TORTS
Suter Fall 2000
Table of Contents
I.
Negligence .............................................................................................................................. 3
A. DUTY: Can this P sue this D? ............................................................................................ 3
1. Foreseeability .................................................................................................................. 3
2. Misfeasance/Nonfeasance ............................................................................................... 3
3. “Mere” Nonfeasance, BUT ............................................................................................. 3
4. Voluntary Assistance ...................................................................................................... 4
5. Special Relationship........................................................................................................ 4
6. Duty to 3rd parties............................................................................................................ 4
7. Landowner/occupier relationships .................................................................................. 6
8. Intrafamily Immunity ...................................................................................................... 7
9. Governmental Immunity ................................................................................................. 7
10.
Ruinous Liability Concerns ........................................................................................ 8
11.
Emotional Distress Claims.......................................................................................... 8
12.
Wrongful Birth and Wrongful Life ............................................................................. 9
B. BREACH: Has D behaved reasonably? .............................................................................. 9
1. Objective Reasonable Person Standard .......................................................................... 9
2. Custom .......................................................................................................................... 10
3. Statutes .......................................................................................................................... 11
4. Res Ipsa Loquitur .......................................................................................................... 12
5. Foreseeability ................................................................................................................ 14
6. Learned Hand Equation: B < PL................................................................................... 14
7. Special Standard of Care ............................................................................................... 15
C. Duty + Breach = Wrongdoing on part of D toward P. ...................................................... 17
D. CAUSATION ................................................................................................................... 17
1. Cause-in-Fact ................................................................................................................ 17
2. Cause-in-Fact Challenges ............................................................................................. 17
3. Loss of Opportunity for Survival (Past Harm) ............................................................. 17
4. Enhanced Risk (Future Harm) ...................................................................................... 18
5. Multiple Ds, Toxic Torts, etc. ....................................................................................... 18
6. Proximate Cause ........................................................................................................... 19
7. Intervening Causes ........................................................................................................ 20
E. Damages ............................................................................................................................ 20
1. Plaintiff MUST mitigate Damages. .............................................................................. 20
2. Compensatory Damages ............................................................................................... 20
3. Considerations in Assessing Compensatory Damages ................................................. 21
4. Survival and Wrongful Death Actions .......................................................................... 21
5. Punitive Damages ......................................................................................................... 22
F. Defenses ............................................................................................................................ 22
1. Contributory Negligence ............................................................................................... 22
2. Assumption of Risk....................................................................................................... 23
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Torts (Suter)
Fall 2000, Page 1 of 30
II.
Strict Liability ....................................................................................................................... 24
Abnormally Dangerous Activity ....................................................................................... 24
1. Restatement Second Factors (443)................................................................................ 24
2. Indiana Harbor Factors (Same as R2d) ......................................................................... 24
B. Product Liability ............................................................................................................... 25
1. Manufacturing Defect ................................................................................................... 25
2. Design Defect................................................................................................................ 25
3. Warning Defect ............................................................................................................. 26
C. Defenses – See I(F) Above ............................................................................................... 27
1. Modification or Misuse of Product ............................................................................... 27
2. Comparative Fault ......................................................................................................... 27
III.
Intentional ......................................................................................................................... 28
A. Assault............................................................................................................................... 28
1. Elements ........................................................................................................................ 28
B. Battery ............................................................................................................................... 28
1. Elements ........................................................................................................................ 28
2. Defenses ........................................................................................................................ 28
3. Damages ........................................................................................................................ 29
C. False Imprisonment ........................................................................................................... 29
1. Unlawful Restraint/Confinement .................................................................................. 29
2. Mens Rea ...................................................................................................................... 29
D. Intentional Infliction of Emotional Distress ..................................................................... 29
1. Elements ........................................................................................................................ 29
2. Public Figures ............................................................................................................... 29
E. Defamation ........................................................................................................................ 30
1. Definition ...................................................................................................................... 30
A.
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Torts (Suter)
Fall 2000, Page 2 of 30
TORTS
Suter Fall 2000
Suter’s Continuum:
No Fault
Intentional Torts
Negligence
Strict Liability
No recovery
CX, Intended
Duty, Breach, CX
CX
 Determining Recovery Becomes Easier 
 Greater Moral Culpability 
Considerations for the imposition of liability:
 Fairness
 Compensation
 Deterrence
 Punishment
 Wrong-doing
Negligence
DUTY: Can this P sue this D?
Foreseeability
a. Would a reasonable person in the position of the D have foreseen
this risk of harm to P in the absence of care?

Factors of Duty:
o Special Relationship
o Foreseeability
o Reliance
o Nonfeasance v. Misfeasance
o Voluntary assumption of aid
o Breach of liability
Misfeasance/Nonfeasance
b. Generally duty exists in cases of misfeasance.
(1)
Palsgraf (dissent) – actor owes duty of care to general public –
those likely to be injured by act AND all those injuries proximately
caused by act.
“Mere” Nonfeasance, BUT
c. Nonnegligent injury: Duty to prevent further harm.
Maldonado v. Southern Pacific Transp. Co. (n4, 120): Train jerked as P tried to board. P fell under
wheels and his arm was severed. RULE: D employees had a duty to prevent further harm when they
knew P had fallen and did nothing to help.
d. Nonnegligent creation of risk: Duty to warn or remove hazard.
Simonsen v. Thorin (n6, 121): D knocked utility pole into street, and P hit the pole. RULE: D had duty to
warn or remove hazard even though not liable for creating the hazard.
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Voluntary Assistance
e. Even if nonfeasance
f. No duty to rescue, BUT
g. If D rescues voluntarily  duty because
(1)
D is preventing someone else from rescuing
(2)
Want to encourage careful, not careless, rescuing
Farwell v. Keaton (125): Farwell and Seigrist, two friends, were attacked. Seigrist attempted to treat
Farwell, but after two hours left him in a car in his grandparents’ driveway. Farwell died 3 days later.
RULE: One who voluntarily comes to the aid of another in peril, or has a special relationship with another
in peril, has a duty to rescue the party in peril if the rescue can be accomplished without risking personal
danger.
Ronald M. v. White (n2, 129): Group of kids injured when driver was under the influence. D, members
of the group not under the influence, had no duty to the others to restrain the driver.
H.R. Moch Co. v. Rensselaer Water Co. Cardozo (n9, 131): D water company contracted to supply water
to the city. Moch’s warehouse burned down because a sufficient quantity of water was not available to
firefighters. RULE: Third party who is not a party to a contract but benefits from its performance may
not recover for a contracting party's NONfeasance.
h. Good Samaritan Laws in some jurisdictions.
Special Relationship
i.
j.
k.
l.
Even if nonfeasance
Custodial – vulnerable, dependant
Business
Reliance – expectation
(1)
Restatement § 315-318



Parent-child
Master-servant
Possessor of land or chattels-user of land or chattels
Harper v. Herman (116): P dove off D’s boat into shallow water and was paralyzed. RULE: No special
relationship between boat owner and guest and no duty to warn. No duty for nonfeasance.
(b) Morgan v. County of Yuba (n7, 122): D sheriff promised to
warn P’s decedent before releasing man who had threatened her.
D failed to warn and he killed her. RULE: D liable if P’s
decedent relied on his promise to warn and would have acted
differently without it.
Duty to 3rd parties
m. Warn or Control
(1)
Elements of Duty to Inform: (141)
o
o
o
o
o
o
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FOS of harm to  - most important
Degree of certainty
Closeness of connection between  conduct and  injury
Moral blame of  conduct
Policy of preventing future harm
Extent of burden to 
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o
o
(2)
Consequences to  & the community
Availability, cost and prevalence of insurance for the risk
Restatement § 319
o
o
“One who takes charge of a third person whom he knows or should know to
be likely to cause bodily harm to others if not controlled is under a duty to
exercise reasonable care to control the third person to prevent him from
doing such harm.” (e.g. escape of homicidal maniac or N release of patients
who have contagious diseases.)
Dr. NOT liable if he fails to predict & confidentiality is still a concern
Tarasoff v. Regents of the Univ. of CA (140): D’s psych. patient killed Tatiana Tarasoff, and her parents
sued for Dr’s failure to warn. RULE: Because of psychologist’s special relationship with a patient, the
psych. has a duty to warn third parties of the patient’s violent intentions, even if the psych. has no special
relationship with the foreseeable victim.
o
Tarasoff – Majority Rule. CA: Victim must be
identifiable; TX, VA reject Tarasoff
Pate v. Threlkel (n3, 147): D surgeon should have known that patient’s adult children could likely
develop carcinoma. RULE: Dr. had duty to inform adult children of patient that they had a genetic
predisposition for the same kind of cancer found in parent.
Safer v. Pack (handout): Dr. had duty to warn third party directly of genetic link for colon cancer when
third party is identifiable or harm may be averted or lessened through a warning and warning doesn’t
place a large burden on Dr.
Kelly v. Gwinnell (157): Zak, social host, served alcohol to intoxicated friend who Zak knew would be
driving. MINORITY RULE (NJ): A host who serves liquor to an adult social guest, knowing both that he
is intoxicated and will be driving, is liable for injuries to a third party. NJ LEGISLATIVE RESPONSE:
Limited – Social host has limited liability for willfully and knowingly providing alcoholic beverages to a
person who was visibly intoxicated in the host’s presence under circumstances manifesting reckless
disregard of the consequences.
Dram Shop Acts: Imposes civil liability on commercial establishments that serve alcohol to intoxicated
guests. Rule in most states. Bar has a duty because they are receiving a benefit.
Some jurisdictions Dr. has no duty, but does have a privilege to warn third parties about HIV.
n. Negligent entrustment
Vince v. Wilson (152): P was injured in a car accident with D’s grandnephew. D bought the car for her
grandnephew knowing that he did not have a license, had failed the driving test several times, and abused
alcohol and drugs. RULE: The negligent entrustment theory requires a showing that the entrustor knew
or should have known some reason why entrusting the item to another was foolish or negligent.
Palma v. U.S. Industrial Fasteners (n5, 155): Truck owner breached a duty to the public when he left his
keys in a 2-ton truck in bad neighborhood. Ct says high FOS, low burden to community of imposing a
duty, low burden to D.
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Landowner/occupier relationships
o. Traditional Approach (MAJORITY)
(1)
Invitee: Express or implied invitation to enter or use another
person’s premises, such as a business visitor or a member of the public
to whom the premises are held open (material benefit or property held
open to the public)
o
o
o
Warn of hidden dangers
Inspect and Discover dangers
Make premises safe
(2)
Licensee: One who has permission to enter or use another’s
premises, but only for one’s own purposes and not for the occupier’s
benefit (Vast majority of jurisdictions make a social guest a subclass
of licensees) – licensees are on property for their own purpose and
must take the premises as they find it. Not extending invitation to
public at-large. (n1, 168) rationale - social guests don’t expect hosts to
go to special efforts above what they do for themselves. Homeowners
insurance – decreases the direct cost to the host, so it would make it
easier to call the guest an invitee.
o
Warn of Hidden Dangers
Britt v. Allen County Community Junior College (n7, 169): Salesman’s foot. RULE: Duty to act with
due care when affirmative action. Duty to warn licensee of hidden dangers on premises.
(3)
Trespasser: Person who enters land without possessor’s
permission
o
o
o
Undiscovered – no duty of care owed to a trespasser
Child –
 Owner knows of frequent use by children
 Risks children don’t appreciate makes unsafe
 Expense of protecting is low
 Owner knows or should know of danger
Frequent or Anticipated – Duty: reasonable care to warn of know
dangers.
Carter v. Kinney (165): P slipped on ice while going to D house for a Bible study. RULE: A person is an
invitee if the possessor invites with an expectation of a material benefit or if the premises are thrown open
to the public in such a way as would imply a warranty of safety. Carter was a licensee, not an invitee.
p. Rowland Approach (MINORITY)
Rowland v. Christian (172): P injured by broken faucet handle. RULE: Duty to warn or repair regardless
of status.
q. Criminal Activity
Kline v. 1500 Mass. Ave. Apts. (n7 197): Landlord has a duty to make common areas safe
Sharon P. v. Arman, Ltd. and Ann M. v. Pacific Plaza Shopping Center (handout): Commercial landlord
has a duty to take reasonable steps to secure common areas against FOS criminal acts.
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Intrafamily Immunity
r. Parent-Child: Can sue for intentional harms but not for
Negligence.
Zikely v. Zikely (189): Child burned by hot bath water. RULE: No cause of action for negligent
supervision.
Gibson v. Gibson (n4 193): Reasonable parent standard.
Schlessinger v. Schlessinger (n9 195): Third party can’t bring parent into suit if child could not have sued
directly.
Nolechek v. Gesuale: EXCEPTION – parent created a public risk when she gave a motorcycle to a child
who was blind in one eye, had poor vision in the other, and didn’t have a license. Child died in accident –
allowed to sue.
s. Spousal Suits: Can sue for intentional and negligent harms.
Governmental Immunity
t. Municipal and State



Proprietary – NO immunity, Negligence analysis
o Supplementing private sector, e.g. buildings, roads
Governmental – ABSOLUTE Immunity
o Discretionary Functions: Protecting Public, public health, Education,
Elections, Taxes
o Policy Choices – Even if behavior is unreasonable, choices are protected
o 911: Direct contact with victim and reliance
o EXCEPTIONS:
 Creation of risk
 Beginning of rescue
 Reliance
Qualified Immunity
o Planning Decision: must have a rational basis for making decision, BUT
decision is not evaluated. Was decision made arbitrarily?
o Implementation: Negligence evaluation – Once decision was made, was it
implemented reasonably?
Friedman v. State of New York (210): State failure to construct a median barrier. RULE: Once decision
is made, duty to implement reasonably.
Riss v. City of New York (198): Pugach threw lye in Riss’s face. RULE: Police not liable for failing to
protect.
Schuster v. City of New York (n1 203): P killed after identifying wanted criminal. RULE: Police liable
for failing to protect because they had acted affirmatively not passively.
Sorichetti v. City of New York (n2 203): Child mutilated by father. RULE: Police liable because they
had assured mother that they would act and protect child.
u. Federal - Federal Tort Claims Act (1946)

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Allows suits for property damage, personal injury or death caused by the
negligent or wrongful act or omission of any federal employee while acting in
the scope of his employment.
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o Was there a choice?
o Was it a policy kind of choice?
o If yes, absolute immunity.
Discretionary functions are immune, but definition of discretionary is unclear.

Berkovitz v. US (216): Contaminated polio vaccine. RULE: If agency fails to follow its own guidelines –
NO immunity. If agency follows its own guidelines and finds it unsafe, but licensed it anyway – NO
immunity. If agency follows its own guidelines, but the guidelines are later determined to be inadequate,
IMMUNITY – policy choice.
Ruinous Liability Concerns
v. Liability would ruin the tortfeasor, so no duty if no privity of
contract.
Strauss v. Belle Realty Co. (133): P fell down in the common area of his apartment during a citywide
power failure. RULE: A utility does not owe a duty of care to the landlord’s tenant because the utility has
only contracted with the landlord.
Emotional Distress Claims
w. Physical Impact Rule – If P was physically injured by D, courts
generally allow pain and suffering.
x. Special Cases
(1)
Mishandling of a corpse
(2)
Mistaken telegram of death
y. Direct Victims
Zone of Danger
KAC
- Zone of Danger
- Reasonable fear for safety
- Severe ED
- Physical Manifestations
GAMMON
- FOS of ED (reasonable person could
not cope)
- Severe ED
- NO physical manifest. required
KAC v. Benson (226): Patients sue gynecologist with HIV. RULE: Unreasonable fear, not in the ZOD.
Gammon v. Osteopathic Hospital of Maine (234): Severed leg. RULE: FOS ED = recovery
z. Indirect Victims – Bystander Cases:
(1)
Analyze Duty, Breach, Cause, Damages to Victim THEN
analyze indirect victim – no need to go through duty, breach, cx,
damages for indirect victim.
FOS
Easy
recovery
Dillon
- Family
- Observe Accident
- Proximity
Portee
- Family
- Observe accident &
Proximity
- Severe injury to V
- Severe ED
ZOD (Johnson)
- Family
- Zone of Danger
NO Duty
No
Recovery
- Severe ED
Portee v. Jaffee (238): Mother watches son die in elevation shaft.
Johnson v. Jamaica Hospital (251): Parents not in the zone of danger when infant is kidnapped from the
hospital.
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aa. Reasons for Court reluctance to grant recover for ED w/o physical
injury





Hard to prove Ed
Fear of fraud
Fear of excessive claims
Skepticism (no real damage)
Ineffective deterrence
Wrongful Birth and Wrongful Life
bb. Wrongful Birth: P is parent – allowed by most courts
cc. Wrongful Life: P is child – NOT allowed by most courts. (Allowed
by NY, NJ, CA – recovery is offset.
dd. Wrongful Pregnancy: P is parent – sterilization didn’t work
Greco v. US (257): Allowed wrongful birth, NOT wrongful life. Recovery allowed for extraordinary
medical and custodial expenses and emotional distress, but not for loss of consortium. NO offset rule.
(b) Martinez v. Long Island Jewish Hillsdale Medical Center
(264): Mother allowed to recover for emotional distress after
having an abortion based on erroneous information from her Dr.
that child would have small or no brain.
BREACH: Has D behaved reasonably?
Objective Reasonable Person Standard
ee. Would a reasonable person under the same circumstances have
acted the same way as D? Conduct matters, not state of mind.
Negligence does not look at intention.
ff. Factors of Due Care
(1)
FOS
(2)
Feasibility
(3)
Custom
(4)
Plaintiff’s Conduct
(5)
Value of Activity
(6)
Degree of Danger
gg. Intoxication – NOT an excuse for unreasonable conduct
hh. Exceptions
(1)
Children – Standard is a reasonable child of similar age,
intelligence, etc., UNLESS the child is engaged in an adult activity.
< 6 conclusive presumption – not negligent
(b) 7 – 14 rebuttable presumption
(2)
Physical Attributes or Disability – Standard of reasonable
person with same physical attributes or disability
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Fall 2000, Page 9 of 30
(3)
Mental Capacity
Slight Mental Deficiency – No excuse – still reasonable person
standard
Extremely Low Intelligence – Majority View: not capable of
Negligence
Insanity – Majority View: reasonable person standard. Minority
View: If not capable of appreciating or avoiding danger, then
not Negligent
Sudden Illness or Unconsciousness – Not Liable if Not FOS
Hammontree v. Jenner (3): D had a seizure and drove through P bicycle shop, injuring P. No
liability if not FOS
(4) Emergency Doctrine -
Custom
ii. Persuasive but not determinative.
jj. Custom relates to feasibility (B factor).
kk. If D followed custom, MAY be evidence of Reasonable Care – not
conclusive. Custom does not define the standard of care (except in
malpractice cases).
United States v. Carroll Towing Co., Learned Hand (35): Barge broke away from pier and sunk due to D
negligence in shifting mooring lines. P - contributory negligence in not having bargee on board to
prevent accident. RULE: If B < PL, then Negligence. If it was custom not to have bargees on board at
night, it may be that the situation is one where custom should control.
ll. Failure to follow custom is irrelevant if D used reasonable care
Trimarco v. Klein (58): P injured by shattered bathtub glass door argued that custom was to use tempered
safety glass. RULE: Custom and usage is only one factor in determining reasonable care. Custom is
persuasive evidence, BUT custom must also be reasonable. BUT
Levine v. Russell Blaine Co. (n5, 62): P cut hand on rough rope on dumbwaiter and infection led to
amputation. RULE: If the purpose of the customary use of smooth rope was to avoid such injuries, the
evidence of the custom was admissible. BUT
Garthe v. Ruppert (n6, 62): P slipped on wet brewery floor. Evidence that one brewery had developed a
way to keep the floors dry was NOT admissible as evidence of custom. RULE: Not “permitted to take 1
or 2 instances as a gauge or guide in place of the custom of the trade.
mm. The fact that something is NOT a custom, does not necessarily
mean that D was reasonable – may just not be the custom YET
The T.J. Hooper, Hand (n2, 60): Tug did not have a radio, so it did not learn of a storm in time, and it
sunk along with the barges it was towing an their cargo. RULE: Showing that radios were not customary
on tugs did not prove that D was reasonable in not having a radio. May just not be the custom YET.
BUT
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Fall 2000, Page 10 of 30
LaVallee v. Vermont Motor Inns (n4,61): P injured during a power outage at hotel. Argued that D should
have installed emergency lighting, but D showed evidence that this was not a custom. RULE: “While
industry custom is not conclusive…, it is a useful guide, unless it is apparent that under the particular
circumstances of the case a reasonable person would not conform to the industry-wide custom.”
nn. Custom is a jury question.
Statutes
oo. Statutory Purpose
(1)
Objective – Was the statute designed to protect safety?
(2)
Class – P is part of Class of persons the statute was designed to
protect
(3)
Type of Harm – The harm suffered is what the statute was
meant to prevent


Narrow – sheep overboard
Broad – radiator on construction worker’s head
(4)
Standard – The required standard of conduct is clearly defined
in the statute
Platz v. City of Cohoes (n8, 70): P injured by obstruction in the road, negligently left by city. D argued
that P would not have been injured if they had obeyed a statute that forbids driving on Sunday. RULE:
Statute designed to protect public order not public safety, NOT applicable to D negligence.
De Haen v. Rockwood Sprinkler Co., Cardozo (n8, 70): P injured when radiator fell down shaft that did
not have the statutorily required railing. RULE: Injury was in the “zone of apprehension” even though it
was not the exact injury the statute was designed to prevent.
Gorris v. Scott (n10, 73): D ship owner failed to build pens for sheep in compliance with Contagious
Diseases Act, and sheep were washed overboard. RULE: Statute must be designed to prevent the harm
that was suffered.
pp. Type of Statute: Standard of Care v. Rules of Conduct Statute
(1)
Negligence Per Se: Standard of care





(2)
(3)
Rules of Conduct
Evidence of negligence, but NOT conclusive


(4)
Statute defines reasonableness
Breach of duty as a matter of law unless excuse
Excuse must be extreme
Judge evaluates excuse
E.g. Rule of the road to keep public safe (Martin v. Herzog)
Excuse if following statute would have been more dangerous than non
following statute
Jury evaluates excuse
Rule of conduct to keep pedestrians safe (Tedla v. Ellman)
Baltimore & Ohio RR v. Goodman, Holmes (48): Goodman should have gotten out of his car to make
sure RR crossing was safe. RULE: Question of Due Care generally up to the jury, but when standard of
conduct is clear, it should be laid down by the Courts. BUT
Pokora v. Wabash Railway Co., Cardozo (50): Even if Pokora had gotten out of his car to look, he still
could not have avoided the danger. RULE: “Standards of prudent conduct are declared at times by courts,
but they are taken over from the facts of life. *** …need of caution in framing standards of behavior that
amount to rules of law.” Limited Goodman.
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Akins v. Glen Falls City School Dist. (52): NY C of A held that there was no basis for the jury to find the
school district was negligent when Pokora was hit by baseball when not standing behind a large backstop.
RULE: Jury should be allowed to determine reasonableness based on current community standards and
current technology.
qq. Civil Liability
(1)
MAJORITY VIEW: Statutory violation is Negligence PER SE
Martin v. Herzog, Cardozo (63): Martin killed when his buggy was struck by Herzog’s car. Martin was
violating statute by driving without lights. RULE: Unexcused omission of a statutory requirement is
negligence PER SE. Must show that omission contributed to the damages to be contributory negligence.
JUDGE MAY NOT INSTRUCT A JURY TO DISREGARD A STATUTE. Judge will decide acceptable
excuse.
(2)
MINORITY VIEW: Statutory violation is only some evidence
of Negligence that may be outweighed by other evidence showing due
care, BUT if statute explicitly states that its violation = civil liability,
then Minority View will impose liability.
Clinkscales v. Carver, Trainer (n4, 65): Ran stop sign that had been erected under ineffective ordinance;
no criminal liability. RULE: Limit of criminal liability does not affect civil liability. Treat statutes like
custom.
rr. Excuses
(1)
Compliance would be more dangerous than noncompliance
Tedla v. Ellman (66): P struck by D car while walking on wrong side of road because of heavy traffic on
the right side of the road. RULE: Violation of a safety statute may be excused if a greater risk of harm
would have resulted from complying with the statute.
(2)
Compliance is impossible
(3)
D was faced with emergency he did not create
ss. Obsolete Statute – court will ignore evidence of statutory violation
is statute has not been enforced in a long time, or if it is without
foundation
Res Ipsa Loquitur
tt. Inference or presumption of Negligence (duty/breach) by the mere
fact of the accident having occurred – prima facie case  gets case
to jury.
Byrne v. Boadle (80): P injured by Flour Barrel falling out of a window. MINORITY VIEW - RULE: D
must prove NOT negligence. Most courts do NOT shift burden of proof.
uu. Elements (OPEC) – established with Preponderance standard
(1)
Ordinarily a type of accident that would not normally occur
without negligence
(2)
P was free from fault – P did not contribute through voluntary
act (not required in all jurisdictions)
(3)
Exclusive Control – D had exclusive control over the
instrumentality that caused the injury
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Fall 2000, Page 12 of 30
Anderson v. Service Merchandise (83): P injured when light fell from ceiling. Sylvania had contract with
Service Merchandise to maintain the lights, but Service employees changed light bulbs. RULE: Must
have exclusive control over the instrumentality for liability. Service Merchandise had non-delegable duty
to customers, but Sylvania did not have exclusive control.
(4)
Frequently, P does not have access to the evidence. This may
be persuasive, but it is not an explicit requirement.
(5)
Courts divided on use of expert witnesses in Res Ipsa cases.
vv. D rebuttal evidence
(1)
MAJORITY VIEW: (NY) PERMISSIBLE INFERENCE of
negligence: jury could infer D was Negligent, but doesn’t have to. D
does NOT have to rebut to win. Usually goes to jury, but P can win
directed verdict.
Farina v. Pan American World Airlines (n7, 87): P can win directed verdict even in permissible inference
states, but res ipsa is usually not enough to win case.
Leonard v. Watsonville Community Hospital (n9, 87): One of the doctors proved that he had not worked
on the upper abdomen where the Kelly clamp was left in patient. RULE: It is possible that D can rebut so
effectively that D wins directed verdict.
(2)
MINORITY VIEW: (CO, KY, CA) REBUTTABLE
PRESUMPTION of negligence. If D does not rebut, P wins. D has
the Burden of Production.
(3)
MINORITY VIEW 2: (Miss, La) SHIFT Burden of Proof to D
(both Persuasion and Production).
MAJORITY
NY
Permissible
Inference
D may win w/no
rebuttal
MINORITY 1
CA, KY, CO
Rebuttable Presumption
MINORITY 2
Miss, LA
Shift Burden of proof
to D
D no rebuttal - P wins
Burden of production
shifts to D
Persuasion &
Production
ww. Multiple D
(1)
Res Ipsa can be applied to 2 or more D even though only one
was negligent if they were all involved with activities surrounding the
injury and it is difficult to pinpoint the person who actually caused the
injury – treats the group as a single entity.
Ybarra v. Spangard (90): (CA) P injured during surgery couldn’t know which member of surgical team
was responsible for paralysis. RULE: Can use Res Ipsa, and each D is responsible for rebutting the
presumption of negligence. Rationale: Ds have more access to evidence than P, and Drs. will not usually
testify against each other. BAD Res Ipsa case – stretched res ipsa as far as it would go.
(b) Barrett v. Emanuel Hospital (97): (OR) Rejected Ybarra –
arguing that modern discovery practice eliminates the need for
Ybarra, P must establish that a particular D caused harm, and
unconscious V could be protected through strict L.
K. Garrett
Torts (Suter)
Fall 2000, Page 13 of 30
Foreseeability
xx. FOS and feasibility
Adams v. Bullock, Cardozo (31): P electrocuted when the 8 ft. wire he was carrying hit trolley lines.
RULE: Duty to adopt Reasonable precautions to minimize possible danger. NOT Negligent for not
protecting against unFOS, extraordinary injury that would be extremely difficult (unfeasible) to prevent.
Braun v. Buffalo Gen. Elec. Co. (n2, 32): P construction worker electrocuted and killed when he touched
wires with expired insulation. RULE: Negligent for failing to prevent FOS injury that would have been
feasible to prevent.
Greene v. Sibley, Lindsay & Curr Co., Cardozo (n3, 33): Woman turns and trips over kneeling mechanic.
RULE: Duty to warn would create an unreasonable Burden, unfeasible.
yy. Notice
(1)
Constructive Notice – defect must be visible and apparent and
it must exist for a sufficient length of time prior to the accident to
permit D’s employees to discover and remedy it.
Negri v. Stop & Shop (76): P injured when he slipped on broken “dirty and messy” baby food jars.
RULE: D SHOULD HAVE KNOWN  Constructive notice.
Gordon v. American Museum of Natural History (76): P slipped on waxy paper on the museum steps.
RULE: No evidence of constructive notice – not dirty or torn, no witnesses noticed hazard prior to
accident.
(2)
Actual Notice
(3)
Mode of Operation – In some states the supermarket customer
may be able to recover arguing that by choosing self-service, the
owner has agreed to assume responsibility for the conduct of
customers who drop items on the floor or are careless. No need to
prove actual or constructive notice “if proprietor could reasonably
anticipate that hazardous conditions would regularly arise.” Rationale:
owner gains pecuniary benefit from requiring customers to perform
tasks previously carried out by employees.
Learned Hand Equation: B < PL
zz. B = Burden to Prevent Harm: cost of prevention & feasibility
aaa. P = Probability of harm occurring: FOS
bbb. L = Severity of Harm (Loss)/Magnitude
ccc. If B < PL, then N; If B > PL, then not N
United States v. Carroll Towing Co., Learned Hand (35): Barge broke away from pier and sunk due to D
negligence in shifting mooring lines. P - contributory negligence in not having bargee on board to
prevent accident. RULE: If B < PL, then Negligence
McCarty v. Pheasant Run, Posner (n4, 38): Woman assaulted in hotel room. RULE: Posner upholds jury
verdict for D, saying that Hand formula “has greater analytic than operational significance.”
K. Garrett
Torts (Suter)
Fall 2000, Page 14 of 30
(c) Bolton v. Stone (n7, 39): Cricket ball hit woman in her yard
across the street from cricket field. RULE: B > PL  no
negligence.
ddd. Social Utility: Goes to B factor
(1)
Does the risky activity have a high social utility (e.g., cars)?
Chicago, Burlington & Quincy R. Co. v. Krayenbuhl (n3, 37): Child’s leg severed while playing in train
yard. RULE: High social utility demands the use of machinery (but should have used a lock to prevent
injury).
eee.
If B = PL, then party with the burden of proof loses.
Special Standard of Care
fff. MEDICAL MALPRACTICE
(1)
Professional Standard of Care
National Standard
Locality Rule
(2)
Success is Not Guaranteed – only requires professional to act
with the requisite amount of skill
(3)
Differing Schools of Thought – Dr. can choose any reasonably
accepted school of thought
(4)
Specialists – held to a higher standard than professionals
without a specialty
(5)
Novices – newly licensed professionals held to the same
professional standard as experienced professionals
(6)
Medical Equipment – sometimes juries can consider the
medical equipment that was available
(7)
Informed Consent – Dr. must inform patients of risks that are
inherent in medical procedures, unless the treatment is given in an
emergency situation and the patient is incapable of giving consent.
Good Cases – elective surgery or experimental treatment. Bad
Cases – when patient is seriously ill or injured.
DUTY/BREACH – SCOPE OF DISCLOSURE – what Dr.
should tell
1.
2.
3.
Professional Standard (Traditional) – set by Drs.
Reasonable Patient Standard (Modern)
Individual Patient Standard (Minority)
1.
2.
3.
4.
Magnitude
Probability
Reasonable Alternatives
Benefits & Risks of having or not having treatment
1.
Define existence and nature of risk and likelihood of its
occurrence – Expert Testimony needed.
Trier of fact determine if probability of risk is something
a reasonable patient would consider – would a reasonable
MATERIAL INFORMATION
TEST FOR MATERIALITY OF RISKS
2.
K. Garrett
Torts (Suter)
Fall 2000, Page 15 of 30
patient attach significance to the specific risk – NO
Expert Testimony needed. Would a reasonable person
have chosen differently if informed? (Minority Korman
(Alaska) would P have chosen differently if informed?)
CAUSATION
1.
2.
But for the failure to inform, patient would not have
consented
Proximate Cause of injury
DAMAGES
1.
2.
Courts – risks must manifest; must have physical damages
Scholars – lack of autonomy IS the damage; not being
able to choose based on all the information
1.
If full disclosure would have a detrimental effect on
physical or psychological well-being of patient.
Patient incapable of consent – mental disability or
infancy.
Patient has requested not to be told.
Emergency.
Risk known to patient or so obvious as to justify
presumption of knowledge.
Relatively remote risks inherent in common procedures.
Physician does not know and should not have been aware
of risk.
Exceptions – Therapeutic Privilege:
2.
3.
4.
5.
6.
7.
Korman v. Mallin (108): Scarring after breast reduction surgery. RULE: Patient request for additional
information can be a guide to indicate whether information was adequate.
1. Consent for is presumptive evidence, but can be
rebutted.
Truman v. Thomas (112): (CA 4-3 decision) Dr. held L for consequences of patient refusing treatment
because he did not advise patient of dangers of NOT receiving treatment.
Pauscher v. Iowa Methodist Medical Center (112): P died after D performed medical procedure without
informing her of risks. RULE: Standard for Dr.’s duty to disclose is governed by what each patient
WANTS to know, so expert testimony of professional standard for disclosure of risks NOT necessary.
Dr. must assert a defense justifying the nondisclosure.
TRADITIONAL/MAJORITY
Professional standard set by Drs.
MINORITY
Reasonable
Patient would
want to know
SUBJECTIVE
What THIS patient
wants to know
(8)
Expert Testimony – necessary unless negligence is obvious to
a lay person (e.g., amputated the wrong leg). Can be used with Res
Ipsa in some states.
Connors v. University Associates in Obstetrics & Gynecology (103): “In an effort to become pregnant,
plaintiff underwent surgery. After the surgery she lost all function in her left leg.” RULE: Could use
expert testimony in res ipsa.
K. Garrett
Torts (Suter)
Fall 2000, Page 16 of 30
Purtill v. Hess (99): RULE: Expert MUST be
1. Licensed member of the school of medicine about
which he proposes to testify.
2. Familiar with the methods, procedures, and
treatments ordinarily observed by other physicians in
either D’s community or a similar community.
3. THEN – Trial Court has the discretion to determine
whether the expert is qualified and competent to
state his opinion.
4. BUT - Expert does NOT have to have same specialty as
D Dr. Jones v. O’Young (98)
ggg. COMMON CARRIERS
(1)
MAJORITY VIEW: Heightened Standard of Care – B < PL +
X
(2) Kozinski arguing for higher DEGREE of care NOT higher STANDARD of
care. B<PL NOT B<PL+X. P would argue higher STANDARD.
Andrews v. United Airlines, Kozinski (currently 9th Cir.) (54): P injured when bags fell out of an
overhead bin on airplane. RULE: Common Carriers owe a duty of the utmost care and vigilance of a very
cautious person toward its passengers. D responsible for even the slightest negligence and is required to
do all that human care, vigilance, and foresight reasonably can do under the circumstances consistent with
the character and mode and practical operation of the business.
Duty + Breach = Wrongdoing on part of D toward P.
CAUSATION

Has D’s wrongdoing CAUSED compensable harm to P?
Cause-in-Fact
hhh. Jury Question – More likely than not
iii. But-for causation (don’t forget to mention this!!!)
Stubbs v. City of Rochester (294): Whether city mixing up water lines caused P’s typhoid fever. RULE:
P does not have to rule out ALL other possible causes. Must show cause was a REASONABLE
CERTAINTY. Correlation does not necessarily show Causation.
Cause-in-Fact Challenges
Loss of Opportunity for Survival (Past Harm)
Loss of Opportunity < 50%
Proportional Recovery
Wrongful Death > 50%
Full Recovery
Falcon v. Memorial Hospital (300): Mother died after childbirth. Loss of opportunity of 37.5% chance of
survival. RULE: Preponderance of the evidence that there was a lost chance for survival. Proportional
recovery allowed if < 50% chance of survival. Wrongful Death = Full recovery if > 50% chance of
survival.
K. Garrett
Torts (Suter)
Fall 2000, Page 17 of 30
Enhanced Risk (Future Harm)
jjj. Enhanced Risks = Future costs of disease & Pain and Suffering,
lost earnings, medical expenses
Petriello
Can recover for < 50% risk
Mauro
Intermediate
Can recover if > 50%
Recovery proportional to risk
Optimal deterrence
Under/over compensation
Recovery proportional to risk
Optimal deterrence
Under/over compensation
Easiest for R, but rarely used
Mariani (Two-disease)
Hardest for P
Manifestation of disease for
recovery
Full recovery
Optimal deterrence
Optimal compensation
kkk.
lll. Medical Surveillance
Mauro
- Significance/Extent of Exposure
- Toxicity
- Seriousness of disease
- Relative increase in risk
- Value of early diagnosis
- Manifestation of physical injury??
- Minimum threshold of absolute (not just relative) risk??
mmm.
nnn. Emotional Distress: Use Mauro or Potter, THEN go to KAC
and Gammon analysis.
Mauro
Reasonable concern based on
enhanced risk
Exposure to toxin
Physical Injury?
Potter
Fear must be based on > 50% risk
Exposure to toxin
No physical injury required
Mauro v. Raymark Industries (311): Enhanced risk of cancer after exposure to asbestos.
Multiple Ds, Toxic Torts, etc.
ooo. Concert in Action – J&S L (all drag racers liable)
ppp. Single Indivisible Injury – J&S L (2 people cause 1 harm, e.g. 2
doctors in Ybarra v. Spangard)
qqq. Alternative Liability – J&S L (Summers v. Tice (325): both D’s
shoot negligently, but don’t know who caused injury, BUT if 1 D is
NOT negligent, then NO liability for either  no recovery. Shift
of burden of proof to D’s to prove each was NOT responsible for
the harm.)
rrr. Concurrent Causes – J&S L (both D’s start fire
simultaneously)
sss. Successive Causes – Only First party liable 100%, but reduced
damages if second cause is an act of God.
ttt. Market Share
Hymowitz v. Eli Lily (329): DES case. Several Liability only based on National Market Share.


K. Garrett
Torts (Suter)
Fungible Product
Parallel Activity
Fall 2000, Page 18 of 30



Injury occurs years later
P can inculpate (100% Liability if P knows exact D)
(traditional)
D CANNOT exculpate (Still pays market share even
if D did not make blue pill) (nontraditional)
uuu. Problem: Most harms have many but-for causes
(1) Which are actionable?
(1)
Leads to proximate cause analysis
Proximate Cause

Is harm to P sufficiently connected or related to D’s wrongdoing to impose
L (consider policies of tort law)
vvv. Question of law for Judge
www. Factors contributing to Proximate Cause (373)






xxx.
But-for causation
Natural and continuous sequence of cause and effect
Direct connection without too many intervening causes
FOS: Type, Extent, Manner, Plaintiff
Nearness in time and space
Policy considerations
Directness– Closeness in time and space
In Re Polemis (352): Plank fell and sparked a fire that resulted in burning ship. RULE: If FOS general
harm, then liable for UNFOS type or extent of harm only if negligent act was the DIRECT Cause of the
damages.
yyy. Foreseeability (of what?)
(1)
Type of Harm – Majority Rule: Must be FOS
Wagon Mound (353): Oil spilled from ship, then spark from P’s wharf ignited the oil on the water, which
burned the wharf. RULE: UNFOS type of harm was not the DIRECT cause.
(2)
Extent of Harm (Eggshell P) – doesn’t have to be FOS
Steinhauser v. Hertz Corp. (345): Car accident caused daughter’s schizophrenia. RULE: Take victim as
you find her – Eggshell Skull Plaintiff Rule. If general harm is FOS, then D is liable for the full extent of
the damages.
Property?
(3)
Manner – usually intervening causes
McLaughlin v. Mine Safety Appliances Co. (360): P suffered third degree burns from warming blocks
used by firefighter and nurse in rescue. RULE:
o
o
o
Gross Negligence = Superseding cause = NO liability;
FOS Mere Negligence = Liability;
UNFOS mere Negligence = unclear.
Restatement View (Kush by Marsalek) § 447 & § 449(Dissent):
o
o
FOS Mere Negligence = Liability
Likely Gross Negligence or Criminal act = Liability
Hines v. Garrett (n4 364): Woman raped in bad neighborhood when train dropped her off 1 mile past her
stop. RULE: Followed Restatement.
K. Garrett
Torts (Suter)
Fall 2000, Page 19 of 30
Plaintiff – Is there a duty to this P
(4)
Palsgraf v. Long Island RR Co. (366) (Dissent = Now Majority Rule): Scale fell on Palsgraf on train
platform when fireworks exploded. RULE: Duty owed to the world if MISfeasance. Duty is only a
question if NONfeasance. (Cardozo – sphere of duty)
Rescuer Doctrine (375-78): Original tortfeasor also liable for injuries sustained by rescuers if immediate
rescue. Moore v. Shah (376): donation of kidney NOT near in time and space – Not covered by rescuer
doctrine.
Personal Injury
Steinhauser
L for UNFOS Type
and Extent
UNFOS Type of Harm
Wagon Mound
Polemis
Liability IF Direct
NO Liability
Cause
Probability of Recovery
Low
Better
Depends
Majority
Unexpected
Type of harm
Extent of harm
Manner of harm
Victim
Independent, Intervening Cause
Wagon Mound
Polemis
Liability IF FOS
Unclear, probably
liable
Case
Polemis & Wagon Mound
Steinhauser
McLaughlin
Palsgraf (dissent = majority Rule)
Intervening Causes
RS
- If FOS, doesn’t cut off
Liability even if
intentional, reckless or
criminal
zzz.
McLaughlin
- Egregious intervening
cause cuts off liability
Pridham
- Creation of special risk
 intervening cause does
not cut off liability
FOS
Hines v. Morrow (n8 365): Peg leg case. P wants to simplify facts to make causation look more direct. D
wants to show long chain of events.
aaaa. Creation of Special Risk
Pridham v. Cash & Carry Building Center (n7 351): Negligent driver liable for damages when ambulance
driver has a heart attack. RULE: Driver created a special risk. FOS that injured victim of car accident
would travel to hospital in ambulance  driver liable for full extent of injuries. Must be close in time and
space. If long hospital stay, eventually too attenuated for driver to be liable.
bbbb. Level of egregiousness (gross N – criminal act)
Damages
Plaintiff MUST mitigate Damages.
cccc. Purpose of damages is to restore P to position before D’s
negligence.
Compensatory Damages
dddd. Goal is to pay for harm caused
eeee. Pecuniary Losses
(1)
Medical Expenses (past and future)
K. Garrett
Torts (Suter)
Fall 2000, Page 20 of 30




Surgery
Medication
Therapy (physical, psychological, etc.)
For how long?
(2)
Lost Income and Earnings (past and future) (factors to
determine)







Pre-injury earning capacity (current and anticipated)
Earnings at time of injury
Required capacities for pre-injury employment
Impairment of these required capacities
Earning capacity in alternative employment, if any
Expected duration of disability
Life expectancy/likely duration of career
(3)
Property Damage
ffff. Non-pecuniary Losses
(1)
Pain and Suffering

Need Awareness in ALL Jurisdictions
Seffert v. L.A. Transit Lines (614): P dragged by bus. RULE: Test to determine if P&S damages are too
high – Must shock the conscience and suggest passion, prejudice or corruption on the part of the jury.
(2)
Loss of Enjoyment of Life (Hedonic Damages)

Need Awareness in Majority of Jurisdictions
McDougald v. Garber (632): P permanently comatose. RULE: Must be aware to receive LEL damages,
otherwise the damages would not be compensatory, but rather punitive.
(3)
Emotional Distress (use KAC or Gammon)
Considerations in Assessing Compensatory Damages
gggg. Usually lump sum
hhhh. Tax Free – should jury know?
iiii. Discount to present value
jjjj. Further considerations for adjustments (depends on
Jurisdiction)
(1)
Interest on investment (not tax free)
(2)
Inflation
(3)
Relationship between inflation and interest (cancel out?)
Survival and Wrongful Death Actions
kkkk. Almost all determined by statute
llll. Survival Actions (on behalf of decedent)
(1)
Actions for personal injuries which survive death of the person
for damages decedent could have claimed before death if still alive



K. Garrett
Pain and Suffering (up to time of death – not available in some
jurisdictions)
Loss of earnings to date of death
Loss of Enjoyment of Life
o Most states treat this as a factor in P&S
o Minority prohibit recovery for LEL
o Very small minority treat LEL as separate from P&S (dissent
in McDougald)
Torts (Suter)
Fall 2000, Page 21 of 30
mmmm.
Wrongful Death Actions
(1)
Actions brought on behalf of survivors for losses suffered
because of death of decedent




Expected lifetime earnings of decedent
o Less living expenses or contributions
Loss of Consortium (many Jurisdictions)
o Housekeeping, buying necessities, gardening, etc.
o Advice, moral training education (some courts allow for
children, too)
o Emotional loss technically NOT included
Loss of Guidance or Advice
o Allowed in a few states where Loss of Consortium is NOT
allowed
Emotional Distress
o Few states allow
Punitive Damages
nnnn. In excess of compensatory damages - exemplary damages
oooo. To punish D for wrongdoing
pppp. Limited to Egregious wrongdoing
(1)
Serious misconduct with bad intent or bad state of mind.
Reprehensible behavior.


(2)
Malice, Ill Will, Intent to injure
Sometimes Wanton conduct with conscious indifference to risk
Higher level of wrongdoing than carelessness

Even Gross Negligence usually is not enough
(3)
Sample Statutory language: “Where D has been guilty of
oppression, fraud, or malice, express or implied”
(4)
Often limited to some kind of intentional or near-intentional
harm

Offensive Assault and Battery, False Imprisonment, Fraud, Defamation
qqqq. Taxable & Insurance almost never covers punitive damages
rrrr. Guideposts of Excessiveness/Reasonableness
(1)
Reprehensibility of conduct
(2)
Ration to compensatory damages
(3)
Sanctions for comparable misconduct
BMW v. Gore (handout): BMW sold Gore a repainted car as new. RULE: Guideposts for determining
reasonableness of punitive damages. Grossly excessive and arbitrary damages violate 14th Amendment
Due Process Clause.
Defenses
Contributory Negligence
ssss. Pure Comparative Approach
(1)
If P’s behavior was UNREASONABLE, then use Negligence
Analysis
(2)
D has burden to prove P’s contributory negligence in most
jurisdictions
K. Garrett
Torts (Suter)
Fall 2000, Page 22 of 30
tttt. Uniform Comparative Fault Act
(1)
Recovery is proportional to fault
Plaintiff Behavior
Reckless
Defendant Behavior
Reckless
Negligent
Criminal
Negligent
Negligent
Result
Compare Fault
Compare Fault
Some Compare & Some
Bar Recovery
Assumption of Risk
Valid Contract?
Express
Implied
(Voluntary &
Knowing)
Primary
Sports
UNReasonable AR
Reasonable AR
Secondary
Tunkl (Maj)
Dalury (Min)
The Flopper
Davenport
Emergency
NO Duty
NO Duty
Br. of Duty
Br. of Duty
NO Recovery
NO Recovery
Comparative N
Full Recovery
uuuu. Can only assume the risk of Negligence. Cannot waive for
recklessness or criminal conduct.
vvvv. Express Assumption of Risk = No Recovery
(1)
Tunkl Factors (Majority) – Invalid as Against Public Policy IF:






Suitable Public Regulation
Importance – service is a practical necessity
Open to the public
Bargaining Equality
Standard Adhesion Contract
Risks are under control of the seller
Tunkl v. Regents of Univ. of Cal. (407): Tunkl had to sign waiver for admission to hospital. RULE: not a
valid contract – against public policy.
(2)
Dalury v. S-K-I, Ltd. (Minority - Vermont)


Waiver contract at ski resort void as against public policy because
o Open to public
o Higher duty of care for invitees
o Resort has ability to make safe
Too Broad – opens door for invalidating all contracts with public
businesses
Barnes v. New Hampshire Karting Ass’n (n6 411): Waiver valid for kart races. Not an essential activity
and can “vote with feet.”
wwww.
Between Express and Implied
(1)
Waiver printed on ticket or posted on signs can be upheld IF
brought to P’s attention
xxxx. Implied Assumption of Risk
(1)
Must be Voluntary and Knowing
(2)
Primary = NO Recovery

Sports participants and spectators – Implied assumption of risk
Murphy v. Steeplechase Amusement Co. (413): Cardozo, Coney Island – The Flopper case. RULE: No
recovery for assumption of FOS risk. If obscure danger, then no assumption of risk because P had no
knowledge of risk.
(3)
Secondary

K. Garrett
UNReasonable = Comparative Negligence = Reduced Recovery
Torts (Suter)
Fall 2000, Page 23 of 30
Davenport v. Cotton Hope Plantation Horizontal Property Regime (handout): Dark stairway case. RULE:
UNReasonable Assumption of Risk because their was an alternative.

Reasonable = Full Recovery
yyyy. Firefighter’s Rule
(1)
Officers cannot sue IF”



(2)
Injured in scope of job
Reasonable anticipation – FOS
Alleged tortfeasor brought officer to the scene
Exceptions



Independent Tortfeasor Bars Rule – Especially if AFTER the act that
brought officer to the scene
Treated as Licensees – Duty to warn of hidden dangers
If officer is there for NON-emergency reason, officer can sue
Day v. Caslowitz (handout): Police office slipped on ice while investigating security alarm at D’s home.
RULE: Officer’s suit barred if injured while on the job.
Strict Liability
Abnormally Dangerous Activity
Restatement Second Factors (443)
zzzz. Existence of high degree of risk of some harm to the person,
land or chattels of others
aaaaa. Likelihood that the harm that results from it will be great
bbbbb.
Inability to eliminate the risk with the exercise of
reasonable care
ccccc. Extent to which the activity is not a matter of common usage
ddddd.
Inappropriateness of the activity to the place where it is
carried on
eeeee. Extent to which its value to the community is outweighed by its
dangerous attributes
Indiana Harbor Factors (Same as R2d)

Focused on ACTIVITY not chemical
fffff. Do NOT have to show ALL factors
ggggg. Great probability of harm
hhhhh.
Magnitude
iiiii. Not preventable with due care
jjjjj. Uncommon usage
kkkkk.
Location
lllll. Value to community
Indiana Harbor Belt RR v. Cyanamid (444): Posner, Chemical Leak in switchyard
Yukon Equipment v. Fireman’s Fund Ins. (n4 450): Storage of dynamite is abnormally dangerous.
MINORITY RULE: Disregards social utility and only considers risk.
K. Garrett
Torts (Suter)
Fall 2000, Page 24 of 30
Fletcher v. Ryland and Ryland v. Fletcher (431): Water reservoir broke and filled coal mine. COMMON
LAW RULE:



Not Naturally on land, AND
Mischievous if it escapes, OR
Non-Natural Use
Product Liability
Manufacturing Defect
mmmmm.
Product clearly deviates from what manufacturer
intended
(1)
Duty to ALL FOS users: (MacPherson)



(2)
Defective IF




(3)
Knowledge/probability P will use product
Probability of danger – latent or hidden danger
Remoteness of relation – buyer, passenger, bystander
Seller in business of selling product
Expected to and does reach consumer/user/(bystander if FOS)
Without substantial change
Causes harm
Who can be held Strictly Liable?





Ability to make product safer or influence manufacturer
Risk-spreading
How product enters chain of distribution
Who makes representations about product
Ease P’s burden
MacPherson v. Buick (473): (Cardozo, 1916) Rotten wooden wheel. RULE: Eliminated privity
requirement. Duty to ALL FOS users.
Escola v. Coca Cola Bottling Co. of Fresno (479): (Traynor, 1944) Waitress injured when bottle exploded
in her hand. RULE: Strict Liability for products that have latent defects.
(c) Elmore v. Am. Motors Corp. (n5(c) 485): FOS bystanders
can sue.
Design Defect
nnnnn.
(1)
(2)
Consumer Expectation Test – Soule
P wants CE Test for Hidden Risks/Latent Defects
Factors



Product used as intended OR
Reasonably FOS way AND
Dangerous to an extent beyond that which would be contemplated by
the ordinary consumer who purchases it, with the ordinary knowledge
common to the community as to its characteristics. (Comment i, §
402A)
Cronin v. J.B.E. Olson Corp. (493): Bakery tray hits truck driver propelling him through windshield.
RULE: Eliminated “unreasonably dangerous” requirement.
K. Garrett
Torts (Suter)
Fall 2000, Page 25 of 30
Barker v. Lull Engineering (494): Driver injured when high-lift loader overturned on slope. RULE: Can
sue when product is used as intended OR in a reasonably FOS way.
Soule v. General Motors (495): In accident, wheel collapsed into floorboard and crushed driver’s ankles.
RULE: “Crashworthiness” defect made injuries worse.
ooooo. Risk/Utility Test – Ortho Factors (R3d)
(1)
P wants R/U for Open and Obvious Risks
(2)
Especially for technical issues with experts
(3)
Ortho Factors (507)







Utility
Safety aspects/probability and magnitude of danger
Availability of substitutes
Manufacturer’s ability to prevent harm
User’s ability to prevent harm
User’s awareness of dangers
Feasibility of spreading the loss
Camacho v. Honda Motor Co. (504): P’s legs injuries worse because motorcycle didn’t have crash bars.
Contains R/U Test.
Dreisonstok v. Volkswagenwerk (n8 511): No good substitute for VW Bus. The feature that decreases
safety is the feature that makes it popular.
Dawson v. Chrysler (n12 514): Driver crushed when car wrapped around pole. Illustrates problem with
standards that differ in jurisdictions for nationally sold products. Manufacturer can’t predict best choice.
Warning Defect
ppppp.
(1)
(2)
(3)
(4)
(5)

Instructions to Make Safe – Adequacy of Warning
Can combine with Design Defect – e.g. child-proofing medicine
bottles, the warning alone would not be enough
Intensity
Comprehensibility
Specific Risks Identified
Precautions and Consequences of not following warning
Characteristics of addressee

Must reach the likely user
Hahn v. Sterling Drug (522): Four-year-old drank Campho-Phenique. RULE: Adequacy of warning is a
jury question.
Morgan v. Faberge (n3(a) 526): P tried to scent candle by pouring cologne over it. RULE: Cost of giving
warning so small, almost always will favor giving the warning.
Cotton v. Buckeye Gas Prods. Co. (n4 527): Propane tanks exploded. RULE: If all possible dangers were
listed, it would lessen the intensity of serious risks.
K. Garrett
Torts (Suter)
Fall 2000, Page 26 of 30
qqqqq.
(1)
Addressee
Learned Intermediary – addressee is Dr.

Exception: addressee is patient for mass immunization
Bulk Supplier – Courts divided
(2)


Addressee is supplier and supplier has duty to warn consumer, OR
Addressee is consumer
rrrrr. Inherent Risks and No Warning

(1)
(2)
(3)
If product CANNOT be made safe, then warning saves it from being a
defective product because the consumer can choose to accept benefit
and risk OR to not use product.
Known or Reasonably Scientifically knowable
True Choice Judgment – Magnitude
Significant Medical Evidence, NOT Speculative – Certainty
Carlin v. Superior Ct. of Sutter County (handout): FDA says manufacturer cannot warn when scientific
studies conflict. Must warn when significant medical evidence indicates serious safety hazards.
Definition of “knowable” unclear. Suter thinks it means known to someone in scientific community, but
not know to D. Could mean knowable with further research.
sssss. Causation = Heeding Presumption
(1)
D must show this P would NOT have heeded even an adequate
warning
Defenses – See I(F) Above
Modification or Misuse of Product
Majority
Minority (Jones)
FOS Modification or Misuse
FOS N Modification or Misuse
UNFOS Mod, Misuse, or Neg
Any Modification or Misuse
CAN Recover
Reduces Recovery
NO Recovery
NO Recovery
Jones v. Ryobi, Ltd. (516): Press operator case. RULE: Majority – Modification is a defense = NO
liability. Dissent – FOS modification is not a defense = Strict Liability
Comparative Fault
ttttt.
Reduces damages, NOT a complete bar to recovery
Daly v. General Motors (560): P thrown from car when door handle button punched as car hit railing. P
drunk, not wearing seat belt, and door was not locked. RULE: Extended comparative fault to products
liability cases.
K. Garrett
Torts (Suter)
Fall 2000, Page 27 of 30
Intentional
Assault
Elements
uuuuu.
Intent to cause harmful or offensive bodily contact to
victim or a third party OR
vvvvv. Intent to cause apprehension of imminent bodily harm AND
wwwww.
Reasonable apprehension or fear of imminent bodily
harm.
xxxxx. If D knows of P’s unreasonable fear/hypersensitivity, and acts
intending to cause fear = assault.
Battery
Elements
yyyyy. Intent to Cause Harmful Contact or Offensive Touching
(Purpose)
zzzzz. Intent to act in a way that is substantially certain to cause
physical contact (Knowledge)
(1) Subjective Test – What D ACTUALLY knew
aaaaaa.
Does NOT have to be direct contact with physical body.
(1) E.g. touch camera, throw ball, sic dog on…
bbbbbb.
Offensive to Whom
(1) Most courts – Touching or Contact without consent
(2) Objective Test – RS: Offends reasonable sense of personal
dignity
(3) Subjective Test (Many courts) – If D KNOWS P will find
contact offensive
Defenses
cccccc. Express Consent – self-defense
dddddd.
Implied Consent – social understanding (e.g. crowded
subway)
Garratt v. Daly (802): P broke her hip when 5 year-old pulled chair out. RULE: Must intend to cause
harm or act in a way that is substantially certain to cause harm.
Picard v. Barry Pontiac-Buick (811): Mechanic touched TV camera. RULE: Camera is part of her
“person.” Battery does not have to be direct contact with physical body.
K. Garrett
Torts (Suter)
Fall 2000, Page 28 of 30
Damages
eeeeee. Mere touching without consent – Non harmful: Nominal
Damages
ffffff. Harmful Contact: Compensatory (P&S) Damages
False Imprisonment
Unlawful Restraint/Confinement
gggggg.
Physical Barriers
hhhhhh.
Physical Force
iiiiii. Actual or Implied Threats of Physical Force
jjjjjj. Duress
kkkkkk.
Asserted Legal Authority
(1)
Fear of loss of job can be enough for duress, BUT staying to
protect reputation is NOT enough.
(2)
If P remains voluntarily – NOT false imprisonment
Lopez v. Winchell’s Donut House (814): P questioned in back room about alleged theft. RULE: Usually
a jury question, but P said she never feared for her physical safety, so no false imprisonment.
Mens Rea
llllll. Actual Intent
mmmmmm. Courts divided on legal intent (Suter says legal intent
should count)
Intentional Infliction of Emotional Distress
Elements
nnnnnn.
Intentional or Reckless Conduct
oooooo.
Outrageous conduct that offends generally accepted
standards of decency and morality
pppppp.
Causation
qqqqqq.
Severe emotional distress
(1)
Outrageousness is a norm that changes with time


No specific act – doesn’t have to be fraud or misrepresentation
Mere insults usually not outrageous
Public Figures
rrrrrr. Cannot sue for IIED unless they could also sue for defamation.
Womack v. Eldridge (821): P’s picture brought to child molestation trial. RULE: Established Elements
above. Found for plaintiff.
NY Times v. Sullivan (830): RULE: To sue for defamation, Public figures must prove that D knew
statement was false or recklessly uttered it without caring whether it was true or false.
K. Garrett
Torts (Suter)
Fall 2000, Page 29 of 30
Hustler Magazine, Inc. v. Falwell (830): Jerry Falwell sued for parody ad in Hustler. RULE: Public
figures cannot sue for Intentional Infliction of Emotional Distress unless they could also sue for
Defamation. First Amendment interests exceed individual interests.
Assault & Battery
Actual Intent/Knowledge
Legal Intent (substantial
certainty)
False Imprisonment
Actual Intent/Knowledge
Courts Divided on Legal Intent
IIED
Actual Intent/Knowledge
Legal Intent (minority)
Defamation
Definition
ssssss. Claim about a person that causes reputational harm.
(1) Slander – oral
(2) Libel – Written
(3) Must be published
K. Garrett
Torts (Suter)
Fall 2000, Page 30 of 30