Torts Outline - Magee
Introduction to Tort............................................................
Introduction to Torts, Civil Litigation.....................
The Negligence Concept.........................................
Historical Development of Fault Liability...............
Standard of Care......................................................
The Reasonable Person Standard............................
The Role of Judges..................................................
In General....................................................
The Role of Custom....................................
The Role of Statutes, Negligence Per Se....
Proof of Negligence...............................................
Slip and Fall and Constructive Notice........
Res Ipsa Loquitur........................................
Proof of Medical Malpractice.................................
Informed Consent........................................
Vicarious Liability/Respondeat Superior............................
The Duty Requirement, Physical Injuries...........................
Introduction: General Duty of Due Care................
Affirmative Obligations to Act...............................
Non-Negligent Injury.............................................
Non-Negligent Creation of Risk............................
Voluntary Assumption of Care...............................
Duty to Third Party................................................
Policy as Rationale for Limiting Duty...................
Foreseeability.............................................
Non-Commercial Hosts.............................
Negligent Entrustment..............................
Duties of Landowners and Occupiers...................
Non-Physical Harm: Limited Duty, et. al.........................
Emotional Harm...................................................
The Zone of Danger Test..........................
Neg Inflict of Emo Harm, Impact Test....
Foreseeability............................................
Bystander Action.......................................
Economic Harm....................................................
Direct Economic Harm..............................
Indirect Economic Harm...........................
Causation and Multiple-Defendant Issues........................
“Actual Cause” or “Cause-in-Fact”: Maj But For.
Joint and Several Liability and Multiple Ds..........
“Legal Cause” or Proximate Cause”......................
Defenses to Liability..........................................................
Plaintiff's Fault.......................................................
Contributory Negligence............................
Comparative Negligence and the UCFA....
Avoidable Consequences............................
Assumption of Risk................................................
Express Agreements....................................
Implied Assumption of Risk.......................
Damages............................................................................
Compensatory Damages........................................
Types of Damages.......................................
Punitive Damages..................................................
Strict Liability....................................................................
Traditional Strict Liability.....................................
Products Liability..............................................................
Manufacturing Defects..........................................
Design Defects......................................................
Instructions and Warnings......................................
Defenses.................................................................
Intentional Torts.................................................................
Intent......................................................................
Assault and Battery.................................................
False Imprisonment................................................
Intentional Infliction of Emotional Distress......................
Constitutional Defense...........................................
Defenses and Privileges.....................................................
Consent...................................................................
Self Defense............................................................
1
2
2
2
2
2
3
3
3
4
4
5
5
6
6
7
7
8
8
8
8
8
9
9
10
10
10
10
10
11
11
11
11
12
12
12
12
13
13
13
14
14
15
15
15
15
16
16
16
16
17
17
17
17
18
18
18
18
19
20
21
22
22
22
22
23
23
23
23
23
Torts Outline - Magee
Introduction to Tort
Intro to Torts, Civil Litigation
1. Hammontree v. Jenner CA Ct. of App. 1971
1. Facts: D lost control of his car and crashed into P's shop causing property damage and
injuries. D was on medication for epilepsy, but approved to drive by his doctor and the
DMV.
2. Rule: No strict liability. Negligence standard must be applied.
3. Significance: Tend to disfavor liability or judicial establishment of standard of care (as
opposed to legislative).
The Negligence Concept
1. To recover for negligence, the plaintiff must establish each of the following elements by a
preponderance of the evidence to establish a prima facie case [based on first impression;
accepted as correct until proven otherwise].
1. A duty by D to P
1. Duty- A legally recognized relationship between the parties.
2. Standard of Care- the required level of expected conduct
3. A breach of duty by D
1. Breach of duty- failure to meet the standard of care
4. A causal link between D's breach and P's damages
1. Cause-in-fact- plaintiff's harm must have the required; BUT FOR
2. Proximate Cause- the damages that occurred must be “reasonably foreseeable” to D at
the time of negligence.
Historical Development of Fault Liability
1. Brown v. Kendall (1850) CASC (p. 31)
1. Facts: Dog fight with stick
2. Rule: (1) Burden of proof lies with P, (2) due care versus extraordinary care
3. Significance: Establishes the fault principle instead of strict liability
Standard of Care
1. Central concept in the law of negligence.
2. Most simply, the standard of care is the level of conduct demanded of a person so as to avoid
liability for negligence.
3. Failure to meet this standard is characterized as breach of duty.
4. In most cases the standard of care requires the defendant to act as would a reasonably prudent
person under the same or similar circumstances. Failure to act reasonably, then, constitutes the
defendant's breach of duty.
5. Adams v. Bullock N.Y. [Cardozo], NY Ct of App (1919) (p. 40)
1. Facts: Kid on a trolley bridge with a shocking 8-foot wire.
2. Rule: A party will not be deemed negligent if he has taken reasonable precaution to avoid
predictable dangers. P must establish that the risk of harm was foreseeable to D at the time
D acted. Lead into Carroll Towing in that the burden is very high for a small risk.
6. U.S. Carrol Towing Co. (1947)_2nd Cir. (p. 44)
1. Facts: Tug boat suffered damage at port.
2. Rule: If foreseeability exists, B<PL [Learned Hand- Burden< Probability x Gravity].
2
Torts Outline - Magee
3
Burden is not necessarily financial.
The Reasonable Person Standard
1. The most common standard of care in negligence law commands the defendant to act as would
a reasonably prudent person in the same or similar circumstances.
1. “Caution as a man of ordinary prudence would observe”
2. Bethel v. New York City Transit Authority, NY Ct of App (1998) (p. 50)
1. Facts: A wheelchair seat on a bus was inspected by in-house mechanic 11 days prior to
collapsing under a rider.
2. Rule: Rejects “utmost car” standard for common carriers. Reasonable person standard, in
these circumstances, should lead to same conclusion without the danger of prejudice
Note*: California still has the utmost care standard for common carriers.
3. Varying degrees of prudence are not really used unless if insanity, disability, or mental
retardation are present.
1. Customizing levels of prudence would “leave so vague a line as to afford no rule at all, the
degree of judgment belonging to each individual being infinitely various.”
2. Unless a defendant is a child, mental illness does not exclude him or her from liability- RST
§ 283 B- restated in Bashi v. Wodarz (1996)- It is difficult to differentiate mental deficiency
with temperament.
4. Children- traditionally, have been held to a blended standard- one that recognized their age and
abilities, but also invoked an objective component; children must exercise the care that a
reasonable child of their age, intelligence, and experience would exercise.
5. Ellis v. D'Angelo (1953)
1. Facts: Kid kicks babysitter.
2. Rule: This behavior is no unreasonable for a child of that age. However children engaged in
adult activities, have adult standard set to them.
6. Emergency doctrine:
1. “Person confronted with a sudden and unforeseeable occurrence, because o the shortness of
time in which to react, should not be held to the same standard of care as someone
confronted with a foreseeable occurrence.” Levey, DeNardo (Pa. 1999)
2. Rejection of this doctrine in many states- defendant can explain exigencies without the
usage of this doctrine.
The Roles of Judges
In General
1. Baltimore & Ohio RR v. Goodman, [Holmes] U.S.S.C. 1927 (p. 60)
1. Facts: Goodman drove his truck onto a railroad crossing and was killed. He stopped the
truck and looked for an oncoming train, but did not exist the truck to look more closely.
2. Rule: Fixed standard of reasonableness created to the exclusion of jury- a person who has
failed to exercise reasonable care to avoid an accident is not entitled to recover damages
from the other part.
2. Pokora v. Wabash Railway Co. [Cardozo] U.S.S.C. 1934 (p. 62)
1. Facts: Perfect storm railroad crossing.
2. Rule: Pushes railroad crossing back to reasonable person standard. Pokora onward judges
stay of standard of conduct, left to jury. Standard of care used.
Torts Outline - Magee
4
3. Andrews v. United Airlines, 9th Cir., 1994 (p. 66)
1. Facts: Luggage fell from overhead luggage compartment, injuring P.
2. Rule: Judge's prima facie test is giving the benefit of the doubt of P, does this case deserve
to see a jury on breach? Even a small risk of serious injury to passengers may form the basis
of a common carrier's liability if that risk could be eliminated consistent with the practical
operation of airline travel. RPP was fine.
The Role of Custom
1. Custom may be used for the purposes of liability.
1. Deviation from a well-established custom may be used as evidence of D's breach of duty.
Custom doesn't define rule. Can be used to make arguments.
2. Doesn't exist in a vacuum. Custom relates to the consideration of the risk calculus. The
existence of a custom suggests some degree of probability of harm.
2. Conversely, compliance is usually admissible as evidence of D's lack of breach.
1. However juries can still find customary negligence if they deem the entire custom
unreasonable.
3. Trimarco v. Klein, NYSC, 1982 (P. 69)
1. Facts: The custom put forth by P is that is was customary for landlords to install safety glass
when retrofitting or building new bathrooms.
2. Rule: The trier of fact or judge must determine:
1. Is it a custom? Not universal, but fairly well defined/ in the industry/ and common
2. The ultimate test is still whether D acted reasonably. Custom is only an indicator.
Notes*: (a) Plaintiff must clearly demonstrate the feasibility of the alternative, (b) it was unreasonable
for D to be unaware and (c) the social impact of requiring the alternative is not unduly large. The
purpose of the custom may be called into question as well.
The Role of Statutes: Negligence Per Se
1. How do courts determine whether a statute is relevant enough to set the standard of care?
1. RST Section 286: If the statute was not specifically worded as to set the standard of care for
civil liability actions, there is a choice as to whether the court must adopt it. Must be
specifically worded.
2. If the statute meets the following standards, the court has the option to adopt the statute as the
SOC, rather than the default- usually RPP/SSC.
1. Protects a class of persons which includes the person whose interest is invaded.
2. Protects the particular interest that is invaded (public benefit, personal safety)
3. Protects the interest against the kind of harm that has resulted (physical injury, emotional
distress, property damages)
4. Protects the interest against the particular hazard from which harm results (risk posed,
potential cause of harm)
Evidence of violation grants an inference of negligence- CA. Some read it as a rebuttable presumption.
Still must prove causation and damages.
3. Martin v. Herzog, [Cardozo] NYSC, 1920 (p. 75)
1. Facts: Buggy at night with a light, car over center line.
2. Rule: The unexcused violation of a statute designed to safeguard others means that one has
fallen short of the standard of diligence to which it is one's duty to conform, and the results
amount not to just some evidence of negligence but negligence itself.
4. In Martin v. Herzog there are three proposed “weights” to accord a statute, if it is adopted:
Torts Outline - Magee
5
1. Some evidence (trial judge decided whether to send it to a jury or not).
2. Prima facie evidence of negligence (judge cannot dismiss on summary judgment, case must
go to the jury).
3. Negligence per se, but D can rebut (jury has to find negligence unless there is other
justification that the court believes is valid).
5. Tedla v. Ellman, NYSC 1939 (p. 78)
1. Facts: Junk collectors with shopping carts on the wrong side of the road.
2. Rule: Even though a statute is relevant, if there's a reasonable excuse it's ok. RST §286
states the generally accepted justify disobedience to a statute or ordinance, to deviate from
the statute, if by doing so his action is likely to prevent- rather than cause- the accident
which it is the purpose of the ordinance to prevent.
6. Note: De Haen v. Rockwood Sprinkler Co., NY Ct of App., 1932 (p. 82)
1. Tools down a shaft- statute did not state a specific safety purpose, but there's a broad
implicit safety purpose in mind. The statute is relevant.
7. Note: Di Ponzio v. Riordan, NY Ct of App. 1997 (p. 83)
1. Unattended car at gas station- statute irrelevant because its apparent purpose to prevent
fires, and not to avoid from moving vehicles.
Proof of Negligence
1. Regarding breach, it is incumbent upon the plaintiff to put enough evidence so that a jury can
find that more likely than not the defendant failed to act reasonably.
2. Evidence: direct and circumstantial
1. Direct: evidence comes from personal knowledge or observation, such as from an
eyewitness or by videotape.
1. The only issues are credibility and reliability of eyewitness or source.
2. As a particular matter, direct evidence is rather rare in negligence cases.
2. Circumstantial evidence is proof that requires the drawing of an inference from other facts
to have probative value. Most common form of evidence used to establish unreasonable
conduct.
1. As long as the jury can draw a reasonable inference (as opposed to speculate), the
circumstantial evidence will be admitted.
Slip and Fall and Constructive Notice
1. The plaintiff must show by a preponderance of the evidence that the defendant failed to exercise
reasonable care.
2. Most courts require the plaintiff to show that the condition on which she slipped existed long
enough so that the defendant should have discovered it and should have remedied it. Particular
rule- articulate that D had knowledge of a dangerous condition. Effort to use
circumstantial evidence to prove negligence. Pull to landowner liability.
3. Some jurisdictions permit the plaintiff to make a case without proof of actual or constructive
notice on the part of the defendant.
4. Negri v. Stop and Shop, Inc. NY Ct of App., 1985 (p. 87)
1. Facts: Baby food jar slip.
2. Rule: Constructive notice introduced. Store should have reasonably seen the jars.
5. Gordon v. American Museum of Natural History, NY Ct of App., 1986 (p. 88)
1. Facts: Clean piece of paper on stairs.
2. Rule: CONSTRUCTIVE NOTICE: defect has to be (a) visible and apparent, (b) exist for
Torts Outline - Magee
6
a sufficient length of time prior to the accident to permit, and (c) a reasonable person to
remedy it.
6. Business practices vs. mode of operation (more liberal way of assisting plaintiff)
Res Ipsa Loquitur
1. Definition: the principle that the occurrence of an accident implies negligence.
2. Like any circumstantial evidence, res ipsa loquitur evidence permits the drawing of an
inference.
3. But there is a key difference between res ipsa loquitur and other circumstantial evidence- a jury
may infer that the defendant acted unreasonably without any other proof.
1. This is prima facie evidence that negligence occurred. In some jurisdictions, it's also a
presumption of negligence. If D does not rebut, the jury must find for P.
4. It is most important in cases where the plaintiff is unable to make specific allegations about
what the defendant did wrong.
5. In res ipsa loquitur the plaintiff seeks to establish:
1. The harm harm-causing event was probably due to negligence.
2. D was probably the culpable party- instrumentality under exclusive control of D.
6. In order for the P to have the benefit of res ipsa loquitur, she must convince the jury that each of
these factors more likely than not exist.
7. Byrne v Boadle, Court of Exchequer, England, 1863 (p. 92)
1. Facts: Flour barrel from flour merchant's window, P knocked out for a fortnight.
2. Rule: Res Ipsa Loquitur
8. McDougald v. Perry, FL Supreme Court 1998 (p. 95)
1. Facts: 18- wheeler spare tire through the windshield, weak chain
2. Rule: Res ipsa loquitur, the thing speaks for itself. Permits, but does not compel, an infrence
of negligence under certain circumstances. Reasonable person would assume negligence. (1)
Instrumentality causing injury was under exclusive control of D and (2) ordinarily the event
would not occur w/out negligence.
9. Ybarra v. Spangard 1944 (p. 102)
1. Facts: Appendectomy with shoulder injury, sued whole medical staff.
2. Rule: P can use res ipsa loquitur even though he doesn't know (a) the instrumentality that
caused his injury or (b) the person who had control of that instrumentality- Far stretch of
Res Ipsa Loquitur to meets needs of public policy
10. Significance: Flower pot injury suing everybody in the apartment building argument.
11. Res Ipsa expanded.
12. Even if P went with respondeat superior, negligence must still be shown.
13. The concept of “instrumentality” was broadened in this case, and it's generally considered his
body.
The Special Case of Medical Malpractice
1. Rule: Doctor fell below the applicable standard of care: deviation from custom practice
(nationalized?).
1. Physician must possess and use knowledge and skill common to members of the profession.
2. Standard only requires minimal competence.
2. Sheeley v. Memorial Hospital, RISC, 1998 (p. 111)
1. Facts: Botched episiotomy by a 2nd year resident.
2. Rule: Introduction of expert to establish second prong of res ipsa: (a) a (not the) generally
Torts Outline - Magee
7
accepted standard of care and (b) whether the standard was breached. Jury has a common
fund of experience, this idea runs through res ipsa- increasing permission of expert
testimony to set SOC.
3. States v. Lourdes Hospital, NY Ct of App., 2003 (p. 119)
1. Facts: Arm-twisted patient sues anesthesiologist.
2. Rule: Expert can establish the first prong of res ipsa, namely that the injury-causing event
would not ordinarily occur without negligence.
Informed Consent
1. Informed consent to medical malpractice: right of person to control their treatment.
2. Misleading information- informed consent is required for reasons of self determination and
patient autonomy (values underlying this cause of action)- doctor cannot impose their judgment
on their patients.
1. Paternalism- doctor making a decision for someone they feel is incapable
2. Ageism
3. Matthies v. Mastromonaco, NJSC 1999 (p. 123)
1. Facts: Doctor gave P bed rest for broken hip, didn't tell her about alternative surgery.
2. Rule: Informed Consent: Liability lies if the reasonable patient:
1. Would have considered the risk reasonably material to the decision and
2. Would have made a different decision (objective causation), if informed.
3. Note that this is required for all treatments, not just invasive surgery..
4. Evolution in med mal- SOC to procedure, to SOC to inform P to make informed decisions.
Vicarious Liability/Respondeat Superior (Liability Attachment)
1. Respondeat Superior- employers are vicariously liable for torts committed by employees while
acting within the scope of their employment.
1. Scope of employment
1. The employee's conduct must be of the general kind the employee is hired to perform.
2. The employee's conduct must occur substantially within the hours and ordinary spatial
boundaries of the employment.
3. The employee's conduct must be motivated, at least in part, by the purpose of serving
the employer's interests.
2. Vicarious liability vs. direct negligence- might stand against an employer.
3. P. 24, N. 7- Employers can still be held liable for actions that have nothing to do with work
if they occur at the workplace and during work hours, because they should not have hired
that person to begin with.
4. Terms- principle (employer), agent (employee), third party (victim)
5. Christensen v. Swenson (1994)
1. Facts: Burns (agent) collides with a motorcyclist, Christensen, while on an unofficial
lunch break. The employees had unscheduled 10-15 minute breaks for lunch and
restroom.
2. Rule: Respondeat Superior: The employee commits a tort while on performing for
work- advertising, driving back to work, on unscheduled lunch break (regular area)employee can be found vicariously liable.
6. Roessler v. Novak (2003)
1. Facts: Roessler underwent poorly performed surgery by an independently contracted
surgeon at a hospital.
Torts Outline - Magee
8
2. Rule: If the putative principal takes actions that give the impression that they are
responsible for the agent, they are legally responsible.
The Duty Requirement, Physical Injuries
1. Definition: legally recognized obligation owed by a D to a P
2. Duty is determined by the Judge, not the trier of fact
3. Classical Duty: existence of a special relationship.
4. Modern Duty: action that embodies a foreseeable risk of harm to others.
5. Negligence implies a breech of duty; the duty requirement is the antecedent issue.
1. Misfeasance: breach of duty
2. Nonfeasance: no duty as to bystander except for special rule.
6. Under common law, no duty is owed
1. To remove a baby from an intersection
2. To warn someone against leaving a baby in an intersection
3. To call 911 when someone leaves a baby in an intersection.
Introduction: General Duty of Due Care
1. Note: Heaven v. Pender, Q.B.D. England, 1883 (p. 132)
2. General theory: whenever one person is in such circumstances that a reasonable person would
recognize that due care is required, a duty arises.
3. Privity doctrine shut down, before Cardozo did in MacPherson v. Buick Motor Co.
Affirmative Obligations to Act
1. Harper v. Herman, MNSC, 1993 (p. 134)
1. Facts: Boat-guest takes a dive without warning, breaks his neck.
2. Rule: Affirmative Duty: arises when
1. The actor realizes, or should realize, that failure to act on his part may cause harm and
2. A special relationship exists between the actor and victim
3. Special Relationships:
1. Common carriers, innkeepers, possessors of land who allow public use, and persons
who have custody of another where the other is deprived of normal opportunities for
self-protection.
Non-negligent injury
4. RST Section 332- if D non-negligently or innocently injures P, general due care arises to
prevent more harm.
5. At common law, one who innocently injured another had no duty to exercise due care to
ensure the other's subsequent wellbeing.
1. Attitude is fading- RST 332- see above
Non-negligent creation of Risk
2. Simonson v. Thorin, N.W. Neb. 1931 (p. 138)
1. Facts: D non-negligently knocked down telephone pole and drove on. P hit pole and was
hurt.
2. Rule: If D non-negligently creates a risk, D has duty to remove risk with due care or
warn others- Maldonado v. Southern Pacific Transportation Co. (1981)
1. Not applicable if the agent did not voluntary assume a duty or created or alter peril.
Torts Outline - Magee
9
2. Applicable if they created the peril or had information to prevent and chose to not.
1.
2.
3.
4.
Voluntary Assumption of Care
D will owe P a duty
Traditionally the standard of care was to leave no worse or RPP.
Farwell v. Keaton, MISC 1976 (p. 140)
1. Facts: Girl chaser gets beat up, D drives him home, leaves him comatose in his car.
2. Rule: Voluntary Assumption of Care: When a party intervenes (usually a rescue):
1. Majority: Reasonable care standard applies.
2. Minority: “No worse off” when you discontinued your aid or protection standard
applies.
3. Companions on a social venture worth noting only if the facts are extremely similar.
Note: Morgan v. County of Yuba, Cal. Ct. of App. 1964 (p. 145)
1. Facts: D told victim he would tell her when prisoner was released. Failed to tell her,
prisoner killed her.
2. Rule: When D voluntarily acts in a way designed to reduce risk to others, reasonable care
arises if
1. Others rely on the undertaking or
2. The actor increases the risk.
Duty to Third Party
1. Randi W. v. Muroc Joint Unifed School District, CASC 1997 (p. 148)
1. Facts: School boards recommended a child molester, who then molested P in a different
school.
2. Rule: A duty to a third, unknown party may exist if the Rowland Factors are favorable:
1. Foreseeability of harm to P
2. Degree of certainty that P
3. Closeness of connection between D's conduct and injury suffered
4. Moral blame
5. Policy of preventing future harm
6. Extent of burden to D, consequences to the community
7. Availability and cost of insurance.
3. Some jurisdictions basically use B<PL (Burden < Probability xGravity)
1. NJ: (1) Relationship of parties, (2) Nature of risk, (3) Ability to use due care, (4) Public
interest in the solution.
2. PA: (1) Relationship of parties, (2) Social utility of actor's conduct, (3) Nature of risk,
foreseeability of harm, (4) Consequence of imposing duty on actor, and (5) Public
interest in solution
3. IL: (1) Foreseeability of injury, (2) Likelihood of injury, (3) Burden to prevent injury, (4)
Consequences of placing that burden on D.
2. Tarasoff v. Regents of University of California CASC 1976 (p. 157)
1. Facts: Regents' therapist's boss said psycho D could go free, but D had threatened P. D
killed P.
2. Rule: If therapist determines, or reasonably should have, that patient a serious risk of
violence to, therapist must use reasonable care to protect the foreseeable victim.
1. Immunity except when a therapist knows definitive and dangerous information (and
reasonably identifiable victim) then there is a liability
Torts Outline - Magee
10
3. Uhr v. East Greenbush Central School District, NY Ct of App 1999 (p. 168)
1. Facts: School didn't test for scoliosis; statute protected negligent testing, but not failure to
test.
2. Rule: When a statute is silent as to civil liability, duty may arise, depending on Sheehy
Factors:
1. Is P in the class of persons for whom the statute was enacted
2. Does civil liability consistent with the legislative purpose and
3. Is civil liability consistent with the legislative scheme
3. If no statute, argue voluntary assumption of care based on P's reliance.
4. Difference between negligence per se and Uhr- debatable whether there was a duty owed.
Policy as Rationale for Limiting Duty
Foreseeability
1. Strauss v. Belle Realty Co., NY Ct of App. 1985 (p. 176)
1. Facts: Con Ed negligently blacked out NYC. P fell in common area, where he had no
contract.
2. Rule: Orbit of Duty is governed by foreseeability of risk to specific parties.
3. The court can “extend the defendant's duty to cover specifically foreseeable parties but at
the same time to contain liability to manageable levels.” Only to foreseeable parties, third
parties in uncovered area not foreseeable.
Non-Commercial Hosts
2. Reynolds v. Hicks, WASC 1998 (p. 183)
1. Facts: D served minor nephew alcohol at a wedding, and nephew crashed his car into P's.
2. Rule: Non-commercial party hosts have no duty to protect third persons from injury caused
by minors intoxicated at their party. Duty on host not expanded.
Negligent Entrustment
3. Vince v. Wilson, VMSC 1989 (p. 188)
1. Facts: Wilson provided funding for a vehicle for her grandnephew who she knew (a) had no
license (b) had failed the driver's test several tests and (c) abused alcohol and drugs.
2. Rule: Negligent Entrustment: entrustor (a) knew or should have known that (b) entrusting
the item to another was foolish or negligent. The relationship between entrustor and
entrustee is inconsequential.
3. Other examples where negligent entrustment applied:
1. Sale of gasoline to drunk. Sale of gun to drunk- yes, but 2005 Protection of Lawful
Commerce in Arms negated it. Keys left in ignition of truck- yes. Radio DJ chase
contest causing highway accident- yes. “Hit man: A Technical Manual for independent
Contracts- yes, 1st amendment outweighed by D's stipulation of knowledge and intent
that book be used to assist contract murderers. Bullets stolen from store- no.
Duties of Landowners and Occupiers
1. Carter v. Kinney, MOSC 1995 (p. 195)
1. Facts: Slip and Fall at Bible Study
2. Rule (Majority): Land Owners are classified as follows:
1. Trespasser: All entrants without permission. Generally no duty of care necessary.
Torts Outline - Magee
11
1. Must avoid willful or wanton negligence
2. Obligation to warn in some circumstances
3. More duty for predictable trespassers
2. Child Trespasser- Possessor is subject to liability if
1. Possessor has reason to know that children are likely to trespass
2. Possessor has reason to know that the condition will involve an unreasonable risk of
injury/death to children
3. Children do not discover hazard or realize the risk of.
4. Duty owed by owner/occupier
1. Exercise reasonable care to prevent against man made harm (does not protect
against natural hazards or dangers that the child should have expected to cause
harm).
3. Licensee: all entrants with permission, except invitees. Duty to make safe danger of
which the possessor is aware (subjective).
4. Invitee: Licensee where possessor:
1. Expects a material benefit from the visit (business invitee), or
2. Extends an invitation to the public generally (public invitee)
3. Exercise reasonable care against known dangers, and those that would be revealed
by inspection.
2. Heins v. Webster County, NESC 1996 (p. 211)
1. Facts: P slip and fall at D hospital where he was visiting his daughter, a nurse.
2. Rule (Minority): Invitees and Licensees combined. Jury decides breach using: (1)
foreseeability, (2) purpose for which entrant entered, (3) time, manner, circumstances of
entry, (4) uses or expected uses of premises, (5) reasonableness of actual inspection, repair,
warning, (6) ease or correction or giving warning, and (7) burden for D and community.
3. Posecai v. Wal-Mart, Inc. LASC 1999 (p. 211)
1. Facts: P was robbed in parking lot at Sam's Club, wearing good jewelry.
2. Rule: Four tests available in other states: (1) specific harm, (2) prior similar incidents, (3)
totality of the circumstances and (4) balancing test.
3. Business owners have a duty to reasonably protect patrons from foreseeable criminal acts.
Foreseeability rests on B<PL. Balancing Test: societal economic interests vs. individual
safety.
Non-Physical Harm: Limited Duty And Other Considerations
Emotional Harm
The Zone of Danger Test
1. Falzone v. Busch, NJSC 1965 (p. 264)
1. Facts: Near-miss caused pedestrian so much fear that she suffered emotional harm.
2. Rule (Majority): The Zone of Danger Test:
1. Reasonable fear of Immediate personal injury with demonstrated physical consequences
(substantial bodily injury or sickness) is recoverable.
Negligent Infliction of Emotional Harm: The Impact Rule
1. Metro-North Commuter RR Company v. Buckley, USSC 1997 (p. 273)
1. Facts: P was exposed to asbestos at work, and fears developing cancer.
Torts Outline - Magee
12
2. Rule (traditional) The Impact Rule: Emotional damages are recoverable when:
1. Physical impact
2. Due to D's negligence
3. Resulting in physical injury or sickness.
Foreseeability
1. Gammon v. Osteopathic Hospital of Main, Inc. MESC 1987 (p. 281)
1. Facts: P received dead Dad's leg in the mail, instead of personal items. Nightmares ensued.
2. Rule (Minority): Trier of fact should determine whether a reasonable person, ordinarily
constituted, would have suffered “severe emotional distress” under the circumstancesphysical impact not necessary (stroke/miscarriage). It was foreseeable that son's reception
of body part would result in severe emotional distress.
1.
2.
3.
4.
Bystander Action
California and NJ (minority)
Porter v. Jaffee NJSC 1980 (p. 286)
1. Facts: P watched helplessly as her 7 year old son was crushed in an elevator shaft.
2. Rule (Minority): Negligent infliction of emotional distress for a bystander, (not in Zone of
Danger) requires: Dillon Factors:
1. The death or serious physical injury of another caused by D's negligence.
2. A marital or intimate familial relationship between P and the injured person.
3. Observation of death or injury at the scene of the accident.
4. Resulting in severe emotional distress.
RST 2d Section 46- One who by extreme and outrageous conduct intentionally or recklessly
causes severe and emotional distress to another is subject to liability if he intentionally or
recklessly causes severe emotional distress to a member of such person's immediate family who
is present at the time.
New York (Majority)
1. Bystander in Zone of Danger
1. P must be in zone of danger, and
2. Observe contemporaneous injury of familial victim
2. Johnson v. Jamaica Hospital, NY of Main, Inc. MESC 1987 (p. 281)
1. Facts: (P) parents' baby girl was abducted after birth from D hospital.
2. Rule (Majority): Bobson Rule: Bystanders may not recover for witnessing the death or
serious bodily injury of a spouse or immediate family member unless they themselves
were in the Zone of Danger. Duty owed solely to the baby.
Economic Harm
Direct Economic Harm
1. Nycal Corporation v. KPMG Peat Marwick LLP, MASC 1998 (p. 306)
1. Facts: D accountant allegedly misrepresented Gulf in audit. 3rd party P relied on the audit.
2. Rule (Majority): Duty arises for D auditor when (at the time the audit is prepared):
1. D intended an individual of a limited class of people to benefit from the information.
2. D knew P's intent to rely on it for a particular or similar transaction.
2. Minority 1- Foreseeability (New Jersey)- even broader than Section 552- (lenient): Duty
arises if D could reasonably foresee (a) that someone will receive the report and (b) they will
Torts Outline - Magee
13
rely on it.
1. RST 2d Section 552- limited group- transaction evidence is wider- represents a broadening
of scope of duty1. No required linkage evidence
2. Reliance upon it in a transaction that he intends the information or knows that the
recipient intends to supply it.
3. Knowledge- actual knowledge on the part of accountants of the limited, though
unnamed, group of potential [third parties] that will rely upon the report, as well as
actual knowledge of the particular financial transaction that such information is
designed to influence.
3. Minority 2- Near Privity Test (New York) (strict): Actual or Near-Privity: privity or
sufficiently approaching privity. Requires
1. Knowledge that the document will be used for a certain purpose
2. Used by known parties
3. Reliance by third party
4. Direct link between accountant and third party
Indirect Economic Harm
1. 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Cntr, NY Ct of App (p. 317)
1. Facts: Neighboring building dropped materials into the street, closing street for two weeks.
2. Rule (Majority): If you have not suffered at least minor physical injury or property damage
despite being in the Zone of Danger, you cannot collect for economic harm.
Causation and Multiple-Defendant Issues
“Actual Cause” or “Cause-in-Fact”: Majority “But-For”
1. But For Test
1. Substantial Factor
1. Cann Test- Zuchowicz
2. Standard of proof- more likely than not- preponderance of evidence- speaks to the level
of certainty or burden of proof
1. Required to establish a prima facie case- cause in fact- if to this level will get to the
jury
2. Has the plaintiff establish enough evidence for the judge to allow this case to go to
jury
2. Stubbs v. City of Rochester, NY Ct of App 1919 (p. 340)
1. Facts: P got typhoid, water supply was contaminated and many people got typhoid that
summer.
2. Rule: If two or more sufficient causes exist, P must establish with Reasonable Certaintiy
that the direct cause was D's negligent actions.
3. Zuchowicz v. United States, 2d Cir. 1998 (p. 349)
1. Facts: (D) Dr. negligently overdosed P, then suffered PPH. Experts said “more likely than
not.”
2. Rule: Cann Test
1. Negligent increase of risk of a harm coupled with
2. The occurrence of that very harm is enough to create a rebuttable presumption of
proximate cause.
Torts Outline - Magee
14
3. Side Rule (Majority): Expert Testimony allowed “if scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to determine
a fact in issue.”
1. Expert testimony should (a) rest on a reliable foundation and (b) be relevant to the task
at hand.
Joint and Several Liability and Multiple Defendants
1. Basic joint and several liability doctrine- juries allocate fault, not causation
2. When there's more than one party liable, plaintiffs sue all of them.
3. Plaintiff sues separately and recover all from either- full collection from one in order to protect
plaintiff.
4. Several liability1. Contribution- plaintiff is partly responsible and seeks payment in part.
2. Indemnity- suit for full repayment
5. Summers v. Tice CASC 1948 (p. 375)
1. Facts: P got hit with two pellets in the lip and eye by two D's. Unknown whose shot it was.
2. Rule: “More probably than not to a reasonable certainty,” or 50% + quantum.
3. When the following is not found, Alternative Liability- unfair to exonate either from
liability- Acting in Concert: multiple Ds who engage in a common activity which is
negligent, and in doing so injure P
1. Activity involves a tortious act
2. Planning and conspiring
6. Alternative Liability Theory: Joint and several liability with burden shifting to the D when:
1. Two or more parties' negligent conduct clearly and unambiguously caused the harm, and
2. If Ds are not held liable, P will not recover.
7. Hymowitz v. Eli Lilly & Co, NY Ct of App 1989 (p. 379)
1. Facts: Ps are children of women who took DES. When they reached adulthood, came own
with serious illnesses (cervical cancer, etc.) All DES was identical in chemical composition,
and it is essentially impossible to tell which manufacturer made which pill.
2. Statute of Limitations extended by legislature for these case specifically.
3. Alternative Liability doesn't work well, because so many Ds.
4. Acting in concert doesn't work well because no common design, in fact, competition.
5. Rule: Market Share Damages: Proportion by market share of smallest possible market that
covers all Ds (here national).
6. Fungibility- definition- mutual interchangeability- All products are made pursuant to a
single formula, is essential to market share liability. E.G. asbestos generally doesn't work,
because there are many kinds of products, but asbestos brake pads do, because they're all
virtually the same.
“Legal Cause” or “Proximate Cause”
1. Benn v. Thomas, IASC 1994 (p. 401)
1. Facts: Decedent P dies of complications from a fender bender. Had history of heart attacks.
2. Rule (Majority): Eggshell Plaintiff: but for
1. The pre-existing state (latent condition) of P and
2. The physical injury caused by D
3. The final harm would not have occurred.
Torts Outline - Magee
2.
3.
4.
5.
15
3. Causation lies despite eggshell- rejects limit on foreseeability. Plaintiff has established
enough evidence- proximate cause should not even be discussed.
4. Eggshell plaintiff rule is limited to physical injury cases in most jurisdictions.
In re Arbitration Between Polemis et. al., England, 1921 (p. 406)
1. Facts: D's stevedore negligently knocked a plank into the hold of a ship, which caused a
spark, and ignited gas vapors in the hold, completely destroying the ship.
2. Rule (Minority): Proximate Cause: If damage occurs as a “direct and natural consequence”
of P's negligent, then D is liable. “Directly traceable.”
3. Breach requires foreseeability of some harm, but not necessarily the harm that occurred.
4. Direct cause → direct consequences “unbroken chain”
Overseas Tankship (U.K.) Ltd. v. Morts Dock (Wagon Mound) 1961 (p. 409)
1. Facts: D spilled oil in a harbor, causing slight damage to the docks. Oil was lit on fire by P,
and caused a lot of damage. Supposedly unknown that oil could burn while spread on water.
2. Rule (Majority): Proximate Cause: Reasonable Foreseeability Test: The damages that
occurred must be “reasonably foreseeable” to D at the time of negligence.
1. Exceptions: ambulance crash, eggshell plaintiff.
Doe v. Manheimer, CTSC 1989 (p. 416)
1. Facts: D didn't trim his bushes in high crime area. P was raped, “but for” the bush.
2. Rule (Majority): Substantial Factor: Whether the harm that occurred was of the same
general nature as the foreseeable risk created by D's negligence.
3. Scope of Risk: A negligent D who increases risk of a particular harm, and is a substantial
factor in causing that harm, is only relieved from liability when (a) the harm is intentionally
caused by a third party and (b) the harm is not within the scope of the risk created by D's
negligence.
Palsgraf v. Long Island RR Co., NY Ct. of App. 1928 (p. 425)
1. Facts: Train guard helped man onto train, man dropped unmarked fireworks, fireworks
exploded, scales fell, striking Mrs. Palgraf who was some distance away.
2. Rule: No duty, because D was not in the foreseeable “Zone of Danger.”
3. Can be used in duty and proximate cause arguments.
Defenses to Liability
Plaintiff's Fault
Contributory Negligence
1. Traditional Contributory Negligence (Small Minority): if P is at all negligent (and the
negligence caused the damages) then D is not liable at all.
1. Last Clear Chance Doctrine- if proven plaintiff can recover completely.
Comparative Negligence and the UCFA
1. Relative Fault determined by:
1. Inadvertence or awareness
2. Magnitude of the risk created by the conduct
3. Significance of what was seeking to gain
4. Actor's superior or inferior capacities
5. Circumstances, such as an emergency
Torts Outline - Magee
16
2. Modified Comparative Fault: P can recover so long as P's negligence was 50% or less of the
cause (type 1), or 49% or less (type 2).
3. Pure Comparative Fault (CA): P can recover whatever percentage of fault D is responsible
for.
4. Fritts v. McKinne OK. Ct of App 1996 (p. 459)
1. Facts: P got in a drunk driving accident, where either he was driving drunk, or his friend
was driving drunk. Doctor (D) performed surgery negligently, and patient died.
2. Rule: In medical malpractice, contributory negligence is limited to patients who act
negligently in their capacity as patients. (No proximate cause).
Avoidable Consequences
1. Avoidable Consequences: Affirmative Duty of P to mitigate harm by due care (objective).
2. Note: Hall v. Dumitru, IL Ct. of App. 1993 (p. 463)
1. P is not obligated to undergo surgery that had a “recognized risk,” within limits.
3. Note: Munn v. Algee, 5th Cir, 1991 (p. 464)
1. Religious nut didn't want to get a blood transfusion and died. Held against the nut.
1. D: Intervening or superseding force or act.
2. P: like an eggshell plaintiff
Assumption of Risk
1. Assumption of Risk: Did P know of the risk and assume it? (Subjective)
Express Agreements
1. Dalury v. S-K-I, Ltd., VMSC 1995 (p. 466)
1. Facts: P ran into metal pole at Killington's, wants to sue for negligence.
2. Rule: RST has a three-part test to see if an exculpatory agreement should be upheld: (First,
is it sufficiently clear in writing?)
1. Was it freely and fairly made?
2. Between parties of equal bargaining power and
3. Is there a social interest with which it interferes?
3. Courts never allow waivers for gross negligence or recklessness.
4. Courts rarely honor waivers signed on behalf of someone else (spouses, minors).
Implied Assumption of Risk
1. Murphy v. Steeplechase Amusement Co., NY Ct of App 1929 (p. 475)
1. Facts: D rode “The Flopper” on Coney Island, and busted his knee cap.
2. Rule: Primary Implied Assumption: If the risk that causes injury is within scope of risks
inherent to the sport/activity, D has no duty. If it's outside the scope of risk, D has duty.
2. Davenport v. Cotton Hope Plantation Horizontal Property Regime, SCSC 1998 (p 482)
1. Facts: P used negligently unlit closest stairway for two months after P notified landlord.
2. Rule: Secondary Implied Assumption: If P accepts risk created by D's negligence, use
comparative negligence as a affirmative defense.
1. Plaintiff must
1. Knowledge of the facts
2. Know that the activity is dangerous
3. Understand the danger
Torts Outline - Magee
17
4. Voluntarily expose himself to the danger.
Damages
Compensatory Damages
1. Seffert v. Los Angeles Transit Line, CASC 1961 (p. 679)
1. Facts: Bus rider got dragged by closing doors, had awful surgeries on leg, might amputate.
Jury awarded 53K Pecuniary Damages, 143K for Pain and Suffering.
2. Rule: On appeal, damages must be so large as to Shock the Conscience and suggest
passion, prejudice, or corruption on the part of the jury to be overturned.
Types of Damages
3. Pecuniary: Past and future wages, medical expenses, services, property damages. (Use
reasonable and necessary receipts for past bills).
4. Distributional Inequities: Courts use race and gender to predict life expectancy and salary.
Children's economic losses are hard to predict. Parents' education and income, average
income for the zip code where the child lives are often allowed.
5. Pain and Suffering: Pain and suffering, emotional distress, also past and future.
6. Most reform in this area has been to cap damages, favors corporations.
2. McDougald v. Garber CASC 1979 (p. 697)
1. Facts: D injured P, leaving her “permanently comatose.” It was a factual issue whether her
brain function allowed her to be “aware” of her situation, or further whether she could feel
pain.
2. Rule: The loss of life is subsumed under the category of pain and suffering. Both require P
to have some quantum level of awareness.
3. Policy: These are compensatory damages, not punitive. We are making P whole. Paying a
comatose P doesn't compensate her.
Punitive Damages
1. Punitive Damages: are available in non-contractual cases where the D has been guilty of
oppression, fraud or malice, express or implied. They are to deter and punish, not to
compensate.
2. Taylor v. Superior Court, CASC 1979 (p. 6970
1. Facts: D was an alcoholic who had a long history of DUI, including an accident. He was
driving drunk and hit P. The trial court dismissed a claim for punitive damages.
2. Rule: Conscious disregard for safety of others shows malice, and therefore allows for
punitive damages to be awarded.
3. State Farm v. Campbell, USSC 2003 (p. 749)
1. Facts: State Farm had an insurance scheme where they limited payouts negligently.
2. Rule: Three Gore Guideposts govern determination of punitive damages, but more
specifically...
1. The degree of reprehensibility of D's conduct
1. Physical versus economic harm
2. Did the act show conscious disregard to the health and safety of others
3. Was the target of the conduct financially vulnerable
4. Was it repeated or an isolated incident
5. Was it intentional, malicious, trickery, or deceitful or merely an accident
Torts Outline - Magee
18
2. The disparity between the actual or potential harm suffered by P and the punitive
damages award (compensatory compared to punitive). The court here said 1:9 was about
the maximum ratio allowed by Due Process.
3. Difference between punitive damages and civil penalties (if civil penalty regime exists).
3. The guideposts should be applied de novo by appellate courts.
Strict Liability
Traditional Strict Liability
1. Fletcher v. Rylands England, 1866 (p. 506)
1. Facts: D farmer built a reservoir, which leaked into P coal miner's adjacent mine.
2. Rule: Strict Liability lies when D brought something onto the land that was likely to cause
mischief if it escaped.
2. Rylands v. Fletcher (appeal of above)
1. Rule: Emphasis on “non-natural uses.” This includes customs. Also, water may not be
inherently mischievous, but used in that way it was.
3. Sullivan v. Dunham, NY Ct of App, 1900 (p. 514)
1. Facts: D dynamited a tree, hurling a piece of wood 412 feet onto a highway where it killed
P.
2. Rule: Inherently/substantially dangerous activities require strict liability. The degree of risk
posed to another is so great, that due care cannot minimize/eliminate it.
4. Policy Concerns:
1. These activities are very useful to society, so we don't want to ban them.
2. But we want to incentivize extreme care and using an alternative method wherever possible.
5. Indiana Harbor Belt Railway Co. v. American Cyanamid, 7th Cir 1900 (p 519)
1. Facts: D manufactured acrylonitrile and loaded it onto a rail car, which later leaked.
2. Rule (Majority): RST Sections 519, 520- Factors making an activity subject to strict
liability:
1. High degree of risk of harm to some person or property
2. Likelihood that it will be great harm
3. Inability to eliminate the risk by the exercise of reasonable care
4. Extent to which the activity is not a matter of common usage
5. Inappropriateness of the activity to the place
6. Value to the community of the activity, weighed against its danger
6. Here Posner focuses on (3), because generally our system favors negligence (culpability-based).
7. Narrow the activity you are claiming is ultra-hazardous. Here manufacture or shipping?
8. Defenses: RST Section 524 says that contributory negligence is only a defense when P
knowingly and unreasonably subjects himself tot he risk of harm from the activity.
9. The judge decides whether to apply strict liability. It is not rebuttable.
Products Liability
1. Hybrid of negligence and S/L
Manufacturing Defects
2. Only concerns consumer expectations.
3. MacPherson v. Buick Motor Co. NY Ct of App, 1916 (p. 550)
1. Facts: D manufacturer used pre-fab wheel, which broke, injuring P, who bought it from
Torts Outline - Magee
4.
5.
6.
7.
8.
9.
19
retailer.
2. Rule: If D sells products
1. Dangerous to life and limb if negligently made
2. Knows parties beyond the buyer will use them
3. (Less important) without new test, 3rd party duty arises.
Escola v. Coca Cola Bottling Co. of Fresno, CASC 1944 (p. 556)
1. Facts: Soda bottle broke in waitress's hand. Bottler used pressure to bottle carbonated
beverages.
2. Rule: When a manufacturer uses component parts that cause injury, rebuttable res ipsa lies.
Majority holds that comparative negligence is appropriate in S/L cases.
1. Retailers are just as liable
2. Bystanders are covered too
3. Used goods are not covered by S/L
4. Three policy considerations for S/L are:
1. Spreading the risk
2. Satisfying reasonable buyer expectations
3. Risk Reduction
RST 2d Section 402A 1965
1. Retailer liable if unreasonably dangerous
2. Expected to reach customers unchanged even if prep and no contract
RST 3d 402A, 1998
1. Defective
1. Despite prep
2. Foreseeable could have been reduced or avoided, predecessor, omission of alternative
design
3. Lack or omission of instructions or warning that would have made the product safe.
Greenman CASC 1963 (Traynor's Escola Dissent becomes Majority)
1. Rule (Large Minority): A 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 cause injury to a human being.
Defect defined by Barker, infra.
Design Defects
1. Cronin v. JBE Olson Corp, CASC 1972 (p. 569)
1. Facts: Bakery truck driver injured when trays came and struck him in the back during crash.
2. Rule: Strict liability extends to design defects as well. Also, a defective design need not be
“unreasonably dangerous.”
2. Barker v. Lull Engineering Co, CASC 1978 (p. 570)
1. Facts: P was hurt when the high-lift loader he was operating overturned on a slope.
2. Rule (Substantial minority, CA) first try
1. Consumer expectations, but if it's too complex a product/situation use
2. Risk/benefit analysis
3. The court decides which test is most appropriate
3. Consumer Expectations: (Simple Products)
1. P must show
1. The product failed to perform as safely as an ordinary consumer would expect
2. The defect existed when the manufacturer last saw it
Torts Outline - Magee
4.
5.
6.
7.
20
3. The defect was the proximate cause of injury
4. The product was used in an intended or reasonably foreseeable manner. (No
“unreasonable danger” necessary).
Risk/Benefit Analysis: (Excessive Preventable Danger in CA. Complex products, where
consumers have no idea now safely the product could be made for particular circumstances).
1. D must show
1. Gravity of the danger posed by the challenged design
2. The likelihood that such danger would occur
3. The mechanical feasibility of a safer alternative design
4. The financial cost of an improved design
5. The adverse consequences to the product and to the consumer that would result from an
alternative design
Soule v. General Motors Corp, CASC 1994 (p. 571)
1. Facts: The left front well of P's Camaro folded back, crushing toe pan, breaking her ankles.
2. Rule: To determine which Barker prong to use, ask whether the circumstances of the
product's failure permit an inference that the product's design performed below the
legitimate, commonly accepted minimum safety assumption of its ordinary consumers.
Camacho v. Honda Motor Co. Ltd., COSC 1987 (p. 584)
1. Facts: P was riding his new Honda Hawk and got side-swiped, nuking his legs.
2. Rule (Majority): RST 402A
1. The jury must determine whether defect was “unreasonably dangerous” in its design.
Ortho Factors for determining unreasonable dangerousness:
1. Usefulness and desirability
2. Safety aspects of product- how likely is it to injure, and how much injury?
3. Availability of a substitute product which is more safe and meets the need
4. Manufacturers ability to eliminate the unsafe character without impairing usefulness
5. User's ability to avoid danger with due care
6. User's anticipated awareness of the danger inherent to the product
7. Feasibility for manufacturer to spread cost by price increase of insurance
RST 3d (Extreme Minority)
1. Does not include consumer expectations, but instead focuses on “reasonable alternative
design.” The majority interprets this as if there was a reasonable alternative design actually
available on the market. The minority interprets it as was there a feasible alternative design.
Instructions and Warnings
1. Hood v. Ryobi America Corp. 4th Cir. 1999 (p. 596)
1. Facts: D bought a miter saw that had warning labels saying “do not remove the guard
blades, serious injury or death can result.” D removed the guard blades, and the main blade
spun off, came back at him and cut off his thumb and lacerated his leg
2. Rule (Majority): To be “adequate,” a warning needs to be “reasonable under the
circumstances.”
1. Pittman factors to determine adequacy of warnings:
1. The warning must adequately indicated the scope of the danger
2. The warning must reasonably communicate the extent or seriousness of the
possible harm
3. A simple directive may be inadequate when it fails to indicate the consequences
that may result
Torts Outline - Magee
21
4. The means to convey the warning must be adequate.
2. Edwards v. Basel Pharmaceuticals, OKSC 1997 (p. 607)
1. Facts: P died of cardiac arrest when wearing two Habitrol nicotine patches and smoking at
the same time. The warning materials given to doctors were quite specific, but the warning
labels given to patients were not. They mentioned only “an overdose might cause you to
faint.”
2. Rules:
1. Generally warnings must be crafted so as to reach the ultimate consumer, the person
who will use it.
2. Exception “learned intermediary” doctrine. Rationale (p. 608) the doctor is in a better
position to know each particular patient's particular needs and potential conflicts of
drugs, etc.
3. There are two exceptions to the learned intermediary rule:
1. Mass immunizations because
1. There is no doctor-patient relationship and
2. They are not administered as a prescription drug
2. When the FDA mandates that a warning be given directly to the consumer.
1. State Law determines the adequacy of the warning, not the FDA.
Defenses
1. General Motors v. Sanchez, TXSC 1999 (p. 620)
1. Facts: P got out of his truck, leaving it in park but running to open a gate. The truck slipped
into reverse, and pinned him to the gate, killing him.
2. Rule (Majority): The consumer has no duty to discover or guard against a defect. But
anything else may be considered contributory negligence.
1. Assumption of Risk: P voluntarily and unreasonably proceeds to encounter a known
danger. The unreasonableness will be compared to manufacturer's responsibility in
putting out a defective product.
2. Negligent Conduct: Other than the mere failure to discover or guard against a product
defect subject to comparative responsibility.