TORTS OUTLINE
Fall 2009 - AJC
I. Intentional Torts
A. Battery
B. Assault
C. False Imprisonment
D. Trespass to Real Property
E. Trespass to Chattels
F. Conversion
G. Intentional Infliction of Emotional Distress
III. Defenses to Intentional Torts
IV. Negligence
Methods of Judicial Reasoning:
Legal Positivism : The law consists of past political acts, and is based on precedential case law, statutes and sometimes scholarly evaluations of those cases and statutes
2 methods:
1. Deductive: There is a rule, and apply facts of case to rule to determine disposition
2. Inductive: No clear rule, use what cases say to induct the rule, then apply deduction with the current set of facts to determine ruling
Legal Realism: Optimal public policy; how can this ruling best serve the interests of society in a cost/benefit analysis?
Brune v. Belinkoff – ct. used positivism to reason a realism change in policy; looked to pub. policy purpose behind old locality rule, how had been modified or abandoned in
other jurisd., scholarly criticism of old rule, then applied to modern situation to say new rule. Old Locality Rule, Small v. Howard 1880
Goals of Tort Law
1. Compensation: Pay for costs of injury and injustice of harm caused
Corrective Justice Thoery: Restore parties to ex ante position to achieve justice
2. Deterrence: Encourages behavior respects personal safety and dignity;
 Reduces costs and likelihood of injuries
 Places costs on those most able to avoid, distribute or internalize them (can make product/service safer and pass on costs to users; can test product more
accurately to avoid injury)
3. Punitive: Punishes wrongdoers.
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I. Intentional Tort
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The intent need not be malicious – the intent forming the basis of tort liability need not be immoral, malicious, or hostile; instead, it need only be an intent to affect a
legally protected interest in a way that will not be permitted by law – acting knowingly/purposefully
Standard is subjective: The fact that a reasonable person would have been substantially certain is not dispositive, but only evidentiary in determining whether the
defendant actually had the requisite mental state
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Intentional torts do not allow contributory negligence or contributory recklessness as defenses
Punitive damages available
A. Battery
A battery is intentional tort protecting interest in bodily integrity, safety and security. According to R1d §13, the elements of battery require it to be an actual act (rather
than an involuntary spasm). The first element of battery is intent: a person need to either purposefully intend the harmful consequences or know substantial certainty the
harm will occur (R2d § 8a, Garratt v. Dailey). Intent can be transferred: if you are intending to hurt a 3rd party, but end up hurting someone else, you are still liable for
battery (R2d § 32) (Scott and Shepard). The 2nd element is causation, which includes direct or indirect cause. The 3rd element is injury, which includes physical as well as
mental/emotional injury (2R§18, Fisher v Carrousel). The 4th element is lack of consent/no privilege. The 5th element is contact, direct or proximate.
Elements of Battery (R1d §13)
0. Act – must do something voluntary for battery (can’t be a spasm)
1. Intent (purposeful or substantial certainty) – motive is irrelevant
• Knows w/certainty that harm will occur R2d§8a / Garratt v. Dailey – boy pulls chair
• Can be transferred R2d § 32 / Scott and Shepard – tossed lighted squib into crowded market
Cons: Blurs concept of intent, people can be liable for crimes that they did not intend, may run counter to notions of proximate cause Pros: Intentional tortfeasor
is more deserving to bear the risk of a different kind of tortious injury than is an innocent victim, and if someone has to bear liability, better it be the intentional
tortfeasor.
2. Causation – direct or indirect cause
3. Injury (harmful or offensive contact) – mental/emotional harm, can be “offensive” but not harmful R2d §18
Fisher v. Carrousel Motor Hotel, Inc. 1967 – injury to human dignity – employee snatched plate, yelled “cant eat here coz you’re black”
 Contact can be with something closely connect with person, doesn’t have to b intimately identified as part of person, ie: cane, in
certain circumstances.
4. Lack of consent and not privileged –parents spanking kids, common law: women cant sue husband if he beat/raped her, burden on
Burden on D to prove privilege or P’s consent. No assult if P consents of D in relationship of privilege. Consent is also a defense.
5. Contact with plaintiff or appurtenant to the person –
(1) direct Shaw v. Brown & Williamson Tobacco Corp 1997 - Truck driver rode w/ smoker in cab for yrs., never smoked himself and got lung cancer
Generalized knowledge of harm insufficient – must be substantially certain harm could result to plaintiff in particular, not just knowledge that
someone will be harmed
(2) proximate – Fisher v Carrousel –
“anything so connected with the body as to be customarily regarded as part of the other’s person and therefore as partaking of its inviolability is actionable as
an offensive contact with his person. There are some things such as clothing or a cane, or indeed, anything grasped by the hand which are so intimately
connected with one’s body as to be universally regarded as part of the person.” (R2d §18)
Other – Contact must be reasonably offensive. Objective standard to view “Harmful or Offensive” contact
B. Assault
“An assault is a physical act of a threatening nature or an offer of corporal injury which puts an individual in reasonable fear of imminent bodily harm” (Prosser and
Keeton on the Law of Torts). The elements of assault are almost identical to those of battery. Assault in torts is different from criminal assault, which is an attempted
battery. Here, you only need apprehension. It is not necessary to prove actual damages to sustain a prima facie case for assault.
>>According to R2d§32, the elements of assault require it to be an actual act (rather than an involuntary spasm). The first element of assault is intent: a person need to either
purposefully intend the harmful consequences or know substantial certainty the harm will occur (R2d § 8a, Garratt v. Dailey). Intent can be transferred: if you are intending to
hurt a 3rd party, but end up hurting someone else, you are still liable for battery (R2d § 32) (Halloway v Wachovia Bank & Trust Co). The 2nd element is offer of injury
(conditional threats don’t count). The 3rd element is reasoanable apprehension of imminent harmful or offensive contact (which requires awareness – Halloway). The 4th
element is causation, which includes direct or indirect cause. The 5rd element is apparent ability. The 6th element is lack of consent/no privilege.
Elements of Assault – see above for descriptions
0. Act
1. Intent (purposeful or knowing): (same) Transferred intent: R2d § 32, Halloway v. Wachovia Bank & Trust Co.
2. Offer of injury – conditional threats don’t count (ie: I will kill you if
)
3. Reasonable apprehension of imminent harmful or offensive contact (awareness)
• Words alone not sufficient (2R§31)
• Need awareness – Holloway
Holloway v. Wachovia Bank & Trust Co. 1993 - Bank rep. repo car w/ gun; battery to infant but no assault cause asleep. Niece in
back seat transferred intent of assault when gun pointed at driver, because she was scared and thought could be shot too.
4.
Causation
5. Apparent ability (close in time and space) – reasonable assumption of ability to harm + sufficiently close in time and space Vietnamese Fisherman’s v. Knights
of KKK
6. Lack of consent or have privilege
• Sensitive person doesn’t count - Bodily contact is offensive if it offends a reasonable sense of personal dignity – it cannot offend a person who is unduly
sensitive as to his personal dignity. It must be contact which is unwarranted by the social usages prevalent at the time and place at which it is inflicted. There
need not be a physical injury.
• Don’t need to prove actual damages to sustain prima facie case
C. False Imprisonment
Intentional tort protecting right to move freely – unlawfully acts to intentionally cause confinement or restraint of the victim within a bounded area. 2R§35 defines
False Imprisonment as “intending to confine the other or a third person”.
Elements of False Imprisonment: R2d§35
1. Act
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2. Intent (purpose or knowledge) – transferred intent: R2d § 35, “intending to confine the other or a third person”
3. Confinement by boundaries fixed by the actor (even indirectly)
• No bounded if there’s reasonable means of escape, can be as broad as whole city
• Indirect imprisonment Whittaker v. Sandford, On yacht and told free to go, but does not provide boat to go ashore
• Time of confinement = irrelevant
4. Victim is conscious of confinement or harm caused by it – time of confinement irrelevant
• Cannot assume confinement: must ask to leave
Teichmiller v. Rogers Memorial Hospital - Nurse wanted to copy documents when being fired, admins. stood on either side of her, never touched or
said could not leave, π never asked to leave, but actions implied she wanted to
• Look at context
Herbst v. Wuennenberg - 1 woman vs 3 males. Canvassers in apartment building asked to id themselves, and then ∆ said would call police.
•
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•
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Accidental confinement doesn’t count (that’s negligence)
According to The Restatement, the victim need not be aware of the confinement, as long as they are harmed by it
Other: Common law privilege permits storeowners to detain suspects for a reasonable amount of time to investigate reasonable suspicions of wrongdoing (R2d § 120A)
There is NO MINIMUM TIME. 1 minute confinement counts.
D. Trespass to Land
Trespass occurs when a person enters the land without the permission of another, or causes a third person to do so. 2R§158: Trespass occurs regardless if any actual harm
occurred, merely breaching the plaintiff’s property interest is intentional trespass to land. It requires neither harm nor awareness, only a volitional act 2R§163 comment b.
Elements:
1. Enters land in possession of another, or causes a thing or third person to do so OR
2. Remains on the land OR
3. Fails to remove from the land a thing which is under his duty to remove AND
4. No privilege
• An initial privilege that’s revoked constitutes trespass
• Issue of what is “land” and ad coelum (R2d § 159)
• No harm need to be incurred, just breach of P’s property 2R§158 (VS) Nuisance: must demonstrate actual harm
• No awareness needed, just a volitional act 2R§163 comment b
• Accumulation of particles is trespass if damagesBradly v. American Smelting. –Arsenic/cadmium emissions from refining co. accumulated in π’s property. Intent=D knew would go somewhere
• Lawful act = trespass
Case of thorns 1681 – caused thorns to fall on another’s property, trespassed by entering w/out permission to collect
• Particles = nuisance, not trespass
Amphitheaters v Portland Meadows - Light from ∆’s race track ruin quality of outdoor movies; loss of revenues- Particles not significant
enough objects to constitute trespass; more properly a nuisance
D. Trespass to Chattels
Trespass to chattels is a tort that has its origins in the tort concept of trespass (writ of trespass – de bonis asportatis). It is granted when the D intentionally interferes
with another person’s lawful possession of their chattel. This includes any physical contact or dispossession, through taking, destroying, or barring access. Unlike
conversion, which is a greater wrong, trespass to chattels can only be proven if actual damage can be shown.
Elements of Trespass to Chattels: R2d§§ 217, 218
1. Intentional Act – don’t need to know chattel belongs to P
2. Dispossessed of the chattel, OR
3. Impaired its condition, quality or value, OR
4. Deprived of use of chattel for significant amount of time, OR
5. Bodily harm caused to π, or to π’s legal interest in some person or thing  Unlike trespass to land
Compuserve, Inc. v. Promotions, Inc. - Spam email using up server space, ∆ evaded π’s attempts to block, reduced goodwill of customers.
Intentionally using possession in way that deprives owner of full use & reduces the quality and value of the service that the chattel enables is trespass to chattels.
E. Conversion
The difference between conversion and trespass to chattel is that conversion so seriously interferes w/π’s right to control property that ∆ required to pay for full value
of it (R2d § 222A(1)). Unlike trespass to chattel, mistakes don’t count as conversion.
Elements:
1. Intentional – unlike trespass to chattel, mistakes don’t count as conversion
2. Exercise of control substantially interferes with P’s right to possess the chattel
3. Remedy is full value of the property
Determining Severity: Extent and duration of Actor’s exercise of dominion or control, Actor’s intent to assert a right in fact inconsistent with other’s right to control,
Actor’s good faith, Harm to chattel, Inconvenience and expense
Substantial Interference = Dispossessing
Bergeron v. Aerosales 2006 - π deposited fuel oil deposited in hanger that was sold, π tried to get back, new owner and seller both asserted possession of it.
Ct: π had best title since never abandoned it, so seller couldn’t transfer title to new owner - π couldn’t access w/out trespass = substantial control over π’s use
Examples: destroys chattel, steals (conversion in bad faith), mistaken & return (no conversion), mistake & loses (conversion b/c permanent)
F. Intentional Infliction of Emotional Distress
IIED is a newer tort, that only arose in the 2nd half of 20th century. People used to sue under Alienation of affection to be compensated for things such
as the seduction of a wife/daughter and the loss of her working value, or the seduction of a husband (in the 1960’s). North Carolina juries have handed
out big awards in Alienation of Affection cases. In 2001, a Greensboro jury awarded 2 million to the P. This tort has, for the most part, died out. Now,
under IIED, it is a matter for the jury to consider the factors of whether there was true emotional distress, or whether it was simply feigned, and to
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separate serious injuries from trifiling annoyances. To demonstrate IIED, the emotional distress does not have to result in a complete
disablement/impairment of activities (Figueiredo), but it must show mental distress to a “severity that a reasonable man could not be expected to
endure”. This type of severity is best shown through the outrageousness of the D’s conduct, taking into account the vulnerability of the victim.
Elements: R2d §46(1):
1. Conduct must be intentional or reckless
2. Conduct must be extreme or outrageous
a. “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community” (R2d § 46 comment c)
b. Mere rudeness, callous offensiveness, or even racial epithets is insufficient (Title VII of Civil Rights Act for racial claims, not torts)
c. Vulnerability of the victim can be critical (Cruelty towards a young child or very ill patient, superior subordinate relationship like employeremployee)
d. Knowledge of victim’s hypersensitivity beforehandF
Figueiredo-Tomes v. Nickel 1991 - Psychologist for marriage slept w/ π’s wife, and told π had bad breath, was a cod, and should avoid
intimacy w/ wife. π then suffered hypertension and other symptoms, still went about daily routine.
Ct: Took advantage of π’s fragile emotional state in egregious fashion cause special relationship
• Special professional relationship to patient makes conduct outrageous = severe because of outrageousness, rather than severity
of resulting symptoms
•
Practical joke = outrageous Wilkinson v Downtown – practical joke-husband had broken his legs. She suffered permanent physical
consequences as a result
3. Causal connection between the wrongful conduct and the emotional distress
4. The emotional distress must be severe
• Impairment of activities; total disablement not necessary Figuerido
• Severe mental distress – “severity that a reasonable man could not be expected to endure”
Caldor v. Bowden - Young employee held and q’d for stealing for 4 hours in small room. Next day manager was abusive, physically pulled
in from parking lot to the store, paraded through the store, handcuffed, held in full view until police came. Testified able to continue w/
activities but always sad – visited shrink 1, but not psych testimony
Invasion of Privacy:
Invasion of Privacy elements - Public figures cannot claim this tort
D’s conduct highly offensive - 1. Intruded upon seclusion of P, 2. Published a private fact (like outing them), 3. Depicted P in a false light – Didn’t
necessarily defame, but distorted the truth, 4. Appropriated name/likeness of P (used image or voice without permission)
Public figures cannot claim this tort
POLICY:
George Fletcher
In setting forth the Paradigm of Reciprocity, speaks to the elements of intentional torts, particularly in battery and assault. He argues that nonreciprocal risk-taking between parties set the basis for unexcusable behavior in tort law.
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>> He gives the examples of: Rylands v Fletcher – water in reservoir floods adoining mining operation – “subjecting the neighboring minors to a risk to which
they were not accustomed and would not regard as a tolerable risk entailed by their way of life. Creating a risk different from the prevailing risks in the
community” is therefore a non-natural use of the land – or an “abnormal” and “inappropriate” use.
>>Vincent v Lake Erie Transportation: D docks on P’s dock during storm, P wants costs. Cts decide that because D “prudently and advisedly [availed]” himself of
P’s property – it constituted a “transfer of wealth” through which he was justified.
***The central feature of these cases are that the D subjected P to a risk of harm different from that imposed on him by the P.
He particularizes the adoption of this principle in Intentional torts, stating that - “An intentional assault or battery represents a rapid acceleration of
risk, directed at a specific victim. Perceiving intentional blows as a form of nonreciprocal risk helps us understand why the D’s malice or animosity
toward the victim eventually became unnecessary to ground intentiaonl torts”. Through this theory, he explains the rationale behind which courts …
Epstein – Theory of Strict Liability
According to Estein, there is an inherent problem with causation. He argues that the concept of causation is so hypothetical and theoretical, and without
“merit, philosophic or otherwise”, that it provides the courts “as a matter of policy, the reason to decide cases in one way rather than the other”. He
argues that they don’t have “one true meaning”, but rather, have “no meaning worth bothering about at all, but are used as a mere disguise for
arbitrary decision or judicial policy”. He argues that “proximate cause” gives the courtrooms freedom to engage in “creative decisions of social policies”
and masks “the underlying policy considerations, which need not even pay lip service to precedent”. Through cause, “we may be expressing any number
of ideas”. Rather, courts should look to who had the volition, not the “but for” test.
Deliberate/Voluntary Acts (Volitional Acts)
Hart and Honore: "The general principle of the traditional doctrine is that the free, deliberate and informed act or omission of a human being, intended
to produce the consequence which is in fact produced, negatives causal connection. This supports the common sense position that
'deliberate/voluntary acts" enjoy a special status because "precautions against such acts are especially difficult, since a man who is bent on harm will
usually find some way of doing it."
But authors argue that this is an overstatement, because a man bent on harm can usually find a way of doing something, but that doesn't mean that one
must never seek to go behind a deliberate infliction of harm. Rather, it becomes the burden of the D to prove that alternative means of harm were
available, and so that they weren't the sole supplier of the means of harm.
Epstein approaches intentional torts with this new approach to causation (through volition)
Force: Battery: Epstein believes that the “but for” causation test should not be the test for battery, but rather, that a test of violition should be the
instrument. He argues that if force occurs to cause the harm, then that force must be tied to the volition of a human, and the tortfeasers should be
responsible for the harm caused by his volitional activity.
• Merely proposing that A hit B should be enough to establish a prima facie case of liability, no proof of causation should be necessary, because it is
clear that A is responsible for the harm. B has not engaged in a volition-type action, therefore, there is no symmetry of action.
Fright and Shock Assault: Epstein believes that the crucial question in a “fright and shock (assault)” case turns on whether the D really frightened or
shocked P, and how P reacted in the situation. He argues that “reacting” to fright does not raise a person’s action to the level of a volitional act,
therefore it is not symmetrical.
• Courvoisier case - D walks into town/riots to investigate scene of riot, D, who had been robbed several times that night, shoots P. So here the
question of fact is easy, D assaulted P, but question for jury is whether "D made the judgment to shoot P in light of all that he knew about the situation
or was frightened by the activities of 3rd persons."
Compulsion (Transfer of Intent): counts as volition: Coases’ requirement of non-reciprocal conduct are met here. “Its not strictly material whether B
intended to harm C, because he could have been compelled to act whether or not that harm was intended”
Martha Chamallas w/Linda Kerber - Women, Mothers, and the Fright of Law: A History
Emotional Security Overlooked
• Law of tort values physical security and property over emotional security and human relationships. This has privileged men, who were traditionally owners and
managers of property, and has burdened women, who traditionally do emotional work to maintain relationships.
• Female Ps have historically brought up more fright-based physical injury claims than men. Two paradigm cases:
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The pregnant P who suffers a miscarriage or still birth because she was frightened
Mother who suffers nervous shock when she witness her child’s injury or death
• Only since the CA Supreme Ct. case of Dillon v. Legg has it been possible for mother who witnesses the negligent injuring her own child to recover for her own fright
induced injuries.
• The legal system has placed women’s fright-based injuries at the margins of the law by describing women’s suffering for the injury and death of their unborn and born
children as remote, unforeseeable, and unreasonable.
Early Legal Constructions of Emotional Injury – Consortium
• The common law rule of allowing spousal consortium for men but not women is an example of the bias
-Men could recover because the services of a women and can be materially valued. The man can repair this
by hiring another servant
-On the other hand, the wife only sustains the loss of comfort of her husband and affection, which the law
cannot estimate or remedy.
• The fact that when the husband was P the loss was material, while if the wife was P it was emotional harm shows the asymmetry of the legal system against women.
• A similar mentality was applied to infidelity, where if the husband cheats the wife does not necessarily lose the consortium, but if the wife cheats, the wife is lost to the
husband
Standard Legal Doctrine: Fight-based Physical Harm standards = Restrictive
• Gender differentiation and disadvantage is also in fright-based physical harm cases because of restrictive doctrines that limit recovery:
• The impact rule – P could not recover unless physical impact on the person
• The physical injury rule – P must demonstrate that fright resulted in physical injury, which focuses on the
injury itself rather than how its brought about
• The bystander rule – P must prove her injury is traceable to fear of own personal safety rather than the
fear or concern of the safety of others
• Dillon v. Legg rejected arguments against bystander recovery and refused to treat mother-child like bystander-witness. Here the mother witnessed her child being run
down by a negligent driver. Dillon exceptional because the court recognized the existence of a family relationship between the P and the primary accident as a legally
relevant fact.
• Casebooks generally convey the liberalized rules of fright-based injury in functional terms (i.e., greater ability of medical experts to detect and understand disturbance).
This overlooks that most of these cases involve maternal relationships and thus reflect the “progression”of the law as far as its societal views on women.
Rediscovering Dillon: A Feminist Perspective 1990
• Between 1960 (Amaya v. Home Ice, Fuel & Supply Co., which rejected fright based recovery when a truck hit an infant in front of the mother) and 1968, when Dillon
was ruled, was a time of social change in America.
• Parenthood was seen as responsible citizenship during the Cold War and also the means to a fulfilling life. There was a widespread endorsement of pro-natalism and
the mother was seen as the center of stability.
• The valuing of children and the privileging of the maternal relationship was key to the recognition of the claims of mothers in these fright-based claims. A normative
judgment that mothers should place their well-being of their children ahead of their own creates the image of the “good mother”, which is given legal recognition.
• Dillon was congruent to the civil rights movement, where the feminist movement picked up and when The Feminine Mystique was first written.
• Tort law also advanced this movement by recognizing “wrongful birth” which allows women to hold their obstetricians accountable for unwanted pregnancies that
were caused by physician’s negligent treatment. This gave legal recognition to the interest of women with their unborn children
• Dillon also validates women’s expanded role outside the outside the domestic sphere. The legal/market recognition of fright-based injury makes the issue more
mainstream.
Conclusion
• When gender was ignored, such as considering mothers as bystanders, the law minimized the harm.
• Recognizing the difference between genders may lead to marginalization, while ignoring it may lead to inequitable results. Tort law must find a way around these
problems.
• We must be wary of dualisms (home vs. market, household v. state) by being skeptical of conceptual dualisms that enshrine the familiar cultural and legal practices.
Second, we should unmask claims of difference to reveal unstated norms against which the difference is judged
• In tort law, the dualism of physical and emotional harm, which has devalued injuries associate with women.
The tort was embraced by certain legal theorists and jurisdictions in the latter part of the twentieth century. Courts began to allow plaintiffs to recover for emotional
distress resulting from negligent physical injuries to not only themselves, but other persons with whom they had a special relationship, like a relative. The first step, then,
was to remove the requirement of physical injury to the actual plaintiff while keeping the requirement of physical injury to someone.
In the 1968 landmark decision of Dillon v. Legg, the Supreme Court of California was the first court to allow recovery for emotional distress alone – even in the absence of
any physical injury to the plaintiff – in the particular situation where the plaintiff simply witnessed the death of a close relative at a distance, and was not within the "zone
of danger" where the relative was killed.
CRITICISM of the tort is that it leads to abuse of insurance liability coverage. Most insurance liability policies provide for coverage of negligently inflicted injuries but
exclude coverage of intentionally inflicted injuries. If a victim is intentionally injured by a person, many theorists perceive that the victim will tend to recast the claim as
being one for negligence in order to fall within the coverage of the insurance policy.
II. Defenses to Intentional Tort
Non-Defenses:
1. Age not per se (may consider documented age-related disability)
4. Mental Illness
3. Low intelligence not per se (may consider disability in circumstances)
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Defenses:
1. Consent
2. Self-defense
3. Defense of another
4. Defense of Property
5. Defense of Property of Another
6. Recapture of Chattel
7. Private Necessity
8. Public Necessity
9. Immunity, Sovereign Immunity
A. Consent
In many jurisdictions, consent is a defense to tort liability (An absence of consent may also be an element of the prima facie case that the plaintiff must prove by a
preponderance of the evidence. Treatment of consent as either a defense or element of the prima facie case varies from jurisdiction to jurisdiction
R2d §892: People with sufficient mental capacity who consent to another’s conduct cannot bring a tort claim for the harm that follows from that conduct. Minors
and people intoxicated or with mental disabilities cannot consent. If victim gives permission, what would otherwise be tortious is instead privileged.
Express Consent - It is the objective manifestation of consent which a potential defendant can rely on to assert privilege. If P's words or conduct manifest
consent, this is sufficient to create a privilege to D to act in light of the apparent consent, even if P's actual (but undisclosed) state of mind was to the contrary.
Implied Consent - Conduct reasonably conveys consent. Can be non-verbal or by inaction (O’Brien v. Cunard Steamship Co., Smith v. Calvary)
O’Brien v. Cunard Steamship Co - π extended arm to physician to get smallpox vaccine at immigration
center
Smith v. Calvary Christian Church (consent by behavior) π signed membership agreement to consent to ∆’s discipline; later revoked
consent but continued to participate, ∆ told would be marked for visiting prostitutes on day in question. Attending church = consent to
discipline as member
Invalidating Consent
a. Incapacity - Infancy, intoxication, or insanity will vitiate consent
b. Beyond scope of consent – consent to rules, not to violence
Hackbart v. Cincinnati Bengals, Inc. ∆ hit π “out of frustration” on field during football game when π kneeling on the ground
watching the rest of the play. Knocked both down w/ blow. π couldn’t play, had fractured neck.
c. Fraud - Misrepresents an essential aspect of the interaction
Doe v. Johnson - π contracted HIV after consensual sex w/ ∆ who didn’t notify was infected - Consented to sex, not to be exposed to HIV
d. Duress - Economic pressure usually does not negate consent
e. Illegality - Traditionally cannot consent to a criminal act and P can claim tort
f.
Revocation Guinn v. Church of Christ – Revoked membership in writing & stopped attending church
• Voluntary participation in SPORT, CHURCH, HEALTHCARE = Consent
B. Self-Defense
Actor can use reasonable force not intended/likely to cause death/serious bodily harm to defend self against harmful/offensive contact or other bodily harm which he
reasonably believes that another is about to intentionally inflict on him Second Restatement of Torts § 63(1)(1965). The defense is both subjective and objective: The
defendant must sincerely believe the force is necessary for protection, but in addition must act reasonably. The standard used is the objective standard of a reasonable
person of average courage. Sincere but unreasonable actions are not privileged. In addition, the person need not be actually attacked by the P, as long as he was reasonably
fearful of bodily harm. According to Epstein on Torts says “if two methods can repel a given attack equally well, the D must choose the one calculated to cause the least
damage to P”
Rules: R2d §63(1):
1. Privileged to use - privilege exists even when D reasonably but mistakenly believes that self-defense is necessary
2. Reasonable determination that someone will inflict damage
a. Imminent harmful or offensive contact or bodily harm (cannot shoot in back)
b. Circumstantial factors taken into account (weapons, relative age, size, gender)
c. Reasonably anticipated and non-privileged force by attacker
d. When the danger has passed, self-defense expires. Cannot retaliate
3. Reasonable force: Unlikely to be lethal or cause serious bodily harm
a. Epstein on Torts says “if two methods can repel a given attack equally well, the D must choose the one calculated to cause the least damage to P”
b. Deadly force should be used by the actor only if the other person’s conduct will result in either death or serious bodily harm
Defense of Others – prevent officious intermeddler
A person can use reasonable force to protect a third person from immediate unlawful physical harm as if it were self-defense (R2d § 76). Privilege to use force in defense
exists only when the person being defended have privilege. If you help out and it turns out third person did not have privilege, than you can be liable. Some courts require
risk be beyond reasonable anticipation to reduce intermeddling of non-threatening situation
• Lethal response to lethal threat ok - May not hold true today..
Roberts v. American Employers - Cop shots arrestee in face when unarmed non-cuffed arrestee w/ long rap sheet lunged at him
C. Defense of Property
According to 2R§77, a person may use reasonable force to protect their property when they reasonably believe it to be necessary and to prevent intrusion.
Unlike a reasonable mistake in self-defense, mistake will not excuse force against an innocent party. Use of force must be equal to threat – lethal force usually
excessive to protect property alone (the exception being when defending your self when a thief enters a home). Prosser on Torts, 3rd edition said “the law has
always placed a higher value upon human safety than upon mere rights in property, it is the accepted rule that there is no privilege to use any force calculated to
cause death or serious bodily injury to repel the threat to land or chattels, unless there is also such a threat to the D’s personal safety as to justify a self-defense”
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(Ploof v Putnam)
Rule: R2d §77 - May use
1. Reasonable force to protect property when
2. Reasonably believes is necessary
3. To prevent intrusion
• Unlike a reasonable mistake in self-defense, mistake will not excuse force against an innocent party
• Use of force must be equal to threat – lethal force usually excessive to protect property alone (but may use when thief enters home)
Kato v. Briney 1971 - ∆ set up spring gun in old house people stealing from. π seeking mason jars in house, opened bedroom door and leg shot off by
20 guage shot gun. Built on Byrd v. Holbrook (not a thief)
• Use of force excessive to protect property interest: spring guns indiscriminate= cannot be used (could injure wayward child same as intruder)
Recovery of Personal Property • May use reasonable force when in “hot pursuit”
• Shopkeeper’s privilege: may detain or disable person in act of thief.
• No self-help if something was already stolen
D. Private Necessity
The defense of private necessity allows D to interfere with the property interest of an innocent party in order to avoid greater injury. The D is justified in her
behavior because the action minimizes overall loss. There is no inherent wrong to either party.
R2d § 263 (a) Privileged to commit an act that would otherwise be trespass to chattel or conversion if it is reasonably believed to be reasonable and
necessary to protect the person or property of the actor, the other or a 3rd person
(b) Where benefits the actor or 3rd person, subject to liability to any harm caused by privilege
Privileged to (1) enter or use another’s property in
(2) instance of reasonably apparent emergency
(3) threatening serious bodily harm or
(4) property damage.
Emergency
Ploof v. Putnam 1908 - Family in sailing when big storm blew up; moored on ∆’s dock, ∆ untied and family almost drowned.
 π privileged to use ∆’s property to save boat, esp. when human life at stake, IF had caused injury to dock, would have to pay ∆ for it
 Prosser on Torts, 3rd edition said “the law has always placed a higher value upon human safety than upon mere rights in property, it is the
accepted rule that there is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or
chattels, unless there is also such a threat to the D’s personal safety as to justify a self-defense”
Property Protection
Vincent v. Lake Erie 1910 - ∆ unloaded barge at commercial dock, storm came up & couldn’t leave; lashed boat to dock. Boat + storm =
significant damage to dock. Both parties innocent, but π must be returned to ex ante position., Even when not at fault, must l8r compensate
E. Public Necessity
The public necessity tort is more of a constitutional issue than a tort. It acts as a complete defense – D has absolute privilege to interfere to avoid a public
disaster R2d §196,262. It is generally not compensated under the 5th Amendment (Surocco v. Geary), although some states require it (Wegner v. Milwaulkee
Ins. Co.)
R2d§262: Privileged to
(1) Commit what would otherwise be trespass to chattel/conversion if
(2) Reasonably believe is necessary 4
(3) Protection against
(4) Public disaster
Conversion for public necessity not compensated
U.S. v Caltex 1952 - Co. property in Philippines destroyed by US during WWII to prevent from Japanese getting - Preventing enemy from getting valuable
resources
Surocco v. Geary: Hd to burn house to prevent fire from spreading to rest of city; not
III. Negligence
The Theory of Negligence liability is that courts should correct a wrong done when one person unfairly burdens another with risk of injury. It incentives taking reasonable
precautions to reduce likelihood of accidental injury. On an economic angle: $ to replace goods damage and to pay for injuries sustained at a loss to society. On a level of
Dignity/fairness: Requires people to take care for others and act with respect for their welfare.
POLICY: George Fletcher sets for the rationale behind negligence through his non-reciprocal risk-taking paradigm of reciprocity, by arguing that when the risks posed to a P by
D are different from those posed by the D to the P, there is a non-reciprocal risk taking. In negligence cases, this is measured against the background of risk generated by
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specific activities (like skiing, or motoring), whereas in strict liability, this is analyzed relative to the background of innocuous risks in the community
Elements of prima facie case:
1. Defendant had duty of care for plaintiff
2. Duty was breached (Non persons can’t be negligent, such as institutions and gov’t)
3. Breach of duty caused the injury – was the actual cause and was legally relevant and “proximate cause” = legal cause
4. Injury was sustained
1) DUTY
Duty operates on the objective reasonable person standard (established in Brown v Kendall) of a person of ordinary prudence, under the circumstances. The rationale
behind this is that members of the community should be able to expect a certain level of behavior from those around them. Holmes: When men live in society, a certain
average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare… If we fall below the level (of the average man of
ordinary intelligence and prudence) in those gifts, it is our misfortune; so much as that we must act at our peril…”. In addition, we want to hold those most likely to cause
harm liable to those they injure.
• Duty to foreseeable P only (Cardozo – Palsgraf)
Reasonable person of ordinary prudence standard
Shifted the courts from strict liability standard to reasonable person standard – D must be involved in a lawful act + exercise reasonable prudence
Brown v. Kendall 1850 - Broke up dogs fighting w/stick, put out ∆’s eye. ∆’s liability for want of care relative to π’s want of care; π’s burden 2 prove care/∆ lacked care
 Liability fault-based, unlawful intentions or want of care
 π burden of proof ∆ breached duty of care by preponderance of evidence
 Jury: Necessary act + Ordinary care (K)= No Fault- - BUT If nota necessary act, burden on K to prove that he used extraordinary care + P did not use ordinary care
Vaughen v. Menlove 1837 - D stacked rake of hay improperly and close to P’s buildings. P warned D repeatedly of dangers, and D said would take the risk. Fire broke
out and burned D’s stables, and then P’s cottages.
• Children - Parents not liable for negligence of children; are liable for negligent supervision
• Children held standard of care of reasonable child of same age, intelligence and experience Charbonneau v. Macrury
• Children engaged in adult activities held to adult standard
Daniels v. Evans 1966 - Minor driving motorcycle crashed into ∆’s car and died. ∆ arg. contributory negligence.
 Drivers can’t anticipate which other driver lower standard of care = must be held to same standard
• Physical & Mental Disability (includes elderly)
• Held to the same standard as person of ordinary intelligence (§283C)
• Only reduced standard if suffering from an ailment that reduced ability to act with the same level of care (same for elderly)
Policy for holding permanently insane person liable for tort: Guardianship of Meyer. When one or two innocent person suffer a loss, it should be borne by the
one who occasioned it. Introduce those interested in estate of insane person to restrain/control him. So insanity defense would not lead to false claims to avoid
liability. Posner: cost-benefit analysis governs negligence – if the cost of accident prevention is less than the cost of the likely damages, then it would be
irrational to not take accident prevention steps. If one fails to take such preventative measures, they are being irrational and unreasonable.
• Exception: Sudden Physical or Mental Onset – has to be sudden onset w/no forewarning
Breun v. American Family Insurance Co. -π had a schizophrenic delusion and lost control of her car, caused accident. She had visions prior to the accident,
but the attack was a sudden one in which she lost review of her car. Sudden mental attack = sudden physical attack; same standard
(a) EXCEPTION: Experts and professionals may be held to higher standard
In addition to exercising the attention, perception of the circumstances, memory, knowledge or other pertinent matters, intelligence, and judgment as would a
reasonable person, one must also exercise such superior attributes on the listed items as the actor himself has (§289b). So, the reasonable person standard sets the
minimum of community expectations, and those w/ greater ability than most are expected to use it.
National Standard of average general practitioner or specialist (no Locality Rule)
Brune v. Belinkoff 1968 - Anesthesiologist in local hospital administered 8 g of drug when 5g is standard to woman birthing.
Policy: It holds you to a higher standard and there’s no reason why in modern society you cant get expertise due to increased technology. You have the
responsibility to determine what you’re capable of and then refer a patient to another doctor if you’re not able to assist them.
Reasonable Person Duty my require Above Average Standard of Care – burden of extra test was small (Learned Hand)
Helling v. Carey 1974 - π saw ∆ for eye problems for 9 yrs; ∆ said prob. w/ contacts, finally gave pressure test = glaucoma. π permanent loss of peripheral vision.
∆ arg. not standard of care to give test to patients under the age 40. - Ct.: Great loss of π, very small burden of performing simple and inexpensive test =
 ∆ required to go beyond the standard of care in the profession to administer the test; b>pl
Doctor must give informed consent – its what a reasonable person would do
Canterbury v. Spence 1972 -19-yr π laminectomy and fell after surgery when orders wrongly changed and was left alone to void out of bed. P restricted to
wheelchair, is incontinent and paralysis of bowels. Is unable to work due to his condition . Ct.: Doc. liable for lack of informed consent: not divulging possible
negative outcomes to π before the procedure that may have affected decision to undergo procedure.
(b) Duty of Landowners (law at its formalistic best..)
Traditional Categories: Duty of Care 2R§587
Invitees – Consensual guest w/business purpose – duty to inspect property for dangerous conditions, fix and warn against possible hazards
• Church goers – may fit requirement if lots of money changes hands
• Public invitee – on land open to public
Licensees – Social Guest – Duty: warn of KNOWN dangers and not to harm w/willful or wanton negligence
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Trespassers – NO DUTY
Children: Attractive Nuisance
2R§339 - Duty of care to children – on landowner with reason anticipate the presence of trespassing young children on the remises and danger created by some
dangers condition of such a nature that injured child, bc of age, inexperience, or other circumstances, would not have anticipated it.
Elements
(1)Possessor should know that young children are likely to trespass
(2)Possessor should know that condition exists that involves unreasonable risk of bodily harm
(3)Children either don’t discover or understand danger involved in coming to dangerous area
(4)One using ordinary care would not have maintained condition when considering usefulness or expense/inconvenience to D in remedying condition would be
slight in comparison to risk of harm to children Gerchberg (from Mozier v Parsons)
*Swimming pool doesn’t count
Mozier v Parsons: Family was a social guest, child fell in pool and drowned, court says pool is never an attractive nuisance (some jurisdictions disagree
•
Church-goer = Licensee (didn’t know of danger is ok)
Hambright v First Baptist Church-Eastwood - P singing in church slipped and fell, wanted to be an invitee, court said she was a social guest and therefore
a licensee, person attending church is a licensee. • Bc church didn’t know of danger, its ok
Exception: Firefighter’s Rule
• Normally, public officials are “invitees”, but police/firefighters are “licensees” bc its unfair to impose duty when unusual circumstances that
necessitate their entry. See Levandoski v. Cone, Connecticut, 2004
• Bars recovery by injured firefighter or police officer whose injuries were caused.
• Can be waived if D significantly enhances dangerous condition
Chapman v Craig – P(Officer) came to arrest someone at the Main Street Tap (D), and in the process, was injured. He brought action. P argued
that D waived rights to fireman’s rule by enhancing the dangerous condition by serving an already intoxicated patron more alcohol. Ct rules that
this conduct occurred prior to P’s arrival, so there was no exception. Upheld fireman’s rule, finding for D.
Exception: Recreational Use State – (Must be owner, occupier, lease-holder or possessor)
Reed v Employers Mutual
• Member 1 sues Member 2 (signed lease, officer of assoc, built deer stand)–
• Recreational Use Statute – provides immunity – owner, lessee, or occupant owes no duty of care to keep premises safe for entry or use by
other for hunting or to give warning of hazardous conditions. If owner, lessee, or occupant gives permission to another to enter premises for
recreational purposes he doest not extend assurance that premises are safe.
• To qualify for immunity: D must be owner, lessee, occupant and land must be undeveloped, nonresidential, rurual, and recreational activity
must be the cause, must be in the “true outdoors”
• Hunting club member/officer does not equal occupant – no duty of care
Exception: Criminal Acts
Criminal Assailants: 2nd Restatement of Torts § 315 – traditionally cts don’t want to impose liability for negligence against prop owners for injuries caused by
criminal activities of 3rd party.
Negligently maintained private property is ok
Doe v Manheimer - P pedestrian abducted from public sidewalk and sexually assaulted by unknown assailant as she walked adjacent to landowner’s lot
overgrown with brush/tall grass. Ct said even if D negligent in allowing overgrown lot, still no proximate cause to P’s injuries. Appling traditional rationale
based on absence of foreseeability.
• Crime = superseding intervening cause
• Business Operations - No duty if mode of operation doesn’t attract/climate for crime to guard against criminal acts of 3rd party unless
(1) they know or have reason to know that acts are occurring or about to occur
(2) that pose imminent probably of harm to invitee: whereupon a duty of reasonable care to protect arises
Balancing Test – no foreseability
McClung v Delta Sq: Facts: P was shopping at Wal-Mart, abducted at unpoint, raped and forced into trunk of her car where she suffocated. Harper
confessed & committed suicide after being sentenced to life in prison.
Ct rejected:
Specific Harm: the landowner needs to be aware of the particular harm: Cornpropst test: Ignores all other conditions
Prior Similar Incidents Test: foreseeability can be established based on the criminal activity on or near the premises. Arbitrary recovery if injured first;
discourages investment in safety until something happens.
Totality of Circumstances: other factors can be taken into account including the nature, condition, and location of the land. Too great a burden;
discourages putting stores in high-crime areas (=more unemployment)
Adopted: Balancing Test: Foreseeability of totality of circumstances weighed against burden to
businesses to take additional security measures Walmart might not want such stringent security measures bc might deter customers: balance between
protecting customers and sending the right vibe
(c). No Duty – Nonfeasance
As a general rule, a person has no affirmative duty to aid another who is in distress. Strangers not required to render assistance, even where person could have rendered aid
with minimal risk/effort. Policy: Justifications for rule: Value placed on individualism in American society. Many countries that value community more than individualism
impose rescue obligations on citizenry. Moral argument – Rescue is cheapened if required. Respect for personal freedom/autonomy. Persons should have freedom of
inaction since action has costs/risks. Good Samaritan Laws temper this harshness by immunizing those who assist in an emergency from liability for negligence, but not for
grossly negligent or reckless conduct. Critique: Sanctions callous disregard of human welfare when burden of rescue is far less than probability of loss – suppose healthy adult
passer by could easily save 30 pound 2 year old drowning in 4 in of water in front yard wading pool by lifting child from water – why no legal duty to act?
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Misfeasance: Active misconduct working positive injury to others (negligent omissions and negligent acts both count)
Nonfeasance: Passive inaction (generally no duty)
Good Samaritan Laws – those who assist in emergency are immune from liability for negligence, except for grossly negligent/reckless conduct
Nonfeasance: No duty to help others unless caused injury (w/exceptions)
Yania v. Bigan 1959 -  asked fellow strip-miners to help pump water out of trench.  jumped into trench and drowned. Widow arg.  incited him to jump, didn’t warn of
deep water and didn’t try to save. Ct: As a strip miner  knew of dangers, adult can’t be taunted into action = no unknown dangers had to warn/make safe
Allen: Could arg. engaged in common venture, like Farwell = have a duty…
Duty not to create public peril – when you create a danger, you have a duty to the public
Weirum v. RKO 1975 0 Radio station pop. w/ teenagers contest to first find personality driving around LA. 2 listeners raced to catch him first and caused accident on
highway. Ct: RKO should know contest would incite teenagers to race on highways = foreseeable injury= liable
Rescuer Doctrine
Day v. Waffle House Inc. 1987 -  served ’s friend food w/ glass in it; no phone for ambulance, made pay and  drove  to hospital, hit by car on way out ---- Ct: Rescue
foreseeable when breached duty w/ glass =  liable for rescuer’s injuries too: rescue doctrine
 When ’s neg. cause of injury, also liable to rescuer who was injured while helping
Exceptions • D created Peril
• D had special relationship with P
• D undertook/volunteered • D had contractual obligation to act • Statute imposed tudy
Voluntarily Assumed Duty: Once begin to help, reasonable person standard applies. - negligent if withdraws prematurely
Florence v. Goldberg 1978 - Cops volunteered as crossing guards at school, cop out sick and didn’t tell school. Mom came to rely on guards so didn’t have someone w/ 6-yrold who was hit by taxi cab crossing street to school. - Ct: To breach a duty must go beyond general duty owed to pub. as a cop, and here assumed an additional duty
  relied on  because assumed a responsibility, so owed a duty of care to  = liable
Policy: Can’t sue city for neg. municipal functions: Legis. not ct.s determine allocation of city $
Special Relationship Exceptions
Social Companions in joint venture - duty to provide reasonable aid to one another if doing so will not put them in grave danger.
Farwell v. Keaton 1976 - Guys drinking in car lot followed some girls whose friends beat  badly.  gave ice and drove around for 2 hrs. w/  in back seat. Couldn’t wake
, left in car in gparent’s driveway all night;  died of brain hemotoma.
Ct:  knew  hurt and if left in car no one would find = shocking to humanitarian conscoius
Common undertaking = special relationship
Psychologist/Patient
Tarasoff v. Regents of U of Ca 1976 Policy: Confidentiality obligated by K, ethics and HIPA = difficult balance of duties
’s daughter killed by patient who told shrink wanted to kill her; shrink told U cops who questioned and released Poddar.
Ct: When therapist knows patient will act on violent intentions, duty to warn targets of threats
 Rule: Once a therapist determines a patient poses a serious danger of violence to a others, she has a duty to warn a foreseeable victim of that danger (reasonable
person duty)
1.
Special Relationship between Therapist and Patient, or Therapist and Third Party.
2.
Determines, or should determine in accordance with the special skills of her profession, of the potential danger. (Kind of a breach of duty question.)
3. Foreseeable Victim. (Often seen as requiring a specific and immediate threat to a specific or readily identifiable victim. In general, this is largely a question of
foreseeability once a special relationship has been determined)
POLICY – Epstein – Good Samaritan
Causation – critique – Per Estein, there is an inherent problem with causation. He argues that the concept of causation is so hypothetical and theoretical, and without
“merit, philosophic or otherwise”, that it provides the courts “as a matter of policy, the reason to decide cases in one way rather than the other”. He argues that they don’t
have “one true meaning”, but rather, have “no meaning worth bothering about at all, but are used as a mere disguise for arbitrary decision or judicial policy”. He argues
that “proximate cause” gives courtrooms freedom to engage in “creative decisions of social policies” and masks “the underlying policy considerations, which need not even
pay lip service to precedent”. Through cause, “we may be expressing any number of ideas”. Rather, courts should look to who had the volition, not “but for” test.
• Authors theories allow for the extension to areas in which law has traditionally not allowed recovery.
• Traditionally: B is not held liable for not helping A from drowning.
• If one considers the low costs of prevention to B of rescuing A, and the serious, if not deadly, harm that A will suffer if B chooses not to rescue him, there is no reason
why carrol towing formula would not require D to come to the aid of the P. However, good Samaritan problem receives special treatment under Torts. It looks not at the
consequences of an alternate course of action, but focuses specifically on what D Did.
• Once forced exchanges, regardless of the levels of payment/action, are accepted, it will no long be possible to delineate the sphere of activities in which contracts (or
charity) will be required in order to procure desired benefits. It is impossible to tell where liberty ends and obligation begins, where contract ends and tort begins.
2 views
1) Preoccupation with the moral freedom of a given actor ignores the effects of his conduct upon other persons.
2) Undue emphasis upon the conformity to external standards of behavior entails a loss of liberty.
Distinguish between circumstances in which a person should be compelled to act for the benefit of his fellow man, and those cases where he should be allowed to do so only
if prompted by appropriate motives. When is it required, and when is it beyond the call of duty?
It may be that conduct of individuals that do not help fellow men is outrageous, but it does not follow that a legal system that doesn't enforce this duty is also
outrageous.
2) BREACH OF DUTY
A. Risk Calculus – Learned Hand
Breach of duty is measured by a normal “reasonably prudent person” standard. When judging on this standard, many courts apply some form of a risk-utility balancing
system (R2d§291). The economic ratio rationale is justified by Posner, who argues that:: If the cost of safety measures or of curtailment exceeds the benefit in accident
avoidance, society would be better off, in economic terms, to forgo accident prevention. If you make enterprises liable, then they will have to incur costs and install
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safety precautions. To determine what a reasonable person would do, you judge whether a reasonable person would foresee such an accident, and you apply the
Learned Hand Formula, which measure whether or not D’s burden of precaution is lower than the probability of the accident x the likely loss to result, set forth in US v
Carol Towing.
• A court can look to the toreseeability of the risk of injury, extent/severity of risks posed by conduct, probability that the risk will cause actual harm, possibility of alternative conduct
w/same result and lesser risk, and the cost of the conduct as compared to the cost of an alternative.
Learned Hand Formula
B < PL = D liable
(D’s burden of precaution) < ((Probability of accident) X (likely Loss to result))
Potential Issues : Assigning meaningful numbers to PL is difficult. Juries can swing widely on how to interpret L, so there may be inconsistent and excessive punitive
damages. While it is easy to judge PL ex-post, doing risk evaluation ex-ante is very difficult.
Checklist
Forseeability: According to Cardozo’s opinion in Palsgraf, duty is only owed to foreseeable P. “the risk reasonably to be foreseen is the duty to be obeyed”. The P must
be within the “zone of danger”, otherwise it is “negligence in the air”, to which the D has no duty.
Extent/Severity of Risks Posed – (US v Carol Towing – tanker breaks loose, Brotherhood Shipping – entire ship @risk)
Probability of Loss v Cost of Alternatives - (US v Carol Towing – high probability 21 hrs away, just needed bargee, Brotherhood Shipping – happened before, keep staff/redesign harbor,
post warnings, warning of dangers, easy)
Learned Hand Formula: B<PL= liable
U.S. v. Carol Towing Co. 1947 - Barge tied to pier broke loose, hit a tanker, got a hole and sank. Owners of cargo (US) sued owner of barge for bargee’s negligent
absence during accident. Bargee had been away from boat for 21 hours.
 Burden of having bargee on board (or mult bargees or chains instead of ropes) much less than the likely loss of barge and cargo in violent storm, D is liable.
Grimes v. Norfolk Railway Co. 2000 - Train conductor injured when inspecting train after collision with a car, he walked along the side of the tracks and stepped in
a bball-sized hole. Sued RR. company for not providing safe walkway. D arg. burden of building walkway on 22k miles of track outweighs likely serious injury.
Ct.: S.J. inappropriate; probability of injury was a question for the jury to evaluate conflicting testimony.
Ship w/out linesmen or pilots, harbormaster warned of storm 2 hours after weather report – no one around
Brotherhood Shipping Co. v. St. Paul Fire and Marine Insurance Co. 1993 - Ship put out of service after harbored in Port of Milwaukee when storm hit and ship in
slip right in front of opening in breakwater. ∆ knew harbor dangerous, advertised as safe w/ full amenities, but no 24h tugs, linesmen or pilots = when harbor
master warned of storm 2hrs after got weather report, no one around to put ship in safer slip.
Ct: Great probability of accident (happened before), likely loss huge (whole ship) = burden could have been very little (don’t advertise as safe, weather report
earlier); or more substantial – keep staff on 24h during storm, redesign harbor – regardless, burden > pl
 Jury needs to attach numbers to these values and decide exactly what the burden would be
Locality Rule out; national standard qualified ave. practitioner – Anesthesiologists administers 8 g of drug when 5 g is standard
Brune v. Belinkoff 1968 - Anesthesiologist in local hospital administered 8 g of drug when 5g is standard to woman birthing.
Locality Rule: Standard of medical care evaluated relative to the region’s resources and physician’s skills.
 Used same policy basis to discard locality rule in favor of standard of average qualified practitioner (national standard).
 Looked to other jurisd.; scholarly criticism, policy behind old rule to decide new rule
POLICY
According to Mark Grady’s analysis of Compliance Error – he argues that some behavior that permits error is economic. The Learned Hand Theory
shows us that the cost of reducing error to 0 is, in many cases, too costly to be justified. It is an individual efficient analysis that holds you responsible as
an individual.
Calabrisi also discusses the idea of seeking the cheapest cost avoider – contrasting negligence regimes utilizing the Learned Hand Formula with strict
liability regimes. He defines the cheapest cost avoider as the party who could most reasonably have avoided the cost of the accident at a cheaper cost
than the other. In Products Liability: the producers are generally in a better position to make a cost benefit analysis & thus may be liable, but
Negligence: sometimes consumers are in the better position to determine the appropriateness and use and adequacy of warnings, thus courts will hear
both sides to find the cheaper avoider.
Calabrisi believes that under negligence - liability fault (learned hand) regimes – you’ll get a more fair & just outcome for parties, because cases are
evaluated on a case-by-case basis. However, the downside is that in the aggregate, this doesn’t yield the most economically efficient outcome. Unlike
the strict liability regime, the cost is not fixed on particular parties either better able to pay or better able to sustain the costs. Rather, justice and
fairness are preserved at the expense of economic efficiency.
B. Role of Custom
Custom is a defense to negligence that is argued: if it is typically done, then it is reasonable to do it – if it is not, then it is not reasonable. To determine whether or not
conduct is negligence, customary conduct of the community, industry, profession an other relevant groups in similar circumstances is relevant. Custom is evidentiary, but
not conclusive. It ties in with B<PL (set forth in US v Carol Towing) b/c custom can be seen as the market equilibrium of an industry’s perception of potential risks. This
assumes that acting as most others in the industry do is not too burdensome.
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No Custom If …
a.
not consistent with ordinary prudence or due regard for safety to those using premise (Mayhew v. Sullivan Mining Co.)
b. Some have changed over to new method/product which is safe and has minimal cost, but some have not (The T.J. Hooper)
c.
An industry is dominated by a handful of companies, cannot claim custom because the companies can change the custom (Doe v. Cutter Biological, Inc.)
Burden - It ties in with B<PL b/c custom can be seen as the market equilibrium of an industry’s perception of potential risks. This assumes that acting as most others in the
industry do is not too burdensome. Custom can be seen as the market’s interpretation of B<PL because if the actors are rational, they will adopt customs that incorporate a
degree of care that minimizes overall costs.
Custom for Medical Malpractice
• Held to the skill of the average member of the profession practicing the specialty, taking into account the advances of the profession and the medical resources
available and NOT only local customs (Brune v. Belinkoff)
• Cannot claim custom if a simple, harmless test could have prevented injury. Even if patient is not within the risk group, they are entitled to the same standard of care
(Helling v. Cary)
Still must act w/ordinary prudence/due regard (regardless of custom)
Mayhew v. Sullivan Mining Co. 1884 - P fell 250ft down mining shaft through a hole cut in his work platform by agent of employer that was 3 ft wide and had no railing or
other warning of its existence. D argued this was the custom in the industry; ct. excluded testimony by witness about the customary practice.
Ct. upheld exclusion, finding that custom may be evidence of reasonable person standard, but when custom is clearly not prudent, does not absolve of liability.
Industry standard does not satisfy ordinary care – Landmark Case!
Must adopt new technologies (safe/minimal cost) – even if others have not
The T.J. Hooper 1932 - 2 barges sank after tugs pulled through a storm and were damaged. Cargo owners sued claiming tugs were unseaworthy because didn’t have radios.
Ct.: Custom to not have radios in tugs irrelevant to negligence question, because burden on acquiring and maintaining them so small, and their utility in preventing injury
so great. Even though only 1 other tug line had installed radios, ct. found that adoption of the new technology was prudent and required to avoid negligence.
Still must take precautions (negligent otherwise), (HIV screening)
Doe v. Cutter Biological Inc. 1992 - 2 hemophiliac patients who contracted HIV while using anti-clotting agent Factor VIII sued all 4 manufacturers of Factor VIII for not
taking precautions against HIV when suspected to be a blood-born virus. D arg. didn’t know how was transmitted, and no one in the industry did it. Year P’s infected 2
agencies called for screening blood supply - - Ct.: Burden of heat-treating the blood or testing donors for HIV was small; probability of HIV being a blood-born virus was
significant. • 4 members of the industry = strong evidence that industry custom = prudent standard (evidence they colluded to not take precautions). Must go to jury.
C. Statutory Negligence Per Se: Proof of Negligence
Negligence per se is the legal doctrine whereby an act is considered negligent because it violates a statute (or regulation). However, it is important to note that the violation
of a statute does not automatically equate to a finding of negligence. The statute acts as strong proof because its existence forms the basis for which care should have been
given to a certain action. However, a person can honor the intention of a statute in their violation of it (Telda v Ellman). Therefore it is important to consider the intention of
a statute in evaluating negligence per se claims, as well as the statute itself.
Test for statute to be considered evidence of negligence per se:
1. P is one of class for whose benefit statute was enacted?
2. Statute designed to protect from this injury? (YES: Martin v. Herzog, NO: Gorris v. Scott).
NY strict negligence rule: Violate statute = negligent
 Martin v. Herzog 1920 - π drove buggy w/out lights, had accident with D’s car and died. Statute required lights for night driving designed to protect against road
accidents = π’s violation of the statute = evidence of contr. negligence. • Ct. can take into account standard created by statute, or use reasonable person standard
Statute must be intended to protect from that injury
Gorris v. Scott: Ct. found statute didn’t apply because intent to prevent disease spreading on a ship, not to prevent animals (sheep) from falling overboard.
Statute not proof of negligence, but is evidence (soften NY rule)
Telda v. Ellman 1939 - Statute says must walk against traffic to prevent accidents. πs walked on other side where traffic was much lighter. Hit by car anyway.
Ct.: No contrib. neg.; π acted prudently w/in intent of the law
 Law to promote road safety won’t require strict adherence when that would cause a more dangerous situation. (greater prudence in violating statute).
Statute helps determine proximate cause – bartender/drunk driver
Vesely v. Sager 1971 - Bartender served drunk driver drinks well past closing time when he was clearly intoxicated and the only road out was a windy mountain road.
Drinker hit another car. π sued drinker and bar for negligently serving him alcohol in violation of Alcoholic Beverage Control Act of 1935.
Ct.: Bartender knew that drinker was drunk, and that he would be driving away in a care down a windy mountain road, but continued to serve him and didn’t get him a
ride home.
 The statute against serving an intoxicated person served as evidence to support his act as a proximate cause of the accident – foreseeability of action causing injury
makes liable.
Only used when statute applies – unlicensed chiropractor not barred by statute because he was skilled (not unskilled)
Brown v. Shyne 1926 - Unlicensed chiropractor paralyzed π in treating her. - Ct.: ∆ held to standard of medical care
Statute requiring a license was only relevant if didn’t have requisite skill and knowledge of the average license practitioner, because the statute was intended to protect
people from unskilled practitioners.
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 If unlicensed chiropractor skilled not neg. under the statute for not having a license.
Causal connection between lack of license and injury = statute is indirect evidence of lack of skill.
Require P to take reasonable precautions; policy to protect the RR from burdens of liability that would hamper their development, so not required to build barriers for cars
Baltimore & Ohio R.R. v. Goodman 1927 - Driver hit by train and killed. Ct. driver had a duty of care to get out of his car and look for the train, so contributory negligence
Extraordinary circumstances = different standard of care
Pokora v. Wabash RY. 1934 - Driver also hit by train. Ct. found no duty to stop, b/c in order to see around the bend, would have to stop on the train tracks in an extremely dangerous situation.
If employee uses despite company’s rules – Co still liable
Wilkerson v. McCarthy - RR worker injured when walking on planks commonly used by workers, but set up for mechanics working underneath the cars. Worker slipped and
fell because were greasy and not safely maintained. D arg. took precaution by putting up rope indicating that workers were not supposed to used the planks. Workers still
did use them, so ct. said jury needed to decide question of fact if employees habitually used the walkways.
D. Res Ipsa Loquitur
Res Ipsa Loquitur is a common theory for tort liability in determining negligence. It means “the thing (facts) speaks for itself”. Under this theory, P’s can use circumstantial
evidence to meet the burden of proof. It enables the jury to infer that D acted unreasonably without any further proof. Normally, the P has to prove by the preponderance
of the evidence that D was negligent. Res Ipsa Loquitour inverts this burden upon the D (normally, because the D is the only one who can prove non-negligence). It does
not mean that automatically is liable, only that if P can establish a prima facie res ipsa case, he need not prove by direct or other evidence the specific conduct of D which
was negligent. This theory only applies when there is enough evidence to allow a trier of fact to come to a conclusion. This was first formulated under Byrne v Boadle.
• Burden of proof shifts to D
Elements:
1. The harm would not ordinarily have occurred without someone's negligence
2. The "thing" which caused the harm was under the exclusive control of the defendant at the time of the likely negligent act
3. There must be an absence of a reasonable explanation as to how the harm occurred.
(1) Precedent case: Prima facie case of negligence
Byrne v. Boadle 1863 Engl. - π injured when walking on street and a barrel of flour fell out of ∆’s building when lowering it from window.
 Some circumstances create a presumption of negligence - -- - ∆’s burden of proof that act was not negligent.
(2) Agent/instrumentality must be under ∆’s exclusive control or management
Larson v. St. Francis Hotel 1948 - ∆ hit by large armchair, knocked unconscious when in front of ∆’s hotel on V-J day. No one saw the accident, and chair could not be
specifically identified with the hotel. Ct.: Lacked element 3: Likely guests threw the chair, and D has no control over guests; unlikely injury (probability that chair
would be hurled out of window is low, so burden is low). • Hotel does not have exclusive control over furniture, so is not liable for injury.
(3) Must be more probable than not that injury caused by ∆’s negligence (NOT SO HERE)
Brown v. Poway Unified School District 1993 - Π injured when delivering computer equipment to school – walked down hall 5 times, on the way back fell, and found
lunchmeat on his shoe. No one saw the lunchmeat before the fall and was 9 am in hallway only staff and contractors used hallway.
Ct.: Too many alternative explanations for origin of lunchmeat • Not high probability that lunchmeat came from employee of school or that school was negligent
POLICY - Mark Grady – Res Ipsa Loquitur & Compliance Error
Res Ipsa Loquitur
Mark Grady argues that Res Ipsa Loquitur is more likely to be employed in situations of greater compliance errors. For example, in Hassman v Pacific Alaska Air Express and
Walston v Lamberstein, an airplane and crab boat respectively went missing. The courts applied res ipsa to the plane disappearance, because of the many components that
give rise to potential errors on fast, high-tech plane, where the disappearance of the slow, simple crab boat is less likely to have been caused by human error.
Technology reduces the magnitude of overall claims, by making errors less common occurrences, they increase the frequency of the claims by increasing the
responsibilities of people (ie: duty to check the radar on the plane). As a result, new technology can also increase the strength of a res ipsa case.
Compliance Error: This is a “pocket” of strict liability. Is the phenomena where despite the exercise of due care, a certain situation will inevitably arise in the course of your
life or job due to mistake. It speaks to the idea that no matter how much care is exercised, the repetition or nature of the situation at hand will make an error inevitable.
This is one potential problem with strict liability: by holding parties liable to a perfect rate of compliance, they are imposing sometimes uneconomically reasonable
standards of liability. Unlike negligence regimes, where the Learned Hand Formula distributes responsibility judged on a case-by-case individual basis, this regime imposes a
universal risk that both idealistically demands perfection at the cost of economic possibility, and replaces individual for a more corporate responsibility.
Learned Hand Formula: Some behavior that permits errors is economic. At a certain point, the cost of reducing errors to 0 is too costly to be justified. This is individually
efficient b/c it holds you responsible on an individual
3) CAUSATION
For negligence to be established, a causal relationship must exist between the D’s conduct and harm to P. The causation test consists of 2 components: (1) actual
cause, and (2) proximate cause. In order to recover, a plaintiff must sustain the burden of proof as to both.
Policy: Assigning Causation: Judges weigh many policy concerns when assigning causation. In order to further policy aims in finding the least cost avoider,
courts want to put liability on the party with the most access to information and research. In this case, it is….. [
]. Even if [ ] would not have prevented the
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injury altogether, any potential reduction in harm [ ] could have easily been passed along to the consumer, thus splitting the difference of the least cost avoider. [
] has the info/ability to [ ] with the least transaction costs, and the general public will pay the actual costs of [ ] /
Elements: (1) “cause in fact” or “actual cause”  must be established before you move to (2) “proximate cause”
A. Cause in Fact (Actual Cause) – sin qua non
The traditional (and still dominant) test for actual cause is the “but for” test. For the D to be held liable, the P must prove by a preponderance of evidence that “but
for” the D’s culpable conduct or activity, the P would not have been injured (Dillon v Twin State Gas & Electric). As seen in Lyons v Midnight Sun, negligence is not
enough, it must have caused the accident. In that case, the P pulled into the traffic light in front of the D, who hit her, and the P died. The P’s estate alleged
speeding, but the court found that speeding was not necessarily the cause of the injury. Without cause, even egregious negligence is not enough. In redundant
cause cases, many courts (and the Restatement) require that the D materially contributed to the P’s injury.
Negligence not enough w/out cause - traffic light/speeding
Lyons v. Midnight Sun 1996 -  pulled out into traffic right in front of  who hit her,  died. Alleged  was speeding
Ct: ’s action would have caused accident even if  wasn’t speeding = not the actual cause >> If didn’t cause the injury, even egregious negligence is not
liable
Rubber door mat
Dapp v. Larson 1997 -  home nurse sued homeowner when fell down stairs in rain when exiting house. When got up found rubber door mat next to her
and presumed that caused her fall, but didn’t remember if it already was at bottom of stairs before she fell.
Ct: Failed to prove that  created or had actual/constructive notice of danger: equally possible mat didn’t cause her fall
Slip in Fall Factors: 1. Dangerous condition existed
3. Failed in reasonable care to correct it
2.  knew or should have known about it; or created the condition
4.  proves caused injury
(ALTERNATIVE) Substantial Factor Test (multiple causes):
In some cases, the P’s injury was clearly caused by D, but the D’s action was not a “but for” cause. In these cases, according to 2nd Restatement of Torts §431, if
they can prove that the D’s action was a substantial factor in the P’s injury, then they can say that the “cause in fact” requirement has been met (as long as there
is no rule of law relieving the actor from liability). The substantial factor test is used by many courts as a supplement to the “but for” test when redundant
multiple causes would preclude liability under the “but for” analysis. If D’s conduct was sufficient to cause injury and/or equal in scope to other conduct that
caused injury, then its “substantial”.
YES - Substantial Factor Test – Causal factor is liable, even if there are other causes
Anderson v. Minneapolis St. Paul 1920 - ’s train ignited a bog, caused a fire 1 mo. later burned ’s property partially, and then the Great Fire combined
w/ ’s fire to burn everything.
Ct: ’s fire caused harm regardless of other fire, so is liable because it a substantial factor in the injury
If  is a causal factor is liable, even if not the only cause
Dillon v. Twin State Gas & Electric 1932 - Boy climbed up on bridge, lost balance and grabbed wire to stop from falling; shock from wire killed him.
Ct: If jury finds would have died w/out wire (and not fallen into water or broken leg), not liable. If would have been injured but not died, calculate injury
against the liability for death (jury question)
 Open to possibility  would have died in same act despite ’s negligent cause of death
Lost Opportunity Doctrine (Loss of chance to live life to the fullest) – Mathematical Probability >50% (misdiagnoses that result in death)
Allows P to recover if they can show, through expert witnesses, that there is an > 50% chance that misdiagnoses that prevent correct/prompt treatment caused
the death. The requirements for expert witness requirements are: 1) reflects scientific knowledge, method and good science, and 2) relevant to the matter at
hand. Its important to note that for the Lost Opportunity Doctrine, in some states like CA, you can only recover for injuries that result in death (Weymers v
Kehra)
NO proof of over 50%
Daubert v. Merrell Dow Pharma 1995 -  sued maker of morning sickness drug for causing birth defects in limbs. Expert testimony did not show direct link
that it doubled chance of birth defects (also disagreed w/ entire med. community and didn’t prove any assertions)
Ct: Need to show drug more likely than nature to cause defects = must at least double the chance of injury
Must result in death
Weymers v. Khera –  ill; misdiagnosed w/ resp. infection then pneumonia; actually had kidney disease. Lost 30% function due to misdiagnosis; sues for lost
opportunity. Ct: Cannot recover lost opportunity for injury less than death
• There was a 60% chance that she would have still lost her kidney functions if this hadn’t happened
B. Proximate Cause (Legal Cause)
After satisfying actual cause, the P must also demonstrate proximate cause. Polemis, Wagonmound and Palsgraf are obvious cases of cause-in-fact, but not
proximate cause. Generally speaking, there are three proximate cause tests. The first focuses on whether the defendant’s negligence directly caused the injury
without any intervening force. According to this analysis, once an actor engaged in negligent activity, she is responsible for any damage that is directly traceable
to that act (see Polemis). Courts will preclude recovery when the causal connection between the D’s conduct and the P’s injury is too attenuated, remote or
freakish to justify imposing responsibility on the D. This test has very little viability in contemporary law. The leading test (second one) for proximate cause asks
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whether the D would have reasonably foreseen, as a risk of her conduct, the general consequences or type of harm suffered by the P (see Wagon Mound). The
third test balances policy considerations. Per Anderw’s dissent in Palsgraf, proximate cause is a question of public policy, fairness and justice, and it cannot
always e reduced to a mechanical formula. As he states: “Because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to
trace a series of events beyond a certain point. This is not logic. It is practical politics.” Andrews specifies 6 factors that courts may wish to weight when
applying this test. (1) Lapse of time, (2) distance, (3) logical chain of events, (4) whether each step occurred in a logical progression, (5) intervening events and (6)
a rough sense of justice.
Policy Reasons to link person that caused the injury to the injured party? Fairness, Deterrence and incentives for future behavior, Administrative necessity,
Predictability/Consistency, Efficiency/Cost Internalizing
Elements:
(1) Direct/Remoteness Test (Foreseeability) : D’s conduct must be the actual and direct cause of P’s injury
1. Geographic closeness/remoteness
2. Temporal proximity
(2) Foreseeability:
( Old View) – Under the minority view, D is subject to liability for any consequences that are a direct result of his tortious conduct, whether or not those
consequences are foreseeable. When there is no intervening force between the D’s negligent act and the harm to the P, such harm is said to be the direct result of
the D’s act and D is liable. This was true under Polemis,  neg.dropped pank onto deck of ship when hull filled w/ leaking petrol and benzene (due to
mishandling), and plank’s contact w/ deck produced a spark that ignited entire ship. The court ruled that because the action directly caused the injury,
Foreseeability was irrelevant. Test: (1) actual injury, (2) direct result. *This case worked strangely, liability was based on hindsight. “its no the hindsight of a fool
but the foresight of a reasonable man that can alone determine responsibility”
New View – Foreseeability
Wagonmound overturned the old rule under Polemis, by establishing that D’s are only liable for directly foreseeable injuries. This is now the prevailing
rule: the P’s injury must be a foreseeable consequence that the D should have reasonably anticipated.
Oil burning on water – not foreseeable
Wagon Mound 1961 - ’s ship leaked oil into the bay, and sailed away. 2 days later construction around warf caused cotton floating on oily
water to ignite, and set oil that normally wouldn’t burn on fire, burning down the whole harbor. Ct: Fire not foreseeable = not negligent:
reverses Polemis
 Only liable for reasonably foreseeable harm, not unforeseen harms stemming from it
Risk Principle: D only has a duty to Forseeable P – within “zone of danger”, not “negligence in the air”
The foreseeability criteria have been extended to the question of to whom does the defendant owe a duty (See Palsgraf, below). The majority position in
Palsgraf requires that plaintiffs that are within the sphere of foreseeable risk. Otherwise, the D’s owe no duty to those Ps. Although most courts follow
Cardozo's approach in the Palsgraf case and limit D's liability to the foreseeable risks which made his conduct negligent, they tend to allow juries to
determine when the harm realized is too remote from D's negligence. Consequently, while proximate cause under the foreseeability test limits the types
of damages the defendant is liable for, duty may restrict to which plaintiff(s) the defendant is liable.
Palsgraf v. Long Island R. Co. 1928 - Man jumping onto moving train helped by RR guards who dislodged his package of fireworks that fell and exploded,
causing a scale further down on the platform to fall on and injure .
Ct: No duty of care to , only to man for dropping his stuff; can’t subrogate duty to package owner b.c couldn’t reasonably foresee injury to  at end of
platform
• D didn’t breach duty TO HER - “the risk reasonably to be foreseen is the duty to be obeyed”.
Natural and continuous sequence (Andres’ Palsgraft dissent)
Palsgraf (Andrews) Dissent – proximate cause is a matter of “practical politics”, “convenience” “common sense”, “public policy” and a “rough sense of
justice” – and
is established on consideration of a number of factors:
(1)
Foreseeability
(1)
Directness of connection between D’s act and P’s harm
(2)
Whether there was a natural and continuous sequence between the two
(3)
Whether the act was a substantial factor in causing the harm
(4)
Whether the harm was too remote in time and space
Eggshell Rule
• Ps are held liable to Ds even though their injuries are a combination of foreseeable and unforeseeable injuries.
• The P is said to have taken the D as he found him, regardless of any deficits or prior conditions of the defendant.
Vosburg v. Putney 1891 - Boy kicked another in shin that happened to be infected;  didn’t know, but still liable for whole injury
Stoleson v. US 1983 - Worker in nitroglycerin factory got heart contractions when went home for weekend, cause nitro expanded valves and they
contracted when not exposed. Claimed caused her to become hypochondriac
Ct: If had evidence caused hypochondria could recover, but didn’t prove  substantial factor in causation
Exemption: Intervening v Superseding Cause
General rule: ∆ may be liable, even in the presence of intervening human causes “where the acts of a third person intervene between the ∆’s conduct
and π’s injury, the causal connection is not automatically severed”. However, defendant is relieved from liability if there is a superseding intervening
force. An intervening force is a new force which joins with the defendant’s conduct to cause the plaintiff’s injury. Applying the forseeability test, only
superseding intervening forces preclude liability. It occurs after the defendant’s conduct. It can be a force of nature or a person. Extraordinary
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unforeseen intervening acts may be superceding and break causal nexus/chain.
•
•
•
•
Elements:
Independent of the original act.
Adequate by itself to bring about the injury.
Not reasonably foreseeable or anticipated.
Criminal acts may be foreseeable if a recognizable percentage of people would be tempted (can’t be a fringe group or occasional irrational person).
*Extraordinary unforeseen events may be superseding – usually depends on how improbable/unforeseeable the intervening force is
The Restatement (§435) adopts a middle view (failed to gain general acceptance). Under the Restatement, liability will not be restricted
merely because the actor could not foresee the extent or the manner in which the harm occurred. Liability will be restricted on grounds of
lack of proximate cause if “looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it
should have brought about the harm.” So, bases proximate cause on what, in hindsight, may be considered extraordinary.
YES – Created Forseeable Public Hazard
Weirum v. RKO 1975 - Radio station pop. w/ teenagers contest to first find personality driving around LA. 2 listeners raced to catch him first,caused
accident on highway.
YES – Thieves Forseeable
Brauer v. NY Central RR 1918 -  hit by train, and all stuff in his wagon stolen. Train had 2 detectives, but didn’t protect ’s stuff
YES – Forseeable loaded air rifle – Negligent Seller
Herman v. Marhkam Air Rifle Co 1918 -  shipped air rifle that was loaded; went on store display floor and customer pulled trigger, shooting clerk in
eye
YES – EXTREME Intervening cause (molten enamel) – foreseeable b/c depended on the same risk D negligent for creating
Derdiarian v. Felix Contracting Co -  workman on unprotected site near rd. when driver had a seizure, drove into worksite and  burned by 400
enamel
YES – Truck left in dangerous spot - forseeable
Marshall v. Nugent 1955 - ’s truck cut corner,  swerved to avoid and skidded into bank in snow.  got out to help, left truck at dangerous spot on hill
and asked  to warn oncoming drivers.  walked up hill as Nugent (let off) came down and hit him.
Not Liable
NO –Gross negligence = Superseding (manufacturer not liable) – firemen/heat blocks
McLaughlin v. Mine Safety - Girl nearly drowned; nurse attended to and fireman gave her ’s heat blocks to warm up girl. Placed directly on skin,
despite ’s specific training of firemen never to do that, and girl got 3rd degree burns. Ct: ’s packaging irrelevant cause fireman had actual notice of
danger = he was proximate cause, not 
NO - Malicious acts of 3rd parties not forseeable
Watson v. Kentucky RR Co. 1910 - RR tanker w/ gas derailed and leaked everywhere. Disgruntled, ex-employee (3p) threw light match into + exploded
(maybe intentional)
Ct: If match intentional, is superceding cause since can’t foresee malicious acts of third parties
POLICY – Epstein – critique on causation
Causation – critique – According to Estein, there is an inherent problem with causation. He argues that the concept of causation is so hypothetical and
theoretical, and without “merit, philosophic or otherwise”, that it provides the courts “as a matter of policy, the reason to decide cases in one way
rather than the other”. He argues that they don’t have “one true meaning”, but rather, have “no meaning worth bothering about at all, but are used as
a mere disguise for arbitrary decision or judicial policy”.
He argues that “proximate cause” gives the courtrooms freedom to engage in “creative decisions of social policies” and masks “the underlying policy
considerations, which need not even pay lip service to precedent”. Through cause, “we may be expressing any number of ideas”.
Rather, courts should see incidents as a combination of factors. According to Coase, cause should not play any role in determining liability. Rather,
courts should look to who had the volition, not the “but for” test.
Multiple Tortfeasors – Joint and Several Liability -
“several”=multiple D’s, “joint”=shared responsibility for total liability
(1) JOINT LIABILITY – shared responsibility (springs from shared action)
1. Actors knowingly perform tortuous act together, or;
2. Act independently but cause single indivisible tortuous injury (if injury is divisible then liability is split) == joint tortfeasers & are jointly & severally liable
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Both liable if unsure who caused – 2 shots/1 injury
Summer v. Tice 1948 - 2 ’s neg. shot in ’s direction, 1 hit in the eye, the other in the lip – no way to know which one shot eye
Ct: Both acted neg., so fair to shift the burden of proof to s to show which one actually liable
Enterprise liability: Manufactures all held jointly liable (not sure who was responsible)
Hall v. Du Pont de Nemours 1972 - kids hurt by blasting caps, that were unmarked and easily detonated by child. Manufacturers had data on kids’ frequent
injury by caps and posted signs to warn pub., but trade assoc. intentionally decided not to add warning labels.
Ct: Industry-wide standards support suing all cause trade assoc.= locus of
Need to show more likely than not one of named ’s products caused injury, but don’t need to say which one
Acting in concert – (one/both) cause injury - R2d §876
A person acts in concert to commit a tort with another when she aids or encourages another in committing the tort. This is the equivalent in tort of being a criminal
accessory or co-conspirator. If an individual intentionally aids or encourages another to commit a tort, she is as liable as the individual who actually committed the
physical acts of the tort. Both will be joint tort-feasors responsible for any resulting liability. There is no requirement that the agreement be express; a tacit
understanding is all that is necessary. There is no requirement that the encouragement be a “but for” cause of the accident. It is sufficient that the encouragement
or aid be a factor that had some impact on B’s action, even if ultimately B would have acted the same way regardless
Bierczynksi v. Rogers 1968 - Guys raced in 25 mph at 70 and 1  hit , ’s car did not contact ’s - RACING CARS
Ct: Acting in concert = “liable for hard to 3rd person arising from tortuous conduct of another because he induced and encourages the tort” R2d §876
(2) SEVERAL LIABILITY – Multiple Independent Tortfeasers – (springs from separate acts) - apportion by % fault
Market Share Liability: Each  liable for % market share unless can prove didn’t supply neg. product
Can sue all manufacturers when unsure who caused – burden shifts to Ds to prove didn’t supply harmful drug
Sindell v. Abbott Labroatories 1980 - ’s mom took DES to prevent miscarriage, but caused ’s cancer, and sued all 200 manufacturers
Ct: ’s burden to prove couldn’t have supplied the harmful drug
• Each  liable for portion of market share, unless can prove couldn’t have possibly made drug caused ’s injuries
(3) Damages – Pro Rata and Comparative Fault – 2 Types
Uniform Contribution Among Tortfeasors Act – Under the joint tortfeasers act, each D is responsible for the entire damages. While the P can only recover once,
they will get everything. The D through which they receive initial damages then has the opportunity to be indemnified from the other P’s. For policy reasons,
courts like this policy because it shifts the burden of proof to the D’s when the P’s don’t know who is liable. Unfortunately, the result is that the “deep pocket” D,
who is party responsible for the P’s injury, may be required to pay all of the damages, or at least, a disproportionate share.
Carolina v Hill – In an indivisible injury, you can sue one person and get all the damages. Don’t have to sue both.
(1) Joint Liability – Pro Rata
• Judgment proof: Some parties have no $ to recover, and  chosen to pay out will eat their share
(2)
Several Liability - Comparative Fault – liability by % fault
• Parties only responsible for their fair share, if responsible party is not joined, P may not get full recovery
Comparative Fault w/ Contribution – Neo-Joint and Several Liability (most commonly used today): Jury assigns % fault to each party, P can collect from one D, and he
has action of contribution against other D’s R2d§32: Most commonly used today: comparative w/ contribution
Contribution: D req to pay P more than her share of the damage judgment (under either a pro rata or a comparative system) can now seek in most states
appropriate contribution from her co-tortfeasor. Indemnification is total reimbursement. D’s liability is completely shifted to the other tortfeasor.
Policy: 1. Liability to those in best position to avoid injury (make products safer) 2. Spreads costs and risk efficiently (better way for  to recover) 3. Fairness: those
who benefit from the cause of injury should pay 4. Lets  recover when can’t possibly know which  is cause of injury
Replaced pro-rata w/ Comparative Fault regime (+ Contribution)
Bervots v. Harde Falls Pontiac-Olds, Inc 1994 -  drinking and crashed car w/  in it; injured
Ct: TN abolished joint and several liability in McIntyre
 Compensation-driven:  can fully recover from  through contribution, even though using comparative fault
Indemnity - One party agrees to reimburse another for damage or loss suffered
a. Contractual Indemnity: K dictates who pays when sued: ie: Indemnity clause; 50/50 clause; no clause
b. Implied Indemnity: Ct. assigns indemnity as matter of law (usually in commercial, not personal relationships)

Allows  to sue retailer, retailer can then implead manufacturer. Consumer can sue manufacturer, retailer and purchaser.

Goal: Consumer compensation: Accepts difficulties imposed on business since they are in the best position to bear the cost and reduce the harms
Pro-rata contribution v. Indemnity – Doctor & Lab both share the fault, neither are Indemnified
NHL v Ahmadi -  spine lesion caused by 1 of 3 possibilities: Doc tested B12 deficiency, lab came up falsely negative. Docs trusted lab results. L8r in SF hospital doc.
diagnosed B12 w/out getting blood test back.  permanently paralyzed due to misdiagnosis. Docs settled & want  to pay pro-rata share of $10M verdict.
1. Lab didn’t indemnify Neuro Center because NC had ample time to doubt NHL test results.
2.  responsible for 50% pro-rata share of liability, since each had equal fault in negligent test results and misdiagnosis
DAMAGES (question for Jury)
Generally, liable D’s are responsible for paying compensatory damages. There are three types available to Ps: Pecuniary and non-pecuniary (to deter),
and punitive (to punish). The goal of Tort Law, according to Judge Wachtler, is to put the wronged party in the same position he/she was in prior to the
injury. It creates a deterrence mechanism for the wrong party to not do that same wrongful action again. Under the moral theory, the goal is fair
restitution, to correct a wrong and make the P “whole”. Under the economic theory, damages deter the same actions from being made again, and
promote efficient safety. Its important to note that the government does not tax damage awards. Rather, P gets to keep the lump sum once they pay
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their lawyer (and customarily, expert witnesses)
TO DETER:
Non-pecuniary:
(1) Pain and Suffering
(2) Inability to engage in certain activities
expenses)
(3) Loss of enjoyment of Life (McDougald)
(3) Loss of consortium: Familial relationships $ for lost companionship
Pecuniary
(1) Lost Wages (present and future)
(2) Medical Expenses (present and future) (care-taking
TO PUNISH – Punitive Damages
(1) PECUNIARY
Medical Expenses (+)
Future earnings (Income – Discount = Real Rate of Return)
Old: Total Offset Method
The first stage in CALCULATING
an appropriate award for LOST EARNINGS involves an estimate of what the lost stream of income would have been. This is
generally an estimate of after-tax payments, one for each year of the worker’s anticipated remaining career, had he not been injured. With sufficient proof, some
courts will allow the trier of fact to increase that figure to reflect foreseeable future societal and individual factors. This includes growth in the worker’s industry, as
well as foreseeable promotions, etc. The jury faces a number of uncertainties in this process. It can be difficult to predict specific future procedures, treatments, or
lost wages – there is a lot of guesswork involved, even with expert testimony. Different jurisdictions have diff approaches: some allow juries to hear evidence
regarding what would have been P’s profession, and what would have been P’s tax bracket in the future, etc. Other jurisdictions do not allow such evidence. The
courts in Jones & Laughlin Steel Corp v Pfeiffer acknowledged this uncertainty, saying that the calculation of lost earnings represents a “rough and ready” effort to put
the P in the position he would have been in had he not been injured.
There are courts that have adopted the TOTAL OFFSET MEASURE. According to those courts (ie: PA), this goal “respects” the twin goals of considering future
inflation and discounting to present value, and eliminates the need to make calculations about either because “the inflation and discount rates are legally presumed
to be equal and cancel one another”. The policy behind this is the discount should not apply because P’s are not fully compensated, regardless, having paid expenses
and attorney fees that they will not get back. Courts that implement this method generally believe that this is a more fair return of the P to status quo and full
compensation.
This method was rejected in Jones & Laughlin Steel Corp v Pfeiffer, which adopted the DISCOUNT METHOD – arguing that a damage award paid in a lump
sum at the conclusion of litigation will result in a windfall for the P, because it can be invested and will earn additional money. As a result, they feel that the
award should be discounted through a discount rate, based on the rate of interest that would be earned on the “best and safest investments”. The court in
this situation may choose to follow the discount method set forth in Jones & Laughlin Steel Corp. Here, the courts acknowledged §5 of the Harbor’s
Worker’s Compensation Act through which Congress gave general context for the award of damages, and decided that if the estimated lost stream of future
earnings is calculated to include price inflation & other individual/societal factors, then the proper discount rate should be the after-tax market interest
rate.
Policy: While this method encourages people to invest, to some extent, Ps still lose their expenses in attorney fees. In addition, not all Ps will invest their
money, and those who invest may not invest in the “safe” investments that the court will assume. Like we commonly see, these are the issues that tort law
faces. While courts try to determine what is the most fair vehicle of compensating Ps, the reality is that no P is perfectly returned to the status quo.
Discount Method (Rejects Total Offset Method)
Jones & Laughlin Steel Corp v. Pfeiffer 1983 -  fell on ice on barge. Sued employed under Longshoreman’s Act (usually Worker’s Comp = can’t sue
employer)
Dist. Ct: wage at time of injury – what can earn w/ injury – comp. payments + pain and suffering
(1) Rejects total offset method (" future inflation balances out with future interest rates." – YOU MUST DISCOUNT
Despite ruling many cts. still do use total offset: saying interest rate = inflation rate
(2) Lost Earnings Calculations:
(1) Lost stream of income (After tax basis, life of employee, individualized factors relevant, assume cost of living increases based on CPI)
(2) (DISCOUNTED TO) Present value using same assumptions about investment and inflation used in Step 1
(2) NON-PECUNIARY DAMAGES
(1) Pain and Suffering
Pain and suffering were not always awarded in tort law. There were and are still many arguments against it. There are those who argue that awarding of non-pecuniary
damages undermine two essential values of tort law: rationality and predictability. They argue that the addition of these damages create an unbalance and inestimable
$200 billion industry in tort law on arbitrary values and calculations. However, I would argue that the tort system should not overhaul granting non-pecuniary damages,
despite this argument. There are those who look to gauge consumer interest through the marketplace and economic system, and note that the absence of pain-and-
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suffering insurance indicates that there is a lack of consumer demand for this type of protection. However, I would argue that the contrary is true – it is because we do
not have a system in place that protects these very legitimate interests to people as human beings that we need tort law. Tort law is the best means through which we
can compensate people for the pain and suffering they receive needlessly at the hands of another.
John Bronsteen (Hedonic Adaption) brings a different perspective, arguing that over time, chock and anguish dissipate as people adapt to new realities in their
lives (referencing Dr. Dan Gottlieb). He argues that the pain and suffering experienced is much greater immediately after injury, than it is 5 years later, after the P has
had an opportunity to adjust. Per his argument, the court may decide that delaying litigation will provide a great opportunity for settlement.
Non-pecuniary expenses can be excessive (3x pecuniary)
Seffert v. LA Transit Lines -  caught in bus door and dragged down street. Serious painful injuries (many surgeries, skin grafting, fluid oozing…) will require med.
care for rest of life. 40 yr. single woman.
Pecuniary damages: $53k itemized for 34yrs of life w/ med. costs and lost earnings (accident to trial)
Non-pecuniary (3x pecuniary): $184k excessive for pain and suffering
Ct: Was this excessive? NO. Damages supported by evidence (humiliation, disfigurement, etc)
Must be Aware/Awake to get suffering $
McDougald v. Garber 1989 -  in coma due to malpractice during child birth. Jury: $1M P$S; $5.1M future earnings, custodial care; $3.5M loss of pleasure and
enjoyment of life. Can get loss of enjoyment when unconscious? Ct: Cognitive awareness is a prerequisite for loss of enjoyment of life; no awareness that has lost
life enjoyment • Pain and suffering = loss and enjoyment of life
Dissent: Arbitrary and unfair line: more damage and less cognizant get smaller award. Loss and enjoyment should be diff. from P&S: suffering = emotional suffering
from physical pain. All damages of incapacitated  go to family anyway, so why can’t get this one too? Isn’t just punitive
Collateral Source Rule
It does not matter if there is a collateral source of payment: Your entitlement to recovery in a tort action is not diminished by insurance coverage. In fact, evidence cant be introduced at trial. Ps
in personal injury actions can still recover full damages even though they already have received compensation for their injuries from such “collateral sources” as medical insurance, disability
benefits, names peril disability insurance, workers compensation, government payments, life insurance, inheritance/trust fund accessibility, special public/private funds (Red Cross and similar
charities). For example, in Seffer, the P was caught in the bus door and dragged down the street, incurring numerous serious painful injuries that required medical care for the rest of her life. In
her case, even if P’s medical costs i were covered by insurance, she still can receive full recovery – she does not have to put her damages towards medical bill payments even if insurance co.
already paid.
This rule is beneficial b/c without it there is no incentive for people to insure against unforeseen income loss. Public policy wants to encourage people to have these policies (society doesn’t like
to have people on welfare) Argument against would be that the goal of torts is to compensate the P, and not to punish them. The collateral source rule could arguably render the purpose into
punishment, by overcompensating the P.
o
Exception:
• Suing same entity (government, and getting gov health care)
• Subrogation: Sometimes insurance companies have a subrogate liability rule – wont award if they are collecting elsewhere
Collateral source rule- can still collect even w/ insurance – (can’t introduce evidence that med bills paid by collateral source)
Helfend v. So. Ca Rapid Transit District 1970 - ’s bus hit ’s car – injuries:  got $16k.  arg should be allowed to introduce evidence med bills paid by
collateral source Ct: Collateral source rule prohibits introduction of such evidence •  invested in insurance and  shouldn’t benefit from ’s prudence
Besides, collateral $ pays for attorney, so  really is made whole
Mitigation -  must take reasonable steps to mitigate injuries: must seek medical care
• Doesn’t have to undergo risky/dangerous surgery or when risks>marginal benefit
• ’s burden to prove lack of mitigation increased injuries to get  damages (comp. neg.)
If cant afford the treatment, its ok. Doesn’t have to undergo risky/dangerous surgery when risk>benefit
Colton v. Benes 1963 -  back injury: doc. recommended spinal fusion operation; not 100% effective and 2 wks recovery time.  intended to have surgery but
couldn’t afford it, so didn’t. Ct:  needs to show financial situation precluded him from having operation --- If really can’t afford, not mitigating factor in damages
(2) Loss of Consortium
Virtually all states have recognized the loss of consortium (loss of the benefits that one spouse is entitled to receive from the other, including companionship, cooperation,
aid, affection and sexual relations) action for both spouses. But you generally must be married. This has been extended to parents for the loss of consortium from an
injured child (but not visa-versa). This claim will be hindered if the injured party does not go along with the claim. The jury, as trier of fact, is responsible for determining
the amount of the damage award. However, the judge (acting basically as a 13th juror) has the discretion to reduce the jury’s damage award when judge determines
award is excessive
POLICY - Martha Chamallas w/Linda Kerber - Women, Mothers, and the Fright of Law: A History
• The common law rule of allowing spousal consortium for men but not women is an example of the bias
-Men could recover because the services of a women and can be materially valued. The man can repair this by hiring another servant
-On the other hand, the wife only sustains the loss of comfort of her husband and affection, which the law cannot estimate or remedy.
• The fact that when the husband was P the loss was material, while if the wife was P it was emotional harm shows the asymmetry of the legal system against women.
• A similar mentality was applied to infidelity, where if the husband cheats the wife does not necessarily lose the consortium, but if the wife cheats, the wife is lost to the
husband
(3) Punitive Damages – to punish (criminal element in torts)
Punitive damages allow for damages beyond compensatory damages – the plaintiff is left better off than before the accident. Despite the fact that the purpose of
tort liability is to bring P back to condition ex ante, the condition s(he) was in before the accident. The court may choose to allow these damages in this case and
allow P benefit in this way to deter wrongful behavior and punish tortfeasers for their willful and wanton actions. They may also choose to do this to reward the
attorney & P for taking initiative to address wrongful conduct. This creates positive social policies. In addition, because lawyers take a portion of the damage award in
fees, these additional punitive measures really just bring the P into an ex-ante condition. I would argue that tort actions systematically undercompensate, and that
restoration of a P to ex-ante condition is a fantasy, rather than a practical result. In light of this, punitive damages are not impractical.
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Arguments against punitive damages. There are those who argue that it undermines the insurance system, and that punitive damages are a form of double
punishment. They argue that this is a more criminal element that does not belong in torts, but in criminal law.
Hrafnkel’s Saga 10th c Icelandic tale - Landowner dedicates favorite horse to his diety and vows to kill anyone who rides it. One of his shepards, the indigent son of a
neighbor, needs to ride it to complete his task. Horse returned to Hraknkel dirty, sweaty and braying, and he knew what had happened, and killed his employee. The family
demanded restitution = concept that when someone is hurt they should be compensated. Went to “rock ct” where whoever brings most thugs wins, and loser gives up all
land and/or is tortured. Moral: All liability contingent on having civil and criminal justice systems- distinct but not totally diff.
Malicious Intent (Cant recover for negligence) – only allowed where tortfeasers has malicious, oppressive intent. Allowed in a suit for battery, and in certain cases for defamation,
malicious prosecution, misrepresentation, and products liability cases
• Not allowed for negligence cases, tho some states permit if D engaged in “reckless” conduct (ie: drunk driving). Reckless is close enough to intent (Taylor)
Can’t be excessive: Must bear relation to actual damages
• 14th Amend; Excessive damages may be unconstitutional if deprive of property w/o Due Process:
• Some states have caps
Excessive – bore no relation to actual damages – Jurors wanted to punish Strum Ruger for all wrongs (abuse of discretion)
Strum, Ruger & Co. v. Day 1979 -  shot himself in foot when safety was on gun (it slipped and he pulled the trigger). Found that manufacturer knew there was
a defect, and decided not to spent the extra $1.93/gun to fix it. Jury: $2.8M
(1) If D acted with reckless indifference, maliciously or wantonly, punitive damages can be awarded (on top of compensatory damages)
(2) They must bear some reasonable proportion to actual damages
Factors to consider: amt of litigation expenses, seriousness of hazard to public, profitability of marketing misconduct, attitude of D on discovery of misconduct,
degree of manu’s awarness to hazard, duration of marketing/cover-up, financial condition of enterprise and effect of judgment, total punishment of enterprise
Can only be to Plaintiff – not non-parties. Torts against other parties = class action/excessive
State Farm v Campbell 2003 - Campbell passed 6 trucks on 2-lane hwy; caused Slusher to hit and kill Opital; Slusher injured. State Farm pushed Campbell into taking claim
to ct., wouldn’t settle for $50k; promised everything okay, don’t need separate council. Then refused to pay for the $185k award above $50k. Deal w/ ’s to not enforce
judgment if gave 90% claim against State Farm for neg.
• Campbell demonstrated policy of pushing clients into ct. and awarded $2.5M actual damages and $145M in punitive.
SCOTUS: Can’t award pun. damages based on torts against other parties – total conspiracy $ not for 
Dissent: Ginsberg emphasizes horrific nature harm suffered by victim (they clearly had a deliberate policy to push people into ct. and trained employees to carry it out);
fed. ct. shouldn’t second guess state ct.’s determination.
(4) Wrongful Death and Survivorship
(1) Wrongful Death
Under the old common law rule, there was no recovery for wrongful death. However, under modern tort law, spouses, children, dependants, parents, siblings (some
states) granted right to sue by statute in every state.
• Recoverable Damages: Damages are measured by the loss survivors incur.
(a) Pecuniary Loses (Traditional)
(b) Intangible losses such as loss of consortium, emotional support, etc.
(c) Can discount damages by cost dead child no longer incurring (Bullard v Barnes)
For a Child - no lost wages + discount cost to raise child
Bullard v. Barnes 1984- ’s kid in horrible car accident and died.  to recover for wrongful death of child.
Ct: Can recover lost society of child, not lost wages. BUT, must discount recovery by cost to raise the child no longer spent
For a Fetus – can recover
O’Grady v. Brown 1983 -  lost fetus 10 days before due date (bc ruptured uterus) due to doc’s negligence: Is it a person under statute? Ct: Under goals of statute to
compensate, deter and punish, and fetus itself has an interest to be protected • While fetus not person under 14th Amend. can be person under wrongful death statute
ALT arg by Allen: Arbitrary to say is person 10 days before comes out, rather than 10 days later
Allen Solution: Instead of wrongful death, recover for negligence against mother for severe injury to her
Wrongful Life - mom/dad have vasectomy but still have baby, sue doctor. Usually courts don’t allow this bc life is a positive thing. But you can argue for
baby born with disability (but for negligence, baby has disabilities))—prof raises to show that we don’t have this all figured out.
(2) Survivorship
Evidence of survival after the accident allows the P’s estate to collect damage awards. The twisted irony of this element of torts is that the more suffering that can be proven, the more the family
can recover. In other words, per our class discussion, were the astronauts in Challenger to die instantly, the family would have had less to recover. But should they have suffered for a few
moments before dying, the family would have more to recover.
1. Claim does not die w/ person - ongoing suit cont. by estate (including against dead , except no punitive damages) - Estate can bring any action  could have
2. Can sue for P&S, lost wages and med. expenses in few days between accident and death (Murphy)
3. No punitive damages
Murphy v. Martin Oil Company 1974 -  lived for 9 days after accident b4 died. Survival action for lost wages, property and P&S for 9 days?
Ct: Extends survivor statute from actions that weren’t cause of death to those that were Can sue for: P&S, lost wages/med. expenses in days btwn accident
and death
V. Defenses - Aside from denials of duty, breach or causation, can plead affirmative defenses
Lack of Standing:  unable to make that suit – eg. can’t sue for wrongful death of neighbor
Immunity: Can’t sue gov’t for functions – eg. can’t sue for injury in war, can’t sue city for neg. trash pickup
(1) Contributory Negligence – D not negligent if P is negligent too (very strict!)
In very few jurisdictions, the D can plead the defense of Contributory Negligence. This doctrine imposes on the P the same standard of negligence imposed on P (duty,
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reasonable person standard, breach, causation). By this standard, P’s negligence must have caused the accident, though not necessarily the injury.
Only a few states still have this strict doctrine (AL, MD, NC, VA). The restatement defines this as “Conduct on the part of the plaintiff which falls below the standard of
conduct to which he should conform for his own protection, and which is a legally contributing b/c cooperating with the negligence of the defendant in bringing about
the plaintiff’s harm.” §463 (Note, the 3d Restatement now endorses comparative negligence). This very strict doctrine is balanced by the Last Clear Chance Rule,
designed to minimize the strict rule of contributory negligence, stating that the doctrine of contributory negligence applies only when D's negligence is later in time
than P's contributory negligence. This gives the P a small window of recovery. This is also refered to by the Discovered Peril Doctrine: If you discover peril while being
negligent and do nothing about it, then your negligence can trump contrib. negligence of P
• Same standard of negligence imposed on  (duty, reasonable person standard, breach, causation) – P’s negl. Must cause accident, not necc. Injury
• Exception: Children!
Last Clear Chance Rule: D is still liable if he could have avoided accident
Used to minimize the strict rule of contributory negligence. Gives a small window of opportunity to partially liable P.
Davies v. Mann - Ct. allowed  to recover despite admitted contributory negligence, because  could have avoided accident
P must exercise ordinary care to recover
Butterfield v. Forrester 1809 -  placed pole across part of rd.,  riding very fast in the evening, didn’t see it and horse went down.
Ct: ’s negligence bars recovery because had he been using ordinary care, he would have seen the pole and not be hurt
Brown v. Kendall 1850 - Jury instruction if  not using ordinary care, whether or not  was,  couldn’t recover for eye put out w/ stick
(2) Comparative Negligence
In most jurisdictions, the D can plead the defense of Comparative Negligence. This doctrine imposes on the P the same standard of negligence imposed on P (duty,
reasonable person standard, breach, causation). By this standard, P’s negligence must have caused the accident, though not necessarily the injury. There are two types
of comparative negligence theories: pure comparative at fault, which allows P to recover as long as his negligence is <100%, as determined by the jury, and comparative
fault at bar, which allows P to recover only if his negligence is <50%.
• Most courts consider the negligence of multiple defendants in the aggregate, permitting a plaintiff to recover something if his fault is less than the combined
negligence of the defendants.
Pure Comparative at Fault – If P’s fault <100%, then P can recover
Has been adopted by 12 states. Under this approach, plaintiffs can recover some percentage from liable defendants, regardless of the extent of their own negligence.
If, for example, the plaintiff A is 60% responsible for an accident with defendant B, A can still recover 40 % of the damages. Problem: Lets  95% at fault to recover. This
can also mean that  who is 5% at fault will have to pay more than 95% liable . The percentages are of the damages owed to the opposing party. These may very well
NOT be equal. As a result, a party that is mostly culpable for the accident, but who has a very high cost of damages, may still recover a greater dollar amount
• Each party owes other party for % of fault
(eg.  injury $1k, 10% fault; ’s injury $10k, 90% fault =  pays $900  pays $1000)
• No Contribution
Comparative Fault at Bar – P’s fault must be <50% to recover
Under this modified system, plaintiffs are allowed a partial recovery just as in pure comparative negligence, until the plaintiff reaches a certain level of culpability for
her own accident. Once the plaintiff reaches this level of culpability, the plaintiff is completely barred from any recovery just as in contributory negligence. This
percentage is 50% in many states, but can be lower in others. Ct.s prefer this method, since unfair to let substantially negligent  recover
•  recovers % of damages that ’s contrib. neg was < each of s
• With or without contribution
Bradly v. Appalation Power - Discussion of diff. comparative fault regimes. Decides on comparative fault at bar. P’s liability lower than 50%, can recover.
Helmet/Seatbelt Defense
1. Wearing a seatbelt and helmet are considered ordinary care
2. Juries calculate % of injury caused by not wearing
3. Statute requiring use not required
4. Some states bar recovery if injury 50% or more caused by not wearing helmet
Other states don’t allow defense at all
Stehlik v. Rhods 2002 -  had party, let guests ride ATV at night in woods while drinking w/out helmets. Had helmets available.  professional driver, currently a
cop, accident while kid in lap, no helmet, hit head. Ct: Seat belt rule applies to helmets: based on ordinary care standard, not wearing helmet imprudent
 If neg. for not wearing helmet caused ≥ inury =  barred from recovery; damages limited by helmet neg.
POLICY
Contributory Negligence: George Fletcher sets forth the rational behind contributory negligence in his theory of non-reciprocal risk-taking paradigm of reciprocity: arguing
that risk should be borne by the party who created it. If the victim creates the risk that “unduly exceeds the reciprocal norm, we say that he is contributorily negligent and
deny recovery. The paradigm of reciprocity accounts for the denial of recovery when the victim imposes excessive risks on the D, for the effect of contributory negligence is
to render the risks again reciprocal, and the D’s risk-taking does not subject the victim to a relative deprivation of security”. In other words, the P’s risky activities counterbalance the risky activities of the P, and there is no longer an unequal or “non-reciprocal” taking of risks. Rather, they are even, and recovery is barred.
• “The paradigm of reciprocity holds that in all communities of reciprocal risks, those who cause damage ought not to be held liable”
(3) Assumption of Risk
This defense traditionally existed as a complete defense to negligence. The Restatement defined assumption of risk as: “A plaintiff who fully understands a risk of harm to
himself or his things caused by the defendant’s conduct or by the condition of the defendant’s land or chattels, and who nevertheless voluntarily chooses to enter or
remain, or to permit his things to enter or remain within the area of that risk, under the circumstances that manifest his willingness to accept it, is not entitled to
recover…”. Under the Common law rule – if P assumes risk then there is no liability. Davenport softens this rule by saying even if he assumed some risk, there is still some
liability. This defense is based on the notion that “The willing are not injured” – volenti non fit injuria
Elements:
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1.  must have knowledge of the facts of danger
2.  must know that the condition is dangerous (SUBJECTIVE STANDARD)

P must have actual and conscious knowledge of the particular risk

P must also know the magnitude and implications of the particular risk
3.  must appreciate the nature and extent of the danger
4.  must voluntarily expose himself to the danger

Term involuntary can encompass a range of actions, from truly coerced actions to those which would be unreasonably difficult to avoid.

The court’s sympathy to the P or empathy for her predicament may influence its interpretation of what is voluntary
2 Types: Express and Implied
(1) Express Assumption of Risk: Sign K assuming all risk, overtly agreed
Complete defense to the specific risks that the plaintiff has agreed to assume. Express assumption of risk can be written or oral.
• Express assumption of risk can be invalidated when it would be contrary to public policy.
• Courts will often invalidate agreements where plaintiffs assume the risks of very reckless conduct.
• Restatement §496B: If P, by contract or otherwise, expressly agrees to accept a risk of harm arising from D's negligent conduct, P cannot recover for
such harm, unless the agreement is invalid as contrary to public policy ()
• Requirements of an Exculpatory Agreement: Acc to the Restatement: an exculpatory agreement should be upheld if it is (1) freely and fairly made,
(2) between parties who are in an equal bargaining position, and (3) there is no social interest with which it interferes. (Restatement §496B, comment b).
Wolf v. Ford 1994 -  $ from previous lawsuit invested w/ ’s investment firm (wanted . Signed exculpatory clause in K absolving of any liability
for loss (not gross or willfully negligent loss).  w/drew nearly half of principal invested, signed renewed authorization K w/ exculpatory clause.
Later changed broker and then closed account. Sued for mishandling of funds.
Ct: Applied 6-step Tunkl test to see if fraud, unequal bargaining power, pub. interest in relationship w/ clients as members of the public.
• NO public interest in stock market: People know is risky and freedom to K allocation of risk>6 prong test here
Allen: There is pub. interest in market – Enron; people get duped by brokers and don’t understand how risky it is
Could arg. had fiduciary duty to put $ in more secure investments
Tunkl: Totality of Certainty test for invalid exculpatory clause: (Does it violate public policy?)
1. Business type suitable to public regulation
2. Engaged in service of practical necessity for some members of public.
3. Puts itself out as willing to perform for any member of public
4. Decisive advantage of bargaining strength against any member of public
5. Standardized adhesion k of exculpation
6. As a result of the trans., buyer’s person or prop. put under seller’s control
(2) Implied Assumption of Risk:
Implied assumption of risk is, as noted above, implied by the plaintiff’s conduct in relation to the risk.
Rule: If P knows, appreciates, and understands the risk of harm created by D's negligent or reckless conduct, and nevertheless voluntarily subjects himself to
the risk by conduct which impliedly manifests his consent to accept the risk, then he is subject to the assumption of risk defense. The effect of the defense
varies.
Modern Status of the Defense: There is a strong trend to abolish the defense of implied assumption of risk as a separate defense in negligence cases on
the ground that it overlaps completely with the doctrine of contributory negligence. In particular, jurisdictions adopting comparative negligence
frequently merge the defenses of contributory negligence and assumption of risk under a general "comparative fault" concept.
PRIMARY – WELL KNOWN RISK
Murphy v. Steeplechase Amusement Co., Inc 1929
 ran The Flopper ride at Coney Island. 50 ft. belt people sit or stand on w/ padding on walls; moves 7mph and people flop around on/off it. 
there w/ gf, decides to try after watching others fall. Fell – claimed belt “jerked” – and busted kneecap. Nurse testified were other injuries due to
it, but - Ct: The entire purpose/fun of the ride from the risk of falling

well aware that it caused people to fall and voluntarily decided to get on it = assumed the risk
Like skating rink – lots of accidents, but people skate on ice knowing they could fall
“The timid may stay at home” = Cardozo
SECONDARY – REPEATED USE
Davenport v. Cotton Hope Plantation Horizontal Property Regime 1998
 tenant in ’s building – reported light out in stairwell closest to apt.  didn’t fix and  fell while using stairs (didn't use handrail) in the dark –
missed a step he didn’t see.
Ct:  well aware of the danger posed by the dark stairwell, which is why he demanded it to be repaired.
He voluntarily chose to use those stairs, and knowing the danger assumed the risk of injury
Assume the risk of participation in sport, healthcare, church
Hackbart v. Cincinnati Bengals, Inc. ∆ hit π “out of frustration” on field during football game when π kneeling on the ground watching the rest of the play. Knocked both
down w/ blow. π couldn’t play, had fractured neck. – NOT SO HERE, this went byond
Vicarious Liability
Respondeat Superior: The most frequent example of vicarious liability is a situation where employers are held liable under a theory of respondeat superior for
the actions of employees within the scope of their employment. “Let the superior respond” Respondeat Superior is a “strict liability” feature in negligence law.
Employers can be held responsible even if they neither acted nor intended that the action of their employees (see Belanger v. Village Pub I, Inc.). Rather, their
responsibility is determined by whether or no the employee’s activities are “within the scope of employment”. There are 2 theories of liability: (1) Control
theory finds liability whenever the act was committed with the implied authority, acquiescence or subsequent ratification of the employer, (2) Enterprise
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theory – finds liability whenever the enterprise of the employer would have benefited by the context of the act of the employee but for the injury
The reason why: For policy reasons, court allow this to internalize the costs to 3rd parties of the enterprise’s business (Fruit v. Schreiner), because businesses
have the “deep pockets” through which P’s can collect, and because of secondary liability: technically, if the employer loses, he can then collect from the
employee. This is not dependent on fault or wrongdoing. Rather, this liability is created because of policy or practicality
Birkner criteria (for scope of employment)
1. employee must be engaged in activities for which the employer has hired the employee, not for personal endeavors.
2. employee’s conduct must occur within the hours and spatial boundaries of the employment.
3. employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.
Test/Elements:
1. Negligent act of the employee (breach of duty) - negligence of employee, whether or not employer knows (Belanger v Village Pub)
2. Causation
3. Act within scope of employment
2 Theories of Liability:
 Control theory – finds liability whenever the act was committed with the implied authority, acquiescence or subsequent ratification of the employer
 Enterprise theory – finds liability whenever the enterprise of the employer would have benefited by the context of the act of the employee but for the
injury
•
Employee
a. “independent contractor” OR “employee” (R2d of Agency § 220, Buitrago v. Rohr):
a. Extent of control over, by agreement, master has over [most significant]
b. Whether employee engaged in a distinct occupation or business
c. Kind of occupation in that area tends to be done by specialist w/out supervision
d. Skill required in particular occupation
e. Employer supplied tools/instrumentalities and place of work
f.
Length of time employed
g. Paid by time or by the job
h. Work part of employer’s regular business
i.
Parties believed had created master/servant relationship
j.
Principal is or isn’t in business
Independent Contractor not liable for
Buitrago v. Rohr 1996 -  hired to put up balloons for festival by Blockbuster franchise. After took down balloon accident when returning to motel;
he caused the accident. Ct: 10-factor test to see if independent contractor or employee: Totally diff. business, no control over his work
•
Negligent Act - Employers can be liable even for acts they expressly forbid
Bellanger v. Villiage Pub 1992 -  killed when hit by drunk driver served by ’s employee.
Ct: Master is liable for the willful torts of his servant committed w/in the scope of the servant’s employment and in furtherance of his master’s
business
 Liable “even though such acts are directly in conflict with the orders which he has given on the subject.”
•
Scope of Employment
a. Two theories of liability:
• Control theory – finds liability whenever the act was committed with the implied authority, acquiescence or subsequent ratification of the employer
• Enterprise theory – finds liability whenever the enterprise of the employer would have benefited by the context of the act of the employee but for the
injury
Socializing at a convention – employers encouraged & required the activity
Fruit v. Schreiner 1972 - Employee at mandatory convention where lots of drinking events were scheduled. Employer required employee to
provide own transit, and would reimburse; Fruit decided to drive. Got plastered at a cocktail party, fell asleep, woke up at 11 p.m. and drove to
bar to meet colleagues. Not finding them, he drove back to convention center, and hit Shreiner who was standing in front of his disabled car.
Ct: Was w/in scope of business since required to attend and socializing w/ out of state guests encouraged.
Returning to convention hotel, not home (= coming and going rule doesn’t apply)
Liable for drunk driving if benefited company
Wong-Leong v. Hawaiin Independent Refinery, Inc. 1994 - Employee intoxicated and high after party for his promotion held on work
premises; car crash and everyone died. There were many parties at employer’s picnic area; sometimes they provided beer, other times just a
cooler for beer – monthly pau hana and special event parties. Ct: Parties intended to foster good will = benefited company = no SJ
b.
c.
d.
Whether employer’s risks are incident to the enterprise (Wong-Leung)
Acts of employment need to be so connected to the employment to justify the bearing of cost
Risks Reasonably foreseeable (considering the authority of the employee) – “more or less the inevitable toll of a lawful enterprise”
Ermert v. Hartford Insurance Co 1990
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 shot in food at hunting camp by Nu-Arrow’s president. Rule against loaded guns in camp, but when saw ducks in canal loaded up in camp
anyway, and fired accidentally. Decareaux repeatedly entertained clients at camp and got a lot of business from other members and their
referrals. Also had taken employees there in the past.
Ct: Motives for participating in camp to provide place to entertain employees and customers
 Doesn’t matter act against rules of the camp; sufficient business activities to say w/in scope of employment
Exception: Frolic and Detour:
NO - Harassment by supervisors = scope of employment
Faragher v. City of Boca Raton 1998-  lifeguard sexually harassed; reported to superior, but didn’t make an “official report”. 2 mo. before 
resigned, another lifeguard reported to personnel director who reprimanded supervisors.
Ct: Frolic and detour doesn’t apply; using supervisor role to harass = w/in scope of business
Employer has greater opportunity to prevent harassment than other employees do
City didn’t disseminate harassment policy, nor supervise supervisor’s activities
Exception: Going and Coming Rule – Employer not liable for accident occurred on highway when employee was going or coming to work, unless was
w/in task of employment. Exceptions are:
• Exception: Special Errand
Dual Purpose – While traveling to or from work, also performs some additional service for the employer not common to an ordinary commute to
work
Courtless v. Joliffe 1998 - Employee was leaving work and on the way stopped to buy shocks for vehicle. hit cyclist; paraplegic. Employer
Princess made monthly payment on truck, paid for gas and maintenance costs so  could use at worksite.
Ct: May not be excluded by going and coming rule – special errand exception may apply
“when an employee, having identified time/space limits on his employment, makes and off-premises journey which would not normally be
covered in the usual going/coming rule, journey may be brought within course of employment by the fact that the trouble and time of
making journey, or special inconvenience, hazard of urgency making it in the particular circumstances is itself sufficiently substantial to
be viewed as an integral part of the service itself (Larson’s Workmen’s Compensation Law § 16.10)
Remand for more facts: Need to determine employer’s connection w/ truck and ’s purposes of travel
Special Errand Paid by Employer
Hinman v. Westinghouse Electric Co. 1970 - Employee hit someone when returning to remote worksite;  paid employees for travel time and
expenses.
• Exception: Special Hazard – which applies whenever the employee’s travel to and from work subjects the employee to special hazards not
common to other members of the traveling public. This does not include long distances
Distance to work ≠ Special Hazard
Faul v. Jelco, Inv 1979 -  employee accident when going home from ’s remote worksite Ct: Special Hazard exception to going and coming
rule: when commute subjects employee to special hazards not common to other members of traveling public.
• Other: Partners/people in partnership are vicariously liable for torts committed by each other when acting in furtherance of partnership or enterprise.
• Common law: does not impose vicarious liability on parents for torts committed by their children
• Common law: Auto owners are not liable for people who use their car
Strict Liability
Strict liability is a mechanism in tort law through which parties can be held liable even in the absence of a negligent act. It heeds to the rationale that certain hazardous
activities are prima facie negligent even in the absence of fault. It circumvents the idea that there need to be privity between a buyer and seller, and relieves the P of
the duty to prove negligence of a distant manufacturer using mass production techniques. It addresses circumstances where a party cannot reasonably prevent perils
from occuring – where there is an inherent risk.
26
Policy: Courts allow for strict liability in torts because for the sake of justice, they want Ps to be able to recover for risky decisions made by other parties. It’s a riskspreading device: manufacturers spread the risk of dangerous products amongst all consumers. It encourages those who are going to have something un-natural or
hazardous on their land to be even more careful. People will be less willing to engage in hazardous activities and it may reduce the risk of those activities in society. In
addition, it may also encourage people to get insurance.
Wild Animals R2d § 506 – always strict liability - “not by custom devoted to the service of mankind at the time and in the place in which it is kept”
Domestic Animals 2R§507
1.
2.
3.
Owner must have or should know that the animal had dangerous tendencies
Dangerous tendency resulted in an injury to claimant
Sinclair v Okata 1994 – P bitten by D’s pet dog, a repeat biter - Dog bit 2-year old Daniel. Dog had previous biting incidents (1) bit perrins with minor scratches and
cut to head (2) bit mina on arm, 2 small holes, (3) bit mizutaka who got 3 stitches in ear, (4) yumiko received medical treatment in butt, (5) another child with
injury to face + 1 stitch. D knew of dog’s “dangerous propensities”. Dog “naturally” bit people.
Holding: Ct refused to allow 5 bites to be proof that dog had dangerous propensity. O.o. Professory finds this Shocking.., Prof also wonders if there should be a
distinction btwn wild animals and domestic, if domestic animals can have violent “natural” reactions
Some states hold strict liability for all domestic animals in public places regardless of tendencies. Exception: Kendall v Brown – p stuck in eye separating dogs – cts
used negligence here
Abnormally Dangerous Activities - R2d § 519: Strict liability if it’s a abnormally/inherently dangerous, even if utmost care used
“One who carries on abnormally dangerous activities is subject to liability for harm to person, land , chattels of another resulting from activity, EVEN IF he has exercised
utmost care to prevent harm. Such strict liability is limited to the kind of harm, the risk of which makes the activity abnormally dangerous”
• (Defenses: act of God, or P’s fault)
Even a common, dangerous activity = strict liability when harm cannot be eliminated w/ exercise of reasonable caution
Siegler v Kuhlman – 1972 – P killed when she drove her car in vicinity of gasoline spill from D’s truck – (transporting 4800 gallons of gasoline on highway)
Losee – water boiler wasn’t dangerous activity – rejected b/c of importance of industrialized society


Does not usually apply to firearms and uninsulated power lines
Planes are strictly liable for damage they cause if they fall from the sky (R2d§520A), but NOT to people inside
Factors for Abnormally Dangerous (R2d§520 from Siegler v. Kuhlman)
1. High risk of harm to person, land or chattel
2. Gravity of harm likely to be great
3. Accidents couldn’t be prevented by reasonable care
look at the social value of the activity -You are then considering an “inability to eliminate risk” when applying strict liability (American Cyanamid Co)
4. Activity not a common usage
5. Inappropriate to place where occurred – risk could be significantly  by relocating
6. Value of activity to community < unavoidable risks
Exception: Negligence of Intermediary: Turns it into negligence case, not strict liability
Social Value of Activity
High social utility + Negligence of Intermediary
Indiana HB Railroad v American Cyanamid – 1990P damaged by chemical spill during transport by D. leaked 20,000 gallons and cost 1 milion.
Hazardous chemical: acrylonitrile.
Unnatural uses of land (escaping perils)
• Don’t apply strict liability when use is “ordinary, appropriate, or customary given the character of D’s and surrounding property.”
Fletcher v Rylands 1866 – P operating coal mines, D has mill, started to construct reservoir for mill (didn’t realize this was over the coal mine on D’s mill). P’s mines
flooded by reservoir built on D’s adjoining property
Holding: strict liability applies bc if he keeps water, he is responsible for the escape of the damage. “Any person who, for his own purposes, brings on his land and
collects and keeps there anything likely to do mischief if it escapes must keep it in at his peril, and if he does not do so, is answerable for all the damages which are
natural consequences of its escape” - - - Why? Because even reasonable care cannot avoid this from happening
When for own purposes, lets “anything likely to do mischief” escape and go onto P’s land
Cambridge Water Co v. Eastern Counties Leather Pic – allowed perchloreothene (solvent) from degreasing pelts at its tanning works in sawston seep
into ground beneath ECL and be conveyed in percolating water in direction of borehole
POLICY: Strict Liability
Calabrisi
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Calabrisi believes that in strict liability regimes - you’ll get the more economically efficient outcome for society, but it wont be fair & just in ALL the
cases. The problem is that there is no equitable or rational distribution – it is a fixed regime. And unlike the negligence/learned hand regime, that
determines each case on a case-by-case basis, there is always the possibility of unfairness. By fixing the risk, justice and fairness are not always
considered, and therefore, not always preserved.
Calabresi suggests that the aim of tort law, apart from the requirements of justice, is to reduce the sum of accident costs and the costs of avoiding accidents. He divides
this “reduction goal” into three subgoals: the decrease in
(1) number and severity of accidents (through forbidding specific acts/activities that cause accidents, making those activities more expensive/less attractive)
(2) reduce the social cost resulting from accidents by shifting losses through (spreading risk – over people and time, deep pocket – to the party best able to pay)
(3) costs of administering our treatment of actions
Spreading Losses: The Free Market Solution
The theoretical basis for allocating the cost at a large level is that the individual knows what is best for him. If the individual is informed of adequate alternatives and the
cost to society is reflected in the cost to the indv, then they can independently decide if they want a particular product. (The costs are baked into the cost of the product). If
the individual does not want to pay for that price, then the product will not be profitable and will be eliminated from the market
Cost Reduced by General Deterrence: Everyone is responsible
Calabresi also believes that when accident costs are reflected in prices, people will shift to safer activities. The degree of the shift will depend on the difference in accident
cost and how good a substitute of a safer activity is. However, the general idea is that deterrence encourages us to make activities safer.
--Cheapest Cost Avoider
Establishing the cheapest cost avoider is difficult - - Which party could reasonably have avoided the cost of the accident at a cheaper cost than the other?
In Products Liability: the producers are generally in a better position to make a cost benefit analysis & thus may be liable, but sometimes consumers are in the better
position to determine the appropriateness and use and adequacy of warnings, thus courts will hear both sides to find the cheaper avoider.
Two regimes: Strict Liability v Negligence
Strict liability (economically efficient) and Negligence (just and fair) - Judge Learned hand regimes are two methods our court used to determine cheapest cost avoider but
different courts use different regimes. Risk can be distributed depending on the type of case you’re in (libility – learned hand) or (strict liability – dangerous materials) –
but even within these two fault regimes there’s a difference between if you get economically efficient outcome.
George Fletcher
Strict liability: George Fletcher sets for the rationale behind strict liability through his non-reciprocal risk-taking paradigm of reciprocity. Through this theory, he delineates
between equal and unequal subjection to risk by two parties, setting forth this difference as the theory upon which courts determine tort law. In his opinion, cases of strict
liability constitute and equal subjection of risk, where: “Uncommon, ultrahazardous activities pinpointed in the Restatement are readily subsumed under the rationale of
nonreciprocal risk-taking. If uncommon activites are those with few participants, they are likely to be activities generating nonreciprocal risks. Similarly, dangerous
activities like blasting, fumigating, etc stand out as distinct, non-reciprocal risks to the community. They represent threats of harm that exceed the level of risk to which all
members of the community contribute in roughly equal shares”
• “Seems fair to hold him liable for the results of his aberrant indulgence”
• “All individuals in society have the right to roughly the same degree of security from risk”
• “Compensation is a surrogate for the individuals’ right to the same security as enjoyed by others”
Epstein – A Theory of Strict Liability
Causation – critique – According to Estein, there is an inherent problem with causation. He argues that the concept of causation is so hypothetical and theoretical, and
without “merit, philosophic or otherwise”, that it provides the courts “as a matter of policy, the reason to decide cases in one way rather than the other”. He argues that
they don’t have “one true meaning”, but rather, have “no meaning worth bothering about at all, but are used as a mere disguise for arbitrary decision or judicial policy”. He
argues that “proximate cause” gives the courtrooms freedom to engage in “creative decisions of social policies” and masks “the underlying policy considerations, which
need not even pay lip service to precedent”. Through cause, “we may be expressing any number of ideas”. Rather, courts should look to who had the volition, not the “but
for” test.
Causation & Dangerous Conditions (Strict Liability) – Epstein judges strict liability on the standard of volition, rather than causation, and finds a similar result. He finds that
D is liable when: involves things inherently dangerous, innoculous things placed in dangerous position, products dangerous b/c defective. Shares in the characteristics of
the 3 above paradigms because D's responsibility depends on a showing that he created the dangerous condition. Concept of volition remains necessary.
Three classes of dangerous conditions
1 Things that are inherently dangerous - (Like explosives, because they retain their potential energy in full, even if they are stored or handled with the highest care
possible. A small application of force, or small chang in conditions, can release the large force, potential for danger remains great even if probability is low.
2 Innocuous things that are put into a dangerous position (ie: Leaving a roller skate in a walkway, Placing a large rock on a steep hillside)
3 Products that are dangerous because defective
Theory works b/c accidental acts don’t break the causal connection btwn P ‘s injury and D’s conduct. On that theory, there culd be no recovery in products liability cases,
b/c “the very use of the product would serve on causal grounds to defeat an action.” They need not exercise reasonable care.
Products Liability
Products liability is a subset of strict liability: putting those who place defective products into the stream of commerce are liable for injuries they cause. The purpose of
imposing strict liability is to deter manufacturers from marketing products that are unsafe, and to spread the cost of injury from P to the general public. The 2d
28
Restatement is the most widely accepted approach to products liability among the states. Many jurisdictions have evolved to adopt the distinctions delineated in the 3d
restatement, although not all, as the 3d restatement is rather new.
(HISTORY) In the past, product liability required privity (a sale) between the injured party and manufacturer, and liability was based on a contractual relationship. This was
affirmed by Winterbottom v Wright – where the P was hired by the postmaster to drive the mail coach provided by Wright. The P was injured when the coach broke down,
and it was held that P could not sue Wright because Wright had a duty to the postmaster, but not to the P. Due to the privity requirement, P could not sure third person
Wright. This was abandoned in Thomas v Winchester and MacPherson v Buick Motor Co.
Policy:
• Everyone else in the causal chain of events has a superior position to P to inspect and make the product safe. Because they are the ones economically benefitting, they
should take responsibility over the inherent risk of their products.
• In addition, manufacturers who advertise products have higher liability b/c they are advertising their product as safe, & consumer would assume that it will be liable.
• Spreading Costs: If the co. can make the product safer by spreading increased costs, this is the most efficient allocation of costs (and risks) and should be done.
2.
3.
Warranties under UCC:

Implied Warranty of Merchantability §2-314: reasonable safety and fitness for intended use. MacPherson v. Buick Motor

Implied Warranty of Fitness §2-315: Fit for intended purpose

Traynor used this principal to show implied duty owed to the public when selling goods (Escala v. Coca Cola)
Liability:

Manufacturing defects are held to a strict liability regime. Henningsen v. Bloomfield Motors, Inc.

Food products are held to a strict liability regime. Thomas v. Winchester

Liability can extend to third parties and bystanders.
Elements of Products Liability (R2d§402A)
1.
2.
3.
 seller engaged in the business of selling
Product (debated product v. service)
Sold in a defective condition (unreasonably dangerous): defect in manufacturing, design or warning/labeling categories added by 3rdR §2 + changed it to
“proof of a defect”

Consumer Expectation Test eliminated by 3rdR, made a factor to consider in the risk/utility test
Courts found that this was akin to a negligence test, in that it weighed the benefit of the product in light of its risk to consumers. Sometimes a defect was too
technical to prove using this test. As a result, many jurisdictions have abandoned the consumer expectation test and used the Risk/Utility (Benefit) Test. The
consumer expectation test is still a factor in determining design.
-

Risk/utility benefit test
(added by 3rdR) Design defect cases – there was a technologically & economically feasible SAFER ALTERNATIVE DESIGN
Rooted in a fault-based liability concept. If there was a safer alt, then B<PL & co. breached that duty.
o
o
Product when it leaves sellers hand is in a condition unreasonably dangerous to them – safe condition includes proper handling, sterilization,
etc. (Abnormally handling will preclude liability)
Auto defect : must be “Crashworthy” to avoid defective classification
Camacho v Honda Motor Corp developed the crashworthiness doctrine. This doctrine balances risk with utility to determine if the manufacturer could have made a safer product, and at what
expense. It applies to cases where the product could have been alternatively designed to protect the P from injury, where the design defect is not the cause of the accident, but could have been
designed differently to reduce the danger to consumers.
4.
5.
6.
Consumer or User – you don’t have to be buyer, you can be guest in someone’s home – “foreseeable plaintiff”
Harm by the product (physical injury – although case law has established that emotional harm is ok too)
Defect was cause of injury
R3d Differences
a.
Eliminated “consumer expectation” test for design defects: now it’s a factor to be considered in making the risk utility balance
A product is defective in design with the foreseeable risks of harm posed by the product could have been reduced or avoided by a reasonable alternative
design.. AND the omission of the alternative design renders the product not reasonably safe
Instead of “unreasonably dangerous”, just need to show “proof of a defect”  allows a defect to be inferred if it is of a kind that ordinarily does not
occur without a product defect –“res ipsa loquitor” – like factor
P must show that that the proposed alternative design exists and is superior to the product in question
b. Explicit classification of defects as either manufacturing, design or warning defects
(1) Seller
a.
b.
c.
d.
e.
Applies to manufacturer and all those who are down the chain.
Liable if give something away [402 A cmt. l]
Does not apply to the occasional seller (Not liable if homemaker sells or gives away jam) [402A cmt. f]
Does not apply to commercial sellers of a used good if the alleged defect was not created by the seller unless:
 Marketing causes a reasonable person to expect the used product to present no greater risk of defect than if the product were new (R3d § 8)
Service v. Product
Not “engaged in the business of selling”, doesn’t qualify as seller
Royer v Catholic Medical (Medical center not subject of strict prod liability bc its not “seller” of prosthesis) Don’t want to burden medical facilities w/ those
costs, or control the safety of the prosthetics. That’s manu’s respon. Rule: 403A – seller is “one engaged in business of selling such a product”
Seller of used products doesn’t count
Allenberg v Bentley (defective bus design, center facing seats) – seller sold used bus to driver, and passenger injured
“policy reasons which underlie strict liability are not fully applicable to commercial sellers of used products” tillman
(1) used goods operate on apparent understanding that commercial seller makes no particular representation of quality by offering for sale, (2) if buyer wants
assurances, can bargain for it, (3) sale of used product may not be found to generate type of expectations of safey
(2) Product
a.
b.
Some cts held toothpaste or shampoo dentist and salon use are products, so strictly liable for things used in the course of providing a service
Giving blood or plasma a service, not a product; prosthetics highly debated status
29
(3) 3 Types of Defect
1. Manufacturing Defect
A manufacturing defect differs from a design defect in that it differs from the manufacturer’s intended result or from other ostensibly identical units of the same
product line (p. 661). R3d§2a): A manufacturing defect occurs then the product departs from its intended design, despite care taken in preparation, and b) risk of
harms could have been reduced/avoided by adoption of reasonable alt. design by seller or other distributor, or predecessor in chain of dist, and omission of alt
design renders product not reasonably safe.
a.
Defect existed in the car and was present when the car left the hands of the manufacturer
b. Defect caused the accident
Ford Motor Company v Gonzalez – P buys Ford car, issue with right tire. Repeatedly brings to dealership to get fixed, but never adequately fixed. P gets into
accident. Witnesses say that tire malfunction caused accident. Expert witnesses say this could only have been caused by manufacturing defect, not by actions of
P. Comparative negligence was 80% against Ford and 20% against P. This product failed to meet the consumer-expectation test.
• Rover v Catholic Medical Center – for prosthetic leg
2. Design Defect
In order to show a design defect, P must show by a preponderance of evidence that the R3d§2b): Foreseeable risks of harm posed by product cause have been reduced
or avoided by adoption of reasonable design alternative. According to Barker v Lull, a product is defective in design if either (1) it has failed to perform as safely as an
ordinary consumer would expect when used in an intended or reasonably foreseeable manner, and (2) in light of the design factors, the benefits of the challenged
design are outweighed by the risk of danger in such a design. With the 3rdR’s departure from the consumer-expectation test, Barker v Lull rejected this test, citing
Cronin, refusing to permit the “low esteem in which the public might hold a dangers product to diminish the manufacturer’s responsibility for the injuries caused by the
product”, as this would shield Ds from liability as long as the product did not fall below the ordinary consumer’s expectation of the product.
• is defective b/c of inadequate instructions/warnings when foreseeable risks of harm posed by prod. Could have been reduced or avoided by the provision of reasonable
instructions or waring by seller/distributor/predecessor in the commercial chain of distribution, and the omission of the instructions/warnings renders the prod. not reasonably safe
Rejects consumer-expectation test
Barker v Lull (high loader injury)( - a prod can be defective b/c 402A
(1) “product failed to perform as safely as an ordinary consumer would expect when using in an intended or reasonably foreseeable manner” p.661
(2) the risk of the danger inherent in the challenged design outweighs the benefits of such a design” p.661
*jury may consider (factors)– gravity of danger, mechanical feasibility of safer alt. design, financial cost of improved design, adverse consequences to
product & to consumer that would result from alt design (p. 661)  risk/benefit test
*TC may properly instruct the jury that product is def in design if:
(1) P demonstrates it failed to perform as safely as an ordinary consumer would expect when used in intended/reasonably foreseeable manner
(2) P proves that product’s design proximately caused his injury and D fails to prove, in light of the (factors above), that on balance, the benefit of the
challenged design outweigh the risk of danger inherent in such a design
Must account for harm to unintended party (ie: children)
Hernandez v Tokai Corporation – P purchased non-child-safe lighter and minor took lighter and started a fire, injuring another child. P sues manufacturer
alleging lighter defectively designed b/c didn’t have child-safety mechanism.
Factors:
(1) Gravity of danger posed by design – risks must be assessed in light of both the gravity and likelihood of injury. The fact that foreseeable risk is due to misuse
does not bar liability (p. 666)
(2) Likelihood that some danger would occur – even tho it wasn’t intended for child’s use, not insulated from harm of coming into child’s hands
(3) Was there a safer alternative available - must prove by preponderance of ev. that safer alt design was available @ time of manufacture
(4) What is intent of product (to be used for adults) – “products utility/risk must be measured with reference to product’s intended users”
Brown v Superior – drug defect
3. Warning Defect
A warning defect exists when a manufacturer did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and
prevailing best scientific and medical knowledge available at the time of manufacture and distribution. (Livingston v. Marie Callender’s Inc.). There is a duty to warn
when the danger, or potentiality of danger, is generally known and recognized. The knowledge of P does not matter. And the warning must actually get to the actual
user (Jackson v Coast Paint).
Doesn’t matter if user is in the profession & should know - (for average person standard)
Warning must go to employer + employee – duty to ultimate user
Jackson v Coast Paint – duty to warn of products fire hazard –
• doesn’t matter that he’s a painter and should know, go by what ordinary person knows
• 402A - had duty to warn employer AND employee – not discharged by warning employee - duty to ultimate user
• 402A comment j,I – “whether danger is generally known or recognized dangerous to an extent beyond what would be contemplated by ordinary consumer
who purchases it, with ordinary knowledge common to the community as its characteristics”
Livingson v Marie Callendar – following Restatement 2 comment j – “contains an ingredient to which a substantial number of the population are allergic and
ingredient is one whose danger not generally know or expect to find” in products liability action whether restaurant had duty to warn P with allergy of presence
of MSG is a question of fact for the jury (1) no warning, and (2) misleading/wrong info given
(4) Defective Condition
a.
Consumer Expectations Test: Reasonable person standard for expected performance of product  Eliminated by 3rdR, now a factor of R/U test

What does a reasonable consumer expect? Sounds a lot like negligence standards…
b. Risk/utility benefit Test:
30
1.
2.
3.
a.
b.
c.
d.
Gravity of the danger
Likelihood some danger would occur
Defect caused the injury
Manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a
defect that causes injury to a human being.
Not defective if injury results from abnormal handling [402A cmt. h]
May be defective from foreign objects in the product, decay before sale, or way in which it was packaged [402A (h)]
To make it unreasonably dangerous to a consumer or user

The defective condition must make dangerous, not the product itself (eg. tobacco)

Based on ordinary expectations; expect tobacco to give cancer, not be poisoned
(4) Consumer
a.
b.
Consumer involves all ultimate users of which the product is intended – ie: end user (Jackson v Coast Paint)
204(l) – “it is not necessary that the ultimate user or consumer have acquired the product directly from the seller, or that he purchased the product at all. He
may be a member of the family of the final purchaser, or his employee, or a guest at his table, or a mere donee from the purchaser. Consumption includes all
ultimate users for which the product was intended.”
(5) Harm – physical, emotional, but not financial
a.
b.
R2d§402A says physical harm, but you can recover for emotional harm and damage to chattel
Cannot recover solely for economic harm. It is reasonable to ask manufacturer to reach a standard of safety. It is not to ask it to reach a standard of
performance. Financial losses not compensable under strict liability
Moorman v National Tank - financial losses no compensable under strict liability when grain storage tank manu’d by D cracked and became unusable – sought
damages for repair and loss of tank.
Holding/Rule: UCC § 2-316 – parties can contract for warranties. This is how they protect each other, can pay for the risks in initial K.
Rule: Can only recover for strict lia. when: “physical injury to property is so akin to personal injury that there’s no reason to distinguish them”
(6) Cause
Defenses
a.
If negligent than can have “equitable apportionment of loss” aka comparative fault, but still have strict liability
Comparative Fault Holds
Policy: The reason why the courts allow the use of comparative fault is because it still upholds the rationale of strict liability: relieving P of the need to
prove negligence. It still holds the D responsible for the injuries they cause, and the responsibility is still shifted to the manufacturer. They are simply
reducing P’s discovery by their portion of responsibility for the injury. The rationale behind this is that consumers aren’t entirely powerless: the
powerlessness of consumers is what makes strict liability a necessary and publicly beneficial thing. However, if consumers have the power to make things
safer for themselves (ie: buckling their seatbelt), the courts feel that they should have to do these things. Under this policy, companies still have an
incentive to invest in safety – but will now do so in a rational way.
Daly v GM (1978) – Drink man ejected from car while not wearing seat belt or having locked door. He would not have been so severely injured had he taken
proper precautions.
BUT consumer has no duty to discover product default
2ndR – (n) Contributory negl. Is not a defense when it consists merely in a failure to discover the defect in the product, or to guard against the possibility of its
existence.
General Motors v Sanchez (1999) – Rancher killed when pinned to gate –shifted into what he thought was “Park” but was really a neutral position btwn
Park/Reverse. Holding: consumer has no duty to guard against or discover a product defect and is not comparatively at fault when injured if not otherwise
negligence Rule: 3rd Restatement § 17a, comment D – there must be evidence that P’s conduct in failing to discover defect failed to meet standard of reasonable
care. In general, P has no reason to expect that new product contains a defect and would have little reason to be on guard against it
b.
c.
d.
e.
Assumption of Risk
Mishandling
Preemption- sometimes fed. law precludes you from claiming tort liability
Learned Intermediary - manufacturer’s duty is to provide warnings and instructions to the physician who will prescribe the drug. The physician in turn is
responsible for informing the patient of relevant risks so that the patient can give an informed consent to the treatment
Prescription Drugs
Under the 2ndR, comment k, drug manufacturers were only liable for warning of defects that it knows about/should have known about. Brown v Superior Ct was an
example of this old precedent: ruling that [ ]. The 3rdR has a new standard, holding drug manu’s liablt for manu defects, design defects, or inadequate warnings/labels.
Rather than apply the risk/utility test to medical devices & drugs (per R3d §6), it applies the therapeutic standard in 3rd restatement “not reasonably safe is foreseeable risk
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of harm is sufficiently great in relation to its foreseeable therapeutic benefits that reasonable health care providers, knowing such foreseeable risks and therapeutic
benefits, would not prescribe the drug/medical device for any class of patients” p.674
Brown v Superior Ct (DES drug design) – OLD CASE, USED 2ndR – manu’s produced DES for mothers to prevent miscarriage
Restate 402A Comment k asserts that drug manu’s are only liable for warning of defects & knows about or should have known about
• Manu’s duty is to warn physicians, not patients, or risks – physician is consumer, not patient; manus may be liable in negligence for needlessly dangerous
drug design, but not strictly liable

R3d § 6 submits sellers of prescription drugs and medical devices to manufacturing, design, and warnings defects

§ 6c says drug/device has design defect if foreseeable risks of harm are sufficiently greater in relation to its foreseeable therapeutic benefits that reasonable
health-care providers would not prescribe it to any class of patient
• 204A(i) – its unreasonably dangerous if its beyond the contemplation by ordinary consumer who purchases, but if proper warning is given where situation calls
for, wont be held strictly liable
• Exception: 204(k) – unavoidably unsafe products: NOTE there are certain products that are so useful (mostly drugs) that manufacturers will not be liable when
injury occurs (bc could not have been made less risky) – like “chemo” – there’s nothing you can do to make it safer – unavoidably risky – but utility is so high – we’ll
immunize the sellers.
Other



Rather than placing the basis of liability in the breach of warranty, the court adopts strict liability in tort as the appropriate basis for liability in tort for products
of a manufacturer (Greenman v. Yuba Power)
Focus on the product, not on the manufacturer’s conduct. Do not need to prove that the manufacture acted unreasonably or negligently in order to win such a
case (Barker v. Lull Engineering Company, Inc.)
As opposed to negligence, reasonableness of D’s failure to warn is immaterial in warranty cases (Jackson v. Coast Paint and Lacquer Company)
Policy Reasons
1. Consumer has no ability to assess the risk (Traynor says)
2. Paternalistic: Protecting consumer from inability to make decisions about relative danger of products
3. Deprives right to waive risks; denies freedom to K
4. Risk spreading; internalize costs of hazardous products
5. More efficient (like res ipsa): When virtually impossible for  to prove all elements of negligence
 Evidence all w/in ’s control
6. Holds manufacturers owe a duty to the public in the products they put into the stream of commerce
Liability for poison, absent privity
Thomas v. Winchester 1852 - Husband of sick wife bought dandillion extract, really belladonna, toxic poison made wife more sick.
Sold from: Unknown manufacturer-Winchester/Gilbert-Aspinwall (shop) -Dr. Foord-Mr. Thomas – wife
I: Can be liable when no privity between injured party and remote vendor?
Ct: Poison imminent harm to humans = can recover from remote vendor
• Narrow rule: Can recover for poison from remove vendor
• Broader rule: Can recover for dangerous substance absent privity w/ manufacturer
Liability for all implements of danger (even when normally safe) – middleman has duty to inspect
MacPherson v. Buick Motor Co. 1916 (Cardozo) - Wheels of new buick crumbled; wheels bought by  from another manufacturer and installed by them.
Ct: Manufacturer of a thing of danger owes a duty to make that thing carefully:
“When nature of thing reasonably certain to place life and limb in peril when negligently made is thing of danger”
Scaffolding case
Devlin v. Smith -  contractor built scaffolding that collapsed
Ct: Scaffolding intended for painters to use, so even though no privity, owe them a duty
Coffee urn case
Statler v. Ray Mfg Go - When heated, coffee urn exploded, injuring customers
Ct: When used for intended purpose causes danger if not properly constructed, liable
 Normally not an implement of danger, unless negligently made
Strict liability for all consumer products – exploding coke bottles
Escola v. Coca Cola Bottling Co. of Fresno 1944 -  putting away bottles when one exploded in her hand – witness saw didn’t touch anything. Severed arteries and nerves
so badly disabled work as waitress. Bottling co. also distributor, so in their possession.
Won on res ipsa, since w/in exclusive control
Traynor concurrence: Don’t need to use other doctrines (res ipsa); clearly pub. interest to apply strict liability to products.
Public can’t assess risks of products, and accept them readily – marketing makes them all seem safe
Imposed obligation of seller to put safe products into stream of commerce
Implied warranty to all users; can’t disclaim – warranty to end user
Henningson v. Bloomfield Motors 1960
 bought new Crystler; K of adhesion disavowed any implied warranty aside from 90 days on any factory parts. Steering wheel went out, wife of purchaser injured
Ct: Can’t disclaim implied warranty;  all incentives to make product safer. Even tho they waived rights, they didn’t know of dangers of the car. Manu in superior position.
PAGE FOR DOCTORS
Experts and professionals may be held to higher standard
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o
o
In addition to exercising the attention, perception of the circumstances, memory, knowledge or other pertinent matters, intelligence, and
judgment as would a reasonable person, one must also exercise such superior attributes on the listed items as the actor himself has
(§289b)
So, the reasonable person standard sets the minimum of community expectations, and those w/ greater ability than most are expected
to use it.
National Standard of average general practitioner or specialist (no Locality Rule)
Locality Rule rejected in most jurisdictions; national standard qualified ave. practitioner
Brune v. Belinkoff 1968
Anesthesiologist in local hospital administered 8 g of drug when 5g is standard to woman birthing.
Locality Rule: Standard of medical care evaluated relative to the region’s resources and physician’s skills.
 Used same policy basis to discard locality rule in favor of standard of average qualified practitioner (national standard).
 Looked to other jurisd.; scholarly criticism, policy behind old rule to decide new rule
Policy: It holds you to a higher standard and there’s no reason why in modern society you cant get expertise due to increased technology. You have
the responsibility to determine what you’re capable of and then refer a patient to another doctor if you’re not able to assist them.
Reasonable Person Duty my require Above Average Standard of Care
Burden of performing extra test was small –Circumstantial Test (Learned Hand)
Helling v. Carey 1974
π saw ∆ for eye problems for 9 yrs; ∆ said prob. w/ contacts, finally gave pressure test = glaucoma. π permanent loss of peripheral vision. ∆ arg.
not standard of care to give test to patients under the age 40.
Ct.: Great loss of π, very small burden of performing simple and inexpensive test =
 ∆ required to go beyond the standard of care in the profession to administer the test;
 Judge learned hand: b>pl
Doc liable if didn’t give informed consent
Canterbury v. Spence 1972
19-yr π laminectomy and fell after surgery when orders wrongly changed and was left alone to void out of bed. P restricted to wheelchair, is
incontinent and paralysis of bowels. Is unable to work due to his condition .
Ct.: Doc. liable for lack of informed consent for not divulging possible negative outcomes to π before the procedure that may have affected
decision to undergo procedure.
 Doc. not merely expected to do what trained to do, but also what a reasonable person would do under the circumstances.
Custom is not an excuse
Negligent if D could have taken precautions and if those precautions were medically indicated is a q for jury, even if not the standard in the
industry
Doe v. Cutter Biological Inc. 1992 - 2 hemophiliac patients who contracted HIV while using anti-clotting agent Factor VIII sued all 4 manufacturers of
Factor VIII for not taking precautions against HIV when suspected to be a blood-born virus. D arg. didn’t know how was transmitted, and no one in the
industry did it. Year P’s infected 2 agencies called for screening blood supply
Ct.: Burden of heat-treating the blood or testing donors for HIV was small; probability of HIV being a blood-born virus was significant.
 Only 4 members of industry: provides strong ev. that industry custom was the prudent standard (evidence they colluded to not take precautions).
Must go to jury.
Special Relationship Exception – Duty to Warn
Special Relationship w/ patient = duty to warn 3rd parties of dangers posed by patient
Tarasoff v. Regents of U of Ca 1976 Policy: Confidentiality obligated by K, ethics and HIPA = difficult balance of duties
’s daughter killed by patient who told shrink wanted to kill her; shrink told U cops who questioned and released Poddar.
Ct: When therapist knows patient will act on violent intentions, duty to warn targets of threats
 Rule: Once a therapist determines a patient poses a serious danger of violence to a others, she has a duty to warn a foreseeable victim of
that danger (reasonable person duty)
1.
Special Relationship between Therapist and Patient, or Therapist and Third Party.
2.
Determines, or should determine in accordance with the special skills of her profession, of the potential danger. (Kind of a breach of
duty question.)
3.
Foreseeable Victim. (Often seen as requiring a specific and immediate threat to a specific or readily identifiable victim. In general, this
is largely a question of foreseeability once a special relationship has been determined)
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Policy
Practice: the way people and institutions operate
Policy: Principles intended to govern practice, often justified by appeal to collective ideals and goals
Ie: ideals of justice, fairness, and respect for persons
Ie. Goals like reducing the frequency, cost, and severity of injury
Looking at Tort Law from a Policy Perspective:
Who does it? Courts, legislators, Scholars, practicing lawyers, journalists
Legislators- what rule do we adopt? Should we put caps on medical malpractice cases?
Courts- interpret statutes
Scholars – Prof works on right to privacy
Practicing lawyers – working on the 3rd restatements
Journalists –
Why do they do it? – B/c think that if the policies are wrong, they should be changed.
Fletcher (in our reading) thinks we should discuss tort law through the lenses of philosophy. You don’t have to look at it through the lenses of economic efficiency.
Law is inherently practical – its there b/c it serves purposes. If we were a practical society – we wouldn’t need law. But we arnt. We need law to govern the concepts of injury
etc that we see all the time.
Questions about Policy
• What are the policies implicit in the law? (descriptive question) – Posner: he thinks he sees common law courts attempting to achieve efficiency. Economic descriptive
theory of law. – Others say that law is seeking to implement policies with notions of fairness, reciprocity, etc.
•
How can the policies implicit in law be best characterized, theorized? Are they economic in nature? Moral in nature?
•
Should the policies implicit in the law be changed? (normative question)
What are good reasons to change the law? – b/c it imposes burdens on productive businesses? Imposes burdens on the poor? Or the working class wage earner?
Unfair to women? Overlooks important classes of injury, such as emotional, dignitarian harms? Unfair to disabled persons or children? Permits some more
nonreciprocal freedom than others?
-We don’t want to impose too heavy burdens on companies or drug manufacturers, or municipalities.
-Poor: you could have entire classes of poor people living next to polluted rivers bc we don’t impose nuisance liabilities on factories. Shouldn’t allow them to
pollute the land/facilities.
-Women: “The reasonable man standard” used to be, before the “reasonable person standard”.
-One scholar wants a more “communal” friendly neighbor standard. “feminizing the law” – how about feminine ideals/approaches – mothers care about their
kids..
-IIEE – emotional distress now recognized
-Dignitarian harms- there used to be no invasion of privacy tort- you could get away with publicizing facts about yoru stranger –
-Unfair to disabled people and children – people with mental illnesses – Prof thinks its unfair to hold people with mental illnesses for their actions b/c they don’t
know what they’re doing! Prof thinks we NEED a defense for this!
-Gives some people more freedom than others –
•
What specific rules will best implement sound policies?
-The policy might be Calabrisi – reduce the primary/secondary costs of injury. Reduce the costs incurred when people get injured. How do we do that? By having
strict liability? Negligence only liability? No liability? What are the individual rules that help best implement those goals.
Who should decide what rules and what policies to adopt? (judges, legislators)?
-Common law courts? Or
•
Is there anything Wrong with Tort Law?
• Something wrong with tort law as a whole? Or in particular?
-slow, arbitrary, administratively expensive
-undercompensates, overcompensates
-barriers to access
-litigious culture
• Wrong with specific rules?
-punitive damages rules
-liability rules for mentally ill
-tarasoff rule
*What might be wrong with tort law as a whole? Maybe its too slow. If I break my leg in 2009, and cant get some defect in a machine. I shouldn’t have to wait til 2019 to get
a damage award.
- Some countries have dealt with this by abandoning tort law to an extent (New Zealand). Lets adopt something LIKE workers compensation that guarantees lost
wages/medical suffering/pain and suffering for people that get injured in these particular ways (public insurance system) – through a manufacturing tax – that tax
from employers will guarantee that people injured in their job will be compensated.
(It’s a vastly reduced tort system)
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-Its so arbitrary: (overcompensates, undercompensated) Depending on who the person you’re suing is, you might not get anything. Poor person? Nothing. Rich
person – yippee. Maybe we as a society should step in to solve their problems. (This was my reading…)
-What do you lose when you de-couple tort-feaser with tort-maker? You sever responsibility. Well some people deal with this by taxing the people who would be
responsible for torts. Those persons know that if they want their taxes to go down, they need to reduce the severity and cause of their accidents. (NZ) they got their
stuff back by filing a claim at the office, instead of having to go to court. (We kind of do this through worker’s compensation too) – more claims but lower
transaction costs. Also, people who normally should get compensated will now get compensated b/c its easier, cheaper! Allows people who deserve to get
compensated to get compensated.
-Access issue: lawyers are not always easily accessible and many of them don’t do personal injury law, or don’t represent poor plaintiffs. Expensive to get
witnesses, etc.
*We do have some departures from Tort Law: We do have workers compensation – that’s an improvement. We have no-fault automobile insurance, so its easier
for people to get car repairs/medical if they get injured in car accident. We have vaccination laws – publicly manufactured vaccination, you don’t have to sue, you
got to the federal vaccination places. Old/disabled people get social security. We have increased the number of judges to hear certain cases. Some states have
imposed caps on punitive/pain-suffering damages. We do try to improve on existing tort system without getting out of the tort system.
*What’s wrong with some specific rules? Maybe we think
*There used to be laws against advertising for lawyers. Used to be looked upon as “crude”, etc. But if you cant advertise, then ordinary people cant find out about anyone.
Now lawyers are allowed to advertise.
--The contingent fee system increases access by incentivizing lawyers to go assist people
*The procedural dimensions of tort law are just way too complex. Many tied to working with large classes of people.
Prof thinks tort law is too arbitrary – how attractive you are, access, that we have a system that makes getting recovery so contingent on things that have nothing to do with
the severity of injury.
Lots of people don’t have medical insurance – it can be a life-altering thing to get struck by a bicycle on the street – but it shouldn’t take you from middle
class to poor. But in this country, this could happen. Small injuries can lead to catastrophic consequences.
-4 hours, no textbooks/commercial outlines
2 part- 2 fact patterns (2 hours each) – time for corrections/review built in
No formal word or page limit
Aim for quality no quantity, consistent with the need to be complete
1) don’t run out of time, no credit for bullet points
2) be well organized
3) be clear/precise
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