TORTS OUTLINE
Torts
Three Liability Theories
1.
Negligence: the failure to exercise reasonable care under the circumstances.
Negligence is conduct, which falls
below the standard established by law for the protection of others against unreasonable
risk of harm;
2. Strict Liability: liability without fault; and
3. Intentional tort: Intending the consequences gives rise to intentional tort.
a. Desires to deter, deliberately creating consequences that could hurt other people. Let
other people
know of the dangers.
b. Physical integrity: deter people, punish.
Negligence
Prima Facie Case: duty; breach; causation; and damages:
It is a reasonably foreseeable risk. The risk is likely, but not always certain. If
unforeseeable, may not
be able to recover.
a.
Subjective standard: What the reasonably prudent person would do.
b. Objective standard: Look at group of people and compare individuals to that group.
Reasonable care in light of the risk.
Causation: Defendant must have caused plaintiff’s injury;
Damages: Physical or psychological.
Proof of Negligence
1. Real evidence (documentary)
2. Direct evidence (eye witnesses)
3. Circumstantial evidence (create inference of what happened usually b/c there is an
evidentiary problem).
General Rule: All persons are under a duty to conduct themselves in all of their diverse
activities so as not to create
unreasonable risk of physical harm to others.
In negligence, the actor does not desire the injurious consequences of his conduct; he
does not know that they are
substantially certain to occur, nor believe that they will. There is a merely a risk of such
consequences, unlike
intentional torts.
Defenses to Negligence
1. Contributory negligence;
2. Comparative negligence;
3. Multiple parties (fault compared to others);
4. Assumption of risk (express or implied).
a. Implied assumption of risk – the conduct must manifest consent, and the risk must be
encountered;
voluntarily; and with full knowledge and appreciation of the danger (Note: a pedestrian
who dashes out into
path of speeding car, fully aware of risk, does not manifest his consent to relieve driver of
his obligation to
exercise reasonable care for pedestrians safety, nor of his liability for failure to do so.
Actor demands that
care be taken for his safety. He may be contributory negligent, but does not assume the
risk).
Contributory Negligence
Behavior on the part of an injured P falling below the standard of ordinary care that
contributes to the defendant’s
negligence, resulting in P’s injury, which completely bars P’s recovery. Reasons for this:
administerability, judicial
expediency, avoids necessary of apportionment. Contributory negligence will lessen or
reduce plaintiff’s damages and
may even defeat claim entirely. Contributory negligence is an affirmative defense. The
defendant has the burden of
showing evidence. The old rule was contributory negligence was a complete bar to
recovery.
Prima facie case
1. D has to show that P created reasonable foreseeable risk to himself;
2. P failed to take reasonable care; and
3. P failure to take reasonable care was a cause in fact and proximate cause of the injury.
Butterfield v. Forrester p.308 (Plaintiff rides horse negligently through town at dusk).
Hits obstruction created by
defendant. Plaintiff doesn't see it, his negligence constitutes contributory negligence and
is intervening cause. He can't
recover.
Gyerman v. United States p. 313 (Plaintiff hurt performing dangerous task at work.)
Employer alleges cont. neg. by
saying plaintiff negligently did not get himself excused by complaining to boss.
Defendant didn't show that it would
have made much of a difference if plaintiff had complained; boss may have told plaintiff
to keep working. Defendant
failed to show plaintiff's behavior was substantial contributing factor to the injury.
Exceptions to complete bar (even if the P was negligent)
1. D has a mental disability and doesn’t know consequences of actions
2. D was more reckless than P in conduct
3. D had the “Last Clear Chance” to avoid the injury (see page 19 of outline for
definition).
4. If P broke a statute b/c it was safer to do so (Tedla v. Ellman).
Defenses
1. Comparative Negligence;
2. Modified Comparative Negligence;
3. Pure Comparative Negligence;
4. Assumption of Risk;
Comparative Negligence
A great majority of jurisdictions have adopted some form of comparative negligence in
an attempt to abolish
the doctrine for a complete bar to recovery. P is allowed to recover damages, which are
reduced by the percentage of
negligence attributed to P. However, it is often difficult to calculate apportionment,
could be pure or modified (jury
decides).
(a) Comparative Negligence: P is allowed to recover his or her damages reduced by the
percentage of
negligence attributed to the plaintiff (ex. if recovery is $50,000 and P 20% at fault,
recovery is reduced to by 20%, i.e.,
$40,000).
(b) Pure Comparative Negligence, when P who is 75% at fault, P recovers only 25%
damages from D who is 25%
at fault. However, this approach leads to a lot of litigation.
(c) Modified Comparative Negligence: P who is guilty of contributory negligence, may
recover under modified
approach, so long as negligence was not as great as D, then P can recover. That is, P
must be at 49% at fault or less;
If P is 49% at fault, recovers 51% from D. P’s negligence must not be equal to or greater
than Ds, or else total bar. With
this approach, both parties recover (no offset) b/c it is unfair to leave an injured party
without “compensation.”
i. Arguments against modified: Party more at fault must bear his loss and others. Chaos if
multiple
parties where P is greater than D1 but less than D2; P who is at fault may recover under
last chance rule.
(d) Assumption of Risk: It must be shown that P failed to exercise reasonable care, and
that such lack of due
care contributed proximately to P’s injury. This requires proof that the P knowingly
entered into, or stayed in, a position
of danger. This defense prevails despite the fact that the P’s entering into a position of
danger, or staying in a place
which has become dangerous, was reasonable under the circumstances. This differs from
negligence in that it is
subjective and requires knowledge of the danger/risk, and that P reasonably assumes risk,
i.e., amusement park rides.
Murphy v. Steeplechase Amusement Co. (Injured on Flopper). P was aware of the nature
of ride and the risk/consequences
involved and thus, assumed the risk. However, if P assumes the risk even if he does not
know the risks, but should have
known, i.e. baseball parks. See Davidoff v. The Mets (P sat behind 1st base dugout and
got hit with a foul ball). It is
common knowledge that foul balls might be hit in that direction. It is not practical to put
up a screen all the way around.
Note: To end your discussion of assumption of risk mention that assumption of risk does
not preclude recovery and
mention that in CA they merged Contributory Negligence with Assumption of Risk into
comparative negligence. See
Gonzalez v. Garcia.
Arguments AGAINST assumption of risk-not good for people to give up all rights they
otherwise have. One goal of Tort
law is to prevent accidents, assumption of risk goes against this.
Hammontree v. Jenner (Seizure while driving) An accident caused by a force outside
one’s control will not lead to
liability if the D had seizures but exercised his due care by taking medicine. However, if
the D knew or should have
known that due care was required and didn’t do anything, then he is liable
Avoidable Consequences
Even if the accident was D fault, P’s recovery might be reduced by a failure to exercise
due care to mitigate the
harm done (in other words, if P took steps to mitigate damages, then P not negligent).
Violation of Statute - Negligence Per Se
Prima Facie case of negligence per se:
Violation of safety statute, which exists to protect others (applicable to someone in the
position of
defendant’s class);
Statute must have safety purpose (to protect other people);
Statute was meant to protect a class of people (injured person must fall within class that
was meant to
protect);
Injury was the type the statute meant to protect;
The violation was the proximate cause of the plaintiff’s injury.
Example: If keys are left in ignition outside school and someone steals the car and hits
third person, the owner of car
who left keys in car can be held liable under negligence per se. However, if the car was
in a suburban driveway, the
Court might try hard to say that the risk was minimal.
Example: If blood alcohol was substantially above legal limit; not wearing seatbelt.
If you were doing what you were supposed to do, there is no fault and the plaintiff loses.
If found negligent, the
defendant pays loss.
Rule: The breach of a statutory duty to a member of the protected class is negligence per
se.
Telda v. Ellman pg. 251 P walks on wrong side of road, according to statute, and is hit by
speeder. Example of court
inventing an implied exception to a statute to relieve the plaintiff of a charge of
contributory negligence per se. Court
rules that common law says that if traffic is heavier in the oncoming lanes, the statute can
be violated and one can walk
with the traffic. Today, no such tricks of the law would be necessary because there is
comparative negligence.
Comparative fault: Some states reduce P’s recovery in strict liability cases by an amount
distinguishing those injuries
caused in part by P’s own carelessness. This is where the jury determines who was most
at fault and then decides
damages based on who was more negligent. Even though the peddlers were negligent per
se. See page 2 of Outline.
Ross v. Hartman pg 257 Truck driver leaves his keys in truck, truck is stolen and an
innocent party is injured
Note: Courts can also find subsidiary victims as well. (If a third party is harmed by a
party who violates a statutory
regulation.) Osborne v. McMasters pg. 245 druggist who sells mislabeled poison;
Stimpson v. Wellington pg 247 Truck
driver without permit damages underground pipes. Court finds subsidiary purpose in
permit statute that was meant to
protect roads in order to establish negligence per se. Sometimes the court finds
subsidiary victims, as in a case where
a driver doesn't get car inspected and hits people in a building; statute only mentions
protecting pedestrians, but driver
liable to injuries for people in building.
Defenses (subsidiary escape clauses):
1. Statute wasn't designed to protect this kind of victim.
2. Statute wasn't meant to prevent this kind of injury/damage.
3. Some states write into the statute that it can't be used to establish negligence per se.
Martin v. Herzog p. 250: P’s failure not to have lights on is negligence per se as it
violated an existing statute.
Cordoza held that this is not evidence (like custom), it is negligence. Rule: unexcused
failure to perform a statutory
duty is negligence per se.
Osbourne v. McMasters p. 245 (poison without label): Rule: The breach of a statutory
duty to a member of the protected
class is negligence per se.
Stimpson v. Wellington Service Corp. p. 247 Heavy trucks should not be allowed to drive
on the streets in order to
protect the streets from the weight of the trucks. There was a secondary purpose to
protect the pipes under the streets
and the adjacent homes. As an attorney, we can look at the general safety purpose and
find the subsidiary purpose that
may be covered.
Ross v. Hartman p. 257 Truck driver leaves his keys in truck, truck is stolen and an
innocent party is injured. The Court
held “that the conduct of defendant or his agent was negligent precisely because it created
a risk that a third person
would act improperly.”
Negligence Per Se – Minority View
Violation of statute is only evidence of negligence. Therefore, it is up to jury to decide,
but there are two exceptions:
a. You may violate a statute, if it’s safer for you to violate it. Tedla v. Ellman p. 251
The peddlers violated the
statute by walking against traffic, but the driver was driving too fast and swerved hitting
them (negligence per se). The
Court held implied exception: When the traffic is going with you is heavy, then you
should walk facing them so that you
can see the oncoming cars. This was not in the statute. The court reached to get this
decision so that they would not
hurt the innocent party injured.
b. Statutory purpose does not cover the harm that occurred. De Haen v. Rockwood
Sprinkler (Man killed by
falling radiator in a elevator shaft); P says violated statute for placing bars around the
shaft, but the Court said that
statute intended to protect people from falling down it, not radiators.
Foreseeability - Social policy: promote entrepreneurship v. preventing unintentional
victims
Stone v. Bolton (woman hit on head by cricket ball): Risk must be reasonably
foreseeable, not just conceivable. If the
risk wasn't reasonably foreseeable, then the p must bear the risk, and the case ends. If the
risk is reasonably foreseeable,
then we must ask if reasonable care was taken. Court holds that the risk that Stone would
be hit was so slight that it
wasn't reasonably foreseeable and that the park was not negligent in failing to protect
against such a risk.
Hammontree v. Jenner (Epileptic has seizure while driving and drives car into store and
injures Jenner and damages
shop.) Last seizure was 20 years before, so risk was not reasonably foreseeable.
Scott v. Shepherd: (Squib case) (1773) Argued on basis of "trespass" v. "trespass on the
case," but today could be
argued as negligence, intentional tort, or strict liability, but most likely would be argued
as a negligence case.
Reasonable Care
RPP standard of care (Reasonably Prudent Person) In general, we hold people to a
general RPP standard, which is an
objective standard. Under RPP, we look at a group of regular people and ask what they
would normally do under similar
circumstances. We never use subjective standards (where the reasonableness of a
person's behavior is judged in terms
of what is reasonable for him in light of his ability) because of administerability,
consistency, and predictability issues.
(TJ Hooper).
Blythe v. Birmingham: Water pipes burst during rare severe winter. Defendant town was
not found negligent because
reasonable care was taken. To prove negligence, there has to be unreasonable care. We
don't eliminate risks, even
if they are foreseeable, as it would be prohibitively expensive for many.
Eckert v. Long Island RR: Good Samaritan case where plaintiff gets hit by train trying to
rescue boy he thinks is in
danger. Great risks can be reasonable if benefits warrant the risk.
Cooley v. Public Service Co: Plaintiff is injured while talking on the phone when a
severe storm downs one of PS's
lines. It is OK to leave a risk to an activity to avoid a greater risk.
United States v. Carroll Towing Co: Barge attendant abandons barge for 21 hours. In the
interim, barge broke loose
and struck and sunk plaintiff's barge. First time reasonable care formula is expressed in
algebraic terms, i.e.,
"expected loss formula." Person will be found liable if the cost of prevention was less
than the cost of the accident,
where the cost of the accident is calculated by multiplying the "probability of loss" by the
"severity of loss." B<P x L.
Or vice versa. This is also a contributory negligence case.
(Hand formula - B<PxL)
Burden < Probability x Loss / severity. If this is the case, then there is negligence.
Burden > Probability x Loss Then there is no negligence.
(If cost of avoiding accident is less than probability of an accident occurring, multiplied
by magnitude of loss, D
should take precautions to avoid accident B<PL; If cost of avoiding accident is more than
probability of accident
occurring multiplied by cost of accident, D should not pay cost of taking precautions to
avoid that accident B>PL).
Rule: the risk of injury is so low and the cost of an alternative method is high, D conduct
is considered reasonable.
Andrews v. United Airlines: Plaintiff injured when luggage fell from overhead bin.
Common carriers (warehouses,
airlines, etc., bailees of things and people) are held to a higher standard of care. Almost
as high as strict liability,
except plaintiff has to point out something that wasn't done or could have been done.
Brown v. Kendall: Parties attempt to separate two fighting dogs with a stick and
accidentally hits someone. Case
illustrates principle that people have just as much responsibility to exercise care for
themselves. This case marks the
transition from directness (historical trespass approach/strict liability) to modern
negligence approach.
RPBP--Reasonably Prudent Blind Person
Court creates separate standard for blind and handicapped people for many of the same
reasons as they do for children,
fairness, administerability, deterrence, etc.
Lyons v. Midnight Sun Transportation Services: Truck driver swerves to avoid accident
but instead exacerbates
situation. Court relieves him of liability under Sudden Emergency Doctrine, which says
that people will only be expected
to act as others would in similar emergencies. RPP standard has made this doctrine
redundant.
Reasonable Care by Experts
Quintal v. Laurel Grove Hospital: Kid is a vegetable after going into hospital for eye
operation. Heart and breathing
stopped. Majority makes mistake of finding general negligence. Traynor concurring
opinion and Latin say that a specific
behavior has to be found negligent, for example, failure to have an emergency plan. Case
also shows the need for expert
testimony to judge another expert's behavior.
Lucy Webb Hayes National Training School v. Perotti Plaintiff jumps through glass
window of mental hospital and dies.
Court rules that hospital failed to meet their own standards. If no standard, you need
expert testimony to see what the
standard is.
Custom
A defense that professionals can use to shield themselves from charges of negligence.
Used to illustrate reasonable care
for professionals in their industries, such as doctors. "Reasonable care" means what is
widely used in that industry, not
what is good. If the custom is common knowledge or widely used, expert testimony is
not allowed. Custom was binding
in all industries in the past. If there are no customs, then experts will argue as to what
should have been done (expert
testimony). A custom is only evidence of a practice, it is not conclusive.
1. Shield - by defendants (binding) and
2. Sword - by plaintiff (admissible but not binding)
Treatment of Custom:
Inadmissible: Cannot bring in what people in industry normally do.
Admissible but not binding: Custom not good enough, must bring in expert testimony as
well.
Binding: Need expert witness, if no industry standard.
Titus v. Bradshaw (Shield case) p.201 (Big train on small tracks).
Mayhew v. Sullivan Mining Co. p. 204 (Unmarked hole in dark mining shaft) The Court
ruled if the risk is created by
industry and wholly understood by laypeople, then custom cannot be used as a shield
against liability.
TJ Hooper (no radio transmitter on the boat) p. 205. Not a custom case. L. Hands obiter
dictum changed rule of custom
is binding to custom is admissible. Note: Custom is still binding in medical malpractice.
Note: Statutes and regulations help to establish or define reasonable care. Example:
State speed limit.
Minors (Reasonably Prudent Child)
Children and incompetents are responsible for their torts. Where the plaintiff or defendant
is a minor, the test is, what
is reasonable conduct for a child of the actor’s age, intelligence, and experience. In many
states, children below seven
are legally incapable of negligence. This is a separate standard, which is devised in order
to discourage children from
taking risks. On fairness grounds, we, as a society, tend to be more favorable toward
children than dumb people.
Predictability and consistency are also important to the court. Exception to Rule: If a
child is engaging in an adult activity
(flying an airplane or driving car), the actor will be held to adult standard.
Note: Parents are responsible for their own negligent behavior (negligent supervision of
child), but are not responsible
for the child's. You can sue the child if he was negligent under RPC standard.
Strict Liability (no fault liability)
Acts that are sufficiently unusual risks that the law requires them to be carried on at the
actor’s peril. Certain activities,
for reasons of social policy, may be conducted only if the person conducting them is
willing to insure others against the
harm which results from the risks they create. Strict Liability relieves the Plaintiff of
proving negligence, however,
plaintiff must still show causation. Strict Liability also allows for compensation for
damaged property. Examples: blasting,
storing dangerous substances, keeping dangerous animals. Fault is conditional only when
actual harm results.
See Restatement, 2nd § 520 Strict Liability
Six requirements to determine abnormally dangerous activity:
1. The activity involves a high degree of risk of some harm to the person, land, or chattel
of other people;
2. The gravity of harm, which may result is great;
3. The risk cannot be eliminated by exercise of reasonable care;
4. Activity is not a matter of common usage;
5. The activity is inappropriate to the place where it is carried on; and
6. The value of activity to community.
Defenses to Strict Liability:
1. Assumption of risk by P;
2. Contributory Negligence only when P knowingly and unreasonably subjects himself
to risk;
3. An act of God-or natural act that caused injury; and
4. Latent defects in soil.
Abnormal Dangerous Activities (Ultrahazardous Activities):
A. Land Use Cases: SL applies to ultrahazardous activities that are abnormal to the area,
and involve a risk to
persons; where the risk cannot be eliminated with the use of utmost care.
Fletcher v. Rylands (P’s property is damaged when D’s reservoir broke and flooded
land). Defendant’s reservoir
collapsed due to soil defect. Although D was not negligent, he is still liable.
Rule: You are liable if you use your property in a non-natural way, which causes
something to escape resulting in
damage to another’s property.
B. Blasting Cases: (explosives & dangerous activity on property):
Sullivan v. Dunham (dynamite used to uproot a tree, and part of it hit a person on
highway).
Rule: Use of property is an absolute right, but qualified to a higher right of the safety of
persons; so if in the use of one’s
property one hurts another, then there is strict liability.
Intentional Torts (Battery/Offense Battery; Assault; False Imprisonment; Intentional
Infliction of Emotional Distress;
Transferred Intent; Conversion; Trespass (Strict liability). Separate liability theory.
Must intentionally cause injury or
actual harm and be an unlawful act (unpermitted).
Standard: No intent to do harm, but intend the consequences (some degree of
foreseeabilty) not just act without
consent. Must intend the natural and probable consequences of act.
A. Prima Facie Case:
Act (conduct, in the context of his surroundings, and what actor presumably knew and
perceived, is evidence from which his intent may be inferred);
Intent to commit act (desire to cause certain immediate consequences) Ex. point loaded
gun
at someone;
Injury (the resulting harm is intended or substantially certain to occur).
Causation.
Note: To establish a prima facie case, plaintiff need only prove that defendant
intentionally invaded a protected
interest. The burden then shifts to defendant to show justification or excuse. Actual
damages need not be proved. In
sum, the defendant’s conduct, the invasion of a legally protected interest, and requisite
intent.
Vincent v. Lake Erie Transportation Company (deliberately saves his property at he
expense of dock owner and is
responsible for damages inflicted to dock owner’s property).
Ploof v. Putnum (Necessity to save life or property justifies trespass). One may sacrifice
personal property of another
to save life. Privilege to trespass does not negate liability for injury to plaintiff’s
property.
1. BATTERY: A remedy for an intentional and unpermitted physical contact with
plaintiff’s person by
defendant or by an agency defendant has set in motion. Actionable claims are those that
cause physical harm (cut,
bruise, burn, etc.). Examples: Intentional touch; Act (touch); no consent; damages.
Mohr v. Williams (p12) Doctor operated without obtaining consent. No harm needs to
be intended, just the actual
act of touching without consent can be found to be a battery. Rule: If the defendant’s
actions exceed the consent given
and he does a substantially different act than the on authorized, he is liable.
Vosburg v. Putney (p.4) Kid kicked in shin. Rule: An action to recover damages for an
alleged assault & battery, the
victim must only show either that the alleged wrongdoer had an unlawful intention to
produce harm or that he committed
an unlawful act, which injured the victim. Plaintiff must prove: (a) wrongdoer had
unlawful intention to produce harm,
or (b) the person committed an unlawful act.
Rule: You do not have to intend the damage ultimately caused, however, you are still
liable. Defendant takes his plaintiff
as he finds him and will be liable for all the physical consequences of his tort upon that
plaintiff, however unforeseeable
they are, or how sensitive that particular plaintiff may be (“thin-skulled” or “eggshell”
rule).
OFFENSIVE BATTERY: Offensive battery does not cause physical harm, but are
hostile, such as poking
someone with a finger in anger, angrily knocking off someone’s hat, spitting in one’s
face, cutting someone’s hair, even
an unwanted kiss. These result from actions without plaintiff’s consent, which result in
harm to plaintiff’s dignity.
Examples: Invasion of person, protection of integrity; intent to commit act; no consent
by plaintiff. Alcorn v. Mitchell
p. 65 (Plaintiff spit at defendant) Any reasonable person would have been offended.
Rule: Punitive damages may be
assessed for highly offensive conduct, to provide an alternative redress to physical
retribution.
ASSAULT: An act which arouses in plaintiff a reasonable apprehension of an imminent
battery. The action
protects one’s right to his bodily integrity, in this case against psychic harm, and deters
conduct which often leads to
disturbances of the peace. Apprehension is required. The tort is committed when
plaintiff perceives the threat, even
though he is too courageous to be frightened or intimidated. Elements: Apprehension of
imminent harm or touching; no
consent; intent; causation; damages. Examples: lifting a fist or cane in a threatening
manner; punch and miss; gun in face.
Note: words alone are not enough, must be coupled with act.
A. Consent violenti non fit injuria: One who consents cannot receive an injury. Consent
can be
express or implied. Consent to an illegal abortion may bar a claim of malpractice against
doctor for negligence.
B. Self-defense: Force used as a defense against force threatened must be reasonable.
Also if one
uses force beyond what is threatened may become the assaulter/batterer and thus liable.
C. Protection of property: Reasonable force may be used to thwart theft.
Note: Spring Guns are never allowed as a defense
D. Insanity: Insanity is never a defense b/c it is better to protect/preserve right of the
victims to
recover.
E. Public Necessity: Protection of the general public is better than to have one person
suffer. See
Vincent v. Lake Erie Transportation Co. (Boat was moored down to dock during a storm,
but the storm threw boat onto
dock and damaged it).
F. Discipline: Parents have privilege to discipline their children by force or confinement
to the extent
that they reasonably believe necessary.
RULE: the public safety was threatened and dock owner acted properly in light of
circumstances.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: Defendant’s conduct was
intentional and
sufficiently extreme and outrageous to be likely to produce a strong emotional response
in a normal person. There is a
sufficient assurance that the alleged harm is real together with a strong public interest in
deterring such conduct.
Plaintiff’s emotional response must be severe. If emotional anguish is great, Courts will
allow the action regardless of
whether there is a physical manifestation of the mental suffering or bodily harm. (See
Restatement, 2nd, § 46 – conduct
must be intolerable, and not merely insulting, profane, abusive, annoying or even
threatening. It must go beyond all
reasonable bounds of decency, unless defendant is aware of plaintiff’s supersensativities.
Mere verbal abuse, namecalling, rudeness, and threats are generally not actionable).
Elements: Intent; no consent; experience emotional distress; behavior must be “shocking
and outrageous” to the social
conscience or general public. Examples: Person calls parent and says that the child is
seriously injured when the child
is fine.
5. TRANSFERRED INTENT (BATTERY): When attempting to cause harm to one
person, you inadvertently
cause harm to a third person. Actor will be held liable. Example: A throw rock at B and
C is injured. A is still liable.
Examples: Touching; Intent to touch; No consent. Talmage v. Smith p. 9 Defendant
intended to hit one trespasser with
a stick and hit plaintiff in his eye. Court held that even thought defendant intended to hit
trespasser, it does not matter.
Plaintiff intended to inflict harm.
6. CONVERSION: Intentional conduct which deprives another of his property
permanently or for an indefinite
time or the intentional exercise of dominion or control over a chattel which is inconsistent
with another’s property in it.
In trespass to chattels and conversion, the traditional common law rule has been that the
action must be brought by the
person who had actual possession of the property at the time of the tort, or at least by the
person entitled to immediate
possession. Even if you take property that you think it’s yours, but it belongs to someone
else, you are still (strictly)
liable. Note: No intent necessary to prove prima facie case. Examples: Take property;
Intend to do act; no consent Kirby
v. Foster p. 46 Boss gave employer money. The employee deducts what the boss owes
him although the boss did not
ask him to deduct what he owed him from the money, he took it upon himself to take his
share. Court held that this is still
conversion.
7. TRESPASS: Unauthorized and direct breach of the boundaries of another’s land was
an actionable trespass.
All that is necessary is that the act resulting in the trespass be volitional, and that the
resulting trespass be direct and
immediate. No actual damage need to be shown. Elements: Intent to enter land or
property (reason does not matter);
on property; no consent.
Note: If a person was pushed onto someone else’s property, the pusher would be strictly
liable for the trespass since
the person pushed did not intend to go on land. However, the person who pushed him,
intended to push that person
on the land. One could be found liable for trespass if something on his land encroaches
upon someone else’s land, i.e.,
water (pipe breaks). Additionally, a trespass who builds a fire, digs a hole, or merely
leaves a door or gate ajar may be
liable for resulting physical harm.
Fletcher v. Rylands (1868) Man-made reservoir’s water escapes through unknown
underground mineshafts and floods
neighbor's adjoining mine. Although Rylands was not negligent the court found that he
was still liable, if harm is caused
then strict liability is enforced
Rule: A person using his land for a dangerous, nonnatural use, is strictly liable for
damage to another’s property
resulting from such nonnatural use. Many American courts later rejected this. During the
1900’s the government wanted
to encourage people to expand their land
McCarthy v. Pheasant Run (lady almost raped, argues that signs needed to warn people to
lock door)
If preventive measures could be put in at a reasonable cost with regard to probability and
loss, then D will be held liable.
However, in the case at hand, D never put up evidence showing the cost of preventive
measures. P must bring up the
BPL and give specific numbers. A critique of BPL is that it cannot gauge probability
and severity of injury
Defenses to Intentional Torts:
1) General: If the defendant can eliminate one element of prima facie case, plaintiff will
lose.
2) Affirmative Defenses: (Defendant says “yes, I did, but…”
Self-defense;
Consent;
Defense of third party;
Defense of Property;
Discipline
Public Necessity (where public necessity is established, there is no recovery for private
property
destroyed);
Private Necessity (A privilege is created to trespass to avoid serious harm, coupled with
an
obligation to pay for damages). See Restatement (2d) § 197.
I de v. D (assault upon woman-Hatchet case) p. 61 Man banged on door of tavern, swung
hatchet but did not hit the
woman. Actual touching is not necessary in order to prove assault.
Hudson v. Craft (boxing prize fight) p. 22 P injured in unlicensed boxing match and sued
concessionaire.
Medical Malpractice Only in the medical practice is custom still binding (shield).
Professional Negligence: is the failure to exercise that degree of care and skill which is
exercised by reasonably wellqualified professions in that field. Negligence conducted by persons practicing a
particular profession
(dentist/lawyer/health care provider/accountant/engineer/architect, etc).
Reasonable Care: Doctors are held to standard of widely-used practices within a school
of medical treatment. The
plaintiff needs to show that the doctor did not perform the proper procedure within their
school of medical practice.
Since custom is binding, the plaintiff would have to find expert testimony from a doctor
that uses that school of medicine.
The judge determines what practice is actually a school of medicine, and if it is an
accepted practice.
The standard of care is established by what the reasonable well-qualified professional
ordinarily and customarily does
in fact. The profession itself sets the standard by its own custom and practice through
“schools of medicine.”
Historically, the standard of care is limited by the “locality rule.” Now, it is measured
through expert testimony.
Lama v. Borras (Sword case) p. 211 (Back surgery): The plaintiff would need to show
that the doctor did not use the
proper procedure within their own school of medical practice. Since custom is binding
the plaintiff would have to find
expert testimony from a doctor that uses that school of medicine. The judge determines
what practices are actually a
school of medicine, if it is an accepted practice.
Helling v. Carey p. 223. The Court balanced the cost of doing the glaucoma test vs. the
cost of going blind. The test
was so cheap that the court decided that it the doctor was negligent in not performing it
(unreasonable care).
Policy Arguments Supporting Binding:
We would like doctors to maintain some level of custom, but in order to promote
innovation, we hold it
only as admissible. (Since doctors have the better information, they are limited from
going beneath the
standard, but can go above).
Give doctors consistency and predictable exposure in volatile areas of practice;
It is difficult to determine whether adverse conditions are due to external forces or
doctor’s incompetence;
To limit jury from finding for P due to sympathy;
We want doctors to take risks; don’t want them to practice defensive medicine; and
To avoid war with experts.
Policy Arguments Against Binding:
1. Discourages doctors from adopting leading edge technology;
2. Stifles risk taking and prevents doctors from developing new practices;
3. The focus is on custom rather than “best reasonable care.”
4. We want doctors to pick a standard and want them to do better.
5. Courts have a hard time trying to decide whether it is custom or “moving target.”
Note: Courts do not want to put the weight on whether a procedure is a custom. It
should be determined based on what
is the best medical or reasonable care. Treatment is changing so rapidly, courts must now
determine when something
has become a custom or is no longer a custom.
Medical Disclosure
Debate is between autonomy of patients vs. just "enough information for the ordinary
patient" to understand the risks.
Pro "Autonony" The patient, and not the doctor, should have the final say in what
medical risks they are exposed to.
Policy arguments: Doctors are not experts on what to disclose; once juries know what the
risks are, they whether or not
it's material.
Pro "RPP": The doctor has to provide enough information for the ordinary patient. The
measure of adequacy is that
the doctor gave reasonable disclosure so that the average person could understand the
warning. Plaintiff would have
to show that average person would have changed his behavior if a certain piece of info
had been disclosed.
Canterbury v. Spence p. 226 People should have a right to determine what risks they are
willing to take so that they can
control their own bodies.
Doctors should have informed consent.
1. Professional Rule: Doctor has duty to disclose to patient all material risks involved
with medical procedure
based on professional judgment.
2. Patient Rule: Patient has right to exercise control over their body in making an
informed decision concerning
a medical procedure.
Four things patient must show for lack of informed consent:
a. Material risk of procedure was unknown to him (objective);
b. doctor failed to disclose risk
c. Disclosure would have led reasonable person to reject procedure and choose an
alternative;
d. Show that an injury resulted.
Doctor’s defenses against patient rule:
a. Disclosure may be detrimental to physical or psychological well being of patient
b. Patient incapable of giving consent
c. Emergency made it impossible to get consent
d. Risk is so obvious, that is unnecessary to inform
e. Procedure is routine and simple, the danger is remote
f. Doctor was unaware of the risk
Medical Malpractice cases and Res Ipsa Liquitor “RIL” (three requirements):
1. Standard of care of the doctor is set by
2. Medical custom of minimum standard of skill and knowledge commonly possessed by
members of that
community;
a. Local standard (this is favored), but
b. National standard is adopted when it is the same as local standard today there is a
movement
towards national standard b/c of AMA guidelines, standardized education, etc.
3. Plaintiff will put on EXPERT WITNESSES to establish the Medical Custom, which is
used to bridge gaps in
jury’s knowledge See Connors v. Univ. Assoc.
Two requirements: See Jones v. O Young
a. Witness must be licensed member of that “school of medicine” (this is tricky as an
oncologist can
testify in a ob/gyn case if familiar with the procedure);
b. Familiar with the procedure, methods, and treatments ordinarily used by other
physicians in D
community or similar community. Ybarra v. Spangard (Plaintiff’s shoulder injured after
an operation for appendicitis,
led to paralysis).
THINGS TO ALWAYS MENTION with RIL and Medical Malpractice cases:
RIL used to overcome the wall of silence, where doctors won’t testify against one
another (an
evidentiary problem) Ybarra;
Plaintiff will shotgun all possible defendants in medical malpractice b/c he doesn’t know
who
specifically was in charge or in exclusive control (Ybarra);
Some doctors are Experts for Hire (Henning v. Thomas).
Way to attack custom defense: there are not enough people following that "school" to
make it valid. Judge decides this.
Locality Rule--compare practices in that locality with like or similar localities.
Brune v. Belinkoff p. 221 Small town doctor held to locality rule standard, but appeals
court overrules and applies
national standard: any board certified doctor from anywhere can testify. Court can
consider the equipment and
experience of the local doctors, if they couldn't get the patient to a better hospital.
Respondeat Superior
Surgeon is responsible for servants/assistants under him who had care and custody of the
patient
Ybarra expands the traditional guidelines of RIL b/c the element of exclusive control is
not certain
An employer is responsible for the negligent and intentional acts of their employees, as
long as the action grows out
of the work he was involved in, even if employer did nothing wrong himself. Reason
being is that employers usually
have insurance and deep pockets, whereas employee is usually broke.
Dram Shop Statute – Specific to liquor cases
Statutes that intend to prevent inebriation in order to protect society and person. The bar
owner is held strictly liable
since we cannot determine whether or not they were reasonable. Deliberate policy choice
that puts the burden on the
people selling alcohol. Only defense is that you didn’t sell alcohol at all or that the drinks
you sold to that person did
not put them over the limit. Many states have extended this to caterers and hosts of
private parties.
Note: If go into 10 bars, you would sue the LAST bar (easier to prove he was over the
limit by the last one). Also,
testimony of witness who might say he was weaving after the third bar. Not impossible
to get back further than the
last.
Veseley v. Sagar p. 261 Plaintiff injured when a drunk driver crashes. P sues bar owner
and bartender.
Causation (Whoever causes lost has to bear lost unless legally valid reason for shifting
the lost).
1. “But For” Causation: Necessary but not sufficient to cause the injury by itself. P
must show that the
injuries were the actual, factual, and resulted from the D’s uninterrupted actions. The
injury would not have happened
“but for” D’s negligence. Note: Do not use “but for” when there are concurrent causes
(two independent forces occur).
That is when there are two acts and each standing alone would have produced the injury,
instead use substantial factor.
(a) Exception: When the defendant’s conduct cannot be considered the cause of the
plaintiff’s harm
if such harm would have occurred even had the defendant not so acted. See Dillon v.
Twin States Gas & Electric (fall
from bridge and subsequent electrocution). The Court held that the trial judge correctly
refused to direct verdict for the
defendant. If the defendant’s negligence caused the decedent’s death by electrocution.
What might have happened
when the decedent struck the surface was relevant on the issue of damages, but not on the
issue of liability.
2. Substantial Contributing Factor: (Cause-in-fact) The defendant’s conduct is a cause
of the event if it was
a material element and substantial factor in bringing about the event. This rule is used in
cases where the “but for” test
would allow defendant to escape liability because other causes contributed to the
accident. See Summers v. Tice – only
one actually caused the harm, but you do not know who. Burden shifts for then to prove
they didn’t injury P.
3. Proximate Cause: Deals with how much responsibility for damages a tortuous
defendant should be liable
for. It is the natural sequence of events without which an injury would not have been
sustained. Must show substantial
contributing cause. There are two tests to determine proximate cause: See Butterfield v.
Forrester.
(1) Foreseeability: A defendant can only be responsible for damages foreseeable. One
must foresee
sequence or magnitude of harm. Every jurisdiction uses a forseeability test to see if
whether the acts were
superceding/intervening cause. Must come between defendant’s act and plaintiff’s
injury. When it is not foreseeable,
it is a superceding/intervening cause (direct analysis) and no liability. Courts talk about
proportionality and defendant’s
culpability and liability. This reduces likelihood of disproportionate. Leaves people
seriously injured with no recourse
and no compensation when their injuries were not foreseeable to defendant; and
(2) Directness/Remoteness Test: Defendant was wrongful, they should be liable for
direct/actual
consequences. This test could be disproportional. Compensates those actually harmed.
Must identify some boundary
where directness turns into remoteness.
Standard for finding foreseeability in proximate cause:
1) Sequence of events must have been foreseeable (most restrictive)
2) The actual consequences must have been foreseeable (Cardozo and Palsgraff)
3) The consequences of the same type and comparable magnitude must have been
foreseeable
4) Consequences of a different type and comparable magnitude must have been
foreseeable
5) Consequences of a different type different magnitude, must have been foreseeable
6) Any harmful consequences to anyone must have been foreseeable (least restrictive)
also (close to Kinsman).
Note: New York favors forseeability of potential harm of victim due to Palsgraf case,
decided by Cardoza.
California favors directness test.
Ryan v. NY Central RR p. 480 Spark from Central's engines set fire to a woodshed,
which burns down Ryan's house.
Court says too remote (spatial, temporal circumstances make events too remote from one
another). The court used
foreseeability to help show the remoteness.
Berry v. Sugar Notch Borough p. 484 Tree falls on speeding car. Driver sues city. City
tries to establish contributory
negligence. Court finds that the speeding was a substantial contributing factor, as
speeding did play a role, as the car
wouldn't have been there. But, it wasn't proximate cause, as there is no relationship
between the speeding and the
accident that occurred. He can only be held liable if his speeding increased the risk of his
being injured. Plaintiff wins
in a directness jurisdiction. Even if the speed was no the sole efficient cause of the
accident, it at least contributed to its
severity and materially increased the damage. Burden on P to show proximate cause of
injuries by presenting direct
or circumstantial evidence that it is more probable than not that injury occurred by the
negligence of D.
In Re Polemis p. 497 Defendant drops plank in the hold of a ship and causes explosion
that destroys ship and cargo.
Defendant created foreseeable risk and didn't take steps to avoid it. Defendant found
liable for damage to ship and cargo
but not to delays in cargo's arrival in directness jurisdiction.
Palsgraff v. Long Island RR p. 501 Women on platform gets hit in head from an
explosion a distance away. Defendant
employee of railroad knocks package out of hand of person he is trying to help onto a
moving train. Package explodes,
causing scale to hit plaintiff on head.
Cardozo (relational theory)--a narrow foreseeability argument
Defendant must create a foreseeable risk to the plaintiff.
Defendant must take reasonable care to protect the plaintiff or the plaintiff's class.
1. Cardozo (majority view): no liability for actions outside of foreseeability, there is zone
of danger. Thus no
duty, no negligence - foreseeability
2. Andrews (dissent) Used directness argument: There is a duty to the public at large for
any and all injuries
resulting, foreseeability is not needed - no zone of danger. Defendant responsible for
injury to anyone caused by
foreseeable risk created by him. Factors to decide if it's proximate or remote: closeness
in time and space, foreseeability,
intervening factors, badness/severity of risk created vs. injury caused, ability of more
remote victims to absorb the
losses.
Judge Andrews: Factors in drawing boundaries between directness and remoteness:
Closeness in time
Closeness in space
Factors outside of defendants control (i.e. weather)
Badness of the risk
(No one factor is the decisive factor).
Petition of Kinsman Transit Co. p 525 defendant's boat negligently gets stuck under
bridge and blocks traffic on the
river and floods everything upstream. Judge friendly says that any harmful consequence
to anyone should have been
foreseeable.
Pittsburgh Reduction Co. v. Horton Kid finds blasting caps in lot. Trades them with
other kid. Second kid injured.
Directness court holds no liability by construction company because there were too many
intervening factors, i.e., trade
and parents' opportunity to confiscate them. Time alone, however, was not enough of an
intervening factor.
Intervening or Superceding Cause
Used to determine whether there is a subsequent act that is the real proximate cause of the
damage (has to be a human
act and foreseeability is key). If the intervening cause was reasonable foreseeable to the
defendant, claim of liability
would not be cut off (no intervening cause), and the defendant would still be liable. If the
intervening cause was not
foreseeable, usually defendant is off the hook, but sometimes, in tough cases, we have to
look at other factors such as
fairness and badness.
Oil truck driver spills oil. Negligent smoker ignites fire. Truck driver could have
foreseen, so still liable. Same scenario,
but smoker intentionally ignites fire. Smoker is intervening/proximate cause because a)
not foreseeable to driver and b)
badness of smoker's act won't let court let him get away.
Union Pump v. Albritton p. 527 plaintiff trips on pipe after putting out fire. She takes
shortcut on way back from fire.
Court says the risk created by the defendant had receded, and the fire wasn't threatening,
and the plaintiff did not have
to walk on the pipe.
Wagon Mound #1 p.517 Negligent oil spill into water. Welder consults engineer, who
tells him that no fire possible.
Spark ignites fire. Court finds welders not intervening cause because they did not know
water could catch on fire. Court
rejects directness principles of Polemis and switches to foreseeability standard.
Wagon Mound #2 p.523 Same scenario, years later, so engineer should have known that
water can catch on fire.
Welders found to be intervening cause.
Contrary-to-Fact Speculation
When defendant does something tortuous, it must be the cause of the harm, by the
preponderance of evidence.
What did the plaintiff have after the defendant's tortuous behavior?
What would the plaintiff have had if the defendant had behaved in a non-tortuous way?
Show that tortuous behavior was substantial contributing cause (cause in fact) of the
injury.
Facts necessary to establish Contrary-To-Fact Speculation:
Time frame;
Try to reduce uncertainty
Note: Only impose liability when neglect caused harm, not just because defendant
behavior was culpable. Must have
both causation and culpability.
NY Central RR v. Grimstad p 435 Man falls overboard and wife claims he could have
been saved if there were lifesaving
equipment. Plaintiff lost because lawyer did not reduce uncertainties (plaintiff couldn't
swim, fitness/experience of wife,
position of wife, type of equipment that would have required). Standard is "more likely
than not" or "preponderance of
the evidence."
Kirinich v. Standard Dredging Co p. 436 Man dies after he falls overboard, despite fact
that others on board landed
a one-inch rope within two feet of him. The rope sank. Negligence was due to breaking
of the statutory rule that they
must provide life preservers on the barge. Case analysis: Need to establish evidence of
the time sequence, the prospect
that he could be saved, how long does it take to unhook the life preserver? This makes it
clear that the plaintiff’s
attorney must prove one based on time. There were too many uncertainties.
Rule: Must prove that it is more likely than not to have been the cause of the accident or
injury.
Note: Plaintiff won this case as the lawyer specified what kind of rope could have been
used to change the outcome and
reduced uncertainties. The plaintiff’s attorney eliminated a lot of the uncertainty, thereby
allowing the jury to see that
he would have had a reasonable chance had the defendant provided an adequate rope to
be thrown to the plaintiff. On
the other hand, the defendant tries to increase the amount of uncertainty in order to
weaken the plaintiff’s arguments
regarding causation. Detail by detail to narrow down the uncertainty, so that at the end
you are left with as little
uncertainty as possible.
Note: Standard –Plaintiffs’ attorney must prove that it is more likely then not to have
been the cause of the accident
or injury.
Expert Testimony/Scientific Evidence
Fry Doctrine: (p 450) (old doctrine) For scientific evidence (epidemiology, animal
studies, and cell studies) to be
admissible, there must be a general acceptance in that specific scientific field (or
methodology). It is hard to use doctrine
since there are so many theories and none may be widely accepted. Fry test deals with
toxic torts. The Supreme Court
was ruling cases using the Federal Code of Evidence. Used to decide what kind of
scientific evidence is allowed to be
presented. Scientific evidence must not only be relevant but reliable as well. However, no
longer used.
Epidemiology– human exposure/ human illness vs animal studies.
Animal Studies
Cell studies
Daubert Doctrine: (p 446) (newer) Judge looks at the evidence and decides whether to
allow it in based on his
determination of the evidence's reliability. Allows more expert testimony to make it in-doesn't have to be generally
accepted. The judge should be the “gate-keeper” based on his impression of whether or
not the evidence is reliable and
based on expert testimony and whether it has developed as a matter of science or in the
context of litigation. This gives
judges the right and responsibility to give sweeping opinion on the adequateness of
scientific evidence Jury then must
decide how much weight to give that evidence. This is done on a case by case basis.
Mini trials are held on the
Reliability/Relevance of the evidence.
Expert Testimony
Expert testimony needed when the topic is one in which lay people would not understand.
Rarely ever inadmissible and
the testimony binds the jury. When two conflicting experts jury left to decide which to
accept but the jury has to accept
one or the other. Jury can’t combine or through them both out.
Note: Each behavior in question must be looked at separately. Look at the actions that
were taken and separate them
from the facts. (See Quintal)
Quintal v. Laurel Grove Hospital (Boy with fever)
3 issues of behavior that should be analyzed in order to determine negligence
1) Decision to operate
Apprehension
Temperature
Pre-op medication
Elective surgery
2) Conduct of operation
Should ophthalmologist do thoracic surgery
Tried for one minute to do external
They went to find a thoracic surgeon
3) Failure to have an emergency plan
Doctors stood in the operating room deciding on what to do
Burden Shifting: When there is uncertainty as to who may be liable for plaintiff’s
injuries, the burden shifts to the
defendant to prove he/they were not the proximate cause. The court tries to help a
plaintiff by shifting the burden of
removing uncertainties to the defendant. When the act itself causes the uncertainty and
the other party has nothing
to do with creating the uncertainty, we should tend to find causation. Defendant has to do
the contrary-to-fact
speculation.
Summers v. Tice: p. 398 Two hunters shoot in direction of what they believe is a wild
animal, and injured plaintiff. Only
one shot hits plaintiff. Plaintiff met all three elements of joint and several liability, so he
doesn't have to show individual
causation. (Where two events cause harm and only one would be sufficient in causing
injury, argue Joint and Several
Liability since there are multiple D’s and there will always be a rebuttable presumption of
Negligence. It is up to the
D’s to show otherwise.)
Zuchowicz v. United States: p. 438 Plaintiff claims that negligent overdose of Danocrine
caused death. Regular dose of
Danocrine can cause death. Plaintiff won by bringing in expert testimony to establish
that Danocrine itself was the
cause. Court shifts burden to defendant to show that overdose did not cause death.
Haft v. Lone Palm Hotel p 437 Father and Son drown after hotel fails to post statutemandated "no lifeguard" sign or
provide a lifeguard. No witnesses. The burden is shifted to the hotel because they
created the uncertainty, and it was
foreseeable that an accident could happen. Burden of proof is on the defendant to show
that the plaintiffs would have
died even if there were a lifeguard there. Defendant created the uncertainty.
a. Uncertainty was foreseeable
b. They should eliminate uncertainty
Herskovits v. Group Health Corp p 453 Smoker dies of cancer. Plaintiff's family sues
doctor for late diagnosis that
reduced chance of survival from 39% to 25%. Lost better chance of survival doctrine: A
way for juries to award
compensation for reduced survival due to wrongful diagnosis. Prior to this, it was all or
nothing, which meant that if you
did not cross the 51% survival threshold you got nothing. Find defendant liable although
their negligence was "more
likely than not" the cause of the plaintiff’s death.
Joint & Several Liability
Joint Liability: Implies that each of several defendants is responsible for the entire loss
that they all caused in
part.
Several Liability: Holds each defendant responsible only for his proportionate share of
the loss. If the plaintiff
sues two defendants, a jointly liable defendant can be held liable for the full loss, while
the severally liable defendants
can only be held liable for half.
Joint and Several Liability: If two people are the contributing cause of damage, they are
each responsible for
everything. This is a way for the plaintiff to shift the burden when the defendants' actions
are tortuous, and they are
the ones who created the uncertainty. Plaintiff can always recover 100%. D’s must
determine who caused the injury.
All parties must be tortuous actors (if one is a natural actor, plaintiff cannot recover)
All of the tortuous actors or causes have to have been identified
Defendants' acts caused the uncertainties
Defense: If one party can show his negligence was not the cause, he is no longer a
defendant.
Kingston v. Chicago RR p 461 Plaintiff property destroyed by two fires--one tortuous and
one whose source is
unknown. The court shifted the burden to the known tortuous actor to prove that the
other fire was natural and not a
tortuous act.
Defendant’s Mitigation of Damages For Contributory Negligence:
1. Statutory Rule: The injured person is so dependent that the law must protect them.
2. Doctrine of Gross Negligence: This doctrine tried to compensate for harshness of
contributory negligence
by saying that defendant can't use contributory negligence if he himself was grossly
negligent. See Hudson v. Craft (p.
22) Boxing Match: youth voluntarily gets into a ring and gets injured. Promoter is sued.
Tries to defend self by charging
assumption of risk and contributory negligence on part of youth. Court twists and turns
in order to negate his
contributory negligence because cont. neg. would have barred him from any recovery.
Court found for youth by citing
statutory laws that promoter had violated
3. Last Clear Chance: If P is successful in establishing that D had the last clear chance to
avoid injury to P,
then P will have full recovery despite her own contributory negligence. P must prove 1)
D was aware of P’s presence;
2) aware of P’s ignorance of her peril or of her inability to save herself; and 3) D could
have avoided the accident, if used
due care. In several jurisdictions, which enacted comparative negligence statutes, the
courts have ruled that this Rule
is no longer appropriate. This rule was designed to mitigate the harshness of the doctrine
of contributory negligence
as a complete defense. However, since comparative negligence does away with the
harshness, the LCC doctrine is no
longer applicable. See Fuller v. Illinois Central RR p.331 train conductor sees car
moving slowly across the track. He
should have honked his horn or stopped. Court stretches doctrine to say that defendant
should have fixed brakes so
that he could have stopped on time. "Last clear effective chance."
4. Assumption of Risk:
1. Actual, subjective knowledge of risk (It must be shown that P failed to exercise
reasonable care, and
that such lack of due care contributed proximately to P’s injury).
2. Voluntary exposure to the risk (knowingly entered into and stayed in position of
danger).
This differs from negligence in that it is subjective and requires knowledge of the
danger/risk, and that P reasonably
assumes risk, i.e., amusement park rides. Murphy v. Steeplechase Amusement Co.
(Injured on Flopper). P was aware
of the nature of ride and the risk/consequences involved and thus, assumed the risk.
However, if P assumes the risk
even if he does not know the risks, but should have known, i.e. baseball parks.
Note: Assumption of Risk is no longer a bar in cases of secondary assumption of risk, but
has become a sub-genre of
comparative negligence with apportionment (majority in most jurisdictions).
Primary Assumption of Risk: An express contract that says, or the court decides, that one
party should not be
responsible for another. For example, sitting close to the field at a sporting event. If you
choose to engage in an certain
activities, it's at your own risk.
Secondary Assumption of Risk: 1. Defendant has duty to protect plaintiff
2. Defendant fails to protect plaintiff
3. Plaintiff goes ahead and assumes the risk anyway
Market Share Theory: Based on the premise that the liability of each manufacturer would
be proportionate to its
responsibility for the injuries caused by its products. Plaintiff establishes two elements of
joint and several liabilities,
but is not asked to establish the third (does not have to find all the tortfeasors).
Sindell v. Abbot Labs p. 476 DES ingested by pregnant women caused cancer in their
offspring.
Skipworth v. Lead Industries: Lead paint Manufacturers found not liable because of
difficulty in finding all the
tortfeasors, lead paint is not fungible, there were so many manufacturers over such long
period of time, and
manufacturers did not know of dangers at the time of manufacturing.
Contribution: Defendant who has to pay damages can sue all other tortuous parties in a
separate trial. All parties split
the damages evenly.
Dole v. Dow Chemical p. 399 employee injured at work. Collects workers' comp. Sues
supplier (Dow) of chemical that
hurt him and wins. Dow sues employer for "contribution" and wins. Employer has to
pay Dow 50% of the damages Dow
owes to employee. Employee has to reimburse employer for workers' comp.
Comparative Partial Indemnity/Equitable Apportionment among Joint Tortfeasors:
Defendant who has to pay damages
can sue all other tortuous parties in a separate trial. All parties split the damages
according to their liability.
Inter-Family Immunity Doctrine: Family members can't sue one another for indemnity.
A defendant cannot indemnify
one family member in order to recoup a damage award he has paid to another family
member. Example: driver pays
damages to child for negligently hitting them. He can't then try to sue the child's parents
for negligent supervision of
child because he'd be, in a sense, taking money from the child.
Frolic and Detour Doctrine: If the accident occurs outside of the overall relationship
between the employer and the
employee, the employer can get off the hook. Bakery driver hits someone while taking a
detour to his girlfriend's house.
Comparative Negligence
1. Pure: Full apportionment of spectrum. Plaintiff can be more than 50 or 51% liable and
still collect. If plaintiff 90%
guilty, he pays 90% damages. Downside is even if plaintiff is overwhelmingly liable, he
can still get a big award. See
Li v. Yellow Cab Co. of Cali p. 362 Li negligently tries to make left into gas station
against 3 lanes of oncoming traffic.
She is hit by speeder. Landmark case for comparative negligence. Courts decide fairness
overrules administerability
concerns. This case officially ushered in the comparative negligence doctrine. See also
page 2 & 37 of outline.
2. Impure: 50% (NJ): Defendant just has to show that plaintiff was more responsible than
all of the defendants.
Plaintiff barred from recovering if plaintiff is 50% OR more liable (50% or 51% Rule).
Plaintiff has to show he is less
responsible than the defendants. Defendant liable if he is more than 50% responsible.
Policy Argument: This case simplified the doctrine, juries were already doing
apportionment, but in an inconsistent way.
There was also a fairness issue of apportionment figures juries and judges were
implementing. The pros outweighed the
cons. The courts preferred that the all or nothing go away. Once California did this it
spread throughout. 1980 at least
48 out of 50 states had adopted the comparative negligence case.
Locality Rule
Must look at the locality that the tort occurred in as well as similar localities. See Brune
v. Belinkoff p. 221 (New
Bedford/pregnant women case). On appeal, locality rule was thrown out and a national
standard was implemented.
Res Ipsa Loquitor “The Thing Speaks for Itself”
This is a way of shifting the burden of proof to the defendant on the negligence and
causation issue. It’s a logical
inference for the plaintiff to meet the burden of proof. A type of accident that does not
ordinarily occur without
negligence from a specific class.
Restatement (Second) Torts § 328.
(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the
defendant when:
a. The event is of a kind which ordinarily does not occur in the absence of negligence;
b. Other responsible causes, including the conduct of plaintiff and third persons, are
sufficiently eliminated
by the evidence; and
c. The indicated negligence is within the scope of the defendant’s duty to plaintiff;
(2) It is the function of the Court to determine whether the inference may be reasonably
drawn by the jury, or whether
it must be necessarily drawn;
(3) It is the function of the jury to determine whether the inference is to be drawn in any
case where different
conclusions may be reasonably reached.
Three Effects of RIL:
1. Creates an inference of negligence (in absence of proof of negligence)
2. There is a REBUTTABLE PRESUMPTION; once RIL is proved the BOP is on the
Defendant to put on
evidence to prove otherwise (Bauman v. LIRR).
3. The BOP is shifted to D. See Anderson v. Service Merchandise (lady hit with lighting
fixture that fell from
ceiling) Question is of exclusive control, but resolved in that Service Merchandise had
day-to-day control. Byrne v.
Boadle (sack of flour landed on P).
Res Ipsa is used in both negligence and products liability. Example: Car brakes that fail
after a trip to the mechanic.
Manufacturer or professional user could be liable.
Byrne v. Boadle p. 281 plaintiff hit by barrel of flour being lowered from warehouse
while walking on sidewalk. Plaintiff
wins by arguing that normally, barrels don't fall out of warehouses without negligence on
the part of warehousemen.
Wakelin v. London SW Ry p. 283 car crossing tracks hit by train. Court rules element #1
not met because sometimes cars
hit trains.
Larson v. St. Francis Hotel p. 286 chair flies out of window and hits someone below.
Court rules chair not within
exclusive control of hotel.
Benedict v. Eppley Hotel woman injured when broken chair she was sitting in collapses.
Court rejects defendant's
argument that they did not have exclusive control of the chair because she was sitting in it
for 30 minutes. Court says
"effective control" is enough.
Ybarra v. Spangard p. 297 (P-patient gets back injury after having surgery.) This is a
medical malpractice case where
the plaintiff is unable to establish the elements necessary for a variety negligence case
and uses res ipsa loquitur to "get
over the hump" of establishing the prima facie elements. He uses expert testimony to
help establish that negligence has
occurred. Since case did not fit Rstmt 2nd §328(d) or Rstmt 3rd §15 definitions, court
bolstered case by policy arguments:
uncertainty was created by the doctors and hospital, expert testimony established that
injuries probably came from
negligence, we entrust ourselves to doctors and expect not to be injured, doctors only
ones in position to know what
happened since patient was unconscious.
Strict Products Liability – Only applies to commercial sellers!
Most jurisdictions today, a manufacturer or supplier of a product that is defective and
unreasonably dangerous can be
held strictly liable in tort when the product causes injury to the user or his property.
Liability is strict, but not absolute!
P must prove that the defect caused the injury that it attributable to D. Almost all strict
liability claims are based on
common law principles (See Restatement (Second) Torts § 402A); however, statutes may
explicitly or implicitly create
a strict liability cause of action. The rationale behind the theory is that it D is better able
to insure against loss so it is
unfair to have P bear costs; increase safety incentive; difficulty of proving negligence.
See page 36 of Outline as to
express & implied warranties.
“Liability without Fault” is imposed as a matter of public policy, due to the grave risk of
harm in placing defective
products in the “stream of commerce.”
Note: This is stricter than negligence, because the manufacturer’s product must be used
by someone other than the
buyer, without further inspection and it must put life in peril. Harm has to be foreseeable
to the manufacturer. It is a
regular negligence test with the added elements. Does not apply to buyer because he can
negotiate the risk.
Escola v. Coca Cola Bottling Co. of Fresno p. 729
Bottle of Coke explodes in waitress’ face. The courts found for the plaintiff. In this case
the doctrine from MacPherson
was used again. This time, Judge Gibson invoked res ipsa loquitor to force the
manufacturer to find out why the accident
actually occurred. RULE: not sure why bottle broke, but it could have been avoided with
adequate inspection;
manufacturer incurs ABSOLUTE LIABILITY. Policy demands liability be placed on the
one who can bare the costs
efficiently
Pouncey v. Ford Motor Co. p. 769 (Car fan blade breaks off and injures plaintiff). This
was a negligence case since it was
prior to strict liability, so reasonable care or quality control was an issue. Today,
construction defects are analyzed under
402A it is irrelevant as to reasonable care.
Sovereign Immunity: State created courts and state cannot be sued in courts unless
voluntarily agrees to be sued only
up to the level the state will agree to be sued.
Privity of Contract: Should control of dangerousness of product be determined by
agreements between parties v.
society/legislature.
No Defenses: Doesn’t matter if mfr was reasonable or foreseeable in making product –
strictly liable/no defenses! No
matter what type of case (construction/design/warning) must show P is using product in
intended way or foreseeable
use or misuse. Example: Drano can explodes; allowed moisture to enter (showed rust).
Should investigate all theories
to find out which aspect lead to injury.
History of Strict Product Liability
Winterbottom v. Wright P injured while driving defective mail coach, which the govt.
had bought from Wright. Court
rules that Winterbottom cannot sue manufacturer because of privity of contract, which
says that only people in the
contract, and not third parties, can bring action for breaches, and they are only liable for
what is agreed for in the contract
(price, quality, risks). Powerful force for limiting scope of liability. Promotes
entrepreneurship and limits legal exposure
of companies.
Proving Deviation
To get the manufacturer’s specifications (clearly discoverable) – sometimes too broad;
Purchase a few comparable models and inspect to analyze range (show how mfr
normally makes product
and how it deviated from standard);
Use RIL when this type of accident normally occurs, it does because there’s a defect.
When this type of
product breaks off,
Three Approaches: Negligence, Warranty, Strict Liability
(1) NEGLIGENCE: Duty to avoid foreseeable danger to others beyond the purchaser.
MacPherson v. Buick Motors (defective wheel that was made by another company
collapsed and entire car fell apart).
Landmark decision allowing negligence to determine products liability, provided it was
used as expected, foreseeable
dangerous (if negligently made) and foreseeable that someone other than the purchaser
will use product and must
foresee that it will be used without inspection or test. Further, mfrs cannot market unsafe
products on the rationale that
buyers may want to purchase less safe products at lower prices.
RULE: one who negligently manufactures a product is liable for any injuries prox caused
by his negligence; manufacturer
(of final product) has obligation to make responsible inspection of product Court
abandons the privity of K (i.e. between
MacPherson and wheel manufacturer) requirement. The rise of industrial
age/specialization where products are not made
exclusively from components made by the same manufacturer.
(2) WARRANTY: Liability without fault; negligence does not need to be proven b/c
liability is implied from warranty
(strict liability)
General Rule: manufacturers are strictly liable in tort when an article is placed on the
market with knowledge that it
will be used without inspection for defects, if defects exist there is liability *warranty
theory was used to get around the
arcane requirement of privity in contract. There is an implied warranty of defective
products especially on food.
(3) STRICT LIABILITY (liability without fault): Most states have adopted some form of
this. P must prove that product
was “unreasonably dangerous” under consumer expectation. (Restatement (Second) Torts
§ 402A) If yes, then liability.
Note: Person selling used goods are not Strictly Liable. See Tillman v. Vance Equip.
RULE: One who sells product in defective condition unreasonably dangerous to user or
consumer or to his property
is subject to liability for phys harm thereby caused to ultimate user or consumer or to
their property subject to:
A. Seller is engaged in business of selling such product, and
B. It is expected to and does reach the consumer without substantial change in the
condition it was
sold.
The Rule (stated above) applies although:
A. The seller (applies to retailer also) as said in Vandermark v. Ford has exercised all
possible care
in preparation and sale of his product, and
B. The consumer or user has not bought the product from or entered is not a contractual
relation with
the seller.
Note: The Second Restatement is silent as to (a) people other than consumers, like
bystanders; (b) seller of a product
expected to be processed, or substantially changed before it reaches ultimate consumer
and (c) sellers of component
parts.
Modifications made to product by consumer
Manufacturer liability is not extended to products that are modified. See Jones v. Ryobi
Ltd. (P injured her hand in a
stamping machine after her boss removed a plastic guard to increase production) RULE:
modifications to products made
by any party beyond the manufacturer eliminates strict liability on manufacturer’s part,
even if the modifications made
were foreseeable
Note: This case also demonstrates break in causal chain & superseding cause!
Most Courts DISAGREE with Jones v. Ryobi, but various state statutes support no
liability for modifications, and others
create liability for modifications when they are foreseeable
Three Types of product defects:
MANUFACTURER DEFECT-not in intended condition;
DESIGN DEFECT-condition intended, but presents undue risk; and
WARNING DEFECT-in condition when leaves Mfr’s control and does not present
undue risk if used
normally, but its packaging or accompanying literature fails to warn of unexpected
dangers from foreseeable
misuse.
Design Defect (similar to negligence-also sue for Defective Warning)
Negligence may be found, even if a product meets the specifications of its designer, if the
design presents an undue risk.
An undue risk should have been discovered and prevented by due care. It requires a
careful consideration of whether
the defendant could have reasonably foreseen the danger, the extent to which the
technology in existence at the time
of its mfr could minimize the risks, and the degree to which the consumer could be
reasonably expected to appreciate and
protect himself from harm.
Failure to comply with applicable government safety standards automatically renders a
product defective in design or
warning. However, compliance with such standards is evidence (although not
conclusive) that the product is not
defective See Restatement (Third) of Torts – Products Liability § 4.
These types of cases differ from manufacturing defect cases in that the final product is
exactly what the manufacturer
intended. Imposing strict liability for so-called defective design creates greater problems
than in other defective product
cases. All of defendant’s products made to that design are the same. Whether the
particular design is unreasonably
dangerous involves a weighing of such facts as the fortuitousness of the injury which
occurred, whether the design
change would destroy or substantially impair the utility of the article, and whether the
cost of the design change
necessary to alleviate the danger would price the article out of the market.
Prima Facie Case for cases that follow Restatement (Second) 402A (p. 743)
The product was used in its intended foreseeable use or misuse (must show on every
case);
The products fails CET;
The product fails RUB;
Causation – Product caused injury.
Tests For Reasonableness of Design: (Various subjective tests have been developed to
determine whether the design
is unreasonably dangerous):
1. “AND TEST” Restatement (Second) Test adopts consumer expectation test (see
below). This theory is weak
since CET are determined by juries (must fail CE “and” RUB). (NJ & CA reject this)
This test is commonly used.
Linegar case (Bullet proof vest).
2. “OR TEST” (California) Product must fail either CE “or” RUB (least used-only 5 or
6 jurisdictions use this test)
Barker case; and
3. Risk Utility Balancing (see below) Majority test where the risks exceed benefits
when compared with probable
risk/benefits of alternative designs—product could be made safer (must show 2&3 in
Restatement);
Note: NJ uses risk utility balancing (RUB) test, no separate consumer expectation test
needed, but it is weighed. Some
jurisdictions use the 3rd which requires that the jurisdiction have a separate test done,
consumer expectation test. Each
state abides by its own doctrine.
Note: Proving both 1&2 makes it hard for courts to hold D liable, because the dangerous
product may be very useful.
By just using the RUB test, some widely used products would be found defective because
risk out weighs benefits, i.e.,
tobacco, alcohol. Wade’s Risk Utility Balancing test (The RUB) pg 796
RULE: consumer is justified in expecting that a product placed into commerce is
reasonably safe for intended use. Court
adopts Crashworthiness Doctrine that imposes liable on Mfr. for failure to design its
product minimizing foreseeable
harm caused by other parties (a different design would have prevented its collapse, i.e.,
roof, door, waterbed overpressurizing). Ex: Auto mfr may be liable for not designing its cars to withstand crashes
caused by negligent drivers.
See Larsen v. General Motors.
Consumer Expectations Test: The Court looks at the dangerousness of the product from
the point of view of
the ordinary, prudent purchaser or other foreseeable user with respect to the contemplated
uses of the product. Product
must be riskier than expected and the risks must outweigh benefits in comparison to
alternative designs. Under this
approach, P must prove that the product did not perform as safely as an ordinary
consumer would have expected:
a. Used as a shield by D (Linegar v. Armour of America) case pg 782. No more
dangerous then
consumers expected it to be; therefore, it is not defective or unreasonably dangerous
b. Used as sword by P, riskier then people expected (Barker case)
c. Just Relevant: Looked at in light of other factors in the RUB test.
2. Risk Utility Balancing (RUB) Test: This method weighs the danger of the design
against its benefits. The
Court will consider the feasibility of safer alternative designs. Some courts require the
plaintiff only prove that the design
of the product proximately caused the injury. The burden then shifts to the D to show
that the utility of the design
outweighs its inherent danger. There are a number of factors associated with this test as
indicated in Cepeda, such as:
1. The usefulness and desirability of the product (its utility to the user and to the public as
a whole);
2. The safety aspects of the product (the likelihood that it will cause injury, and the
probable seriousness
of the injury).
3. The availability of a substitute product which would meet the same need and not be as
unsafe;
4. The mfr’s ability to eliminate the unsafe character of the product without impairing its
usefulness or
making it too expensive to maintain its utility;
5. The user’s ability to avoid danger by the exercise of the dangers inherent in the product
and their
avoidability, because of general public knowledge of the obvious condition of the
product, or of the
existence of suitable warnings or instructions; and
6. The feasibility, on the part of the mfr, or spreading the loss by setting the price of the
product or
carrying liability insurance.
Courts presume if deviation, product is unreasonably dangerous. If follow Restatement,
must show riskier than expected
and that the risks outweigh the benefits in comparison to alternative designs. See
Linegard (bullet proof vest). D did
not fail consumer expectation test because it did not do its own independent testing,
deferred to Police Department’s
reasoning for purchase. Note for Exam: Must argue all competing theories as you do not
know which jurisdiction you’ll
be in!
Risk Utility Balancing Test for design defects (policy issue):
Marketing/Time of Trial (recent effects on risks-greatest info.)
NEGLIGENCE STRICT LIABILITY (actual conseq.)
Risks: M T
Benefits: M T
Alternative Design: M M
Substitute Products: M M
User ability to avoid: M M
Consumer expectations: M M
Loss-spreading ability:
Note: Some things evaluated at the time of marketing and some at trial. Each analyzed.
Question is what to do with
risk/benefits. If marketing, then it relates to foreseeable risks/benefits. At the time, we
know what consequences the
product actually caused at trial.
Several arguments for trial (actual damages), easier for P to get current information as to
what the product caused then
to find out what was foreseeable at the time of marketing. This gives P the advantage.
Cts sought to increase liability
for products that cause harm. If wait until trial, product has excessive harm. If at
marketing, much less.
Hindsight test: If he knew then what we know now, would he have put the product out
the same way? (imputing-pure
negligence approach). Ex: Mfr for vaccine for Asian flu. No flu epidemic. Only people
who got the flu, had the vaccine.
Mfr would not have liability due to possibility of flu epidemic. Another example:
Asbestos (installation and fire
retardant...good for ships at war). No alternatives at the time of marketing. At time of
trial, the risk are thousands of
asbestosis mostly affecting ship workers during WWII. People didn’t realize the risks,
but the benefits outweighed the
harm. Legal system not effective in discovering toxic substances.
How Mfr could have avoided danger in the Design defect? Ex: Should have had a
mechanism to avoid dangerous
pressure build up.
Note: Fundamental difference between full negligence and strict liability – As of what
time you consider different
properties, when the manufacturer puts the product in the stream of commerce, or at trial.
Whether the product that was
made is comparable to the product that should have been made. The difference between
negligence and design defect
are very small. In Negligence era (Cardozo and strict liability), a P could not recover
unless the product was being used
as intended.
In Pinto, when rear ended at low speed and explodes in flames it is riskier than ordinary
consumers’ expect.
In Cepeda, followed Wade/Keeton Risk Utility Analysis of Strict Liability, and extended
strict liability to include not
only intended, but also reasonably foreseeable uses of the product. Can be outweighed
by risks or benefits by other
factors.
We look at how it affects all of society, the risk of all of these types of products. We
would get information from experts
and statistics from consumer monitoring organizations. Compare risk that would be
reduced by the better design v. the
cost to implement them. How many risks will be removed at what costs? CE “consumer
expectations” Latin believes
NJ is best.
Note: In design defect cases, you must argue that there is a safer, alternative design that
is better than current design!
This was an attempt to eliminate RUB. New Jersey uses the § 3rd Restatement.
Consumer expectation can balance this
i.e., Porsche that went too fast, but that is what the consumer expected. Do not have to
show what the overall harm of
the product and D does not show overall benefits. They compare the benefits and utilities
of product the way it was
made by the benefits and cost of the products if it was made in an alternative way.
Volkswagon of America, Inc. v. Young p. 774 (Crashworthiness case). The car was not
built with the intention of being
crashed (intended purpose or use threshold limitation.) The defect did not produce
accident, but once accident occurred
it made it worst. Expanded the use of intended use to common foreseeable use.
Linegar v. Armour of America p. 341 State trooper dies despite wearing bulletproof vest.
Court finds that product is no
more dangerous than people expect it to be, and therefore, not defective or unreasonably
dangerous. Uses the Consumer
Expectations Test to protect the manufacturer from liability (CET as shield).
Barker v. Lull Engineering Approach p. 788 (Barker injured while operating loader).
Court finds D liable as product
excessively dangerous for its intended use (which was preventable) as determined when a
jury concludes that the
product’s risks outweigh the design’s benefits after conducting RUB. Courts require the
plaintiff only to prove that the
design of the product caused the injury. The burden then shifts to the defendant to show
that the utility of the design
outweighs its inherent danger. This case illustrates major expansion of concept of product
defect by abandoning
"intended use" standard for "foreseeable use or misuse" standard. New Jersey and
California changed the rules and
used foreseeable misuse.
Policy arguments against design defect liability
1. Restricts consumer choice; 2. Restricts capitalism; 3. Reduces research and
development; 4. Increase the price of
product, may be putting it out of range with consumer; & 5. D must carry insurance,
which may difficult or impossible
to get.
Policy arguments for design defect liability:
1. Place liability on the party who can best prevent injury; 2. D is best cost spreader; 3. D
is best risk allocator; & 4. P
needs to be compensated
P could argue “Reverse Robin-Hood” effect (Latin - Liability for SUV Collision Risk, p.
1167). “SUV buyers are typically
affluent people who normally could afford to purpose slightly more expensive vehicles
that provide greater safety…”
RULE: Exclusive reliance on consumer expectation is inappropriate where safety must be
defined by technical, scientific
info. REMEMBER this is an argument for the D, but the P can counter saying that
technical info only applies to drug
manufacturing cases.
Camacho v. Honda Motor Co. (P bought motorcycle without crash bars-crashed and his
legs were seriously injured).
Motor vehicle manufacturer can be liable or Strictly Liable for injuries sustained in
accident where manufacturing or
design defect, though not the cause of accident, caused or enhanced the injuries. BUT
remember that if the safety option
was available to P, and he rejects; there can be argument of assumption of risk available
to D.
Manufacturer’s Defenses
1. Contributory negligence by P: Contributory negligence is not a defense when such
negligence is merely a
failure to discover the defect in the product or to guard against possibility of its existence
from RS 2nd Comment to §
402A. However, if P is in an industrial setting, contributory negligence applies (Suter).
2. Assumption of Risk by P: If P knows of a defect and is aware of the danger, and
nevertheless proceeds to
use product, this breaks causal chain and may bar recovery
3. Abnormal misuse of the product by P: P uses the product in a way not normally
intended. This breaks causal
chain and may bar recovery
4. Comparative Fault (not comparative negligence) Contributory negligence and strict
liability is merged into
Comparative Fault. The Court is allocating the loss according to the percentage of
causation of injury by each party.
This is the choice method because:
1. P recovery will be reduced only to the extent his own lack of reasonable care
contributed to the
injury. The injured P is compensated.
2. Manufacturer’s incentive to create safer products will not be reduced because:
A. Manufacturer is still liable (though partly)
B. Manufacturer cannot assume user of defective product will be blameworthy
C. Assumption of risk as a complete bar is eliminated
3. Jurors can measure P’s negligence or fault to D’s strict liability *the DISSENT
disagrees saying that
majority dilutes the defectiveness of a product with the conduct of the defendant***this
is the choice method adopted
by Courts and most appropriate in strict liability.
Daly v. General Motors Corp. (design defect was a car door latch that allegedly allowed
the driver-side door to fly open
as a result of the crash-although door latch had nothing to do with causing crash) P was
also alleged to have been drunk
and not wearing a seat belt.
Damages
(1) Contribution: Created by legislature, some by Courts, it is equal shares. Takes the
number of culpable Ds
and divide them equally. If one D paid $300,000 can file suit against the other D for
$200,000, provided they are culpable
joint tortfeasors. Courts do not recalculate based on the number of insolvent defendants.
Right to recover from
remaining Ds the same amount. If one person cannot pay, it is not divided amongst the
remaining defendants. Example:
If P rec’d $300,000. 3 joint tortfeasors. Under contribution, P can recover from any D.
The one D who paid P, has a
separate cause of action against the Ds or other causers not in case.
(2) Indemnification: Limited remedy for D that was much less culpable than another D.
“All or nothing”
recovery. You can get everything back from other defendant. Risk is on D who paid
them. Could recover $300,000.
(3) Equitable Indemnity (“fair” indemnification): One D did not play a major role and
the other D was far more
culpable. Such a large disparity in fairness that he should be able to recover from the
other D the entire amount (all or
nothing/no apportionment).
(4) Comparative negligence splits fault and allocates loss according to faultiness of those
who caused the
injury. Then courts went to equitable apportionment. See p. 2, 20, 37 of Outline..
(5) Joint & Several Liability: Each defendant only liable for that defendant’s share. If
didn’t name all
defendants, P would lose the percentage of that D. For instance, if D was 20% liable and
not named, P can only recover
80 from those named Ds. See Sindell case. P sues 3 defendants and one settles with P.
What does he recover from the
rest? The remaining balance, under equitable apportionment,
(6) Privileges/immunities: Intra-family Immunity (spouses cannot sue spouses/children
cannot sue parent)
purpose to guard against collusion and to prevent strive from occurring within the family
unit.
Note: In Workers Compensation, employee does not have to show that an employer was
negligent. Assumption of risk
does not apply. No rules apply. Employer cannot be sued and losses limited to what the
pool requires and losses are
predictable.
Reasonably Alternative Design Test: Part of all four approaches. Plaintiff compares the
risks and benefits of the product
the way it was made and the risks and benefits of the product if it was made in an
alternative way. You do not compare
the overall risks and benefits of the product. (“RAD”)
Approaches--Except 3rd Rstmt, all RUB tests performed at time of trial. All RAD tests
performed at the time of marketing.
Restatement 2nd Section § 402A
Special liability of seller of product for physical harm to user or consumer p. 743
(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 was sold.
(2) The rule stated in Subsection (1) applies all possible care although
(a) The seller has exercised in the preparation and sale of his product and (Eliminates
quality control
argument)
(b) The user or consumer has not bought the product from or entered into any contractual
relation with
the seller. (Eliminates privity)
California and New Jersey both rejected. Jurisdictions that follow 402 A
Refers to commercial sellers (including car rental companies)
“dcud “is the heart of the section. defective condition unreasonable dangerous
Manufactures could be liable no matter how much care is used
Eliminates privity.
Hindsight Test: Looking at the time of trial and looking back at what happened.
Imputing knowledge: Assuming that the Defendant (seller) knew of the dangerous
(Risks) condition. Would he have
put the product out in the same way?
Judge Treynor’s holdings (Concurs, but for policy reasons)
The only thing that the Plaintiff would have to show is that the injury was caused by the
product itself. It
means product caused the injury therefore the manufacturer is liable (Absolute liability.
Many courts have
gone to strict liability, but P must still show defect. Under Treynor analysis no defect, just
injury.)
Judge Treynor argued that the manufacturer is in the best place to prevent accidents. He
thought that it was
in the interest of public policy to prevent such accidents.
Loss spreading – Manufacturer in the best position to spread the cost to everyone.
Deterrence of preventive – Manufacture can better anticipate and prevent the product
related accident.
Fairness- People rely on manufacturer ( i.e. advertisements, consideration of fairness)
Administerability – Minimize the number of suits (administrative costs)
Information Access – Manufacturer knows better what caused the accident.
Note: Traynor’s doctrine is called absolute liability. If the product caused the injury then
the manufacturer is liable.
All that is needed is causation. THIS DOCTRINE HAS NEVER BEEN USED OR
ADOPTED ANYWHERE OR AT
ANYTIME EVER!!
Example of standard test:
Lucy Web case Hospital was held up to its own standards. As would the manufacturers in
these cases. Due to strict
products liability it does not matter how much care is taken under this circumstance. The
individual unit, which caused
the accident, did not conform to the manufacturers standard. It is liable regardless to how
much care was used.
If we can’t find out what the defect was or the product had been destroyed. We can use
Res Ispa Loquitur – The fact
that it exploded proves negligence or that the accident occurred. The Ð can reach the jury
without identifying the specific
defect.
Pouncey v. Ford Fan blade broke due to high level of occlusions. Tried under both
manufacturing and design defect.
This is actually a negligent product liability case, so Ford could have won the case if they
had presented evidence about
their quality control practices. Causation was difficult to prove. Pouncey used expert
witness to say that defect was
already in the product at time of manufacture.
Moore v. Jewel Tea p.772 Exploding Draino can case. Case illustrates use of res ipsa
loquitur because evidence was
destroyed. Also shows that manufacturing defect can be proven when there is a
propensity in the product for the risk
to occur when it is manufactured and not actual risk. P won on mfg and design b/c better
design would have prevented.
Design Defect for Drugs: You do not compare the overall risk and benefits or foreseeable
risks when you put it out at
the time of trial. Instead, you compare the drug with the risk and see if it can be reduced
without losing its effectiveness.
Must compare with competitors.
Manufacturer Defects
Strict liability applies when a product containing a manufacturing defect, or is
unreasonably dangerous to the user,
results in a product that does not conform to the manufacturer’s specifications; the flaw
occurred in the manufacturing
process, making the product more dangerous than it was intended to be. (Defective food
products fall into this
category.) The plaintiff need not prove negligence in creating or failing to discover the
defect. Reasonability does not
apply. However, the manufacturer must be engaged in the business of selling such a
product; the product is expected
to and does reach the user or consumer without substantial change in condition in which
it is sold;
The strictest type of strict liability is construction or manufacturing defect (this is where a
particular unit deviates from
what the manufacturer intended). This is relatively strict liability, negligence does not
matter, no reasonableness balance,
no measure of cost vs. benefits.
Prima Facie elements
1. Product had a deviation from the manufacturer’s products design (Cepeda case)
2. The deviation was in the product when it left the manufacturer (hardest to prove).
Must get specifications (see page 23 of Outline).
3. The deviation had to have caused the injury(proximate cause)
Restatement 3rd Products Liability
(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.
Defenses
1. Assumption of Risk: If the user or consumer discovers a defect and is aware of the
danger, and nevertheless
proceeds unreasonably to make use of the product and is injured by it, he is barred from
recover. In most comparative
negligence states, they apply the same comparative negligence rules negligence cases.
2. Comparative Fault: In jurisdictions that have adopted comparative negligence, a
plaintiff who is found guilty
of contributory negligence will have her damages reduced by the extent to which
(percentage wise) the plaintiff’s own
negligence contributed to her injury, despite the fact that the P is suing on strict liability
theory and despite the fact that
P’s contributory negligence did not involve an assumption of risk and therefore, was not
a defense prior to the adoption
of comparative negligence (See Daly v. General Motor Corp.). Comparative negligence
does not constitute a complete
bar to P’s recovery, as courts may be more willing to look at P’s conduct.
Disclaimers
Contractual disclaimers of liability generally have been held invalid as against public
policy-at least as to products
liability claims involving personal injury arising out of consumer transactions. However,
courts may uphold
contractual disclaimers as between two business concerns with equal bargaining power.
Warning Defects – Easiest to prove
“The duty to warn in the strict liability cause of action is based on the notion that absent a
warning or adequate warning,
a product is defective, in that it is not reasonably fit, suitable, or safe for its intended
purposes.” Freund v. Cellofilm
Properties, Inc., 87 N.J. 229, 242 (1981)-leading case on strict liability for failure to
warn. Also applies if a product does
not otherwise contain a defect, but is unreasonably dangerous and the manufacturer fails
to give proper warning or
proper directions as to its use. “When a plaintiff sues under strict liability, there is a no
need to prove that the mfr knew
or should have known of any dangerous propensities of its product-such knowledge is
imputed to the mfr.” [Freund]
Supplier may defend against a strict liability action with the fact that the “state of the art”
was not such that he should
have known the danger. The statute now limits the information to adequate or reasonable
warning.
Three types of warning defects
No warning – easiest, not common;
Warning should have been “graphic” or “symbolic warning,” or be reasonably placed in
sight of consumeropen/obvious);
“State of the Art” Better warning could not have been given because risk could not have
been
known or knowable.
Prima Facie elements:
The P was injured using the product (in all products liability cases).
Used in a reasonable foreseeable use or misuse (in all products liability cases).
The warning was defective and could have been better. The instructions did not give an
adequate warning of
product risk or handling of the product (general: for foreseeable users);
Risk is not “open and obvious” in sight of consumer (some jurisdictions);
5) Causation: would a better warning have made a difference to P? What did the P
have after the warning (injury)?
There is a heeding presumption presumed, but it is rebuttable. Burden on defendant to
show persuasively that the better
warning would have made a difference.
RUB- How much cost to increase safety of product? B<PL If burden, low, any chance
would outweigh risk of “printing”
another word. Negligent not to have better warning.
Heeding Presumption: Evidence is self-serving. If a warning is found to be defective
because a better warning was
warranted, then the courts presume that P would have followed better warning and
reduced injury. D must do more
expressing incredulity. Coffman v. Keen (asbestos case) P was a bystander exposed to
asbestos when working in
confined quarters on a naval ship and later was diagnosed with pulmonary asbestosis. No
warning was given as to
hazards. There is a rebuttable heeding presumption that P would not have exposed
himself to asbestos had he known
the risks and avoided injury. This may constitute proof that defendant’s failure to warn
contributed to his injuries).
In this case, P had to prove that the defect existed when the product left D’s control and
that the defect caused the
injury to a reasonably, foreseeable user. More importantly, P must prove that the defect in
the produce proximately
caused his injury (Michalko v. Cooke Color & Chemical).
Restatement 3rd Products Liability 2(c) (1999) 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 warning 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.
Restatement 3rd – Pro industry
Advocates retaining the “state of the art defense” See O’Brien v. Muskin Corp.
It wants to limit the scope of liability, by not requiring manufacturer to only warn the
average user instead of
the people who would actually use the machine or product.
The manufacturer does not have to warn about a product’s risk which was obvious.
(“Open and Obvious
Doctrine.”)
Information Overload – If courts require mfg to warn of open and obvious risks it will
distract from more
important stuff. Courts rejected manufacturers giving too much information.
Note: Reasonable means comprehensible to average user giving a fair indication of nature
and extent of danger to
reasonably prudent person (RPP)
Two interpretations of reasonable:
1. Average User: Warning has to be comprehensible to the average user, and giving a
fair indication of the
nature and extent of the danger to an RPP. (Pro-defendant). See Campos v. Firestone &
Rubber Handout (pg.202)
Warning case. Tire explodes while employee is filling inner tube. A duty to warn is not
automatically extinguished
because the injured user or consumer perceived the danger. A better warning could have
been given.
2. Best Possible Warning: The risk is reduced to the greatest extent (Pro-Plaintiff). Now,
NJ state statute
replaces "best possible warning" with "adequate warning. See Bashada v. Johns-Manville
handout pg. 45 Class action
suit for asbestos. Judge Pashman tries to create landmark case by saying “State of the Art
Defense” doesn't matter.
Institutes imputing knowledge/hindsight test. This case was widely criticized because it
forced manufacturers to warn
of risks that were not knowable at the time. Totally irrational. Latin says that policy
arguments were strong for holding
manufacturers liable, as they are in best position to find and deter risks and they benefited
from the product and should
also be held liable for its dangers. The court tried to decide the case on a warning defect
theory. The warning in this case
was not defect b/c the risks were not foreseeable to the manufacturer. The court in this
case should have used a policy
argument to hold the manufacturer liable. The manufacturer is in a better position to
spread the cost and also it is not
fair to impose liability on an innocent P.
P should have the right to show that the harm out weighs the benefits
The risks can be reduced to the greatest extent possible without lessening the value of the
product.
The product is unsafe if the better warning is cheaper then the risk.
Note: (Latinism) Plaintiff attorney will always have a better warning. Given the
vagueness of warnings the
manufacturer should never be able to have a bad product design and fix them with a
warning. Warnings are so
ineffective that the manufacturer should not be excused from making a product that is
safe. A good warning is not an
excuse to protect companies from liability.
Warnings have different effects on different people, we are looking at the reasonably
prudent person. There is no really
meaningful or effective standard. Instructions or directions on how to use the products is
also considered under warning
defects. Note: Virtually all design defect cases are warning cases.
Damages
(1) Compensatory damages – Compensate the injured P for the tortuous or illegal lost that
was suffered. Use
B<PL. If burden low, any chance would outweigh risk of printing another word, etc. If
better warning could reduce the
risk, then the cost of the warning is negligible; any additional safety outweighs the
additional cost.
(2) Punitive Damages (New Jersey Statute pg. 72). Intent is to punish bad behavior.
Very few cases, compensatory damages are not needed for punitive damages.
Statute does not tie the two damages together
There is a doctrine problem that knowledge of risk and leaving of risk in product is
enough to warrant punitive
damages.
No clear legal boundaries
We want to know of every risk
Must remove some of them (balance the costs and risk to save $)
Two separate trials:
Products liability tort suit for compensatory damages
Then have another trial for punitive damages
a. Prevents evidence of badness and wealth from going into first trial.
b. In general awards are infrequent.
Behavior: D’s behavior was sufficiently bad that the jury would find that the words were
descriptive of behavior
(wanton/reckless/malicious; evil).
Gillham v. Admiral handout p. 99 Television sets that exploded into flames and injured
P. The D Knew of the risk and
left it in knowing of the danger of fire. Here, the D had to pay punitive damages, even on
appeal.
Grimshaw v. Ford Motor Co. p. 916 Pinto case: Knew of the risk and analyzed the cost of
fixing the problem and decided
against it. Not a clear case of punitive damages. Cheaper to pay injured parties than to fix
it. Here, there was also punitive
damages, but Latin, was not sure if this was right.
Note: This led to workers compensation. The employee gets a recovery from the pool if
he is injured in a work-related
capacity. P cannot sue the employer so they sue others. If an employee injures a third
party then the employee is liable.
If an employee injures another employee, the injured employee can’t sue the employer,
they must sue the other employee.
(Fellow Servant Rule)
Note: Virtually all design defect cases are warning cases.
Latinism: In no cases are the medical risk found by the manufactures or FDA.
Independent doctors, and scientist who
see a problem and mobilizes the medical or scientific community find the dangers.
Manufactures spend time denying
information and not finding problems.
Meistrich v. Casino) p 350 Ice skating rink had duty (responsibility) to keep ice smooth,
P exposed herself to the uneven
ice, although she knew it was not safe. Court decided to treat as secondary assumption of
risk or comparative
negligence.
Feldman v. Lederle Labs (handout) Father, a pharmacist, gave daughter Declomycin for
UR infection that cause teeth
to turn gray. No warning as to side effect. This case rejects Bashada's hindsight/imputing
knowledge test and imposes
a foreseeability test and a post-sale duty to warn. Court finds that defendant should have
told plaintiffs about
discoloring of teeth once they found out about it. The risk was not known when the infant
first started taking the
medication, but was later realized. Imposed a foreseeability requirement. Ridicules the
notion of not being able to warn
when there is no way to warn. Shreiber did not address the policy arguments that Bashada
used. Manufacturer must
warn about the risk that became known after the sale. An important and powerful
holding. This is the post “duty to
warn” doctrine.
Latinism – When product was marketed out the level was 10 by trial it was at 1000. What
is the treatment when the
risk was smaller (If risk is knowable, but actual risk turns out to be much higher).
Defendant’s Defenses to Warning Defects
1. Open and Obvious Doctrine: Part of Rstmt 3rd: Manufacturer doesn't have to warn if
something is open and obvious,
as the extra words bog down important warnings.
2. Learned Intermediary Defense: Says that manufacturer owes a duty to reasonably
inform the doctor or expert, but
doesn't have the responsibility to warn the user. It's a defense against inadequate
warnings for drugs. Still accepted by
2/3 of jurisdictions when it comes to over-the-counter drugs, but not prescription drugs.
McDonald v. Ortho rejected
the rule because birth control pills were marketed without full consultations. Not part of
Restatement (Third).
3. State of the Art Defense: Defendant is required only required to warn of dangers that
were or reasonably should have
been know to him at the time of delivering the product. The supplier may defend against
a strict liability action with the
fact that the “state of the art” was no such that he should have known the danger. Rest
3rd the risks of unknowable
risks fall upon the Plaintiff. Negligence test-risk must be foreseeable.
Restatement (Third) Torts 2(b) p 749: Attempts to change by putting in “forseeability”
language to convey adequate
information and eliminate heeding presumption and oppose the “open & obvious” factor.
It protects the “state of the
art defense.” It takes a pro-defendant approach, but have not persuaded the courts by
doing so since it is not Law and
written by ALI. (Basically, it says no to the 2nd Test and Barker test and incorporates the
consumer expectation test into
their statement. This will take it back to “pure” negligence, because it loses hindsight and
adds forseeability.)
O'Brien v. Muskin Corp handout #4 pg.176 Removed “State of the Art defense”
(temporarily) in NJ. State of the Art
evidence is implicitly included in the factors employed in the risk/utility analysis adopted
in Cepeda. Court finds that
pool maker cannot use State of the Art defense to escape liability. Court allowed plaintiff
to argue overall benefits/risk
superceded “State of the Art” defense, a controversial ruling because many products take
this defense like cigarettes,
alcohol, and certain chemicals.
Cepeda v. Cumberland Engineering Co: Plaintiff employee was injured using machine
without safety guard. Established
RUB Test in NJ. The courts were not interested in an alternative product. The D used
consumer expectation as a shield.
The product did what was expected of it to do. They used the Wade factors and now it’s
known as the Cepeda factors.
Suter v. San Angelo Foundry and Machine Company: Handout Plaintiff injured at work
when hand gets caught in sheet
metal rolling machine. Court changed DCUD language to "fit, suitable, and safe for
intended or foreseeable purposes."
Also overrules Cepeda in holding that contributory negligence is a viable defense when
an employee in an industrial
setting uses a machine in an intended or foreseeable manner.
Plaintiff's Line of Attacks
Post-Sale Duty to Warn: Manufacturer puts out warning even though there was no know
risk at the time of
manufacturing, but a risk later develops. Pro-consumer.
Causation in Warnings: The plaintiff has to show that a better warning would have made
a difference for that particular
plaintiff. See Campos v. Firestone: Court rules plaintiff would have stuck hand in cage
even if graphical symbols warned
him not to, as he had been injured before and ignored dangers.
Heeding Presumption: (p 820) If the manufacturer gave a defective warning, the jury can
presume that the plaintiff would
have heeded a good warning if one had been given. This allows the plaintiff to get over
the hump of causation. Creates
a rebuttable presumption that the plaintiff would have followed the better warning. RST
(Second) comment “j” rejects
the heeding presumption. RST (Third) also rejects heeding presumption, but majority of
jurisdictions continue to use
it.
Important in proving causation.
Rebuttable presumption (by the D) that says that they would have done something
different if the warning
was good.
Restatement third rejects the heading presumption.
N.J. and majority of jurisdictions use this.
To overcome heeding presumption in failure to warn cases involving a product in the
workplace, the manufacturer must
prove that had an adequate warning been provide, the P-employee with meaningful
choice would not have heeded the
warning. (Coffman v. Keene Corp.)
McDonald v. Ortho p. 805 Plaintiff suffers stroke from using birth control pills. Jury
decides for plaintiff on grounds if
word "stroke" were on the package, it would have stopped her from using the pills.
Jackson v. Coast Paint & Lacquer Co. (p 818 note 5) P painting in an unventilated area.
A/C inhaled the fumes into the
kitchen where fumes came into contact w/ pilot light and fumes ignited. P proved D
should have provided a better
warning.
Risk Utility Balance – If this was used 100% of warning cases would win. The risk
would be reduced to the greatest
extent. Then any safety improvement would mean that it was not the best warning.
Legal Continuum
Reasonable
Best feasible warning
Risk reduced to greatest extent
Note: Hindsight. Good for P. Based on the most recent information of risks known, but in
negligence it is at the time
that the P was exposed to the product.
Treatment of comparative negligence under strict liability (Products Liability).
P’s Behavior/Effect on recovery. When P behavior voluntarily or unreasonably exposes
themselves to known
danger:
Contributory Negligence
(Minority)
Comment N
Daly (Majority)
Suter
Scope
Any
unreasonable behavior
P voluntarily and
unreasonably chose
to encounter a known
risk; must know of the
danger.
Any
unreasonable
behavior
Comment “N” Work
place injury not
voluntary, cannot
find comparative
negligence.
Effect
Bar to recovery
Bar to recovery
(Lee case)
Apportionment
Crashworthiness
“pure”
comparative
negligence
Apportionment
Comment “N”
Three requirements:
Knowledge of the dangers;
Unreasonable;
Voluntary act and/or exposure;
Once all 3 requirements are met, then comparative negligence is met. New Jersey must
meet “n” requirements, otherwise,
no apportionment and D must pay all. See Suter (did not know he could start machine by
bumping into it). Suter
reversed Cepeda and applied “n” factors since D knew the hand-guard was not there and
operated machine anyway.
This was unreasonable. Must have trial to determine if requirements were met. Suter
said act was voluntary in the
employment context. In O’Brien, “n” factor may apply since he voluntarily jumped into
pool, which was unreasonable.
Question is whether he knew risk. If so, he meets all factors.
Contracts
1. Express Warranties: When a manufacturer makes a specific claim that a product or
some attributes of a
product is safe. Expressed representation of safety.
The manufacturer should be held to the explicit representation.
Courts have to draw the line between puffery and explicit representation.
In some jurisdictions consumer must have read and relied on the express warranty.
2. Implied Warranties: In the 1940’s the courts started using implied warranties. Implied
habitability
(landlord/tenant). If nothing is said regarding a warranty or an explicit statement to the
contrary, an implied warranty is
present. Many manufacturers now include disclaimers to protect themselves against the
implied warranty.
Implied Warranty of Merchantability: Under UCC 2-314, every commercial seller
warrants that the goods he sells
are of “fair average quality within the description” and “fit for the ordinary purposes for
which such goods are used”
unless this IWofM is clearly disclaimed or modified (must be reasonably safe, no
forseeability required).
Implied Warranty of Fitness for a Particular Purpose: Under UCC 2-315, when a seller
knows of the buyer’s
particular purpose for certain goods and that the buyer is relying on the seller’s skill or
judgment to select a product
appropriate for such needs, the seller impliedly warrants that the goods are fit for that use.
This IWofF applies whether
or not made by a commercial distributor. The other issues are essentially the same as
those applying to the UCC theories
(fit for intended purpose).
Henningsen v. Bloomfield p.739 Landmark case in New Jersey Supreme Court implied
warranty of habitability and
fitness meaning that the product must be reasonably safe and making it disclaimer proof.
Now the manufacturer is
liable to buyer, and dealership or an expected user.
Privity of Contract
Should control of dangerousness of product be determined by agreements between parties
v. society/legislature?
K Torts
Privity Negligent PL (product liability)
Res Isp Loquitor- If it went wrong it was negligence.
When a product malfunctions it is more likely than not the manufacture fault.
A powerful force for limiting the scope of potential liability. The only party that they are
liable to are those who they
have the contract with, since they bargained for it. (This was to promote business and
entrepreneurial ventures)
Privity is dead for consumer contracts, But still enforced for commercial contracts
Winterbottom v. Wright pg 719 Coach driver tries to sue manufacture, can’t sue
employer or the Post Master
General. The manufacturer has no liability due to privity of contract.
The government cannot be sued unless it allows it. It is rationalized because people
should not be allowed to sue the
government since its money comes from the people.
There is an agreement that the coach would be in good condition and the P is arguing that
it was not in good
condition and did not live up to the standards agreed upon.
McPherson v. Buick Motor Co. Wheel spoke crumbles, D did not manufacture product,
but failed to inspect.
Fundamental difference between full negligence and strict liability – As of what time you
consider different
properties, when the manufacturer puts the product in the stream of commerce or at trial.
Wrongful Death Cases
Two Views:
1. No recovery for lost opportunity unless it was probable that “but for” D’s negligence
P would have lived;
this is a 50% or greater probability. P can recover 100%
2. P can recover for lost chance/opportunity, if the loss of chance was a substantial
factor; that is 49% or
lower.
P only recovers his lost chance 37.5%
Miscellaneous
MODE OF OPERATION
Owner assumes responsibility for customers who dropped something on the, floor and an
accident is caused.
Plaintiff doesn’t need to show actual or constructive notice if store owner could
anticipate.
GOOD SAMARITAN SITUATIONS
General Rule: there is no duty to act affirmatively for the benefit of another; law will
distinguish between
nonfeasance (there was a duty and you failed to act) and misfeasance (there was a duty to
act, but you did it wrong)
malfeasance (you just do the wrong, regardless of duty, you are not legally obligated to
be a Good Samaritan, unless
there is a statute, i.e., Vermont GS statute; there are more, but you don’t have to know
them).
Why Good Samaritan is not universal?
1. It is impossible to enforce
2. Political Argument- gov’t should not interfere with personal autonomy
3. Helping out someone is the RIGHT thing to do as compassionate human beings
OBLIGATIONS TO OTHERS
1. When there is a Special Relationship (as in innkeepers/guests and carrier/passengersthese types are a
hybrid w/contractual duty, b/c/ there was a money exchange). See Harper v. Herman
(guy dove off a boat and hit his head on lake bed. He was invited by another person, not
the ship captain)
RULE: no duty [to warn] unless there is a special relationship.
2. When there is Contractual Duty. Where there is reliance or elements of consideration,
a K relationship exists
so as to legally impose a duty to act or prevent harm. Strauss v. Belle Realty See also
Moch Warehouse
v. Rensselaer Water Co. (guy slipped on common area stairs during a blackout, and sued
Elec. Co.) RULE: Elec. Co. owed
duty to landlord and not the tenant. To find for the tenant would allow unlimited liability
for accidents during blackout.
3. When there is an Assumption of aid/risk on a social venture. See Farwell v. Keaton
(guy was beat up when
he and his friend hit on some girls; his friend put an ice pack on him and dumped him off
at his grandmother’s house.
RULE: if one voluntarily starts to assist another, the person voluntarily enters into a
relationship and is thus responsible
for a failure to provide reasonable care [not extraordinary ER kind of stuff]
Restatement, 2nd § 325: If you voluntarily aid someone, you can’t leave that person in a
worse condition prior
to your aid.
FIREFIGHTER RULE: Civil servants, i.e. police, fireman, etc, cannot recover injuries
suffered on the job evolved from
the line of thought that public servants are licensees and took the property as they found it
to today, here they assume
the risks that come with the job. Policy dictates that they should not be compensated for
hazards that create a
need for their service b/c they are hired for that purpose. See Zanghi v. Niagra Frontier
Trans (Police man slips and
falls on a steel plate as he was attempting to reach a picketer packing a snowball.)
RULE: officer was in the line of duty;
no recovery, it was part of his job.
OBLIGATION TO CONTROL CONDUCT OF OTHERS
There is a duty to warn [or to take reasonable action to prevent the danger, like calling the
police] once a person
knows or should know that his patient presents a real danger to a 3rd party. See Tarasoff
v. Regents of the University
of California There was a duty to warn, in addition the 3rd party was foreseeable and
identifiable.
Arguments against disclosure of danger
1. Warning may give rise to arrest under false pretense;
2. Warning victim can cause personal adverse effects;
3. Breach of confidentiality can harm doctor/patient relationship;
4. Difficulty in predicting violent tendencies and possible harm - advice does not equal
reasonable control;
Conboy v. Mogeloff. Duty to warn to also extended to non-medical relationship;
See Vince v. Wilson (harm to people also counts); Pamela v. Farmer (grand aunt bought
a car for nephew, but nephew
was a bad driver, criminal, and drug addict; he eventually was injured in the car).
RULE: person who supplies a chattel is liable if he knew or has reason to know of
impending dangers due to
inexperience, youth, or otherwise incompetence; negligent entrustment doctrine:
negligent in entrusting the car with
someone who negligently operates the car. If alcohol is served, there may be liability
(Kelly v. Ginwell).
BYSTANDER CLAIM - EMOTIONAL HARM
1. No zone of danger required but must meet Portee/Dillon Test. See Portee v. Jaffee
2. There was a death or serious bodily injury caused by negligence
3. P was in near perception of accident [seeing it on TV doesn’t count]
4. There must be a close relationship to the victim (sometimes extended but close family
members are OK, i.e.
in Hawaii)
5. There must be a shock (physical manifestation) resulting from witnessing the accident
Portee v. Jaffee (a mother watched her trapped son get crushed by an elevator; she later
sought psychiatric counseling.)
Social Policy Arguments in Detail:
1. Deterrence or preventative
Imposing liability for risky behavior;
2. Loss spreading/compensation (spreading the cost of an accident throughout the entire
business)
a. Enterprise liability – costs of accident should be spread out through the entire
business.
b. Raising costs to cover insurance.
3. Reduce Transaction/administrative costs.
Rand Agency Investigation (asbestos case). They determined that for every $1 spent,
only $0.37 was
reaching the plaintiff and the other $0.63 was being consumed by transaction costs.
4. Fairness
Always try and turn this around. If it can be done, the argument is not successful.
5. Retribution (as punishment for bad actions or behavior)
Ford Pinto case.
6. Information access
a. Persons with more access to information should be more liable than those who do not
have access.
b. Subcategory of deterrence or fairness (baseball stadium/statistics as to injuries
depending upon
where you sit-statistics).
Justice
a. Coherence: Understanding outcome of the case law;
b. Consistency: Like cases should be treated alike;
c. Predictability: People should be able to make judgments based on liability of risk
taken;
Judicial administerability
d. The court must be able to enforce.