Torts Outline - DeLisle KHan 2010
Torts vs. Contracts:
 Torts sometimes permits situations that parties would have/should have entered into
 Sometimes keeps people from entering into contracts that want to (consenting to illegal fights)
 Sometimes might protect people against contracts they never would have never entered into
 Torts enforced via liability rules – compensation
Dominant Philosophical Approaches
Economic – The idea here is to get incentives right to reach efficient level of precaution/accidents.
o Posner: “The dominant function of the fault system is to generate rules of liability that, if followed, will bring about,
at least approximately, the efficient – cost justified – level of accidents and safety.”
o Learned Hand: BPL approach that emphasizes preventing actions that are “inefficient” in that the cost of
preventing them is less than the harm they incur (gravity x probability). B < PL = negligence.
Corrective Justice – Emphasis is on returning injured party to their status quo. Some “right” of theirs has been invaded and should be
compensated/corrected. Speaks of “wrongful harms” (see p. 14)
o Reciprocal Risks (Fletcher): Reciprocity of risks. Where risks are reciprocal, it’s a wash so no liability. Where
risks are non-reciprocal, there should be s/l. This could be used to explain different standards from
o Causation ( Epstein) : Pro S/L - A hit B so A is at fault.
o Coleman: There are rights, and if you have wrongfully or inexcusably infringed that right, then I am owed a duty of
repair. Not entirely clear what you have a right to be free from – carelessness? Inefficient behavior? General
unreasonable behavior? The std you would hold yourself to (ie. Reasonableness)?
Holmes/Moral Choice: The only purpose of introducing the moral element of choice is to make the power of avoiding the evil
complained of a condition of liability. There is no such power where the evil cannot be foreseen. Foreseeability = Liability.
Calabresi: Given that there is imperfect knowledge and relatively high transaction costs, want to put liability on cheapest-cost
avoider – the person who can avoid the harm at the least cost should be considered liable. If cannot definitely determine, might be that
the person is in the best position to bribe or better able to spread costs or simply better able to prevent harm.
Some Thoughts (from deLisle):
One view - Tort Law often doesn’t really matter (Shasta County)
Another view – human behavior still does operate in the shadow of tort law – Shasta Cty was an outlier and in a situation where law
was least likely to matter, Japanese mercury cases did make a difference
Sense that there has to be a legal structure in place to prevent bad/problematic behavior; so prevention AND CJ
There is a lot of room for choice within the areas of Tort law
Intentional Torts__________________________________________________
I. Physical Harms
Battery

Battery: the intentional infliction of (unprivileged non-consensual) harmful or offensive contact.
o Intentional – volition to cause act, need not be directed specifically to the outcome nor actual π (could aim for B
and hit C  transferred intent) - sometimes a microscopic amount of will counts. Either purposefully (desired to
cause harm) or knowingly (knew that harm was substantially likely to occur) caused the harm. Intent is not
“motivation”: may or may not be malicious, and is irrelevant.
 Note: The test here is subjective. only what the defendant desired or believed.
o Infliction: Some affirmative action. Not any involuntary action (a “twitch”) or, simply placing a book somewhere
with the hope that it will fall and hurt someone.
o Harmful is the infliction of pain, injury, disfigurement, or impairment to the body or its function. Directly or
indirectly cause injury. Set in motion that causes touching suffices.
o Offensive would affront the sensibilities, or personal dignity, of a reasonable person; need not physical injury.
o Contact physical person or her close property, what she is wearing, holding, or touching.

Battery Prima Facie Case:
1) Act by Δ
2) Intent (Knowledge Standard): Substantial knowledge or certainty; desire
 Statistically certain is not enough (tunnel, one person expected to die  not enough)
3) Harmful or Offensive Touching
4) Causation
5) Lack of Consent

Intent to Produce Even a small of Harm = Liability for All Harm Produced
o Vosburg v. Putney: D is liable : intends an unlawful act (assault or battery), though he may not intend for the
specific harm. Take your π as you find him. 2 layer test:
 act objectively offensive  liable for whatever the degree of harm
 act objectively not offensive  but π take offense, is not liable for battery (ultra-sensitivity rule).
“Take π as you find him” – Theoretic al debate
o View in torts: you kick weakened legs, your misfortune b/c it’s state of P at the time
 What if state is the result of that person’s fault (carelessness) or of someone else? But what if person has
knowledge of condition?
 In Vosburg, he could reasonably expect to not be kicked in a classroom.
 If concerned only with prevention, it’s fine b/c always award an average damage but would not
satisfy CJ
 Battery by Second-Hand Smoke
o Shaw v. Brown and Williamson Tobacco Corp. (1997)
 π contracted lung cancer via 2nd-hand smoke from fellow trucker. Court rejected generalized knowledge of
Williamson that 2nd-hand smoke might reach some non-smokers is not enough to satisfy the intent
requirement for battery.
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Acting Knowingly
o Garratt v. Dailey: Five year old pulls chair out from under geriatric (old woman).
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Minor is liable for what he is capable of comprehending. Ct. found boy knew with “substantial
certainty” the effect of his actions (that would fall).
Transferred Intent
 Talmage v. Smith: D threw stick aimed at trespassers but accidentally hit P in the eye  liability even if
the particular harm or π is unexpected.
Defenses to Intentional Torts

Excuses for Battery: From best to worst: 2 – 6 are just “best guesses” from objective personde
1)
Actual consent; 2) Implied consent (lift up arm for flu shot); 3)Constructive consent (emergency); 4)Substituted
judgment (W consents for H in coma); 5) Insanity; 6) Self-defense.

Consent - Volenti non fit injuria. A person cannot be harmed by that to which she consents. Δ’s burden of proof
o Must be (1) given freely, or (2) implied reasonably. Specifically four kinds.
 Actual Consent is full formed, volitional, pertinent facts available to π; can’t be flawed consent: kitchensink waiver form for cheaper hospital
 Implied Consent a reasonable person would infer from the non-verbal actions of another. (O’Brien  lift
arm, consent for vaccine)
 Constructive Consent ordinary, reasonable π would give under circumstances.
 Substituted Judgment is consent derived from a third party’s estimation of what this particular person
would have wanted in this particular condition.
 deLisle: would a reasonable person come out the same one for himself?
o Aspects of Consent –
o Scope of Consent – To what are you consenting?
o Revocation – Have to be able to revoke your consent prior to act?
o Adequacy of Consent – Flawed: nondisclosure, duress, known or should have known to Δ, etc.
o Manifestations of Consent – Standards here are mostly objective –actions could be reasonably interpreted
as manifesting consent OK (O’Brien)

Mandatory Consent Must Be Specific to Excuse D
o Mohr v. Williams: Patient consented to a procedure on right ear.
 non-emergency operation  Δ liable. Specific consent required. Rationale: bodily autonomy. Note:
minimal damages here if hearing is not in fact impaired due to Dr.’s actions. BUT….
General Consent for Medical Procedures
o Kennedy v. Parrot (1956) the court since impossible to determine everything before they begin the procedure,
consent “construed as general” and that a surgeon could extend the operation to other serious abnormalities and
problems. Applies when neither patients nor anyone else can give consent.
General Consent for Medical Procedures
o Hackbart v. Cincinnati Bengals :(1979) can consent to regular football but not battered out of anguish
Emergency Rule: An emergency may justify un-consented surgery. This notion is based on two possible rationales (1)
Constructive Consent or (2) Substituted Judgment.
o Courts allow hospitals to err on the side of saving life (even if person was attempting suicide so could presume that
might not have consented to life-saving procedure).
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Implied Consent
o O’Brien v. Cunard Steamship Co: Physician may infer consent from patient’s actions (lifting arm)
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Substituted Judgment for Minors or Incompetents
o Generally guardian of mentally incompetent or children
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o
o
Brophy bv. New England Sinai Hosp. (1986) :Euthanasia allowed based on unanimous agreement that patient
would have opted for the same. Compare with Cruzan v. Director (1990) – Euthanasia not allowed on POLICY:
sacredness of life requires “heightened evidentiary requirements” before action (AOT “clear and convincing
evidence). Note: SCOTUS outlawed assisted suicide and euthanasia b/c would pose profound risks to many
individuals who are ill and vulnerable.
What if incompetent expresses desire to NOT consent?
 When operation for the benefit of others, more difficult.
 Lausier v. Pescinki –could not permit the removal of an incompetent’s kidneys, to save his
brother’s life (guardian – sister – opposed it)
 Strunk v. Strunk – court allowed substituted judgment and agreed that the incompetent would
have consented to a kidney transplant
 Curran v. Bosze – court upholds the right of the mother to refuse to have her twin daughters
tested for to see if they could make bone marrow transplants to their brother who was dying of
leukemia
When Consent is NOT an Excuse:


Mistake, Fraud and Duress Invalidate Consent. Consent is ineffective
o Mistake of fact: eating poison candy on Halloween, w/o knowledge
o Mistake of law: submitting to police interrogation if you do not it is illegal;
o Fraudulent representations/Nondisclosure: failing to tell your wife you have STD
o Duress: on threat of life, limb, sometimes property.
Consent of Minors in Illegal Acts
o Hudson v. Craft: 18 yr. old suffered injuries after consenting to participate in an unlicensed boxing exhibition against public policy, holding instigator liable is much more effective than the child
 D is alone liable for illegal activity assented to by a minor. Rationale: (1) punishes instigator of illegal
activities per crim law, (2) protects naïve and weak of mind, (3) statute protects underage athletes (see RST
61). Critique: encourages minors to participate in illegal acts b/c never liable.
 RST 61 where it is the policy of the law to protect a particular class, they cannot consent to an invasion b/c
of their inability to appreciate the consequences, the assent of someone from that class does not stand as
consent.
Non-Consensual Defenses
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o
o
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Insanity is not a Defense for A&B
o
McGuire v. Almy: Nurse attacked by mental patients she cares for unexpectedly.

An insane may be held liable where some sufficient level of intention is found, and where the
victim should not necessarily supposed a high likelihood of danger pre-existed.

Hallucination of hitting A and actually hit B is also liable (transfer intent)

Rationale: (1) Efficiency/Incentives - incentivizes caretakers to be vigilant and guard insane
person; (2) two innocents  punish actor and compensate the injured victim; (3) Corrective Justice unjust to allow insane people to enjoy their wealth while their victims suffer; (4) difficulty in determining
insanity should not be a bar in civil cases; (5) harm occurred due to a “hidden risk,” i.e. P not understand
danger until she entered D’s room.
Liability for the Insane - Insane must have recognized that she was in fact harming another human being, and not
say an object.
Polmatier v. Russ: Δ shoots father-in-law thinking that he’s the devil. H: Liable, insane but intent
SELF DEFENSE
o
Grounds
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1)
There must be reasonable apprehension of harm;

Can be for a 3rd party (if you would have done it in their shoes)
2) Have to have actual and reasonable belief of threat of imminent harm;
3)
force that is commensurate with the actual danger (not excessive force)
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Courvoisier v. Raymond: D accidentally shot a dressed police officer, at night believing him to be one of a
gang of thugs, H: Δ who reasonably believes, correctly or not, he is defending his life, not held liable for
battery.
Against Innocent Bystander: Morris v. Platt (1864): Δ not liable for accidental harming of an innocent
bystander by force reasonably intended in self-defense.
The RST: Δ is liable to innocent party only if he realized or should have that his actions were likely
to create unreasonable risk
Defending a Third Party
RST §76: person is privileged to defend a 3rd party under the same conditions under which he
could defend himself, reasonably
Limitations to Self Defense
1)
Boston v. Muncy (1951) - Importance of reasonable belief that another person intended to inflict
great bodily harm.
2)
Duty to Retreat -- Cts. are split on duty to retreat. Some: must escape w/o using self-defense
where possible. Some: duty to retreat is void when danger within your own home, or where attempting
a valid arrest. RST: need not retreat if only using non-deadly force. May not use deadly force if retreat
is available.
Defense of Property
1)
deadly M’Ilvoy v. Cockran: spring gun to protect tulips  not good enough of a tradeoff, not
proportional to harm. You may only do w/ mechanics what you can do in person.
2)
Kirby v. Foster: A&B is not excused by the D’s belief of embezzlement, justified or not. Rt to
priv prop is not enough to justify violent re-taking.
3)
only time you can use deadly force is dwelling house at night
NECESSITY: A privilege to harm another’s property arises where urgency of circumstance threatens human life or
presents a proportionately larger harm to other, more valuable property. This privilege does not necessarily come cost
free, pay later in court.
Public Necessity: like a taking in property
1)
An immediate imperative to take action, not mere expedience;
2)
A good faith belief that a strong public good is threatened. often no compensation

Officials immune against liability when acting in good faith: Rationale: Asymmetrical incentives: When
property is seized to safeguard common interest - public official who wrongly orders land seizure bears loss if
proven wrong, but no benefit if proven right. (Respublica v. Sparhawk London mayor ordered house tear down
to prevent spreading fire) In tension with constitutional pple of compensating private owners when govt takes
land for public use. Immunity depends on scope of discretion (Scheuer v. Rhodes: national guard hurt π while
quelling riot)
Private Necessity: may protect her interest by using other’s prop. in emerg and not be liable for the technical tort—
owner have no right of expulsion—but liable for damages

Ploof v. Putnam: P moored his sloop to D’s dock during a tempest. D’s agent unmoored the vessel causing
it to be driven upon shore, destroying the ship, and injuring P, his wife and 2 children. Note: (1) symmetrical
incentive: priv. actors may take this act to protect this ship; (2) this privilege tends to be more narrow than
public nec., emergency must be greater, interests must be more sig.
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Certain circumstances to justify entry upon land and interferences w/ personal property: (1)
inability to control (your animal and you have to retrieve), (2) to save goods (3) preservation of life.
Private Necessity Privilege Ain’t Free
o Vincent v. Lake Erie Trans. Co. (Minn. 1910): D’s tied a cargo ship, the Reynolds, to P’s dock during
a strong storm, causing damage to the dock.
 Incomplete Privilege (RST 197) - one is privileged to enter the land of another in order to
prevent serious harm to the life, land or chattel of oneself or others. A person who enters
under this privilege, however, must pay compensation for any damages.
o Rationale:
 Incentives/Economic: Want no incentive to use and be negligent with another’s property.
Only use if really necessary and hopefully can weigh the costs and benefits (don’t tie your
$15 raft up to a $2000). Encourage people to help others
 Corrective Justice: Unearned enrichment–party has gained a benefit at the other party’s
expense and should pay
 Aside: Efficiency Counterfactual: Imagine what K parties would have made before the
storm. Necessity doctrine is thus a way to maximize efficiency by implementing the K that
would have been agreed to beforehand. Critique: (1) problem of inter-personal valuations
(people irrationally, and emotionally price); (2) would still “force” people to sell, just at a
higher price, may not choose to not bargain.
Spreading the Cost of Priv. Necessity
o
Mouse’s Case (Eng., 1609): Under law of General Average Contribution, a sea master may
jettison some of its cargo in order to secure the ship and its remains, and the others must compensate
for the expelled cargo so that the loss is borne equally by all interested parties.

Spread the cost among people
Necessity and Bilateral Monopoly
o Post v. Jones (1856) – “the doctrine that a sailor can take advantage of his situation, and avail himself
of the calamities of others Cannot take advantage of someone’s urgency to turn a profit, public or
private
II. Emotional Harms
Assault

Assault (failed battery). Intentional causing of imminent apprehension of a harmful or offensive contact.
o Blackstone Commentary: Assault is an attempt to offer to beat another, without touching him
o Prima Facie Case:
1) Acts intending to cause a harmful or offensive contact with the person or a third person or an imminent
apprehension of such contact, and
2) The other is thereby put in such imminent apprehension.
Definitions
o Intent to Cause Apprehension. Two interpretations:
1) Objective: (most cts. allow this interp.) Intention to cause apprehension where a reasonable person in the
victim’s shoes would have been so affected. Ex: shoot another with an unloaded pistol  assault
2) Subjective: (RST) Intention to cause apprehension only exists where that particular individual in that
circumstance did in fact experience apprehension.
 Tuberville v. Savage (1669): accidentally hits someone but does not intend to, it is not assault. Conversely,
if someone intends to hit but is not able to, assault.
 Allen v. Hannaford (1926):
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o
o
o
o
Use of empty gun to threaten another still qualifies as assault. Whether there is an assault in a given case
depends more upon the apprehensions created in the mind of π than upon the secret intentions Δ.
Harmful or Offensive Contact:
 Must be imminent in time and space, and
 Must be apprehended by victim.
 Ex: Laura calls Elena and threatens to put bright blue eye shadow on her. No real threat b/c not
realistic for her to come to Philly. Not imminent.
 de S. and Wife v. W. de S. (Eng. 1343): Tavern keeper’s wife stuck her head out and D swung at it with a
hatchet and missed. H: Even doesn’t actually hit her, it is still assault b/c created reasonable
apprehension of harmful contact.
Words Alone Insufficient. require a context that creates a reasonable promise of execution. Ex. If boy threatens
to kiss π but is immobile, no real threat.
Need not Possess Fear. P need not have felt fearful, just understanding. “Apprehension” in this context may either
be thought of as a doctrinal convention, or as a real existential state but not necessarily an emotive one. deLisle
notes: that there is some controversy as to whether this std. is obj or subj.
Conditional Threats. Illegal demands that create illusory choices are still assaults. “your money or your life,” (1)
no real option exists and more importantly (2) illegal demands are not compelling, so that conditional threats are de
facto outright threats.
Assaults on Third Parties. A threat upon a third party does not create a claim for assault for another.
 Ex. Crazy neighbor attacks Spencer for putting out trash too early. Elena cannot make claim for
assault.
Philosophical Views:
What Torts Do. A First Look at Reasons for Liability and Recovery – Restoring to status quo
Faultless Tort Insurance. Marc Franklin (Supp I), Replacing the Negligence Lottery: Compensation and Selective Reimbursement
(p. 403)
 A Shifting Trend: “The focus upon the victims of accidents, and upon providing similar treatment for similarly situated
persons suffering similar injuries.” (Damages not subject to variability of suits.)
o Justification: “From the standpoints of evenhandedness as well as efficiency, some form of first party protection to
cover all disabling accidents, however caused”
 The Plan: (1) funded publicly; (2) Social Welfare Model: Victims covered medically, 85% of lost income, pro-rated down
to not less than 75% for contrib. negl.; (3) result: fault no longer relevant. Wrongdoer’s damage liability would bear no
necessary relation to his culpability.
A Rocking Critique of Modern Torts. Richard Abel, A Critique of Torts (p. 322)
 A Failure of Tort Law: “broad agreement that the purposes of tort law: to pass moral judgment on the wrong committed,
respond to the victim’s needs, and encourage future safely  fails all 3.
 Tort Law is an Incoherent Moral System: “It consistently violates the basic prin. of proportionality between the
wrongfulness of the Δ’s conduct and the magnitude of the penalty imposed. Because punishment is a function of harm
caused it is either to severe or too lenient.”
o Deep pockets contradicts prin. of moral fault.
o Utilitarian analysis requires fault acc. to damages and this has two negative results: (1) The very wanton, and the
very careless are lightly punished when their acts happen to have minimal consequences; (2) The very careful and
prudent will be punished severely when their acts happen to create enormous consequences.
o Does not adequately compensate victims due to concerns of attributing fault in proper proportion to volition and
causality. Few victims are ever made whole (only 12% acc to Eng. accident victim study).
o System inefficient: “A very large portion of the money paid by defendants is consumed by private loss and liability
insurers, courts, and of course lawyers. Victims receive only a small fraction.” [p. 328]
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Dehumanizing: “[M]oney damages are rationalized as enhanced present pleasure in lieu of years forgone—a
secular version of the Faustian compact.” [p. 329]
Economic Analysis is Flawed: Tort system argues that fear of liability compels potential tortfeasors to engage in a costbenefit analysis thus depressing risks and increasing safety. Not true. Eight ans: (1) benefits not calculable; (2) unequal
recovery for the poor means unequal exposure to risk; (3) assumes trier of fact is equipped to perform an accurate CBA; (4)
causation is an incorrigible problem; (5) moral judgment and compassion need to trump the CBA’s narrow view; (6) assumes
ec. rationality and the wisdom of market functions; (7) assumes tort victims bring suit and do recover, however, few do; (8)
the system encourages the shrinking of liability, which may or may not decrease accidents.
o
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Torts as Efficiency Calabresi & Melamed, Property Rules, Liability Rules and Inalienability: One View of the Cathedral
 Property Rule. Once original entitlement is decided, state doesn’t try to decide its value
 Liability Rule. additional state of state intervention, value for transfer of entitlements or destruction is allowed on the
judgment of the state
o Torts does not generally allocate costs according to pre-negotiated contracts, or allocate entitlements acc. to
negotiation b/c the things that tort law protects are either unquantifiable, worthless, or far too valuable to be used in
an efficient market application. It is inefficient to do so. Thus we use a liability rule, not a property rule.
 Inalienability Rules - Prohibition on sale of entitlements. Certain transactions, such as selling lands to polluters, selling
yourself into slavery, and selling babies, are enjoined due to their radical inefficiency. These practices, would create
externalities, to the detriment of society. Paternalism in this context is a positive force, by preventing people from doing
things that in the long run would create an overall reduction in efficiency.
Insurance for Torts. Coleman, Risks and Wrongs
 Criminal Law vs. Tort Law: Tort law allocates old losses to another, while criminal law creates a new loss and imposes it
on the wrongdoer by way of deserts. Unlike criminal law “The principles of justice and responsibility expressed in tort
law...permit risk spreading.”
 Wrongs are rights invasions: the invasion can be innocent or culpable, permissible or unjustified, in either case we need an
account of rights. The liability rule doesn’t protect rights
 Risk spreading in tort makes as much sense as liability rules fashioned to reduce ex ante risks. Tort insurance makes
particular sense in cases of innocent but negl. D’s—thus the ubiquity of auto ins. This is efficient.
 Moral Choice. Holmes, The Common Law.
 Negligence liability as a penalty for disobedience - based on fault
 Strict Liability: if you voluntarily act, liable for all foreseeable damages that ensue
 Foreseeability: Holmes’ theory rejects economic/CJ theories. If harm is foreseeable, you’re at fault &
ought to pay. Necessarily involves some element of moral choice.
Comparative Look
Tort Law and Contract Law, deLisle:
 Torts might be thought of as a series of contracts we would have made ex ante, with the notion of private property rights,
and thus efficiency snuggles up close.
o In Vincent, (1) increase efficiency, and (2) preserve the dignity of the dock-owner by presenting him with a choice
ex ante, instead of mere damages ex-post.
o Mouse, and might have helped to save London from burning. Further, the fact that consent is an excuse for battery,
suggests that a certain amount of thinking of Torts as Contracts is occurring here. Lastly, Torts, like K, will often
not put normative valuations on harms, and allow amoral and inalienable trades.
 Critique: (1) Not all human relations and activities can be explained in terms of property rights, and not all actors are
rational, they may have subjective valuations  transaction cost (2) in K, there is always the choice to not K, and to the
extent it applies, an absolute preservation of autonomy; (3) K in optimum, non exigent circumstances ends up with
“wonky” outcomes, such as the near-$1 mil. dock in Vincent.
Tort Law and Criminal Law. deLisle
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Torts, like Crim. look to culpability & volition to determine liability. This takes will, and autonomy of the individual
seriously.
 Critique: (1) Unlike Crim. Torts to punish D; (2) Like in Vincent and Ploof, necessity won’t nec. put actors in the right, but
simply, just not “in the wrong”; (3) s/l, care is not the issue, can’t be explained through crim; (4) neg. cannot be accounted for
in crim law because of the missing volitional component; (5) torts remedies old costs whereas Crim creates and allocates new
costs.
Torts as a Compensation Theory. deLisle
 Torts might be conceived simply as a mechanism to remedy of victims.
 Critique: Many harms occur that are not compensable. Torts only fixes those harms that deserve to be recovered from.
Combining all the Theories. deLisle
 Take elements from above notions and piece them together. (1) Take K and remove the preference for autonomy; (2) take
crim and subtract P’s requirement for the punishment of D in particular ways; (3) take compensation and add the element of
compensable harms.
Sum Up: Intentional torts: battery, trespass, assault. Accidental torts: negligence and strict liability
Strict Liability v. Negligence: Unintentional Harms Negligence v. Strict Liability
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Different distributional effects – who incurs costs (so while the resulting level of care may be the same in either one, the
distribution of who pays will differ)
o Ex: Bolton: P=.10, L=$200, B=$50. Under a BPL won’t do B b/c > PL. harm occursno liability. Under a S/L
standard, they still won’t do B b/c expected loss < B. BUT, harm occurs liable. Thus the distribution is different.
Activity level adjustments
o Under neg. standard– there is no incentive to reduce activity level, just level of care and never held liable, but
activity level can have major impact on risk and # of accidents
o Under S/L standard, people will temper their level of activity (or whether to engage in activity at all) b/c they are
always liable for every accident (driving example).
Administrative costs – one of the claims is that negligence cases cost a lot more to litigate, but on other hand under SL
standard there will likely be more claims b/c there isn’t as high a bar to prove, and still always have to prove causation.
Marginal precautions – if can make a $100 fence to prevent $400 of harm or can make a $300 fence to prevent $450 of
harm – economically wouldn’t make the $300 fence…
Classic Unintentional Harm Case
o Brown v. Kendall (Mass. C.A. 1850): D accidentally swatted P in the eye w/ a stick while trying to separate fighting
dogs. H: A legal act executed with ordinary care, no liability; negligence standard
 Ordinary care : “the kind and degree of care, which prudent and cautious men would use, such as is
required by the exigency of the case, and such as is necessary to guard against probable damage.” –
under the circumstances
Origins of S/L for Abnormally. Dangerous. Activities (Non-natural uses)
o Rylands v. Fletcher III (Eng. 1868): H: A superior force kept through a non-nat use of one’s land is kept at one’s
peril. Rationale: (1) not act of god. (2) non-natural use
 Non-reciprocal Risk (Fletcher): Δ creates the asymmetrical risk/benefit relationship with π, s/l is
appropriate for such asymmetry. Deprived π’s right unreasonably
 Causal Fault (Epstein): Δ’s water hit π. However deLisle thinks that to apply Epstein’s theory here
requires we use his “Dangerous Conditions” exception: “E fashions a chair that cannot support the weight
of a 150 lb. man because its legs are insecurely fastened to the seat, such that when subjected to the stress
that it was designed to receive it creates a dangerous condition.” Thus deLisle’s Critique: “A’s
Dangerous Condition Hit B” is less intuitively satisfying than the original formulation “A hit B.” 
creating the peril but anti-devleopment
9
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Public Policy: England, a country with plenty of water, where water often poses a threat and a nuisance,
would prefer to protect mines over reservoirs.
 This is a sort of pre-cursor to the s/l for ADA.
Non-Natural Uses:
o
artificial and not appropriate w/ regard to human comfort/habitability, or custom.
 Richards v. Lothian: plumbing throughout a bldg is a standard and appropriate so not liable to damage
from flooding if no negligence.
o
Brown v. Collins Exception to Ryland (N.H. 1873):

D’s horses, through no fault of his own, became frightened and trampled a post on P land. H: D
not liable if in the course of managing animals with reasonable skillfulness, and without malice, or
negl. Rationale: Rylands is a bad R b/c (1) overbroad: makes one responsible for the small spark that
ends in massive conflagration; (2) creates snowball: would make everyone responsible for “ all acts
that disturb the original order of creation”; (3) arbitrary: ignores fault; (4) anti-progress: un-nat act
selects against dev. and protect, “savage life.”
 Interprets Fletcher v. Rylands very narrowly to mean artificial.
 Fletcher in his “reciprocal risks” takes this much less literally to mean out of the ordinary and
non-reciprocal in the community
S/L for Dangerous Machinery: this was decided like ADA
o
Powell v. Fall (Eng. 1880): D ran his traction engine legally and w/o fault, a spark from the engine caused
the destruction of a rick of hay. H: Even when acting w/o fault,, D is strictly liable for harm caused.

Rationale: (1) Rylands (reciprocity of risks, abnormally dangerous); (2) Economic: since you
profit from activity, you should internalize cost  if not cost-justified anymore not a social good
adjust activity level
It’s All a Wash – S/L
o
Losee v. Buchanan (N.Y. 1873):
 D’s boiler, operated with care, exploded, damaging P’s premises. H: not liable if no neg. Rationale: D
receives his “compensation for such damage by the general good, of a modern industrialized society.
I.e. it’s all a wash since we all do engage in activity that benefits/harms others.  Coase
More than Minimal Foreseeability Required to Ground Negligence
o
Bolton v. Stone (Eng. 1951): ball furthest it had been hit in 40 yrs. striking π. During the previous 30 yr.
period 6-10 balls had been hit over the fence. H: Δ took reasonable care of playing cricke not liable. (but
should we play at all?) Rationale: Foreseeability alone not sufficient. The true test is how likely the event is
to happen and the degree of harm that would occur (BPL). Instead, where risk is remote and safety does not
demand precaution then none is required .
o
Views:
 Economic:
 BPL - cost of preventing against the likelihood of injury and gravity.
 Could also way the utility of playing cricket at all.
 CJ. Player owes a duty to not infringe on π’s right to be free from harm. Coleman: batsman is
responsible to repair losses through his wrongful acts invading π’s freedom from injury. From a pure
Epstein: “Batsman hit Betsy.”

Holmesian Moral Choice. foreseeability; Unclear how much Holmes would require.
Theoretical Views on S/L
Corrective Justice (Coleman) [p. 133]
 A loss is wrongful where it invades some right, particularly the right to exclusive control over one’s body and property (often
thought of in terms of a physical invasion). actor has duty to compensate no regard for fault or willfulness.
10
o But does not make an argument that have the right to be free of all risks – only from “wrongful risks” – the plaintiff
cannot hold the defendant to a higher standard of conduct than that to which she would hold herself. If the plaintiff
cannot identify any flaw in the D’s conduct, she cannot characterize that conduct as “wrongful.”
o 3 Basic Views of CJ:
1) Non-reciprocal risk theory (Fletcher) – has a S/L type variance
2) Causation (Epstein), but qualified – closer to “A hit B” the closer to liability
3) “Rights-based” approach – that what defendant did infringed on some protected right of the plaintiff –
also leans toward S/L when involves “wrongful” risks
Reciprocity (Fletcher):
 Pro S/L for non-reciprocal risks.
 Risks most people impose upon one another offset  no liability for them (Vincent, Rylands).
 Paradigm of Reasonableness = Efficiency – Did the benefit outweigh risks?
 Reciprocity sometimes not = efficiency – sometimes overlap and sometimes not.
o Criticism:
 There will always be some asymmetry in risks. How do you measure and how much diff? What about the
social utility of the risk? (Boomer)
Causation ( Epstein)
 Pro S/L – Causation equals fault (“A hit B”) The line Epstein is trying to draw is causation – he is trying to qualify what it
means to create a harmful condition (not that it was incidentally related or that act of God intervened). The closer you get to
the basic A hit B, the closer you get to S/L.
Calabresi: [p. 134-136]
 Optimal amount of accidents is not no accidents
 Compensate π and then spread losses as broad as possible or, those who can most afford it; or those who carry out dangerous
activities (primary accident avoidance and maybe substitute for safe activities)
 General deterrence/market approach instead of banning activities all-together
o individuals know themselves the best
o give people right to pay for the risk if they still want the activity
o incentives for care-level adjustment
 Argues that litigation costs decrease under S/L b/c of simple to decide outcomes, but the # of cases increases, while negl.
regime tends to decrease the number of cases but increase the administrative cost per case due to uncertainty.
Corrective Justice
Economic/Utilitarian
Non-reciprocity; causation (but…) condition
Maximize economy and utility
Rights; “moral choice”/agency
Minimize cost of accident and avoidence
Negligence ________________________________________________________
 Four Elements of Neglience
1) Duty of Care: Each person owes a duty to behave as a reasonable person would under similar circumstances.
 Objective Std: Doesn’t matter whether that person believed they were acted responsibly, only whether what
the reasonable person would have thought (Vaughan v. Menlove). Generally other deficiencies are not a
defense – infirmity, being particularly slow, stupid, clumsy, careless.
 Issues: To whom does the D owe that duty? If a reasonable person would not have foreseen injury to
anyone, then there is no duty owed to a person unexpectedly hurt. But cts are split on whether D only owes
duty of care to a “foreseeable victim” (Cardozo in Palsgraf or not).
2) Breach: Did the D’s conduct, whether by way of act or omission, fall below the reasonable std. of care and expose
P to an unreasonable risk of harm?
 Failure to come to a “reasonable” std of conduct. different theories
11
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Econ: weigh the Risks (PL) VS. Benefits/Burden (expense spared by not taking precaution, social
value that attaches to D’s activity, availability and cost of safer methods).
 Holmes: Was the risk reasonably foreseeable?
 CJ: Did that person have a right to not be harmed/injured by X? Did D’s conduct fall below a
standard that P would have held himself to?
3) Causation: Was the D’s failure to meet the std. of care causally connect the P’s Harm?
4) Damages: Did P suffer harm? Pecuniary? Non-pecuniary? third party?
Breach of Duty

Possible Standards:
 The Reasonable Person; Efficiency/BPL; Custom; Statute; Res Ipsa Loquitor
 Analyzing Negligence
1) Duty?
 Foreseeable harm to anyone? To that plaintiff?
 Heightened standard? (Patient-doctor, special relationship, professional/expert)
2) Breach? First two are general standards that can apply to all cases
 Reasonable person
 BPL
 Custom
 Statute
 Any exception for this D? (minors, infirmity, sudden onset of delusions)
3) Causation
 RIL?
 Cause in Fact
 But For
 Multiple Defendants
o Jointly created a harm – substantial factor?
o Separately created an indivisible harm –apportion blame?
 Proximate Cause
 Directness
 Foreseeability: To this plaintiff (Cardozo); Anyone (Andrews)
4) Plaintiff’s Conduct
 A/R
 Primary
 Secondary
o Reasonable or Unreasonable?
o Adequate warning?
o True informed consent to the risk? Capable of giving consent?
o Reasonable care?
 Comparative fault/contributory negligence
 Pure or modified
5) Damages
 Apportionment among joint tortfeasors
 Defendant insolvent?
 Lost wages or other compensatory damages?
 Lost Chance of Life
 Wrongful Death
 Injunction
I. The “Reasonable Person”
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 Always under the circumstances (excellent standards what we should do or Idiocracy?)
 No S/L for Careful Driving
o Hammontree v. Jenner (Cal. Ct. App. 1971): D, w/ legal license, accidentally drove through P’s bicycle shop during
an epileptic seizure. H: Liability for auto accidents is negligence, not s/l. Not s/l but negl. at worse when D
comporting with law and causes damage to another’s person and prop. Here no negl. b/c seizure not foreseeable.
 Reasonable Person Std is Objective
o Vaughan v. Menlove (Eng. 1837): D was warned of the flammability of his hay rick near another’s prop. Hay
spontaneously ignited destroying P’s prop. H: D will be held liable for harm causes based on the std of a
reasonable person’s behavior in a certain situation. Objective std for reasonable: Doesn’t matter whether that
particular person though they were acting reasonably.
 Rationale: semi-consistent std for behavior that others can expect.
 Corrective Justice: You have a right to a certain amt of security and shouldn’t vary according to
the capacity/foresight of the other actor.
 Economic: If are constantly worried about the level of risks you will be exposed to then will
under-participate in risky activities (e.g. driving)
 Infirmities Do Not Excuse Duty – same as Menlouve
o Roberts v. Ring (Minn. 1919): 77 yr. old D, hard of hearing and vision, drove 4-5 mph, and ran over and injured 7
yr. old P. H: Δ is liable for failure to meet a std of care as exercised by ordinary, prudent, normal men regardless
of the handicap; if P a youth, he shall be held to a std of contrib. neg. appropriate to average children of his age.
Note: No contributory negl. b/c the child was engaged in the harmless activities of children.
 Some Exceptions:
1. Minors: lower standard except for “adult” activities Daniels v Evans (N.H. 1966):
Motorcycle driven by minor crashed into car and rider was killed.
2. Professional/expert can sometimes be held to higher standards
3. Blindness or physical infirmity – some leeway given provided that behave prudently
given their conditions
4. Insanity – under certain circumstances, like sudden onset of delusions with no
forewarning (“Superman” case) There’s a T1 of clarity and a T2
5. Emergency – different standards applied, since negligence is relative to the
circumstances
 Batman Delusions were Unexpected so Excused
o Breunig v. American Family Insurance (Wis. 1970): D suddenly veered across the center lane, seized with
delusions, striking another vehicle. H: Where delusions without forewarning  not liable.
 Rationale: unlike drunk driving cases, negl. may arise when one knowingly decides to drive incapacitated.
No such warning was present here.
 Holmes: Can’t be held liable for what you can’t foresee.
 Higher Std. of Duty is Owed to the Disabled
o Fletcher v. City of Aberdeen (Wash. 1959): Workman for the city failed to replace a barrier around a ditch dug in
the st. Blind man w/ cane fell in. H: City has the responsibility of anticipating that its streets will be used by people
who are physically handicapped, and so as long as that person uses care, then city is liable for negligence. Note: The
city had placed barrier already which indicates both that the possibility that someone would fall was foreseeable and
that the protection was not costly.
 Reasonable Precautions Are Sufficient
o Blyth v. Birmingham Water Works (Eng. 1856): Defective stopper encrusted with ice failed and caused a leak in
the water main that flooded P house. The cause was unusual low temps brought by worst winter on record). H:
Waterworks  not liable where neither work nor materials were substandard and where the circumstances
contributing to the damage was unforeseeable.
13
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Rationale: A reasonable person could do no more.
II. Efficiency Std: Calculating Risks and Defining Wrongs: BPL
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The judiciary, unsatisfied with the vagaries of the reasonable person test sought to clarify it using the methods of
quantification in efficiency theory.
Duty to Protect Self is Eased During Acts of Heroism
o Eckert v. Long Island R.R. (N.Y. 1871): Man rescued a baby from the tracks but was killed in the process. H:
Deceased who attempts to save the life of another shall not be held contributorily negl. in own death where it was
reasonably believed that the rescue was possible. Note: This was a “reasonable” risk to take, so no contributory
negligence. Cont neg. lies where the person takes an “unreasonable” risk.
 Rationale: High regard for life mandates that no negl. be assumed in people who attempt to save human
life, unless rashness or recklessness is present.
Reasonable vs. Unreasonable Risks:
An Economic Analysis of Reasonable and Unreasonable Risks (Terry)
The following elements allow you to calculate when risks are and are not worth taking (reasonable or not). Do you try to rescue the
baby from the tracks? Do you bother to protect Bessy from flying balls?
1. Magnitude of the risk.
2. Value of the object or “cond.” sought. What you might win.
3. Value of the object or “cond.” at risk in venture. What you stand to lose.
4. Probability of success.
5. Necessity of risk.
 No Liability for Reasonable Risks
o Osborne v. Montgomery (Wis. 1931): 13 yr. old bicyclist tipped his handle bars on the edge of a swiftly opened
door of a double parked D. H: D not negl.: behavior that caused injury is typical of the “great mass” and benefits
far outweighing the probability that they will cause harm.
 Court is concerned that should consider the spillover effects of risks imposed and the net societal benefits
of risk – is the risk justified based on net benefits?
 Duties to Competing Harms Resolved in Favor of Most Serious
o Cooley v. Public Service Co. (N.H. 1940): During a storm, a power line broke, burned through the telephone line
cover, and resulted in a terrifically loud noise through the end of P’s telephone, causing a very rare neurosis with
fairly severe physical consequence. H: NOT liable for negligence for injury where the harm is the weaker of two
mutually exclusive harms, and where a remedy to practically prevent both is unavailable.
 Rationale: No device can practically solve both dangers to P and to ppl on the street. Where mutually
exclusive, must protect the class of people most likely to suffer the greatest harm.
 Classic Learned Hand BPL Case for Reasonable Care
o United States v. Carroll Towing Co. (2d Cir. 1947): Tug lost its barge w/o bargee on it and it injured another boat.
H: Where the burden of taking a precaution is less than the probability of potential harm multiplied by the intensity
of potential damage, the precaution must be taken. B=Burden, P=probability of harm, L=intensity of damage from
harm. Hand Formula: If B<PL then must take precaution.
 Cautions Must Meet Rising Risks
o Andrews v. United Airlines (9th Cir. 1994): P is sued United when someone opened the overhead bin after landing
she was hit by a briefcase that fell out. H: (overturn SJ for D) Jury could find hazard of falling items is serious
enough to merit more than a warning from United. The B here was not effective nor appropriate
 Rationale: New circumstances – more frequent travel so more ppl bringing heavy things onboard.
Necessitates adjustments in appropriate precautions commensurate w/ changing risks.
Critique of Hand Formula:
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Hindsight Skews Estimations of Probabilty: Cts. tend to think of P and L in terms of the case before them, and infer that
probability and gravity must be more or less at the level of the instant example. But that is ex post facto reasoning and
doesn’t nec reflect that actual probability of something occurring.
“P” difficult to calculate. Calculation varies acc. to an examination of this harm in particular or an examination of a general
class of harm that some example may be a member of (ex. Are we talking about the probability of someone getting hit? Or of
someone being paralyzed?)
Judges tend to manipulate B to fit their desired outcome. Reduction: In Bolton B may very well just be a single spike on
the fence where the cricket ball was hit. Sometimes π has the burden to provide B, INCENTIVE TO FIND THE
SMALLEST B TO FORCE NEG.
What does “L” include? Is it broad (someone being hit on the head) or do you calculate the probability based on the specific
injury here (being put into a coma)?
Marginal precaution. A small precaution that does not stop the harm, may be enough to meet BPL level of care.
Provides poor ex ante guidance b/c variables change acc. to idiosyncratic interp.
May not address activity level, only precaution. But what if as a whole that activity is unreasonably dangerous? Banning
activities is hard to justify, courts have no power and too many substitute activities
Whether D is risk-adverse or not will affect choice – are not looking at harm but risk of being held liable. Will affect their
analysis of whether they will be sued, and be found liable, etc.
Calfee and Craswell – Effects of Uncertainty on Compliance w/ Legal Standards
 uncertainty about the application of legal standards can give parties economic incentives to over or under-comply with legal
rules. There’s a kink in the graph of inflection point where liability starts. Uncertainty arises where:
o Don’t know exactly what the tipping point is (50 mph? 51 mph?)
o Uncertain whether jury would find you negligent, whether you will be sued at all.
 Over-compliance socially optimal level of care tolerate a bigger risk than the care level that reduces expected accident costs
almost to zero  often occurs in a neg system b/c, marginally, just a bit more caution (inefficient), can be sure to avoid
liability, vs. taking on any uncertainty
 Under-compliance is more likely when a) the amt Δ can save in private costs by taking less care than the optimum is
relatively large not all externalities (L’s) are captured and b) the likelihood of not being found liable is quite high even at
levels of care slightly below the optimum level
Cost of litigation, more cases in SL, more analytics in Negligence
III. Custom, Practice and Reasonableness
 Custom is admissible as evidence of the std. of care but it is never conclusive.
 Since BPL and “reasonable person” standards both have their flaws for making determinations about negligence, courts
sometimes turn to “customs” of community -- more narrow than the reasonable person std, some identifiable std of behavior
and tradition
 Tend to apply to certain situations where it might be more difficult for someone outside that situation to judge reasonable
behavior. E.g. medical practice, mining, Assume expert “repeat” players who have a lot of experience may have figured out
the best way to do something
 Custom must be relevant to the harm
 In reality, tends to work better as sword for P than as shield for D
Advantages
 Economic: Pros know the custom and can predict what std they are being held to; ppl in the industry expect that behavior
 creates certainty and transparency; best CBA
 Efficiency – likely that custom is the result of the most efficient practice
 CJ – what you have the right to expect from others around you. It’s what’s fair since people know what the rules are and
everyone is in the same boat in the same industry
Issues/Critiques:
 How do you know if there is a custom that speaks to the issue?
15
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To what degree is there an agreed upon custom by all parties involved versus just a standard implemented by the defendant’s
themselves? Could be self-serving and sub-standard.
Without BPL there is no incentive for technological innovation or improvement.
adherence to unreasonable Custom Does NOT Exculpate
o Mayhew v. Sullivan Mining Co. (Eng. 1884): An independent contractor fell through a hole in a mine shaft and
received serious personal injury. H: A mining Co. still liable for unsafe working conditions, even if such conditions
are normal, or customary.
 Rationale: D failed to exercise ordinary care: even custom existing “since the days of Tubal-Cain”
insufficient to exculpate if doesn’t pass reasonable std
Custom Sometimes Exculpates
o Titus v. Bradford, B. & K. R. Co. (Pa. 1890): Nypano car bodies, with a convex bottom were regularly hauled. The
decedent, having worked as a brakeman for D, was killed when struck by the car following. H: A D running a RR
not liable when in observance of usual and common practices of the trade, even where high risk or likelihood of
accident is present.
 Rationale: (1) Reasonably safe work means safe according to the uses, habits and ordinary risks of the
business; (2) employer is not necessarily liable just because a accident might have been prevented by some
special device, it’s not in common use. Note: Custom tends to work best as a defense when it involves nonstranger contractual assumption of risk type situations.
Custom vs. BPL as Grounds for Liability
o The T.J. Hooper I (D.S.N.Y. 1931): Two tugs, neither of which equipped with working radios, lost two barges and
their load of coal in a storm off the coat of NJ. Four other tugs, on the same route, received warnings of storm from
the radio and took safe harbor.
 Custom Rationale: H: (Cox, J) Tugboats that fail to meet the normal standard of seaworthiness by failing to
conform to commonly applied standards of care, such as the use of weather warning devices, may be found
negl when a loss of prop. could have been avoided by the use such devices.
 BPL Rationale: J. Learned Hand affirms lower court’s ruling but based on economic analysis. Tugs are
unseaworthy and thus liable for negligence when they lose cargo in a storm that could have been prevented
if they had utilized available and inexpensive technology.
 Rationale: Custom is not in and of itself enough to alleviate negligence, nor is it enough to require a
finding of negligence. Industries cannot set their own standards -- universal disregard for a prudent
caution does not excuse an omission (CBA over custom)
The Old “Locality Std for Med Malpractice (a little bit of “state of the art big city hospital, not really)
o Lama v. Borras (1st Cir. 1994): P sued Dr. Borras for medical malpractice for no bed rest before surgery. H: Court
applies the “local custom” as the standard for whether or not Borras was negligent and find that he was.
 Generally, the locality standard for medical malpractice has been replaced by natl standard,. w/ some
higher stds for particular specialties and sometimes tiers of hospital/care providers (rural clinic vs. cuttingedge research hospital)
 “degree or skill and learning which is normally possessed and used by doctors in good standing in a similar
practice.”
 if there are two schools of thought, either is good if both are respected
Informed Consent
 Canterbury v. Spence (D.C. Cir. 1972): P alleges negligence b/c Dr. Spence did not reveal the risk of paralysis from
an operation (which occurred), thus violating the physician’s duty to disclose. H: Where physician fails to provide
adequate warning to patient of probability of proposed operation’s success, failure, and alternate courses of action,
and probable outcomes resulting from no therapy at all, and a procedure does in fact contribute to some bad end, that
physician may be held liable if the disclosure would have caused an objective and reasonable patient to decide
otherwise.
16
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Exceptions: (1) patient is unconscious/incapable of consenting, or (2) risk of disclosure poses such a threat
of detriment to patients as to become unfeasible or contradicted from a medical point of view.
Fine line with (2) b/c court still rejects “paternalism.” especially when doctors don’t think patients do good
BPL analysis
—In informed consent doctors must disclose to patients all risks which are sufficiently material that a reasonable
patient would take into consideration in deciding whether to undergo the treatment. The disclosure practices of other doctors in
the community are generally held by courts to be irrelevant. Note: Not required during an emergency.
 Some exceptions: if disclosure makes patient overreact and cause more harm ok not disclose
 special needs (everything is still reasonable “under the circumstances”)
IV. Statutes
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Most courts will deem the act in breach statute is neg. per se
o democratic decision-making
o people are on “notice”  trasnsparency
Only effective where the intention of the statute applies to the particular.
However the converse does not apply: proving that one is in compliance with all statutes does not protect from negligence
claim. Care sometimes must be beyond that proscribed by statute.
Dram-shop statutes – holds someone responsible for behavior of others (ex. if serve alcohol to someone who is drunk can
be responsible if they injure someone while driving)
Statutory Rule (usually safety-related): Failure to exercise due care is presumed if:
1) Violation of statute
2) Violation proximately caused the injury
3) Injury was one that the statute was designed to protect
4) Person injured was of the class of people to be protected by the statute.
 Excuses for Violation of Statute:
o D unaware of stat;
o D reasonably and diligently attempted to comply with statute;
o Emergency not of D’s own design;
o Compliance would have involved an increased risk of harm.
Breach of Statute is Neg Per se
 Osborne v. McMasters: H: Poison case, statutes do not need to explicitly give right to private action under
negligence
 Martin v. Herzog (N.Y. 1920): P’s intestate struck, riding in a buggy w/o lights by an auto. H: Statutory breach
isn’t a contributing factor to negligence  it IS Negligence. Driver w/o statutorily-mandated lamps may be deemed
contributorily negligent if the absence is a contributing cause of the accident.
 Stimpson v. Wellington Service (1969) – Weight of unlicensed truck breaks P’s pipes. H: for P. Rationale: Statute in
place to protect roads AND private property.
 Burnett v. Imerys Marble (2005) – P fell off D employer truck; claimed D in violation of Fed Mine Safety and
Health Act. H: for D. Rationale: P not miner/not protected party.
REJECTED: Liability only if injury caused is of the type the statute was designed to protect against.
 Gorris v. Scott (1874) – Unpenned sheep on boat fell into sea; penning required by statute. H: for D. Rationale:
Statute was to protect against disease, not loss of property.
Statute Trumped by Safety
 Telda v. Ellham: H: Where custom of walking on a certain side of the road is safer than the side that stat dictates,
then custom subsumes.
Violation of Statute Must Have Caused Injury
17
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Brown v. Shyne (N.Y. 1926): D held himself out as a licensed chiropractor, a statutory violation, and injured
patient. H: It wasn’t the failure to obtain a license that caused the injury. Breach of statute is evidence of
negligence only if the violation was the proximate cause of the injury. Dissent: The cts. afford protection to the
D that the leg. denies in the vio of stat, that implicitly sets a std. of care.
 Ross v. Hartman (D.C Cir. 1943): D leaves truck parked w/ keys (statute violation); thief drove away & negligently
hit P. H: D violated statute and created the hazard the statute was designed to prevent.
Whether Congress Intended Private Right of Remedy for Viol of Statute
 Uhr v. East Greenbush Central School District (NY 1999): Parents sue school under Education Law for not
screening one year for scoliosis. H: Court finds that legislature did not intend for there to be a private right of action
under the statute.
 Court looks at three things to determine if private right of remedy can be implied from the statute: (1) is
π one of the class for whose particular benefit the statute was enacted (yes); (2) Whether recognition of a
private right of action would promote the legislative purpose (yes); and (3) Whether creation of such a right
would be consistent with the legislative intent (no).
 Statute explicitly bars private action; enforcement power given to the Commisner
 Courts vary on how they approach this the question of intent of the legislature:
 Civil republican theory – all lawyers, judges, policymakers, etc. are involved in process in
making rules that advance certain values  courts will interpret statutes in light of certain societal
values and goals
Rule of Law – Judge or Jury?– customs that are deeply entrenched so as to look like a statute
 these cases don’t go to jury: expertise of judges, predictable, higher safety, CCA, judges get to direct public policy
 Holmes: If courts left everything to the jury, we would be saying that there is an inability to state a very large part of the law
which the Δ is required to know, and would suggest that nothing could be learned by experience.
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
Classic Duty From Rule of Law
o Baltimore and Ohio R.R. v. Goodman (U.S. 1927): P driving a truck and was killed by a train running across the
road. H: (Holmes, J.) Since no evidence of Δ’s neg…Drivers must stop, look down the track, and if necessary get
out for a better look. STOP, LOOK, and LISTEN RULE.
 Takes determination away from the jury. Cited a lot more than Wabash
Ct. Created Duty is Not Absolute
o Pokore v. Wabash Ry (U.S. 1934): driver, arrives at a railroad crossing. He stops his truck, looks, listens and then
slowly proceeds to cross the tracks and struck by a train. H: (Cardozo, J.) Need not Stop Look and Listen.
Rationale: No per se negl. rules made by cts. Standards for behavior must make sure to fit the reality of the
circumstances
Weighing of Evidence Goes to Jury
o Jewell v. CSX Transportation (6th Cir. 1998) – extra warning needed or not
 Ps were driving in their car and crossed a railroad track and were struck by the train, Alleged that RR was
negligent b/c there was no whistle from train and that the crossing was “extra-hazardous,” requiring
additional warnings.
 Jury finds for RR that was not ultrahazardous and since KY law doesn’t require any other warnings (they
claim there was a whistle), not negligent. H: Weighing of the evidence as to whether or not a whistle was
blown was for jury to decide.
Proving Negligence: Res Ipsa Loquitur



“The thing speaks for itself.” Allows inference of negligence from circumstantial evidence.
Allows a case to go the jury when absent RIL would not be able to b/c no evidence of negligence – permits a finding for the
plaintiff
In certain situations, “smoke out” the evidence, esp where asymmetry of knowledge
18





RST 328: Res Ipsa Loquitor - strong form: liable unless Δ can prove innocence
o It may be inferred that harm suffered by the π is caused by negligence of the Δ when:
 The event is of the kind which ordinarily doesn’t occur in the absence of neg;
 Other responsible causes, including the conduct of plaintiff and third persons, are sufficiently eliminated
by the evidence; and
 The indicated neg. is within the scope of the Δ’s duty (in Δ’s control) to the π
The softer less clear std of RIL: The R: (1) accident must be of a kind which ordinarily does not occur in the absence of
someone’s negl; (2) it must be caused by an agency or instrumentality within the exclusive control of the D; (3) it must not
have been due to any voluntary action or contribution of part of the π.  weak form: when facts are unclear  got to jury
o deLisle: this std is more vague and general, thus more applicable, through less coherent, and often applied
inconsistently; further, many of these cases aren’t strict res ipsa cases but are mentioned here for pedagogical
reasons
deLisle’s Res Ipsa Analysis
1. The odds of accident w/o negl (for ex say 1/1 mil); this info is in fact not enough to est. RIL
2. The comparative odds of accident with negl (say 1/100,000) this is in fact not enough either, but many courts will stop
here
3. Comparison of probability w/ negligence vs. w/o. -- 1:10 non-negl to negl; meets the 50% std of“preponderance of the
ev.” so P would win here
4. How often actors are careful v. how often they are careless over time (a “particular actor” component)
a.
say for ex: 80% careful and 20% careless; means per 1 mil occurrences there will be .8 careful accidents
and 2 careless accidents; therefore greater than 50% chance of any accident being derived from carelessness, so res
ipsa applies
b.
however, say for ex. 95% careful and 5% careless. Means per 1 mil occurrence there will be .95 careful
accidents and .5 careless ones. Therefore a less than 50% chance of any accident being derived from carelessness,
and no res ipsa
Requirement 1: When examining whether something would ordinarily occur in the absence of negligence, plaintiff would
have to prove that more likely than not was the result of defendant’s careless behavior, rather than careful behavior.
o Ex: Assume that airplanes negligently operated crash at a ratio of 1/100,000 and carefully operated airplanes crash at
a rate of 1/1,000,000. If 95 out of 100 times, airplanes are flown carefully, will not necessarily get RIL b/c more
crashes will result from carefully flown airplanes b/c so many more airplanes are flown carefully  Context is
key
Requirement 2: Plaintiff was not contributorily negligent, nor did a third party interfere to cause the accident
Classic RIL Case
o Byrne v. Boadle (Eng. 1863): P struck by falling barrel of flour. H: Falling barrel est. a prima facie case through
RIL for which it then becomes the D burden to prove otherwise.
 Rationale: A barreldoesn’t fall from in a window in the absence of negligence
Res Ipsa and a Theory of Careful Behavior
 Negl contains a “pocket of strict liability.” There are times when reasonable and sensible behavior is still a vio, simply b/c
it is an “error.” This pocket occurs b/c actors are negl whenever they have not achieved perfect efficiency. This is a
form of strict liability.
 In some areas the law requires perfect compliance. Any variation from perfection is called “compliance error.” Ex.
automobile driving, and the roller coaster case. Deficient precaution quality is simply that which fails BPL and is not nec.
“perfect compliance.”
 Compliance errors are most common in high-rate, repetitious activity. Ex. Mackey (very similar to Osborne, the unlabeled
poison case). Courts are more inclined to listen to excuses in non-repetitive activities, because they seem more like freak
accidents for which deterrence would be futile. We have no interest in even attempting to eliminate compliance error, for it
would be far too costly, too inefficient.
19


Instead we aim to make insurers out of those who partake in high-rate, repetitious activity, like auto-driving, and making
insurers of these people is an efficient thing to do.
“Smoking out the Evidence” using RIL:
o code of silence among medical prof prohibits any other sort of negl tool.
 Ybarra v. Spangard (Cal. 1944): P’s back and neck is injured under anesthesia during surgery. H: π who
has suffered an injury to a formerly healthy part of his body after submitting to surgery has a prima facie
case under res ipsa regardless if the precise instruments, nor the precise persons responsible can be known.
 Rationale: Asymmetry of knowledge and res ipsa compensates. It deals with joint-tortfeasor
problem. Otherwise, P would never be able to recover b/c could never know what happened.
 Criticism: Assumes that there is something to know. Invites litigation
o Colmenares Vivas v. Sun Alliance (1st Cir. 1986): π injured trying to hold up his large wife on a suddenly startled
escalator at a Puerto Rican Airport. H: a malfunctioning elevator may est. a prima facie case through RIL and
control is established even where sub-contracted out, where such a thing may not be legally delegated (Port
Authority cannot pass off its duty of care for public space) .
i. Non-delegable Duty: ∆ is negligent if it is within the “cluster” of parties that have exclusive control π only
has to sue at least a party that has umbrella control
ii. person in charge (hospital, main surgeon, Port Authority) have vicarious liability. Co-ventures of a
packaged service.
Plaintiff’s Negligence________________________________________________
Defenses to Negligence:
 Contributory Negligence (pretty much obsolete)
 Assumption of Risk (express, primarily implied and secondary implied)
o Was there true, informed consent to the risk? Oblivious or not entirely aware? Was it unreasonable for the P to
voluntarily encounter the risk?
 Comparative Fault (largely replaced contrib. negligence)
 Joint & Several Liability
I. Contributory Negligence – proving negligence from π, mirror prima facie case:
 The old std was such that any contributory negl barred any and all recovery. Most states have gotten rid of the doctrine of
contributory negligence in favor of comparative fault.
 Classic Contributory Negligence Case
o Butterfield v. Forrester (Eng. 1809): P injured when horse ran over pole left in road by D. H: P riding a horse w/o
care may not bring action when he stumbles over a negligently-placed pole in the road. Rationale: Both faults are
equal, so no recovery.
o Beems v. Chicago RR (Iowa 1882): Decedent signaled while unhooking train cars, but conductor did not slow the
train. H: If a D runs over a brakeman when the brakeman would have expected the train to slow, per his hand
gesture signal conforming to custom, the D is liable even if brakeman contributed to the outcome. Note: Poor
symmetry here b/c D is held liable if there is “any negl on the part of the other employees of the D” whereas P is not
held negl when he meets that low level and more.
 Substantial Factor Threshold for Contrib Neg
o Gyerman v. United States Lines Co. (Cal 1972): P injured while unloading fishmeal sacks he knew to be improperly
stacked. H: A P injured while performing work that he knew to be hazardous may not be held contributorily negl, if
he is injured unless it can be shown that his actions are a substantial factor in bringing about the harm. Note: More
poor symmetry. D meets low level of negl, while P must meet “substantial factor” to be contributorily negl. The ct.
does not want to let tortfeasors off the hook so easily, for deterrence reasons, among others. We hold negligence to
take care of oneself (CN) at a much lower standard than negligence to take care of others (regular Neg.)
o Taking into account bargaining power differentials
 Warning of Harm Must Pertain to Actual Harm
20
o

Smithwick v. Hall & Upson Co (Conn. 1890): Icehouse collapsed. H: No contributory negl exists when an
employee has been warned about the danger of slipping in a certain area, yet ventures in, and is injured not by
slipping but by a collapsing wall. Rationale: The employee’s negl was not with “respect to the danger which
actually occurred and hence could not have been a proximate cause of his injuries, but was only a ‘mere condition’
thereof.”
The distinction between causation and coincidence
o Mahoney v. Beatman (1929): Damage to car driven by P was $200 from avoiding head-on collision w/ D and $5,650
from veering off main road b/c speeding. H: Full damages to P, b/c D negligence was the prox cause of P’s entire
damage.

Seatbelts and CN
o Derheim v. N. Fiorito Co. (Wash. 1972): Auto accident in which P was not wearing safety belt (no law requiring)
H: A P shall not be considered contributorily negl in an auto accident simply because she does not wear her seatbelt. Rationale: not wearing a seatbelt did in no way contribute toward the crash, no contrib. negl may be found.
However, you may use the seat-belt issue in calculating damages.
 Corrective Justice and CN
o LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry. (U.S. 1914): Spark from a train alighted the stacks of flax
close to the tracks. H: P shall not be held contrib. negl. where a train sets property aflame if the property was legally
situated. Absurd to be required to use your property in such a way that no one else can injure it.
 Rationale: CJ: (1) the R.R. hit the flax (Epstein); (2) the train puts the flax in an unreciprocated risk
relationship (Fletcher); (3) moral choice was made by the train and it was foreseeably a violation of flax
owner’s rights (Holmes, who concurs in part here and does say π has a duty at some point); (4) R.R. must
compensate flax owner for the loss created by wrongful act.
Defense to CN: Last Clear Chance
 defense by P against CN claims. Stage 1, both were neg  fault nets out. Stage 2, only Δ
 D’s negligence was last in time, so CN couldn’t bar suit. D had last opportunity to avoid harm where she knew or should
have known of the impending harm. Where D did not know and should not have known of the harm, no last clear chance.
 The Helpless P: When P is helpless through no fault of her own (Fuller) and the D should have known of the impending
harm, the P prevails under last clear chance.
 The Inattentive P: However, when P is inattentive, and the D merely “should have known” of impending harm, the P is not
protected and the D is not liable under last clear chance (though, of course she may be liable under another doctrine).
o Again, not a doctrine that is used anymore given the death of CN.

RST (2nd) Torts 479: Last Clear Chance: Helpless Plaintiff
o
A plaintiff who has negligently subjected himself to a risk of harm from the Δ’s subsequent negligence may
recover for harm if immediately preceding the harm:
 The π is unable to avoid it by the exercise of reasonable vigilance and care; and
 The defendant is negligent in failing to utilize with reasonable care and competence his then existing
opportunity to avoid the harm, when he:
 Knows of the plaintiff’s situation and realizes or has reason to realize the peril, or
 Would discover the situation and thus have reason to realize the peril, if he were to exercise vigilance
which it is then his duty to the plaintiff to exercise.
 Ex: Old man w/ cane walking across the street and hasn’t bothered to look if a car is coming. Crazy
teenager speeding toward him. Both are negligent, but teenager notices the old man with enough time to
stop or swerve. The old man is too decrepit to move quickly enough. A court could determine that the cane
should have given him reason to know that the old man couldn’t move quickly.

RST (2nd) Torts 480: Last Clear Chance: Inattentive Plaintiff
o
A plaintiff who, by exercise of reasonable vigilance, could discover the danger created by the defendant’s
negligence in time to avoid the harm to him, can recover if, but only if, the defendant:
 Knows of the plaintiff’s situation, and
21


Plaintiff helpless
Plaintiff inattentive

A
B
C
D
E

Realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to discover his peril
in time to avoid the harm, and
Thereafter is negligent in failing to utilize with reasonable care competence his then existing opportunity to
avoid the harm.
 Ex. Same situation but it is a normal man crossing the street, not paying attention. If teenager
realizes he is not paying attention and doesn’t take any action, then he could be liable. If didn’t
realize that wasn’t paying attention, the P is CN.
D Knows
P wins
P wins
D Should Know
P wins
D wins
D Shouldn’t Know
D wins
D wins
Choosing among the possible rules: Applied to LeRoy Fibre Case:
Move Hay
6
6
4
3
4
Spark Catcher
3
6
3
4
6
Plaintiff
Not CN
Not CN
CN
CN
CN
Defendant
N
Not N
N
N
Not N
Effect
SC - P 1 bribe
MH
SC – P bribes 3,4,5
MH – D bribes 1,2
MH – D bribes 2
1.
Negligence w/o CN defense
2.
SL w/o CN defense
3.
Negligence w/ CN defense
4.
SL w/ CN defense
5. No liability
 Classic Last Clear Chance Case
o Fuller v. Illinois Central R.R. (Miss. 1911): Train collided with geriatric. H: Where D had last clear chance to slow
his train and avoid harm to another, yet did not avail himself of it, he is negl and contrib. negl should not negate.
 Rationale: (1) Burden is placed upon the shoulders of the person who can actually avoid the harm; (2)
Mitigate harshness of CN.
P’s recklessness vs. D’s recklessness
o Wash Metro Area v. Johnson: LCC n/a to P who flung self on tracks (suicide) although D was intoxicated. R: A P in
reckless disregard for own safety is barred from recovery against a D in reckless disregard of P’s safety.

Coase, Different Tort Stds. in the Perfectly Efficient Universe
 Perfect World:
o Assume a frictionless universe. No transaction costs, perfect knowledge, no idiosyncratic valuation of property 
bribers (no negative moral connotation intended by Coase) would fill in any gaps otherwise left by conventional
market transactions.
 Indifference b/w SL and Neg in a Perfect World:
o the utilitarian is indifferent as to SL or Neg, with or without CN or Comp N or NL. In any case, the efficient result
occurs. This is b/c neither of the incentive effects created by any of the above legal stds. has any influence above
and beyond market forces, which themselves dictate a perfect cost to risk ratio.
 In the Real World:
o where there are transaction costs, place the burden of the rule on CCA. You need to know what world you are in, in
order to do that well. Where P can’t bribe, but D can, you want a rule which puts burden on D. And if bribes can’t
happen at all, you want to put burden on cheapest cost avoider considering that fact.
22
Calabresi, Looking For the Cheapest Cost Avoider
[p.135-137]
 A pure market approach in tort liability would be concerned with who is the CCA. How?
o Rough guess: this is a rule out test whereby we remove those agents who are bad cost avoiders, “to exclude from
consideration as potential loss bearers all those activities that could reduce costs only by causing losses which are
clearly much greater, in terms of meeting individual’s desires as expressed in the market”
o The agent that allows us to reduce of admin. costs;
o The agent that allows us to maximize internalization of costs. On this point, Calabresi suggests we allocate costs
by making each side that creates the risks (think of pedestrians and autos “coming together” to create the risk of
accident) bear the cost of the risk, “up to the point where people would rather pay for the accident costs than bear
the...further [cost of] reduction or alteration.”
o If can’t figure out then go with the BB. The market seeks and rewards those who take on the costs of accident risks
themselves to preempt greater future losses.
o In some circumstances the CCA will be a potential free rider who have to be coerced in order to take on that role.
Coercion is costly but sometimes is comparatively efficient.
II. Assumption of Risk – Affirmative Defense (Δ’s negligence is already established):
 Prior to comparative fault, issues where consent may have been implied would be dealt w/ by either CN or A/R
 P is said to have assumed the risk of certain harms if she has voluntarily consented to the risk. Requires:
 knowledge of injury-causing possibility, and
 appreciation of resultant risk.
 A/R is either express or implied
 This assent removes any duty D may have had toward the P. At common law assumption of risk completely bars P from
recovery (both neg and s/l).
 Involves assessment of circumstances and context – is D negligent given the context?
 Note that the requirement of actual appreciation of the risk actually punishes the aware more than the oblivious
 Current status: Waning of implied A/R  secondary assumption of risk has been folded into comparative fault while,
primary assumption of risk still survives but is increasingly analyzed as a duty/contributory negl issue.
 BUT, some courts have retained secondary A/R so that defendant breached and plaintiff either unreasonably still encountered
danger (comp fault usually comes in here) or reasonably encountered the danger (D is liable)

Defenses to Express A/R:
o
P can claim lack of subjective awareness of the deal or of the risk in the first place
o
Contract of adhesion – unequal bargaining power (Obstetrics v. Pepper)
o
Sometimes the substance of the waiver (the behavior that is insulated) is not considered acceptable by the courts
o
Question of the scope of the risk that you consented to (could ride a risky amusement park ride but if there is a
defect that makes it more dangerous than would be apparent then are not consenting to that risk)
 Similar problems with consent to battery

Primary vs. Secondary Implied A/R
o Primary: Involves a determination that D has met whatever duty the court thinks is appropriate to impose. D was
not negligent given context (“Flopper)  plaintiff assumed risk, whether or not he was at fault. Ct is essentially
saying
 “No duty” -- P has chosen to engage in an activity that imposes otherwise problematic (negligent) risks but
P has "waived" the duty D would otherwise owe, the waiver being implicit (but clear) OR
 “Lesser Duty”/ “No Negligence -- D owes P only a duty to conduct activity in carefully, by the standards
of that activity, (i.e., "play football reasonably carefully" is essentially not to recklessly or intentionally
hurt.
 Note: Although PI A/R looks like negligence that normally P has to prove, with A/R (generally, riskier than
usual situations), the burden is on defendant to plead.
23
o





Secondary: Here the court has found has found duty of care has been breached. The ultimate question is one
of P’s comparative fault. Would a reasonably prudent man have acted that way in the face of that risk? Did the P
unreasonably encounter the risk?
 Secondary implied A/R has largely been folded into a comparative fault analysis.
 The ones where there’s no “full preference” where π has to make a good decision under bad circumstances
gets folded more into implied or no contrib. Neg.
Posner and Efficiency Argument for A/R
o
Risk-seekers will assume the risk and be compensated for it.
o
Risk averse individuals will ask to be protected from the risk and in exchange will pay for that protection.
o
Risk Premiums - In the employment context, risky work will be more handsomely rewarded than safe work.
Liability would not lie with the employer because the employee has contracted to assume the risk.
Classic Express Assumption of Risk Case
o Lamson v. American Axe (Mass. 1900): D replaced racks where axes were held, but new racks didn’t work well.
Was aware of inadequacy of racks and had warned supervisor about it. Injured by falling ax. H: A person cannot
recover for negligently inflicted injuries when she freely decides to stay employed instead of quitting. Rationale: P
was working under a voluntary agreement. Cases of this sort usually involve a risk premium.
 Note: This has pretty much been eradicated by modern workmen’s comp,
Lack of Informed Consent Voids the Assumption of Risk
o Obstetrics v. Pepper (Nev. 1985): P forced to sign an arbitration agreement, and later became partially paralyzed as
result of use of contraceptive. H: Physician that issues an arbitration agreement to her patients w/o explanation or
opportunity to bargain issues a mere adhesion contract, K is not valid. No informed consent.
o Dalury v. S-K-I: H: π signed to take on the risks of a carefully-operated ski resort, not a negligent one. Can’t sign
your life away  Δ still liable
Primary Implied Assumption of Risk -- “The Flopper”
o Murphy v. Steeplechase (N.Y. 1929): P rides the Flopper. He gets flopped. H: Plaintiff was fully aware of the risks
of the ride and in fact knew – or should have known – that part of the amusement of the ride was that he might fall
and that this was an inherent risk of the ride.. Note: Two factors at work: (1) implied consent (Cunard v. American
Steamship) and (2) nature of the activity (perhaps no duty here, or reduced duty).
Nature of the Activity May Imply Assumption of the Risk
o Knight v. Jewett (Cal. 1992): Touch football game. P had finger treaded on and later required amputation. H: D has
no duty to protect P where the nature of the activity is inherently dangerous and P knowingly assumes risk and
further, D did not act recklessly given the context. Implied Assumption of Risk.
III. Comparative Fault
Purpose
 CN is too harsh Comparative fault has been adopted in most courts as a substitute for CN.
 Rules of neg. are designed to allocate liability based on fault – so comp negligence supports this
 Most jurisdictions have gotten rid of LCC (a lot of LCC is folded into proximate causation Q)
 Folds implied secondary assumption of risk into comparative fault
 Express and Primary Implied A/R is still a bar to recovery
 Con: What’s the neg. actually calculated? degree of departure from due care or % of fault?
 RST (3rd) Torts 7: Comparative Fault
o
Plaintiff’s negligence (or negligence of another person for whose negligence the plaintiff is responsible) that is a
legal cause of an indivisible injury to the plaintiff reduces the plaintiff’s recovery in proportion to the share of
responsibility the fact-finder assigns to the plaintiff (or other person for whose negligence the plaintiff is
responsible).
 Pure vs. Modified Comparative Fault Scheme
o Pure: apportions liability in direct proportion to fault
 Pros: consistent w/ CJ and allocation of fault and liability
24

o


Cons: up to what point? Could be considered unfair to allow P to recover for an injury for which he is 75%
responsible. What if there’re multiple Δ’s, each with 30% fault and π has 40%, still recover even though
π’s fault > either Δ
Modified –up to the point at which plaintiff’s fault exceeds that of defendant
 Cons: at 49% v. 50%, same lottery problem as CN, also has led to lots of appeals in WI, which adopted
this; J&S liability complications; admin ineff b/c encourages litigation up to threshold
 Pros: not morally right to allow π to recover when he is more at fault
Economic efficiency argument for comparative fault
o
you are liable for exactly your liabilities  efficient deterrence
Landmark Comparative Fault Case
o Li v. Yellow Cab Co. of Cal. (Cal. 1975): P injured in auto accident for which she was partially at fault. H: A P
may recover injuries from an auto accident to the extent to which she was not at fault even if she was mostly at fault.
Rationale: (1) old system was illogical to the extent that a third party could sue P or D in above case (as an ex.) for
ea. “contributing” to the injuries, but P nor D could sue ea. other; (2) jurors and settlements tend to do this already;
(3) if fault is to be taken seriously as a means to justice, then comp. negl. is superior; (4) greater efficiency due to
better ex ante predictive effects.
IV. Joint and Several Liability Among Codefendants
 Under old rules, P would sue whichever D and that D could be held liable for the entire amt.
 Now, Δ can seek contribution from a co-Δ and get contrib in proportion to fault. (only for neg,)
Comparative Fault Applied to Joint & Several Liability
o American Motorcycle Ass’n v. Superior Court (Cal. 1978): P minor was injured at a motorcycle meet. AMA crosscomplained for P’s parent’s failing to supervise. H: Applies Li rule of comparative fault to joint tortfeasors.
Rationale: All or nothing approach is problematic. This allows P to go after D for entire portion, and then D can
go after D2 for his share.
 Probs of Multiple Tortfeasors & Settlements
o McDermott, Inc. v. AmClyde & River Don Castings (SCOTUS, 1994): Construction accident in Gulf of Mexico.
Prior to trial, P settles with three of the Ds for $1 million. Respondents (AmClyde and River Don) did not settle and
case goes to trial. Jury assessed McDermott’s loss at $2.1 million and allocated 32% of the damages to respondents.
H: The money paid in a settlement extinguishes any claim that the injured party has against the released tortfeasor
and also diminishes the claim that the injured party has against the other tortfeasors by the amount of the equitable
share of the obligation of the released tortfeasor. (Proportionate Approach)
Three possible scenarios for dealing with joint tortfeasors and partial settlements:
1.
Pro-Tanto Approaches:
a. $ paid in settlement extinguishes any claim that the injured party has against the party released and the amt of
his remaining claim against the nonsettling tortfeasors is reached by crediting the amt received.
i. This can be sub-divided into two types of systems: (1) allow settling tortfeasor to go after nonsettling
tortfeasor for their share if first guy overpaid; or (2) don’t allow settling tortfeasors to get contributions
b. Result: P always gets full amt but (depending on whether allow contributions or not) one tortfeasor might have
to overpay.
i. Disadvantages: Encourages “race to settle.” And ironically could encourage those responsible for the
most damage, b/c they could settle for much less than they owe and P could still go after the other D
for the rest, even if more than they are responsible for.
2.
Proportionate Approach – favored approach
a. The $ paid in a settlement extinguishes any claim that the injured party has against the released tortfeasor and
also diminishes the claim that the injured party has against the other tortfeasors by the amount of the equitable
share of the obligation of the released tortfeasor.(No claims for contributions are allowed, nor are they
25

necessary. Would theoretically be no reason to settle for more b/c at most would be liable for the amt you are
responsible for.)
b. Result: D’s only pay what they are responsible for. But P may sometimes be under-compensated.
i. Advantages: (1) Doesn’t disincentive settling, but also doesn’t create a “race to settle.” (2) Leads to
equity.
Example of How This Plays Out: If total damage is $1000 and Ds together owe $700, and D1 resp for $100 and D2 for $600
o
Off-setting by dollar values (Pro-Tanto)
 P settles w/ D2 for $300  D1 for $400
 P settles w/ D2 for $650  D1 for $50
 P settles w/ D2 for $500  D1 for $200
 This encourages a “race to settle” over-encourages settling
 P always gets full amt, but one may end up overpaying
o
Off-setting by amt liability of settling tortfeasors (Proportionate)
 P settles w/ D2 for $300  D1 for $100
 P settles w/ D2 for $650  D1 for $100
 P settles w/ D2 for $500  D1 for $100
 Guarantees that nonsettling tortfeasor doesn’t get overcharged
 But P could wind up under or over-compensated
Causation_________________________________________________________
Causation: Two elements necessary to prove:
1) Cause in Fact
a. “But for” Test
b. Substantiality Test (concurrent tortfeasors)
c. NESS (not a doctrinal theory but helpful)
2) Proximate Cause
a. Foreseeability
b. Directness Test (Polemis)
I. Cause in Fact
 “But For” Test:
o “but for” Δ’s negligent act, the harm to π would not have occurred.
 Concurring Causes:
o If a P is harmed by negligent conduct of the two tortfeasors, + the conduct of either one alone would have been
sufficient, both are liable if each was a substantial factor
 Classic “But For” Causation Case
o Reynolds v. Texas & Pacific Ry: 250 lb. Woman tumbles down unlit staircase. H: Where negligence of D greatly
multiplies chances of accident, the mere possibility that it might have happened without that negligence is not
sufficient to break the chain of cause and effect. Rationale: P need only prove that it is probable that the injury
would not have occurred without the D’s act.
 But For Not Proved
o N.Y. Central R.R. v. Grimstead (2d Cir. 1920): P’s husband drowns and no life saver was on ship that wife could
throw. H: P needs to show that the absence of buoy was proximate cause of the death. No evidence that had there
been a lifeboat would have not drowned. Causal connection too tenuous.
 RIL-Type Approach to But For Question
o Haft v. Lone Palm Hotel (Cal. 1970): P brought suit when father and son drown in hotel pool. Statute required either
lifeguard or signs indicating no lifeguard. Cause of the death was unknown so couldn’t say that “but for” the
absence of lifeguard no accident. H: Court finds that the reason that no one knows what happened is b/c failed
to provide the lifeguard that it was supposed to provide. Therefore, burden of proof shifts to D.
26
o

Zuchowicz v. United States (2d Cir. 1998): Husband sues doctors/pharamacists at Naval Hospital for negligently
prescribing an overdose of Danocrine to his wife, leading to her PPH and her subsequent death. H: When a negative
side effect is demonstrated to be the result of a drug, and the drug was wrongly prescribed in an unapproved
and excessive dosage (i.e. strong causal link has been shown), the P who is injured has generally shown enough to
permit the finder of fact to conclude that the excessive dosage was a substantial factor in producing the harm.
o Carodozo/Traynor Test for whether one’s negligent behavior caused the harm:
 If (a) a negligent act was deemed wrongful because it increased the chances that a particular type of
accident would occur, and (b) wrongful act happened (c) a mishap of that very sort did happen, [and
RIL-type analysis]
 Where strong causal link exists, Δ’s burden to show act wasn’t substantial
o Note: Had to show that it was the overdose,the incremental excess causes the harm – the negligence must be
the cause of the harm.
Junk Science vs. Good Science
o General Electric Co. v. Joiner, (SCOTUS, 1997): Joiner sues GE, and others (manufactured PCBs) for toxic
exposure to PCBs that caused small cell lung cancer. P, a smoker for 8 years, had a family history of lung
cancer, but Joiner links cancer to PCBs (“but for” the exposure). Puts forth evidence about studies and tests on
mice. H: P has not sufficiently supported his case with “good science.”
 Std for scientific evidence  junk science is out (where’s the boundary?)
o Dauber vs. Merrill Dow Test is now std – does the study being offered use a tested or testable method? Error
rate? Standards? Is there widespread acceptance w/in relevant scientific community?
Exceptions to Cause in Fact: lost chance, multiple Δ’s and market share liability
Lost Chance
 conventional tort idea: more likely than not that that person’s actions were cause of death.
 Applies where a doctor negligently misdiagnoses or diagnoses too late a serious illness, thereby decreasing the chance of
survival
 Ex: Suppose doctor negligently misdiagnoses a serious illness and by the time does diagnose, chances of recovery are
diminished by 60% - if he dies, what is the doctor liable for?
o Approach 1: would have had to prove that prior to neg. had a 50% or more chance of surviving. (Still maj rule) 
recover 100%
o Approach 2 – The Lost Chance Doctrine: If likelihood that negligent action increased chance of death by less than
50%, then get the percentage it increased likelihood, and when more than 50%, P gets 100% (wrongful death
damages).
 Typically, cts that adopt the “lost chance doctrine” (1) do so only in limited circumstances where cts think there are patterns
that D will never be liable b/c all of the Ps in question have a less than 50% chance of survival but cts feel strongly clearly
negligent Δ, is “killing” some of them; and (2) most do not adhere to the principles of symmetry
 Liability for Causing a Lost Chance of Life
o Herskovits v. Group Health Cooperative of Puget Sound: D’s failed to diagnose lung cancer, 39% to 25%. D’s
argued that since P would probably have died anyway, Δ’s act was not the cause in fact of his death. H: If it can be
shown that statistically this delay caused patient’s chance of survival to be reduced, the doctor is liable when the
patient dies from the condition. P can only recover for direct items due to premature death. This is not liability for
death per se but liability for “lost chance of life.”
 Note: In an emerging trend, courts have allowed recovery where P shows a real, but less than 50% chance that she will incur
the harm in the future. For ex. if chance of harm is 16%, P would receive 16% of damages that she would have received if
harm actually happened
Special Problems of Multiple Defendants
 Substantial Factor in Harm and Concurrent Liability
27
Kingston v. Chicago & Norhwestern R.R: D’s sparks cause fire that subsequently merges with another fire of
unknown origin of equal size and damages P’s prop. R: D’s fire was a substantial factor cause in fact. NOT “but
for”, it’s a substantial factor test.
 Substantial Factor for Joint Tortfeasors: Joint tortfeasors whose concurring acts of negligence result in
injury are each individually responsible for the entire damage. This applies also where two causes,
each attributable to the negligence of a person, concur in producing an injury to another, either of
which causes would produce it regardless of the other.
 Exceptions: (1) when a small fire unites with one that is so much larger that it engulfs it and acts
as a sort of “intervening force” then smaller fire not substantial enough factor; or (2) if fire
combines with some other “natural force” (if was a brush fire, e.g.).
RST: Apportionment of Harm to Causes: (1) Damages for harm are to be apportioned among two or more causes where
(a) there are distinct harms, or (b) there is a reasonable basis for determining the contribution of each cause to a single harm.
(2) Damages for any other harm cannot be apportioned among two or more causes.
Apportionment of Blame
o Summers v. Tice (Cal. 1948): Two D’s shoot in P’s direction and P is hit in the eye and lip. H: Where two
individuals acting independently act w/o care, and the P is injured thereby, and where it cannot be ascertained 
joint tortfeasors, and the burden to exculpate themselves by proving the other is at fault is theirs and not the P’s.
Rationale: Otherwise would exonerate them both from liability, although each was negligent, and the injury resulted
from such negligence. Otherwise would leave the responsibility for figuring out who did it with the injured party.
Merging joint & several liability with apportionment
o JC Penney Case: But for N of JC Penney, P would’ve still gotten burnt at gas station, but the coat wouldn’t have
melted on her body causing also psychological harm. H: apportionable harm (b/t JC Penney and gas station) for
burn, but indivisible harm for psychological harm (use joint & several liability per state laws).
o
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Market-share liability
 An exception to proof of causation infact
 D’s liable in shares proportional market share at the time of injury, regardless of actual causation
 Appeals to both corrective justice and economics types
 Not used very often b/c requirements are still fairly stringent.
 If something is considered to have high social value (tetanus vaccine), then courts are disinclined to apply this approach b/c
would disincentivize distribution.
 See Skipworth for the factors to consider whether MSL is appropriate
 Market Share Liability Cases
o Sindell v. Abbott Laboratories (Cal. 1980): At least 200 manufacturers used an identical formula to produce DES,
a synthetic estrogen. P alleges DES during pregnancy, caused P to develop cancer. P is unable to show which D
produced the drug that her mother took, but sues five companies, who manufactured 90 percent of the DES ever
marketed. H: Where P cannot prove which but can show that all were negligent. If D is unable to exculpate
himself, the court may apply MSL. Joint-and-several liability will not be applied here. Rationale: (1) deep pockets;
(2) D’s best cost spreaders, thus best insurers.
 Critique: (1) Poor Cause In Fact:; (2) big fish penalized just for being large regardless of fault (CJ vio)
 Ans. to Critique: repeat suits create a statistical fair expected harm done
 Support – CJ: victims receive compensation even if they are little guy who can’t flush out culprit.
 Econ: Efficiency. Don’t under-deter concealable negligence
o Skipworth v. Lead Industries Assoc (Pa 1997): Lead-poisoning case. Case does not meet reqs for MSL. Court looks
to Sindell case to determine when application of market share liability is appropriate:
1. All the named Ds are potential tortfeasors
2. The allegedly harmful products are fungible
3. Substantially all Δ’s are named
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Why didn’t work: Lead paint is used for a bunch of different uses, different levels of
toxins, manufs came in and out of the market during the 100-yt period covered by P
Some Problems with M.S. Liability:
o Cts will only go by national market-share, not by region-specific share. Could potentially over-deter.
o

II.
Proximate Causation


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Second step to proving causation after “cause in fact.” Now must prove that is “legal cause.”
Proximate cause is a policy determination: Under some circum., it is deemed unfair to hold the Δ legally responsible for all
consequences of his wrongful conduct.
o
Directness (Polemis, Kinsman, Andrews dissent in Palsgraf): Act harm (temporal and special)
 No intervening causes, not too remote in time or place as to dissipate causality (hadn’t already returned to
status quo).
 Intervening forces could be natural factors, could sometimes be third party.
 Background conditions are NOT intervening factors
 Forces set in motion by the defendant’s conduct are NOT intervening factors
 Foreseeability doesn’t matter (folded into “duty” question, see Polemis) – when things get too out of hand
 policy call on the judge’s discretion
o
Foreseeability (WM #1 and #2, Cardozo in Palsgraf) – Leading View
 Was the harm that occurred within the category and scope of possible harms that made that act negligent?
Foreseeability:
o Analysis:
 So foreseeability can apply both at the level of duty and breach of duty – the prevailing view limits scope
of the duty to do or refrain from doing a given act to (1) those persons or interests that are likely to be
endangered by the act or omission and (2) harm (to such a person or interest) from a risk the likelihood of
which made the act or omission negligent.
 Or can apply at the level of proximate cause so that something is only a proximate cause of harm if that
harm falls within the category of harms that could be reasonably foreseen by that negligent act (that make
that act negligent).
o Fringe Problems:
 Unusual Manner: Most courts will hold you liable if outcome is foreseeable even if the means to that
outcome are novel are unique.
 Unexpected Extent: Courts will still hold D liable where the type of injury was foreseeable but the extent
was not (i.e. “take the plaintiff as you find him” rule)
 Unforeseeable Type of Harm: Where harm to plaintiff was foreseeable but the type of harm that occurred
was not, the courts are split. (ex. I expect when I kick Laura  bruise, but not that she will develop
multiple personality disorder)
 Improbability: Δ still liable for even highly unlikely results if foreseeable.
 Unforeseeable Plaintiff: If harm to π or class to which π belongs is unforeseeable, no liability.
Classic “Directness” Case
o In Re Polemis and Furness, Withy & Co. (Eng. 1921): negligently dropped a plank into the storage hold striking an
unknown substance, creating a spark, and spark ignited the petroleum carried by the ship. H: Once the negligence of
a party has been established, liability holds for consequences of the conduct, foreseeable or not. Ds were negligent,
no intervening cause, passes the directness test.
o Kinsman Transit Co.: thawing ice hits Δ’s negligently tied boat, floats downstream, gets stuck at a bridge,
negligently manned and causes flood. H: Δ’s negligence directly caused harm. “Δ takes π how he finds
him…rejects the limitation of damages to consequences foreseeable at the time of negligent conduct when the harm
is “direct”.
Failing the “Reasonable Foreseeability” Test
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o
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The Wagon Mound No. 1 (Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co, Ltd. (P.C. Aust.
1961)): D’s ship spilled oil into a bay. Couple days later, oil was set afire by falling molten metal, igniting a cotton
rag floating on debris in the water. Whole dock burned. H: No liability exists where the cause of harm is not
reasonably foreseeable. Rationale: “It does not seem consonant with current ideas of justice or morality that for an
act of negligence, however slight, which results in some trivial unforeseeable damage the actor should be liable for
all consequences, however unforeseeable, so long as they can be said to be direct.” Note: This was later reversed by
ct that held that if risk was remote but foreseeable, then liable.
o Virden v. Betts and Beer Construction: π worked in maintenance at the high school. π sues for falling off of a
ladder while fixing an angle iron in place. H: no proximate causation.
No Duty to Unforeseeable Plaintiff
o Palsgraf v. Long Island R.R. (N.Y. 1928): A passenger is trying to catch a train that is leaving the station, one train
employees helps pull him on while another pushes him in from behind. In doing that, it causes the package in his
hand to fall and, b/c it contained fireworks, it explodes and causes injury to P who is standing by the RR. H:
(Cardozo, J.) The defendant did not breach any duty of care toward plaintiff.
 Cardozo’s Rationale: Negligence is not “in the air” but is directed at specific people and π was not
within that cone. Scope of π must be foreseeable. When unintentional, wrong is defined in terms of
natural or probable – can’t say that to the most cautious mind that the package might injure someone on
the platform.
 Cardozo doesn’t even get to the question of proximate cause, b/c finds there was no duty breached
 folding proximate cause into duty and breach analysis.
 Andrews Dissent: D bears a burden of due care to “protect society from unnecessary danger, not to protect
A, B, or C alone.” Neg. is against the world at large, “Not only is he wronged to whom harm might
reasonably be expected to result, but he also who is in fact injured, even if he be outside what would
generally be the danger zone.”
 Essentially all that Andrews cares about is direct causation. Not remote in time or space, no
intervening factor, etc.
Causality Not Truncated by P’s Vio of Statute
o Berry v. Sugar Notch (Pa. 1899): While speeding, tree branch fell on roof H: Recovery for injuries caused by the
negl of another is not precluded by the P’s own vio of speeding statute, if such vio did not causally contribute to the
harm. Merely created condition.
When P’s actions are not foreseeable in light of D’s negligence
o
Virden v. Betts Construction: P fixing fan manufactured by D using 10-foot ladder. He falls. H: for D. Rtnle:
Doesn’t pass “substantial factor” test, b/c injury due to ladder, not due to bad installation of fan. (no foreseeability).
o Herbert v. Enos: D employer not liable for P gardener injuries when turned on water tap and electrocuted b/c
plumbing defunct. H: injury not foreseeable.
Nightmare of Infinite Liability Solved with the Foreseeability Std. (Fire Spreading)
o Ryan v. New York Central R.R. (N.Y. 1966): D, a railroad, negligently maintained one of its engines, which gave
off sparks that set fire to its woodshed. The fire spread to Ps house, located nearby, and consumed it. H: The
destruction of D’s own shed is the “ordinary and natural result” (directness) of the negligent act, but the damage of
P’s house is too remote (foreseeable). Rationale: To sustain such a claim would subject the defendant to a liability
against which no prudence could guard.
 Note: This is NOT good law anymore. There were no intervening causes only background conditions,
which don’t qualify and were arguably foreseeable and not direct.
o Albatross v. City of Lincoln: one boat bumped into another making it lose its compass and captain was unable to
bring ship to port. H: making the 2nd ship disoriented is a foreseeable consequence  liable
o Jones v. Joyce: π jumped from Δ’s coach after it got out of control, breaking leg. H: Δ placed π, by misconduct in
such a situation as obliged him to adopt the alternative of a dangerous leap liable
 π in good faith act to minimize danger and hurt himself from a neg situation that Δ made  Δ liable
Third-Party Intervention
 Intentional Intervention by Third Party
30
o
RST 448: Intentionally Tortious or Criminal Acts Done Under Opportunity Afforded by Actor’s Negligence
 The act of a third person in committing an intentional tort or crime is a superseding cause of harm,
although the actor’s negligent conduct created a situation which afforded an opportunity to the third person
to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have
realized the likelihood that such a situation might be created, and that a third person might avail himself of
the opportunity to commit a tort or crime.
RST 449: Tortious or Criminal Acts the Probability of Which Makes Actor’s Conduct Negligent
 If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which
makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not
prevent the actor from bring liable for harm caused thereby.
Causality Not Interrupted by Foreseeable Actions of Third Parties
o Marshall v. Nugent (1st Cir. 1955): P was a passenger in a car driven by his son-in-law. After a near accident with
D’s oil truck P got out off the car to warn oncoming drivers of the obstruction in the rd. While doing so, he was hit
by an oncoming car (the other D). H: D shall be liable for all harm caused by foreseeable extraneous
circumstances, or intervening third parties, made possible by D’s careless acts (but for) where other
circumstances do not intervene and break the causal connection leading back to D’s carelessness. (No return to
“tranquil stream”, “water is now placid” or status quo.)
 Variation on foreseeability test.
o Bigbee v. Pacific Telephone: P was injured by a drunk driver because she could not escape a negligently maintained
phone booth. H: Where the risk is foreseeable, the negligence of a third party will not be a superseding cause.
Both the driver and the phone company were found liable.
Causality interrupted by actions of third parties.
o Pittsburg Reduction Co. v. Horton: Schoolboy playing w/ dynamite cap discarded by D on plant premises near
public school. Cap passed on to second child under mother’s supervision. H: No liability, b/c mother’s conduct
broke causal connection b/t original N and subsequent injury of P.
Rescuers Don’t Break Causal/Foreseeability Chain
o
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o
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Wagner v. International Railway (N.Y. 1921): Train threw Herb out. P left the train and walked along the trestle,
looking for Herb’s body, but he fell through, suffering injury. H: (Cardozo, J.) Danger invites rescue (even though,
no argument for autonomous act) and the wrong that imperils or harms victim, also imperils or harms the rescuer. If
wrongdoer is liable to victim, is also liable to rescuer.
 Rescue Doctrine (McCoy v. American Suzuki): It is foreseeable that a rescuer will come to the aid of
person imperiled by his negligence and that therefore tortfeasor owes the rescuer a duty similar to the
duty he owes the person he imperils. Negates the presumption that the rescuer A/R of injury when he
knowingly undertook the dangerous rescue, so long as he does not act recklessly.
 In the same vein, danger invites self-preservation. So although may have done something in an
act of self-preservation that eventually causes more harm, that does not necessarily ruin the
directness/foreseeability
Foreseeable Willful and Wanton Conduct Does NOT Exculpate
o Brower v. New York Central & H.R.R. (N.J. 1918): D freight train collided with P cart allowing bystanders to steal
P’s goods. H: D is liable for foreseeable harms of intervening third parties.
 Dissent: The chain of causation between the original negl. and the loss of the contents of the cart was
broken by the intervening thieves.
o Hines v. Garrett (Va. 1921): 19 yr. old female dropped off between stops through error of R.R. She gets raped on
walk home. H: Carrier has duty to protect where harm is foreseeable, and an intervening actor shall not interrupt
that duty. One of the reasons the act was negligent was precisely b/c of the probability of this kind of harm.
Unforeseeable Third-Party Intervention DOES Exculpate
o Central of Georgia Ry. Co. v. Price (Ga. 1898): Girl dropped in wrong town and fire in hotel room. H: No liability,
harm is remote, unforeseeable, and Δ’s agency is cut off.
 Compare to: Watson v. Kentucky: D would not be liable for leaked gas if the man who lit and dropped the
match that started fire did so maliciously to get revenge on his former boss (P) – what is the distinction? Is
31


the Watson situation just not that foreseeable (i.e. that a disgruntled former employee would act maliciously
vs. that thieves would take advantage of a situation?) What if looked at Watson from perspective more of
RST 449 – was the harm part of the reason for why is this negligent?
Put π in a safe place  agency transfer and causal chain broken vs. put π in bad place negligence
still unravel
Foreseeability vs. Directness Analysis:
 Most proximate causation analysis melds these two – and often they pt in the same direction – but remember
that they are philosophically very different
 When talking about directness, are still talking about negligence, so have est that there is some foreseeable
harm, but the issue (and where the two diverge often) is whether that type of harm or the extent of harm was
foreseeable
 Foreseeability
o Advantages: (1) Efficiency – you can only prevent against what you can foresee. If the goal is
prevention then not useful to punish for what is not foreseeable; (2) CJ/Holmes: - what is wrongful is
what is foreseeable b/c implies ought to have chosen differently (sort of intuitive appeal; (3) CJ –
should only hold D to std P would have held himself to. If harm is not foreseeable, then could not have
asked D to behave differently.
o Disadvantages: Infinitely manipulable – could make something sound very foreseeable or very
unlikely
 Directness
o Advantages: Efficiency – (1) inefficient outcomes occur when foreseeability clashes with actual
probability of harms, and thus a good CBA is ruined by cts. subjective meddling valuations of
foreseeability; certain and objective to some extent; Efficiency - protects victims, b/c after the fact one
is able to track all sorts of causal connections and this is an efficient way to redress harms based on
what actually happened, not what might have happened; (3) (CJ, Epstein) A hits B, and this causal
truth supersedes whatever might have been theoretically foreseeable
o Disadvantages: (1) infinite number of harms, esp if no sufficiently intervening cause to bring back to
status quo; (2) in efficiency and over-deter to protect against wacky and unforeseeable things in care
and activity level
Affirmative Duties & Liability for Failure to Act______________________
1.
2.
3.
Duty to rescue – generally no duty
a. with some exceptions:
i. Peril is of D’s creation
ii. D rendered P helpless after harm
b. Liability if:
i. Negligent conduct of rescue
ii. Undertake and abandon, leaving P worse off
Gratuitous undertakings:
a. RSC §90 – Promise reasonably induced action/reliance
b. Negligence increased risk to P
c. P relied on undertaking
Owners & occupiers
a. Trespassing – no duty
b. Licensee – duty to warn of known danger, “can’t set wanton trap”
c. Invitee – maximum duty
I. Duty to Rescue
 Generally, American law does not impose a legal duty to act, with certain exceptions:
1. Special relationship
32
Have started process and then omit something – once you undertake a rescue or some form of aid, you assume the
responsibility of doing so responsibly and prudently and if don’t, then are liable (RST 324)
3. Have (either tortiously or innocently) created the harm (RST 322)
Rationale:
o may find liability for “complex act” of doing something that could potentially create danger (creating a hole in the
middle of the street)  are liable for entire act – once you start to act you move much farther down the path of
“activity” rather than omission; also could argue that have created a ‘special relationship’ and now owe them duty.
RST 324: Duty of One Who Takes Charge of Another Who is Helpless
o One who being under no duty to do so takes charge of another who is helpless to adequately aid or protect himself is
subject to liability to the other for any bodily harm caused to him by (a) the failure to exercise reasonable care to
secure the safety while within the actor’s charge, or (b) the actor’s discontinuing his aid or protection, if by so doing
he leaves the other in a worse position than when the actor took charge of him.
RST 322: Duty to Aid Another Harmed By Actor’s Conduct
o If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such
bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise
reasonable care to prevent such further harm.
2.
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Good Samaritan Duties
o American law doesn’t tend to create legal good Samaritan duties or provide “sticks” for non-rescue. Some
legislatures do have “good Samaritan laws” which are laws that relieve good Samaritans for liability
o Arguments for Affirmative Duty Laws - law should enforce good Samaritan duty
 If make it clear that is only when aider is in no danger harm and little inconvenience, then leads to better
net social result
o
Arguments Against Affirmative Duty Law
 Ppl shouldn’t be bound to rescue ppl b/c didn’t cause the harm – can’t make someone liable for something
that didn’t cause (personal autonomy)
 Could be several bystanders to something – how do you make one person liable?
 Sometimes an intermeddler could do more harm than good (lack of expertise)
 Slippery slope – how do you determine whether was inconvenient to that person? How do you really
regulate and enforce this?
 Could create disincentives by discouraging potential rescuers from going near dangerous places where
might be liable if don’t rescue, so then is counterproductive b/c could lead to more ppl being hurt
 Don’t need to make this a legal rule b/c morality does most of the work
Theoretical Outlooks:
o Ames, Law and Morals - should punish criminally one who fails to interfere to save another from impending death
or great bodily harm, when he might do so with little or no inconvenience to himself, and the death or harm follows
as a consequence of his inaction.
o Epstein, A Theory of Strict Liability – argues against adoption of Ames’ rule based on the fact that the test is so
difficult to apply and so ambiguous – what constitutes “little inconvenience”? where does liberty end and obligation
begin?
o Posner, Epstein’s Tort Theory: A Critique – tort duties can sometimes be looked at as devices for vindicating the
principles that underlie freedom of contract. If we could all get together and agree to mutually help each other out if
we could in situations of peril, we would. But we can’t, so the courts can then impose tort liability for failure to help
someone as a means of carrying out the contract if it could have been created. Liability would create a mutual
protective arrangement that was not made in the first place.
o Bender, A Lawyer’s Primer on Feminist Theory and Tort – applies theories of caring, responsibility,
interconnectedness and cooperation – a human being is drowning and will die in the absence of affirmative action.
That person’s right to not die – and the interests of the people who care about and depend on him – outweigh the
33
interests of the individual momentary freedom not to act. To equate the two is two dehumanize the analysis and take
it out of its proper context.
Theoretical Look at Affirmative Duties
 Corrective Justice:
o Focus on relationships/moral obligations (not nec effy) (duty to aid certain people, duty to help a rescuer)
o Positive duty to go forward, esp when someone has relied on you to their detriment, that has created a ‘right’ of your
aid/protection (gratuitous undertakings, reliance)
o More opportunity for moral choice, especially where someone else lacks the choice in the sense we think about it
being informed (i.e. child trespassers and attractive nuisance)
o No sweeping omission liability – fairness of not holding people accountable for things they didn’t create or wouldn’t
have been able to protect against
o Private necessity/conditional privilege – create privileges that force someone to allow others to use property in order
to save more valuable property or lives
 Economic
o Putting certain duties on ppl with special relationships b/c often are cheapest cost avoiders and creates the right
incentives to prevent harm (therapists, LLs, prison guards, etc.)
o Sense of inefficiency of general omission liability – will probably create more harms (keep people away from areas
where might be expected to aid, could cause blundered-rescues, lead to over-deterrence (too many rescues when
neither desirable nor necessary, could result in more injuries). Too unclear, too difficult to administer, best left to
moral considerations. (In a sense, could look at the unwillingness to create expansive affirmative duties as a
rejection of tort law as reflective of morality. Seems to be saying that except in some egregious cases – where, for
example there is a quasi-contractual relationship, we don’t want to get involved in policing moral obligations).
 In General no Duty to Rescue
o Buch v. Amory Manufacturing Co. (N.H. 1897): P aged 8 years old trespassed in D’s mill. P’s hand was crushed in
a machine that his brother was operating. H: Landowner does not have a legal duty to warn an trespasser of the
dangers on his land even if trespasser is an infant. Rationale: The trespasser’s presence on the land does not impose
a duty that is not there when the trespasser is somewhere else b/c there is a difference b/t an act and an omission.
“The law does not deal in morality.”
o Yania v. Bigan (1959): P fell into water after being urged and taunted by D to go in. P drowned. H: D not liable b/c,
despite moral obligation, no legal obligation
 In Certain Situations, Doctor not Required to Provide Assistance
o Hurley v. Eddingfield (Ind. 1901): Family doctor refuses to tend to patient that relied on him for medical assistance
and no other physician was procurable. He gives no reason for refusal. Patient dies. H: Doctor is not compelled to
practice whenever called upon and therefore not liable for death.
 There is a difference b/w a “special relationship” you have w/ your personal doctor and a doctor you call
out of a phonebook.
 Nonfeasance of D Created Harms
o Montgomery v. National Convoy & Trucking Co. (S.C. 1937): D’s trucks stalled on an icy highway. D’s put
warning signals in the immediate vicinity of their trucks, but not at the top of hill, so ppl coming over couldn’t stop
in time. P skidded on ice and crashed into trucks. H: Δ created the peril. Negl. by omission is present where an
affirmative duty to take precautions, reasonably calculated to prevent injury
 Must Rescue With Reasonable Care
o Black v. New York: Train conductor left the drunk P half way up stairs and he fell. H: D was under no duty to bring
him home, but once he did he was bound by reasonable care. Rationale: You may not be guilty of nonfeasance if
you ignore a person in peril (that you didn’t create) but if you attempt to rescue, you must do so with reasonable
care.
 May Not Refuse to Help Rescuer
o Soldano v. O’Daniels (Cal. App. 1983): Bartender wouldn’t let would-be hero use phone. H: Liable where D's
negl. prevents or disables the third person from giving aid. Rationale: (1) morally repulsive to obstruct rescuer; (2)
Rest Torts §327 requires.
34
II. Gratuitous Undertakings
 Many of these kinds of cases are promises to do something in a commercial context, but there is no contract
 Often turns on question of whether there is nonfeasance or misfeasance
 Courts focus particularly on whether or not the plaintiff did reasonably and foreseeably rely on the defendant’s protection or
reasonable care (promissory estoppel in torts context).
 Positive Duty to go Forward - If conduct has gone forwardwhere inaction would commonly result, not negatively merely in
withholding a benefit, but positively in working an injury, there exists a relation out of which arises a duty to go forward.
o Question is whether the putative wrongdoer has advanced to a point as to have launched a force or instrument
of harm, or has stopped where inaction is at most a refusal to be an instrument for good.
 Volunteers Are Obliged to Act Carefully
o Coggs v. Bernard (Eng. 1703): D agreed to move cask of brandy and broke it. H: D was liable b/c anyone who
undertakes to do something for another is liable for damages caused by his negligence. Rationale: Court compared
this to promissory estoppel. Consideration was entrusting D with the cask.
 Liability for P's Reliance on a Gratuitous Undertaking – Promises that Create Reliance Create Duty
o

Erie R.R. v. Stewart (6th Cir. 1930): R.R. voluntarily undertook to have watchman at train crossing. One day he
was not there when P expected him to be. P injured when he crossed the tracks. H: Although there is no duty to
have a guard, once the task is undertaken and the community comes to rely on the performance, an obligation
exists to maintain the watchman, until notice is given to the contrary. Rationale: D created the reliance. P would
have taken care absent the reliance.
o Marsalis v. LaSalle (La. App. 1957): P was bitten by D's cat. Asked D to keep cat safe until she investigated for
rabies. D promised to do so but cat escaped. P received rabies shots and suffered side effects, but turns out cat
didn’t have rabies so was unnecessary. H: A promise to care for or offer relief/assistance to an ill, injured or
helpless person who relies on that promise, creates a duty to use reasonable care and prudence. Once liable, liable
for the whole extent of injuries, no matter how weird.
Controversial “No Duty to Third Party” Case
o Moch Co. v. Rensselaer Water Co.: P sued water co. when his building burned down. D was in a contract with city
to supply water but not under a contract with P. H: 3rd party beneficiaries may not recover for damages caused by
failure to perform on contracts with another party. Rationale: There was no intention by the Co. to be liable to the
city's customers. Note: Cardozo may have decided this outcome b/c he didn't think that the water co. was the
appropriate insurer here. The inexpensive water was testimony to the fact that the water co. was not “building in”
the costs of accidents like Moch’s, and since Moch enjoyed the benefits of cheap water, it should not expect to
recover. deLisle Dissents: There may have been a special relationship between the parties, and absent the reliance,
P would have acted otherwise.
 This decision was controversial and rejected by many courts.
III. Duties of Owners and Occupiers

Considered an area of “limited liability” – required to exercise reasonable care with regard to activities on her land for the
protection of those outside the premises.
 NO duty of care is owed with regard to “natural conditions”
 Have a duty to prevent unreasonable risk of harm to persons or property created by artificial uses (Rylands)
 Note: Many jurisdictions have done away with the common law categories distinguishing b/w types of visitors
Duties to Possible “Visitors”
o
Trespassers:
 Owner must make the premises safe or at least post warnings for trespassers if: (1) has knowledge that
portion of her land is frequently used by trespassers or is being used by a trespasser; or (2) owner knows
children are likely to trespass, the area is dangerous to children who are unlikely to realize danger, benefit
to children outweighs the cost of maintenance (CBA), or when the owner maintains an attractive nuisance
(swimming pool).
 When owner is not aware of the trespasser, then NO duty. But can’t set traps (wanton/willful).
35
o
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IV.
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Invitees (customer in a store)
 Must take reasonable care that the land is safe (duty to actively inspect/discover harms)
 Must warn of known dangers that are not obvious
 If the danger is obvious, no duty to warn.
o Licensees (social guests)
 Must take reasonable care that the land is safe. (So if faucet was clearly cracked but didn’t think to/bother
to inspect, this could violate std of reasonable care.)
 Must warn of known dangers but No duty to actively inspect premises or discover danger.
Attractive Nuisance Doctrine – Protects children only
o Allows children to recover when lured onto D’s property by some tempting condition created and maintained by D
(e.g. swimming pool)
o RST 339 – Artificial Conditions Highly Dangerous to Trespassing Children
 Only applies to artificial conditions on the land
 Owner must know or have reason to know that children are likely to trespass
 Children cannot appreciate risks b/c of youth
 Utility of possessing the condition or burden of preventing risk is outweighed by danger
 Owner fails to exercise reasonable care to protect children
1. Somewhat more flexible in that standard is no longer whether “should have known” that children
would come onto property, but rather actually knows or has reason to know
Not Liable for Injury to Child Trespasser
o Robert Addie & Sons v. Dumbreck (Eng. 1929): P's 4 yr. old son, who had been warned not to play on field, was
killed when he was mangled in a big wheel. H: Property owner has no duty of care to a trespasser, even a child.
Note: Cts. divided on this issue. Some courts would apply attractive nuisance
o Maalouf v. Swiss Confederation: recovery for P sledding at Swiss emb. hill and hit metal wire. H: P attracted to land by
natural source, but harm-causing element artificial.
Failure to Warn of Known Danger
o Rowland v. Christian (Cal. 1968): P entered D’s apt as licensee and injured his hand on bathroom fixture. H:
Where the occupier of land is aware of a concealed condition and fails to repair, or to warn guests. Rejects Robert
Addie. Rationale: Court rejects the typical classification of licensee, invitee and trespasser. The application of
these is difficult and often arbitrary.
 But many courts have still applied different standards to trespassers, but have conflated
licensee/invitee categories.
Willful and Wanton Exception to Trespasser Duty
o Gould v. deBeve (D.C. Cir. 1964): P, two year old infant, and mother were staying illegally with a tenant of D.
Infant fell out of the apt window through a defective screen of which the tenant had made urgent requests to D to fix.
H: Court held P to be a trespasser, but allowed recovery since D’s conduct was “willful and wonton misconduct” in
ignoring statutory obligation to replace screen after being asked to.
Duties to firefighters, police officers and other public officials.
o Routine public officials under ordinary circs (garbage collectors, inspectors, etc.)  business visitors. Monsey v.
Ellard (1973) – afforded police officer the same right. Owner has obligation to keep access routes in reasonably safe
condition for those required to use them in official duty. H: police officer an implied invitee; D had duty.
Special Relationships
could be Δ’s relationship w/ π or Δ1’s relationship w/ Δ2
Major area of exception to no duty to protect/rescue.
RST 315: Duty to Warn Third Party
o No duty to control conduct of a 3rd person to prevent him from causing physical harm to another unless
 A special relationship exists b/w the actor and the third person which imposes a duty upon the actor to
control the third person’s conduct, or
 A special relationship exists b/w the actor and the other which gives other a right to protection
36

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

Special relationships – closer you get to a position close to that of a therapist, confidentiality, influence. Statutes also create
special duties. If you establish that they have a duty (step 1), then need to show that they breached that duty (did not behave
as a reasonable person would in the circ. and mental health official  higher standard)
Duties of Landlord
o Kline v. 1500 Mass. Ave. Apartment Corp. (D.C. Cir. 1970): P was criminally assaulted and robbed at night by an
intruder in the common hallway of her apartment house. H: LL has a duty to protect tenants from foreseeable
criminal acts committed by third parties. Rationale: Tenant does not have power to ensure safety of common areas.
Tenant has handed over control of safety in hallways by submitting to authority of LL and is relying on him for
protection. Municipalities & tenants may not police the hallways of private apartments. Like Erie, the apt. once
took on the duty to protect, and now may not shrug off that duty. Dissent: Even with all precaution the crime may
have been committed, thus there is a causation hurtle to clear not addressed by the ct.
 Note: Other special liability relationships include universities, common carriers, hotels,
condominiums, and shopping malls.
Duty of Therapists
o Tarasoff v. Regents of the University of California (Cal. 1976): Poddar confided his intention to kill P to his
therapist. Tatiania was not warned of the peril. H: The special relationship between patient and doctor lends the
doctor special insight into the patients’ behavior, where it is reasonably foreseeable that the patient will put a third
party in jeopardy, the doctor has a duty to warn the third party of the danger. Rationale: Confidential duty must
yield when disclosure is essential to avert danger to others.
 Note: Threat must be made to a specific person. The expression of general homicidal tendencies is
insufficient to require doctor to warn. Dr. should be reasonably certain of the validity.
Special Duties of Influence
o Weirum v. RKO General Inc. (Cal. 1975) p. 566: D held liable when its DJ had a contest that required individuals be
the first to reach a specified location and P was killed while racing there at 80mp. H: Court based its ruling on the
idea that D had specifically intended to create this sort of “competitive pursuit”
Strict Liability______________________________________________________
Pockets of Strict Liability:
 Wild animals: Cts distinguish b/w wild vs domesticated animals
 Abnormally Dangerous Activities
 Nuisance: Negligence does creep back in in certain areas in determining what is nuisance – case-by-case analysis
 Products Liability – Major area of strict liability
Note: The areas of SL are fairly well-defined and if you can explain something via negligence, then typically do. Also, there is a
difference b/w SL and absolute liability. Within strict liability, are still only liable for harms for which are a proximate cause –
harms the likelihood of which are the reason the activity is so hazardous. Ex: If have a wild elephant in your apt and stomps
around and causes damage to your roof, then might have a claim in S/L if believe that this harm is the result of its being ‘wild.’ But
more likely, this would be a negligence claim since the cause of the harm is not so much its being wild as its being large and heavy.
I.
Animals
 Wild vs. domesticated animals
o Harm by wild animals always SL; harm by domesticated animal only SL where there has been evidence of
“dangerous propensities”); otherwise held to a negligence standard


What is wild animal?
o Exception: Context and normal conditions of the animal? (Zoo, natl park, city, etc.)
Rationale for Distinction:
o Reciprocal risks
o Would have to go to pretty extreme lengths to restrict behavior of lion or tiger.
o Activity Level Adjustment - relocation or activity level adjustment, not an increase in care (typical SL)
37

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

o Owner is CCA
Dog Bite Statutes reverse the first bite’s free presumption.
Trespassing Animals are s/l for damage done to prop. Keeper of wild animals are s/l even if animal isn’t known to be
dangerous (except for zoo, which has special status; negl. must be shown with zoo animals).
Neg. for Non-Vicious Domesticated Animals
o Gehrts v. Batteen (SD 2001): D visited girl’s home and girl asks to pet dog in the back of her pickup truck secured
by a harness attached to a restraining device. D lets her and as Gehrts reaches to pet the dog, he bites her face,
causing injuries that require extensive medical treatment. H: Dog owner not liable.
S/l for Vicious Domesticated Animals
o Baker v. Snell (Eng. 1908): P bitten by dog known by master to be ferocious and given to bite. H: Owner of dog is
SL for harm caused when owner knows of her animal’s vicious tendencies.
II. Ultrahazardous or Abnormally Dangerous Activities
 RSTs: Abnormally Dangerous Activities
o
(2d) 519: General Principle
 One who carries on an ADA is subject to liability for harm to the person, land or chattels of another resulting
from the activity, although he has exercised the utmost care to prevent the harm.
 This SL is limited to the kind of harm, the possibility of which makes or defines the activity to be abnormally
dangerous.
o
(2d) 520: Abnormally Dangerous Activities
 In determining whether the activity is abnormally dangerous:
a) Existence of a high degree of risk of some harm to the person, land or chattels of others
b) Likelihood that the harm that results from it will be great
c) Inability to eliminate the risk by the exercise of reasonable care **
d) Extent to which the activity is not a matter of common usage
e) Inappropriateness of the activity to the place where it is carried on and;
f) Extent to which its value to the community is outweighed by its dangerous attributes
o
(3d) 20: Abnormally Dangerous Activities – (latest iteration)
 A Δ who carries on ADA is subject to SL for physical harm resulting from the activity.
 An activity is abnormally dangerous if:
 The activity creates a foreseeable and highly significant risk of physical harm even when
reasonable care is exercised by all actors; and
 The activity is not a matter of common usage.
 Kind of folds the inappropriateness of activity into this last one, but removes the
“value to the community” criteria
 Strict Liability for Blasting
o Spano v. Perini Corp. (Ct. of App. N.Y. 1969): D’s blasting wrecked P’s garage on nearby prop. H: One who
engages in ADA, such as blasting is s/l. Rationale: Old analysis was physical invasion of property, flying debris and
such; New analysis is just SL for ADA. Since it is not possible to engage in blasting with sufficient care to reduce
risks, then the harm should not be imposed on others. D is CCA.
 No Strict Liability Where Care Could Reduce Risk
o Indiana Harbor Belt R.R. v. American Cyanamid Co. (7th Cir.): D’s train leaked toxic fluid. P, the switching line,
was required to perform decontamination. H: (Posner, J.) shall not be strict liability when the accident would
have been prevented with due care by RR. Rationale: (1) This is not an ultrahazardous act b/c fails to meet Rest.
§520 crit. #3 (reasonable care doesn’t work), thus s/l inapp. (2) Must reject deep pockets; (3) Coasian bargain on its
head; the homes are too close to the R.R., and ought to move, not vice-versa; (4) the CCA is the RR not the D; (5)
this stuff can be transported safely.
 Ulthaz Act Not Liable for Unforeseen Outcome Outside the Scope of Harm
o Madsen v. East Jordan Irrigation Co. (Utah 1942): P’s minks are frightened by nearby blasting and eat their young.
H: No liability where effect is unanticipated and unforeseeable, i.e. no prox. causation. Rationale: Mother minks
38
interrupted chain of causation. Blasting may cause certain sorts of harms, but this is certainly not one we would
expect. Has to fall within scope of harms that make the activity ADA
III. Nuisance
 Nuisance: The (1)intentional or negligent or ADA that leads to(2) unreasonable [and/or?] (3)substantial invasion of
plaintiff’s possessory/property interest in (4)private use and enjoyment of land.
o Unreasonable is something tougher than negligence (can’t win by saying took all cost-effective Bs) – more than P
should be required to tolerate – harm is greater than benefit.
 Is it unreasonable? Factors: (1) suitability of the invading use to the neighborhood where it takes place; (2)
values of the respective properties; (3) Cost to the defendant to eliminate the condition complained of; and
(4) social benefits of allowing the harm to continue (e.g. employment). [see RST 826], (5) degree of harm
to the interest invaded.
o Substantial – significant harm
 Courts in these cases tend to either come down either on the side of unreasonable OR substantial. A lot of
courts that apply unreasonable standard, however, will require some minimum level of
substantiality.
 Why don’t we want to have a SL standard insubstantial that do not meet BPL requirement in neg.
o Inefficient, social costs
o Live and let live argument
o Property rights are a social ideal and don’t extend to absolute right to enjoyment of
property free from any interference (property rights are legal creation)

When Analyzing:
 value of the activity vs. the harm (not just to THAT actor, but to the general community)?
 What is a “substantial” invasion?
 Particularly sensitive P?
 Coming to the nuisance?
 How should damages be allocated? Injunction and then pay for the right to “pollute”?
 Private vs. Public Nuisance
 Private Nuisance – non-trespassory interference with the π’s interest in the use of enjoyment of property.
 Public Nuisance – act by defendant that obstructs or causes inconvenience or damage to the public in the exercise of
rights common to all, or in the enjoyment or use of common property.

RST 826: Unreasonableness of Intentional Invasion

An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable if:
 The gravity of the harm outweighs the utility of the actor’s conduct, OR
 The harm caused by the conduct is serious and the financial burden of compensating for this and similar
harm to others would not make the continuation of the conduct unfeasible. Internalizing cost for the CCA
(Boomer)
 Note: This is a disjunctive test. The first part is essentially a CBA.
Private Nuisance
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Live and let Live
o Michalson v. Nutting: root growth in people’s yards is natural to come on neighboring land. Don’t freak out over
everything little, reciprocal thing and bring to court, would choke development. Upto threshhold
No Intentional Invasion When Didn’t Know of Harm
o Vogel v. Grant-Lafayette Electric Cooperative: D provides electric power to the dairy farm that causes excessive
stray voltage that harms animals. Ps notify GLEC and they fix. H: The coop’s actions were not a private nuisance
b/c was not intentional and once knew of harm, they came in and fixed the situation. Therefore was unintentional
and instead sounds in negligence.
 Real work/tough question is what constitutes an unreasonable or substantial invasion??
Deprivation of Light and Air is not Nuisance
39
o

Fountainebleau Hotel Corp. v. Forty-Five Twenty-Five. Inc: D want to build a high-rise that would cast a shadow on
other’s property.
o Holding: Land owners may use their property in any reasonable and lawful manner, even if motivated by spite, so
long as they do not thereby deprive the adjoining landowners of any right of the enjoyment of their property. Light
and air is not a right of landowners recognized at law.
 Note: As industrial ethic becomes less prevalent and economic ethic becomes more prevalent, courts are
less likely to follow this. Flaherty v. Moran: Spite Fences that have no other useful purpose are considered
a nuisance.
Nuisance Must be Objectively Injurious
o Rodgers v. Elliot (Mass. 1888): Churchbell rang causing P, with serious sunstroke, to go into convulsions. H:
Ringing of a loud bell is not a nuisance where an average person is not adversely affected, even if a particular P is so
affected. Inquiry is what is reasonable given the circumstances and the effect upon ppl generally not those
particularly over or under-sensitive to something, or upon the particular person who happens to be affected by it.
Much like intentional tort.
o
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RST (2d) 821F: Liability for a nuisance only to those to whom it causes significant harm of a kind that would be
suffered by a normal person in the community or by property in normal condition and used for a normal purpose.
Coming to the Nuisance is Not a Complete Defense
o
Ensign v. Walls (Mich. 1948): Neighbors of dog-breeding allege private nuisance b/c of smells, barking…. She
was there before the complaining neighbors. H: There may be an actionable nuisance, even if the nuisance
predated the arrival of neighbors who are complaining, times are changin’.
 Rationale: Coming to the nuisance is but one factor to examine in a balancing test for culpability and also
damages. Other factors are public health and safety.  “Even if have carried on an offensive trade for a
number of years remote from buildings and public roads, that does not mean that once houses and roads are
built around you you can continue your trade at will if it is a nuisance. That would amount to control or
impact on neighbor’s lawful use of land.”
‘Coming to the Nuisance’ Rule
 Pro
 Provides notice
 P’s choice to move in
 Ps are best cost avoiders (Calabresi)
 P already compensated by lower cost of housing (Boomer)
 Anti:
x Nuisance a violation of property rights
x Would essentially allow private citizens to determine zoning laws/control or impact neighbor’s lawful
use of land
x Perverse incentives – each side motivated to build as quickly as pos (over-dev)
x
Non-reciprocal risks
Nuisance Damages (not specific performance) Where Utility of Nuisance O/W Harm
o Boomer v. Atlantic Cement Co. (N.Y. 1970): Cement factory produced dust and vibration. H: A single damage
award is appropriate to compensate victims of nuisance where the value of the utility of the activity o/w the
nuisance and where reparations would be more feasible than either adjusting care level or discontinuing the
bothersome activity. Rationale: Efficiency gains o/w property rts. Idea (theoretically) is to provide incentives to
spur better technology and development
o Spur
Weighing Remedies and Injunctive Relief
o
Injunctive Relief
 Advantages:
 Can provide benefits to would-be π’s who are negatively affected by the nuisance but whose AIC
might not be sufficient to bring a suit or who might not have the resources CJ - If estimating
plaintiff’s loss is hard to do, then this is easier solution
40
o
o
Damages –
 Advantages:
 Efficiency - Avoid potential holds out for as much money can get and may never reach an
agreement (Ex. P’s property is worth $1000 and D’s is worth $1 million. P may hold out for as
much as can get even though property only worth $1k.) With damages, plaintiff gets what his
property is worth and no more.)
 Can compensate plaintiff for loss without forcing major economic loss for defendant. Defendant
pays for plaintiff’s loss to compensate for negative externality but is worth it b/c his property/use
is worth more.
 Disadvantages:
 Subjective valuations of property by homeowners
 Transaction costs and additional probs of multiple Ps
 Allows you to buy the right to engage in the nuisance (Boomer – buys right to pollute)
 Goes against CJ instincts (doesn’t stop harm, D can buy right to engage in nuisance, hard to
quantify the harm to P)
Purchased Injunction –
 Plaintiff can enjoin the defendant but only if compensates him for loss incurred. (Ex. Spur Industries plaintiff brought residents to the nuisance and now must compensate defendant for reasonable amount of
moving or shutting down)
Calabresi & Melamed, Property Rules, Liability Rules and Inalienability, in Torts Supplementary Materials 51 (Jacques
deLisle ed., 1998). Four possible R for solving nuisance activity from the perspective of efficiency. In perfectly efficient world it
would not matter which rule you chose b/c parties would simply buy and sell, and bribe their way to perfect equilibrium <In a
perfectly efficient world the parties would not have bothered to go to court b/c they would have been able to negotiate w/ ea. other and
come to a perfectly efficient resolution w/o the loss of admin. and ct. costs>
1. Polluter Is Enjoined: This rule is used where the polluter is the cheaper cost avoider. Is efficient, if the ct. is correct in
determining who really is the cheaper cost avoider.
2. Polluter Pays Damages: This rule is used where the ct. cannot determine whether the polluter desired to pollute more
than the P desired to be free from pollution. The negative side effect is that sometimes it forces co. out of business.
3. Polluter Wins Litigation and the Status Quo Prevails: Good distributive effects (C&M mean that money is not
redistributed, and they prefer it that way), but possibly bad efficiency effects if polluter tries to later buy out the P due to possible
hold-out problem.
4. Polluter is Enjoined, but P must Pay Damages (Spur): This rule has the advantage of accomplishing distributional as
well as efficiency goals. It is efficient to the extent that the P removes the nuisance that was previously preventing perhaps numerous
homeowners from enjoying their property. We max efficiency by allowing more people to get more use out of their land than was
possible before. This rule also accomplishes distributional goals to the extent that the polluter is not required to fire its employees, and
instead may move and continue operations elsewhere. The employee’s jobs are thus not distributed away into the homeowner’s
enjoyment of land.
Critique: <This of course is not strictly true, since it may take years for a factory to move and employees will be forced to
find new employment in the interim anyway. Most employees will never return. In addition, it assumes the polluters don’t just take
the money and run. Polluters aren’t required to set up shop elsewhere, in which case employees lose their job, not only in the short
run, but forever. C&M want to set this arg up as if P were really suing employees, making P’s look more repellant and litigious.
C&M don’t want to discuss the issue of “distribution” is really from the pockets of the elites, to Boomer and the community, of which
many of the employees are likely to be members.>
Products Liability – Strict Liability if Defective___________________________________
History/development:
41
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

Product liability w/ Negligence  needed privity
Strict liability w/ warranty (Contract)  needed sale, reliance and notice
Traynor in Escola v. Coca Cola pushed products into strict liability land
Categories of Defects:
1) Manufacturing/Construction Defects
a. Can look like RIL but it’s not negligently made SL
b. deviates from original design OR deviate from consumer expectations (food only)
2) Design Defects
a. In the original design of the product there was a defect
b. Closer to a negligent std; if are aware of unavoidable danger then either must be “open and obvious” or must have
properly warned/guarded against
i. Consumer Expectation
ii. Risk-Utility Calculation
3) Warning Defect
a. Failure to adequately warn about potential dangers
b. Something slightly tougher than neg std: Duty, Quality (depth, breath, vividness), by whom?

o
RST (3d) 2: Categories of Defective Products:
A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in
design, or is defective b/c of inadequate instructions or warnings. A product:
 Contains a manufacturing defect when the product departs from its intended design even though all
possible care was exercised in the preparation and marketing of the product.
 Is defective in design when the foreseeable risks of harm posted by the product could have been reduced or
avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a
predecessor in the commercial chain of distribution, and the omission of the alternative design renders the
product not reasonably safe;
 Is defective b/c of inadequate instructions or warnings when the foreseeable risks of harm posed by the
product could have been reduced or avoided by the provision of reasonable instructions or warnings by the
seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the
instructions or warnings render the product not reasonably safe.
Defenses by Manufacturers


Negl: (1) contrib. negl.; (2) state of the art technology was used but no system is perfect and we all, as a society ought to
bear that cost (a kind of reciprocal risk arg). Most cts apply comparative fault principles.
S/l: (1) A/R where P had knowledge of risk (e.g. didn’t heed warning); (2) abnormal use or misuse that is not reasonably
foreseeable is not protected; (3) argue that defect was not proximate cause of harm, (4) alteration sale.
I. Manufacturing Defects

MacPherson (Cardozo killed privity(crude estimation of foreseeability) and let all foreseeable parties recover) and Escola
(Traynor did not need a sales/warranty relationship) cases marks shift for manufacturing defects.

o
Shift to Strict Liability for Manufacturing Defects
Escola v. Coca Cola Bottling Co. of Fresno, CA (1944): Waitress puts coke bottles into fridge and bottle
explodes as a result of a defect. H: Shift to strict liability for manufacturing defects.
 Rationale:
 CCA and Spread Loss (insurance cost):
 Incentives are technology-forcing by internalizing externalities
42




o

o
o

o
o
o
Asymmetry of Access to Information (CCA and evidence issues)
Bargain power (can’t let the Manufacturer define the scope of liability by warranty)
It is hard to prove negligence (CCA and better CBA)
Corrective Justice – people take these products into their home based on faith that product is
safe. Reciprocity of risks.
o Consumers also no longer have free agency w/ so much advertisement
But all defined in terms of the safety of the product in normal and proper use
RST 402(A) (1966): Special Liability of Seller of Product for Physical Harm to User or Consumer
One who sells any prod in a defective cond. unreasonably dangerous to the user or consumer or to his prpty is
subject to liability for phys harm caused to the ultimate user or consumer, or to his property if:
 The seller is engaged in the business of selling such a product , and
 It is expected to and does reach user/consumer w/o substantial change in the cond. at sale.
The above-state ruled applies although
 Seller has exercised all possible care in the preparation and sale of the product, and
 The user or consumer has not bought the product from or entered into a K relation with the seller.
New Rule on SL – RST (3d) 1 (1998):
One engaged in the business of selling or otherwise distributing products who sells or distributes a defective
product is subject to liability for harm to persons or property caused by the defect.
 Removed any distinction b/w bystanders and the consumer/user.
 This one has been slightly more controversial. Some courts follow.
Comment i: Unreasonably Dangerous
 Must be unreasonably dangerous in that must be dangerous beyond the extent contemplated by the ordinary
consumer, with the ordinary knowledge common to the community as to its characteristics. Ex: Knife is not
unreasonably dangerous.
Comment k: Unavoidably Unsafe Products
 There are some products that are incapable of being safe in their ordinary and intended use (certain drugs,
vaccines) but whose use is justified b/c the benefits outweigh the risks/costs.
 Where something is unavoidably dangerous, if it is properly prepared and accompanied by proper
directions and warnings, it is not defective and not considered unreasonably dangerous.
 Also would apply to new/experimental drugs that have not had adequate long-term testing in order to
guarantee safety.
Requirements for Liability:
o
Must have been defective when it was sold. Generally, s/l does not apply to used goods or sellers
o
No difference b/w product and its packaging.
o
In order to prevent unreasonable use, sometimes must provide warnings or directions as to proper use.
o
Contributory negligence – like with all SL areas – does not apply when it refers merely to the failure to discover
the defect or guard against it. But if it consists in voluntarily and unreasonably proceeding to encounter known
danger (assumption of risk) it is a defense (again, as in other areas of SL).



Construction Defects
Pouncey v. Ford Motor Co. (5th Cir. 1972): P injured when radiator fan blade broke away. H: Manufacturer liability may be
proven by meeting a negl. std. based on circumstantial evidence. Note: This is in fact a borderline negl. s/l case, though the
ct. calls it negl. Modern trend is that you’re not required to show that the product wasn’t made acc. to design. That it broke
is evidence enough of fault.
Foreign vs. Natural Contaminants
43

Mexicali Rose v. Superior Court (Cal. 1992): Choked on chicken bone. R: S/l std is met where (1) the foreign object not be
reasonably expected by the average consumer and (2) the product is unfit under theories of the implied warrant of
merchantibility. H: Manufacturers strictly liable for foreign contaminants but only negligence std for natural
contaminants.

o
RIL and Defective Products
Speller v. Sears, NY (2003): Basic idea is that P can win w/o proving that a particular defect existed or caused
the harm, only has to rule out other causes.
 There is an RIL-type analysis, though is different b/c here there is no requirement that the plaintiff show
that in the absence of negligence would not have happened, b/c we are talking about SL and don’t care
about negligence.
II. Design Defects
Design Defects:
 Consumer Expectations: fail to perform as an ordinary consumer(obj.) would expect when used in an intended or
foreseeable manner. Problem: when overly high or low stds. (New RST moves away from this)
 What would the reasonable, average consumer expect? Linegar, Halliday
o
But do consumers always have expectations about safety? And can we measure that?
 Potter v. Chicago Pneumatic Tool Co. – keeps nominally the consumer expectation test but recognizes its
limitations and allows for risk-utility test in other situations
 Consumer expectation test seems to only really apply to a narrow set of cases (guns, bullet-proof
vest), b/c often expectation does not match the actual safety of a product (certain meds, cars) –
consumers are not always adequately informed.
 Also what is foreseeable and intended use? Do we survey everyone? how to prove?
 So there is often need to apply risk-utility to better match reality of circumstances
 Risk-Utility Calculation: must balance safety w/ price, aesthetics and utility.
 Alternative design? Feasible and not excessively expensive?

Gravity and likelihood of the harm? Benefits?

Have we slid all the way back to negligence?
o Courts do discuss negligence factors (CBA), but also add other factors
o Not strictly limited to dangers that are foreseeable and discoverable
o More backward-looking risk-utility balance than usual negligence test (w/ exception of state of the art
definition and consideration of whether improvements came after the incident)

S/L vs. Neg: Where do courts tend to fall in terms of design defects? SL
Neg.
o The vast majority of courts will apply the risk-utility-balancing approach – will run the spectrum from
pure negligence (Volkswagen) and need to show some alternative design that would have prevented harm
(Barker, Piper)… to no need to show alt design if can show that it is unreasonably dangerous (Mushkin).
But most courts are somewhere in the middle!!

Alternative design - What does this encompass? Mushkin
Negligence
o Barker: some safety features were left out  SL

have to compare only technology to the field at the time of the incident.

Other courts might allow you to introduce as evidence that should or could have used that technology. Maybe
wasn’t used but was available. Maybe it is evidence that hadn’t engaged in reasonably testing/innovation.

Linegar – what about different models of the same product? What about deluxe or cheaper models? Courts make
allowances for the fact that manufacturers try to meet different needs (provided they stay above some basic level).
Otherwise, might not buy at all.

Courts often use both consumer expectation and risk-utility – balance against one another.
44
Tort Theories and Design Defects:

CJ:
o
Non-reciprocal risks
o
“right” of the consumer to not be wrongfully harmed by a defective product,
o
“A hit B” causality.
o
Something tougher than negligence that runs through all of PL and the fact that although a manufacturer may
have exercised all the care they thought they should, there was more out there to discover that they should have
discovered or that product is regardless “unreasonably” dangerous.
o
Cons-Exp closely aligns with the view that consumers have a “right” to expect a standard of safety.

Econ:
o
R-U analysis closely tracks a BPL analysis where we are looking at the costs of preventing the harm (price,
alterations in functionality, possibility that the product can’t be made) against the likelihood and the severity of the
harm. Also looks at who is the cheapest cost avoider, asking whether the defect is something a reasonable consumer
could easily/cheaply guard against, or whether this is something that manufacturer could more easily/cheaply do.
The only major difference being possible activity-level adjustments made (where risk is unreasonable) that not
accounted for in BPL.
o Where something is dangerous but we still believe its utility to be fairly great (certain drugs, for example), then
regardless of their potential to seriously harm, we believe that they should exist regardless.
Consumer Expectation/Foreseeable Risks:
Foreseeable Use: Intended use and any reasonably foreseeable but unintended use. But the foreseeable misuse creates moral hazard
by encouraging consumer reckless behavior. Can’t differentiate between careful and reckless consumers


Defective Design & Foreseeable Harm - A Negligence Std
o
Volkswagen of America, Inc. v. Young (Md. 1974):

P killed when seat ripped away from floorboards during a rear-end accident. Rule: SL for defect in design
which the manufacturer could have reasonably foreseen

This is a negligence standard and is an outlier -- is as far toward negligence standard as courts
go with design defects. This standards is NOT the law in most jurisdictions.
With Knowledge of a Defective Design
o
Grimshaw v. Ford Motor Co. (Cal. 1981):

SL where manufacturer acts maliciously and w/ a conscious disregard for public safety. Efficiency and
BPL arguments are rejected. Use of standards to see if negligent: statutory requirements or guidelines? Other
similar models? Cost of the safer product? Knowledge of the potential harm?
Risk-Utility Calculation:


Utility and Consumer Expectation as Alternate SL Stds. in Product Design.
o
Barker v. Lull Engineering Co. (Cal 1978)

P injured while operating D’s high lift loader on a construction site. Rule: A product violates s/l test of
unreasonably dangerous design where (1) π proves it fails ordinary consumer expectation (obj, test) when
used as intended or in a reasonably foreseeable manner, OR (2) the π proves proximate causation and the Δ has
burden, on balance, the benefits of the design o/w the risks inherent.

Alternative Design must demonstrate alt design would have prevented the harm and would be
reasonable. Or, must show that there is no such reasonable alternative design.

Apply CBA when CE doesn’t work
Consumer Expectation and Utility in Determining Design Safety
o Linegar v. Armour of America (8th Cir. 1990):
45

Police officer killed while wearing bullet proof armor. H: A Bullet proof vest not defective when (1)
consumer doesn’t expect the performance at issue, and (2) utility of design is bigger than the risk  Ct.
used “open and obvious” approach
 Apply Risk-Utility to this Case:
o Technical Feasibility – yes. D actually makes a vest that would cover that area.
o Functionality/Safety – mobility. It alters the design and some of the benefits.
o Cost – costs will be increased. maybe not afford the vest at all if “safer design”
Modified Consumer Expectation Test w/ CBA.
o
Potter v. Chicago Pneumatic Tool Co. (Conn, 1997):

π injured by repetitive use of tools caused permanent injuries from excessive vibration. H:

limitations of the consumer expectation test and allows risk-utility balancing test in others (CBA)
Safety as One Element Among Many
o
Wilson v. Piper Aircraft Corp. (Or. 1978):

Plane crashed due to icing conditions (P theory). H: P’s proof of a safer alternative design must also meet
a general CBA of overall design, and further, older models need not be considered unsafe simply due to
comparisons with newer, safer models. π needs negligence analysis for at the time.

trying not to disincentivize companies to not innovate. Balance w/ Pinto case.


Risk Utility Formula for Calculating Design Defect Liability
(1) utility of the product to the public as a whole;
(2) likelihood of product causing injury and gravity;
(3) availability of substitute material with better safety properties/alternative designs;
(4) manufacture’s cost of eliminating unsafe aspects of product, including potential to create other/greater risks;
(5) user’s cost of avoiding the product’s proposed danger;
(6) anticipated user awareness of product’s dangers; and
(7) feasibility of manufacturer spreading the loss.


o

o
o
Products Intended to Be Dangerous.
o
Halliday v. Sturn, Ruger & Co. (MD, 2002): Boy shoots himself with playing with his father’s negligently-placed
handgun π bases claim on CBA (alt designs for childproof, etc.). Court applies consumer expectation. H: Legislature has
not chosen to place this kind of burden on gun manufacturers so court decline to do so.
o
Guns in general? dangerous activities not products that are dangerous.

Ex: Semiautomatic pistols (“Saturday night specials”) are banned. This kind of sub-category of product
that might flunk CBA. Hard for big sweeping categories
State of the Art Defense
O’Brien v. Mushkin Corp. (N.J. 1983):
 Pool with vinyl bottom. Rule: π just have to show there’s an alternative extreme on the S/L side (opposite of
Volkswagen). This was overruled by NJ statute – this is not really good law any more.
Limitation on “Open and Obvious” Defense
Micallef v Miehle Co. (N.Y. 1976):
 P injured hand chasing a hickey. H: Open and obvious danger is not enough in and of itself to exculpate a
manufacturer from liability unless the design defect remedy would have been prohibitively expensive, or would
have resulted in diminished effectiveness of the product. Rationale: Ct. critiques old Campo “open and obvious”
defense: (1) is a hold-over notion of tort-as-fraud; (2) violates CJ notions of wrongful harm; (3) proximate cause is
present b/c harm is foreseeable, and that is enough.
deLisle Overview of Liability Std. for Drugs. Design defect has three stds. that have been applied to drugs.
1. Straight s/l in Barker: May use the two part Barker test: (1) consumer expectation or (2) causation with CBA of
overall design, will find liability.
46
2.
3.
S/l most of the time in Kearl [840]: S/l for drugs generally, but negl. std. if the drug (1) was expected to confer
exceptionally important benefits, (2) posed a substantial but unavoidable risk, and (3) was considered so valuable that its
availability o/w public interest in enhanced accountability.
Negl. test generally, under Brown (infra): Do a CBA to test drug, and test for foreseeability of harms claimed by P.
K. deLisle Explains Why Drugs are Ana Separately from Other Products: Most products produce a large number of medium to
low level harms, whereas drugs tend to produce a few high level harms. Drugs of course also provide tremendous benefits. People
are unable to subjectively process statistics, so that a few anecdotal cases of a tremendously rare side effect has a disproportionate
effect on people’s opinion of the drug. deLisle thinks that drugs aren’t really different from other sorts of products in kind, just
degree, and thus ought to be ana similarly. The cts., however, disagree.
III. The Duty To Warn
 Used when changes in the design are not practicable b/c would alter their intended used (e.g. drugs).
o Required Where:
 Known/should have been known: Somewhere b/w obvious risk and weird/unintended – some level of
reasonable foreseeability
 Above a certain threshold of danger/possibility
 has duty to retroactively warn once a defect is newly known
o Who needs to warn:
 Sellers; + experts that are in a better position of providing warning to consumers about dangers about the
dangers of the product (doctors, asbestos-using builders, not just manufactureres)
o Requirements:
 Warning must be sufficiently clear and intense to convey the danger to the average consumer.
 Warning may not be buried in other warnings, unless a learned intermediary (doctor) is available to sort the
data.
 Open and obvious is only a defense when a warning would not have changed the π’s behavior (child
with lighter, for ex.).
 When warnings are defective  becomes irrelevant
o Standards/Defenses:
 Something slightly tougher than negligence std so even if didn’t know about the danger, could be held
liable if cts determine that they should have known through reasonable testing and prudence. But still closer
to neg than s/l.
 State of the art defense usually works (Vassallo)
 federal standards/regs (FDA labeling), but this is NOT absolute defense, just a factor (Vasallo)
 What about if the possibility is very small? (mass vaccination) Reasonableness std.
 Cannot warn your way out of every defect. Some improvements might still be necessary.
o Unintended uses:
 Completely weird and outside the realm of foreseeability – no liab. (chain saw to file your nails)
 Foreseeable misuses – could be found liable (speeding w/ sports car)
o Causation:
 Need to prove that if had provided adequate warning, would have prevented the harm/not taken X action.
Defaults into reasonable std.
o Problems:
 too exhaustive a list of potential harms, could dilute warning. You wind up under-deterring.
 RST 420: Comment j
o Warnings may be necessary to prevent a product from being unreasonably dangerous. (Applies to unavoidably
dangerous products. But warnings may not be sufficient – might need better design.)
o If product contains an ingredient to which a substantial number of the population are allergic (peanuts, penicillin),
and the ingredient is either one whose danger is not generally known (silicone) or which the consumer would
47



reasonably not expect to find in the product, the seller is required to give warning against it, if he has/should have
knowledge of the presence of the ingredient and the danger.
o Manufacturers are NOT required to warn about ingredients that are normally safe but become dangerous if there is
excessive consumption (if you drink 10 gallons of water at once could kill you).
Duty To Warn the Patient Directly
o MacDonald v. Ortho Pharmaceutical Corp. (Mass. 1985):
 P injured from a stroke caused by birth control pills. Warning didn’t have word “stroke”. H: physician has
a relatively passive role, must bear explicit warnings directed at the consumer,
 This case is an exception due to the nature of the product and the passivity
 The general rule is that manufacturers need only warn the “learned intermediary” and not
the patient. Can appropriately tailor the warning from patient to patient.
o Harris v. American Home (5th Cir, 1999): took opposite view, holding that drug manufacturers only had duty to
warn the learned intermediary (doctor).
o Perez v. Wyeth Labs (NJ, 1999): imposed drug manuf duty to warn consumers directly in light of Wyeth’s massive
ad campaign directed at women, including in women’s mags.
o Reyes v. Wyeth (5th Cir, 1974): court held that manufacturer of polio vaccine that was dispensed in a mass
vaccination campaign where there was no opportunity for a physician to be involved had a duty to make sure the
warnings about 1 in a million chance of causing polio. But should the court take into account the stats of what
happens if no one gets the vaccine – would be much higher.
Adequacy of Warnings to Patients
o Vassallo v. Baxter Healthcare Corp. (Mass, 1998):
 Ps silicone breast implants ruptured. H: D will not be held liable for failure to warn about risks that were
not reasonably foreseeable at the time of sale or could not have been discovered by way of reasonable
testing prior to marketing the product. A manufacturer will be held to the standard of knowledge of an
expert in their field, and will remain subject to a continuing duty to warn of risks following sale of the
product.
o Vassallo v. Baxter Healthcare Corp.: Hepatitis in blood transfusion. no test at the time  still liable
 tech-forcing and cost-spreading
 no longer the law  now known or should have known
o Seminal Asbestos Case - Borel v. Fiberboard Paper Products Corp. (5th Cir. 1973): Asbestos injured an insulation
worker. H: Manufacturers have a duty to warn all workers of the dangers of that product so they could make
informed choice. Held to expert standard.
o Hood v. Ryobi America Corp. (4th Cir, 1999):
o Man is injured when using a saw after he removed blade guard. H: The manu doesn’t need to warn of
every possible mishap, just a reasonable warning under the circumstances of what should/shouldn’t be
done with the product. π’s weird subjective, not relevant
Open and Obvious/Foreseeable Risks
o Liriano v. Hobart (2d Cir 1999)
 17 yr-old P caught hand in meat grinder from which employer had removed safety guard. No warnings
were given to not remove the safety guard. Rule: If the injured person is fully aware of the hazard
through general knowledge, observation or common sense, or participated in the removal of the safety
device whose purpose is obvious, may obviate failure to warn.
Theory
Warnings in Products S/l: Guido Calabresi & Jon Hirschoff, Toward a Test for Strict Liability in Tort
 Adequacy in Warning in s/l product defect cases is really an analysis of which party is the CCA
o A warning does not necessarily preclude a user from recovery if the manufacturer was in a better position to avoid
costs (know about the risks or discover them) by doing further research or by implementing risk reducing
technology. Warnings are only adequate as a defense where the user was in fact the cheapest cost avoider.
48



Ex. of where warnings are effective to avoid liability: birth control warns of cancer and there are other devices out
on the market that do not pose such a risk. In such a case the user is the best cost avoider because she has a real
choice to use or avoid the product.
Effective warnings are much like assumption of risks.
o Under theory of strict liability, assumption of risk operates as a complete bar to recovery. “It is, and always has
been, a kind of P s/l—the other side of the coin of D’s s/l.” [218] There are limits on assumption of risk and they
track who is the cheapest cost avoider (compare first vs. secondary implied A/R).
 “The first limit was usually put in terms of whether the injury stemmed from the risk whose presence was
the reason for making the activity s/l.” For example a transporter of explosives may be s/l for harm done
by the exploding, but not for the harm done when the barrels of explosives roll off the truck and crush your
foot, absent explosion.
 “The second limit was usually put in terms of whether the victim had done something which, though not
necessary negligent, had especially exposed him to the risk.” For ex. a zoologist may enter a tiger cage to
study large cats, and do so carefully but suffer injuries. He has A/R
In products s/l the cts. prefer to analyze on a case by case basis to determine who is the cheapest cost avoider instead of
just assuming that it tends to be manufactures or it tend to be victims.
In cases of a third party victim, that victim must prove that the party she has decided to sue, either user or manufacturer is in
fact the cheapest cost avoider, in order to prevail.
IV. Proper Defendants



Who are “sellers” under RST 402(a)?
o Includes not just the original manufacturer, but anyone downstream (wholesalers, retailers) – they are held strictly
liable b/c they have no control over the design/manufacture.
o Rationale:
 Bargaining power; deep pocket, choice, cost-spreading, resources, information, joint and several – pro π,
forces technology
o Strict Liability for peopel downstream (b/c their lack of involvement is irrelevant)
Issues:
o But what happens when product is bundled with a service? (Cafazzo)
o What about someone who buys a used product and re-sells as a business? (used goods store)
 Generally, they are not held s/l for defects (other than wear of use).
o What about when altered in some way?
Cafazzo v. Central Medical Health Services (PA, 1995): Patient tries to hold hospital and doctor SL for the defective
prosthesis they implanted. H: Doctors/hospitals are not “sellers” under the meaning of 402(a).
o Rationale: You are paying for a service. Generally, courts hold that when a product is ancillary to service, the
intermediary is not held strictly liable for product defects. (Can always hold acc for neg.)
o Doctors/Pharmacists NOT held strictly liable for injury caused by products.
V. Plaintiff’s Conduct

RST (3) 17: Apportionment of Responsibility Between or Among Plaintiff’s Sellers and Distributors of Defective
Products
o A plaintiff’s recovery of damages for harm caused by a product defect may be reduced if the conduct of the plaintiff
combines with the product defect to cause the harm and plaintiff’s conduct fails to conform to generally applicable
rules establishing appropriate standards of care.
o The manner and extent of the reduction under (a) and the apportionment of plaintiff’s recovery among multiple
defendants are governed by generally applicable rules concerning responsibility.
 So generally, plaintiff’s conduct is governed by comparative fault principles (either pure comp neg or
partial comp neg).
49
o



Comment d: Latent Defects
 When D claims that P failed to discover a defect, there must be evidence that P’s conduct in failing to
discover the defect failed to meet reasonable standard of care.
o Comment a: Contracting Against Liability
 Courts rarely allow a disclaimer or limitation for liability to bar a valid products liability claim. In large
part this is due to adhesive and unilateral nature of such disclaimers.
Foreseeable Misuse
o LeBouf v. Goodyear Tire and Rubber Co. (5th Cir. 1980):
 Overpowered car equipped with normal speed tires. Buried in owner’s manual was a warning to use highspeed tires for high speed driving. Drunk defendant was killed when tires separated at 100-105mph. H: Δ
liable when reasonably foreseen P’s misuse, and did not take steps to provide adequate warning.
Rationale: Contrib. negl. and assumption of risk defense is rejected here. Ford marketed the car to be
driven in excess of 85mph.
 Can you contract out of liabilities? Generally assumed that consumers are not informed unless K remedy is
adequate
Comparative Fault Still in Effect in S/l Product Cases
 Daly v. General Motors Corp. (Cal 1978): Drunk π thrown from wreck due to prob with door. H: S/l in
auto manufacturing defects does not preclude using C/A (in fact, more beneficial to P b/c under S/L, A/R
completely bars recovery).
C/A and PL can coexisit + fair to manu + capable of allocating degree of fault
 Dissent: (1) Econ -- under-deterrence (2) CJ -- defective products hurt good and bad users alike, they don’t
discriminate, and neither should the ct.
1) But the counter-argument to dissent is that this doesn’t really decrease incentive b/c can’t count on
the fact that plaintiff will be negligent.
o
deLisle Notes: Most jurisdictions do introduce C/A of π to reduce recovery.. A/R still stands in products
liability (“Flopper”), but it tends to be construed very narrowly (Messick).
A/R not Present in Use of Defective Product if Use is Not Both Voluntary and Unreasonable
o Messick v. General Motors (5th Cir. 1972): P continued to drive car he knew to be faulty, and soon crashed due to
those faults. H: π may recover even when he is aware of product defects as long as his use of the product is not both
voluntary and unreasonable. Rationale: P had to use car to get to work.
Damages___________________________________________________________
Purpose
 Make the victim whole – or as whole as you can (CJ) + Deterrence– don’t under-deter negligence (economic)
 Pecuniary/Economic Damages
 Lost wages/income
 Try to use some kind of matrix of characteristics/history/market, etc to assign an average wage
that is based on life expectancy/number of years
 Housewife situation – tend to award money to cover some of the homemakers duties (car to take
kids to school, housekeeping services)
 May be asked to submit to some safe, reasonable med procedure that would mitigate
 Lost property/value
 Out of pocket costs (medical, care)
o Most courts allow pre-judgment interest
o Taxes? Juries are not bound to take into acct (unpredictabile, uneven), but some cts allow evidence of tax history
 Non-pecuniary/Pain & Suffering Damages
o If you can prove it, p&s can be awarded for time b/w know of death and when you die.
o If order to get damages for p&s or loss of enjoyment of life, must be able to show that you are cognizant (can’t be in
a totally vegetative state).
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
o There are often some limits on excessive damages (statutory caps, const limits, dem, review)
Punitive
o Punishment for reckless or willful/wanton (Kemezy) + Econ and CJ arguments
Lost Earnings

Inflation and Discount Rates Factored into Lost-Earnings Damages
o O’Shea v. Riverway Towing Co. (7th Cir.): pp. 783
 P slipped and hurt her leg and is unable to perform her job as ship’s cook. H (Posner): When examining
lost earnings, P’s damages should be calculated with regard to inflation, and discount rates, and other
factors such as mortality, P’s tax bracket, P’s probability of gainful employment until a given age, and P’s
ability to mitigate damages by taking on alternate, though equivalent employment (Remember Shirley
McLaine). PV ($1) = $1 / (1+i)˄n
o Wrinkles on this….
 How close do your maximum potential are you likely to hit? Tend to go w/ the average and when is
somewhat speculative (like with O’Shea) then tend to give P the benefit of the doubt by giving them
average (of course, this could mean that you are under or over-compensated)
 Alternative Medical Treatments: You can turn down some alternative medical treatments but can’t turn
down everything that would be reasonable if it is safe, relatively easy, etc. But if is dangerous, then would
not be forced to do it. If there are only religious objections, most courts will still say you have to do it to be
compensated.
Pain & Suffering

Non-Pecuniary Damages Require Awareness of Suffering
o McDougald v. Garber (N.Y. 1989): During surgery patient suffered brain damage. H: Some degree of cognitive
awareness is a prerequisite for the loss of the enjoyment of life, and damages should be treated as part of the P’s
recovery of damages for pain and suffering. But Pain and suffering is generally OK.
 Excessive Damages
o Duncan v. Kansas City Southern Railway (La 2000)
 Eleven year-old and her sisters are hit by a train and she becomes paraplegic. Jury awards her $17 million
for medical expenses and $8 million for P&S, loss of enjoyment of life, etc. H: Court finds that although
damage is extreme, the highest amt that could reasonably be awarded for P&S in this situation is $6
million. Reduce future medical expenses to $10 million based on shortened life expectancy of girl.
 Rule: Future medical expenses must be established with some degree of certainty.
Ways to Calculate Pain and Suffering: worry, anguish, grief
 Per Diem: small periods of time, seconds and minutes and determine in $ and cents what each period is worth. (Belli).

Scheduled Damages: Standards for certain harms and pains based on category.
o
E.g. Matrix of injuries/age; examples of past awards as guide; floors/ceilings
o
Adv: (1) decrease litigation; (2) more consistency.
o
Disad: (1) Sched not adj. upwards with inflation often enough; (2) the damages cap tends to decrease
awards w/o any concomitant advantage, such as exists in the insurance industry (there, at least you will get
paid, thus certainty offsets); (3) sovereignty violation when all people’s harms are treated like interchangeable
actuaries; (4) Utility Monster: $ paid to harmed P must be more than $ paid to well P, b/c injured P is unable
to do the things she really enjoys and must do twice as much of the things she somewhat enjoys to be even.
Solutions to the Problem of Excessive Damages:
(1) App. review
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(2) Additur and Remittitur: in some states app. cts. are able to modify the damage award (additur increases award, while
remittitur decreases – judge offers P/D option of avoiding new trial if accepts less/more damages).
(3) Structured Settlements: Where uncertainty exists settlement may be paid out over time acc. to P’s actual P&S, econ
loss. Avoids uncertainty of trying to adjust for inflation, etc. Risks: Injured party prolongs treatment in order to keep
receiving payments,
(4) Capping Damages – controversial and varies widely state to state.

Mitigation:
 P has a limited duty to mitigate. P cannot recover for any harm which, by exercise of reasonable care, she could
have avoided. P cannot recover for any harm which would have been avoided had P sought adequate medical care.
Must take transfusions to save your life even if they are contraindicated by your religion, or forego your tort claim.
In some states, P’s recovery will be decreased by the amount of damage caused by not wearing a seat belt.
Limitations on P’s Duty to Mitigate Damages
o McGinley v. United States: P injured and refused to submit to a third surgery. H: If injuries that may be cured by a
simple and safe operation, then refusal should be considered in mitigation of damages. But no duty to mitigate
where the operation is a serious one, or one with serious risks of death or failure. A P has a duty to submit to
reasonable medical treatment.
Punitive Damages:
 Damages are awarded to penalize a D whose conduct is particularly outrageous. In negl. cases, punitive are given when D’s
behavior is reckless or willful and wanton.
 In product liability, punitive are given if D knew its product was defective or recklessly disregarded the risk of a defect (ex.
Pinto case).
 Purpose of Punitive Damages
o Kemezy v. Peters (7th Cir, 1996): P sued policeman for beating him. Policeman is only appealing the part of the
judgment against him w/ regard to punitive damages, arguing that it was P’s burden to introduce evidence about D’s
net worth for purposes of measuring damages. H: P does not have burden of introducing any evidence about D’s net
worth (in fact, most D’s would not want this).
o J. Posner lays out the reasons for awarding punitive damages:
1) compensatory damages do not always fully compensate (CJ)
2) ensure the tortious activity is not under-deterred (econ/social & moral just)
3) necessary in some cases to ensure that people channel transactions through the market when the
costs of voluntary transactions are low (CJ)
o i.e. move away from the notion that you can “buy” your right to engage in tortious
behavior
4) when tortious act is concealable, a judgment equal to the harm under-deters (econ)
5) expresses community’s abhorrence of the act (CJ/moral)
6) relieves the pressure on the criminal justice system (eff/econ) – “private AG”
7) heads off breaches of the peace for those who can’t successfully seek remedies in criminal court –
avoid vigilante justice

The Factors to be Considered in Applying Punitive Damages
o Pacific Mutual Life Insurance Co. v. Haslip (U.S. 1991): Insurance agent embezzled P’s premium payments so that
P’s were stuck with their medical bills. Court allowed punitive damages with the finding of fraud. H: Punitive
damages do not violate due process clause as long at they are applied within in boundaries.
 Factors to Consider for Whether to Apply Punitive Damages:
(1) culpability of D conduct (how bad was what he did);
(2) desirability of discouraging others from similar conduct:
(3) impact upon the parties;
(4) the impact on innocent third parties.
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(5) profitability of the wrongful conduct and public interest in removing that motivation and supplanting a
loss for D instead;
(6) **D’s wealth; (there is a lot of debate around this, but generally allows to submit to jury)
(7) costs of litigation for P (atty’s fees);
(8) crim sanctions on D will be taken as mitigation of damages;
(9) other civil awards against D will also be considered mitigating factors.

Judicial Review of Punitive Damages – “Constitutionalization” of Punitive Damages
o State Farm Mutual Auto Insurance v. Campbell (SCOTUS, 2003): Campbell gets into car accident w/ Ospital
(killed) and Slusher (disabled). All early investigations indicate that he crash was Campbells fault, but insurance
company refuses to settle, assures Campbell that it will represent them,, and that there assets were safe. Campbells
lose and jury awards Ps much more than offered settlement amt. State Farm indicates will not pay the excess of the
claim limit. Campbells appeal and also enter into a settlement with Slusher and Ospitals where they agree to all go
after State Farm. Campbell loses on appeal (1st case) and SF agrees to pay the entire amt, including excess over
limit. But Campbells/Ospitals/Slusher maintain action against SF and Utah court awards $1 million to Campbells in
compensatory damages and $145 million in punitive damages. State Farm is appealing on grounds that the award is
grossly excessive and therefore a violation of due process.
o H (Kennedy): The award was so grossly excessive – not in proportion to either the reprehensiveness of the action
nor the actual harm caused to the Campbells – as to be unconstitutional.
o Rationale: In reviewing punitive damages, court should consider:
 The degree of reprehensibility of D’s misconduct;
 The disparity b/w the actual or potential harm suffered and the punitive damages awarded; and
 The difference b/w the punitive damages awarded and civil penalties imposed or authorized in
comparable cases.
o

Court notes that (1) the conduct was bad but not $145 million bad and that it was clear the Utah court was punishing
SF for what it perceived to be nationwide misconduct, which was inappropriate; (2) Huge disparity – 1:145 ration –
seems grossly out of proportion; and (3) there is enormous difference b/w award here and other awards in
comparable cases.
Issues around Punitive Damages:
o What is the scope of behavior you are punishing? Harm just to this person? Trying to punish for total bad behavior?
Preventing this behavior generally? If scope is broad, how does this interact with other’s ability to bring suits on
their own behalf?
Collateral Benefits

What do you do when someone else (insurance company, e.g.) is already paying for injury? Want to make sure to adequately
deter he behavior.
o Subrogation (allow them to go after defendant after P is compensated)
o They fill in gaps where defendant is unable to compensate

Double Dipping Allowed – D cannot offset damages with insurance paid to P
o Harding v. Town of Townshend (Vt. 1871): P injured by poorly maintained highway, but was compensated by his
insurance. H: A tortfeasor shall not be alleviated of her responsibilities to pay damages to P even if P has been
compensated for harm suffered from tortfeasor by insurance co. or similar agency.
 Note: This is the majority rule. However two elements often offset (1) the intent written into an insurance
K will often let the insurance kick in only as a backstop measure, should D be unreachable or insolvent.
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Insurance costs less due to this written in clause; (2) Subrogation: An insurance co. will often pay P and
then sue D itself and try to collects as much as possible.
Structure of Fees

Contingency Fees: Attorney agrees to receive compensation for services rendered only out of the funds that the P receives
from D. If action is lost attorney receives nothing. (Generally only applies to plaintiff’s lawyers, but some companies are
experimenting with this when they are defendants.)
o Adv: (CJ) Allows indigent P to recover; (2) to a degree it solves the attorney/client agency prob. b/c ea. are now
joined at the hip (however, the problem is not entirely erased b/c attorney still has incentive to get out early for less,
b/c resource expenditure is not borne by client); (3) attorney only likely to bring good, winnable cases; (4) attorney
likely to minimize time spent on case, thus creating net social util gains.
o Disad: (1) Over-litigation, decreases efficiency; (2) not compensate attorney for actual work done; (3) risk attorney
windfall; (4) problems with compensating attorney where only inj relief is appropriate; (5) tends to breed nuisance
suits (suits raised not on the merits but simply bothersome things that co. are likely to pay off just to get rid of); (6) P
not made whole when portion goes to attorney, and (7) likely that atty’s will bring “easy” cases with huge windfalls,
and may not bring good cases for which there aren’t high fees for them to recover.

Fee Shifting: In ordinary tort litigation under the “American rule” attorney’s fees are rarely awarded absent a showing that
the other side advanced a claim/defense that was frivolous or malicious. (Very hard to prove.)
o Under Am. system, the P will bring suit if his expected judgment would be at least as large as his legal costs. The
frequency of suit will be greater under the British system when the P believes the likelihood of prevailing is
sufficiently high—above a “critical” level—and the frequency will be greater under the American system when the
likelihood is below the critical level.
o Adv: Efficiency – assumes that plaintiff and defendant will both act rationally w/ regard to their expected
payout/chance of winning. Also encourages settling, b/c larger “pie” to split and less uncertainty. But
o Disadv: (1) Litigation is expensive and if can’t recover costs, many will be precluded from bringing suits. (2)
Disparate effects on risk-adverse versus non-risk-adverse parties. (3) Inability to accurately predict the outcome. (4)
Many important cases are those that previously would have lost but judge decides to change the law (e.g. Escola)
and if there is no potential for getting recovery from other side, then is a huge risk that is unlikely to be taken unless
by crusading lawyers.

Selling Tort Claims: “The present system of tort law allows only the tort victim to press a tort claim.” Critique: (1)
sophisticated players would be able to buy and sell claims on the cheap; (2) (CJ) takes the A hit B element out of it; (3)
practical prob. that the P will have less motivation to cooperate in litigation with sincerity.
Wrongful Death Claims
 Survivor Statues - Modern approach is that the tort claims survives the victim – someone else could bring the claim on
their behalf as though they were still alive
 Ex: P&S experienced b/f plaintiff died
 True Wrongful Death Statute/Loss to Survivor Std of Wrongful Death – compensating the relational interest of the
person’s survivor (spouse, dependants)
 Loss of Consortium Action - Plaintiff hasn’t died but are compensating the relational interest (spouse of someone
permanently disabled). Some courts have extended this right – parent’s relational interest, sig other, etc.
Vicarious Liability___________________________________________________
Respondeat Superior:
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




May go after servant and Master for servant’s negligence
Master may go after servant himself after.
Old approach – did the activity benefit the employer?
Modern approach - Looks at whether or not the conduct (negligence) was foreseeable.
Independent contractors are generally NOT subject to respondeat superior, but can create liability if:
o Appear to not be ind contractors and P reasonably relies on that
o Are not really independent contractors
Advantages to Vicarious Liability: (1) deep pocket (not trad tort justification); (2) master controls and can influence servants
behavior, thus making master the cheapest cost avoider [incentives to screen people and set employment stds]; (3) (CJ) master
benefits, thus is responsible; (4) best loss spreader; (5) master hit P through her servant, thus instrumentality analogy [employer put
this person in some position of power so should be responsible].
 Employer is Vicariously Liable
o Ira Bushey & Sons, Inc. v. United States (2d Cir. 1968): Drunk sailor opened dry-dock valves causing damage to
dry-dock. H: An employer is vicariously liable for the reasonable foreseeable conduct of its employees
performed within the scope of employment, even when such conduct was not motivated by a purpose of
serving the employer.
 Intentional Torts May allow for Vicarious Liability: For ex. bouncers, or other agents in working in conditions with
elements of foreseeability. These cases tend to be close calls.
 Frolic and Detour. Employer not liable for employee doing private tasks during work hours that are outside the scope of
their employment.
Imputed Contrib. Negl.
 Passenger not Liable for Driver’s Negligence
o Mills v. Armstrong (Eng. 1888): Contrib. Negl. was imputed to ship’s passengers due to the fact that the ship’s
captain was partially responsible for a ship to ship collision. H: The negl. of a driver of a bus, navigator of a ship,
etc., will not be imputed to his passenger in the usual matter of an accident by virtue of the driver-passenger
relationship alone.
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