Torts Outline
Nieman – Fall 2006
I.
Negligence -- D is liable if: (1) P suffers an injury; (2) D owed P a duty of
care; (3) D breached that duty; (4) D’s breach was the actual and
proximate cause of P’s injuries.
Plaintiff’s Prima Facie Case:
a. Duty: Plaintiff must establish that the defendant owed her, or a class of
persons including her, an obligation to take care not to cause the type of
injury that she has suffered.” (G50).
i. What is the content of the duty?
1. General Rule: Reasonable Person Standard –
Individuals have an unqualified duty to use Reasonable /
Ordinary Care not to cause physical harms whenever a
person “of ordinary sense” would recognize that careless
conduct on his part would cause “danger of injury to the
person or property of the other.” Heaven V. Pender
(England, 1883) (54).
2. Exception: S.L.: Defendant is liable for the consequences
of his/her actions no matter what D did to try to prevent
tort.
a. Policy:
i. Against:
1. Moral – If someone takes all
reasonable precautions, it is not
morel to still hold them liable.
2. Deterrence – People held to strict
liability will be deterred from doing
socially valuable things.
ii. For:
1. “Two Innocents” – Btwn. two
innocents, acting party should pay.
2. Administrability- Easier to apply
then negligence standard.
3. Exception: D.A.I.: There are some harms to which there is
no legal redress.
a. Policy:
i. Against:
1. Moral – We should ensure that
injured people are compensated and
that wrongdoers are punished.
2. Deterrence – People will not be
deterred from behaving carelessly.
ii. For:
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1. Administrability – It is easiest for
courts to apply this standard.
4. Exception: Premise Liability. “The status of an entrant
on another’s land, be it trespasser, licensee, or invitee,
determines the duty that is owed to the entrant while he or
she is on a landowner’s property. Salaman (Conn. 1998)
(74).
a. Trespassers
i. Definition. “Anyone who intentionally
enters property w/o possessor’s actual or
implied permission.” Goldberg 78 (eg: adult
hiker who accidentally enters D’s land).
ii. Content of Duty. D’s only duty is to refrain
from injuring P intentionally or by willful,
wanton, or reckless conduct. Salaman 76.
iii. Exception – Children Trespassers: If it is
reasonably foreseeable that children will
enter property and be endangered, then
owner has duty of RC.
iv. Exception – If owner knows of the presence
of trespassers on property, must warn of
dangers that are not open and obvious.
b. Licensees
i. Definition. Person who is privileged to
enter or remain upon land by possessor’s
consent, whether given by invitation or
permission. Salaman 76 (ct assumes that
swimmer was licensee at city reservoir that
was sometimes used by other swimmers).
ii. Content of Duty. “Does not ordinarily
encompass responsibility to keep prop in
reasonably safe condition.” Salaman.
Exception: if D knows of P’s presence, then
P must:
1. Refrain from actively subjecting P
to danger, and
2. Warn P of dangerous conditions that
D knows of and can’t reasonably
foresee that P will know. Salman
(reservoir was not hidden, dangerous
condition; would have been
unreasonable to require post warning
signs).
c. Invitees
i. Definition. Ps who are “invited onto the
property for the material benefit of the
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possessor, or in furtherance of possessor’s
institutional purpose.” Goldberg 77. (EG:
customer who enters a store to shop).
ii. Content of Duty: D owes P duty of
reasonable care. Goldberg 77.
d. Exceptions to traditional status rule:
i. Elimination of Invitee-Licensee
Distinction. Approx. half of states created
duty of RC for all those who enter property
by permission, while retaining trespasser
rule. (EG: Tantimonico, RI. 1994) (79).
ii. Elimination of all distinctions. Ca. and
approx. 10 other states have created
unqualified duty of RC for any person
injured by dangerous conditions on
premises, regardless of status. (EG:
Rowland Cal, 1968) (79).
1. Exception 1 (CA): No liability to
trespassers injured while committing
felonies on D’s prop. CA statute
(80).
2. Exception 2 (CA): No liability to Ps
on land for sport/recreational uses.
Ca statute (81).
e. Liability to Non-Entrants:
i. General Rule. D is not liable to take care to
protect against harms caused by “natural”
conditions (e.g. trees on land).
ii. Exception. Must ensure that trees do not
injure travelers on public road where traffic
is frequent and acreage is small
(Restatement 363).
iii. Exception. Owner must take RC when
danger is imposed by “artificial” conditions
(man-made structures) created by/known to
owner or by activities undertaken on
property (e.g. burning leaves).
5. Exception: Nonfeasance. “Where there is no duty, there is
no liability” (Osterlind).
a. “No Duty” Rule: There is no liability for
nonfeasance unless D has a legal duty towards P (if
there is a legal duty, then D must make reasonable
efforts to rescue).
b. ** When is there a legal duty to act?
i. When there is a statute imposing such a duty
(rare in U.S.).
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ii. If the V’s danger is caused by your actions
(even if it was caused unintentionally).
iii. Voluntary Undertakings.
1. Good Samaritan Statutes – Exist in
every state: immunize certain people
who undertake rescues from
negligence liability (does not apply
to medical personal from
malpractice).
iv. Special Relationships (Dr/Pt;
Carrier/Passanger; School teacher;
Parent/Child; Landowner/Guest).
c. Osterlind V. Hill:
i. Facts. Drunk man rents a canoe from D.
Canoe flips over; V calls for help but D
ignores. Man dies and estate sues D for
negligence in (1) renting drunk man canoe;
and (2) failing to rescue V.
ii. Held. D did not have a duty towards V, and
therefore, did not have to act.
d. Theobold V. Dolcimschola:
i. Facts. Boys are in bedroom. One plays
Russian roulette and kills himself. V’s
parents sue other kids for negligence in that
they did not prevent V from doing this.
ii. Held. If Ds were not active participants in
V’s death (which would mean it is a case of
nonfeasance), then they cannot be held
liable bc they had no duty to V.
e. Tarasoff v. Regents of Ca. (special relationship
exception to no-duty rule):
i. Facts. Mental patient tells dr that he is
going to kill V. Dr. has pt committed for a
short time, but then the police let pt go. He
winds up killing V. V’s family sues Dr. and
police dept for (1) failure to warn V; and (2)
Failure to detain patient.
ii. Rule. Dr. must warn foreseeable victims of
patients violence if Dr. knows (or should
have known) that pt. poses a risk of
violence.
iii. Held. Can’t sue due to failure to detain bc
this was a discretionary act and state
employee’s have immunity from liability.
However, can sue Dr. for failure to warn V
because Dr. was in a special relationship to
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patient, which extended his duty to a
foreseeable victim of patient’s violence.
However, cannot sue police, bc there was no
special relationship and therefore, no duty.
iv. Policy. Majority – (1) Deterrence: Dr. could
have saved a life; (2) Moral: Possible
stigmatization of innocents is worth saving
lives. Dissent – (1) Social Welfare: Must
respect confidentiality of patients or you will
deter patients from seeking help; (2)
Administrability: Rule is fuzzy so doctors
will over report.
f. Policy:
i. For:
1. Administrability - Easy
application/less ambiguity.
2. Liberalism – Contrary law would
violate principles of liberalism if it
required more of individuals then
simply refraining from injuring
others.
ii. Against:
1. Moral – Shouldn’t you have
obligation to save someone when
you can?
ii. To whom is the duty owed?
1. General Rule: Reasonably Foreseeable Plaintiff –
Absent a Rule of Privity, to any person who you can
reasonably recognize may be harmed by your negligence
(“reasonable foreseeability”) (55). (“Would a person of
ordinary sense recognize that, if she pursued the conduct at
issue without vigilance for the physical well-being of
others, her conduct would pose a meaningful risk of
physical injury to persons in the position of the plaintiff?”
(G71).).
a. MacPherson (NY, 1916 – Auto manuf can be held
liable for faulty wheel after P is injured – ends rule
of privity and holds D liable bc injuries to P were
foreseeable) (59).
b. Mussivand (Oh, 1989 – P’s wife has affair with D,
gets STD, passed on to P. HELD: D is liable to P
because his injuries were foreseeable) (67).
c. McGuiggan (Mass, 1986 – Social host not liable for
P’s injuries after serving alcohol to adult guest and
that guest getting into accident causing P’s death.
P’s injuries were not foreseeable) (102).
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i. Commercial establishments will be held
liable if they sell alcohol to “obviously
intoxicated” adult partrons or to minors
2. Exception: Rule of Privity. P who is injured by
carelessness on the part of a product manufacturer may not
recover absent contractual privity between P and
manufacturer. Winterbottom (Eng, 1842 – Carriage manuf
has no duty to operator injured by faulty wheel due to lack
of privity) (55).
a. Exception: “Imminently Dangerous Products.”
Thomas (NY, 1852 – allows P to sue co. who
mislabeled poison bottle) (57).
b. **Rule of privity ends w/ MacPherson.
i. There are still some jurisdictions that have
a rule of privity.
c. In Strauss, court “resurrected” the privity rule,
saying that Con Ed can’t be held liable bc tenants
injuries occurred in common area (which involved
K btwn. Con Ed and landlord). But, this case
involved “crushing exposure.”
3. Exception: Policy Reasons to limit Liability. It is the
court’s duty “to limit the legal consequences of wrongs to a
controllable degree and to protect against crushing
exposure to liability” (Strauss).
a. Strauss V. Belle Realty:
i. Facts. NYC blackout. P falls and is injured
as a result of lack of power and water. He
falls in common area of building, which is
provided power via K btwn Con Ed and
landlord. P sues Con Ed, saying that he was
a foreseeable P and that Con Ed failed to
exercise R.C. to prevent his injuries.
ii. Held. For public policy reasons, liabilities
for injuries in a building’s common area
should be limited to K relationships. In this
case, P was not a customer because it
happened in common area, which is K btwn
Con Ed and landlord. Although there is
ordinarily no privity rule (per MacPherson),
when exposure to liability would be
“crushing” to D, then court should limit it.
b. Policy:
i. For:
1. Social Welfare: Should encourage
those doing good things and not
subject them to massive liability.
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ii. Against:
1. Deterrence – If companies not held
liable; no incentive to be careful.
2. Admin.- Difficult/Costly to
determine whether exposure to
liability would be crushing.
3. Moral – “Btwn 2 innocents.”
4. Moral – More damage you cause, the
less likely you will be liable.
5. Redistribution – Big companies in
better position to redistribute liability
costs.
6. Institutional Incompetence – Court
has already set forth foreseeability
test. Only congress can change this.
7. General Equity Argument – We
should treat similarly situated people
equally (If P1 & P2 suffer same
injury, there’s a chance that P1 will
be compensated and P2 will not).
c. Some say that liability should be imposed on the
cheapest cost avoider: person who can i.d. and
adopt most efficient precaution.
4. Palsgraf dissent (Andrews): Thinks that everyone owes a
duty to the world at large.
b. Breach: The question with the breach element is whether the defendant
acted with the degree of care that she was duty-bound to exercise (GS&Z,
135).
i. Zone of Danger (Palsgraf): “The orbit of the danger as disclosed
to the eye of reasonable vigilance is the orbit of duty…the risk
reasonably to be perceived defines the duty to be obeyed and risk
imports relation.”
1. IE: There must be a relationship between the duty owed &
the breach. Just bc D owed P a duty (as RR did to Mrs. P),
they must breach that particular duty.
ii. *Note: Generally, it is up to the jury to decide whether D has
breached duty.
iii. General Rule. “A person acts with negligence if the person does
not exercise reasonable care under all the circumstances
(Restatement 3) – This is an objective “reasonable person”
standard.
1. Typical Jury Instructions: D breached duty if he failed to
exercise the degree of care that a reasonable person in D’s
situation would have exercised.
2. Rogers v. Retrum:
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a. Facts. Boy dies after leaving school with an open
campus policy. Estate sues school and teacher,
saying that open-campus policy was negligent.
b. Held. School owed student a duty based on special
relationship. That duty was to take
reasonable/ordinary care in light of foreseeable
injuries. However, school did not breach this duty
because they took all reasonable/ordinary
precautions to prevent injury.
c. Policy. (1) Administrability: Questions regarding
open campus policy will come up again and we
must have a easy to apply rule; (2) Institutional
Incompetence: School districts should make
decisions, not courts; (3) Distributive: Schools with
policy should not be insurers against ordinary risks
of vehicular injury.
3. Caliri v. New Hampshire DOT:
a. Facts. V killed when car hits ice patch. Sues DOT
for failure to divert water from roadway. P submits
jury instructions that D owed duty to use “constant
vigilance.” Court rejects this and says city owes
reasonable/ordinary care.
b. Held. Trial court did not err in denying P’s
instructions. City only owed duty or reasonable
care.
iv. Exception. Common carriers – “Common carriers have long been
held to owe their passengers greater-than-ordinary care” (146).
1. Jones v. Port Authority:
a. Facts. P injured after bus pulls off before he sits
down. He requests jury instruction that D (as a
common carrier) owed him the “highest duty of
care.” Court rejects this and instead instructs jury
that D owed duty of care that a similarly situated
reasonable person would.
b. Held. Court erred. Common carriers owe the
“highest duty of care” to its customers.
v. R.C. is an objective (“reasonable person”) standard. Even
persons with mental disabilities or low I.Q.s are held to it (*Note:
However, physical disabilities are taken into account – a person
with a physical disability must act with the degree of
ordinary/reasonable care that a similarly situated person would):
1. Vaugn v. Menlove:
a. Facts. D builds a haystack which is defective in
design. Although he is warned that stack may catch
fire, he does nothing about it. Eventually, stack
catches fire and fire spreads to neighbor’s property.
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Judge instructs jury that D had duty to take such
reasonable caution as prudent man would have
exercised under such circumstances. D objects to
instructions, saying they should be that D had a duty
to act to the best of his ability.
b. Held. Court’s instructions were correct.
Reasonable person standard should be applied due
to its objectivity.
2. Policy for holding mentally disabled to R.C. standard:
a. Btwn. two innocents.
b. Incentive for family members/guardians to control
their behavior.
c. Removing insentive to fake a disability.
d. Administrability – Courts don’t have to determine
the significance of disability.
e. Forcing those with disabilities to pay for damage
they do if they are to live active lifes.
vi. Exception. If D is a child, then she can be found liable if she
failed to exercise the degree of caution that a similarly situated,
reasonable child would (Restatement 283A):
1. Exception. In some states “Tender Years Doctrine” will
prevent children under a certain age from being sued,
regardless of their negligence:
a. Appelhans v. McFall:
i. Facts. 5 y.o. hits P with bike. Although
T.Y. doctrine blocks D from being held
liable, P claims that it is outdated and D
should be held liable.
ii. Held. Although T.Y. doctrine may be
outdated, court is bound by stare decisis and
must uphold doctrine.
2. Exception. If child performing adult activities (e.g.
driving), then they will be held to reasonable care standard
of adults.
3. If D < 7; tender years may apply.
4. If D > 7; must act with the RC that a similarly situated
reasonable child would.
vii. Industry and Professional Custom:
1. General Rule in Negligence Cases. Although custom is
an issue to consider, it is not dispositive. Even if you are
following custom, you can still be held liable for
negligence:
a. T.J. Hooper:
i. Facts. Barges sink after towboat enters
storm. Bargeowners sue tugowners for
negligence based on their failure to carry a
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weather radio. Tugowners claim that this
was not negligent because it is not the
custom for tugs to carry such radios.
ii. Held. Just bc it wasn’t custom to carry
radios, tug-owners were still negligent. Says
that court must decide what precautions are
required to constitute proper diligence in
each case – even “universal disregard” of
these precautions will not always excuse
their omission.
2. Exception. In professional negligence cases (e.g. medical
malpractice), the general rule is that a D will be held to
have breached duty if he deviated from the general
standard of care:
a. Johnson v. Riverdale Anesthesia:
i. Facts. V dies after adverse reaction to
anesthesia. Estate sues doctor for medical
malpractice for failure to pre-oxygenate her
(which P claims is the general standard of
care for physicians). D claims that failure to
pre-oxygenate is consistent with general
standard of care. D expert witness says that
D did not deviate from standard of care.
When P tries to ask what witness would
have done in the same situation, this is not
allowed.
ii. Held. Trial court upheld – what another dr.
would have done in that situation is
irrelevant – what matters is whether or not D
deviated from the general standard of care
used by physicians.
b. Typical jury question in medical malpractice:
“Would a typical physician have taken this
precaution?”
viii. “Hand Formula” for breach:
1. Owner’s duty function of 3 variables: (1) P = probability
that injury will occur; (2) L = gravity of injury if it does
occur; (3) B = burden of adequate precautions.
a. If B < PL and D did not take precaution, then he
breached duty.
b. If B > PL and D did not take precaution, he did not
breach.
2. Policy:
a. For:
i. Increases aggregate wealth of society.
b. Against:
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i. Moral – Puts price on human life.
ii. Administrability – In most cases, factors
nearly impossible to calculate.
3. * Only works well in certain cases where it is easy to
calculate factors (economic injury cases).
4. US v. Carroll Towing:
a. Facts. Tug releases line holding barge to a dock.
Barge hits a tanker and sinks. Barge-owner sues
tug-owner for negligence. Tug-owner answers that
barge-owner was contributory negligent because
they did not keep a bargee on board.
b. Held. Hand applies BPL formula and concludes it
is not unreasonable to require that barge-owner
have a bargee on board during the daylight working
hours. In this case, B<PL.
ix. Exception. Negligence per se: Allows P to satisfy the breach
element of her cause of action by proving that D violated a
statutory rule of conduct.
1. Elements of Negligence per se:
a. D must violate statute (Q of fact).
i. In limited cases, there can be an excuse for
the violation which absolves D from
negligence per se.
b. Statute must be designed to protect class of people
which includes P (Q of law).
c. Statute must be designed to prevent same sort of
injuries that resulted (law).
d. Causation – D’s violation must actually cause P’s
injuries (fact).
2. Dalal v. City of NY:
a. Facts. Parties get into an accident. P claims D was
negligent per se bc she was not wearing her glasses,
which was required by her license, and that this was
a violation of state law.
b. Held. D’s actions were negligence per se because
she violated statute w/out excuse, and this statute
was designed to protect against this type of injury.
3. Victor v. Hedges:
a. Facts. D parks truck on sidewalk, in violation of
statute. P gets hit by car who looses control and
drives on to sidewalk. P claims D was negligent per
se bc he was in violation of statute.
b. Held. D was not negligent per se. Although in
violation of statute, the statute was not designed to
protect against this type of injury.
x. Exception. Res Ispa Loquitur:
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1. Rule. “Where the actual or specific cause of an accident is
unknown, under the doctrine of res ispa loquitur a jury may
in certain circumstances, infer negligence merely from the
happening of an event and the defendant’s relation to it”
(Kambat v. St. Francis Hospital).
a. If D provides some evidence to rebut his
negligence, issue will go to the jury.
b. If D does not provide any evidence rebutting his
negligence, SJ will be granted to P on issue of
breach.
2. Elements of Res Ispa:
a. Actual or specific cause of accident is unknown.
b. Injury must be kind that does not ordinarily result
w/out carelessness on someone’s part.
c. Instrumentality causing injury must be in D’s
exclusive control.
d. Injury must not have arisen from acts of
carelessness by P.
3. Effects of Res Ispa: Relieves P of burden in establishing
breach and shifts burden to D to prove that he wasn’t
negligent (it sets up a presumption of breach that can be
overcome by D by providing evidence against it).
4. Justifications of Res Ispa:
a. D is in better position to have evidence regarding
breach.
b. As matter of probabilities, it is highly likely that D
is negligent in these cases so you are saving judicial
resources by applying Res Ispa.
5. Byrne v. Boadle:
a. Facts. P hit by falling barrel of flour in front of D’s
shop. Trial judge finds for D bc P could not
produce evidence establishing D’s negligence.
b. Held. Applies Res Ispa and says that the barrel
would not have fell out of warehouse without some
negligence on D’s part. Barrel falling is prima facie
evidence of D’s negligence and P is relieved from
burden of proving this.
6. Kambat v. St. Francis Hospital:
a. Facts. Woman dies after a pad found in her bowel
after she had surgery, in which doctors used the
pad. P claims that this is res ispa (pads don’t show
up in patient’s bowel absent negligence by the
doctor), but D claims that there are other
explanations (she could have ate the pad).
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b. Held. Res Ispa should have been charged to jury. It
was reasonable for jury to have inferred negligence
based on the circumstances.
7. Ybarra:
a. Facts. Man sues doctors and nurses because his
shoulder is injured after he is done with surgery. D
claim that res ispa inappropriate because there is
lack of exclusivity of control.
b. Held. Res Ispa is appropriate. Although there was
no individual who had exclusive control of
instrumentality (as required by res ispa), you can
group doctors and nurses together and say that
instrumentality was under their exclusive control.
xi. Exception. Strict Liability: Imposes “liability without fault” in
certain circumstances.
1. Legislatures can impose strict liability through statute:
a. NY Central RR v. White:
i. Facts. Company argues that strict liability
scheme set out in workmen’s comp.
legislation is unconstitutional violation of
DP.
ii. Held. Statute is not violation of DP.
Although there are disadvantages, there are
also advantages to imposing strict liability to
both parties (P does not have to establish
negligence, award is limited which is good
for D). Also uses moral arguments (btwn. 2
innocents) and fact that D is in a better
position to protect against employee
accidents.
b. Pingaro v. Rossi:
i. Facts. D held liable after his dog bites
meter reader. NJ dog bite statute imposes
strict liability. D claims that he did not act
unreasonably and that therefore he is being
held liable without fault.
ii. Held. Although D took ordinary/reasonable
precautions, he is liable bc statute imposes
strict liability.
2. Common law will impose strict liability in three
circumstances:
a. Ultrahazardous Activities:
i. Restatement 520: Imposes strict liability for
abnormally dangerous activities.
1. Factors to consider:
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a. Existence of high degree of
risk of some harm to the
person, land or chattels of
others.
b. Likelihood that resulting
harm will be great.
c. Inability to eliminate risk by
exercise of R.C.
d. Extent to which the activity is
not a matter of common
usage.
e. Inappropriateness of activity
to place where it is carried
on.
f. Extent to which its value to
the community is outweighed
by its dangerous attributes.
* Not all factors necessary, must
consider “totality of circumst.”
ii. Rylands v. Fletcher:
1. Facts. D building reservoir. Water
goes through mine shafts and floods
P’s adjacent land.
2. Held. Court imposes strict liability
because D was using land for a nonnatural use.
iii. Klein v. Pyrodyne Corp.
1. Facts. P injured during fireworks
display.
2. Held. Court imposes strict liability
based on ultrahazardous activity.
Finds first 4 factors in restatement
520. Also looks to statute which
requires insurance for those who
have fireworks display and says this
imposes strict liability.
iv. Policy arguments (Restatement 520):
1. Against:
a. Morality- Unfair to impose
liability w/out fault.
i. Response: Since D
engaged in high risk
activity, consequences
were foreseeable.
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b. Administrability- Factors in
520 are ambiguous and
therefore hard to administer.
i. Response: 520 sets up
a “clear rule” and is
therefore more
administerable.
c. Social Welfare: Strict
liability will force Ds to take
too much precaution and
spend too much $.
2. For:
a. Morality – Btwn. 2 innocents.
b. Admin. – Sets up a clear rule.
b. Products Liability.
c. Property Torts.
c. Cause-In-Fact
i. “But-for Test”- P must present evidence from which jury may
conclude that more likely than not, but for D’s conduct, P’s
injuries would not have occurred (Skinner, 216).
1. Skinner v. Square D. Co.:
a. Facts. V is killed after being electrocuted by his
tumbling machine. Claims that switch (manuf. by
D) was defective due to “phantom zone.”
b. Held. Assuming that switch was defective, P can’t
prove that this defect was the “but-for” cause of V’s
death.
ii. Exception. Beswick rule: Interpreting Restatement 323, court
concluded that in cases involving voluntary undertakings, all you
have to do is prove that D increased the risk of harm.
1. Beswick
a. Facts. Instead of dispatching medics, 911 operator
refers the emergency call to a private ambulance
company. Expert testified that if this had not
happened, V would have had a 34% chance of
survival.
b. Held. Since this was a voluntary undertaking, and
since D increased the risk of harm, D is liable.
iii. Exception. Loss of Chance Doctrine: Even when V’s chance of
avoiding harm would be less than 50% absent D’s negligence, D
still liable if he doesn’t act with RC; “if there was any substantial
possibility of survival and the defendant has destroyed it, he is
answerable” (quoted in Falcon).
1. ** IE: If D’s conduct eliminates a substantial chance of
survival, P gets that % of damages (whatever her chance of
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survival would be). ** Usually only applies in medical
malpractice cases. **
2. Falcon:
a. Facts. V gives birth and dies after dr. fails to insert
a tube. If he had, her chance of survival would have
been 37.5%.
b. Held. D is liable because, through his negligence,
he eliminated a substantial chance of V’s survival.
He must pay 37.5% of damages.
3. Policy:
a. For:
i. Deterrence – People will be more likely to
take precaution in these situations if they
will be held liable.
b. Against:
i. Rule is both over-exclusive (P that would
have died anyway gets % of damages); and
under-exclusive (P that would not have died
only gets % of damages instead of whole).
ii. Will lead to doctors practicing defensive
medicine.
iv. Multiple Causes:
1. Multiple Necessary Causes: If two or more persons
concur in contributing to and causing an accident and but
for such concurrence the accident wouldn’t have happened,
the injured person may sue actors jointly or severally, and
recover against one and all (McDonald).
a. Both are “but-for” causes of the injury – but for
both, injuries wouldn’t have happened.
b. McDonald:
i. Facts. Two drivers are negligent and get
into accident. As result, one car hits
pedestrian causing her injuries.
ii. Held. Since both drivers were necessary
causes, both are liable.
2. Aldridge v. Goodyear:
a. Facts. Factory workers get sick. Blame it on toxic
chemicals supplied by Goodyear. However,
Goodyear only supplied 10% of these chemicals.
b. Held. D gets SJ because P can’t prove that
Goodyear-supplied chemicals were a but-for cause
of injuries. Also, we don’t know whether
Goodyear’s chemicals were sufficient, in
themselves, to cause injuries.
c. Daubert Rule: Expert testimony admissible if
i. It is relevant (will help fact-finder);
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ii. It is reliable. Factors:
1. Can theory be tested?
2. Subject to peer review/publication?
3. What is the rate of error?
4. Has conclusion been accepted in
scientific community?
5. * There must be some objective,
independent evaluation of expert’s
methodology.
iii. Justifications for Daubert Rule:
1. You can always find an “expert” to
say what you want. This test
prevents this.
iv. Criticisms of Daubert:
1. Places extra burden on P.
3. Multiple Sufficient Causes: Occurs when there are two
causes and each one, by itself, would have been sufficient
to cause harm. Thus, both fail “but-for” test.
a. In these cases, you apply the substantial factor test
– Was the conduct a substantial factor in bringing
about the harm (i.e. was conduct “non-trivial)? If
so, they can be liable.
b. Anderson:
i. Facts. Two fires burn down house. D sets
one fire and one caused by nature. D claims
that he is not liable bc he is not the “but-for”
cause (injury would have occurred but for
his negligence because of other fire).
ii. Held. D can be held liable because his
action was sufficient to cause the harm and
was a substantial factor in causing the harm.
4. Summer’s Rule. When 2 or more persons by their act are
possibly the sole cause of a harm, and P has produced
evidence that one of the two persons is culpable, then D has
burden of proving that other person was the sole cause of
the harm.
a. Effects of the Rule:
i. Burden is shifted from P having to establish
causation-in-fact to D having to disprove
causation.
ii. If the rule applies, then P entitled to joint
and several liability.
b. * Justifications for Rule :
i. It would be unfair to deny injured person
redress simply because he can’t prove how
much damage each did, when it is certain
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that between them they did all. Let them be
the ones to apportion it among themselves.
ii. Defendants are in better position to
determine which one caused the injury.
c. Summers:
i. Facts. Two Ds shoot at quail. P gets shot in
eye and in lip. D sues for eye injury but
can’t determine which D shot the bullet that
hit him in eye.
ii. Held. Since P has proven that injury
resulted from one of their acts, burden shifts
to Ds to absolve himself if he can.
5. Pre-Empted Causation (“Doomed Plaintiffs”):
6. Aiding and Abetting / Concert of Action:
a. If Ds act together with the purpose of bringing
about the injuries, they could both be held liable
even if P can’t prove which one’s conduct actually
caused his injuries.
7. Market-Share Liability:
a. Sindell v. Abbott Labs:
i. Facts. P injured by a defective, generic
drug. P can’t prove which one of the more
than 150 manufacturers of the drug
produced the pills that injured her.
ii. Held. Summers rule applies and P does not
have to join all manufacturers. If D can’t
disprove causation, then he is liable for $
equal to % of D’s share in the market for the
defective drug.
d. Proximate Cause
i. Note: Prox. cause only comes up if actual cause is met.
ii. Different Prox. Cause Tests:
1. Polemis Directness Test: An action is the proximate cause
of an injury if it directly caused that injury:
a. Polemis:
i. Facts. Workers hoisting benzene containers
up onto ship and knock down plank. Ship
burns (fire couldn’t be reasonably foreseen).
ii. Held. Foreseeability doesn’t matter – since
carelessness directly caused fire, D is prox.
cause.
2. Wagon Mound Foreseeability Test: Conduct is prox.
cause of injury if particular harm suffered by P was
reasonably foreseeable to D at the time of his acts.
a. Wagon Mound 1:
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i. Facts. Ship’s crew carelessly release oil
into water. Nearby dock workers fixing
with welding torches. Sparks from torches
ignite debris which ignites oil and burns
down dock and another ship.
ii. Held. D not prox cause of dock damage bc
fire wasn’t foreseeable – although it was
foreseeable that the oil would “muck up”
dock, this isn’t enough (actual fire must
have been foreseeable).
b. Wagon Mound 2: Other ship sues Wagon Mound.
i. Held. Proximate cause ok because this
damages was foreseeable!
c. Wagner v. Intl. Railway (Cardozo – pre-Palsgraf):
i. Facts. Due to D’s negligence, man falls out
of electric tram. His cousin goes to help him
and is injured. D argues that injuries
weren’t foreseeable.
ii. Held. “Danger Invites Rescue” – D should
have foreseen this and is liable.
d. Palsgraf Dissent (Andrews): Applies
foreseeability test and says that given the explosion,
the injuries to Mrs. P were foreseeable. Also says
that there is no logic to proximate cause inquiries –
it is solved by “practical politics” (has to do with
convenience, public policy & a rough sense of
justice).
e. Kinsman:
i. Facts. D’s ship not properly anchored goes
down river, destroying bridge and causing
flood.
ii. Held. D’s negligence P.C. bc the injuries
were foreseeable. Even though the injuries
may have been more extensive than was
foreseeable, this falls under egg-shell skull.
iii. Policies. Economic/Distr.: City & Ds can
better bear burden than innocent Ps;
Fairness: Can’t hold city solely liable bc
ships’ negligence started the whole mess.
3. Union Pump “Condition” Test: Conduct is not a prox
cause of an injury if it does no more than create a condition
which makes the injuries possible:
a. Union Pump v. Allbritton:
i. Facts. UP’s pump catches fire at chemical
factory and spreads. After fire extinguished,
P must go shut off nitrogen valve and walks
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over pipe rack. Since rack is wet due to fire
and P still wearing fire boots, P slips and is
injured.
ii. Held. Forces generated by fire had come to
rest by time P was injured - pump fire did no
more than create condition that made P’s
injuries possible. Therefore, injuries too
remote & not prox. cause.
iii. Concur. Since P’s injuries weren’t
foreseeable by D @ time of carelessness, D
not liable.
iv. Dissent. Forces generated by fire hadn’t
come to rest – emergency situation still
continuing.
b. Lear v. Perez:
i. Facts. P (truck driver) stops on side
highway to fix broken flashing sign that
malfunctioned. While on side of road,
sleeping driver hits & kills P. Estate sues D
(sign manufacturer).
ii. Held. Sign defect not prox cause bc it
merely created condition.
c. Bell v. Campbell:
i. Facts. 2 cars (one driven by D) collide &
trailer attached to one falls off into opposite
lane. P stopped to help & injured by another
vehicle.
ii. Held. D not prox cause of injury – merely
created condition.
d. Restatement 431: D’s actions must be substantial
factor in bringing about result – reasonable man
would conclude that it was a cause of the injuries.
4. Keeton’s Risk/Rule Formulation: Prox. Cause if harm is
reasonably within the scope of the risks by reason of which
the actor is found to be negligent.
a. If D should have anticipated a particular risk and
failed to avert risk and risk causes P’s injury, the D
is liable.
b. Metts v. Griglak:
i. Facts. Grayhound bus speeding down
snowy highway. Bus splatters slush on
winshield and driver can’t see and runs into
P.
ii. Held. Although Greyhound was careless,
P’s injuries were not within the scope of the
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foreseeable risk that made D’s conduct
negligent in the 1st place.
iii. Eggshell-Skull Rule: Where a particular type of injury to P is
foreseeable, D is liable for the injury even though it is more serious
that might have been anticipated. Defendant “takes P as he finds
her” – D must foresee type of injury; not necessarily extent!
1. Smith v. Leech Brain:
a. Facts. P’s husband (worker) is burned from
“galvanized metal pieces” at factory due to D’s
(employer’s) negligence. Burn turns into cancer
and V dies. D argues that they couldn’t foresee the
extent of the injuries and are not liable.
b. Held. Because the initial burning was foreseeable,
and cancer resulted from it, D is liable.
2. Kinsman: Just bc damage to Ps were greater than could be
expected, this doesn’t matter bc the type of damage (flood
damage) was foreseeable.
iv. Superseding Cause:
1. Rule: A superseding cause cuts off liability of original
actor. An intervening tort is superseding cause if D’s
conduct only creates situation which affords opportunity
for another to commit tort unless intervening acts were
foreseeable by original actor (Restatement 448 & Britton).
2. House v. Kellerman: To be a superseding cause the
intervening act must be so highly extraordinary that
antecedent negligence should be ruled out as a matter of
law as a substantial factor causing accident.
3. Britton v. Wooten:
a. Facts. D (grocery employees) stack boxes to top of
building. Someone intentionally catches fire to
boxes and burns down building. P (building owner)
sues D & D claims he shouldn’t be liable bc arsonist
was superseding cause.
b. Held. D can be held liable because the arsonist’s
actions were foreseeable.
4. Kinsman: D argued that city’s failure to raise bridge should
cut off liability. Court rejects this – “an actor whose
negligence has set a dangerous force in motion is not saved
bc another negligently failed to take acion that would have
avoided this.
5. Restatement 302B: An act or omission may be negligent
if the actor realizes or should realize that it involves an
unreasonable risk of harm to another through the conduct
of the other or a 3rd person which is intended to cause harm,
even though such conduct is criminal.
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6. Intervening Malpractice – Ordinary Med.Mal. committed
in course of treating injuries created by negligence of D is a
foreseeable consequence of causing injury to someone, and
can’t be deemed a superseding cause.
7. Watson v. Kentucky RR (overruled by Britton) held that
criminal act of 3rd party cuts of liability of original actor.
a. Policies For: Bright-line; Morality (shouldn’t hold original D
liable and not intervening criminal).
b. Policies Against: Morality (shouldn’t let D off hook just bc
of intervening cause); Distributive (Watson only lets P collect
from 3rd party; Britton lets P distribute costs to 3rd party & D);
Distributive (if 3rd party is criminal, P won’t be able to collect
a lot).
8. Effect of Superseding Cause: If intervening act is a
superseding cause, original D not liable // If it is not, then P
can collect from both D & intervening party.
e. Injury:
i. Death Cases:
1. Wrongful Death Action (Next-of-Kin sues for their own
losses):
a. Rule: Next-of-kin can only recover compensation
for pecuniary injuries due to death (includes loss of
society, comfort & companionship, loss of wages,
etc. bc these have a pecuniary value). Next-of-kin
cannot recover for mental suffering or
bereavement.
2. Estate/Survival Action (Estate sues on behalf of V):
a. Rule: V’s estate can recover for (1) V’s pain &
suffering after the injury and before death; and (2)
the mental anguish that V consciously suffered by
apprehension/fear of impending death prior to fatal
injury (even if there was no actual pre-death injury).
i. Problems w/this: It is often hard to prove!
3. Nelson v. Dolan:
a. Facts. V is killed when D intentionally runs him
off his motorcycle and runs over him. P’s mother
brings W.D. (depression/anxiety) & Survival action
(V’s mental anguish b4 actual death bc he knew he
was going to die).
b. Held. Mother can’t collect for her own mental
disturbance under WD, but she can recover for her
son’s mental anguish under Survival action since he
consciously feared/apprehend impending death.
4. Common Law: At common law, if death resulted from
negligence, there could be no suit.
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5. Note: These rules aren’t universally applied – WD statutes
vary from state to state!
ii. Loss of Consortium: Spouse/dependant child sues after V is
injured for adverse affects on relationship (loss of emotional &
physical consortium).
1. Note: Loss of consortium doesn’t apply if V dies – then it
becomes a WD action.
iii. Economic Loss: Generally, P can recover for economic loss
caused by negligently-inflicted injury (lost wages, etc.)
1. Pure Economic Loss Rule (Testbank): No recovery for
pure economic loss unless accompanied by a physical
injury to a propriety interest.
a. Policies:
i. For: Admin (bright line) / Fairness
(allowing recovery could lead to limitless
liability for D).
ii. Against: Not fair to limit all recovery for
pure econ. loss – should go case-by-case /
Morality (2 inn.)
2. Testbank:
a. Facts. D negligently looses PCP overboard ship,
causing major spill & water had to be shut down.
41 Ps sue Testbank (restaurants, fishermen, etc.) for
economic loss.
b. Held. Ps can’t recover bc there loss was purely
economic and wasn’t accompanied by physical
injury to property or person. However, commercial
fishermen are allowed to recover.
iv. Emotional Distress (NIED):
1. Different Types of ED:
a. Pain & Suffering (recoverable).
b. ED following physical injury (recoverable).
c. ED leading to physical problems (depends).
d. ED that causes clinically diagnosed conditions (e.g.
depression, PTSD) (depends).
e. ED that makes you scared (depends).
2. General Rule: If MD results from negligently caused
physical injury: recoverable. However, if MD w/out
physical injury; or MD leads to physical problems, might
be problem.
3. Tests:
a. Impact Rule: No recovery absent bodily injury.
i. “Bright-line rule.” But has fairness problems.
ii. Wyman v. Leavitt:
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1. Facts. D negligently blasts rocks
onto P’s property & P sues for ED
resulting from fear to hear safety.
2. Held. Ct. applies impact test & says
ED not recoverable.
b. Zone of Danger: ED recoverable absent bodily
impact when P was w/in immediate zone of
physical danger (Robb):
i. IE: Could have been physically injured by
negligence.
ii. Robb v. Pa. RR:
1. Facts. P’s car stalls at RR Xing due
to RR’s negligence. She is able to
get out of way and not physically
injured but she sues for ED.
2. Held. Since P was in the immediate
zone of physical danger (could have
been physically injured), she can
collect for ED.
iii. Gottshall:
1. Facts. P1 is forced to work in bad
conditions in sight of his friend (coworker’s) dead body. Sues under
FELA. P2 forced to work in really
bad conditions in factory 10-12
hrs/day and suffers mental
breakdown.
2. Held. Applies Zone of Danger test –
P1 gets remand bc he may have been
in zone of physical danger // P2 fails
bc he was not in zone.
c. Genuineness/Foreseeability Test: If judge can be
sure ED claim is genuine, and if ED was
foreseeable by D at time of actions, ED is
recoverable.
v. Bystander ED Claims:
1. General Rule: P can recover for ED induced solely based
on P’s apprehension of negligently caused danger/injury to
3rd person.
2. Dillon: P can collect if her ED was foreseeable. Factors to
consider (Note: These are only factors, not req’ts):
a. Whether P was located near scene.
b. Whether shock resulted from direct emotional
impact upon P from sensory/contemporaneous
observation.
c. Whether P & V are closely related.
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3. Thing: In absence of physical injury/impact to P, ED
damages recoverable only if P:
a. Is closely related to V,
b. Is present at scene at time it occurs and is aware
that it is causing injury to V, and
c. As a result suffers ED beyond that which would be
anticipated in a disinterested witness.
d. Note: Unlike Dillon, these are req’ts.
4. Dillon v. Legg:
a. Facts. P sees daughter killed by car while crossing
street & suffers extreme ED.
b. Held. P can recover because her ED were
foreseeable (see above factors).
5. Thing v. La Chusa:
a. Facts. P’s son is injured by negligent driver. P
doesn’t see accident, but hears about it and arrives
at scene later to see injured son. Sues for ED.
b. Held. P can’t collect bc she doesn’t meet above
req’ts.
c. Policy reasons to Limit Liability: Costly to administer system
& pay awards // If D & insurance have to pay more, public
will have higher premiums // These losses intangible and $
inadequate // Difficult to measure // Unfair to allow all family
members to recover // If limit to family who actually saw
injury – greater certainty and less exposure to liability.
vi. “Exposure Only” Plaintiffs – Asbestos:
1. Usually comes up with exposure cases (e.g. asbestos).
2. General Rule: In exposure cases, P can recover for ED if
he was in “zone of danger” where there was a threatened
physical contact that might have caused immediate
traumatic harm (Buckley).
3. Metro-North Commuter RR v. Buckley:
a. Facts. P exposed to asbestos at job. He gets scared
when he finds out that this increased his risk of
getting cancer by 1-5%. Although no physical
injuries, sues company for ED & future medical
costs. Company says this isn’t allowed under
FELA, which requires a predicate injury.
b. Held. P can’t recover - since P was not in zone of
danger (no threatened immediate physical harm),
there must be physical contact under FELA. Here,
there is no physical contact (exposure to asbestos
not sufficient to meet predicate injury under FELA).
c. Ginsburg (Dissent): Says that exposure to asbestos
does count as physical impact under FELA.
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4. Norfolk RR v. Ayers: RR employee gets asbestosis. Court
rules that asbestosis is sufficient to meet FELA’s predicate
injury req’t.
II.
Damages
a. Compensatory Damages: Compensates P for injury – in most tort cases,
this is exclusive remedy (could include economic/out-of pocket losses,
p&s, depression, anxiety, loss of enjoyment of life, etc.)
i. Rule: A reasonable verdict is what fairly & reasonably
compensates P for injuries. There is no exact formula – must
analyze on a case-by-case basis.
1. Kenton v. Hyatt Hotels:
a. Facts. P (law student) seriously injured after hotel
skywalk falls on her. Hyatt admits liability & P
agrees to limit punitive damages. Jury awards P
$4million in compensatory damages. Judge says
too excessive and issues remittitur for less $250K.
P appeals.
b. Held. $4million verdict is fair considering the
extent of her injuries (which total ~ $2.2-3.2
million). There is no exact formula to see if verdict
is excessive – must go case-by-case. Test is what
fairly & reasonably compensates P for injuries.
ii. Rule: Trial judge should not 2nd guess verdict unless, after
viewing evidence, it “shocks the conscious” or so out of line with
the evidence that it was likely product of “passion & prejudice.”
iii. Remittitur / Additur:
1. Remittitur: Jury award is determined excessive, judge gives P option
of accepting smaller, more reasonable, award, or ordering a new trial.
2. Additur: When jury award is determined to be too low, judge gives D
an option of accepting a larger award or ordering new trial.
iv. Collateral Source Rule: D can’t present evidence indicating that
V has received (or stands to receive) compensation for injuries
from some other source (e.g. insurance, medicare, etc.)
1. Policies: D shouldn’t benefit from “good fortune” of
having wrongfully injured a person w/insurance.
2. Note: ~ ½ states abolished rule for specific torts (like
medmal).
b. Nominal Damages: Damages awarded to P who hasn’t been injured.
c. Punitive Damages: Punishes D for actions – only available for
intentional/wanton torts.
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III.
DEFENSES:
a. Comparative Responsibility:
i. Contributory Negligence – If P contributed to her injuries, she is
barred from recovering from D.
1. This is a “bright line” rule, totally barring recovery.
2. But, it doesn’t seem fair – if D is 99% to blame and P is
1%, P has to bear all of the costs.
3. Note: Most states have done away with this.
ii. Divided Damages (rejected in US v. Reliable Transfer): Each
careless party req’d to share in damages (so if P & D both
negligent, D liable for 50% of P’s injuries).
1. Another “bright line” rule.
2. But still not fair – if D is only 1% cause of injuries, he is
still responsible for 50%.
iii. Comparative Negligence: Damages apportioned based on % of
fault that each party bears in regards to injury (if P is 47% to blame
and D is 53%, then D pays 53% of P’s injuries).
1. This is more fair – apportions damages based on fault.
2. However, apportionment is difficult & often arbitrary.
iv. Modified Comparative Responsibility: Also apportionment, but P
can’t recover if her contribution to injury was over a certain %
(e.g. 50).
b. Assumption of Risk:
i. Express Assumption of Risk (waiver – exculpatory agreements) –
P signs an agreement releasing D from liability. Will usually be
held valid & release D from liability unless:
1. Adhesion K: K drafted unilaterally by business & forced
upon unwilling & often unknowing public for services that
can’t readily be obtained elsewhere. Generally not
bargained for, but imposed on public for a necessary
service on a take it or leave it basis. Factors (Jones): Great
disparity in bargaining power; no opportunity for
negotiation; services can’t be obtained elsewhere.
a. Jones v. Dressel: K releasing skydiving company
from liability is not an adhesion K.
2. Against Public Policy: Agreements usually void if dealing
with common carriers, doctors, lawyers, etc. Factors
(Tunkl): Business a type generally thought suitable for
public regulation; D engaged in performing service of great
importance to public (often matter of practical necessity for
some members of the public); D willing to perform service
for any member of public who seeks it; D has bargaining
advantage; no ability for P to pay extra $ and keep rights to
sue; P is placed under control of seller.
a. Jones v. Dressel: K releasing skydiving company
not against public policy.
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b. Dalury v. S-K-I: Agreement releasing ski company
is against public policy because D’s business open
to public, D advertises & invites skiers to business,
skiing is a big business in this region
i. Policy: Econ/Distr: D can better insure
against risk & spread cost of insurance
among thousands of customers; Deterrence:
If D were allowed to contract away liability,
would have no incentive to provide a safe
ground.
3. Willful/wanton negligence: Exculpatory agreements wont
provide shield against liability for willful/wanton
negligence.
4. Restatement 496b: Exculpatory agreements valid if (1)
freely/fairly made; (2) btwn parties w/equal bargaining
power; (3) no social interest which it interferes.
ii. Implied Assumption of Risk:
1. Rule: P who chooses to take part in dangerous activity,
accepts the dangers as long as they are known & obvious
(Note: Known/ obvious is jury ? [Monk]). Usually, this
serves a complete bar to recovery. However, in some JNs,
effect of AOR has same effect as comp. neg. - fault is
apportioned.
a. Volenti not fit injuria (“to one who chooses to
encounter a risk, no wrong is done”) – Cardozo.
b. Murphy (Cardozo): One who chooses to take part
in dang. activity (CI “flopper,”) he accepts the
dangers as long as they are obvious & necessary.
2. Smollet v. Skayting Development (cited in Monk):
Recovery denied for P injured in ice skating rink due to D’s
negligence of not providing guardrails or carpet around
rink. Ct. rules P fully understood risk of harm &
voluntarily chose to enter rink, thereby, assuming the risk.
3. Monk v. Virgin Islands Water & Power: Contractor fully
understood risk of harm & voluntarily chose to enter area
of risk. The dangers were “known & obvious,” and
therefore, P assumed the risk – no recovery.
4. Note: Many JNs - Ps engaged in certain sports activities
(e.g. sking, etc.) assume the risk of injury.
5. Note: Some JNs have gotten rid of implied assumption of
risk as inconsistent with comparative negligence schemes.
6. ** Diff. between AOR & comparative negligence:
a. With comparative negligence, P is actually
negligent, with assumption of risk, P simply takes
part in dangerous activity with known/obvious
dangers.
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