Torts analytical frameworks
negligence:
Duty?
-general duty of care under CL? (exercise the care that a "reasonable and
prudent person would under same/similar circumstances to minimize or
avoid risks of harm to others")
-established by a statute? (think negligence per se) or custom?
Breach?
-did D exercise due care that a reasonable person would under the
circumstances?
-does D have any excuse/defense for violating the duty?
-if yes, there may not be a breach
- Polycentric issue: by protecting one group more, you risk greater injury
for another group. (does this go in this category?)
Harm?
Cause-in-fact?
-which test better applies? but-for or substantial factor?
Proximate cause?
- does the scope of risk deem the harm foreseeable?
-if intervening factor, was it foreseeable such that the damage is still
within the scope of risk and therefore D is still proximate cause?
-normally liable only for foreseeable damages, except:
1) unexpectedly large physical injuries (take P as you find him;
thin-skulled P)
2) D liable for injuries to even an unforeseeable rescuer (rescue
rule), unless rescue performed in grossly careless manner
3) caused by manner of known danger, but in unforeseeable way1
4) injury not foreseeable, but P part of general class to which a
duty is owed
strict liability
trespass
trespass on case
cattle cases
nuisance:
1) was there interference w/P's use and enjoyment of land?
non-natural use of land: Rylands v. Fletcher
non-natural use has a lot to do with
1. customary local uses of land
1
drop gun on foot of Y and discharges and shoots P. D is liable for discharge of gun and injury to P
(foreseeable that guns shoot) but not for injury to Y (not foreseeable that gun would be dropped). I.e., same
general sort of injury, but in an unusual manner; aka, "unforeseen intervening causes but foreseeable result"
2. local economic interests (e.g., in coal mining country,
coal mining might be considered a natural use of the land)
abnormally dangerous, ultrahazardous activity on D's land:
1. strict liability for all consequence that stem from that
activity
if proximate cause or cause in fact issue cut off
liability?
Yes: go to a negligence action
2. direct contact from that activity not req'd for liability
Defense:
did P assume the risk?
vicarious liability
a form of strict liability – justified by enterprise liability theory
course and scope of employment creates liability (triggering factor)
1. serve employer's purpose
2. motivating emotion for act arise from job
3. job created the relationship between P and tortfeasor
exceptions:
going and coming rule (unless employer pays transport)
-seeking employees beyond normal labor market
increases risks in transit
frolic and detour
if personal act overlaps w/scope of employment, employer is liable
borrowed servant rule
the one whose business is "being done" is the one liable
independent contractor (normally, employer not liable because no control over
method in which work performed, only final product)
exceptions:
apparent agency
-P must have relied on this appearance
dangerous activity creating a non-delegable responsibility
-non-delegable respons includes statutory2 duties to provide
safety protections
landowner in possession of land
2
group all statute related shit together in a list
products liability
A. Origins of R2T §402-A and R3T §§1-3
1. inadequacy of the negligence cause of action
a. when product is faulty, we can assume negligence by someone
2. inadequacy of the warranty cause of action
a. privity problem
B. Scope of recovery pursuant to strict liability in tort (Moorman)
1. economic loss only of broken product – recovery in warranty
2. other property damage and personal injury – recovery in tort
a. recovery only if injury from sudden or dangerous occurrence
b. economic loss treated as a parasitic damage to §402A action
(633n2)
C. Scope of liability under §402A and R3T
1. defective product – manufacturing flaw (mismanufactured product)
a. i.e., product in general is fine, but a particular one is broken
i. deviates from the standard of like products
b. Prima Facie case:
i. product was in a defective condition and unreasonably
dangerous for its intended use and
ii. such defect existed when the product left D's control
iii. defect was proximate cause of injury sustained
vs.
2. design defect; defectively designed if:
i. product falls below consumer expectation
a. unreasonably dangerous product design must:
1. proximately cause or enhance P's injuries
2. P's use of product was foreseeable use
b. product is unreasonably dangerous if:
1. falls below consumer expecation of safety for
intended or foreseeable use
OR
ii. risk/utility analysis shows a defect
a. it is deemed defective if: "the benefits of the challenged
design do not outweigh the risk inherent in such design.":
risk-utility balancing (cf. B<PL)
i. polycentrism applies too
b. usually must show a RAD (reasonably alternative
design)
i. expert testimony for this often
ii. R3T adds exception: some product designs are
"manifestly unreasonable" because of their
negligible utility and high risk of danger, and so
defectiveness can be found even without a
reasonable alternative (e.g., dangerous toy gun)
c. any regulatory standard simply proposes a "minimum"
standard
iii. Barker v. Lull test moves the burden to D on risk/utility
analysis if P shows design proximately caused the injury
a. much closer to strict liability than most jurisdictions
iv. design defect must have been knowable at time of manufacture
3. failure to warn
a. failure to properly instruct how to use product or explain its
general use
b. is the warning or instruction clear, visible and appropriately
listed in instructions?
c. Is the warning necessary if risk or hazard is obvious?
i. Possibly: the warning would then have to explain a way
to avoid the danger or lessen the risk, rather than simply
name the obvious danger (eg, Liriano).
d. Test to determine liability for failure to warn: negligence test
e. Causation: did failure to warn cause injury
i. deeming presumption
1. Must produce evidence that warning would have
been heeded had there been a warning in existence3
A. We assume that a reasonable P would
have heeded the warning; burden shifts to
D to show lack of warning was not but-for
cause of injury
ii. can that be rebutted
D. Comparative Fault, Assumption of Risk, Misuse [most confusing area of PL]
a. assumption of risk as a bar to recovery
i. that is, a "voluntarily and unreasonably proceeding to
3
similar to cause-in-fact req for malpractice
encounter a known danger" is an affirmative defense
BUT
b. contributory negligence as no defense in products cases
i. comment n, R2T §402A (see p. 677)
a. no defense "when the negligence consists merely
in failure to discover the defect or to guard against
the possibility of its existence"
i. some courts retain comment n conduct as
a bar, but other forms of contributory
negligence will permit D to reduce P's award
(680n4)
e.g., door latch on car defective, but
driver is drunk and speeding when he
gets into a crash. These second two
issue are not comment n conduct
2. Misuse of a Product as an issue of Proximate Cause (Hughes)
Q: "Was it a product defect or P's misuse that caused (proximate cause
issue) the injury?"
a. P's misuse as determinative of defect
i. if misuse was reasonably foreseeable by D, then there
was a defect (of failure to warn)
ii. if misuse was not foreseeable, the D owed no duty to P
to design product differently
1. Misuse is not an affirmative defense, but rather is
part of P's prima facie case.
2. to dispute, D must show that D could not
reasonably foresee the misuse; therefore, key is
what could be known from the vantage point of
the manufacturer
b. manufacturer's duty to anticipate reasonably foreseeable misuse4
AND
c. third party misuse or alteration as basis for cutting off D's
liability (how to draw the line for liability)
i. this occurs when the 3rd party can be determined to be
the "sole proximate cause of P's injury."
1. e.g., when product left factory, it was in a safe
4
Therefore, parts a and b are an exclusive binary. This is a proximate cause issue. Either the D should
have reasonably foreseen the misuse and guarded against it or P's misuse was not foreseeable and the D
had no duty/power to guard against it. That is, who is the proximate cause of P's injury!
condition; if end user modifies it, then they are a
superceding cause, "putting product to a use other
than that foreseen by manufacturer."
how do we know when to treat P's actions as misuse or when to treat it as comparative
fault/contributory negligence?? D wants to use it as misuse and thus convert it to an allor-nothing concept.
def. "misuse" = a use not foreseeable by D
3. Sale vs. provision of service: where does strict liability apply?
a. provision of permanent wave vs. use of defective hypodermic
needle (Newmark)
i. to trigger §402A liability, one needs to have a sale
ii. court says if a product is sold but included in a bill for
overall service, it is still a sale
iii. exception: when the person offering the service is a
professional (such as a dentist who uses products with due
care that may nevertheless fail and cause injury)
1. policy: protect professionals from as much
liability as possible
b. used goods
c. provision of blood: sale or service
i. United Blood Services: a "great" review case
a. P must sue under negligence theory, rather than
strict liability, because statute prohibits strict
liability5 because blood providers are considered
medical professionals who are providing a service
b. review issue: standard of due care is that of the
profession, but this standard is rebuttable (cf.
custom and Carrol Towing).
c. compare also to medical malpractice
4. government preemption
a. in the context of federally-mandated warnings
i. Cippollone
ii. preemption emerges where there is a conflict between
federal law and state CL strict liability (federal law always
trumps)
b. in the military procurement context
i. use of gov't discretion to give design specs means that
5
Note statute as an exception to strict liability, just as statute can create a duty of care. In this suit, we must
go on the CL negligence theory. If unclear that something is a sale or provision, then argue both sides,
suggest that a statute may exist. Also, use a policy argument: if raising liability would hurt a public
good, then it probably will not be a sale (e.g., making blood a sale rather than provision would subject
them to massive liability and might harm the public good).
state law is preempted re: defective product design if
contractor meets those specs [review in Emmanuel]
ii. preemption relates to design defects or warnings; but not
manufacturing defects!!
intentional torts
1. battery
-D intend to cause harmful or offensive contact
a. intent to make contact and
b. intent contact to be harmful/offensive
(NB: dual intent for battery)
c. reckless, wanton misconduct
d. capacity to formulate intent
capacity is affected by: infancy; mental impairment (e.g.,
Alzheimer's)
-harmful or offensive contact results to P
offense: offends a reasonable sense of personal dignity
-must be contact
2. assault
- D's intends
-to place P in imminent (not future) apprehension of contact (not words
alone) and . . .
-P is placed in apprehension
(i.e., what did the D intend? what did the P apprehend?)
3. false imprisonment
-D must confine the P
-must be confined within boundaries fixed by the actor
-P must be conscious of the confinement or is harmed by it (bad motive or
offense is not necessary on the part of the actor)
-Confinement can be done by physical barriers, threats (implicit
or explicit) of physical force, or on a false assertion of legal authority to
confine
The role of "harm" in false imprisonment
False imprisonment is a trespassory tort, so the plaintiff can
recover damages even if she sustains no actual harm. [Also, if
unaware of confinement and sustain actual harm, then false
imprisonment actionable, but only if harm sustained.]
4. torts to property
trespass to land
-intentional entry on the land of another
-despite the fact that no trespass was intended.
conversion of chattels
-intentional exercise of dominion or control over a chattel
-which so seriously interferes with the right of another that
-the actor may justly be required to pay the other the full value of
the chattel.
trespass to chattel
-intentional dispossessing of another of the chattel or
-using or intermeddling with a chattel in the possession of another.
5. civil rights claims – title 1983
person charged with violation must be acting under “color of law”
-test of violation
4th Amendment
unreasonable, search and/or seizure
th
14 Amendment
shocks the conscience of the court
8th Amendment
cruel, unusual punishment