Anisa Abdullahi
I.
Torts Spring 2004 Outline
Duty of Care
a. Failure to Act
i. In General
1. General Rule: No duty to act to rescue or aid others in need of help
a. Examples
i. No duty to turn over a baby lying face down in a puddle
ii. No duty of doctor to see a patient brought to the hospital; or to help in an
emergency when not on duty, at least not any more than regular person
1. But there would be a duty if a patient collapses in the doctor’s office
2. Procedural effect: D never has to face the jury on whether conduct was reasonable.
3. Policy arguments for not having a duty:
a. Primary—It would infringe on personal freedom to choose to act or not (Libertarian)
b. Secondary—It would diminish the moral worth of helping others voluntarily
c. It would be hard to know where to draw the line between individual liberty and social
interference (where does duty arise?)
4. Hegel v. Langsam: University did not have a duty to regulate the private life of P’s daughter who
was a student there.
ii. Exceptions: There can be a legal obligation to take affirmative steps to rescue a person who is helpless or in
danger, or if there is a particular relationship between P and D.
1. Relationship:
a. Common Carrier/Passenger
i. Held to have undertaken an obligation to serve the public
ii. Based on an implied warranty of safety
b. Innkeeper/Guest
i. Based on an implied warranty of safety and guest’s expectations
c. Master/Servant
d. Parent/Child
e. Invitor/Invitee
i. Held to imply that the premises will be safe
ii. Based on the trust between the two parties
iii. L.S. Ayres & Co. v. Hicks: Boy fell and got his fingers caught in D’s escalator;
D had duty as invitor to not aggravate the boy’s injuries by delaying the
stopping of the escalator
f. Injuror/Injured
i. If D negligently injures P, he is then under a duty to take reasonable affirmative
action to aid P.
ii. If D, without negligence, creates a dangerous condition on highway, he is then
under a duty to take reasonable precautions against injury to persons using it.
iii. “Hit and run driver” statutes require the driver to stop and give aid or failure to
do so is negligence per se
g. Custodial (confinement in prison or mental institution)
h. Employer/Employee
i. NOTE: The common thread between most of these relationships is that they were entered
into voluntarily and have some shared expectations; but are they reciprocal? No, one has
given up some control over his own safety while the other has not.
2. Control of instrumentality:
a. D is held to be responsible for his things (more so than that he is responsible for P)
b. Can even be a duty to a trespasser who is injured by an instrumentality under the
landowner’s exclusive control
c. Applies in cases even if there is no fault (D can be totally innocent, but his duty is based
on the control he has over the instrumentality)
d. Example:
i. If two people get into a wreck, they both have a duty to care for the other
regardless of fault because they both had exclusive control over the cars
3. Undertaking
a. Plus detrimental reliance:
i. Duty arises from the injured person relying on the rescuer’s undertaking to aid.
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ii. Proving detrimental reliance is not very hard since it is often implied and courts
do not have strict requirements for the rigor of proof.
1. HYPO: Eaton goes to rescue student from drowning and thus no one
else tries to help and student stops trying to swim back. Then Eaton
changes his mind because he doesn’t want to grade another test.
2. HYPO: Person dials 912 by accident causing a delay.
a. There would be a duty because he undertook to help.
b. But, is far as breach goes, the conduct would be:
i. Unreasonable if he just didn’t know the number.
ii. Reasonable if he was so caught up in the emergency
he made a mistake.
b. Plus increased harm
i. Duty arises through undertaking not to make injuries worse
ii. Counter-argument: Can provide an incentive not to act because from a liability
perspective, it is better to do nothing than to begin to help and risk causing more
injury or detrimental reliance of the victim or other potential rescuers
1. Thus, we have the Volunteer Protection Act (for Good Samaritans)
a. Policy: To eliminate the number of tort claims and reduce
damages by immunizing volunteers from personal liability for
torts they commit in the scope of their service.
2. Similar to rescue doctrine: Rescuers can sue the person who created the
danger, even if the rescue is unforeseeable
iii. Draft of Good Samaritan statute—see attached
c. Duty to help in emergency rooms—look this up
iii. Warnings of third parties
1. Duty to take affirmative action to control the conduct of a third party or to warn others of the third
party’s conduct can arise if:
a. D has a special relationship to P
i. Example: Common carrier/passenger
b. D has a special relationship to the third party
i. Examples:
1. Parent/child
2. Employer/employee
3. Automobile owner/driver
2. Factors to look at to see if there should be a legal duty toward P for actions of a third party:
a. Nature of the underlying risk or harm (foreseeability and severity)
i. For a risk posed to a particular P, there must be actual knowledge or
particularized foreseeability
1. Particularized foreseeability is where D has knowledge or special
reason to know that a particular P would suffer a particular type of
injury.
2. NOTE: If the duty is based on particularized foreseeability, it won’t be
hard to prove causation since it has already been established that the
harm was foreseeable.
ii. For a risk posed to anyone
1. Split of authority on whether there is a duty in these cases.
2. Some say that there is still a duty to act reasonably.
b. Opportunity and ability to exercise care to prevent harm
c. Interests and relationships between the parties
i. Did D have a responsibility for the conditions creating the risk
d. Societal interest in the proposed solution
i. For example, the societal interest in a healthy, confidential marriage may be
outweighed by the risk of sex abuse to children
3. J.S. and M.S. v. R.T.H.: Two girls were sexually abused by neighbor; court imposed a duty on
wife to inform third party of danger when there was particularized foreseeability
4. Doctors’ duty to warn
a. Can arise when a third party has a communicable disease or when D has predicted
violence by the third party
b. Policy:
i. Risk of unnecessary warnings is a reasonable price to pay for saving lives
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c.
b.
c.
ii. Safeguarding the public is more important than the patient/doctor relationship
iii. Tarasoff v. Regents of University of California: D was a therapist treating
Poddar who confessed to D that he intended to kill P; Poddar was released by
police after being detained and no further warnings were given so 2 months later
he killed P; court found therapist did have a duty to take reasonable care (based
on custom) to protect a foreseeable victim
Confinement immunity: Doctors are immune from liability for confining or failing to
confine patient—this creates an incentive to initiate confinement without fear of liability
iv. Impeding aid
1. Not a duty to act, only a duty not to impede another’s rendering of aid
2. Factors:
a. Foreseeable, imminent harm
b. Certainty of injury
c. Close connection between the conduct impeding aid and the injury
d. Showed disregard for human life
e. Duty would promote policy of preventing future harm
3. NOTE: All the factors point toward imposing a duty
4. Example:
a. Private necessity cases
b. Where a landowner has a duty to let someone use his private property to render aid
5. Soldano: Good Samaritan wanted to use D’s public phone to call police because P was being
threatened in bar across the street but D refused to place the call or allow GS to use the phone;
court imposed a duty not to get in the way of a GS
Pure Economic Loss
i. General rule: P cannot recover for economic loss unless he suffers physical damage to himself or to
something in which he has a proprietary interest suffers physical damage
1. If A and B have a contractual relationship and D is liable to A, D is not also liable to B just
because his relationship with A was harmed.
2. Policy:
a. To prevent flood of litigation
b. Proof of economic loss is speculative, this gives a bright-line rule to follow
c. Fear of over-deterrence if too many people are able to sue
d. First party insurance can handle the pure economic loss situations
e. Fairness, allowing liability to everyone would result in liability that was disproportionate
to culpability
ii. Exception: Professional negligence
1. Accountants and engineers can be liable if their negligence causes economic loss to foreseeable
third parties as long as the parties’ reliance is reasonable.
iii. State of Louisiana v. Testbank: Two ships collided and spilled PCP into the Mississippi River outlet so that
it had to be shut down, affecting many industries and businesses in the area; P sued for pure economic loss
but court said that there had to be some accompanying physical injury in order to recover
Mental Disturbance and Resulting Injury
i. General rule: P cannot recover for emotional distress unless he suffers physical harm as well.
1. Policy for general rule:
a. Money doesn’t really compensate for emotional distress in the same way it does for
economic loss (doesn’t put P back to where he was before the wrong)
b. The emotional distress physical consequences are too remote
c. Floodgates argument
d. Danger of fictitious claims
2. Policy for allowing recovery for emotional distress without an accompanying physical injury:
a. To protect emotional tranquility
b. To make P whole again
c. Corrective justice
d. Deterrence
e. Vindication/Fairness
ii. Impact Rule: P can only recover for emotional distress when D has physically impacted P through his
negligence.
1. The emotional distress damages are called “parasitic” because they can be added on to P’s claim
for physical injury, but cannot be maintained on their own.
2. Policy:
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a.
b.
c.
iii.
iv.
v.
vi.
Fear that absent impact, there will be a flood of litigation for claims of emotional distress
Concern for fraudulent claims
Perception that absent impact, there will be difficulty in proving causal connection
between D’s negligent conduct and the claimed damages of emotional distress
3. Exceptions: Sui generis cases
a. Recovery for emotional harm allowed when it results from negligent transmission by a
telegraph company of a message announcing death.
b. Recovery for emotional harm allowed in cases of negligent interference with dead bodies.
Definite Physical Injury Rule: Where a definite and objective physical injury is produced as a result of
emotional distress proximately caused by D’s negligent conduct, P may recover damages for such physical
consequences to himself notwithstanding the absence of any physical impact upon P at the time of the
mental shock.
1. Features of the rule:
a. P has to show definite and objective physical injury.
b. D’s standard is measured by reactions to be expected of normal persons.
c. No recovery for hypersensitive mental disturbance where normal person would not be
affected.
i. Unless D has specific knowledge of hypersensitivity (consistent with thin skull)
2. Daley v. LaCroix: D negligently crashed into a utility pole and caused an electrical explosion and
property damage to P who claimed traumatic neurosis as a result; court allowed P to go to the jury
as long as there was a definite physical injury due to emotional distress.
a. NOTE: Eaton pointed out that her “definite and objective” physical injury was proven by
loss of weight, inability to do household chores, nervousness, and irritability—not very
definite or objective.
Zone of Danger Rule: P is allowed to recover for emotional distress which causes physical injury even if he
did not suffer injury from impact as long as he was threatened with personal injury from impact.
1. Features of this rule:
a. P has to show he was placed at risk of physical injury even though he was not actually
touched.
b. Where P has narrowly escaped imminent and serious harm to his own physical well
being, the courts have readily allowed recovery upon a demonstration of ensuing mental
disturbance.
2. Policy: D owes P a duty because he was within the area of the risk created by the conduct and thus
injury is foreseeable.
3. Counter-argument: A bystander who from a distance witnesses an accident involving a loved one
is just as emotionally harmed as the one who is within the zone of danger, yet the far-away
bystander cannot recover under this rule.
Bystander Recovery/Dillon Rule: P can recover damages for emotional distress caused by observing the
negligently inflicted injury of a third person.
1. Recovery is allowed if, but only if, said P:
a. Is closely related to the injured victim,
b. Is present at the scene of the injury-producing event at the time it occur (proximity)
c. Is then aware that it is causing injury to the victim (contemporaneous sensory
perception), and
d. As a result suffers serious emotional distress—a reaction beyond that which would be
anticipated in a disinterested witness and which is not an abnormal response to the
circumstances
2. Thing v. La Chusa: Mother was nearby when her son was hit by a car and rushed to his side where
she saw him bloody and thought he was dead, but neither saw nor heard the accident; court said
she couldn’t recover under the bystander rule because she didn’t see the injury-producing event.
3. Policy:
a. Zone of danger is too arbitrary
b. Greater certainty in emotional distress if P was a witness
c. More likely that close blood relatives or marriage partners will suffer great emotional
distress
Direct Victim Rule: P can recover for emotional distress absent impact or physical injury when D’s tortious
conduct is directed towards him as a result of a special relationship with P.
1. Policy: Arises out of a duty to the particular P.
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Molien v. Kaiser Foundation Hospital: P’s wife was incorrectly diagnosed with syphilis and
doctor told her to advise P; court ruled that risk of harm to husband was reasonably foreseeable
and the tortious conduct was directed to P as well as wife—doctor created his own duty
3. Huggins v. Longs Drug Stores: Pharmacy negligently wrote wrong directions for dosage of child’s
medication and parents gave overdose; court did not allow parents to recover as direct victims
because D had no relationship with them that created a duty
vii. GA’s take on the Impact Rule
1. Elements:
a. Physical impact to P
b. Physical impact causes physical injury to P
c. Physical injury to P causes P’s mental suffering or emotional distress
2. Lee v. State Farm Mutual Insurance Company: Mom brought action to recover for emotional
distress from witnessing her child’s death due to accident they were both in where mom suffered
injuries as well; court held that mom could pursue claim despite emotional distress not being
caused by her physical injuries
a. Rule: As long as parent suffered impact herself, she can recover for emotional distress
without regard to whether the emotional trauma arises out of the physical injury.
b. Case seems to limit this rule to parent/child situations or at least to the facts of that case.
Toxic Exposure
i. Emotional distress
1. Rule: Even without a present physical injury, damages for fear of exposure can be recovered if
a. P is exposed to a toxic substance that threatens disease
b. It is more likely than not (51%) that P will develop disease due to the toxic exposure
(must be corroborated by reliable medical or scientific opinion)
i. Exception: IF D’s conduct in causing the exposure amounts to oppression, fraud,
or malice, then P doesn’t have to prove more likely than not
c. And P harbors a serious fear that the toxic ingestion or exposure was of such magnitude
and proportion as to likely result in the feared cancer
2. Policy:
a. To limit the class of potential P (or there will be a great impact on availability and
affordability of insurance)
b. If unrestricted, threat of drugs being found to cause cancer would deter manufacturers
from developing good drugs
c. Diluted capacity to give compensation to people who actually suffer injury or develop
cancer
d. To establish a sufficiently definite and predictable threshold for recovery to permit
consistent application from case to case
e. To preserve the integrity of the rule requiring some physical harm for recovery of
emotional distress
3. Potter v. Firestone Tire: P lived near landfill where improper disposal of toxic substances
contaminated their domestic water wells with carcinogens; court found D’s conduct was within the
exception of “oppression, fraud, or malice” so P did not have to show more likely than not
4. Actual Exposure
a. Rule (majority): P cannot recover unless he has actually been exposed to disease, and the
exposure must be by way of a channel of communication capable of transferring the
disease (no physical harm required)
b. Policy: To objectively quantify the reasonableness of P’s fear—knowing you were
actually exposed is more intense than just fearing exposure
c. Hartwig v. Oregon Trail Eye Clinic: P pricked by needles while taking out trash and
feared contracting HIV as result, eventually found she was not infected (95% certainty);
court allowed claim despite lack of actual exposure because medical community treats
actual and potential exposure the same
i. Exception: Actual exposure rule is inappropriate when the identity of the patient
upon whom the contaminated instrument was used is unknown and it is
impossible or impracticable to prove or disprove it was in fact HIV positive—so
if the treatment after actual exposure is the same as treatment for potential
exposure, P can recover.
ii. Medical Monitoring
2.
d.
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1.
II.
Rule: P allowed to recover for medical monitoring costs where it can be proven that such expenses
are necessary and reasonably certain to be incurred as a proximate result of D’s tortious conduct.
Elements are:
a. Significant exposure
i. P must be exposed to a hazardous substance
b. Proven hazardous substance
i. P must present scientific evidence demonstrating a probable link between
exposure to a particular compound and human disease
c. Tortious conduct
i. Underlying liability must be established based upon a recognized tort (i.e.
negligence, strict liability, trespass, intentional conduct, etc.)
d. Increased risk (not that disease is certain or even likely to occur)
i. P must demonstrate that he has a significantly increased risk of contracting a
particular disease relative to what would be the case in the absence of exposure
(no particular level is necessary)
e. Necessity of diagnostic testing
i. Testing must be reasonably necessary in that it is something a qualified
physician would prescribe based upon the demonstrated exposure to a particular
toxic agent
ii. Does not necessarily preclude a situation where such determination is based at
least in part upon the subjective desires of P for information concerning state of
his health
iii. Factors such as financial cost and frequency of testing should not be given
weight
f. Existence of Monitoring Procedures—medical monitoring must be available to recover,
but if testing later becomes available then P has the right at that time to demonstrate the
effectiveness of the test and be compensated for utilizing it
2. Split of authority on this rule:
a. Those that allow it, emphasize it’s a real harm so corrective justice supports giving
damages, deterrence, the social benefits of early detection, and damages are not
speculative because they are determined by the costs of tests.
b. Those that don’t allow it, say it is too speculative and tort law doesn’t normally allow
damages for future harm without preponderance of the evidence.
3. Bower v. Westinghouse Corp: P were exposed to toxic substances in a refuse pile containing
debris from manufacturer of light bulbs and P sued for anticipated medical monitoring to test for
diseases they might develop (no current symptoms); court recognized a cause of action for future
medical monitoring
Owners and Occupiers of Land
a. Outside the Premises
i. Timeline:
1. Landowner has no duty to use reasonable care.
2. Distinction between natural and artificial conditions.
3. Duty with regard to trees.
a. Only in rural
b. In rural and urban
c. Location becomes relevant to the issue of breach, not duty
4. Some distinction remains between natural and artificial conditions.
ii. Traditional/majority rule: No duty to protect persons outside the premises for natural conditions, but duty
for artificial conditions.
1. Natural conditions
a. Policy: Owner had no part in creating natural occurrences and since there is no duty
based on possession alone, there is no special relationship between owner and outside
person (remember there is no general duty to render aid)
b. Tree Exception: Landowner is liable for negligence if he knows that a tree is defective
and fails to take reasonable precautions
c. Taylor v. Olsen: P was driving and hit a tree that had fallen from D’s property onto the
road; court ruled that absent evidence that D should have known of possible decay in tree
or that there was common method which would have put D on notice, P could not recover
d. “Self-help” rule: Landowner can resort to cutting off tree branches and roots intruding
onto his property from adjoining property.
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2.
b.
Artificial conditions
a. Policy: The public has a right to the free and unmolested use of the public highways so
that abutting landowners may not use their land as to interfere with the rights of persons
lawfully using the highways.
b. Salevan v. Wilmington Park: P was hit by baseball while walking on street next to D’s
park where balls were known to go outside the fence; court ruled that D had to take
reasonable precautions to protect the traveling public.
iii. New rule: A landowner has a duty to use reasonable care for all conditions on his premises that could cause
harm to people outside the premises, whether natural or artificial.
1. Policy: Duty rises out of possession alone including the right to control and manage the premises;
it is unjust to allow owner to escape liability by just letting nature take its course.
2. To determine if there is a duty, look to reasonableness of conduct required to fix the condition to
prevent harm to someone outside the property.
3. Sprecher v. Adamson: P’s house was damaged by landslide which came from D’s lot; court ruled
that P had a cause of action because there was at least an issue of fact as to whether D used
reasonable measures to control the landslide
One the Premises
i. General rule for trespassers: A landowner has no duty to a trespasser for negligence
1. Policy
a. Landowner cannot reasonably anticipate a trespasser
b. Trespassers assume the risk
c. Trespassers are contributorily negligent or at least a wrongdoer who is not entitled to
legal protection
2. Landowner’s immunity toward trespassers extends to members of his household, but not to
adjoining landowners.
3. Exceptions:
a. When trespasser has been discovered
i. Majority: Landowner has duty to use ordinary care to avoid injuring the
trespasser by active operations when he is discovered.
1. Example: Setting up a spring gun trap.
ii. Others: Don’t have to use reasonable care, but cannot injure through reckless,
willful, or wanton conduct
iii. Sheehan v. St. Paul & Duluth Ry.: P was walking on D’s RR track (not on a
public crossing) and got foot stuck in track; D ran over foot because train crew
did not see him until it was too late; court ruled that once they had notice of him,
they had a duty to use reasonable care.
b. Trapped trespasser in peril
i. A landowner owes a duty to a trapped trespasser in peril.
c. Frequent trespassers
i. Landowner is required to anticipate the trespassers and to exercise reasonable
care in his activities for their protection.
d. Tolerated intruders
i. Landowner’s continued toleration of the trespassing amounts to permission to
use the land so that he becomes a licensee.
ii. Mere failure to take steps to prevent trespassing, which would be burdensome,
expensive, or futile, is not in itself an indication that the landowner consents to
the entry.
e. Obvious conditions
i. A landowner must warn trespasser of dangerous conditions which are obvious to
the owner.
f. Foreseeability
i. Some courts have developed a special rule (in RR cases) that D be on the
lookout for trespassers where their presence is foreseeable and the activity
carried on involves a high degree of danger to them.
4. Persons other than landowner
a. Split of authority:
i. Some jurisdictions hold gratuitous licensees, invitees, and holders of easements
liable to trespassers.
ii. Some do not.
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iii. R §383-386: Persons on the premises who are doing work or creating artificial
conditions on behalf of the possessor are subject to the same liability, and
entitled to the same immunity, as the same possessor; but that other persons on
the land with his permission have no such immunity.
ii. Licensees
1. A licensee is someone who enters another’s land with the owner’s permission, but for the
licensee’s purpose.
a. Includes social guests, even if they are rendering an incidental service to the host
b. Example: Economic motive in inviting landowner’s employer over for dinner does not
make him an invitee.
2. General rule: Licensee must take the premises as he finds them, but the owner has a duty to warn
the licensee of any hidden dangers which are unknown to the licensee but known to the owner.
a. Means there is no duty to make the premises safe.
b. But, under R §342: Landholder is liable if he had “reason to know” about the unsafe
condition.
c. And the owner has a duty to refrain from injuring the licensee willfully or wantonly.
i. Often willful or wanton conduct includes a failure to exercise ordinary care after
the presence of the licensee has been discovered, or should reasonably have
been discovered.
3. Some jurisdictions divide this area into two categories:
a. Ordinary licensee
b. Bare licensee—salespersons, canvassers, and social visitors who drop in without an
express invitation.
i. Duty owed to them is less than that owed to ordinary licensees.
4. Strict liability of landowner to licensee occurs in cases involving dangerous animals.
a. See strict liability section.
5. Barmore v. Elmore: P went to D’s house to discuss lodge business, but D’s son went crazy and
stabbed P; court ruled that P was a licensee as a social guest and that since there was not enough
time for D to warn P of the danger of his son, he was not liable.
iii. Invitees
1. An invitee is a person who goes on another’s land in furtherance of the owner’s business.
a. Members of the public have a general invitation in stores and shops regardless of whether
they actually buy something.
b. Includes “tag-alongs”
i. For example: An infant who accompanies an adult that is an invitee, is also an
invitee.
2. General rule: Landowner has a duty to use reasonable care to keep the premises safe.
a. Constructive knowledge of a dangerous condition is sufficient.
3. R §332: Uses the term “business visitor” and bases the rule on the idea that the duty arises from
the price the owner must pay in order to get the economic benefit to be derived from the invitee’s
presence.
4. Examples of invitees:
a. People attending free public meetings
b. Spectators at public amusements, entering on a free pass
c. Free use of a telephone provided for the public
d. Entering a bank to get change for a $20
e. Coming to get things advertised to be given away
f. Use of state or municipal land open to the public
g. Visitors in national parks
5. Campbell v. Weathers: P went to D’s store as usual but didn’t buy anything and was injured when
he fell down an open trap door in the restroom; court ruled that he was an invitee despite not
having bought anything.
6. Whelan v. Van Natta: P was a customer who asked D for some boxes which he was told were in
the backroom where he could get them, and he fell down some stairs; court ruled that P became a
licensee when he went to the backroom as it was for his benefit and sustained judgment for D.
7. Scope of status as invitee:
a. Time
i. An invitee ceases to be such after the expiration of a reasonable time within
which to accomplish the purpose for which he is invited to enter or to remain.
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ii. Expiration of time depends on whether the possessor does or does not consent to
his remaining on the land.
b. Area
i. A visitor has the status of invitee only while he is on the part of the land to
which his invitation extends—that part of the land upon which the possessor
gives him reason to believe that his presence is desired for the purpose for which
he has come.
ii. If the invitee goes outside the area of his invitation, he becomes a licensee or a
trespasser, depending on whether he goes there without the consent of the
possessor or with such consent.
8. Dangers known to the invitee:
a. General rule: No obligation to protect the invitee from dangers known to the invitee who
is expected to protect himself.
i. Thus reasonable care only requires a warning of the danger.
ii. Exception: Where the possessor should anticipate an unreasonable risk of harm
to the invitee notwithstanding his knowledge or a warning.
1. Thus, something more in the way of precaution may be required—
reasonable and feasible steps to obviate the danger.
2. Common example: Where a customer’s attention is distracted by goods
on display as the owner should reasonably expect.
iii. A number of jurisdictions hold the invitor owes no duty to an invitee who is
injured by an obvious hazard that is also a natural one such as snow, ice, or
rainwater.
b. Wilk v. Georges: P was invitee who slipped on floor that had a warning sign and where D
had put down asphalt to make it less slippery; court ruled that the jury should have been
instructed that if they found the condition was unreasonably dangerous, D was obligated
to do more than warn.
9. Third-party wrongdoers
a. General rule: A landowner may be liable for injuries caused by the intentional acts of
third parties.
b. Criminals:
i. Rule:
1. Some jurisdictions hold the owner has no duty because he does not
have sufficient control and any duty would be difficult to implement.
2. Some jurisdictions require reasonable care to deter criminal activity.
ii. Past experience of a crime may call for measures to protect entrants vulnerable
to harm.
1. Consider the likelihood of the risk with the financial and practical
feasibility to prevent.
iii. But in cases of actions taken in the face of a crime, courts are reluctant to
second-guess the invitor’s choices.
c. Wrongful conduct short of a crime:
i. Rule:
1. A duty may extend to taking reasonable precautions to maintain order
to forestall reasonably foreseeable violence.
2. A duty may also extend to adjacent property and particularly entrances
to the business premises if the business is aware of a dangerous
condition and fails to warn invitees or take reasonable precautions.
iv. Rejection /Merging of the Categories
1. New Rule: When an owner is aware of a concealed condition involving and unreasonable risk of
harm, and he is aware that any person on the premises is about to come in contact with it, failure to
warn or repair is negligence.
2. Policy:
a. Distinction between licensee and invitee is rooted in feudalism which doesn’t apply to
modern society.
b. A person’s health does not become less worth of protection because he is a trespasser or
there for his own business.
i. A reasonable person would not alter his conduct depending on these
classifications.
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c.
c.
The burden on the owner to be reasonable is often the same whether the person is a
licensee or an invitee.
d. Foreseeability of harm is no greater for one or the other because it can vary from case to
case.
e. There is no persuasive evidence that applying ordinary principles of negligence law to the
owner will materially reduce the prevalence of insurance due to increased cost or even
substantially increase the cost.
f. Can always use comparative fault in cases of trespassing.
3. Split of jurisdictions:
a. Some abolish all three categories.
b. Most jurisdictions agree that the rule should be the same for licensees and invitees.
c. There is less accord as to how a trespasser should be handled.
i. Some do not require reasonable care for criminal trespassers.
ii. Some require reasonable care for “less culpable” trespassers.
4. Rowland v. Christian: P was a licensee who used bathroom with broken faucet which D knew
about and had complained to manager about, but did not warn P about; court ruled that it didn’t
matter whether P was licensee or invitee because owner owed the same duty of reasonable care—
at least a warning but possibly repair.
Lessor and Lessee
i. General rule: There is no liability upon the landlord, either to the tenant or to others entering the land, for
defective conditions existing at the time of the lease.
ii. Borders v. Roseberry: P was a social guest of a tenant who slipped and fell on ice that had frozen due to a
drip from the roof where the landlord had failed to repair a known condition; court ruled P could go to the
jury with the new rule that D had a duty to at least warn or repair the condition.
1. This case discusses the traditional rule and the exceptions listed below.
iii. Exceptions:
1. Liability for injuries arising from a defective condition existing at the time of the lease is limited
to the following six exceptions:
a. Undisclosed dangerous conditions known to the lessor and unknown to the lessee—R
§358: Undisclosed Dangerous Conditions Known to the Lessor
i. A lessor of land who conceals or fails to disclose to his lessee any condition,
whether natural or artificial, which involves unreasonable risk of physical harm
to persons on the land, is subject to liability to the lessee and others upon the
land with the consent of the lessee or his sublessee for physical harm caused by
the condition after the lessee has taken possession, if
1. The lessee does not know or have reason to know of the condition or
the risk involved, and
2. The lessor knows or has reason to know of the condition, and realizes
or should realize the risk involved, and has reason to expect that the
lessee will not discover the condition or realize the risk.
ii. If the lessee actively conceals the condition, the liability stated in subsection (i)
continues until the lessee discovers it and has reasonable opportunity to take
effective precautions against it. Otherwise the liability continues only until the
vendee has had reasonable opportunity to discover the condition and to take
such precautions.
iii. All courts agree that the lessor must disclose concealed dangerous conditions, of
which he has knowledge, existing at the time of transfer of possession.
1. Sufficient that lessor has information that would lead a reasonable
person to conclude the danger may exist.
b. Conditions dangerous to persons outside of the premises—R §379: Dangerous Conditions
Existing When Lessor Transfers Possession
i. A lessor of land who transfers its possession in a condition which he realizes or
should realize will involve unreasonable risk of physical harm to others outside
of the land, is subject to the same liability for physical harm subsequently
caused to them by the condition as though he had remained in possession.
ii. When premises are leased in an existing condition that is dangerous to persons
on the highway or that is a private nuisance, the lessor is under a duty that he
cannot delegate to the tenant.
c. Premises leased for admission of the public (common facilities)—R §359
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iv.
v.
vi.
vii.
III.
i. Lessor is under an affirmative duty to exercise reasonable care to inspect and
repair the premises before possession is transferred, to prevent any unreasonable
risk or harm to the public who may enter.
ii. The landlord must use reasonable care to maintain common facilities and areas
within his control.
iii. Examples: stairways, front steps, passageways, water pipes, air conditioning
units, etc.
d. Parts of the land retained in lessor’s control which lessee is entitled to use—R §§360-361
i. Lessor is under an affirmative obligation to exercise reasonable care to inspect
and repair those parts of the premises for the protection of the lessee, members
of his family, his employees, invitees, guests, and others on the land in the right
of the tenant.
e. Where the lessor contracts to repair—R §357
i. Old rule was that if a landlord breached his K to keep the premises in good
repair, the only remedy was an action in K for damages for cost of repair and
loss of rental value.
ii. Modern rule is that there is a cause of action in tort for recovering for personal
injuries as a result of such breach.
f. Negligence by lessor in making repairs (§362)
i. When the lessor does attempt to make repairs, whether he is bound by a
covenant to do so or not, he is liable for failing to use reasonable care when
injuries to the tenant or others on the premises in his right are injured as a result,
if the tenant neither knows nor should have reason to know that the repairs have
been negligently made.
New rule: Landlord has a duty to use reasonable care toward his tenant and others on the premises with his
permission.
1. Reasonable care depends on customary practices and BPL.
2. Pagelsdorf v. Safeco Ins. Co. of America: P was a social guest of tenant who was injured when
railing collapsed; court ruled that D owed a duty to use ordinary care in the maintenance of the
premises.
Exculpatory clauses in leases where lessors have attempted to immunize themselves against liability for
negligence in maintaining common areas have been held to be void as against public policy.
Damages: Some courts have even allowed damages for a tenant’s emotional distress caused by landlord’s
negligence in maintaining premises.
Acts of third parties
1. Traditional rule: A private person does not have a duty to protect another from a criminal attack by
a third person.
a. Judicial reluctance to tamper with the traditional common law
b. Act of a third person is superseding case
c. Difficult to determine foreseeability of third person
d. Vagueness of the standard which landlord must meet
e. Economic consequences of the imposition of a duty
f. Public policy allocating the duty of protecting citizens from criminal acts to the
government rather than the private sector
g. Tenants assume the risk of living in dangerous areas
2. New rule: Landlord has a duty to protect against foreseeable criminal acts of third parties in the
common areas of the property which are not usually subject to periodic patrol and inspection by
the municipal—must take reasonable steps to prevent injury
a. Landlord is often the only person in control of the area
b. Tenant may expect at least some protection
c. Landlord can pass on the cost of increased protective measures to his tenants
3. Kline v. 1500 Mass Ave. Apt.: Tenant was assaulted in common passageway after landlord had
notice of increasing number of assaults, but left entrances unguarded even after they had been
guarded before; court ruled that landlord had a duty to take reasonable measures to protect P.
Defenses
a. Plaintiff’s Conduct
i. Contributory Negligence
1. Traditional rule: If P is negligent too, then his claim against D for negligence is completely barred.
2. Burden of pleading and proving is on D to show that P was contributorily negligent
a. D must prove all elements of negligence—duty, breach, causation, and harm
11
3.
Policy
a.
b.
c.
d.
Punitive—P is denied recovery as a punishment for his misconduct
Clean Hands—Court doesn’t want to transfer wealth between two negligent actors
Deterrence—Negligence is designed to encourage reasonable conduct by both parties
Proximate causation—P’s negligence can be seen as a superseding cause which means
D’s negligence is not the proximate cause of P’s injuries
4. Butterfield v. Forrester: D placed a pole over the road for construction and P hit while riding very
fast on his horse; court ruled that P’s negligence in riding so fast barred his claim against D.
5. Applicability of this defense in particular circumstances:
a. Courts have subtly confined the defense by narrowly limiting the scope of proximate
cause as applied to risks that P exposed himself to by his act of negligence.
i. Court will say that P was negligent with respect to a foreseeable general risk, but
not the specific danger which occurred and thus there is no proximate cause, he
is not contributorily negligent, and may recover from D.
b. Contributory negligence is not a defense to an intentional tort nor when D engages in
wanton and willful or reckless conduct.
c. Statutes:
i. Contributory negligence is a defense although D was negligent per se because of
a violation of a statute.
ii. But certain statutes, however, are deemed to abrogate the defense.
iii. Some statutes explicitly abolish the defense in a limited situation.
iv. Contributory negligence is not a defense when D has violated a statute which
was enacted to protect a class of persons from their inability to exercise selfprotective care.
6. Last Clear Chance
a. Rule: D may be liable for all the harm he caused, even though P caused himself to be
placed in a dangerous situation or was contributorily negligent, if D had the last chance to
avoid the accident by using proper care.
b. Application of the doctrine may depend on whether P was helpless or merely inattentive.
i. If P is helpless, last clear chance will apply and his claim will not be barred by
contributory negligence.
ii. If P is inattentive and could have discovered the danger through reasonable care,
then the claim may be barred.
c. Davies v. Mann: P left his ass tied up on the road and D drove a wagon too fast over the
road and ran against the ass killing it; court ruled that although P was negligent in leaving
the ass there, D could have avoided injury and was bound to act reasonably.
d. P is barred if D at least attempted to avoid the danger but is prevented because of his
prior negligent acts.
i. Only left with two negligent actors at this point, possibly both helpless.
e. NOTE: Since most states use comparative fault, this will only become a factor in
allocating fault.
ii. Comparative Negligence
1. General rule: If P is partly negligent, his claim against the negligent D is reduced according to the
percentage of P’s own negligent conduct.
a. Pure comparative negligence: P’s damages are reduced no matter how much P’s
percentage of fault is.
i. Example: P is 90% at fault, D is 10% at fault—P can recover 10% damages
from D.
b. Modified
i. Not greater than:
1. 50% or less modified comparative negligence: P can recover so long as
his fault was no greater than D’s fault.
2. Example: P is 50% at fault, D is 50% at fault—P can recover 50%
damages from D.
3. If P is 51% or more at fault, he cannot recover.
ii. Not as great as:
1. 49% or less modified comparative negligence: P can recover so long as
his fault was less than D’s fault.
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2.
Example: P is 49% at fault, D is 51% at fault—P can recover 51%
damages from D.
3. If P is 50% at fault, he cannot recover.
2. McIntyre v. Balentine: P who had been drinking was in wreck with D who was speeding; court
ruled that contributory negligence should not be a complete bar to recovery and adopted
comparative fault.
3. NOTE: Make sure to include effect on joint and several liability and assumption of risk.
4. Mechanics of apportionment:
a. Regardless of the procedure, it is generally a question for the jury.
i. Factors to consider
1. Difference in knowledge of the existence and magnitude of the risk
between the parties
2. Deviation from reasonable care of each party
3. Violation of a statute of each party
ii. Most jurisdictions instruct the jury as to the consequences of assigning a P 50%
or 49$% fault.
b. When both parties have suffered damages, D can file a counterclaim against P and thus
both parties will end up owing each other.
c. Some states use a special verdict or special interrogatory procedure by which the jurors
inform the court as to what percentage of fault was attributable to each party and how
much damage each claimant suffered.
5. Effect on other doctrines—see handout and notes
a. Joint and several liability
b. Assumption of risk
c. Settlement
6. Last clear chance combined with comparative fault: Split of jurisdictions
a. Some (including GA) keep last clear chance and say that P recovers 100% because P’s
negligence is not the proximate cause when D has the last clear chance.
b. Others ignore last clear chance and just follow comparative fault rules.
iii. Assumption of Risk
1. Elements of assumption of risk (express or implied)
a. Actual knowledge of the particular risk
b. Appreciation of its magnitude
c. Voluntary encountering of the risk
2. Express
a. Express assumption of risk can be in either written or oral words.
b. General rule: Parties are free to K and there is ordinarily no public policy preventing
them from doing so.
i. Thus, if P chooses to assume the risk through words or conduct, he cannot then
recover from D when he is injured.
ii. Usually an exculpatory agreement.
c. Exception: When one party is at such an obvious disadvantage in bargaining power that
the effect of the K is to put him at the mercy of the other’s negligence, the agreement is
void as against public policy.
i. Two basic issues for analysis:
1. Whether the risk that injured P fell within the terms of the agreement.
2. Whether the K itself violates a public policy and therefore should not
be enforced.
ii. Examples of K that are against public policy:
1. Transactions involving the public interest such as with regard to public
utilities, common carriers, innkeepers and public warehousemen,
bailees, etc.
a. Factors to determine if it is a public interest/service:
i. A business of a type generally thought suitable for
public regulation
ii. Service of great importance to the public
iii. Matter of practical necessity for some members of
the public
iv. Party holds himself out as willing to perform this
service for any member of the public
13
d.
e.
3.
v. Decisive advantage of bargaining strength against a
member of the public who seeks the service
2. Valid exculpatory agreements are not construed to cover more extreme
forms of negligence such as willful, wanton, reckless, or gross
negligence.
3. K where P did not know of the provision and a reasonable person
would not have known of it.
4. Where a safety statute enacted for the protection of the public is
violated, it is generally not within the power of P to waive.
5. Parents can waive their own rights but not their minor children’s.
Winterstein v. Wilcom: P and wife went to racetrack and signed a release form against
D’s negligence, saying he assumed the risk and knew of dangers; court ruled it was not
against public policy because a racetrack is not a public interest or service and is not
suitable for public regulation.
Comparative negligence statutes may affect implied assumption of risk, but not express
assumption of risk. Express assumption of risk is a separate defense.
Implied
a. Implied assumption of the risk comes from conduct.
b. Compared to contributory negligence
i. Assumption of risk
1. Essence is venturousness
2. Involves the meeting of a subjectively known risk
3. If D was reckless, this defense remains
4. If D was strictly liable, this defense may bar recovery
ii. Contributory negligence
1. Essence is carelessness
2. Involves the meeting of a risk which P was subjectively unaware but
would have been apparent if he had used due care
3. If D was reckless, this defense is not a bar to recovery
4. If D is strictly liable, this defense may not bar recovery
c. It is essential that D show that P knew of the risk
i. Majority rule: Subjective—must be actual knowledge
ii. Minority rule: Objective—if a reasonable person in the same position as P
would comprehend the danger, P is held to have known the risk
iii. Admission from P or someone who heard it
iv. Circumstantial evidence may be adequate
d. Scope of the defense: Courts are unfavorably disposed to assumption of risk and so place
a narrow or specific gloss on “risk”
e. P’s protests:
i. If P protests against D’s conduct but then later accepts the situation, it may be
considered a waiver of the protest and thus an assumption of the risk
ii. This is usually a question for the jury and will often turn on some reasonable
alternative to P’s choice in assuming the risk
f. Rush v. Commercial Realty: P fell down open trap door in outhouse of unit she was
renting from D; court ruled that she had no other choice but to use that outhouse and was
not required to find another, therefore she did not assume the risk. (not voluntary)
g. Assumption of risk and comparative fault
i. Courts don’t like assumption of risk; it is easily confused with comparative fault
and both achieve the same purpose; thus some courts have abolished implied
assumption of risk (not express)
ii. Two types of implied assumption of risk
1. Primary: D was not negligent because he owed no duty or because he
did not breach a duty owed
2. Secondary: An affirmative defense to an established breach of duty
owed by D
a. Under this, P’s conduct can be unreasonable or reasonable and
still bar recovery
b. It seems unfair to bar recovery when P acted reasonably.
c. Conduct which is unreasonable can just as easily be dispensed
with under contributory negligence or comparative fault.
14
iii. Blackburn v. Dorta: Merged the doctrine of assumption of risk into comparative
negligence.
h. Failure to wear seatbelt cases: When P fails to take a precaution which does not cause the
accident, but makes his injuries worse.
i. Third R §3:
1. Such conduct should be taken into account when assigning percentage
of fault unless a statute precludes it.
ii. Some jurisdictions have statutes which do not permit P’s damages to be reduced
by failure to wear seatbelt; others do permit a reduction.
1. Argument that it should not be taken into account is that it is not fair for
the government to infringe on individual liberties in order to protect
against another’s potential conduct.
2. Can have a bearing on either percentage of fault of P, or mitigation of
damages to D.
iv. Statues of Limitations and Repose
1. Statute of limitation: Limits the time in which an action can be brought after it accrues—
procedural in nature.
a. Traditional rule (time-of-injury): A right of action accrues immediately upon the
infliction or occurrence of injury.
i. Mere ignorance or failure of P to discover the cause of action or the subsequent
resulting damage does not toll the statute.
ii. This is the rule most of the time since it is usually easy to determine when
damage has occurred.
b. Modern rule (time-of-discovery): A right of action does not accrue until the injury is or
reasonably should have been discovered.
i. Majority apply this modern rule to all medical malpractice cases.
ii. Some states apply the rule to any action based on a latent injury.
iii. Some states limit the application of the rule to “foreign objects” cases.
iv. Note: Cannot wait for more serious injury to develop from the same cause; it
begins to run when some form of actionable harm is discovered.
1. Exception: Majority of jurisdictions have permitted a second action for
cancer in asbestos cases where the first disease was a non-malignant
disease like asbestosis.
c. Policy behind having statutes of limitation:
i. Potential D are entitled to relax and know they won’t be sued after a certain time
period.
ii. To help with better planning for insurance so that the time between collecting
premiums and actual payouts is not so big that the insurance company will
suffer losses do to less accurate estimates.
d. Teeters v. Currey: P had to get tubes tied but D performed operation negligently and so P
became pregnant and brought action 3.5 years after operation but 11 months after
discovering pregnancy; court ruled that her action arose at the time of discovery and so
was not barred by the 1-year statute of limitation.
e. Tolling: Stops the running of the statute of limitations
i. Minors until they reach their majority
ii. Legally insane or incompetent
iii. When D fraudulently concealed the injury from P or concealed his identity from
P (no tolling if it is a third party who conceals)
f. Continuing tort: In some medical malpractice cases, courts have found the statute of
limitations did not begin to run until the course of treatment was complete.
2. Statute of repose: Limits the time during which a cause of action can arise—substantive in nature.
a. Policy: A time should arrive when a person is no longer responsible for a past act.
b. Independent of when you get hurt; just based on time of manufacture or purchase.
c. Primarily enacted in areas of products liability and liability for architects and engineers;
few states have made special exceptions for particular products such as asbestos or DES
v. Immunities
1. In General
a. Privilege vs. Immunity
15
i. Privilege: Avoid liability for tortious conduct only under particular
circumstances, and because those circumstances make it just and reasonable that
the liability should not be imposed.
ii. Immunity: Avoid liability in tort under all circumstances, within limits of the
immunity itself, because of the status or position or relation of the favored D.
Immunities do not deny the tort, just the resulting liability.
2.
b.
Families
a. Spousal immunity
i. Traditional rule: One cannot sue his or her spouse for a tort.
1. Policy:
a. Unity of marriage meant that the woman was rendered a
chattel of her husband and so the legal existence of the wife
was suspended for the duration of the marriage.
b. Peace and tranquility would be destroyed by allowing such a
suit.
c. Other adequate remedies can be found through criminal and
divorce laws.
d. Floodgates would open the courts to burdensome, trivial
marital disputes.
e. Collusion and fraud would be promoted where one or both of
the spouses carried liability insurance.
f. Legislature is the best place to deal with the rule.
ii. Modern rule: Complete abrogation of the inter-spousal immunity so that one can
sue his or her spouse for a tort.
1. Policy:
a. Unity of marriage is antiquated way of seeing wife as having
no legal existence
b. No peace and tranquility if they are wanting to sue
c. No evidence of floodgates
2. Those courts who still recognize the immunity limit it and allow suits
for torts committed during marriage in situations where:
a. Divorce has occurred
b. One spouse is dead
c. Tort occurred prior to marriage
d. Tort is intentional
e. It involves an automobile accident
iii. Freehe v. Freehe: Husband was injured while using wife’s farm equipment
which had been negligently maintained and she had failed to warn him; court
ruled that the spousal immunity policies no longer worked in modern society
and so abandoned it, allowing the husband to sue.
b. Parental immunity
i. Traditional rule: Parent is immune from being sued by children before the age of
majority.
1. Reciprocal: Children can’t sue parent during minority either.
2. Immunity does not apply to actions arising after minority.
3. Policy:
a. Public interest in preserving family harmony
b. Maintenance of discipline
c. Prevention of fraud and collusion
d. Interfamilial litigation can deplete family resources
e. Courts don’t want to dictate what is good parenting
4. Exceptions:
a. Personal injury inflicted intentionally, willfully, wantonly, or
is gross negligence
b. D is parent’s business partner
c. Parental relation has been terminated before the suit by death
of the parent or child or both
d. Action is for wrongful death of the other parent
e. D is a step-parent or other persons in loc parentis
f. Kid is legally emancipated
16
i. If relation has been abandoned, no reason to preserve
harmony
g. Car accident cases
i. Insurance will pay
ii. Negligent act has nothing to do with good or bad
parenting skills (only driving skills)
ii. There is always immunity for choices in how parents raise their children.
1. Policy:
a. Courts don’t want to define what is reasonable care for
parental supervision of the child
b. Courts don’t want to define good parenting which is
considered a private area
iii. Effect of liability insurance
1. Argument for keeping immunity: Since insurance company is paying, it
might cause parents and children to collude or commit fraud
2. Argument against immunity: Liability insurance makes it not get in the
way of familial relationship
iv. Renko v. McLean: Kid was seriously injured in car wreck driven by mom; court
ruled that parent is still immune from tort suits by children. (note, this is
different than those jurisdictions which have decided to make an exception for
automobile cases)
3.
4.
Charities
a. Traditional rule: Charities are immune from tort suits
i. Policy:
1. Trust fund theory: Better that the individual suffer injury without
compensation than to risk the judicially assumed probability that the
public and state would be deprived of the benefits of the charity (funds
are for charity, not litigation)
2. Equitable agreement theory: Accepting something free makes it only
fair that you can’t sue
3. Implied waiver theory: Person who accepts charitable benefit impliedly
agrees not to sue
ii. Counter-arguments:
1. Modern charities are run like corporations and can pay their own way
(insurance is available)
2. Illogical to say a person in need of charity consents to negligence in
return (sometimes they lack capacity to consent)
3. Immunity fosters neglect and irresponsibility while liability promotes
care and caution
b. Modern rule: Majority of states now say that non-governmental charities are liable for
their own negligence and for the negligence of their agents and employees acting within
the scope of their employment
i. Those who have not abolished it, have limited it so that it does not apply in
cases where it involves:
1. Charitable hospital (versus religious institution)
2. Non-recipient of charity’s benefits
3. D has liability insurance or judgment can be satisfied out of other nontrust fund assets (but only to the extent of the money available in these
cases)
c. Abernathy v. Sisters of St. Mary’s: D’s employee negligently failed to assist P as he
moved from shi bed to the bathroom so he fell and suffered multiple injuries; court
abolished nongovernmental charitable immunity
Employer Immunity
a. General rule: Employer is not liable in tort for injury to employee while on the job.
i. Worker’s Comp. statutes in effect in all jurisdictions provide that employees
may not recover from their employers for work-related injuries without having
to show any fault on the part of the employer.
ii. These statutes provide an alternative to the torts system
iii. Thus, in most cases, an employee who is injured on the job cannot file a tort
claim against his employer even if the employer was negligent.
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5.
State and Local Governments Immunity
a. Traditional rule: States and local governments are immune to tort suits.
i. Policy:
1. “The king can do no wrong”—can’t have a legal right against the
authority who made the law and created that right
2. Floodgates fear if suits were permitted
3. Absence of a fund out of which to pay judgments
4. Better that the individual suffers than the public have to suffer
inconvenience
5. Government functions will be curtailed by having to pay claims out of
funds
6. Desire to protect limited funds
ii. Counter-arguments
1. No support for theory that function will be curtailed
2. No support for floodgates theory
3. “The king can do no wrong” is an ancient maxim that does not apply to
the modern branches of government—especially not local governments
which are not sovereigns
4. Government liability can be treated as a cost of administration
5. Not fair that P should suffer the entire burden
6. Liability will increase governmental care and concern for the welfare of
those who might be injured
b. Ayala v. Philadelphia Board of Public Education: P was at school when he was injured by
shredding machine that did not have a proper safety device and he was not warned or
properly supervised; court abolished local government immunity
c. Municipal corporations:
i. Dual nature—subdivision of the state vs. corporate body
ii. Principal exception to immunity rule is for activities which are proprietary
(private) instead of governmental
iii. Where the state has authorized a municipal corporation to purchase liability
insurance, it can constitute an implied waiver of the immunity to the extent of its
insurance
iv. Many decisions have abrogated the immunity of municipal corporations
d. Immunity based on type of function
i. Discretionary: No liability when government exercises a function or duty
requiring it to make a policy judgment about alternative courses of action based
upon considerations of social, political, and economic factors.
1. So even if the immunity has been waived, some jurisdictions still keep
it for cases of discretionary functions.
2. Situations where the government is given the task and authority to
make a decision by the public.
a. Example: Choosing how to maintain the streets.
ii. Proprietary: Anything not using discretion
1. Exercising function or duty in carrying out courses of action
a. Example: Maintaining streets and sidewalks in a negligent
way.
e. Immunity based on duty (due to undertaking)
i. General rule: If the alleged obligation is to everyone in the community, it is not
enforceable by any one person.
ii. Noted exception: Where a governmental body undertakes to help someone and
exposes them to risks as a result without adequate protection
1. Riss v. New York: P was terrorized by rejected suitor so she called the
police but they refused to offer protection, and suitor threw lye in her
face and injured her; court ruled that it was up to the legislature to
abolish immunity.
2. DeLong v. Erie County: P called 911 because of burglar, but operator
wrote down wrong address and didn’t confirm according to safety
procedures; court ruled that where the police undertakes to help
someone and exposes them to risk which, without adequate protection,
18
result in actual losses, there is a duty—must show that the police’s
conduct in some way increased the risk
6.
7.
The United States
a. Federal Tort Claims Act
i. General rule: Enacted by Congress to waive the sovereign immunity to civil suit
enjoyed by the U.S. and to give consent to be sued for damages for personal
injury or injury of property caused by the negligent or wrongful act or omission
of an employee of the U.S. acting within the scope of his employment.
ii. Exception: Discretionary function exception shields the government from civil
liability for claims based upon the exercise of a discretionary function or duty on
the part of the government.
1. Applies in cases that involve an element of judgment or choice.
2. There is no discretion when a federal statute, regulation, or policy
specifically prescribes a course of action for an employee to follow.
b. Features of pursuing an action under the FTCA
i. Must present claim to the appropriate federal agency before instituting suit
ii. Must be filed in the US district court in the district where P resides or wherein
the act complained of occurred
iii. Tried by judge not jury
iv. P’s attorney’s contingency fee is subject to express regulation
v. Federal district courts have exclusive jurisdiction over civil actions on claims
against the US
vi. US is liable in the same manner and to the same extent as a private individual
1. US is not liable for interest prior to judgment or for punitive damages
2. But where death is the injury and the law provides for damages only
punitive in nature, US is liable for actual or compensatory damages
measured by pecuniary injuries felt by beneficiaries
vii. No strict or absolute liability
viii. Government employees are shielded so that P’s only possible action is against
the US or agency (exclusive remedy provision)
ix. Exceptions to the waiver of immunity:
1. Transmission of mail
2. Assessment or collection of customs duties
3. Imposition of quarantines
4. Fiscal operations of the Treasury
5. Act or omission in the execution of a statute or regulation or while
performing a discretionary function
6. Claims arising out of assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with K rights
7. Claims arising out of the combatant activities of the military or navel
forces or the Coast Guard in times of war; claims arising out of or in
the course of activities incident to any active duty service
x. Gaubert: P worked for a savings and loan company that a federal board
undertook to advise, but P says the board negligently selected officers and ran
management; court ruled that there is discretion at both the ministerial level and
planning level (immunity)
Georgia
a. GA Tort Claims Act
i. Waives state immunity for torts of state officers while acting within the scope of
their official duties so that it is liable in the same way an individual would be
1. Does not cover cities, municipalities, or counties
ii. Exception: Exercise of or failure to perform a discretionary function whether or
not the discretion was abused
1. Prevents courts from substituting their own judgment for the policy
judgments made by the executive and legislative branches of
government
a. Example of discretionary function: Decision to adopt a
program to check airplanes.
19
b.
b.
c.
IV.
Example of non-discretionary function: Car wreck due to
negligent driving of state employee.
2. So the state retains its immunity, meaning no liability, for discretionary
functions.
Edwards: Child in custody of D needed medical attention but D was negligent in
choosing the correct treatment; court ruled this wasn’t the basic type of government
function which the act intended to protect from liability (no immunity)
Features of the GTCA
i. Notice of claim must be given 9 months before suit is filed
1. To give government a chance to investigate and allow chance for
settlement
ii. Venue is where loss occurred, not necessarily where P resides
iii. Either judge or jury
iv. Cap limits are up to $1 million per person, but no more than $3 million per
occurrence
v. No punitive damages
Joint Tortfeasors
a. Liability and Joinder of Defendants
i. Joinder: Multiple D in the same lawsuit
1. English law permitted joinder of D only if those D acted in concert
2. Modern rule allows joinder when P’s claim arises out of the same transaction, occurrence, or
series of transactions or occurrences and if any question of law or fact in common to all D will
arise in the action
a. Thus, joinder is permitted where D acted in concert, acted independently to cause the
same harm, and even acted independently to cause different harms
b. Although joinder is permitted, it is not required
i. P can sue each D alone
ii. D cannot compel, over P’s objection, the joinder of others
iii. D can implead another party or bring a separate lawsuit for contribution or
indemnity
3. Bierczynski v. Rogers: Teens were racing on public highway and one hit P but other managed to
avoid the accident; court ruled that both could be joined as D even though one did not hit P
because they were wrongdoers acting in concert and participating in an act of concurrent
negligence.
ii. Joint and Several Liability
1. Means that each of several tortfeasors is liable jointly with the others for the amount of the
judgment against them and that each is also individually liable for the full amount.
a. P can collect from any one or any group of them
2. Three situations in which JSL is usually imposed
a. D act in concert
i. Example: Ds decide together to beat P up and do so
b. D fail to perform a common duty to P
i. Example: Liability of master for acts of servant; employer for acts of the
employee; retailer for defect in product
c. D act independently to cause an indivisible harm
i. Example: Multiple factories pollute a river; multi-car wrecks
3. JSL under Comparative Fault—split of jurisdictions
a. Keep JSL
i. Coney v. J.L.G. Industries: P died while operating hydraulic work plat from
manufactured by D who argued P’s employer was contributorily negligent for
not providing a groundman and for failing to instruct; court ruled that adopting
comparative fault did not change JSL and so P could choose to sue only the
manufacturer if he wanted.
ii. Four reasons for retaining JSL
1. Apportioning fault under comparative negligence does not render an
indivisible injury divisible; negligence of one concurrent tortfeasor may
be sufficient by itself to cause the entire harm even if others are at fault
as well
2. Where P is not negligent, he would be forced to bear the portion of the
loss of an insolvent tortfeasor
20
3.
b.
c.
d.
e.
b.
Eliminating JSL would have serious effect on the ability of injured P to
obtain adequate compensation for injuries
Abolish it
i. Bartlett v. New Mexico Welding Supply: Unknown driver negligently turned
out of gas station very fast after turning in, causing P to slam on brakes and D to
rear end P’s car, so that jury decided D was 30% at fault and unknown driver
was 70% at fault; court ruled that JSL is not to be retained under the (pure)
comparative fault system.
ii. Two reasons for not retaining JSL
1. If you can apportion liability then it is not fair to make one D pay for
all the harm which he hasn’t caused.
2. Since between one P and one D, P bears the risk of D being insolvent, it
should not be changed just because there is more than one D
Uniform Comparative Fault
i. Keeps JSL
ii. But provides for the determination of each party’s “equitable share of the
obligation” in accordance with his percentage of fault
1. So if one party’s share is uncollectible, a reallocation of that share
among the other parties including a faulty P will be made according to
their respective percentages.
2. Under regular JSL, it is only apportioned among Ds.
iii. Some courts find that public policy says tortfeasors rather than injured P should
bear the burden of uncollectible portions of damages even under comparative
negligence.
Appropriateness of determining percentage of fault of a nonparty
i. Neither legislatures or courts have addressed the issue
ii. One court has found assigning a share of responsibility to a nonparty violates
due process
iii. Nonparty intentional tortfeasors: Some jurisdictions allow comparison between
a negligent tortfeasor and a nonparty intentional tortfeasor; others do not
iv. Nonparty immune tortfeasors: One court allowed jury to consider actions of
immune nonparty in deciding liability of negligent party, but jury was not
allowed to assess fault against immune nonparty
Changes to JSL
i. Most jurisdictions have changed the traditional common law doctrine in some
way by either legislative enactments or by judicial decisions
1. Some abolish JSL
2. Others modify it so that it does not apply to:
a. Non-economic damages (i.e. pain and suffering or emotional
distress)
b. D whose percentage of fault is below a certain threshold
c. Certain types of D
d. Certain types of actions
Satisfaction and Release
i. Joinder rules
1. Old English rule: P could obtain one judgment against one or more joint tortfeasors who had to
have acted in concert or were vicariously liable for each other’s actions; since the act of one was
the act of all, if one action against a D, even if unsatisfied, barred any later action.
2. Modern American rule: P may bring a series of separate actions against D liable for the same
damage and take each to judgment.
ii. Definitions:
1. Verdict—amount jury awards to P
2. Judgment—amount court awards to P
3. Satisfaction—judgment as paid
4. Release—legal release of P’s claim so that he cannot sue D for injury
5. Covenant not to sue—agreement that P will not sue, but does not dismiss the claim
a. This would be D’s defense if P decides to sue
6. Mary Carter Agreement—type of settlement where D agrees P to pay some amount and stay in the
suit as a party in order to help P’s case against non-settling party so that if P wins, D can get some
money back.
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iii. Satisfaction: Actually paid, full compensation for injury; Judgment: Binding court order
1. Rule: P can get many judgments, but only one satisfaction
2. Policy:
a. The wrong done to P and its consequences are indivisible
b. Once P has received full satisfaction, it would constitute unjust enrichment if he were
allowed to sue another D for more
3. Thus, satisfaction of a judgment against one tortfeasor, discharges the remaining tortfeasor
iv. Bundt v. Embro: Passengers in two cars that collided sued the owners, drivers, and a contractor who was
repairing the highway and had negligently obstructed the view of a stop sign; court ruled that satisfaction of
a judgment against the State of NY which P had recovered operated as a discharge of the remaining D.
v. Effect of settlement with one D:
1. If P is partially satisfied, the remaining tortfeasor receives a credit either dollar for dollar or by
percentage:
a. Third R §26 recommends a percentage credit based on comparative responsibility.
b. This is better because if the more culpable D settled for a low amount, the remaining less
culpable D will have to pay the rest of the damages.
2. If ultimate percentage of negligence attributed to settling D would have resulted in a judgment for
less than settlement, P gets the benefit of the excess amount just as he would take the loss of a low
settlement.
3. If the jurisdiction uses comparative negligence, the majority rule is to subtract the amount of
settlement from the judgment and then reduce by percentage of P’s fault.
4. If there is a cap on damages, there is a split:
a. Reduce to amount of cap, then subtract amount of settlement
b. Subtract amount of settlement, then reduce to cap
5. Setoffs are not appropriate in jurisdictions that no longer have JSL.
vi. Collateral source rule: Payments not made on behalf of D are not credited towards D or the joint
tortfeasors, even if P gets double compensation
1. Policy: D shouldn’t profit by any gratuity extended to P.
vii. Effect of releasing on D
1. Traditional rule: Release of one tortfeasor releases all others who may have liability
a. Problem—gives refuge and absolution to wrongdoers by depriving P of full
compensation for his injuries
2. Cox v. Pearl Investment Co.: D was landlord on property which P fell on and P received $2500 in
settlement with tenant which released tenant from liability; court ruled that the release was a
covenant not to sue the tenant but expressly reserved the right to sue others.
a. R §885: A release will be construed as a covenant not to sue where the right to proceed
against the remaining tortfeasors is expressly reserved
3. Modern approaches to release of one joint tortfeasor
a. Some states hold that the release necessarily releases other tortfeasors, but a covenant not
to sue does not unless full compensation has been paid
b. Some states hold that a release with express reservation of rights against other tortfeasors
is a covenant not to sue, regardless of words or release
c. Some states hold that even a release without such reservation does not release other
tortfeasors unless it shows intent to do so
d. Some states have statutes which provide that a release with an express reservation of
rights does not release other tortfeasors or that they are released only when the terms so
provide.
e. Some states say that release of the negligent agent also releases the principal who is
vicariously liable.
4. Setting aside release of tortfeasor, so that it is not a defense:
a. P has to show fraud, mistake, duress, or undue influence to set aside release
b. Most courts will not permit P to avoid release if he was mistaken about the extent of
injury or its consequences
c. Some will let P avoid release if P believed he had no personal injury when in fact they
were serious
d. Some courts will enforce a general release even in favor of joint tortfeasors who did not
participate in the settlement; some will say the parties had to intend such a result
viii. Mary Carter Agreements
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1.
c.
MCA: When P settles with one D and goes to trial against remaining D, the settling D remains a
party and guarantees P a minimum payment, which may be offset by an excess judgment
recovered at trial
a. Good: Promotes settlement
b. Bad:
i. Creates incentive for settling D to ensure P succeeds in getting sizable recovery
ii. Skews the trial process by misleading the jury
iii. Promotes unethical collusion among P and settling D
iv. Can leave less culpable D to be hit with full judgment
v. Gives settling D veto power over settlement with remaining D
vi. Allows P to buy support for his case
2. Ways to deal with MCA
a. Mitigate harmful effects by removing secrecy of agreement
b. Void them as against public policy
c. Bend procedural rules to give non-settling D advantages
3. Elbaor v. Smith: P was injured and negligently treated by different doctors, so P entered MCA
with some D and filed suit against one remaining; court ruled MCA were void as against public
policy.
Contribution and Indemnity
i. Contribution: When a joint tortfeasor who has had to pay P’s full compensation seeks to obtain partial
repayment from another joint tortfeasor for his portion of fault; based on shared fault of joint tortfeasors
1. Doesn’t affect P’s ability to recover; only how much D has to pay
2. Three approaches
a. Traditional rule: No contribution among joint tortfeasors
i. P has to go after each D
b. Contribution allowed between joint tortfeasors but only if a joint judgment has been
obtained against them
c. Modern/majority rule: Can get contribution among joint negligent tortfeasors
3. Contribution not allowed:
a. In jurisdictions which have eliminated JSL
b. Among intentional wrongdoers
4. Elements
a. Common liability—both are joint tortfeasors who caused P’s harm
b. D can show he paid more than his share depending on the number of joint tortfeasors
c. Jurisdiction must have JSL
d. The joint tortfeasors are also liable to P (no immunities, defenses, etc.)
i. P must have had a cause of action against joint tortfeasor for the other to recover
contribution or indemnity, therefore non-immune tortfeasors may not seek
contribution/indemnity from those who are immune.
ii. Yellow Cab v. Dreslin: Husband/driver and wife sued D for injuries in wreck
with cab driven by D’s agent, and D pleaded contributory negligence of husband
and cross-claimed for contribution; court ruled that since wife had no cause
against husband due to spousal immunity, D could not get contribution.
5. Knell v. Feldman: P were in car owned and driven by Knell which collided with car owned by
Feldman and operated by employee Langland, P only sued Feltman who filed a third-party
complaint against Knell for contribution; court ruled that contribution was allowed even though P
did not get a direct judgment against Knell.
ii. Indemnity: Allows someone who is without fault to recover from the wrongdoer the entire amount paid to P
1. Permitted only when D is derivatively or vicariously liable for wrongful act of another (not among
joint tortfeasors)
a. Where D is only liable by law because of relationship with tortfeasor whose wrongful
conduct injured P
b. Examples: Products liability, employer/employee
2. In some states, doctrine of equitable indemnity is used
a. Permits indemnity when D was passively negligent and indemnitor was actively
negligent, or if D was secondarily liable and indemnitor was primarily liable
b. Most states don’t use this because comparative fault builds this distinction in
iii. Effect of settlement
1. Contribution
a. Settling party may obtain contribution from non-settling parties
23
b.
V.
i. Policy—encourage and reward settling to preserve judicial economy
ii. Helps protect risk of settling for more than your percentage of fault
Non-settling party may not obtain contribution from settling party, but the judgment may
be reduced (see satisfaction and release)
Settlement must be made in good faith
c.
Strict Liability
a. Animals
i. Rule: P must prove negligence if injured by domesticated animals (pet cat)
ii. Rule: D is strictly liable for injury to P by wild animals under his control (pet tiger)
b. Abnormally Dangerous Activities
i. General rule: A person who carries on an abnormally dangerous activity is subject to strict liability for the
resulting harm despite the use of reasonable care.
1. Limited to the kind of harm, the possibility of which makes the activity abnormally dangerous
2. Abnormally dangerous is a question of law, not fact, so that an appeals court can review such a
finding.
ii. Two ways to determine if something is an abnormally dangerous activity:
1. Non-reciprocal risk: If D creates a danger that is of a totally different magnitude than the dangers
created by the people around him, then that activity will warrant strict liability.
2. R §520: Six factors to determine whether an activity is abnormally dangerous
a. If the risk (probability) of harm is great
b. If the harm that would ensue is great
c. If the risk can be prevented by the exercise of reasonable care
i. If so, then negligence is proper
d. If the activity is a matter of common usage
i. If so, then negligence is proper
e. If the activity is inappropriate to the place in which it is being conducted
f. If the value to the community is outweighed by the risk
iii. Policy:
1. Cost internalization—strict liability damages become a cost of business
2. Equitable—D imposed an abnormal risk of harm upon others for his own purposes
3. Liability is not negligence per se because mere participation in the activity is not to be stigmatized
as wrongdoing, but rather the actor is simply required to pay his own way
iv. Bridges v. The Kentucky Stone Co.: P was injured when a third party stole dynamite from D’s warehouse
and set it of near P’s house three weeks later; court ruled that the risk which made storing dynamite
abnormally dangerous was not the contemporaneous damage to a house over 100 miles away and 3 weeks
later and so the theft was a superseding cause.
v. Indiana Harbor v. American Cyanamid: D shipped dangerous chemical which leaked in RR car while being
transported; court ruled that strict liability was not proper and negligence would suffice because the leak
was caused by carelessness rather than the dangerous aspects of the chemical.
vi. NOTE: One who carries on an abnormally dangerous activity may also be negligent in the way in which he
conducts it and therefore subject to liability on both bases.
c. Limitations on Strict Liability
i. Proximate cause:
1. The harm which results must be one of the risks that made the activity abnormally dangerous to
begin with.
2. Extreme superseding cause
a. Foster v. Preston Mill: P’s minks killed their kittens on his farm because they were
frightened by blasting noise conducted by D; court ruled that the risk of causing this kind
of harm was not the kind of risk which makes blasting ultra-hazardous and thus strict
liability is inappropriate.
ii. Matters of common usage
1. Driving a car is not an abnormally dangerous activity
iii. When the injury results from an act of God that D has no reason to anticipate.
1. Golden v. Amory: D owned hydroelectric plant and hurricane caused overflow which damaged P’s
lands; court ruled that the flood was beyond D’s anticipation and was an act of God which D could
not be held liable for.
iv. P’s extreme contributory negligence
1. Not just slight, ordinary want of due care
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Sandy v. Bushey: P was kicked by D’s horse when D knew it had exhibited a vicious and ugly
disposition before; court ruled that P had not been contributorily negligent by going into the
pasture to grain his own mare.
v. Assumption of risk
1. P can assume the risk of an abnormally dangerous activity
vi. Immunity through legal sanction
1. D cannot be held liable for doing properly what the law has authorized him to do. (although he can
still be liable for negligence)
vii. D is held liable for an abnormally dangerous ACTIVITY, not SUBSTANCE.
Products Liability
a. In General
i. Products liability refers to the liability of a manufacturer, seller, or other supplier of chattels to one with
whom he is not in privity of K, who suffers physical harm caused by the chattel.
ii. Liability may rest on: Negligence, supplier’s warranty, or strict liability.
iii. Pros and cons:
1. Manufacturers argue that strict liability in design and warning cases keep good products off the
market, inhibited product development, and created an unreasonable “tort tax” on products.
2. Consumers argue that strict liability has made products safer.
b. Development of Theories of Recovery
i. Negligence
1. Traditional rule: No liability to third parties not in privity of K.
a. Policy
i. Helps with foreseeability of who might sue
ii. Gives incentive to purchaser to inspect
iii. Allows for negotiating liability costs through K
iv. K solutions are preferable because parties can work out problems without
court’s interference
2. New rule: A supplier of a product is liable for negligence to a person not in privity of K. Two
elements must be proven:
a. Thing of danger: If the nature of the thing is such that it is reasonably certain to place life
and limb in peril when negligently made
b. Duty:
i. Knowledge that the thing will be used by persons other than the purchaser
ii. Knowledge that the thing will be used without tests
iii. Proximity or remoteness of the relationship
3. Note: Since this is negligence, once P has established the duty he must still prove breach and
causation.
4. MacPherson v. Buick: P sued manufacturer of car that collapsed because of defective wood
wheels that had been made by another manufacturer; court ruled that since D was responsible for
the finished product and thus liable when it knew the car would be used by P without further
inspection.
ii. Warranty
1. In General: Hybrid of tort and K law; form of strict liability
2. Express Warranties
a. Rule: When an ordinary person would be unable to discover by usual and customary
examination that the product did not conform to a warranty, the manufacturer is liable to
the consumer despite lack of privity of K.
i. P must prove:
1. D made a promise
2. P relied on the promise (in most jurisdictions)
3. D broke the promise
ii. Policy—Manufacturers advertise their products as having certain qualities and
people should be able to rely on that.
b. Features of the rule
i. Applies to property damage as well as personal injury.
ii. D can still be liable for an “innocent” misrepresentation.
iii. Courts have stated that the promise of safety must be a specific one, but there is
a trend to allow violation of more generalized statements to be actionable.
c. R §402B:
2.
VI.
25
3.
i. One engaged in the business of selling chattels who, by advertising, labels, or
otherwise, makes to the public a misrepresentation of a material fact concerning
the character or quality of a chattel sold by him is subject to liability for physical
harm to a consumer of a chattel caused by justifiable reliance upon the
misrepresentation, even though
1. It is not made fraudulently or negligently, and
2. The consumer has not bought the chattel from or entered into any K
relation with the seller.
d. Baxter v. Ford: D’s catalogue said windshield was shatterproof, but it broke in accident
so that small pieces of glass flew into P’s eye; court ruled that since P could not have
discovered that the glass did not conform through a reasonable inspection and thus D was
strictly liable for breaching the warranty.
Implied Warranties
a. Rule: When a manufacturer puts a product in the stream of trade and promotes its
purchase by the public there is an implied warranty that it is reasonably suitable for use as
such.
b. UCC §2-314: Implied Warranty: Merchantability; Usage of Trade
i. Unless excluded or modified, a warranty that the goods shall be merchantable is
implied in a contract for their sale if the seller is a merchant with respect to
goods of that kind. Under this section the serving for value of food or drink to be
consumed either on the premises or elsewhere is a sale.
ii. Goods to be merchantable must be at least such as
1. pass without objection in the trade under the contract description; and
2. in the case of fungible goods, are of fair average quality within the
description; and
3. are fit for the ordinary purposes for which such goods are used; and
4. run, within the variations permitted by the agreement, of even kind,
quality and quantity within each unit and among all units involved; and
5. are adequately contained, packaged, and labeled as the agreement may
require; and
6. conform to the promises or affirmations of fact made on the container
or label if any.
iii. Unless excluded or modified, other implied warranties may arise from course of
dealing or usage of trade.
c. UCC §2-315: Implied Warranty: Fitness for Particular Purpose
i. Where the seller at the time of contracting has reason to know any particular
purpose for which the goods are required and that the buyer is relying on the
seller’s skill or judgment to select or furnish suitable goods, there is unless
excluded or modified under the next section an implied warranty that the goods
shall be fit for such purpose.
d. Who is covered by these implied warranties:
i. UCC §2-318 extends warranties to certain third parties and states are given
three alternatives
1. Alternative A: Express/implied warranties extend to any natural
person who is in the family or household of the buyer or who is a guest
in his home if it is reasonable to expect that such a person may use,
consume, or be affected by the goods; seller may not exclude or limit
operation of this section.
a. Least broad—more foreseeable who might get hurt
b. Majority rule
2. Alternative B: Express/implied warranties extend to any natural
person who may reasonably be expected to use, consume or be affected
by the goods; seller may not exclude or limit operation of this section.
3. Alternative C: Express/implied warranties extend to any person who
may reasonably be expected to use, consume, or be affected by the
goods ; seller may not exclude or limit operation of this section with
respect to personal injuries of a person covered by the warranty.
e. Henningsen v. Bloomfield Motors: Car purchaser’s wife was injured while driving car
manufactured by D who had disclaimed all warranties except for parts defective within
90 days or before 4000 miles; court ruled that D had a duty to the wife despite lack of
26
privity because of the unequal bargaining power of purchasers and nature of the market,
and that the disclaimers were invalid.
f. Disclaimers (under UCC)
i. Consequential damages may be limited or excluded unless it is unconscionable.
1. Limitation of consequential damages for injury to the person in the case
of consumer goods is prima facie unconscionable, but limitation of
damages for commercial loss is not.
g. Notice (under UCC): Buyer must notify seller of breach of warranty within a reasonable
time after he discovers or should have discovered the breach..
h. Federal Acts
i. Magnuson-Moss Warranty-Federal Trade Commission Improvement
1. Created comprehensive regulatory system governing the form and
content of written warranties and implied warranties offered to
consumers by suppliers of consumer products.
2. Does not require warranties be given, but regulates the scope of
warranties provided.
ii. Consumer Product Safety Act
1. Created new federal agency (Consumer Product Safety Commission)
which regulates consumer products that are not already subject to
safety regulation by other agencies like the FDA.
2. Establishes/enforces uniform safety standards for consumer products
can bans products which create an unreasonable risk of injury to
consumers.
iii. Note: Violation of a specific standard issued under federal regulations can
subject D to liability for negligence per se or implied tort.
iii. Strict Liability for Products
1. Liability for personal injury by product is not governed by law of K, but rather by strict liability in
tort.
a. P has to prove he was using product (or affected by it) and that there was a defect of
which P was unaware; no need to prove breach of express warranty
b. Policy behind applying strict liability
i. Deterrence—Strict liability provides better deterrence because negligence
claims are so difficult to prove
ii. Diminishing marginal utility of the dollar—Manufacturer can spread loss better
than consumer by raising prices or getting insurance
iii. Fairness—Representations by manufacturer make consumers rely and the court
should vindicate the expectations of the consumer.
iv. Cost internalization—Price of goods can reflect total production costs and
liability costs so that those who benefit from the product should share in the cost
to those who are injured.
v. Optimal consumption of dangerous products—when price goes up because of
insurance, the demand will come down (people will end up not using unsafe
products)
vi. Increasing marginal utility of loss—if loss is spread among many, it is not as
harsh
2. Most jurisdictions impose strict liability for personal injury caused by defect; breach of implied
warranty is still a separate cause of action.
3. R §402A: Special Liability of Seller of Product for Physical Harm to User or Consumer
a. One who sells any product in a defective condition unreasonably dangerous to the user or
consumer or to his property is subject to liability for physical harm thereby caused to the
ultimate user or consumer, or to his property, if
i. The seller is engaged in the business of selling such a product, and
ii. It is expected to and does reach the user or consumer without substantial change
in the condition in which it is sold.
b. The rule stated in subsection (a) applies although
i. The seller has exercised all possible care in the preparation and sale of his
product, and
ii. The user or consumer has not bought the product from or entered into any
contractual relation with the seller.
4. Note: Tort statute of limitations applies.
27
5.
c.
Greenman v. Yuba Power Products: P was injured by power tool but waited 10.5 months to notify
manufacturer of breach of warranty; court ruled that notice was not required since the cause is
based on strict liability in tort.
Product Defects
i. Rule from Third R §1:
1. One engaged in the business of selling or otherwise distributing products who sells or distributes a
defective product is subject to liability for harm to persons or property caused by the defect.
ii. Manufacturing Defect
1. Third R §2(a): Manufacturing defect occurs when the product departs from its intended design
even though all possible care was exercised in the preparation and marketing of the product.
2. Analysis:
a. Objective standard: Compare to other products on the line made by manufacturer to see
whether the product conforms to the intended design.
b. P has to prove:
i. Defect existed at time it left control of the manufacturer
ii. That a defect exists
c. P does not have to prove:
i. Quality of the design
ii. Lack of reasonable care
d. Typically due to mishaps in the manufacturing process
3. Rix v. General Motors: P was injured when hit by two-ton GM chassis-cab with faulty brakes;
court ruled that jury instructions were fine since they referred to product being in a defective
condition at the time of sale and reaching the ultimate consumer without substantial change.
iii. Design Defect
1. Third R §2(b) Design defect occurs when the foreseeable risks of harm posed by the product
could have been reduced or avoided by the adoption of a reasonable alternative design by the
seller or other distributor, or a predecessor in the commercial chain of distribution, and the
omission of the alternative design renders the product unreasonably safe.
2. P must prove:
a. Design made product unreasonably dangerous
i. Shown through RU or CE tests (see below)
b. Reasonable alternative design
i. In Bliss—must be a product on the market because that shows the design was
technologically and economically feasible.
3. Prentis v. Yale Mfg.: P was injured while operating forklift that had not seat; court ruled that in
cases of design defect, the elements of negligence were inescapable and thus D is not subject to
strict liability but rather has a duty to use reasonable care in designing the product and guard it
against a foreseeable and unreasonable risk of injury, which may even include misuse which might
reasonably be anticipated.
4. Other issues:
a. Crashworthiness cases: Risk of car collisions is foreseeable and thus car manufacturers
must design cars to be minimize injury to occupants during an accident.
b. Inherent qualities: Products whose inherent qualities make them dangerous are not
unreasonably dangerous (i.e. whiskey or tobacco)
c. Prescription drugs:
i. Most jurisdictions do not apply strict liability to prescription drugs.
ii. They are useful and desirable products with known but apparently reasonable
risks.
iii. Third R §6(c): There is a defective design if the risks are greater than the
therapeutic benefits such that reasonable health care providers would not
prescribe the drug.
5. Two tests for determining if design is unreasonably safe:
a. Risk Utility
i. Majority of jurisdictions use some form of this test for design defect cases
ii. Essentially a negligence test because court looks at whether the risk of harm
outweighed the utility of a particular design; i.e. whether D exercised reasonable
care in choosing a particular design.
1. If applied at time of sale—negligence standard
2. If applied at time of trial—more like strict liability because of new
technology or knowledge about product
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b.
iii. Factors used under this test
1. Usefulness and desirability of the product to the consumer and the
public as a whole
a. If the product is a luxury item, then the risk might outweigh
the utility.
2. Safety aspects of the product such as the likelihood that it will cause
injury and the probable seriousness of injury
3. Availability of substitute product which would meet the same need and
not be as unsafe
a. Most jurisdictions require P show this, others say it is only a
factor
b. P might argue conceptual alternative, but D will argue it must
be something on the market
c. Some products are of such low social utility that liability
should be imposed even if there is no reasonable alternative
design (i.e. “Black Talon” bullets that dramatically increased
wounding power)
4. Manufacturer’s ability to eliminate the unsafe character of the product
without impairing its usefulness or making it too expensive to maintain
its utility
5. User’s ability to avoid danger by exercise of car in use of product
6. State of the art evidence
a. If relevant scientific, technological, and safety knowledge
existing at the time was reasonably feasible and not used, the
risk might outweigh the utility.
b. Not the same as custom (some courts have confused the two)
c. Burden of proving defect is on P, but some jurisdictions say
the burden of proving compliance with state of the art is on D
d. Compliance with state of the art is not conclusive, only a
factor
e. Most jurisdictions allow this kind of evidence in design defect
cases
7. Whether the danger could be anticipated by the user because of
common knowledge or open and obvious condition or warnings
a. Some jurisdictions say obviousness is an affirmative defense,
most say it is only a factor
8. Feasibility of manufacturer spreading loss by increasing price or having
insurance.
iv. Benefits to RU analysis
1. Negligence is adaptable to design defects because there are documents
showing why design was chosen.
2. Greater incentive to be safer if rewarded for using reasonable care
3. Should be harder to prove design defect because entire product line
could be taken off market and public would be deprived of it
4. Negligence is more fair because safe manufacturers won’t bear the
burden, negligent manufacturers will, and customers of safe products
won’t have increased prices, while users of dangerous products will
Consumer Expectations
i. Looks at design of product in light of reasonable expectations of the ordinary
consumer so that a failure of the product to perform safely in violation of those
expectations makes the product defective.
ii. Problems with CE analysis
1. Much more subjective than RU
2. Expectations can be skewed
3. Proof of expectations has to come from psychologist, victim’s
testimony, or common sense—a pro-P standard that is easier to prove
4. Difficult to deal with when a third party is injured—whose expectations
do we look at?
iii. If the defect is obvious, then CE says that P accepted the defect.
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iv. Potter: P used hand tools which caused vibration syndrome but D argued that
state-of-the-art should be a complete defense; court ruled…
6. Role of state of the art:
a. Refers to existing level of technological expertise and scientific knowledge of particular
industry at the time the product was designed.
i. Customs of the industry are not the same as state of the art.
b. Relevant to what might constitute a reasonable alternative.
c. May be state of the art, but fail the RU test.
i. Compliance with state of the art does not direct verdict for D.
7. Enhanced injury cases: Situations where the defect does not cause the accident which initially
injures P, but enhances P’s injuries.
a. D is only liable for the portion of P’s injuries caused by the defect.
i. D’s burden is to separate the original injury from the enhanced.
b. Third R §16: Increased Harm
i. If there is proof of separate injuries, the manufacturer is only liable for the
increased harm.
ii. If there is no proof of separate injuries, the manufacturer is liable for all of the
harm.
c. Lahocki: P was riding in van on makeshift seat when it rolled over and roof became
detached as result of defect, causing P to be ejected from car and making his injuries
more serious; court ruled…
iv. Warnings Defect
1. Third R §2(c): A product is defective when the foreseeable risks of harm posed by the product
could have been reduced or avoided by the provision of reasonable instructions or warnings
by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the
omission of the instructions or warnings renders the product unreasonably safe.
2. General rule: Manufacturer must adequately warn and instruct people who will foreseeably come
in contact with and be endangered by the product.
a. Test:
i. Was the warning given?
1. D has to know/should know of the danger in order to warn
ii. Was the warning adequate?
1. Presumption is that a warning was read and heeded.
2. Thus, if it is not there and P used the product in a way that injured him,
the warning was inadequate.
iii. Did failure to warn cause P’s injuries?
3. Exception: Learned intermediary
a. Rule: Manufacturer only has a duty to warn a learned intermediary who in turn warns the
consumer. (no direct liability to consumer for failure to warn)
b. Policy: When an intermediary has a one-on-one relationship with the consumer and can
tailor his warnings to that individual, giving him a more effective warning, it is
reasonable for that intermediary to have to give the warning.
c. Factors to consider in determining whether learned intermediary rule applies:
i. How actively consumer is involved in the decision to use the product
ii. Whether the consumer only has a few chances to get questions answered by the
learned intermediary
iii. Whether the product is subject to special regulations
iv. If the facts needed for informed consent are too complicated for oral
communications written notice is required
d. Examples of situations where this applies:
i. Prescription drugs
ii. Products in the work place
1. Employer has control of worksite, knowledge of its hazards, and ability
to instruct employees directly through adapted message to particular
employees of different backgrounds
2. However, some jurisdictions are reluctant to extend the rule to this
because of employer immunity taking away the incentive to give an
adequate warning)
e. Examples of situations where it does not apply:
i. Mass immunizations
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4.
5.
6.
7.
8.
ii. When product is marketed directly to consumer
iii. When P has limited contact with a learned intermediary
f. Third R §6(d): Warnings for prescription drugs
i. There is a warning/instructions defect if a warning/instruction is not provided to
1. A doctor who can reduce the harm with his own instructions, or
2. A patient when the manufacturer knows the doctor won’t be in a
position to reduce the harm with his own instructions
Adequacy of warning
a. Don’t have to warn of obvious dangers
b. Must warn about foreseeable risks of harm
i. Risks must be foreseeable at the time of manufacturing
c. Must be comprehensible to the average user and convey a fair indication of the nature
and extent of the danger to the mind of the reasonable prudent person.
i. Issue: How to tailor warning to people of different levels of education, language,
etc.
d. Third R §4: Compliance with statutes or regulations
i. Compliance with regulations is just evidence of an adequate warning, not
conclusive
ii. But, noncompliance is automatically defective.
e. Adequacy of warning is question for the jury.
Causation issues for failure to warn:
a. But for the failure to warn, P would not have used the product and the injury would not
have occurred.
i. Very subjective so it is easy to prove and hard to defend against.
ii. Has to be what this P would have done had he gotten a warning
b. Most jurisdictions presume that a good warning would have been read and followed.
i. Policy:
1. Eases P’s burden of proof
2. Gives manufacturer and incentive to make better warnings
Knowledge requirement
a. Most courts require that D know or should know of the danger in order to be liable for a
failing to warn of it
i. This is strict liability, not absolute liability so D is not an insurer of the product
ii. Thus, state of the art evidence is admissible
iii. Anderson v. Owens-Corning Fiberglas Co: P were injured by exposure to
asbestos on the job; court ruled that knowledge of the danger was a component
of strict liability in a failure to warn case and thus state of the art evidence was
admissible to show whether the risk was known or knowable.
b. Counterargument
i. Admission of knowledge and state of the art evidence infuse negligence
concepts into strict liability because it directs attention to the manufacturer’s
conduct rather than the product
1. Under negligence, P must prove D did not warn for reasons that fall
below the standard of reasonable care
2. Under strict liability, P must prove D failed did not warn of dangers
that were known to the community at the time
ii. Eaton thinks this is negligence in disguise
Obvious dangers
a. Most jurisdictions do not impose a duty to warn of obvious dangers or risks that are
generally known.
b. Danger of over-warning is that if all obvious warnings are made, it will diminish the
significance of warnings about non-obvious risks.
c. Obviousness is a question for the jury.
Notes:
a. Good warnings do not relieve a manufacturer of liability for a design defect.
b. Most jurisdictions impose a duty to warn if the ingredient in a product is one to which a
substantial number of people are allergic. (P’s burden to prove substantial number are
affected)
c. Most jurisdictions use some form the of the “sophisticated user” defense so that D does
not have a duty to warn those who have special knowledge of danger.
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d.
Many courts impose duty on manufacturer to provide post-sale warnings about risks
discovered after the sale.
i. Generally applying a reasonableness standard based on factors such as the
obviousness of the danger, seriousness of potential harm, whether danger is
generally known to users, and the burden on the manufacturer to locate those to
be warned.
ii. See Third R §10
Product recall is traditionally a product of regulations rather than the tort system.
e.
v. Defenses
1. Only apply after liability is found or assumed.
2. Plaintiff’s Conduct
a. Comparative fault
i. Majority rule: Comparative fault principles are considered in products liability
cases to reduce the amount of P’s recovery by his own negligence
1. Thus assumption of risk is no longer a complete bar to recovery.
ii. Minority rule: No comparative fault in product liability, or it is limited to those
situations where P has assumed the risk by voluntarily confronting a known
hazard.
iii. Argument for the majority rule:
1. P will not have to prove D was negligent so that liability remains strict
2. P’s recovery is only reduced to the extent his own unreasonable
conduct contributed to the injury
3. Cost of compensating victim is still on D, who can spread the loss
among society
4. D will still not be able to avoid full liability when P is not negligent
5. Deterrence will work because D cannot assume P will be negligent
iv. Counter-argument against the rule:
1. Comparative fault will lessen D’s incentive to produce safe product
2. Hard to compare negligence to strict liability and assign percentages of
fault
v. Daly v. General Motors: P was killed when thrown from car in an accident
because of door latch defect, but there was evidence that he did not use shoulder
harness, nor lock the door, and was drunk; court ruled that comparative fault
could be worked into strict liability so that P’s recovery would be reduced by his
percentage of fault in causing the injury.
b. What kind of conduct is a defense:
i. Second Restatement says that P’s negligence in the sense of failing to discover a
defect in the product or guard against the possibility of its existence is not a
defense.
ii. Third Restatement does not limit the forms or categories of P’s conduct that can
be taken into account when apportioning damages.
c. Misuse:
i. Rule: D is not liable for misuse.
1. Exception: Such misuse was reasonably foreseeable.
ii. Ford Motor Co. v. Matthews: P was killed by tractor which ran over him after he
started it while it standing beside it because safety switch which was designed to
prevent just this situation was defective; court ruled that the design showed that
such a misuse was reasonably foreseeable and thus the manufacturer could be
held strictly liable.
iii. Third R §18: Product misuse whether by third party or P is relevant to issues of
defect, causation, and comparative responsibility.
1. Misuse means there was no defect (complete bar)
2. Misuse means defect didn’t cause injury (complete bar)
3. Misuse means P contributed to injury (reduces recovery)
iv. Third R §2: Foreseeable product misuse must be considered when determining
whether an alternative design should have been adopted.
3. Preemption and Other Government Actions
a. General rule: When a state’s law deals specifically with the subject matter of a federal
statue and asserts different or additional requirements, that state law is preempted by the
federal law.
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i. Exception: State laws of general applicability are not preempted.
b.
d.
Test:
i. What did Congress intend
ii. Is the state tort law conflicting with a specific requirement in the federal law
c. Policy behind preemption:
i. Gives common baseline rule between states
ii. Federal legislature has more knowledge than judges and juries who make the
common law
d. Argument against preemption:
i. Federalism values
ii. Congress is often influenced by lobbyists
e. Note: Preemption is not the same as compliance with government standards; most
jurisdictions allow evidence of compliance as a defense to product liability.
i. A few jurisdictions say compliance creates a rebuttable presumption that the
product is not defective.
ii. Most jurisdictions say compliance is a factor.
f. Government Contractor Defense
i. If the government sets the standards and mandates the design of the product, the
manufacturer is immune if
1. The US approved reasonably precise specifications,
2. The product conformed to those specifications, and
3. The supplier warned the US about the dangers in the use of the product
that were known to the supplier but not to the US
g. Medatronic v. Lohr: P’s pace maker failed causing him to need emergency surgery, but D
argued a federal statute preempted any state tort law claims; court ruled that there was no
preemption because the state law’s general requirements in nature did not conflict with
the specific federal law.
Defendants Other than Principal Manufacturers/Harm Other than Personal Injury
i. Other Suppliers of Chattels
1. General rule: Strict liability for product defects extends to lessors of chattels, retailers, and
wholesaler-distributors
a. Component makers, when there is no further processing or substantial change in the
manufacturing process, can be held strictly liable.
i. Note: Some courts have held them liable when they substantially participate in
integrating the component or raw material into a defective product.
b. Generally, a successor corporation is liable only if agreed to assume liability, the transfer
was fraudulent, the two corporations merged, or the successor is essentially a
continuation of the old company.
i. Note: Some courts have gone further and said that a corporation that acquires
substantially all the assets of another is liable if it continues the product line.
2. Exceptions:
a. Generally, sellers of used products and occasional sellers are not subject to strict liability.
b. Third R §8: Sellers/distributors of used products
i. Are strictly liable for harm to persons or property caused by defect if the defect
1. Results from seller’s failure to use reasonable care, or
2. There is a manufacturing defect or inferred defect (see §3) and the
seller’s marketing of the product would cause a reasonable person to
expect the used product to present no greater risk of defect than a new
one, or
3. There is a manufacturing or inferred defect in a used product
remanufactured by the seller or a predecessor in the chain of
distribution.
ii. Used product: Product that, prior to the time of sale or distribution here, is
commercially sold or distributed to a buyer not in the commercial chain of
distribution and used for some period of time.
3. Third R §20: Strict liability applies to all sellers in the chain of distribution.
4. Peterson v. Lou Bachrodt Chevrolet: P’s kids were hit by used car with defective brakes sold by
car dealer; court ruled for D since P had not alleged defects existing at the time the product left the
manufacturer’s control nor that the defects were created by the dealer.
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a.
Dissent: Dealer who put car into stream of commerce and could have discovered defect
upon reasonable inspection, should be liable.
Courts will apply indemnity and contribution principles—thus comparative fault can apply.
VII.
5.
ii. Services
1. General rule: Strict liability does not apply to providers of services
a. Analysis:
i. What is the essence of the relationship between the provider/seller and
consumer?
1. Service or transfer of goods
ii. Is it integrally related to the seller’s/seller’s primary function?
1. Integral or incidental
iii. If a service also involves a transfer of goods, courts will not apply strict liability
when the transaction is predominantly a service with only an incidental transfer
of goods.
b. Policy:
i. Absence of mass production and distribution in service industry means no real
ability to spread the loss
ii. Services don’t involve a group of consumers needing protection from a remote,
unknown manufacturer
iii. Service providers are still liable for negligence
2. Hector v. Cedars-Sinai Medical: Hospital implanted defective pacemaker into P which was
manufactured by another company; court ruled that the primary function of the hospital was to
provide a service of medical treatment and the supplying of a pacemaker was simply incidental.
a. NOTE: Hospital is strictly liable for products sold in its gift shop where the primary
function is to sell products.
3. Features of this rule:
a. All jurisdictions exempt providers of blood, blood products, and human tissues from
strict liability (includes physicians, healthcare providers, and commercial suppliers)
b. Third R §19:
i. Product is tangible personal property distributed commercially for use or
consumption. (can include real property)
ii. Human blood and tissue are not products
iii. Services are not products
c. Strict liability not extended to ideas, pictures, or expressions in books.
d. Electricity is a service while passing through transmission lines, but becomes a product
when it passes through the meter.
e. Strict liability extended to licensors and franchisers, but not endorsers of products
iii. Harm Other Than Personal Injury
1. Economic loss resulting from personal injury is recoverable along with P’s other losses in strict
liability.
a. Most jurisdictions allow loss of consortium claims based on personal injury as well.
2. Economic loss without personal injury is not recoverable because strict liability does not lie when
the product simply did not perform as expected
a. Only a tort action for misrepresentation or K claim through express warranty might be
allowed
b. Exception: Recovery for pure economic loss may be allowed when alleged defect creates
an unreasonable risk of injury to persons.
3. Damage to property is generally recoverable.
Damages
a. In General
i. Proof of damages is an essential part of P’s cause of action in negligence and strict liability.
ii. Three basic kinds of damages:
1. Nominal—consist of a small sum of money awarded to P in order to vindicate rights, make
judgment available as a matter of law to prevent D from acquiring prescriptive rights, and carry a
part of the costs of the action.
2. Compensatory—intended to represent the closes possible financial equivalent of the loss or harm
suffered by P, to make P whole again, to restore P to pre-injury position.
3. Punitive—an additional sum, over an above compensation of P, awarded in order to punish D,
make an example of D, and to deter D and others from engaging in similar conduct.
b. Personal Injuries
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i. Maximum recovery rule: Directs trial judge to determine whether the verdict of the jury exceeds the
maximum amount which the jury could reasonably find and if it does, the judge may reduce the verdict to
the highest amount that could have properly been awarded.
1. Preserves the constitutionally protected role of the jury
2. Prevents the predilections of the judge from infecting the jury’s verdict
3. Anderson v. Sears, Roebuck: P was severely burned when home was consumed by fire caused by
negligently manufactured heater; court ruled that damages were not beyond the maximum
recovery allowed.
4. Courts cannot disturb juries finding unless it is so excessive or so inadequate as to demonstrate
that the jury acted contrary to law, in passion or prejudice rather than according to instructions.
ii. Five elements of damages:
1. Past physical and mental pain
2. Future physical and mental pain
3. Future medical expenses
4. Loss of earning capacity
5. Permanent disability and disfigurement
iii. Special damages: Out of pocket expenses (economic damages)
iv. General damages: Subjective elements like pain and suffering and emotional distress (non-economic
damages)
1. Some states have caps as to how much P can recover for non-economic damages.
v. Present value:
1. Since money is invested for payment, future damages have to be reduced to present value so that
the principal plus interest will equal the award.
2. Most jurisdictions adjust for expected future inflation.
a. Inflation discount method: Seeks to avoid under-compensation by increasing expected
future income to account for inflation, and then discounting to present value by the
market interest rate.
b. Real interest method: Real interest rate is perceived to be stable regardless of the level of
inflation.
c. Total offset method: Assumes as a matter of law that the market interest rate is
completely offset by inflation in computing lost future income.
3. Pain and suffering is not reduced to present value because it has no real market value, but other
damages are.
vi. Richardson v. Chapman: P was in car wreck which caused her to be quadriplegic while P2 received less
serious injury to head, and D argued damages awarded by jury were excessive because they went beyond
figures given by expert testimony; court ruled that although the jury has some leeway in awarding medical
costs when some expenses are left out of testimony, the award for P was excessive, and the pain and
suffering award for P2 was excessive considering lack of serious injury.
1. Remittitur: Judge’s reduction of jury award.
a. New trial conditioned on P’s refusal to accept lesser amount.
2. Adittur: Judge’s raising of jury award.
a. New trial conditioned on D’s refusal to pay larger sum.
b. Federal courts cannot grant adittur.
c. Split of jurisdictions among states on whether to allow it.
vii. Ways to prove damages:
1. Per-diem calculation: Break physical and mental suffering down into time blocks, set a value to
each block, then multiply it by the amount of time the pain must be endured.
a. Some jurisdictions don’t allow this because it gives the false impression of a
mathematical formula to something which by its nature is neither mathematical nor
precise.
b. Majority of jurisdictions permit the argument.
2. Demonstrative evidence such as charts, photographs, films, models, etc. can be used to show jury
extent of P’s injuries.
3. Experts must be used to
a. Detail P’s future medical expenses
b. Estimate what P would have earned during his lifetime (first, permanent injury must be
proven)
viii. Economic damages
1. Past and future medicals, loss of earning capacity, loss of wages
2. P’s award for personal injuries is not subject to federal income tax.
35
a.
b.
c.
c.
Punitive damages are considered income.
Some courts take the “tax free” nature of the award in setting the amount of the award.
Most courts say that deducting for tax savings nullifies the benefit conferred by Congress
and since amounts are speculative to begin with.
3. Generally, no precise sum of damages is sought by P.
4. P usually collects interest on the award until judgment is entered or a verdict is reached.
ix. Non-economic damages
1. P must be conscious to recover for physical pain and suffering and mental anguish.
2. Some jurisdictions require physical injury before P can recover for emotional distress.
3. Most courts do not recognize litigation-induced stress as a separate component of damages.
4. P can recover for loss of enjoyment, but no expert testimony is allowed.
5. Traditionally, P has not been allowed damages for shortening of life expectancy
a. Common law rule against compensating for loss of life precludes compensation for
shortening of life
b. Fear of duplication of damages
c. Unwillingness to enter area of incalculable variables
x. Collateral source rule: Applied when P receives compensation from any source collateral to tortfeasor (not
on behalf of D)
1. Rule: Evidence of collateral sources is excluded from evidence and does not reduce D’s liability
even if it means P gets a windfall.
a. Exceptions: Collateral source may be introduced to
i. Rebut P’s testimony that he was compelled by financial necessity to return to
work prematurely or forgo medical treatment
ii. Show that P has attributed his condition to some other cause
iii. Impeach P’s testimony that he paid medical expenses himself
iv. Show that P actually continued to work rather than being out of work
b. Policy
i. P should get benefit of collateral source
ii. If we reduce recovery, we reduce deterrence
iii. Overcompensation risk is reduced by subrogation practices
1. Example: P has to pay back his insurance company if he gets an award
and they paid his bills.
2. Montgomery Ward & Co. v. Anderson: P received discount on medical bills for injury in D’s
shopping mall; court ruled that evidence of the discount was inadmissible due to collateral source
rule
Punitive Damages
i. Arguments for:
1. Discourage evil motives
2. Partial remedy for not allowing compensation for litigation expenses
3. Way of diverting P’s desire for revenge
4. Incentive to bring a long array of petty cases of outrage and oppression into court
ii. Arguments against:
1. Undue compensation to P beyond what he deserves
2. Form of criminal fine that should be paid to state which is charged without the standards or
safeguards of criminal procedure
iii. When can punitive damages be awarded:
1. When D has acted with reckless disregard for the rights of others, with willful, wanton
misconduct, or shows a want of care indicative of indifference to its consequences. Mere
negligence is not enough.
a. NOTE: Compliance with federal standards does not excuse conduct
2. Factors to consider in determining appropriateness of punitive damages:
a. Existence and magnitude of danger
b. Cost or feasibility of reducing danger
c. D’s awareness of danger
d. Nature and duration of and reasons for failure to act to discover or reduce danger
e. Extent to which D acted purposefully
f. Extent to which D is subject to federal safety regulation
g. Probability that compensatory damages might be awarded against D in other cases
h. Amount of time which has passed since the actions sought to be deterred
i. Some jurisdictions allow jury to consider
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3.
VIII.
i. Wealth of D
ii. Existence of similar past conduct
iii. Whether D has been punished for the same wrong in previous criminal or civil
suit
Factors to determine if punitive damages are excessive:
a. Degree of reprehensibility
i. Enormity of the offense
ii. Distinguish between economic loss on one hand and physical injury on the other
1. Amount of economic loss is important
iii. Bad faith
1. Deliberate false statement vs. non-disclosure of some facts
b. Ratio to compensatory damages
i. If the ratio is 1-9 to 1, it’s fine since a ratio of 10 to 1 is presumptively suspect
but not automatically unconstitutional
c. Compare amount of punishment imposed in this case to similar cases
iv. Notes:
1. Some jurisdictions say the focus on product versus conduct means that punitive damages are
inappropriate
2. Some say evidence must show actual malice before punitive damages can be awarded
3. Most jurisdictions do not allow an award of punitive damages against the estate of a dead D.
4. Some courts require an award of compensatory damages, while others find it sufficient that P
prove the elements of the underlying case even if no compensatory damages are awarded.
5. Punitive damages are generally permitted when D has committed an intentional tort, unless D
committed it “innocently” with an absence of ill will or malice.
6. In medical malpractice, punitive damages have been awarded even though the malicious conduct
did not itself proximately cause the compensable harm as long as P also proves compensable
harm.
7. Most jurisdictions require that punitive damages bear some reasonable relation to the
compensatory award.
a. BMW v. Gore: P’s car had pre-sale damage which reduced value by $4000 and was not
disclosed by manufacturer or dealer; court ruled that award of punitive damages almost
500 times the actual harm was excessive and sent the case back for remittitur.
b. Some procedural safeguards used by jurisdictions
i. P has to show entitlement to punitive damages before permitting discovery of
D’s financial condition
ii. Bifurcated trial so that jury does not hear D’s financial condition until after
ruling on liability, compensatory damages, and liability for punitive damages
iii. Burden of proof: Clear and convincing evidence—a higher standard than
preponderance of the evidence
iv. Portion of punitive damages will go to state fund (GA does this)
8. Vicarious liability
a. Some jurisdictions allow punitive damages only for D’s own conduct and not in cases of
vicarious liability, others allow it even for vicarious liability.
b. Most courts hold that the principal actor is liable only if he authorized or ratified the act,
was reckless in employing or retaining the agent, or the agent was employed in a
managerial capacity and was acting within the scope of his employment.
Wrongful Death and Survival
a. Wrongful Death
i. Traditional rule: Death of a human being could not be a complaint in civil court.
1. Based of the felony merger doctrine which did now allow civil recovery for an act that constituted
both a tort and a felony.
a. Punishment for a felony was death and forfeiture of property to the king—nothing
remained on which to base a civil action.
b. Personal causes of action in tort did not survive the death of the possessor—no need for a
dead person to recover.
ii. Modern rule: When the death of a person is caused by the wrongful act of another, that actor is liable in tort
for damages (usually in a statute)
1. What P must show:
a. That he’s a beneficiary (usually a relationship)
b. D wrongfully caused deceased’s death
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b.
iii. Wrongful death actions are brought by the personal representative of the deceased for the benefit of the
beneficiaries; some jurisdictions allow beneficiaries to bring it themselves; in GA it is brought by the
surviving spouse.
1. Typically, spouse and children.
2. If there is no spouse or children, then parents of the deceased.
3. If no family, then the estate.
4. Note: It will be spelled out in the statute.
iv. The beneficiaries receive the money from a wrongful death action.
1. Money does not go to estate
2. Not subject to claims of deceased’s creditors
v. Elements of recovery (typically based on loss to beneficiaries; some use loss to decedent’s estate as the
standard)
1. Loss of support
2. Monetary value of services provided by decedent
3. Compensation for loss of society
4. Damages for funeral expenses
5. Half the states allow punitive damages
vi. Moragne v. States Marine Lines: P killed while working on D’s vessel, so wife brought wrongful death
suit; court ruled that the legislative establishment of wrongful death actions had lead the way away from
old common law felony merger doctrine and allowed the action.
vii. Selders v. Armentrout: Three minors were killed in car wreck due to D’s negligence; court ruled that
parents could recover pecuniary losses as well as loss of society, comfort, and companionship since the old
rule restricting damages to monetary losses was based on antiquated notion that children were an economic
asset to parents.
viii. Defenses:
1. Conduct of deceased is relevant.
2. Conduct of beneficiaries is relevant
a. Unless the jurisdiction bases recovery on loss to the estate.
i. Note: Spousal or parental immunity may come into play.
3. If either conduct is relevant, analyze under comparative fault.
Survival
i. Traditional rule: Personal causes of action died with the death of P.
ii. Modern rule: Rights of action do survive the death of the person with the right of action.
1. Which causes of action that may be brought may be limited by statute.
2. Policy: There may be substantial loss of earnings and pain and suffering before the person actually
dies and it is unfair to deny this compensation and allow D to pay only part of the damages
through wrongful death suit.
3. Most jurisdictions allow actions for both survival and wrongful death, which can be maintained
separately or concurrently.
iii. Survival actions are brought by the executor or administrator of the estate and recovery becomes an asset of
that estate.
iv. Elements of recovery (damages are based on loss to estate):
1. Pre-death compensatory damages
a. Pain and suffering
b. Loss of earnings
c. Medical expenses
2. In GA, punitive damages; some don’t allow
v. Defenses:
1. Conduct of deceased may be relevant
a. Comparative fault, assumption of risk
b. Any defense D would have had if he lived
2. Conduct of beneficiary is irrelevant
a. Unless there is reason for D to get contribution or indemnity.
b. Note: Spousal or parental immunity may come into play; but the reason for immunity,
preserving family harmony, may not be relevant when the person is dead.
vi. Murphy v. Martin Oil Co.: P’s husband was injured by fire and died 9 days later, so she brought suit for
wrongful death and survival action for personal injuries to recover damages for pain and suffering and loss
of wages during the 9 days; court ruled that the two actions could be maintained concurrently because they
dealt with two different rights of recovery: one for wrongful death, one for right of action for personal
injury arising during life of husband.
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