Torts Outline - ELLIS
Procedural Notes
I.
General overview of the Adjudicatory Process
a. Investigation
i. Interview client, learn how claim arose (some injured ∏ will be subject to statute
of limitations)
ii. Three categories of money damages available
1. Nominal – small, only in intentional tort cases, awarded to establish as a
matter of public record that ∆ has wronged the ∏ even though no actual
harm occurred.
2. Compensatory – reflect harm actually suffered, e.g. doctors bills
3. Punitive – designed to punish the ∆ for wrongdoing
b. Pleadings – formal proceedings start with a complaint (contains ∏’s claim for relief and
statement of facts on which the claim is based). This institutes the lawsuit.
i. ∆ must answer – admit or deny allegations of fact OR say lack sufficient
knowledge.
1. Vosberg – “general denial” – means the ∏ has to prove all aspects of the
case, denying everything
ii. ∆ can “motion to dismiss the complaint” – if all the facts were true the ∏ would
still not be entitled to recovery, or, failure to state a claim where recovery could
be granted.
iii. ∆ can “motion for summary judgment” – party that brings the motion has burden
to prove there is no case.
c. Trial
i. ∏ lawyer gives opening statement, presents evidence, ∆ can cross examine
ii. ∆ can then “motion for directed verdict” (motion for judgment as a matter of law)
– judge will grant if ∏ fails to prove any element of the case, saying a reasonable
jury would find for ∆ even if believed every fact of ∏’s case. (If denied…)
iii. ∆ lawyer present case, opening statement.
iv. Both parties then can “motion for directed verdict.”
v. Closing arguments.
vi. Judge administers instructions to the jury re: applicable law.
vii. Jury renders verdict (versus a judge that would render a judgment)
1. General verdict – either in favor of the ∏ or the ∆
2. Special verdict – jury’s specific findings of fact made in response to
specific questions put to it by the trial judge, furnishes facts for the trial
judge’s decision either in favor of the ∏ or ∆.
viii. Can have a trial w/o a jury
1. Either party can request a jury
2. Many reasons why might choose to do trial w/o jury, expedite trial:
a. Eliminate jury selection
b. Stream line
c. Less formality, many evidentiary rules in place so as not to
prejudice the jury
d. Don’t need to proceed day to day, versus with jury where need to
meet timeline of consecutive days.
e. Evidence can be submitted in more informal ways
f. Example of a case: Garrett v. Dailey (5 ½ year old pull chair)
ix. Olden days – rule nisi
1. Wants the court to enter a verdict for the ∆ unless the ∏ can show that it
was an assault, it’s a rule from a superior court to show cause. See: Read
v. Coker (page 655)
2. [Latin: unless] (Of a court’s ex parte ruling or grant of relief) having
validity unless the adversely affected party appears and shows cause
why it should be withdrawn.
3. Moving party goes to court of common pleas and obtains from them a
rule nisi. In this case it is comparable to an “order to show cause.” It’s
an ex parte motion, one moves in order to show cause and the opponent
does not get to be heard whether the order will issue. An order to the
opposing party to show cause why something shouldn’t happen. In this
case it is an order to show cause why judgment should not be granted for
the ∆. The rule nisi is granted and then the court and then discharges the
rule that the ∏ has met the causation requirement. Read v. Coker.
4. Rule nisi – A “rule” is an order from one of the superior courts, and a
“rule nisi” is such an order “to show cause.” That is, the rule is to be held
absolute unless the party to whom it applies can “show cause” why it
should not be so.
x. Losing party can move for “JNOV” (judgment notwithstanding the verdict) –
judge would allow this if against weight of evidence, excessive damages
awarded, procedural errors during trial, or if verdict could manifest injustice.
Either party can “motion for a new trial” if verdict appears to judge to be against
clear weight of evidence. [Need to look at evidence in the light most favorable to
the non-moving party].
d. Exceptions to regular trial procedure
i. Garret v. Dailey and Hackbart (football) – Trial Court hears all the evidence and
reaches a decision based on that evidence. Trial judge makes finding of fact
AND determines the law. Appeals court remands for a reconsideration of the
evidence (findings of fact by the trial court).
1. In the case of Hackbart it was because new issue (not public policy, but
rather if ∏ had a personal tort claim).
2. In Garret it is remanded for a re-examination of the evidence. Upon reexamination the trial judge decides the case differently.
e. Appeal – only issues that can be appealed are decisions about the law by the trial judge.
i. Appellant court has 3 options
1. Reversed and remand the case
2. Affirm the trial courts holding
3. Just reverse case and enter judgment for the appealing party
a. The trial judge can go beyond this range of discretion and then
the Appeals Court can state the trial judge had an abuse of
discretion. The trial judge decision was outside the range of
reasonableness. Sindle (boy jumping from school bus – false
imprisonment case).
ii. Be aware of the process of “wearing out your opponent”
1. Court costs: fees for expenses that the courts pass on to attorneys, who
then pass them on to their clients or to the losing parties
2. Vosberg – third trial was avoided with upon Putney’s motion, the suit
was dismissed based on Vosberg’s failure to pay court costs associated
with the prior appeals and to reinstigate the suit in a timely fashion.
iii. If no directed verdict, directed motion – just appealing against verdict against
you – then the appeals court needs to look at the evidence in view of the light
most favorable to the non-moving party [party that the jury found in favor of in
the trial court] and assume any conflicts in the evidence are resolved in favor of
that party. I.e. in City of Louisville v. Humphrey since the jury found for the ∏,
they assume the facts are in the light most favorable to the ∏.
II.
The law fact distinction
a. Jury is the finder of fact, Judge is the ruler of law
b. Negligence cases
i. Determination of applicable general standard of care is one for the judge
ii. Determination of whether the ∆ failed to meet the standard is a question of fact
for the jury.
iii. Negligence is labeled “fact” but it is neither law nor fact but rather the
application of the laws to the facts. Just call it fact because the jury plays an
important role in applying the law to the facts.
Courts in Admiralty
I.
United States v. Carroll Towing (negligent care for barge, sink and lose cargo admiralty
case). This is not a common law case, but rather tried in court of Admiralty. Originally in
England, admiralty cases were heard by a board of admiralty generally composed of
Admirals. It has to do with liability on navigable waters. There is no jury, decided by board,
and a fighting issue during Revolutionary war because England used admiralty process
against colonists because no jury. So US courts – kept the jurisdiction and handed it over to
the federal courts (admiralty jurisdiction). Generally would have judges that were “sitting at
admiralty” rather than “sitting at law.” The procedure is different for these kinds of cases. In
admiralty we’re trying to adjudicate disputes between the vessels. Damages based on relative
faults of the two ships – if only one at fault then they pay all damages. If both liable then
damages are a matter of degree. This is what is going on here – trying to prove they are both
at fault so Carroll Towing doesn’t have to pay all of the damages.
a. Good thing about admiralty cases – since no jury we have a full explanation of the how
the judge came to his decision. No closed door decision making.
b. Admiralty courts have now been meshed into regular courts. This wasn’t the way it was
at the time this case was decided.
Punitive Damages
## Come back here w/ Owens v. Illinois
Battery
I.
Definition of Battery
a. The (1) intentional, (2) unprivileged (without permission, or without defense), and either
(3) harmful or offensive contact with the person of another.
b. Restatement (Second of Torts):
§13. Battery: Harmful Contact
An actor is subject to liability to another for battery if
(a)
(b)
he acts intending to cause a harmful or offensive contact with the person of
the other or a third person, or an imminent apprehension (threat) of such a
contact, and
a harmful contact with the person of the other directly or indirectly results.
§18. Battery: Offensive Contact
An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of the other
or a third person, or an imminent apprehension (threat) of such a contact, and
(b) an offensive contact with the person of the other directly or indirectly results.
II.
III.
IV.
Intention
a. If you have the intent to do an unlawful act, then the intent is also unlawful (Vosberg).
I.e. desire to commit an act.
i. Vosberg v. Putney (kick at school, kicker liable)
1. If the intended act is unlawful, then the intention to commit the act must
also be unlawful, then the ∆ is liable for the consequences.
2. This was found even though the jury in a special verdict held that the ∆
did not intend the harm.
3. “Thin (or is it thick?) Skull rule” – wrongdoer is responsible for the
wrongful act and all resultant harm even if the consequences are unusual
and unforeseeable. If not, then the injured person could be hurt under
this rule.
4. The code of conduct in a school room (making kick unlawful, ∆ had no
license to kick) versus a playground (making the kick lawful). If on a
playground engaged in the “usual boyish sports” then it’s a reasonable
expectation that someone is going to get kicked.
b. Knowledge with substantial certainty (Garrett)
i. Garrett v. Dailey (5 ½ year old pull chair from arthritic woman)
1. Knowledge at the time that the act was committed that contact or
apprehension would result.
2. Intent can be inferred from knowledge
3. Intention is the either when the act is done for the purpose of causing the
contact or apprehension or with knowledge on the part of the actor that
such contact or apprehension is substantially certain to be produced.
4. It is not enough that the act itself is intentionally done and this, even
though the actor realizes or should realize that it contains a very grave
risk of bringing about the contact or apprehension. Such realization may
make the actor’s conduct negligent or even reckless but unless he
realizes that to a substantial certainty, the contact or apprehension will
result, the actor has not that intention which is necessary to make him
liable under the rule stated in this section.
c. Purpose, motive, desire to harm/offend/violate personal
dignity/insult/embarrass/humiliate/create fear or apprehension (Leichtman, national anitsmoking advocate). Stronger than knowledge with substantial certainty. Use K w/sub
cert. to determine purpose/motive.
d. Transferred intent – if a battery happens to a 3rd and unrelated party.
e. “Doctrine of constructive intent” – knowledge based intent?
Unprivileged – See Defenses, defenses can be non-consensual privilege.
Harmful or Offensive Contact
a. Harmful
b. Offensive
i. § 19 – “A bodily contact is offensive if it offends a reasonable sense of personal
dignity.”
ii. Can have offensive contact that does not cause harm – for example, an unwelcomed kiss.
iii. Offensiveness rises out of the circumstances where the contact would occur.
Circumstances contribute as to whether the contact is offensive. (Fisher).
iv. “For the purpose of causing physical discomfort, humiliation, and distress.”
Leichtman v. WLW Jacor Communications, Inc.
1. National anti-smoking advocate had radio talk show host blow smoke
deliberately in his face.
2. Remanded for trial court to seriously consider the battery claim as
“offensive contact”
3. Ohio common law holds that when smoker intentionally blew cigar
smoke in guests face they committed a battery. Tobacco smoke as a
“particulate matter” has the physical properties capable of making
contact. Ohio Adm. Code 3745-17.
4. The word “purpose” says that the ∆ had desire/motive/intent to blow the
smoke in his face. The word “purpose” also has significance in
“offensive” contact complaint because “even a dog knows the difference
between getting tripped over and being kicked.” If antismoking advocate
then he would be offended, but if done w/purpose you’d be likely to be a
lot more offended. The ∆’s attitude and purpose enhances the injury to
the ∏ or one might so argue.
c. Contact
i. Contact can be with an extension of the body (Fisher, plate grabbing)
1. This is what distinguished the act in Fisher as being a battery as opposed
to an assault (merely a threat). Need contact in battery. What bothered
Fisher was what was said when the plate was grabbed. It’s convenient
for Fisher’s purposes that there was contact with the plate, because the
injury allows the court to give him liability.
2. Hypothetical in class
a. Grab plate + insult = bad
b. Grab plate before touches + insult = bad
c. Grab plate + “we don’t serve patrons on dirty plates” = good
d. Restatement (Second) Torts:
§ 13. Battery: Harmful/Offensive Contact.
An actor is subject to liability to another for battery if:
(a) he acts intending to cause a harmful or offensive contact w/the person of the
other or a third person, or an imminent apprehension of such a contact, and
(b) A harmful/offensive contact w/the person of the other directly or indirectly
results.
V.
Minors
a. Minors do not necessarily escapes liability for battery
i. Vosburg defendant was a minor.
ii. Garrett v. Dailey defendant 5 ½ year old held liable.
iii. Usually require minors conduct to be willful and malicious
b. Some courts have held that minors are not capable of forming the intent that liability
requires. Only circumstance where age is of any consequence is in determining what he
knew, and there his experience, capacity, and understanding are relevant.
c. Hard because in other areas of the law minors are given special protection because of
their age.
d. Damages
i. Collect from the parents, parents can be held liable for negligence.
ii. Insurance protects against tort liability, exception being intentional torts.
iii. Point: want to force parents to supervise their children and reduce juvenile
delinquency.
VI.
Defenses – see section entitled “Defenses,” II, “Consent”
Assault
I.
Restatement (Second) of Torts:
§21. Assault
(1) An actor is subject to liability to another for assault if
i. He acts intending to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such a contact, and
ii. The other is thereby put in such imminent apprehension.
(2) An action which is not done with the intention stated in Subsection (1,a) does not make
the actor liable to the other for an apprehension caused thereby although the act involves
an unreasonable risk of causing it and, therefore, would be negligent or reckless if the
risk threatened bodily harm.
§29. Apprehension of imminent and future contact
(1) To make the actor liable for an assault he must put the other in apprehension of imminent
contact.
(2) An act intended by the actor as a step toward the infliction of a future contact, which is so
recognized by the other, does not make the actor liable for an assault under the rule stated
in § 21.
II.
Apprehension of imminent contact
a. Must have present ability to carry out threat. (Read v. Coker, paper-stainer lessee case).
This is distinguished in the case between the person threatening in “assize time” [i.e. in
the future] versus in the present, rolling up sleeves, etc. Might not be as important; see
(Beach v. Hancock, gun and rods case).
b. Read v. Coker
i. ∏ was a paper-stainer, rented from ∆. Couldn’t pay, ∆ take goods. ∆ sold back
goods to ∏ at higher price. ∏ can’t afford rent, ∆ pay rent. Form partnership for
their mutual benefit. ∆ becomes dissatisfied and dismisses ∏. ∏ refuse to leave,
∆ gather workmen around ∏, tuck up sleeves, ∏ fear men would strike him. ∏
sue for assault.
ii. Held: Lower court found for ∏. Appeals Court remanded with instructions that
shouldn’t be what the ∏ thought the ∆’s intentions were, should be that there was
an attempt + present ability. Evidence does not constitute assault; need more than
just threat of violence.
c. Perception of the present ability to carry out threat. Discourage assault as a form of
intimidation or coercion. Did ∏ reasonably believe ∆ had present ability to carry out the
threat? Beach v. Hancock (gun and rods case).
d. Beach v. Hancock
i. ∏ and ∆ were engaged in a dispute. The ∆ went to his office, brought out a gun,
and aimed it at ∏ in a threatening manner. The ∏ was 3-4 rods distant (Rod = 5.5
yards = 16.5 feet). ∆ snapped gun twice at the ∏. The ∏ did not know if the gun
was loaded or not. The gun was not loaded.
ii. Held: ∆ is guilty of assault. Proper for jury to consider the result if these type of
assaults were not punished.
iii. Reasoning: One of the goals of the law is that people feel secure against unlawful
assaults. Must be reasonable fear we complain of. If this wasn’t punished “the
business of the world could not be carried on w/comfort.” Need to punish or else
people will assault each other.
III.
New tort: Assault  Emotional distress (State Rubbish Collectors v. Siliznoff)
a. Restatement (Second) Torts
§ 46. Outrageous conduct causing severe emotional distress
(1) One who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional distress to another is subject to liability for such
emotional distress, and if bodily harm to the other results from it, for such
bodily harm.
(2) Where such conduct is directed at a 3rd person, the actor is subject to liability
if he intentionally or recklessly causes severe emotional distress.
a. to a member of such person’s immediate family who is present at the
time, whether or not such distress results in bodily harm, or
b. to any other person who is present at the time, if such distress results
in bodily harm.
Comment: “extreme and outrageous” – liability has only been found where the conduct
has been so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, intolerable in a civilized community. Not enough that ∆
acted w/intent which is tortuous or even criminal, or intended to inflict emotional
distress, or even “malice.” Does not extend to mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.
b. The ∆ conduct is used as a measure of ∏’s injuries. Use this as proxy since no physical
injuries to gage. Question for the jury to exercise own judgment based on personal
experience what kind of disagreeable emotions are likely to result from this kind of
conduct. Inferring injury from the nature of the conduct rather from the examination of
the ∏. (State Rubbish Collectors v. Siliznoff).
c. State Rubbish Collectors v. Siliznoff
i. Facts: S. take garbage account from member of the association. Rule of
association if you take account from member then have to pay. S. intimidated into
writing promissory notes. None were paid. Threatened to pay them or harm
would come to him in the future.
ii. ∆ attorney would be very upset – argued against assault (no present threat, just
future threat), jury didn’t get chance to pass judgment on new tort.
iii. Held: a cause of action is established when it is shown that one, in the absence of
any privilege, intentionally subjects another to the mental suffering incident to
serious threats to his physical well-being, whether or not the threats are made
under such circumstances as to constitute a technical assault. Regardless of
whether is constituted a technical assault, it is still mental suffering. Found
another cause of action in history of cases in California – they have allowed the
recovery of damages when mental distress causes physical injury.
d. Categories of cases that have typically provoked untroubled applications of the tort of
intentional infliction of mental upset:
i. Debt collection practices
ii. Constitutionally protected rights – cesarean section and ∏’s religious beliefs
against been seen naked by a man.
iii. Mishandling of corpses and related funeral and burial services – one reason why
∏ often succeed in actions against funeral parlors may be the peculiar
vulnerability to mental upset of family members in the context of the death and
burial of a loved one. Also could follow the deterrence theory: certain classes of
cases, the chances of detecting wrongful behavior are seriously impaired and
behavior often goes undetected.
iv. Conduct of hospitals and health care providers.
False Imprisonment
I.
Restatement (Second) Torts
§ 35. False imprisonment
(1) An actor is subject to liability to another for false imprisonment if
(a) he acts intending to confine the other or a 3rd person within boundaries fixed by the actor, and
(b) his act directly or indirectly results in such a confinement of the other, and
(c) the other is conscious of the confinement or is harmed by it.
(2) An act which is not done with the intention stated in subsection (1,a) does not make the actor
liable to the other for a merely transitory [brief duration] or otherwise harmless confinement,
although the act involves an unreasonable risk of imposing it and therefore would be negligent or
reckless if the risk threatened bodily harm.
II.
Needs to be a physical restraint, not necessarily physical force - Whittaker v. Sanford
a. Facts: ∏ is member of religions sect, ∆ leader. ∏ say want to leave – gets on boat and
goes from Syria to Maine. When get to Maine, ∆ refuse to let her off ship. She
eventually gets writ of habeas corpus. Allowed on land during this time – went shopping,
picnicked, went to get writ at court.
b. Holding:
i. Jury found for ∏, Appellate affirmed
ii. Damages were too much, does not have the usual humiliation that accompanies
false imprisonment cases.
iii. Instructions were apt:
1. Must show restraint was physical, not merely moral influence (sense of
one being locked in a room). Need physical restraint, not necessarily
physical force.
2. If the ∏ was restrained so that she could not leave the yacht by the
intentional refusal to furnish transportation as agreed, she not having
power to escape other, would be a physical restraint and unlawful
imprisonment.
c. ∏ got damages for loss of freedom, mobility, and movement.
III.
Can not be falsely imprisoned in an entire country – Shen v. Leo A. Daly Co. (court held that
∏’s confinement “was to a whole country” and since he was free to move about Taiwan and
daily activities not restricted in any way he was not falsely imprisoned. Taiwan is too great
an area to be falsely imprisoned.
IV.
If ∏ imply consent and does not revel that they feel confined, then not false imprisonment
a. Rougeau v. Firestone Tire & Rubber Co.
i. Facts: Lawnmowers stolen from ∆ during ∏’s shift as guard. Security manager
investigate. With 2 other employees of ∆ take ∏, go to ∏’s house, and search for
missing property. Return to plant, ∏ asked to wait in guardhouse, guards
instructed to keep him there, ∏ allow to leave when feel ill ~ 30 minutes.
ii. Held: Not falsely imprisoned.
iii. Reasoning: ∏ need to be totally restrained. ∏ never revealed to anyone that he
did not want to stay in guardhouse, thus showing implied consent.
b. Faniel v. Chesapeake & Potomac Telephone Co
i. Facts: Employee suspected of stealing from employer. Accompanied against her
will security people to her house.
ii. Held: Trial court enters judgment for the ∆ employer notwithstanding a jury
verdict for the ∏.
iii. Reasoning: No evidence that the ∏, who agreed to accompany the security
officers to her home, had yielded to threats, either express or implied, or to
physical force. ∏ did not object or ask to leave the car when they took a detour,
thus failing to negate her prior consent to take the trip.
V.
Damages incurred during escapes (Sindle v. New York City Transit Authority)
a. If a ∏ acted unreasonably in its escape, given ∏ has a duty of reasonable care for his own
safety in extricating himself from the unlawful detention, not relieved of this duty
through false imprisonment.
i. It has been held that alighting from a moving vehicle, absent some compelling
reason is negligence per se.
ii. Thus, if the jury finds that the ∏ was falsely imprisoned but that he acted
unreasonably for his own safety by placing himself in a perilous position,
recovery for the bodily injuries would be barred and ∆ would not be liable.
b. Sindle v. New York City Transit Authority
i. Facts: Last day of school, ∏ student, ∆ bus driver. Students being loud led to
vandalism. Driver made several stops, investigated the damages, and told
students they were going to police station. ∆ closed the doors, pass scheduled
stops. Several students jumped from the bus w/o injury. ∏ position to jump, bus
hits curb, ∏ falls to street, wheels roll over body causing serious injury.
ii. Held: Appeals court reversed and remanded ∆ should be able to submit defense
of justification, ∏ should not act unreasonably to get out of false imprisonment.
VI.
Statute approach – False imprisonment could be defined in a statute in which case the way to
analyze it would be to go through the statute piece by piece. Coblyn v. Kennedy’s Inc.
(Massachusetts)
a. Facts: ∏ was a 70 year old man went to ∆ store wearing neck scarf. Purchased a sport
coat, put scarf in pocket. When he was leaving the store pulled the scarf out of pocket.
Goss an employee of ∆ stopped him, demanded where he got the scarf, grabbed him by
the arm, and said better go see the manager. Other people look on. ∏ goes back in store;
another employee notices him and says he’s cool. As result of emotional upset the ∏ was
hospitalized for a heart attack. ∏ claim falsely imprisoned.
b. Held: Found for the ∏.
c. Reasoning: Goss not reasonably justified in believing ∏ committed larceny. Under
statute need reasonable grounds that ∏ commit larceny, reasonable length of time, and
reasonable manner of restraint. Since don’t have one then ∏ can recover. Part of the
concern here is not giving shop keepers more power than police officers to detail.
d. Statute: G.L. c. 231, §94B : In an action for false arrest or false imprisonment brought by
any person by reason of having been detained for questioning on or in the immediate
vicinity of the premises of a merchant, if such person was detained in a reasonable
manner and for not more than a reasonable length of time by a person authorized to make
arrests or by the merchant or his agent or servant authorized for such purposes and if
there were reasonable grounds to believe that the person so detained was committing or
attempting to commit larceny of goods for sale on such premises, it shall be a defense to
such action. If such goods had not been purchased and were concealed on or amongst the
belongings of a person so detained it shall be presumed that there were reasonable
grounds for such belief.” ~ When analyzing need to go through statute piece by piece.
i. Reasoning behind statute: motivated by merchant’s organization, keeps with
common law prudent and reasonable man standard [just codify common law].
ii. Concern: empowering merchants more than police officers
Defenses
I.
Justification
a. Justification defense – a defense that arises when the ∆ has acted in a way that the law
does not seek to prevent. Traditionally, the following defenses were justifications:
consent, self-defense, defense of others, defense of property, necessity (choice of evils),
and the use of force to make an arrest, and the use of force by public authority.
b. Relevant considerations to the issue of justifications (Sindle v. NY Transit)
i. Generally, restraint or detention, reasonable under the circumstances and in time
and manner, imposed for the purpose of preventing another from inflicting
personal injuries or interfering with or damaging real or personal property in
one’s lawful possession or custody is not unlawful.
ii. Also, a guardian entrusted with the care or supervision of a child may use
physical force reasonably necessary to maintain discipline or promote the welfare
of the child.
II.
Consent [standard defense for battery]
a. The ∆ can only be guided by overt actions (O’Brien v. Cunard Steamship Co,
immigration case)
i. Consider in connection with the circumstances
ii. If ∏’s behavior indicates consent on her part the ∆ is justified in the act,
whatever unexpressed feelings of the ∏ may be
iii. Test
1. Subjective – what did this ∆ believe?
2. Objective – would a reasonable person in ∆ shoes believe ∏ consented?
iv. O’Brien v. Cunard Steamship Co.
1. Facts: ∏ immigrant on passage to Boston where there were strict
quarantine regulations. Need vaccination, ship offering it on board. On
day of vaccinations ∏ got in line, held out arm, ∆ looked, no mark, he
poked her with needle; she didn’t say anything, took the ticket and used
it at quarantine.
2. Held: Found for ∆ doctor, appeared as though ∏ immigrant consented.
3. Reasoning: She consented by overt acts. No scar to indicate she had
previously been vaccinated.
4. Public health factor also operating here – quarantine if don’t have
vaccine.
b. Sexual Consent – Consent if female knows the nature and quality of her act. Barton v.
Bee Line, Inc. (chauffeur rape case)
i. Facts: ∏ (15) suing ∆ (common carrier) for rape. ∆ claims she consented
ii. Hold: Female under the age of 18 has no cause of action against a male with
whom she willingly consorts if she knows the nature and quality of her act.
iii. Reasoning:
1. References Penal Law – crime even if female consents, this is NOT a
cause of action, court uses as a basis for civil liability because legislature
enacted for reason: virtue of females, save society les and to save society
from the ills of promiscuous intercourse.
2. Differentiates between: (1) Society will protect itself by punishing those
who consort with females under age of consent; VERSUS (2) When a
female knows the nature of her act, and rewording her for her
indiscretion.
iv. Difference from O’Brien – in O’Brien the ∏ had option of consenting, here its
strict liability and consent does not matter.
v. Burden of proof – if we look at consent as affirmative defense then burden falls
on the ∆. Where the burden falls might determine the outcome of the case.
vi. Rules of law:
1. A person who perpetrates an act of sexual intercourse with a female, not
his wife, under the age of eighteen years, under circumstances not
amounting to rape in the first degree, is guilty of rape in the second
degree, and punishable with imprisonment for not more than ten years.
2. A female under the age of 18 has no cause of action against a male with
whom she willingly consorts, if she knows the nature and quality of her
act.
c. Medical Consent Cases
i. Restatement (Second)
§ 892D. Emergency Action w/o Consent
Conduct that injures another does not make the actor liable to the other, even
though the other has not consented to it if (a) an emergency makes it necessary or
apparently necessary, in order to prevent harm to the other, to act before there is
opportunity to obtain consent from the other or one empowered to consent for
him, and (b) the actor has no reason to believe that the other, if he had the
opportunity to consent, would decline.
ii. Bang v. Charles T. Miller Hospital
1. Facts: ∏ (patients) is suing ∆ (doctor) for battery, doctor cut ∏
spermatic cords, and ∏ claims only gave consent to prostate operation.
2. Held: Remanded, question of ∏’s consent is for the jury.
3. Reasoning: Where a physician or surgeon can ascertain in advance of an
operation alternative situations and no immediate emergency exists, a
patient should be informed of the alternative possibilities and given a
change to decide before the doctor proceeds with the operation.
4. Issue: How far does a doctor have to go with what they reveal?
iii. Kennedy v. Parrott
1. Facts: ∏ (patients) was diagnosed by ∆ (doctor) is appendicitis, during
operation discovered cysts, punctured them, developed phlebitis in the
leg. ∏ (Kennedy, patient) is suing ∆ (Dr. Parrott, surgeon) for battery
(unauthorized operation) to recover damages for personal injuries.
2. Held: When the ∏ voluntarily submitted herself to defendant for
diagnosis and treatment of an ailment, defendant's surgical procedure
was, absent evidence to the contrary, presumably either expressly or by
implication authorized by plaintiff, as good surgery demanded.
3. Rule: When the patient is incapable of giving consent and no other
authority is there to consent for him, consent (in the absence of proof to
the contrary) will be construed as general in nature and the surgeon may
extend the operation to remedy any abnormal or diseased condition in the
area of the original incision whenever he, in the exercise of his sound
professional judgment, determines that correct surgical procedure
dictates and requires such an extension of the operation originally
contemplated. Consent is broad enough to cover what happened here.
4. Unlike Bang Doctor had no notion that a cyst would be on the ovary.
iv. Solution – Contract law?
1. Due to problems physicians’ have with medical malpractice suits, some
suggest that contracts should be drawn up and signed between physicians
and patients ahead of time.
2. Problem with formal agreements – courts need to look behind them to
see if patient actually informed and not coerced. Can get out of contract
if fraud, coercion. If such contracts are enforced they will also insulate
some physicians against unpleasant consequences of their own conduct.
v. Distinguished from negligence and battery
1. Battery  Kennedy – extends operation beyond boundaries of the
consent given. Consent issue.
2. Negligence  when doctor fails to inform/explain to the patient the risk
of the side effects of a treatment to which the ∏ has consented.
d. Custom
i. Professional sports, playground, rough activity – if consent to play a sport or
rough activity and the act falls outside the custom of the sport then it is tortuous.
When customs of the game are such that you are considered to consent to so
“rough-housing” then not tortuous.
ii. When outside of the game and not custom of the sport then one is considered not
to have consented and is still entitled to a tort claim. Hackbart v. Cincinnati
Bengals
1. Facts: The ∆ (football player) hit the ∏ (opposing football player) on the
back of the neck (against rules of football) when the play was over and
the ∏ was on the ground. ∏ says he did not consent to this contact in
violation of the rules of football. Trial court said that ∏ consented –
public policy – professional football is a species of warfare and physical
force is tolerated. Even intentional batteries are beyond the scope of the
judicial process. Appeals Court reversed and remanded saying that no
law denies the application of tort law to football.
2. Consent comes from consent to play the sport. ∏ saying did not consent
to the contact in question. ∆ says he did (defense).
3. Holding: outside of the action of the game and the customs of the game.
Jury needs to decide this question.
4. Public policy: if every time someone got hit they would always bring
suit. Court doesn’t want to deter people from playing football.
iii. See also Vosburg – discussion of playground and “boyish” games – because the
boys were away from play and away from the playground they were outside the
game and the customs of the game
III.
Self Defense
a. Restatement (2nd) Torts
§ 63. Self defense by force not threatening death or serious bodily harm
(1) An actor is privileged to use reasonable force, not intended or likely to cause
death or serious bodily harm, to defend himself against unprivileged harmful
or offensive contract or other bodily harm which he reasonably believe that
another is about to inflict intentionally upon him.
(2) Self-defense is privileged under the conditions states in Subsection (1),
although the actor correctly or reasonably believes that he can avoid the
necessity of so defending himself,
a. By retreating or otherwise giving up a right or privilege, or
b. By complying with a command with which the actor is under no duty
to comply or which the other is not privileged to enforce by the
means threatened.
§ 65. Self-Defense by force threatening death or serious bodily harm
(1) Subject to the statement in Subsection (3), an actor is privileged to defend
himself against another by force intended or likely to cause death or serious
bodily harm, when he reasonably believes that
a. The other is about to inflict upon him an intentional contact or other
bodily harm, and that
b. He is thereby put in peril of death or serious bodily harm or
ravishment, which can safely be prevented only by the immediate
use of such force.
(2) The privilege stated in Subsection (1) exists although the actor correctly or
reasonably believes that he can safely avoid the necessity of so defending
himself by
a. Retreating if he is attacked within his dwelling place, which is not
also the dwelling place of the other, or
b. Permitting the other to intrude upon or dispossess him of his
dwelling place, or
c. Abandoning an attempt to effect a lawful arrest
(3) The privilege stated in Subsection (1) does not exist if the actor correctly or
reasonably believes that he can with complete safely avoid the necessity of
so defending himself by
a. Retreating if attacked in any place other than his dwelling place, or
in a place which is also the dwelling of the other, or
b. Relinquishing the exercise of any right or privilege other than his
privilege to prevent intrusion upon or dispossession of his dwelling
place or to the effect of lawful arrest.
§ 70. Character and extent of force permissible
(1) The actor is not privileged to use any means of self-defense which is
intended or likely to cause bodily harm… in excess of that which the actor
correctly or reasonably believes to be necessary for his protection…
§ 71… an actor who uses excessive force in self defense is liable “for only so much of the
force as is excessive”
b. Where a ∆ in a civil action attempts to use self defense, he must satisfy the jury not only
that he acted honestly using force, but also that his fears were reasonable under the
circumstances; and also as to the reasonableness of the means made use of. Courvoisier
v. Raymond.
i. Facts: ∆ jewelry shop owner’s home was being vandalized by rioters. ∆ took
revolver and went to expel intruders from building. They start rioting. Police
nearby hear shots and come to scene of the crime. The ∏, police officer,
proceeds toward ∆ calling out he is a police officer ad to stop shooting. ∆ shot
∏. Trial Court gave instructions that if ∏ did not assault ∆ then find for ∏.
ii. Holding: Remanded for new trial. Need to consider if there is a justification. (1)
Honestly believed he was being assaulted, even though he wasn’t; (2) reasonable
response to his reasonable fears.
iii. Rule of law: Need to establish that if a reasonable person would believe under
the circumstances he was being assaulted and the ∆ reasonably believed he was
being assaulted.
c. Self Defense and Property, Katko v. Briney
i. Facts: ∆ own farmhouse in ruin. Series of trespassing and housebreaking events,
some theft. ∆ board up home and posted no trespassing signs. ∆ set up “shotgun
trap” in north bedroom. Spring gun pointed to hit intruder in the leg. No sign the
gun was in there. ∏ enter farm house to steal jars, opened bedroom door, was
shot and incurred server injuries. Trial court found for the ∏. ∆ appeals based
on jury instructions: can’t use spring fun unless to prohibit felonies and breaking
and entering is not a felony; may not use force that will take life or inflict GBI
when protecting property; and given can’t use force to take life or inflict GBI,
prohibited from setting out ‘spring guns’ for purpose of harming trespassers.
Only justifiable use of spring fun is if felony of violence, felony punishable by
death, or where trespasser is endangering human life. Appeals Court affirmed.
ii. Reasoning
1. Prosser on Torts – “law places higher value on human safety than on
property rights.” This statement needs modification: use force between
trespasser and petty theft and when landowner would be privileged to use
deadly force (threat to his personal safety or home).
2. Rule – no privilege to use force causing death or SBI to repel threat to
land or chattels unless threat to ∆’s personal safety as to justify self
defense.
iii. Distinguished from Courvoisier because not the Briney’s place of dwelling.
1. If just his store then not justified.
2. If Briney was sitting there then different – threat to personal safety and
Briney would have ability to distinguish if it was a child, etc.
iv. Dissent: Worried about impact in the law and strict liability use of spring-guns.
Should have intent attached to it, if ∆ did not intend to kill then not liable for
anything other than negligence. Fail to instruct jury on intent. Should be sent to
jury because question of ∆’s intention, should not be a blanket ban on the use of
spring guns.
v. Aftermath
1. Only rarely have ∆’s escaped liability for use of spring guns because the
use of such devises is so suggestive of indiscriminate and malicious
intent.
2. The maxim that “human life wins over property” is not consistent with
every day real life activity.
IV.
Necessity
a. For allegation of necessity need necessity of the act but also necessity of the act w/respect
to ∆’s property. Ploof v. Putnam
i. Facts: ∆ owned dock, under charge of ∆’s servant. ∏ sailing on lake with family
when storm hit. To save from destruction ∏ moored to ∆’s dock. ∆’s servant
unmoored the sloop, drove it into the shore, boat destroyed, ∏ and family
injured. ∆ claims that like Katko the ∏ is a trespasser and he had the privilege to
remove him from the premises. ∆ demurred, overruled, and appealed. Appeals
court affirmed and remanded for full trial, ∏ has to prove alleged facts.
ii. Necessity: needs to cover not only the necessity of mooring (the act) but the
necessity of mooring to the dock (the act w/respect to the ∆’s property). Should
be left to jury w/evidence. ∏ needs to prove that it was necessary to moor to ∆’s
dock to save his and his families lives.
iii. See this in New Orleans – if we’re talking about water and food as a means to
survive would this not satisfy the doctrine of necessity?
iv. Doctrine of necessity applies in Mouse’s case – throw casket overboard during
a tempest to lighten the boat and save human lives aboard.
b. Vincent v. Lake Erie Transportation Co.
i. Facts: ∆ moor boat at ∏ dock for purpose of unloading cargo. ∆ had permission
to tie up  unloaded the cargo  finished unloading the cargo  storm came,
left boat moored, continually maintaining the lines keeping the boat fastened to
the dock  caused injury to ∏’s dock. Court found would have been imprudent
to leave the dock, the ∆ proceeded prudently by maintaining the lines to the dock.
∏ claims trespass – stayed at dock after permission expired. Trial court found
for the ∏, ∆ appeals claiming necessity. Appeals court affirms.
ii. Rule of Law: If it is an act of God then the ∆ would not be held liable, but the
∆’s maintained the lines and interfered with an otherwise act of god. ∆ preserved
their ship at the expense of the ∏ dock. Don’t need to compensate when:
1. Life or property was menaced by an object or thing belonging to the ∏
2. Act of God or unavoidable accident the infliction of injury was beyond
the control of the ∆
3. Not here: ∆ prudently availed itself to ∏’s property for purpose of
maintaining its own more valuable property.
iii. Does it make a difference here that we are not distinguishing between life and
limb?
iv. Dissent: it’s an “act of God” and the storm caused the injury, not the ∆. ∆ had
permission to be there, contractual relations. The boat was lawfully in position
and master exercised due care.
c. Restatement (2nd) Torts  combines Ploof and Vincent in §197, recognizing a necessitybased privilege to enter the land of another in order to avoid serious harm to one’s
person, land, or chattels, or to those of a 3rd person. Privilege is coupled with duty to
compensate for harm caused.
§ 197 Private Necessity
(1) One is privileged to enter or remain on land in the possession of another if it
is or reasonably appears to be necessary to prevent serious harm to
(a) the actor, or his land or chattels, or
(b) the other or a third person, or the land or chattels of either, unless the actor
knows or has reason to know that the one for whose benefit he enters is unwilling
that he shall take such action.
(2) Where the entry is for the benefit of the actor or a third person, he is subject
to liability for any harm done in the exercise of the privilege stated in Subsection
(1) to any legally protected interest of the possessor in the land or connected with
it, except where the threat of harm to avert which the entry is made is caused by
the tortuous conduct or contributory negligence of the possessor.
§ 263 Privilege Created by Private Necessity
(1) One is privileged to commit an act which would otherwise be a trespass to
the chattel of another or a conversion of it, if it is or is reasonably believed to be
reasonable and necessary to protect the person or property of the actor, the other
or a third person from serious harm, unless the actor knows that the person for
whose benefit he acts is unwilling that he shall do so.
(2) Where the act is for the benefit of the actor or a third person, he is subject to
liability for any harm caused by the exercise of the privilege.
d. In class hypothetical
i. Assume you own both the dock and the boat – you would do whichever action
costs less. This is how you would determine what the rational owner would do.
Goal is to accomplish the same result with two independent owners. The person
sacrificing another’s property for his own needs to compensate.
ii. ## come back here and look at these hypothetical with someone else.
Negligence
I.
Introduction
a. The basis for liability in negligence is the creation of an unreasonable risk of harm to
another. There are few activities that do not involve some degree of risk of harm to
another. For negligence to be found, the conduct must involve a risk of harm greater than
society is willing to accept in light of the benefits derived from that activity (cost-benefit
approach) – that is, the risk of harm must be unreasonable.
b. Deal with the “reasonable person” standard – amorphous – give it to the jury to decide
what a reasonable person is.
c. First early case recognizing negligence – Brown v. Kendall
i. Facts: Dogs fighting in presence of master, ∆ took stick and beat dogs to break up
the fight, ∏ look on from distance, and advance toward dogs, ∆ hit ∏ in eye with
stick. ∆ request judge instruct that if both using ordinary care, the ∆ using
ordinary care and ∏ wasn’t or if neither using ordinary care then the ∏ cannot
recover. Trial judge denied and instructed that if ∆ act not necessary and no duty
then liable unless exercise ordinary care “in the popular sense.” If jury thinks ∆
had duty, then burden of proof on ∏, if jury believes unnecessary then burden of
proof of ∆. Jury found for ∏. Appeals court remanded for a new trial, the ∆
instructions should have been used.
ii. Point of case – one has to act with ordinary care. Difference with what the courts
say here and modern negligence is about the burden of proof. The ∏ has to show
that the ∆ was negligence, but there is a presumption that the ∏ was using
ordinary care and the ∆ has burden of proving ∏ was not using ordinary care to
escape liability. Notion move from special duty to general duty. Ordinary care
varies with circumstances of the case, once you have circumstances need to look at
what the prudent and cautious person would use required by the exigency of the
case and to prevent danger.
II.
Restatement (2nd) Torts
§ 291: Unreasonableness: How determined: Magnitude of risk and utility of conduct
Where an act is one which a reasonable man would recognize as involving a risk of harm
to another, the risk is unreasonable and the act is negligent if the risk is of such
magnitude as to outweigh what the law regards as the utility of the act or of the particular
manner in which it was done.
§ 292: Factors considered in determining utility of actor’s conduct
In determining what the law regards as the utility of the actor’s conduct for the purpose of
determining whether the actor is negligent, the following factors are important:
(a) The social value which the law attaches to the interest which is to be advanced or
protected by the conduct
(b) The extent of the chance that this interest will be advanced or protected by the
particular course of conduct
(c) The extent of the chance that such interest can be adequately advanced or
protected by another and less dangerous course of conduct.
§ 293: Factors considered in determining magnitude of risk
In determining the magnitude of risk for the purpose of determining whether the actor is
negligent, the following factors are important:
(a) The social value which the law attaches to the interests which are imperiled;
(b) The extent of the chance that the actor’s conduct will cause an invasion of any
interest of the other or of one of a class of which the other is a member
(c) The extent of harm likely to be caused to the interests imperiled
(d) The number of persons whose interests are likely to be invaded if the risks take
effect in harm.
III.
Elements
a. Duty
b. Breach
c. Proximate Cause
d. Injury
IV.
Duty
a. Hand Formula
i. Liability depends on whether B < PL, if B< PL then negligent, if B > PL
then reasonable, or not negligent. If B = PL then not negligent. So if B
≥ PL then not negligent. Think of verbal definition of negligence –
failing to act as a reasonable person in the circumstances would have
done.
ii. As applied in United States v. Carroll Towing
1. Facts: A bargee left his barge overnight. Barge got into
difficulties, broke away, and sank w/cargo in it. Issue of
whether the bargee was negligent in leaving the barge.
2. Held: Appeals Court – Reversed and/or remanded – the burden
of having employee on board is less than the probability the
vessel will break away times the gravity of the injury. Apply
new equation. Need to show that ∆, bargee, was not acting with
reasonable care upon remand.
3. Formula applied in this case: Owners duty to provide against
injuries should be weighed by three variables:
1. (P) Probability the vessel will break away and cause injury in
absence of the bargee [always tie probability to the injury that
actually happened]
2. (L) Gravity of the resulting injury
3. (B) Burden on the bargee of staying on the barge, taking
adequate precautions – the bargee’s freedom.
iii. As applied to recent case in the news, tourist vessel capsizes when wake
hits the boat, all the people move to one side and force the boat to
capsize. 20 people die. Claim company should have had 2 crew
members and they only have one.
1. (P) Probability of ship capsizing had they had the second crew
member aboard.
2. (L) 20 people died
3. (B) Having second crew member on board
iv. Keep in mind that we are looking at this ex post – if looking at it ex ante
then looking at the probability of having to pay damages. Not all cases
where have to pay out damages. ## see notes.
b. Hand formula – with additional condition that need to look at all cases like the
case at hand, not just the individual case. Washington v. Louisiana Power and
Light Co.
i. Facts: Washington was fatally electrocuted when moved radio antenna
and made contact with uninsulated electrical wire. Shock had happened
a few years earlier. Washington request the insulate or move
underground, LPL says only do at Washington’s expense. ∏ sue for
wrongful death of Washington, trial court found for ∏, appeals court
reversed saying ∆ owed no duty, and supreme court affirmed appeals
court.
ii. Hand formula: LPL knew there was a possibility of injury, question is
whether they created an unreasonable harm.
1. (P) Possibility electricity will escape and cause harm to people –
low, Washington learned his lesson the first time, always
exercised care.
2. (L) Gravity of resulting loss is extreme – death
3. (B) Burden or relocating or insulating the power line for all
people
4. (Burden of relocating or insulating power lines) > (high degree
of loss) x (small prob. accident occurring)
5. Focus not just on this case, but all cases like or similar to it. –
In just this case then burden of insulating one line would be
worth it, but, need to think of all similar cases. Great number of
power lines exist, and not overwhelming occurrence of
electrocution
iii. Rule of law: Need to look at whole system, not just individual case when
evaluating the burden. It’s impractical to look at on a case-by-case basis.
If you do it for one then everyone is going to want lines insulated.
c. Duty, according to the court, is to exercise ordinary care to prevent harm. A duty
is owed to everyone. Foreseeability is a primary element in establishing duty.
“Everyone” is those that are foreseeably at risk. Weirum v. RKO General, Inc.
i. Facts: Radio rock station has contest that rewards first finder of a prize.
Have large population of teen listeners. 2 teens were on highway
following Disk Jockey’s care; one of them forced the decedent’s car onto
center divider and killed him. Trial court found for the ∏, against the
radio station. Appeals court affirmed.
ii. Procedure points:
1. Duty is a question of law for the court
1. Decided on case-by-case basis
2. General rule that all persons are required to use ordinary care to
prevent others from being injured as a result of their conduct
such that a reasonable person would conclude they were creating
a risk of harm.
2. Foreseeability is a question of fact for the jury
iii. Liability: imposed only if the risk of harm resulting from the act is
deemed unreasonable – i.e. if the gravity and likelihood of the danger
outweigh the utility of the conduct involved.
1. Risk – high speed auto chase causes death
2. Utility – entertainment by radio station
iv. Hand formula: Does not use it exactly, but discusses the elements.
1. B  foregoing the contest, different kind of contest
2. PL  Foreseeable risk of death in auto accident
3. Court says this is undue risk of harm
1. Court makes decision because upholding jury’s decision about
how much weight to give to B versus PL. We know this because
the jury has decided in favor of the ∏.
v. Weigh B and PL inorder to determine if the actor exercised ordinary
care. If the actor fails then he breached a duty. In negligence cases we
ask (1) did the actor have a duty; and (2) did he breach it? It is under (2)
that the formula comes into play, B vs. PL helps to establish if they
breached the duty. Everyone is defined by those that are foreseeably at
risk.
d. Carroll, Washington, and Weirum fall into the Instrumentalist Camp where the
goal of negligence law is to achieve the optimal level of accident prevention so
that the total costs of accidents and accident prevention will be minimized.
e. Trespassers, Licensees, Invitees (See Restatement 218-219)
i. Defined
1. Invitee – on land w/permission of possessor. Public or business
invite. Owe duty of reasonable care.
2. Licensee – on land with permission of possessor. Privileged to
enter or remain on land only by virtue of the possessor’s consent.
3. Trespasser – lowest level of duty, only need to refrain from
wanton and willful conduct. Use reasonable care to warn
trespassers of hazardous conditions. Higher duty may be
necessary for young trespassers under the attractive nuisance
doctrine, see below. Children are the exception to the exception,
have duty of reasonable care.
4. (Intentional harm  Willful and wanton  Reckless  Gross
negligence  Negligence  Due care)
ii. Attractive nuisance doctrine
§ 339 – Artificial nuisance doctrine
A possessor of land is subject to liability for physical harm to
children trespassing thereon caused by an artificial condition
upon the land if:
1. The place where the condition exists is one upon which the
possessor knows or has reason to know that children are likely to
trespass, and
2. The condition is one of which the possessor knows or has reason
to know and which he realizes or should realize will involve an
unreasonable risk of death or serious bodily harm to such
children, and
3. The children because of their youth do not discover the condition
or realize the risk involved in intermeddling with it or in coming
within the area made dangerous by it, and
4. The utility of the possessor of maintaining the condition and the
burden of eliminating the danger are slight as compared with the
risk to children involved, and
5. The possessor fails to exercise reasonable care to eliminate the
danger or otherwise to protect the children.
iii. Rowland v. Christian
1. Facts: ∏ was social guest at ∆’s apartment, used a broken faucet
handle in the bathroom and sustained injuries. The ∆ was aware
but did not warm ∏ of faulty faucet. Trial Court granted ∆’s
motion for summary judgment. Appeals Court reversed in favor
of the ∏. Case takes place in California, under the civil not
common law.
2. Rule: Court eradicates the common law and instates the civil
code law that: “everyone is responsible not only for the result of
his willful acts, but also for an injury occasioned to another by
his want of ordinary care or skill in the management of his
property or person, except so far as the latter has, willfully or by
want of ordinary care, brought the injury upon himself.”
3. Holding: Where the occupier of land is aware of a concealed
condition involving in the absence of precautions an
unreasonable risk of harm to those coming in contact with it, the
trier of fact can reasonably conclude that a failure to warn or to
repair the condition constitutes negligence. The common law
classifications of “trespasser, licensee, and invitee” should not
influence the standard of care. This court declines the rigid
classifications, thinks these lead to injustice. The proper test is
embodied in the civil code and is whether in management of his
property a man has acted as a reasonable man in view of the
probability of injury to others, the status of that man is not
determinative.
4. Reasoning: Can depart from ordinary standard of care when
balance the following factors: (1) foresee ability of harm to ∏,
(2) degree of certainty that the ∏ suffered injury, (3) closeness
of the connection between the ∆’s conduct and the ∏’s injury,
(4) moral blame attached to ∆’s conduct; (5) policy of preventing
future harm; (6) extent of the burden to the ∆; (7) consequences
to the community of imposing a duty to exercise care with
resulting liability for breach; (8) availability, cost, and
prevalence of insurance for the risk involved [talking about 3rd
party insurance here, pay out if another gets injured, take risk out
of ∆’s hands and spread it out across everyone insured by
increased premiums]. These factors are not reflected in common
law classification of Trespasser, Licensee, and Invitee.
i. Duty: take premises as they find them,
possessors only duty is to refrain from wanton
or willful injury.
1. Trespasser – enters land of another w/o
privilege to do so
2. Licensee – a person like a social guest
who is not an invitee and who is
privileged to enter or remain upon land
by virtue of the possessor’s consent
ii. Duty to exercise ordinary care
1. Invitee – business visitor who is invited
or permitted to enter or remain on the
land for a purpose directly or indirectly
connect with business dealing between
them.
5. Dissent: L, I, T been developed over many years. Not
unreasonable that social guest (licensee, ∏) should be obliged to
take premises as host permits them to be. Don’t want
homeowners hovering over guests shoulder. Opens the door to
potentially unlimited liability.
Invitee
Licensee
Trespasser
Continuous Trespasser
Child trespasser
Restatement 2nd
Ordinary care
∆ has reason to know dangerous
condition ∏ not know.
Refrain from willful and wanton
conduct
Highly dangerous condition…
Know or reason to know…
Rowland
Ordinary care
Ordinary care
Ordinary care? – don’t know this
for sure, doesn’t come into play
Ordinary care?
Ordinary care?
* Movement to eliminate the 3 categories has been followed in other courts as well. Some change law as
licensee, but as to willful trespassers they make exceptions and allow for lesser duty of care.
f.
Common carriers – most states common carriers are held to have a duty to their
passengers higher than that of reasonable care. The “highest” degree of car,
“extraordinary care” or “utmost care” because the perceived ultra hazardous
nature of the instrumentalities of public rapid transit and the status of passengers
being totally dependent on their carrier for safety precautions.
g. Guest statutes – lower standard of care owed by operators to their nonpaying
guests, only liable for gross negligence. See also Tubbs.
i. Insurance companies were proponents of Guest Statute laws – taken
advantage of free transport, poor form to sue.
ii. Real concern – drivers and passengers have some relationship beyond
that, typically known each other before, driver likely to feel bad. Our
system is based on both parties making strongest argument; don’t want
collusion between driver and passenger w/insurance Company paying
out damages.
h. Duty to act affirmatively
i. When taking precautionary steps and fail to continue to exercise those
precautionary steps, there is an affirmative duty to inform others that you
have ceased those operative steps. Erie R. Co. v. Stewart
1. Facts: ∏ was passenger in a car, injured when hit by ∆ train. ∆
had watchman at crossing but the watchman was not there. The
∏ had knowledge of this practice and relied upon the absence of
the watchman as a sign of safe crossing. Trial court found for
∏, Appeals court affirmed.
2. Holding: When any ∆ takes precaution to prevent injuries to
others, others know of this precaution and the ∆ fails to maintain
this precaution then the ∆ can be held negligent for breach of this
duty. When you’re taking steps to protect people from danger
and they are aware of it, you may have a duty to notify them if
you cease doing so.
3. Procedural point: Responsible if service is negligently
performed or abandoned w/o notice to the fact.
i. Negligent performance – issue for the jury
ii. Lack of due care (absence of watchman) –
negligence appears as a matter of law
ii. Failure to Aid and Assist
1. Restatement (2nd) Torts § 314 – “The fact that an actor realizes
or should realize that action on his part is necessary for another’s
aid or protection does not of itself impose upon him a duty to
take such action.”
2. There is no duty to rescue, exceptions:
i. Inn keepers
ii. Common carriers
iii. RR crossing guards (reliance) – Erie
iv. Automobile drivers (passenger) – Tubbs
v. Employer-employee relationship – Tippicanoe
(Held RR Company liable for failing to provide
medical assistance to an employee who was
injured through no fault of the RR Company,
but rendered helpless and thus injuries
aggravated.)
2. Tubbs v. Argus - ∏ guest in ∆ car, drive of curb ∏ injured, ∆ left
car and did not aid or assist injured ∏. Sue for additional
injuries (not covered by guest statute) that incurred when ∆ did
not aid or assist. Trial court found for ∆, Appeals court reversed
(for ∏). Held: If instrumentality is under control of ∆ then duty
of reasonable care to prevent additional injuries.
iii. Special Relationship; Pre-existing relationship / Duty to warn; Tarasoff
v. Regents of University of California
1. Facts: Podar killed Tatiana Tarasoff. He told ∆ psychologist he
intended to kill her two months earlier. Told campus police,
they briefly detain, release. Parents suing ∆ for wrongful death.
Trial court sustained ∆ demurer. Supreme Court reverse saying
that ∆ had duty to warn victim.
2. Held: the defendant therapists' special relationship to patient
was extended to victim, and a duty existed to use reasonable care
where they had knowledge that patient was going to harm
victim. Because have special relationship should be
foreseeability.
3. Dissent: Need confidentiality in psychological field. Without it
you will deter people from treatment, inhibit patients from full
disclosure, and will frustrate successful treatment due to breach
in trust agreement. This will create net increase in violence
because those who seek treatment will be impaired and cause
violence. Only other option is to over- commit to mental
institutions. Depriving mentally ill of liberty.
V.
Breach
As we think about the elements of neglicence we’ve been looking at questions of DUTY and BREACH.
We say the general duty is REASONABLE CARE under the circumstances, and the breach is the failure
to adhere to that. This is a pretty amporphous standard. We search for ways to help us give this more
specificity. SO, when it’s hard to figure the facts we look at res ipsa loquitor, we many look at statutes
for standard of care [determinative, presumptive], and the we look at custom. What these are all trying to
do is help us define what constitutes reasonable care/breach under the circumstances.
VI.
VII.
Cause
a. Actual Cause
b. Proximate Cause - foreseeability
Proximate Cause – Proximate cause issues are different from the negligence issues, even
though both involve notions of foreseeability. “The duty element of negligence focuses on
whether the ∆’s conduct foreseeably created a broader “zone of risk” that poses a general
threat of harm to others… The proximate causation element, on the other hand, is concerned
with whether and to what extent the ∆’s conduct foreseeably and substantially caused the
specific injury that actually occurred.”
a. Circumstantial evidence of causation
i. Hoyt v. Jeffers
1. Facts: The ∏ owned a hotel near a steam mill owned by the ∆. Hotel was
damaged by fire. ∏ sued claiming fire was caused by sparks from the mill
and the mill didn’t have a “spark catcher” and the ∆ was negligent for
letting sparks escape. Mill has history of creating fires. Trial court found
for the ∏, Supreme Court affirmed saying if jury inferred from the facts that
there was causation then the SC will affirm that.
2. Circumstantial evidence: Jury can infer from the evidence, but they are not
required to compel from the evidence. Can’t be certain spark caused the
fire, but there is enough that the jury could infer the cause was the mill.
ii. Smith v. Rapid Transit
1. Facts: ∏ was driving car at 1 am on ∆ bus route. ∏ swerved to avoiding
hitting bus, says it was ∆’s bus. There is conflicting evidence; ∏ favor was
it was a bus, on the route, same time, same direction. But bus was supposed
to be there between 1:15 and 12:45, so some discrepancy. ∏ was in an
accident and sued ∆ because she thought it was ∆ bus that caused the
accident. Trial court found in favor of the ∆, Supreme court affirmed.
2. ## should lexis this one
b. Alternative liability / Joint-several liability / Market share liability
i. Terms
1. Joint liability – burden is on the ∆ to allocate damages
2. Severally liable – burden is on the ∏ to prove
3. Joint and severally liable – act in concert or act independently and cause
harm, same as joint, the burden is on the ∆ to allocate damages.
ii. We know that both the ∆s are negligent here, now we’re dealing with causation.
Summers v. Tice
1. Facts: ∏ and ∆s were hunting quail. 3 formed a triangle, ∆ flushed a quail,
both ∆’s shot at quail in ∏’s direction. One hit ∏ in the eye, the other in the
lip. Don’t know which pellet came from which gun. ∏ argue they are
jointly liable, the ∆ argue that they are not jointly and severally liable. Can’t
prove which did it. The trial court (w/o jury) found for the ∏, ∏ not
contributorily negligent. Appeals court affirmed, they are jointly liable.
2. Held: When two defendants are the possible cause of one harm and the
injured party can not point out which defendant caused the harm, the ∆s can
both be held jointly [opposed to independently] liable for ∏’s injuries.
3. Reasoning: Both were negligent, can’t determine which ∆ shot him.
4. Rule of law: When two or more persons are the sole cause of one harm,
OR, two or more acts by one person are the sole cause of harm, and ∏ has
introduced some evidence, then the burden of proof is on the ∆ to prove
that the other person or his other act is the sole cause of harm. It would be
unfair to deny the injured party redress because can’t apportion damages.
Rule should apply when harm has multiple causes, and not merely when ∆
acted together.
5. Independent versus joint: If independent need to prove which ∆ did it, if
joint just prove one of them did it.
a. Joint liability – the burden of proof shifts to the ∆ to prove that they
were not the one who fired the shot.
b. Joint and severally liable – let ∆s apportion the blame amongst
themselves. ∏ can recover from either ∆ the entire judgment, each
liable for 100% of the judgment. Then would be up to ∆ to seek
contribution from others, would be difficult to do in this case because
can’t prove which ∆ shot the ∏.
6. Approach toward negligence: Here the court looks at negligence as just
breach of duty, other times courts require all 4 elements.
iii. Joint and several liability
1. Definitions
a. Jointly liable – joined in a single suit, although they need not be
b. Severally liable – each liable in full for ∏’s damages, although the ∏
is only entitled to one recovery
c. Joint and several liability – where the defendants acted in concert to
cause the harm, and where the defendants acted independently but
caused indivisible harm. If concerted action, then all are liable for
harm caused by one. Example: race cars, only one driver hits a
person, both liable. Originally only have joint tortfeasors if act in
concert. Now can join for independent acts. Joint and several
liability if they act independently, each causing harm to ∏ but
impossible to allocate the harm to either ∆’s conduct.
d. Today most states provide for contribution among joint tortfeasors.
Basic principle of contribution: when two or more persons become
jointly or severally liable in tort for the same injury to person or
property there is a right to contribution among them. Each make prorata share – if make more than that then if pay over you can recover.
2. Against a large group of people. Medical field. Ybarra v. Spangard –
California Supreme Court case
a. Facts: ∏ diagnosed with appendicitis, went to hospital. Had
operation. Awoke and complained of pain about ½ between the neck
and point of right shoulder. Consulted with doctors and was told it
was the result of trauma or injury by pressure or strain. The trial
court said that the ∏ failed to make out a legal case and bring forward
sufficient evidence, found for ∆. Appeals court reversed and
remanded. On remand trial judge found in favor of the ∏ against all
∆.
b. Held: A ∏ can use the doctrine of RIL to imply that the ∆s were all
jointly liable for the ∏’s injury when under anesthetic for a surgical
operation and the ∏ suffered resultant harm. The ∆ have the burden
of initial explanation.
c. Reasoning: Every ∆ in whose custody the ∏ was placed for any
period was bound to exercise ordinary care to see that no unnecessary
harm came to him and each would be liable for failure in this regard.
Any who was negligent would be liable.
d. Important notes:
i. Unlike cases above where ∆ all negligent, some innocent might be held
liable in this case.
ii. More policy making in this case – make sure the medical field exercises
more care and monitors each other.
iii. Expanding liability w/res ipsa – liability if know a group of people are
in charge of the instrumentality, expand to encompass a whole group.
Can’t prove breach of duty unless look at group as an entity.
iv. Products liability cases – who did it issue plays out here. One example is with the
drug DES. In Sindell the court rejected the “alternative liability” theory from
Summers and Ybarra and adopted instead a “market-share” theory which states
that when a ∏ joins the manufacturers of a substantial share of the relevant DES
market, the burden shifts to each ∆ to prove it did not produce the drug that her
mother ingested. Those companies that do not carry this burden are held liable to
the ∏ for the % of damages approximating their individual share of the DES
market. Collins modified this by saying the ∏ need only sue 1 defendant, prove
several elements, then the burden of proof shifts to the ∆ to prove by a
preponderance of the evidence that it did not produce or market the subject DES
either during the time period the ∏ was exposed to DES or in the relevant
geographical market area in which the ∏’s mother acquired the DES.
c. Concurrent and successive causes -- In both cases a pair of destructive forces threatened
the ∏’s well-being, simultaneously: Dillon – fall from bridge, or electric shock;
Kingston – northwest fire or northeast fire.
i. Dillon v. Twin State Gas & Electric Co.
1. Facts: ∆ maintained wires over public bridge. Young boys play on the
bridge. No current passed through the wires except by chance. Decedent
leaned over one of the girders, lost balance, and grabbed wire to catch his
fall. Decedent was electrocuted. ∆ motion for directed verdict, trial court
denied, ∆ appeals, Appeals court overruled ∆’s exception and sent back to
trial saying the ∆ would be held liable if it could be proven that the boy
would not have died anyways.
2. The future bears on liability – issue of fact
a. But for the current the ∏ died from hitting the rocks – get damages
from the shock only
b. But for the current the ∏ was severely injured – get damages for loss
of impaired income
c. But for the current the ∏ recovered his balance – damages? (##)
ii. Kingston v. Chicago
1. Facts: Fire in NE part of ∏ property started by ∆’s locomotive. Fire in NW
part of property of unknown origin. According to jury both fires were
proximate cause of the destruction of ∏’s property. Fires united north of
∏’s property, then united bore down and destroyed ∏’s property. Trial
court found for ∏, Appeals court affirmed.
2. Holding: If other fire caused by natural origin then could use this as a
defense and the ∆ would be exempt, but if other fire caused by human
agency then ∆ liable for whole destruction. Where two causes, each
attributable to the negligence of a responsible person, concur in producing
an injury to another, either of which causes would produce it regardless of
the other… because, whether the concurrence be intentional, actual, or
constructive, each wrong-doer adopts the conduct of his co-actor.
a. Why? Because to allow each of two wrongdoers to plead the wrong
of the other as a defense then would permit them to escape penalty
and penalize the innocent party who has been damaged by their
wrongful acts.
3. Procedural Stuff: Shifting the burden here, shouldn’t require ∏ to find
source of both fires if know one, make ∆ find out source of the 2nd fire.
a. ∏ burden to show that but for ∆ fire the ∏’s loss would not occur
(Dillan). If 2nd fire is natural, then ∏ did not meet burden. If 2nd fire
was from human agency then did.
b. ∆ burden of showing other fire was from natural cause
iii. What about if it happened some time apart?  Baker v. Willoughby – car accident
hurt ∏ leg. Sometime later ∏ was shot in leg, sue for damages. House of Lords
held that the ∏’s recovery for his diability was not affe cted by the second injury
and amputation.
d. Foreseeable consequences – foreseeable ∏’s
i. Foreseeability and proximate cause:
1. Predominant approach to determining proximate cause is foreseeability. If
the actual consequences of the ∆’s conduct fall w/in the scope of the
preliminarily defined risks the proximate cause requirement is satisfied. If
fall outside risks, then not. Foreseeability could be way the ∏ was injured
or that ∏ would be a potential victim.
2. proximate cause
n. a happening which results in an event, particularly injury due to
negligence or an intentional wrongful act. In order to prevail (win) in a
lawsuit for damages due to negligence or some other wrong, it is essential to
claim (plead) proximate cause in the complaint and to prove in trial that the
negligent act of the defendant was the proximate cause (and not some other
reason) of the damages to the plaintiff (person filing the lawsuit).
Sometimes there is an intervening cause which comes between the original
negligence of the defendant and the injured plaintiff, which will either
reduce the amount of responsibility or, if this intervening cause is the
substantial reason for the injury, then the defendant will not be liable at all.
In criminal law, the defendant's act must have been the proximate cause of
the death of a victim to prove murder or manslaughter.
ii. Palsgrapf v. Long Island RR (Majority decision by Cardozo)
1. Facts: ∏ standing on RR platform, train stopped, man pulled onto moving
car by guard and dropped package containing fireworks. When the
fireworks exploded the shock knocked over some scales 25 feet away, one
hit the ∏ and caused injury. Trial court entered judgment for the ∏,
Appeals court reversed and dismissed the complaint.
2. Majority: This issue here is with duty not with proximate cause. Thus the
issue is foreseeability because duty is based on foreseeability. In this case
the harm was not w/in foreseeable risk. No duty was breached to the ∏,
thus we don’t even get to the issue of proximate cause. Cardozo
concentrates on space /distance(if she was closer maybe different story),
and lack of perceived hazard.what the package looked like (didn’t say
TNT). The eye of vigilance would not have perceived the risk of danger. ∏
must show wrong to herself and not another or because it is unsocial.
3. Dissent [Andrews]: Matter of proximate cause, negligence of the guards
was the proximate cause of the ∏’s injury. The duty is a duty to society as a
whole, failure to take reasonable care to anyone [Cardozo – duty of care to
those that are foreseeable victims]. Look at accident from view point of
after it happened, who was harmed, not [Cardozo – who was foreseeably
harmed]. Andrews believes that proximate cause is more than just “but for”
causation, but not the “pebble in the pond” scenario. When talk about
proximate cause we’re talking about how close the injury is to the act in
time and space. Should affirm judgment, can’t say there is not proximate
cause.
iii. Solomon v. Sheull – rescue doctrine
1. Facts: The ∆ were plain clothes police arresting robbery suspects. The
decedent mistook the suspects for needing help and came out to help them
with gun pointed to the ground. Decedent shot by one of the officers. The
decedents family sued the police officers for wrongful death. Trial court
found for ∏ and reduced recovery by comparative fault regime [reduces a
∏’s recovery proportionally to the ∏’s degree of fault in causing the
damage, rather than barring recovery completely]. Supreme Court reversed
and remanded.
2. Held: Rescue doctrine not correctly applied. Tortfeasor owes rescuer a
duty of reasonable care and thus is liable to the rescuer (i.e. a rescuer is
foreseeable).
3. Rescue Doctrine:
a. Test
i. Would a reasonable person in the same circumstances have acted as the
rescuer did? – Balance utility of rescuer conduct with increased risk of
harm.
ii. Did the rescuer carry out the rescue in a reasonable manner? – if not
then recover is reduced by comparative degree of fault.
b. Need not be actual danger
c. Determined by the trier of fact (jury)
4. Exception to the rule of recovery  fire fighter rule. Bars recovery by
professional rescuers for injuries incurred in the course of their duties.
Reasoning: they are compensated ahead of time for the inherent risks in
their work.
e. Foreseeable consequences – foreseeable results
i. Marshall v. Nugent
1. Facts: ∏ was passenger in car, road covered in snow and ice, as approach
uphill curve an oil truck owned by ∆ approached from opposite side,
intruded into lane, car went off road. ∆ stopped truck, block traffic. ∏ go
up hill to warn oncoming traffic. A car driven by ∆2 came around the
curve, swerved to avoid the truck, and hit the ∏. ∏ suing both ∆. Trial
court found verdict for the ∏ against ∆ (oil truck) and verdict for ∆ (car
driver). Appeals court affirmed.
2. Held: Even though the ∏ injury occurred after the initial accident, the ∆’s
negligence in the first accident is the proximate cause of the ∏’s later injury
– there is a causal relation between the two accidents. The negligent act was
still going when the car was stalled on the side of the highway. The
situation had not become stabilized and normal.
3. Proximate cause: The efforts of the courts with this doctrine have been to
confine the liability of a negligent actor to those harmful consequences
which result from the operation of the risk, or of a risk, the foreseeability of
which rendered the defendant’s conduct negligent. There is some flexibility
that comes in defining this risk for each case.
4. Procedural:
a. Question of law – judge has to make preliminary decision about if
reasonable men might differ on the inferences to be drawn.
b. Question of fact if there is a significant enough causal relation
between the negligent act and the ∏’s harm, such that the ∆ should be
held liable.
ii. Watson v. Kentucky & Indiana Bridge Co.
1. Facts: ∆ tank car derailed and gas spilled into the street and was in standing
pools. 3rd party threw a match into a pool of gasoline, caused explosion that
injured the ∏. Mixed evidence as to why 3rd party threw the match. Trial
Court found for ∆. Appeals court reversed and remanded for a new trial.
2. Like Kingston each party is liable.
3. Held: Remanded for jury determination if the lighting of the match by the
3rd party was a wanton or malicious?
a. If 3rd party inadvertently or negligently lit and threw the match then it
alone is not the cause of explosion because need primary negligence
of pools of gas to be there.
b. If 3rd party was malicious then the ∆ is not responsible, could not
foresee such a criminal/evil act.
4. Proximate cause treatment: Just because intervening acts, doesn’t mean the
∆ is relieved from liability. Act or omission may be negligent even if injury
wouldn’t have occurred but for the intervening cause if occurrence of
intervening act could be anticipated. Also established: when an injury is
caused by two causes concurring to produce the result, and the ∆ caused one
of them, the ∆ cannot escape liability.
5. Note case Kush:
a. Intervening intentional, even criminal conduct will not always relieve
of liability. In Kush v. City of Buffalo ∏ was injured by chemicals
negligently stored by ∆ and stolen by two 15-year olds. Held:
doctrine [relieved from liability if intervening criminal act] does not
apply when the intentional or criminal intervention of 3rd parties is
reasonably foreseeable.
b. Consistent – duty in Kush is to protect the children from the
chemicals, the duty was breached. No such duty here.
iii. But-for test; Ford v. Trident Fisheries Co.
1. Facts: ∏ intestate was a mate on steam troller, fell of ship when vessel
rolled and was thrown overboard. No cry was heard, clothing found, he
wasn’t seen. ∏ is suing ∆ for wrongful death. Technical difficulties with
boat lowered to pick up intestate. Trial court found for the ∆, Appeals court
affirmed. ** look at this as employee suing the employer case
2. Held: Even if they were negligent with the rescue boats it was not the cause
of death, thus not liable.
iv. Failure of But-for test; Lyons v. Midnight Sun Transportation Services
1. Facts: Wife killed when hit by ∆ truck driver. She pulled out of parking lot,
∆ swerve to left to miss her, ∏ pull out further. They collide. ∏ dies, her
husband sues for wrongful death. Conflicting evidence on speed of truck.
Trial court found for ∆ (negligence, but was not legal cause of the accident).
Appeals court affirmed.
2. Held: Even though the ∆ was negligent, the ∆’s negligence is not what
caused the ∏’s wife’s death because there is evidence to the effect that the
accident would have occurred regardless of the speed limit and the ∆
responded property to an intrusion in his lane. Since the jury found lack of
causation prong in the negligence test then can’t have negligence.
3. Note: wrongful death is a statutory claim, need to make sure state has
statute that allows for recover for wrongful death (loss of companionship,
not to be confused with “survivor statute” where bring claim as if the person
had survived).
v. Loss-of-chance; Cahoon v. Cummings
1. Facts: ∏ decedent had esophageal cancer that the ∆ failed to detect. ∏ sue
∆ for negligently failing to diagnose cancer. Judge instruct that if jury
determined ∆’s negligence was a substantial factor in causing the decedent’s
death then can recover damages in full. Found for ∏. Appeals court
remanded for a new trial.
2. Held: Loss of chance rule, can’t recover for full damages for wrongful
death, should only cover what which is proportional to the injury. Having
f.
VIII.
shown causation, the damages are proportional [not full] to the increased
risk attributable to the ∆’s negligent act or omission. Doctor is liable for the
increased risk. Issue becomes what was the ∏’s chance of survival had the
appropriate standards of care been followed? In this case damages = loss of
chance of survival.
3. Preponderance of evidence rule: In previous cases courts say you need to
show preponderance of evidence of death; here you need to show by a
preponderance of evidence that you deprived ∏ of certain % of survival.
4. Loss of chance approach: Hold ∆ liable for % chance loss of survival. This
is the minority approach, in most cases need to show that more likely than
not the Dr’s negligence caused the ∏’s death. Why out of favor? Too
subjective, too hard for the jury.
Even though not foreseeable, still liable
i. Thin skull rule (eggshell skull rule)  legal doctrine that holds a ∆ liable for all
consequences resulting from their activities leading to an injury to another person,
even though the victim suffers unusual damages due to a pre-existing vulnerability
or medical condtion. ∆ must take their victim as they find them.
ii. Kinsman Transit Co. (See Restatement for Causation 277-278) – example with
how far courts will go, example of the debate that goes on.
1. Facts: Barge broke loose from moorings due to negligence of handlers,
drifted downstream, broke 2nd vessel loose, hit a drawbridge, cause dam in
river, and flood property upstream. Appeals court held the ∆ liable.
2. Held: Handlers negligence was the proximate cause of the flooding
upstream. Although can’t foresee extent of damage, could see that some
damage would be done. Don’t need to limit damages to foreseeable
consequences at the time of the negligent conduct when (1) consequences
are direct; and (2) damages are of the same general sort that were risked.
3. Palsgraf: This case helps define dissents version of proximate cause.
“Question of expediency and fair judgment, deal with fact to fact basis”,
time, space, number of intervening causes, and then at some point we get to
point where so tenuous won’t hold liable for the injury.
4. Issues: This case falls under cause or duty. Same as Palsgraf. Since
Palsgraf is mentioned might mean in centers on breach of duty. Majority
here points to the dissent in Palsgrapf.
5. Dissent: Reasonable foreseeability must be the guide to decision. Can’t
rely on hindsight. Too tenuous to see that the ships would cause a dam.
Injury
a. Mental and emotional upset - Considered here when a result from ∆’s negligent
conduct, but with no physical injury predicate. Courts reject the notion that if
mental/emotional harm foreseeable than liable concept here.
b. Impact rule -- that there could be no recovery for any resulting physical manifestations of
the fright, such as “nervous disease, blindness, insanity, or even a miscarriage.” Used to
be clear weight of authority, changed with Waube.
c. Waube v. Warrington
i. Facts: Decedent mother looking out window of her house and watch child cross
highway, witness negligent killing of the child by the ∆. Trial court found for the
∏. Appeals Court reversed, in favor of the ∆.
ii. Held: The mother of a child who was not put in peril or fear of physical impact,
cannot recover from physical injuries sustained caused by freight or shock when
she witnesses the killing of her child. This is an issue of duty, not proximate
cause. Court also puts the limitation that to recover there needs to be some
physical results.
iii. Reasoning: ∆ breach of duty must be to the mother. Refers to case with similar
facts Hambrook v. Stokes Bros where mother inquires into crowd, goes to hospital,
finds child injured, suffers shock, and dies. This was viewed from proximate
cause, rather than duty, held that ∆ should have anticipated would cause shock to a
mother with respect to her child. This case is wrong – enlarges duty to highway
users, ∆ has duty to use ordinary care to avoid physical injury to those put in
physical peril.
iv. Palsgrapf – same debate of cause versus duty. Court is actually applying the
Andrews test (##?).
v. Notes – public policy is at forefront of the courts reasoning – limit tort liability
here because emotional distress in intangible.
vi. Zone of danger – area where one can recover for severe emotional distress. Pretty
much universal – recover for physical injury if in the zone of danger and fear for
themselves.
1. Classic fact pattern involves traumatic accidents. In these cases the rules
placed natural boundaries on the exposure of ∆ to “excessive” liability.
2. The view that small particles can constitute an impact has caused problems
for the law in contexts other than those considered here. Example, in cases
involving exposure to asbestos, for example, the courts have not imposed
emotional upset liability when all the ∏ has been able to allege is contact w/
asbestos fibers; courts have insisted on proof that the contact has caused
present physical injury. It is not enough that there is a fear, even a
reasonable fear that some future physical harm will result.
b. Dillon v. Legg – California case
i. Facts: ∏’s are a mother and sister of a young child. The child was injured by ∆’s
negligent operation of a car. Both were at the scene and witnessed the accident.
Trial court found for the ∆. Appeals court reversed.
ii. Held: The court is going against past American decisions that have barred a
mother’s recovery for physical injuries incurred due to shock from witnessing the
injury of her child and hold that the ∆ is also liable for the mother’s injury. The ∆
has a duty to the mother and sister as well as the injured child, there is a test that
needs to be applied to determine that duty. This test helps to determine the degree
of foreseeability.
iii. Test:
1. Need to have negligence toward the child (primary liability)
2. Need to show the mother suffered shock that resulted in physical injury
3. Apply the test:
a. Proximity in space  Was the ∏ near the scene of the accident
(versus away from it)
b. Proximity in time  Did the ∏ have direct, sensory, and
contemporaneous observance of the accident [* notice proximate
cause language]
c. Was victim closely related.
4. To be judged on a case by case basis – future courts will draw lines of
demarcation upon facts more subtle than these.
iv. Notes: Opens the door to liability for bystanders, pure liability rule.
Disagreement about the role the factors from Dillon should play culimated in the
case of Thing.
c. Thing v. La Chusa – California case
i. Facts: ∏ son was injured in car accident that the ∏ did not witness. She was near
the scene, informed of the accident, went to scene, saw bloody body, and assumed
he was dead. Trial court granted ∆ motion for summary judgment. Supreme court
affirmed. Difference from Dillon is that the mother was not at the scene when her
son was negligently injured, did not observe ∆ conduct, not aware son being
injured, thus no right to recover (no direct, sensory, or contemporaneous).
ii. Held: Guidelines in Dillon should be stricter. Society needs certainty in law to
dictate bystander recover. Make bright line rule, need: (1) close relation to the
victim, (2) present at the scene of the injury producing event and aware that it is
causing injury to the victim, (3) suffers emotional distress beyond what would be
anticipated of a disinterested witness. Differs from Dillon because all three have
to be present for the ∏ to have a cause of action – they become elements of the
cause of action, not just guidelines.
iii. Notes: Case-to-case/ad hoc approach led to inconsistent rulings. Foreseeability is
not useful guideline when there is an intangible injury. Court here is worried
about limitless liability for bystanders. Wants to give insurance about what will
happen if a party brings a cause of action, introduce element of predictability.
iv. Problem: Bright line rule isn’t really fair, still wiggle room, what about
children/grandparents/etc.
v. Concurring opinion: Better to move back to zone of danger approach in Waube,
Dillon is unworkable. Should be in fear of own personal safety. See page 303
where would agree with majority.
vi. Dissent: Majority wants bright line rule of negligent infliction of emotional
distress actions. Grasp onto arbitrary line. This strict requirement makes Dillan
rigid where the court said it should be flexible. Follow mandate of Dillon and
maintain foreseeability and duty determine liability, with a view toward a policy
favoring reasonable limitations on liability. General rules of tort law should apply
to NIED.
d. Burgess
i. Facts: ∏ suffered emotional distress when learn baby suffer injury during
delivery. She was under general anesthetic during the time of her ceasarian
section. Trial court found for ∆, Thing does not apply because she was under
general anesthetic and was not aware of what was going on [sense of arbitrariness
of Thing]. Appeals court reversed, Thing is not applicable because she was a
direct victim.
ii. Held: A mother can be compensated for emotional distress against a physician
who entered into a physician patient relationship with her for care during labor and
delivery of her child and in the course of delivery injured the child.
iii. Reasoning: At the time of breach of duty the mother and the child are still one.
Courts treat this as a direct victim kind of case.
e. Filiciano
i. Facts: ∏ are “de facto married couple” – live together as husband and wife for 20
years. No legally married until 1983. During those years used each others
surname, held themselves out as marriage, file joint tax returns, own home, depend
on each other. ∏ (husband, wife) sue ∆ for loss of consortium (deprivation of
companionship, sexual relation due to injury) due to wrongful conduct during
course of employment. ∆ moved to summary judgment on the loss of consortium
claim. Motion allowed. ∏ appealed. Appeals Court: Affirmed.
ii. Held: The ∏ cannot recover for loss of consortium. They are not legally married.
iii. Notes: This is a matter of public policy – couples could engage in fraud if start
granting loss of consortium claims to people who are not legally married. Worried
f.
IX.
also about extending to a myriad of relationships that may exist between
cohabitants. Also look at implications for same sex relationships.
iv. On loss of consortium: originally a husbands claim where family seen as
economic unit where husband sat at the head. If wife injured he could claim loss
of damages. Today a lot of wives cases, where wife is dependant on husband.
Come out of notion that family is an economic unit.
Borer – written by Tobriner, who wrote opinion in Dillan
i. Facts: ∏ are 9 children of Borer. Borer suffered physical injured when a cover of
a lighting fixture at American Airlines Terminal at Kennedy Airport fell and
struck her. ∏ sue ∆ (AA) for “loss of consortium.” Trial court found for ∆,
appeals court affirmed.
ii. Held: The court refuses to recognize a new cause of action where anyone other
than the spouse of a negligently injured person (in this case a child) can maintain a
cause of action for “loss of consortium.”
iii. Reasoning: Somewhere the line must be drawn or could be extended to others in
distant relations, need to limit claims (uncles, aunts). Consortium is loss of sexual
relations. For children it is an intangible loss, money recover would be superfial
unrelated future benefit. Social burden of increased insurance premiums with
increased number of cases (See California treatment of insurance cases like
Escola, Dillon, and Rollan – usually use insurance as a sword for the ∏, here it’s a
shield for the ∆). Worried about double recovery. Other jurisdictions don’t let
children recover.
iv. Dissent: (1) Nonpecuniary loss – bogus, can recover for loss of consortium; (2)
Double recovery – can avoid by joinder of actions; (3) Sex life – nonsexual loss
just as great, moral support, what about old people; (4) Statistically an accident is
much less likely to have minor children than a spouce.
v. Note: Progression and difficulty of Dillon, Thing, and now Borer in drawing the
line. In this case we have made a convert out of Tobriner, seems to turn attitude
around completely.
Contributory and Comparative Negligence
a. Contributory negligence  a doctrine of common law that if a person was injured in part due
b.
to his/her own negligence (his/her negligence "contributed" to the accident), the injured party
would not be entitled to collect any damages (money) from another party who supposedly caused
the accident. Under this rule, a badly injured person who was only slightly negligent could not win
in court against a very negligent defendant. If Joe Tosspot was driving drunk and speeding and
Angela Comfort was going 25 m.p.h. but six inches over the center-line, most likely Angela would
be precluded from any recovery (receiving any money for injuries or damages) from a car crash.
The possible unfair results have led some juries to ignore the rule and, in the past few decades,
most states have adopted a comparative negligence test in which the relative percentages of
negligence by each person are used to determine damage recovery (how much money would be
paid to the injured person).
Comparative negligence  a rule of law applied in accident cases to determine responsibility
and damages based on the negligence of every party directly involved in the accident. For a
simple example, Eddie Leadfoot, the driver of one automobile, is speeding and Rudy Airhead, the
driver of an oncoming car, has failed to signal and starts to turn left, incorrectly judging Leadfoot's
speed. A crash ensues in which Airhead is hurt. Airhead's damage recovery will be reduced by the
percentage his failure to judge Leadfoot's speed contributed to or caused the accident. Most cases
are not as simple, and the formulas to figure out, attribute and compare negligence often make
assessment of damages problematic, difficult, and possibly totally subjective. Not all states use
comparative negligence (California is a fairly recent convert), and some states still use contributory
negligence which denies recovery to any party whose negligence has added to the cause of the
accident in any way. Contributory negligence is often so unfair that juries tend to ignore it.
c. Butterfield v. Forrester
i. Facts: ∆ was making repairs on his house and put pole across the road, there was a
free passange by another branch or street in the same direction. ∏ was at a public
house, drinking pubs. 8pm in August – light enough left to discern the obstruction
at 100 yards distance. Witnesses saying ∏ riding roughly – if had had not been
riding so hard he would have seen it. ∏ road against it, fell, injured. Court found
for the ∆.
ii. Held: A ∏ cannot recover when his injuries are the result of a ∆ negligent conduct
but the ∏ was not acting with ordinary care. ∏’s own negligence bars recovery.
iii. Notes: This is a complete defense, first case to recognize contributory negligence.
In this case the ∏ had the burden of proving that there was an obstruction on the
road and no want of ordinary care. This changes, because the ∆ burden of proving
the ∏ was also negligent.
d. Davies v. Mann
i. Facts: ∏ fettered the feet of a donkey to a public highway (legs tied together so he
can’t run). Ass was grazing on the road, ∆ wagon w/team of horses can to the
place, ran into the ass, knocked it down, ran over it, and killed it. Trial court
found for ∏, Appeals court affirmed.
ii. Held: If the ∏ is negligent, but the exercise of ordinary care would not have
avoided the consequences of the ∆ negligent act the then ∏ can still recover.
iii. Reasoning: The ass was lawfully there, even if wasn’t the ∆ could have avoided
hitting him by exercising reasonable care. ∆ still bound to go along the road at a
reasonable pace, if not could justify running over anything in the road. Last clear
chance rule.
e. Last clear chance rule – both A and B are negligent, but A has the last clear chance of
avoiding the injury. Softening of the doctrine of contributory negligence. A’s
negligence creates a condition that could result in injury, but B’s negligence is such that
it comes at a later time such that the injury would not have occurred but for B’s
negligence. Serves to point to how the courts feel the doctrine of contributory
negligence serves an injustice sometimes.
f. Meistrich v. Casino Arean Attractions, Inc. (## get laurens notes)
i. Facts: ∏ was injured when fall while ice-skating rink operated by the ∆. Trial
court found for ∆, appeals court reversed, supreme court affirmed.
ii. Held: There is evidence to take to the jury, ∆ depart from usual procedure in
preparing the ice. Issue of contributory negligence should also be left to the jury,
could find the ∏ was careless when remaining on ice.
iii. Note: Assumption of risk has several meanings
X.
Res Ipsa Loquitur (RIL)
a. Definition
i. Refers to a gap in the evidence, prevents ∏ from presenting complete picture of
∆’s conduct. Use RIL when can’t prove specifics of negligence.
ii. Literally means “the thing speaks for itself”
iii. Use circumstantial evidence to point to ultimate issue of ∆’s negligence. Calls for
a value judgment. Preliminary facts RIL depends on have to be grounded in
preponderance of the evidence.
iv. Tentative Restatement 3rd would define as “it may be inferred that the ∆ has been
negligent when the accident causing the ∏’s physical harm is a type of accident
that ordinarily happens because of the negligence of a class of actors of which the
∆ is a relevant member.”
v. A doctrine of law that one is presumed to be negligent if he had exclusive control
of whatever caused the injury even though there is no specific evidence of an act
b.
c.
d.
e.
of negligence, and w/o negligence the accident would not have happened.
Examples:
1. A load of bricks on the roof of a building being constructed by High-rise
Construction Co. falls and injures Paul Pedestrian below, and High-rise is
liable for Pedestrian's injury even though no one saw the load fall
2. While under anesthetic, Isabel Patient's nerve in her arm is damaged
although it was not part of the surgical procedure, and she is unaware of
which of a dozen medical people in the room caused the damage. Under res
ipsa loquitur all those connected with the operation are liable for negligence.
Lawyers often shorten the doctrine to "res ips," and find it handy shorthand
for a complex doctrine.
The test
i. Exclusive control and management by the ∆ of the instrumentality which causes
the injury, and
ii. The occurrence is such as in the ordinary course of things it would not happen if
reasonable care had been used
iii. Burden on the ∏ to prove negligence, the burden shifts on the ∆ to prove not in
control of instrumentality and not in ordinary course of things.
Boyer v. Iowa High School Athletic Association
i. Facts: ∏ basketball spectator is suing ∆ management for negligence when at the
end of the game as spectators were leaving the bleachers folded, throwing ∏ to the
ground and causing substantial injuries. Trial court found that no evidence of
specific acts of negligence, but charged jury with RIL. Verdict for the ∏. Appeals
Court affirmed.
ii. Holding: The bleachers were an instrumentality exclusively under the control of
the ∆ and in the ordinary course of things the bleachers would not collapse if
ordinary care were used. The doctrine of RIL can be applied to infer negligence.
iii. Reasoning: The “underlying reasoning” in past RIL cases that chief evidence of
injury is practically accessible to the ∆ but not accessible to the injured ∏ does not
stand in this case and is not an indispensable requirement. A seriously injured
person cannot be expected to search for evidence.
Example where res ipsa does not apply Shutt v. Kaufman’s Inc.
i. Facts: ∏ was a customer at ∆’s shoe store. ∏ sat in a chair, bumped display table
and cause metal shoe stand to fall over and strike ∏ on the head. Trial court found
for the ∆. ∏ says RIL applies, ∆ says no. Appeals court affirmed.
ii. Holding: RIL is not appropriate in this case. The injured party has the option of
suing in negligence.
iii. Reasoning: ∏ is a business visitor (invitee) and thus the store keeper has a duty of
reasonable care. Even though ∏ claims she could not foresee the rack would fall,
foreseeability is not the RIL test. ∏ could have shown the ∆ was negligent
(display table unstable, etc); ∏ had the means available to her to establish
negligence. Element of res ipsa here is the reasonability issue.
iv. Distinguished from Boyer: much less complicated instrumentality; they differ on
the accessibility issue – saying any cause of specific negligence would be
accessible to her. ∏ attorney has burden of carrying out reasonable investigation
to show how accident happened and that the ∆ was negligent. If opportunity to
investigate then should go forward with that
v. Note: The presence of direct evidence of negligence should not deprive the ∏ of
RIL inference; however, there comes a point when the ∏ can introduce enough
direct evidence of negligence to dispel the need for the inference.
City of Louisville v. Humphrey
f.
i. Facts: ∏’s husband was drunk and went to jail. Retained there, collapsed, and
brought to drunk tank. Some dispute as to whether another prisoner was in the
drunk tank (city only liable if they knew of other prisoner and they had violent
tendencies). Guard found him dead the next morning, later discovered to be a
subdural hematoma (serious head injury). Trial court found for the ∏. Appeals
court reversed, should sustain ∆’s motion for judgment notwithstanding the verdict
(allowing trial court verdict would be great injustice).
ii. Holding: The evidence in the case falls short of justifying the use of RIL. There is
no probative evidence that an employee of the city or a fellow prisoner inflicted
injuries on the decedent.
iii. Reasoning: The instrumentality in this case is the prisoner (this is consistent
because this is what the injury stemmed from).
iv. Procedural comments
i. The ∏ has the burden of proving that her husband was under an
instrumentality controlled by the ∆ at the time the injury occurred.
ii. Judge needs to determine if res ipsa is applicable (because needs to charge
the jury on res ipsa), so the judge does need to make some preliminary
finding. The submit to jury if foundation facts exist enough to satisfy res
ipsa.
At what point does the instrument need to be in control of the ∆? Escola v. Coca Cola
Bottling Company
i. Facts: ∏ was a waitress who was injured when a bottle of the ∆’s broke in her
hand. ∏ suing bottling company for negligence and injuries that resulted from
explosion. Trial court found for ∏, Appeals court affirmed. ∏ rely completely on
the doctrine of RIL. Court has to view in light most favorable to the ∏ because ∏
won jury verdict.
ii. Holding: Doesn’t matter if it happened after the ∆ relinquished control of the
instrumentality provided ∆ had control at the time the negligent act occurred (in
this case the bottling, not the explosion) and the ∏ proves that the condition of the
instrumentality did not change after left ∆’s possession. ∏ has burden of proof
that due care was exercised once ∆ relinquished control of the bottle, ∆ does not
have to prove that something changed.
iii. Reasoning:
i. RIL is when have (1) exclusive control; and (2) ordinarily would not
occur in the absence of negligence. Ordinary control is easy because
sound and properly bottled carbonated liquids do not normally explode.
Under control of ∆ at time of bottling so exclusive control of the
instrumentality is also present.
iv. Concurring Traynor opinion (although concurring opinion now he wrote it a few
years later in a majority opinion making it established law)
i. Strict liability for product manufactures.
ii. Public policy reasons:
1. Great harm to individual ∏, this way damages spread to all
consumers of coke.
2. Modern methods of distribution have changed – manufacturer is
in the best position to avoid defects and guard against harm.
3. Negligence doesn’t work here because B is always greater than
PL and manufacturer would never act [### talk to someone
about the difference between PL and P x damages]. Plus
negligence is difficult for an injured ∏ to prove because don’t
know where along production line, etc, when defect occurred.
4. Shifting the burden from the injured ∏ to the manufacturer – the
manufacturer is in a better position to prove they did no harm.
XI.
Violation of Criminal Statutes – when looking at this think: does the statute create a duty?
a. Violation of Statute is Negligence as a matter of law, Martin v. Herzog
i. Facts: ∏ and husband were driving buggy w/o lights on in violation of State
statute. They were hit by ∆ car and the husband was killed. ∏ was not traveling
with lights on, ∆ did not stay on right side of the road. ∏ claim ∆ negligent
because not drive on right side of road and no lights is not in and of itself
negligence. ∆ claim that traveling w/o lights in violation of highway law is
negligent. Trial court found for ∏. Appeals court reversed, no lights are prima
facie negligence.
ii. Rule of law: When purpose of the statute is to protect and guide highway travelers
and that omitting to follow the statute and use the lights is to fall short of the
“standard of diligence to which those who live in organized society are under duty
to conform” the unexcused omission of the statutory signals is prima facie
negligence. Jurors do not have license to find anything else. Negligence as a
matter of law.
iii. Causal connection between negligence and injury: do not have to pay damages for
breach of statute UNLESS it is the cause of the injury. Violation needs to
contribute to injury. Contributory negligence – doctrine of common law if person
is injured in part by own negligence the injured party is not entitled to collect any
damages. Can collect if you are negligent, but that negligence doesn’t contribute
to injury.
b. Not negligence by law, but rather “rule of the road.” Violation of the law is safer than
complying with it Tedla v. Ellman
i. Facts: ∏s were walking down highway, in dark, carrying junk, on opposite side of
the road. The Vehicle and Traffic Law says that “pedestrians must keep to the left
of the center line” [walk against traffic]. ∏s walking on other side of road because
Sunday traffic and there were less cars on that side. ∆ hit ∏’s killing one, injuring
the other. Trial court found for ∏, negligence solely due to ∆ (operator of car).
Appeals court affirmed.
ii. Held: Some statutes are only intended to apply in ordinary situations; conduct
otherwise prohibited is allowed in unordinary situations.
iii. Reasoning: The statute in question here is one to “create rules of the road” and is
to apply in “ordinary” situation. When unusual conditions occur strict observance
of a statute may defeat the purpose of the rule and produce catastrophic results.
Negligence is failure to exercise care. When statute defines care, and it is
violated, then negligence. BUT, where when statute fixes no definite standard of
care [to protect life and limb] but merely codifies a common law rule (always
subject to exceptions and limitations) OR to promote public convenience and
safety, then the statute should not be constructed as intending to wipe out the
limitations and exceptions which attached to common law duty.
iv. Martin: Martin would say that violation of the statute is negligence as a matter of
law and is “wholly unexcused.”
c. Injury must follow from negligent act. Brown v. Shyne
i. Facts: ∆ held himself out to be able to diagnose and treat disease. Under the
Public Health Law he was guilty of a misdemeanor, ∆ engaged in the practice of
medicine without a license. ∏ became paralyzed after she had received nine
treatments by defendant. Trial court found in favor of the ∏ (lack of license to
practice medicine is some evidence of negligence, may infer negligence). Appeals
court reversed and remanded.
ii. Held: Unless the ∏ injury was caused by carelessness or lack of skill, the ∆’s
failure to obtain a license was not connected with the injury and the ∆ cannot be
held liable. The injury must follow from neglect of the statute to hold negligence.
No evidence of negligence even if violated the statute.
iii. Reasoning: If violation was the proximate cause of the ∏’s injury, then the ∏
may recover upon proof of violation. Purpose of the statute is to protect public
against unfounded assumption of skill by a doctor, thus for negligence need to
prove that injury came from this unfounded assumption of skill. Need logical
connection between the proven neglect of statutory duty and the alleged
negligence.
d. Harm suffered must be within the risks envisioned by the legislature when drafting the
statute. Gorris v. Scott.
i. Facts: the ∏ sheep owner is suing the ∆ ship owner to recover damages for the
death of sheep which the ∆ was carrying and were washed overboard. The ∏
argued that the ∆ was negligent because they were not in compliance with the
Contagious Diseases (Animals) Act, 1869 which held you have to divide animals
into pens.
ii. Held: Can’t bring action based on an act that is intended to prevent against harm
other than the harm that is the cause of the action. Damage complained of here is
something totally apart from the object of the Act, and the action is not
maintainable. Harm suffered by the ∏ must be within the risks envisioned by the
legislature when it passed the statute.
iii. Reasoning: Purpose of the act is to prevent animals from communicating infection
diseases to each other. If the animals were in pens (in compliance with the act) the
sheep would not have died. BUT, purpose of the act was not to protect against
injury sustained by ∏ so can’t recover even though ∆ was negligent and violated
the act.
XII.
Custom
a. When the customary way of doing things is ignored, it constitutes negligence. The role
of custom is the establishment of a duty and failure to adhere constitutes a breach.
Trimarco v. Klein
i. Facts: ∏ is a tenant in an apartment owned by the ∆, was injured when a glass
shower door shattered as he stopped out of the shower. ∏ entered evidence that
shatterproof safety glass is customarily used by landlords. Trial court found for
∏. Appellate division reversed saying ∆ had no duty to replace the glass. Appeals
reversed.
ii. Custom: general practices of a group of people in the same calling or business.
Helps to indicate where the burden falls. Once custom is established a jury must
be satisfied with its reasonableness, because it could be an unreasonable custom.
iii. Held: Enough to go to jury that ∆ is liable – when certain dangers have been
removed by a customary way of doing things safely, this custom may be proved to
show that the one whose neglect has fallen below a certain standard of care. Must
bear on reasonableness. When proof of a customary practice is coupled with a
showing that it was ignored and that this departure was a proximate cause of the
accident, it may serve to establish liability.
b. The ∆ tries to use custom as a shield. We see here that custom is not always a reliable
proxy. Custom may not necessarily establish a duty. T.J. Hooper
i. Facts: Barges carrying ∏ cargo were lost at sea during a coastal storm. The tug
was not equipt with a radio receiver and could not receive reports of the
impending storm. It is not the general practice to use radio receivers. Trial court
found in favor of the ∏ (cargo owner). Appeals court affirmed. Admiralty case.
ii. Held: Even though equippting a tug with a receiver is not a custom of the
business, if it contributes to the tugs unseaworthiness, the tug owner can still be
held liable for lost cargo. In most cases reasonable prudence is common prudence,
but a whole calling may have lagged behind in the adoption of reasonable devices.
Courts must set standard of what is required – need to establish cautions even if
universal disregard.
c. Helling v. Carey
i. Facts: ∏ has glaucoma, ∆ gave periodic eye exams but did not administer test that
would have revealed glaucoma/treat it/avoid loss of vision. ∏ was 32 when the
condition was diagnosed. Test is not routinely given to people under the age of 40
because incidents of disease are 1/25000. Trial court found for the ∆, Appeals
court reversed (doctor can be liable) and remanded (on the issue of damages).
ii. Compared Hooper: Opposite to T.J. Hooper where those in industry might have
interest in not getting the radios because of the cost; Dr. always has interest in
giving the test: reduces liability, increase profits.
iii. Issues: Generally with medical practice the custom of a medical practice is the
standard of care. This case was not accepted well, legislature adopted statute
overturning it. Say this is a unique case – what is so unique? Now glaucoma tests
are given at younger age than at time of Helling.
iv. Rule: generally custom is the standard of care in medical cases, this case is
“unique.”
XIII.
Prenatal Harm – part and parcel of the courts fear that the foreseeability standard for
negligence is expanded too far.
a. Actions by Parents for their own harm
i. Wrongful death - Werling v. Sandy
1. Procedure: ∏ (parents of stillborn child) are suing ∆ (doctor) for wrongful
death due to negligence of the doctor. Trial court dismissed complaint, no
action for wrongful death of a fetus. Appeals court reversed and remanded
for a new trial.
2. Issue: Does action for wrongful death exist when decedent is a still born
fetus? Can parents recover for this when death/injury occurred before birth?
Is fetus that dies en vitre sa mere considered a person for the purpose of the
statute involved here? Held: Cause of action may arise under a wrongful
death statute where a viable fetus is still born since a life capable of
independent existence has expired. A viable fetus which is negligently
injured en vitre sa mere and subsequently still born may have the basis for a
wrongful death claim.
3. Reasoning: As long as fetus was viable at the time of its injury. Purpose of
wrongful death recovery is that recovery would have occurred had there not
been death, largely remedial. Rights of unborn child have history in our
law. Does not make sense to have birth be the point where determine
liability, only a matter of seconds for a fetus before and after birth. By
saying fetus is viable life this furthers the remedial nature of the wrongful
death statute.
4. Dissent: leaves question too open ended, should have an exact time when
fetus becomes viable. Don’t want to encourage the filing of multifarious
actions about when viability occurs.
ii. Wrongful birth - Fassoulas v. Ramey
1. Procedure: ∏ (parents of deformed children) are suing the ∆ (doctor) for
negligence, “wrongful birth.” ∆ found 100% negligent for first child, 50%
negligent for second child (reduced because ∏’s were comparatively
negligent). Appeals Court Reversed? – agree that you can recover for the
special upbringing expenses of the defective child but not for the healthy
child.
2. Facts: ∏ had two children with severe congenital abnormalities (dating from
birth). ∏ (husband) had vasectomy in order to prevent from having more
children. ∆ (doctor) negligently informed them he was sterile. They had
two additional children, the first with severer congenital abnormalities, the
second with slight abnormalities which were fixed and birth and now is a
normal and healthy child.
3. Issue: Can a parent recover damages when a doctor’s negligence results in
the pregnancy and two additional children – one who is a “healthy” child
and one who has severe congenital abnormalities? Held: Can recover for
“special upbringing expenses” for the child with abnormalities, cannot
collect for the healthy child.
4. Reasoning: Parents may not recover damages for the rearing of a normal
and healthy child (the benefits of rearing a child outweigh the economic
loss). As a matter of law ordinary rearing expenses are not recoverable for a
defective child. An exception exists for “special upbringing expenses.”
5. Dissent: ∏ have been damaged by the birth of the second “healthy” child as
well and should get damages. The ∆ did not do the ∏’s a favor.
Strict Liability
I. Abnormally dangerous activities
a. Restatement (2nd) Torts (###)
b. Fletcher v. Rylands
i. Procedure: ∏ (injured party) is suing ∆ (reservoir owner) for damages. Trial court
rendered verdict for the ∏. Went to an arbitrator, appointed to assess damages. Court of
Exchequer entered judgment for the ∆s, free from all blame, but proper care and skill were
not used by the persons employed by them. ∏ appeal to the Exchequer Chamber, decide
the ∏ is entitled to recovery.
ii. Facts: ∏ damaged by his property being flooded with water which broke out of a reservoir
constructed on the ∆s’ land by the ∆s’ orders and maintained by the ∆s. There had been
coal under the ∆’s land that was worked out and unknown to ∆s when they built the
reservoir, water would not have escaped but for this latent defect. ∆s contractors became
aware of the defect in constructing the reservoir.
iii. Issue: What is the obligation which law cases on a person who lawfully brings on his land
something which, though harmless whilst it remains there, will naturally do mischief if it
escapes out of his land? Does he have a duty to keep it in at his peril or merely a duty to
take all reasonable and prudent precautions in order to keep it in but no more? And are the
∆ responsible for the consequences of their want of care and skill of the contractors who
they employed?
iv. Reasoning: Duty to keep it in at his peril, and if not then he is prima facie answerable for
all the damage which is the natural consequence of its escape. Excused if due to ∏’s
default or consequence of vis major, or the act of God, but none of that exists here. Same
as person whose grass is eaten by renegade cattle. Same for beasts, or water, or filth, or
stenches. Majority judge in Court of Exchequer said there must be negligence in the party
doing the damage to render him legally responsible – however this case is distinguishable
because in other circumstances the ∏ had taken the risk upon himself. There is no ground
for saying that the ∏ here took upon himself any risk. He neither knew nor had control
over the ∆ or hinder their building what reservoirs they liked.
c. Rylands v. Fletcher
i. Simple principles of this case. ∆ can lawfully use close for any purpose for which it might
in the ordinary course of the enjoyment of land be used and if naturally accrued on ∆’s
land and then passed on to ∏ then ∏ could not complain. However, if ∆ use for unnatural
use and the consequences of them doing so the water escapes and injures the ∏ then the ∆
were doing it at their own peril and if evil arose then for the consequences of that the ∆
would be liable.
ii. Judgment for the Court of Exchequer affirmed
d. Turner v. Big Lake Oil Co.
i. Procedure: ∏ (grassland owners) are suing ∆ (oil company, ponds) for neglect and
permitting the levees and dams to break and overflow. Special issue to the jury – answer
the ∆ did permit the salt water to overflow from salt ponds but quitted the ∆ in error of
negligence in the premises. ∏ appeals. Court of Appeals says that negligence is a
prerequisite to recover and affirmed. Facts: ∆ operate large oil wells, and constructed
large artificial earth ponds to run polluted waters from the wells. On the occasion
complained of the water escaped from the ponds, passed over the grass lands of the ∏ and
injured their turf.
ii. Issue: Can the ∆, w/o negligence on their part, be held liable in damages for the
destruction or injury to property by the escape of salt water from ponds constructed and
used by them in operation of their oil wells? Must the question be predicated upon
negligence?
iii. Reasoning: Negligence is a prerequisite to recovery. Can be distinguished from Rylands
because storage of water in England is not w/in the contemplation of the parties versus as
with land in Texas where it is w/in the contemplation of the parties. Texas very different
conditions than England, there are also no oil wells. The construction of basins or ponds to
hold salt water is a necessary part of the oil business.
iv. Rule of law: Needs to be in contemplation of the parties.
e. Seigler v. Kuhlman
i. Procedure: ∏ (decedents estate) is suing ∆ (driver, owner and manufacture of the truck
and trailer) to recover on the basis of negligence and strict liability. Trial court refused
request for jury instructions, jury return verdict for ∆. ∏ appealed. Intermediate court of
appeals affirmed. Held: Reversed and remanded. Strict liability high degree of risk of
harm and injury cannot be laminated by the exercise of reasonable care.
ii. Facts: Young girl dies in gasoline explosion when car entered pool of gasoline. The ∆ was
driving a gasoline truck that was fully loaded and the trailer came loose from the truck,
moments later the ∏ drove into the gasoline, it ignited, and perished in the flames.
iii. Issue:
iv. Reasoning: Res ipsa loquitur should have been given to the jury, the inference of
negligence could have been drawn from the event. Re: strict liability  same basic
principles as Fletcher – no more unusual but more dangerous than collecting water. Gas as
cargo is uniquely hazardous characteristics. Most important ingredients of proof will be
lost in explosion. Hazards to 3rd persons are likely to be great. Rule of strict liability when
applied to abnormally dangerous activity is standard in Restatement (2nd) of Torts § 519
Restatement (2nd) Torts
§ 519 Abnormally Dangerous Activity
(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person,
land, or chattels of another resulting from the activity, although he has exercised the utmost care
to prevent such harm.
(2) Such strict liability is limited to the kind of harm, the risk of which makes the activity abnormally
dangerous.
§ 520 Abnormal Activity
In determining whether an activity is abnormally dangerous, the following factors are to be considered:
(a) Whether the activity involves a high degree of risk of some harm to the person, land or chattels of
others;
(b) Whether the gravity of the harm which may result from it is likely to be great;
(c) Whether the risk cannot be eliminated by the exercise of reasonable care;
(d) Whether the activity is not a matter of common usage;
(e) Whether the activity is inappropriate to the place where it is carried on; and
(f) The value of the activity to the community.
v. Concurring: Another reason not mentioned by the majority is that the commercial
transporter can spread the loss among his customers – who benefit from this extra
hazardous use of the highways. There was no outside force that caused the tractor to be
detached. Strict liability should be the standard.
f. Foster v. Preston Mill Co.
i. Facts: ∏ own a mink ranch, during whelping seasons mink get excitable. ∆ blasting
nearby to clear a rode (2 ¼ miles away), the vibrations excited the mother mink who began
killing their young. ∏ tell ∆, ∆ reduce strength of dynamite charges, but continue blasting.
ii. Procedure: ∏ (mink owner) is suing ∆ (blaster) for damages when mother mink killed her
kittens. Look to recover damages only after ∆ received notice. Trial court w/o a jury
found for the ∏, stating that the ∆ received notice of the effect of the blasting operations
and was thus absolutely liable for all damages.
iii. Issue: Is this a sustainable theory of absolute liability? Is the risk that any unusual
vibration or noise may cause wild animals, which are being raised for commercial
purposes, to kill their young, one of the things which make the activity of blasting ultra
hazardous? Held: no.
iv. Reasoning: Yes, absolute liability applies to blasting as an ultra hazardous activity because
extraordinary risk. However, the thing that makes blasting ultra hazardous is the risk that
property or persons may be damages or injured by coming into contact with flying debris.
The responsibility is on the nervous disposition of the mink, not on the relatively moderate
vibration that is a usual incident of ordinary life in the community.
v. Rule of law: Injury needs to be the same kind of risk of injury which makes the activity
ultra hazardous such that a ∆ will be held strictly liable.
Strict Liability
In previous cases we’ve looked at fault and those put at risk by others.
II. Abnormally dangerous activities
g. Fletcher v. Rylands
v. Procedure: ∏ (injured party) is suing ∆ (reservoir owner) for damages. Trial court
rendered verdict for the ∏. Went to an arbitrator, appointed to assess damages. Court of
Exchequer entered judgment for the ∆s, free from all blame, but proper care and skill were
not used by the persons employed by them. ∏ appeal to the Exchequer Chamber, decide
the ∏ is entitled to recovery. (Don’t worry about procedure here) In the court of
Exchequer in Fletcher, in the House of Lords in Rylands. Trial court in first situation,
appellate court in the second.
vi. Facts: ∏ damaged by his property being flooded with water which broke out of a reservoir
constructed on the ∆s’ land by the ∆s’ orders and maintained by the ∆s. There had been
coal under the ∆’s land that was worked out and unknown to ∆s when they built the
reservoir, water would not have escaped but for this latent defect. ∆s contractors became
aware of the defect in constructing the reservoir. Coal mines and shafts under the ∆
property, unbeknownst to him.
vii. Issue: What is the obligation which law cases on a person who lawfully brings on his land
something which, though harmless whilst it remains there, will naturally do mischief if it
escapes out of his land? Does he have a duty to keep it in at his peril or merely a duty to
take all reasonable and prudent precautions in order to keep it in but no more? And are the
∆ responsible for the consequences of their want of care and skill of the contractors who
they employed? Duty to keep at peril or use reasonable prudence? ∆ has an absolute duty
to keep at own peril.
viii. Reasoning: Duty to keep it in at his peril, and if not then he is prima facie answerable for
all the damage which is the natural consequence of its escape. Excused if due to ∏’s
default, or consequence of vis major, or the act of God, but none of that exists here. Same
as person whose grass is eaten by renegade cattle. Same for beasts, or water, or filth, or
stenches. Majority judge in Court of Exchequer said there must be negligence in the party
doing the damage to render him legally responsible – however this case is distinguishable
because in other circumstances the ∏ had taken the risk upon himself. There is no ground
for saying that the ∏ here took upon himself any risk. He neither knew nor had control
over the ∆ or hinder their building what reservoirs they liked.
Why not apply negligence standard to determine if the ∆ is liable?
Draw distinction between natural and unnatural  acts of God vs. negligent conduct.
Here we have conduct that the court concludes was neither negligent NOR an act of God. Why then
should the ∆ be liable? How do we distinguish negligence? Risk.
Part of what we see with the cattle example is an analogy the courts use with property law.
Rule: that the person who for his own purposes brings on his land and collects and keeps there something
likely to do mischief if it escapses does so at his own peril, and if it escapes he is liable.
Reason for not calling it “absolute liability” is because court says prima facie. (Not sure what this
means?).
h. Rylands v. Fletcher
i. Rule (simplify to more generic terms): Simple principles of this case. ∆ can lawfully use
close for any purpose for which it might in the ordinary course of the enjoyment of land be
used and if naturally accrued on ∆’s land and then passed on to ∏ then ∏ could not
complain. However, if ∆ use for unnatural use and the consequences of them doing so the
water escapes and injures the ∏ then the ∆ were doing it at their own peril and if evil arose
then for the consequences of that the ∆ would be liable.
ii. Judgment for the Court of Exchequer affirmed
Rule: Will always be strictly liable for non-natural use of the land.
The “non natural” use view (agrarian use of land is a natural use) and we’re talking in the industrial
revolution here where England is moving from agriarian to industrial economy (unnatural things being
done to land – noxious odors, etc). Can imagine that members of the House of Lords who come from old
lifestyle see this as unnatural. Two different approaches in the two cases. The one in Fletcher containing
and liaibli if escapes; and Rylands unnatural use of the land. Evidently they say mining was a natural use
of the land. If “natural” means traditional/things accustomed to, then mining is an accepted/natural use of
the land. These cases are seen as the cases that split out from the development of negligence, subset of
situations where we apply strict liability – otherwise known as “ultrahazardous activity.” Paradigm case
is blasting – party that undertakes blasting is strictly liable to any that are injured from that activity.
Then get question of what other things are ultrahazardous activity?
i.
Turner v. Big Lake Oil Co.
i. Procedure: ∏ (grassland owners) are suing ∆ (oil company, ponds) for neglect and
permitting the levees and dmans to break and overflow. Special issue to the jury – anser
the ∆ did permit the salt water to overflow from salt ponds but quitted the ∆ in error of
negligence in the premises. ∏ appeals. Court of Appeals says that negligence is a
prerequisite to recover and affirmed.
ii. Facts: ∆ operate large oil wells, and constructed large artificial earth ponds to run polluted
waters from the wells. On the occasion complained of the water escaped from the ponds,
passed over the grass lands of the ∏ and injured their turf.
iii. Issue: Can the ∆, w/o negligence on their part, be held liable in damages for the
destruction or injury to property by the escape of salt water from ponds constructed and
used by them in operation of their oil wells? Must the question be predicated upon
negligence?
iv. Reasoning: Negligence is a prerequisite to recovery. Can be distinguished from Rylands
because storage of water in England is not w/in the contemplation of the parties versus as
with land in Texas where it is w/in the contemplation of the parites. Texas very different
conditions than England, there are also no oil wells. The construction of basins or ponds to
hold salt water is a necessary part of the oil business.
v. Rule of law: Needs to be in contemplation of the parties.
Natural for them to collect water because it is an arid area. Isn’t this really a conflict between the cattle
ranchers and the oil industry? Court really says that the oil industry wins. Producing oil is one of our
major industries. Can trace property in Texas back to land grants for cattle grazing – probably did not
contemplate the oil purpose – but the court talks as though it was. What is going on here? Is some group
being subsidized and someone else’s expense. If you don’t hold them strictly liable then who will bear
the cost? In this case the ranchers. The court in effect is saying that because of the importance of the oil
industry it is appropriate to spread costs to cattle industry. Question of who bears the costs. Court says it
is appropriate, and one of the costs of producing oil, is that you generate the salt water as a byprouduct
(one of the costs of producing oil) and we are effectively not shifting some of the burden to the ranchers.
This case makes you wonder whether today it would be decided today in light of chemical industry.
Would the Texas courts.
When looking at strict liability it’s often a question of who is going to bear the costs of those engaged in
that industry or society. In this case it’s appropriate for cattle ranchers to carry some of burden of the oil.
j.
Seigler v. Kuhlman
i. Procedure: ∏ (decedents estate) is suind ∆ (driver, owner and manufactuere of the truck
and trailer) to recover on the basis of negligence and strict liability. Trial court refused
request for jury instructions, didn’t submit res ipsa, jury return verdict for ∆. ∏ appealed.
Intermediate court of appeals affirmed. Held: Reversed and remanded. Strict liability high
degree of risk of harm and injury cannot be laminated by the exercise of reasonable care.
ii. Facts: Young girl dies in gasoline explosion when car entered pool of gasoline. The ∆ was
driving a gasoline truck that was fully loaded and the trailer came loose from the truck,
moments later the ∏ drove into the gasoline, it ignited, and perished in the flames.
iii. Issue:
iv. Reasoning: Res ipsa loquitur should have been given to the jury, the inference of
negligence could have been drawn from the event. Re: strict liability  same basic
principles as Fletcher – no more unusual but more dangerous than collecting water. Gas as
cargo is uniquely hazardous characteristics. Most important ingredients of proof will be
lost in explosion. Hazards to 3rd persons are likely to be great. Rule of strict liability when
applied to abnormally dangerous activity is standard in Restatement (2nd) of Torts § 519.
Res Ipsa Claim  just as a matter of common sense, tanks on tank trucks don’t normally detach
themselves absence somebody’s negligence. Evidence destroyed in the process of the accident.
Appellate court says there is a res ipsa claim. Recall here Escola where the majority says we’re talking
about res ipsa, but the dissent says we should have strict liability.
Argument that this is a case for strict liability  High probability of risk (high P), injury is likely to be
severe (high L); and it’s an inherent risk that is present even when the operater and transporter of gasoline
exercises due care. Activity is not a matter of common usage.
Argue either it was the drivers negligence or it was a problem with the truck; so strict liability or res ipsa.
If were ∆ don’t have any notion that the driver failed to exercise due care, it might just have equally been
the truck.
Activity with inherent risks.
Restatement (2nd) Torts
§ 519 Abnormally Dangerous Activity
(3) One who carries on an abnormally dangerous activity is subject to liability for harm to the person,
land, or chattels of another resulting from the activity, although he has exercised the utmost care
to prevent such harm.
(4) Such strict liability is limited to the kind of harm, the risk of which makes the activity abnormally
dangerous.
§ 520 Abnormal Activity
In determining whether an activity is abnormally dangerous, the following factors are to be considered:
(g) Whether the activity involves a high degree of risk of some harm to the person, land or chattels of
others;
(h) Whether the gravity of the harm which may result from it is likely to be great;
(i) Whether the risk cannot be eliminated by the exercise of reasonable care;
(j) Whether the activity is not a matter of common usage;
(k) Whether the activity is inappropriate to the place where it is carried on; and
(l) The value of the activity to the community.
v. Concurring: Another reason not mentioned by the majority is that the commercial
transporter can spread the loss among his customers – who benefit from this
extrahazardous use of the highways. There was no outside force that caused the tractor to
be detached. Strict liability should be the standard.
Note cases  the note case on Indiana Harbor Belt case on page 423 = strict liability for hazardous
products being transported. Why not hold all the hazardous material transports strictly liable? Picture of
extent to which lawyering can make a difference in the outcome of the case. On page 426-427 see
situation where doctrine of strict liability will apply.
k. Foster v. Preston Mill Co.
i. Facts: ∏ own a mink ranch, during whelping seasons mink get excitable. ∆ blasting
nearby to clear a rode (2 ¼ miles away), the vibrations excited the mother mink who began
killing their young. ∏ tell ∆, ∆ reduce strength of dynamite charges, but continue blasting.
The ∏ brought suit.
ii. Procedure: ∏ (mink owner) is suing ∆ (blaster) for damages when mother mink killed her
kittens. Look to recover damages only after ∆ received notice. Trial court w/o a jury
found for the ∏, stating that the ∆ received notice of the effect of the blasting operations
and was thus absolutely liable for all damages. Appeals court reversed.
iii. Issue: Is this a sustainable theory of absolute liability? Is the risk that any unusual
vibration or noise may cause wild animals, which are being raised for commercial
purposes, to kill their young, one of the things which make the activity of blasting ultra
hazardous? Held: no.
iv. Reasoning: Yes, absolute liability applies to blasting as an ultra hazardous activity because
extraordinary risk. However, the thing that makes blasting ultra hazardous is the risk that
property or persons may be damages or injured by coming into contact with flying debris.
The responsibility is on the nervous disposition of the mink, not on the relatively moderate
vibration that is a usual incident of ordinary life in the community.
v. Rule of law: Injury needs to be the same kind of risk of injury which makes the activity
ultra hazardous such that a ∆ will be held strictly liable.
Blasting is paradigm of strict liability – ultra-hazardous activity.
What if vibrations case crack in your house?
Does this case fit in any categories we’ve looked at before? Kind of seems like a proximate cause
question. Would Cardozo’s analysis in Palsgraf apply here: not the risk associated that you would
foresee. Problem with that argument in this case: the ∏ notified the ∆ that this was going on.
Again conflict between two industries: forestry and mink raising. Both economically effective. Either
stop the timber company from building its road during season the mink are whelping in order to avoid the
cost on the mink rancher. Or, can impose the cost on the mink rancher of blasting. Which is better?
Question of cost here – do you put the liability on the timber company or do you put the liability in effect
on the mink rancher and say part of the cost of raising your mink is that the mother may eat there young if
they are upset. Mink could move more readily than the timber company. Or they could negotiate. If
activity is valuable enough then maybe ready to pay company enough to offset their loses to postpone the
blasting. There is no clear answer about where the equities are here. Court has to make some kind of
decision. Did not make it in a formalistic way.
Not responsible for trespass and nuisance. Important because trespass originally was a case of strict
liability as was the case of nuisance.
Strict product liability
We read Escola and saw Traynor’s concurrence there. In around 1963 in a case called Greeman Traynor
wrote majority opinion where he adopted the line of analysis that he articulated in Escola. At the same
time the restatement adopted a provision that had the same approach.
Many of the arguments in favor of strict liability for ultra-hazardous, carry over to products liability. The
cost of a product, including the inherent risks associated with the product arising from defects should be
born by those using the product. Same argument made for blasting, etc. Traynor also talks about
proposing strict liability as a way of deterring manufacturers from producing defective products.
Question – recall problem 11 as we went through the application of the Hand formula in that context and
we saw that theorhetically it doesn’t make any difference if it is strict liability or negligence because once
get to B exceeding PL, manufactuerer thinks why not let PL occur and then just pay for the cost of it.
Good in theory but there are a lot of steps to be taken between injury occurring and ∏ recovering
damages.
At SL we eliminate need to show failure to exercise due care and all the ∏ needs to show is that the
product was defective and ∏ was injured as a result. May have proximate cause issues that arise but
those kind of cases are pretty rare.
Notice that in Seigler they talk about absolute liability and sometimes strict liability. Difference – neither
term is strictly defined, although the term strict liability has come to be the one used in product liability
and ultrahazardous activity case. “Absoulte” connotes that no matter what happens the ∆ will be liable.
In cases such as contributory negligence, though, means might not always be “absolute.” So err to “strict
liability.”
Review session 9am in Bryan Cave Moot court room for 1 hour.