouse could be on a timer; (2) the release button could be located on the hip level, as
in Toyota cars; and (3) there could be two release buttons - one near the hip and one over the shoulder.
To prove that the mouse timer constituted a safer alternative design to the overhead manual
seatbelt release in the Honda, the Normans had to show that (1) a mouse timer existed or that the
scientific knowledge to produce it was reasonably achievable, and (2) a mouse timer was economically and technologically feasible at the time Karen's car left Honda's control. On cross-examination,
however, Horton admitted that he had never drawn up schematics for a mouse timer system.
Nor did Horton give any testimony to support a finding that, considering all relevant risks, his
alternative design would be safer than the one employed by Honda in that it would not "under other
circumstances impose an equal or greater risk of harm." Horton further testified that he was not
critical of Honda for the location of the emergency release button. In fact, he testified that he was "not
going to express [an opinion] in this case" with respect to the location or functioning of Honda's
emergency release button.
We conclude, based on the record, that the Normans failed to prove that a timer- controlled
mouse was a safer alternative design to the seatbelt system in Karen's Honda.
(2) Toyota alternative--right hip release only
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The Normans contend that, because of her small frame, Karen positioned the driver's seat close to
the steering wheel, which made it difficult, if not impossible, for her to activate the release button
found over her left shoulder on the car frame.
The Normans argue that Kenneth Laughery testified that placing a release button over the left
shoulder of the driver was not sufficient. Laughery testified that, before 1991, at the same time the
Honda system in Karen's car was designed, Toyota was using a release mechanism in the form of a
lever control at the lower right side of the driver that released the emergency locking retractor.
While the use of an alternative design by another manufacturer may establish technological
feasibility, we have held that, as a matter of law, it does not establish economic feasibility. The existence of a technological advancement goes to technological feasibility, while the cost of applying
that technology to a particular design goes to economic feasibility. Evidence of use in the marketplace
alone is not sufficient to establish economic feasibility under Texas law. To establish economic
feasibility, the plaintiff must introduce proof of the "cost of incorporating this technology."
We conclude, based on the record, that the Normans presented no evidence from which the jury
could reasonably find that the Toyota hip-release design would have prevented or significantly reduced the risk of Karen's death without imposing an equal or greater risk of harm under all relevant
circumstances. All of the responsive testimony from the Normans' own expert witness--as from
Honda's--was to the contrary. The Normans, therefore, failed to prove that the right-hip release system was a safer alternative than the shoulder-release system in Karen's Honda.
We reverse and render a take-nothing judgment.
D. Warning Defects
Luis LIRIANO, Plaintiff-Appellee, v. HOBART CORPORATION,
Defendant-Appellant, 616 MELROSE MEAT CORPORATION, s/h/a
SUPER ASSOCIATED, Third-Party Defendant-Appellant.
Docket No. 96-9641(L); 97-7449(CON)
UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
170 F.3d 264; 1999 U.S. App. LEXIS 3634; CCH Prod. Liab. Rep.
P15,466
October 20, 1997, Argued
March 9, 1999, Decided
JUDGES: Before: NEWMAN, CALABRESI, and CUDAHY, * Circuit Judges. Judge Newman
concurs in a separate opinion.
OPINION
35
CALABRESI, Circuit Judge:
We affirm the decision of the district court granting judgment and damages for the plaintiff.
BACKGROUND
Luis Liriano was severely injured on the job in 1993 when his hand was caught in a meat grinder
manufactured by Hobart Corporation ("Hobart") and owned by his employer, Super Associated
("Super"). The meat grinder had been sold to Super with a safety guard, but the safety guard was
removed while the machine was in Super's possession and was not affixed to the meat grinder at the
time of the accident. The machine bore no warning indicating that the grinder should be operated only
with a safety guard attached.
Liriano sued Hobart under several theories, including failure to warn. Hobart brought a
third-party claim against Super. The United States District Court for the Southern District of New
York (Shira A. Scheindlin, J.) dismissed all of Liriano's claims except the one based on failure to
warn, and the jury returned a verdict for Liriano on that claim. It attributed five percent of the liability
to Hobart and ninety-five percent to Super. The district court then held a partial retrial limited to the
issue of whether and to what extent Liriano was responsible for his own injury. On that retrial, the
jury assigned Liriano one-third of the fault.
Hobart and Super appealed, arguing that as a matter of law, there was no duty to warn, and (2) that
even if there had been a duty to warn, the evidence presented was not sufficient to allow the failure-to-warn claim to reach the jury.
DISCUSSION
[Hobart argued that the danger was so obvious that there was no duty to warn].
A. Sufficiency of the Evidence
A warning can convey at least two types of messages. One states that a particular place, object, or
activity is dangerous. Another explains that people need not risk the danger posed by such a place,
object, or activity in order to achieve the purpose for which they might have taken that risk. Thus, a
highway sign that says "Danger - Steep Grade" says less than a sign that says "Steep Grade Ahead Follow Suggested Detour to Avoid Dangerous Areas."
If the hills or mountains responsible for the steep grade are plainly visible, the first sign merely
states what a reasonable person would know without having to be warned. The second sign tells
drivers what they might not have otherwise known: that there is another road that is flatter and less
hazardous. A driver who believes the road through the mountainous area to be the only way to reach
her destination might well choose to drive on that road despite the steep grades, but a driver who
knows herself to have an alternative might not, even though her understanding of the risks posed by
the steep grade is exactly the same as those of the first driver. Accordingly, a certain level of obviousness as to the grade of a road might, in principle, eliminate the reason for posting a sign of the first
variety. But no matter how patently steep the road, the second kind of sign might still have a beneficial effect. As a result, the duty to post a sign of the second variety may persist even when the danger
of the road is obvious and a sign of the first type would not be warranted.
One who grinds meat, like one who drives on a steep road, can benefit not only from being told
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that his activity is dangerous but from being told of a safer way. As we have said, one can argue about
whether the risk involved in grinding meat is sufficiently obvious that a responsible person would fail
to warn of that risk, believing reasonably that it would convey no helpful information. But if it is also
the case - as it is - that the risk posed by meat grinders can feasibly be reduced by attaching a safety
guard, we have a different question. Given that attaching guards is feasible, does reasonable care
require that meat workers be informed that they need not accept the risks of using unguarded grinders? Even if most ordinary users may - as a matter of law - know of the risk of using a guardless meat
grinder, it does not follow that a sufficient number of them will - as a matter of law - also know that
protective guards are available, that using them is a realistic possibility, and that they may ask that
such guards be used. It is precisely these last pieces of information that a reasonable manufacturer
may have a duty to convey even if the danger of using a grinder were itself deemed obvious.
Consequently, a jury could reasonably find that there exist people who are employed as meat
grinders and who do not know (a) that it is feasible to reduce the risk with safety guards, (b) that such
guards are made available with the grinders, and (c) that the grinders should be used only with the
guards. Moreover, a jury can also reasonably find that there are enough such people, and that warning
them is sufficiently inexpensive, that a reasonable manufacturer would inform them that safety guards
exist and that the grinder is meant to be used only with such guards. Thus, even if New York would
consider the danger of meat grinders to be obvious as a matter of law, that obviousness does not
substitute for the warning that a jury could, and indeed did, find that Hobart had a duty to provide. It
follows that we cannot say, as a matter of law, that Hobart had no duty to warn Liriano in the present
case.
Key Terminology
Vicarious liability
Respondeat superior
Strict liability
Nuisance
Unreasonably Dangerous Activities
Products liability
Manufacturing defects
Design defects
Legally or factually insufficient evidence
Court abused its discretion
Contributory negligence
Motion for Remittitur
Technological feasibility
Economic feasibility
Warning defects
VII.
Remedies
C. Compensatory Damages
D. Punitive Damages
From Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate over
37
Tort Reform, 26 Cap. U. L. Rev. 701 (1997) (footnotes omitted).
B. Liebeck v. McDonald's Restaurants
In February 1992, Stella Liebeck ordered coffee at the drive-thru window of a McDonald's located in Albuquerque, New Mexico. At the time, she was 79 years old. She was a passenger in her
grandson's car. After receiving the order, her grandson pulled the car forward and stopped to allow
Liebeck to add cream and sugar to her coffee. She placed the cup between her knees. As she removed the lid, the contents of the cup spilled into her lap. The coffee was extremely hot-somewhere
between 180 and 190 degrees. It was absorbed by the sweatpants she was wearing, causing third
degree burns on her thighs, buttocks, and groin. Third degree burns extended through the full
thickness of the skin to the subcutaneous fat, muscle, or bone. Ms. Liebeck was hospitalized for
eight days during which time she underwent skin grafts. She was permanently disfigured and disabled for two years following the accident. She informed McDonald's of her injuries and asked that
McDonald's pay her medical bills of approximately $11,000. They refused. Subsequently, she
retained S. Reed Morgan as her attorney. His request for $ 90,000 to cover her medical expenses and
pain and suffering was likewise rejected by McDonald's.
In 1993, Mr. Morgan filed a complaint on behalf of Ms. Liebeck alleging that the coffee she
purchased was defective, first, because of its excessive heat and, second, because of inadequate
warnings.
In addition, punitive damages were sought based upon the allegation that McDonald's
sold the coffee with conscious indifference for the safety of its customers. As the trial approached,
Mr. Morgan offered to settle the case for $300,000, but would have settled for half as much. Just
days before the trial, a mediator recommended a $ 225,000 settlement. McDonald's refused these
attempts at settlement. The case went to trial in August 1994. Apparently, McDonald's believed
that most people would blame the accident on Liebeck's carelessness rather than on the temperature of
the coffee.
A good deal of the testimony at the trial dealt with the temperature of the coffee and the injuries
that would be caused by coffee served at various temperatures. During the trial, Christopher Appleton, McDonald's quality assurance manager, testified via videotape that McDonald's actively enforces a requirement that coffee be served at 185 degrees, plus or minus five degrees. He also admitted that its coffee was not "fit for consumption" because it would cause scald injuries to the mouth
and throat if drunk by the consumer:
A McDonald's expert stated that any coffee hotter than 130 degrees could produce third degree
burns; therefore, it did not matter whether McDonald's coffee was hotter. But Charles Baxter, the
plaintiff's expert in thermodynamics as applied to skin burns, testified that liquids will cause full
thickness burns to skin in two to three seconds at 190 degrees, in 12 to 15 seconds at 180 degrees, and
in 20 seconds at 160 degrees.
Lila Laux, plaintiff's warnings expert, testified that although people know coffee is hot, they do
not know how severe burns can be and that McDonald's should have included warnings of the risk of
severe burns.
McDonald's documents produced at trial revealed that there had been 700 complaints of coffee
burns in the prior decade. McDonald's knew that its coffee was very hot, but their market research
told them that customers "want hot coffee, they want it steamy hot, and they expect to get it that way."
After weighing all the evidence, the jury determined that Liebeck's injuries merited an award of $
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200,000 compensatory damages and $ 2.7 million in punitive damages for a total of $ 2.9 million.
However, the compensatory damages figure was reduced, because the jury found Liebeck's comparative negligence to be 20 percent because she placed the coffee in her lap. Thus, the compensatory damage award was reduced to $ 160,000. In addition, the jury awarded Liebeck $ 2.7 million
in punitive damages, based on its finding of willful, reckless, malicious, or wanton conduct. The
figure was derived from evidence the jury heard about McDonald's daily coffee revenues of $ 1.3
million. The punitive damages represented approximately two days of McDonald's coffee revenues.
However, this amount was reduced by the trial court to $ 480,000 or three times the compensatory
damages for a combined award of $ 640,000 in damages.
Judge Scott ordered a post-verdict settlement conference that resulted in a confidential settlement
of the case for an undisclosed amount. The case was dismissed with prejudice on November 28, 1994.
The following notice is now posted at many McDonald's drive-thrus: "Coffee, tea and hot
chocolate are VERY HOT!" and the lids of cups are embossed with a warning: "HOT! HOT! HOT!"
C. Legislation
Spilled coffee and other anecdotal evidence has been used to support a variety of legislative tort
reform proposals.
A majority of states have statutory or judicial prohibitions or limitations on punitive damages.
Two states have adopted a fixed ceiling. Many other states limit punitive damages to the higher of a
multiple of compensatory damages, such as three times compensatory damages, or a fixed amount,
such as $ 250,000. Other states limit punitive damages to the lesser of a multiple of compensatory
damages or a fixed amount. One state limits punitive damages to the defendant's annual gross income.
Several states provide for higher caps in cases of severe injury or in cases where the defendant's actions were intentional, malicious, or motivated by financial gain. There are also states that provide for
different caps depending upon whether the defendant is a large or small employer. In addition, many
states have imposed evidentiary standards for the imposition of punitive damages or the applicability
of higher ceilings thereon, such as clear and convincing evidence or proof beyond a reasonable doubt
of intentional, malicious, or reckless conduct. A number of states provide for bifurcated trials upon
request of either party or of the defendant. Several states have enacted laws redirecting a portion of
punitive damages to a state fund.
Punitive damages are not the only area of legislation. Many states have statutory caps on
non-economic damages and statutes of repose which bar suits after a specified number of years
from the date the product is placed in commerce. There are also state laws and proposals to change
state laws which eliminate, in whole or part, joint and several liability for non-economic damages,
provide for payment of legal fees by the party losing a case, limit contingency fees, pre-judgment
interest, require disclosure of settlements, impose strict statutes of limitation, limit collateral benefits, penalize those who file frivolous suits, require structured settlements, and limit jury awards based
on settlement offers.
Key Terminology
Comparative negligence
Anecdotal evidence
Tort reform proposals
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Statutory caps
Non-economic damages
Contingency fees
Statutes of limitation
Bad faith
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