I. INTENTIONAL TORTS
A. BATTERY

the intentional infliction of a harmful or offensive contact with the person of the Π
o
intentional: intent to cause some act, although the harm need not be the type or intended specifically to
the Π

Can have transferred intent where you intended to injure someone else (Talmage)

Can have intent even though you intended lesser degree of harm (Vosburg) (White)

Children are charged with intent if they are capable of knowledge of the consequences of their act
with substantial circumstances. (Garrett)

RST 3rd § 8(a) Intent (not adopted by all courts yet):

Harm is intentional if brought purposely or knowingly:
o
Purposely: Δ acts with desire to bring about harm
o
Knowingly: Δ knows harm is substantially certain to occur


o
Generalized knowledge is not always enough. (Shaw)
White found intent even though it failed both of these categories.
infliction: requires an act, thus an involuntary twitch would not be considered infliction. Harm must be
caused by intentional action (causation).
o
harmful/offensive: generally an objective test: would the ordinary person find this to be
harmful/offensive? UNLESS you have prior knowledge otherwise

Harmful is the infliction of pain, injury, disfigurement, or impairment to the body or its function.

Offensive is that which would affront the sensibilities, or personal dignity, of a reasonable
person; need not actually cause physical injury.
o
contact: does not require person-to-person physical contact, but must be unconsented (ie throwing a
book)
Vosburg v. Putney (Wis. 1891) (p.4)-Intent to produce the tiniest amount of harm results in liability for all harms
caused.
o
Facts: Both school children, Δ kicks/taps Π below knee in class. Π had prior injury which had basically healed.
Now needs 2 surgeries, leg will never be same.
o
Held: Δ is liable for injury to Π where he intends to commit an unlawful act (typically assault or battery),
though he may not intend for the specific harm that results.
o
Note: generally the ultra-sensitive victim is not protected unless a normal person would have suffered
some harm anyway.
Garret v. Dailey (Wash. 1955) (p. 7)-Substantial certainty of outcome is sufficient for intent.
o
Facts: Five year old pulls chair out from under arthritic Π.
o
Held: If kid knew with substantial certainty that pulling chair would cause lady to fall, even if he didn’t mean to
hurt her, he is still liable.
o
Note: this is now codified in RST 3rd § 1 Intent:
White v. University of Idaho (Idaho 1990) (p.8)
o
Facts: Δ shows Π how to play piano by tapping on her back. Π has strange reaction, and needs to get ribbed
removed as a result.
o
Held: Still qualifies as intent, even though did not qualify under RST.
Talmage v. Smith (Mich 1984) (p.9)-intent can be transferred.
o
Even though Δ meant to throw stick at different trespasser and ended up hitting Π in the eye, intent is transferred
Π and he is still liable.
Shaw v. Brown & Williamson Tobacco Corp (Dist. MD 1997) (p.9)
o
Second hand smoke does not qualify as intent.
B. DEFENSES TO INT TORTS
1) CONSENT
Volenti non fit injuria. A person cannot be harmed by that to which she consents. Consent is a bar to battery claims. D
carries burden to prove in ct. Must be (1) given freely, or (2) implied reasonably.
4 Manifestations:
o
Actual Consent is full formed, volitional, with pertinent facts available for the P to consider.
o
o
Implied Consent is what a reasonable person would infer from the non-verbal actions of another.
o
o
Duress or fraud might be a counter argument used by Π.
Use an objective standard (ie rolling your sleeve to get a shot in O’Brien)
Constructive Consent is the consent an ordinary, reasonable person would give in these circumstances.
o
ie. emergency consent
o
Substituted Judgment is consent derived from a third party’s estimation of what this particular person would
have wanted in this particular condition.
o
Requires a precommiting, ie DNR order.
Ways to defeat Consent:
o Argue battery was not within scope of consent (Mohr)
o Games and sporting events
o Argue consent was a mistake.
o Mistake of fact: Π submits to eating candy, not knowing it’s poisoned.
o Mistake of law: Π submits to arrest warrant thinking it’s valid, when it’s not.
o Argue consent was given in duress.
o Argue can’t consent to unlawful acts.
o Minority of states you can consent to illegal acts.
o (Hudson): even though Π consented to boxing, consent was not a valid defense since it was an
illegal activity. Thus, Δ promoter was still held liable for battery.
Mohr v. Williams (Minn. 1905) (p.20)
o
Facts: D in hospital performing scheduled surgery on Ps right ear. Decides after P anestisized left ear is
in worse shape. Operates successfully on left ear. P sues for damages due to assault and battery.
o
Held: there was no actual consent, and no emergency, touching was unauthorized
2) INSANITY
o
For insane person to be liable, she must have cognized that she was in fact harming another human
being, and not say an object.
o Ie: deLisle’s bulked-out neighbor, who believes he is Antonio Salieri will not be liable for beating
deLisle if Salieri thinks deLisle is a musical instrument.
o
(Mcguire): Insane woman threatens to kill anyone who comes into her room, Π enters and gets whacked
w/ furniture.
Held: Where an insane person intends to harm another’s person or property, they are liable the
same as a sane person.
o Reasons for this approach:
 Make caretakers more watchful, prevents harm to innocent victim, too difficult to
determine who is insane.
o
3) SELF-DEFENSE
o Requires a reasonable perception of harm, the possession of an actual belief of forthcoming injury,
and proportionality of force with apparent danger.
o Non-Deadly Force: can be used when actor reasonably believes they are in danger of immediate harm.
Force must be reasonable and can not go beyond the necessities of the situation.
o
Deadly Force: can be used when actor reasonably believes that another’s conduct will cause them death
or serious bodily injury.
o
Majority: No duty to retreat.
o
Minority: Duty to retreat before using deadly force (RST view).
o Retaliate: Can’t use self-defense to retaliate, since harm has passed.
o Courvoisier v. Raymond: Δ was awaken by robbers and rioters and fires shot into the air. Deputy
hears shots and comes to help, but Δ mistakes him as rioter and shoots him.
Held: Where a reasonable person would view Π as endangering his life, and he uses self defense
, he is justified.
o No duty to retreat when in your own home.
o No privilege of self defense when danger has passed or when excessive force is used.
o
4) DEFENSE OF OTHERS
o Same limitations of self defense
o Can extend to anyone who is endangered
o Traditional view: actor can only use self defense if 3rd party could have.
o Modern view: RST 2nd allow for a reasonable mistake in the exercise of the actor.
5) DEFENSE OF PROPERTY
o Defense against trespassing chattels
o Can use reasonable force to remove trespassing chattels
o Must also consider loss of value of actor’s property compared to value of chattel.
o Defense against trespassers
o Can use only that force reasonably necessary to defend your property. Deadly force can only be
used when invasion threatens death or serious bodily harm.
o Bird v. Holbrook: Δ sets spring gun in his garden. Π Bird was chasing his bird, and got shot.
 Held: Δ is liable since he intended to use gun only to injure trespassers, not to deter them.




RST 2nd 85: Liability is evaluated acc. to the force that would have been justified had a
person been present and shot the intruder, in that particular instance
Reasonable mistake defense is ineffective here b/c fails previous test
Eng. statute provided exception for spring guns positioned in areas around the house
during hours of sundown.
Posner: spring guns are an efficient way to protect property, if there is notice.
6) NECESSITY

Public Necessity: can enter land or interfere w/ chattels of another if it is reasonably necessary or if it
reasonably appears necessary to avoid a public disaster.
o Common cases are preventing destruction of city by fire(Mayor of NY v. Lord) and destruction
of property to prevent it from falling into enemy hands during war.
o To hold otherwise would result in asymmetry of incentives for public officials. (Limited benefit
and unlimited loss)
o Need an immediate and imperative necessity, not just utilitarian
o Needs to be an act in good faith for public good.
o Δ is not liable for any damage to land or chattels under this defense.

Private Necessity: If there is no public interest and Δ acts to protect his interests, he is not liable and
landowner has no right to expel. Interests of invader must be greater than interests invaded.
o Scope of privilege
 Ploof v. Putnam: P ties up to Δ’s dock during storm, Δ cuts lines and boat gets damaged.


Held: Δ is liable for damage to boat(since he couldn’t eject). There is right to
enter and use chattels of another if there is a private emergency.
Mouse’s Case: Under the law of general average contribution allowed for passenger to
throw casket off ship in storm to prevent sinking, this is OK as long as all passengers split
cost of casket.
o Liability of damages
 Vincent v. Lake Erie Transportation: Δ ties up at Π’s dock with his permission. Strom
causes damage to dock.


Held: where Δ is forced to use the property of another through necessity, he is
liable for all damage to property.
Can contract to allow for docking in this case, but fee charged would have to be
reasonable.
C. ASSAULT

An act, other than the mere speaking of words, that directly places Π in fear or apprehension of
immediate harmful/offensive contact without consent or privilege.

Requires:
o An ACT by the Δ
 Usually requires an external movement, words insufficient

I. de S. and Wife v. W de. S: Δ swinging at Π with hatchet is assault, since it created
fear of unlawful touching.

Conditional Threat: Illegal demands that create illusory choices are still assaults. A
threat of “your money or your life,” is assaultive because no real option exists and more
importantly.
o INTENT of Δ to cause harm or at least fear thereof
 Tuberville v. Savage: Π put hand on sword and said if the judges weren’t in town, I
would not take this from you, and Δ responded in self-defense.
 Held: self-defense is not reasonable since his words negated intent of assault.
o FEAR or APPREHENSION by Π
 Use an objective reasonable person test here


Even if Π had no apprehension, as long as reasonable person would have it is still assault
(ie Delisle threatens to kill blackbeltstill assault)
Brandishing an unloaded gun would still be assault because it creates fear, even though it

could not result in harm (Allen v. Hannaford)
Making threats by phone to “find you and kick your ass” does not qualify as assault
because threat of harm is not immediate (Brower v. Ackerly).
o CAUSATION
o DAMAGES: same as battery.

Consent and privilege are defenses.
II. UNINTENTIONAL TORTS
A. NEGLIGENCE

Brown v. Kendall (Mass. 1850)
o
Δ accidentally swatted Π in the eye w/ a stick while trying to separate the parties’ fighting dogs.
o
Held: A Δ engaged in lawful act who injures Π unintentionaly, Π may only recover if the Δ fails
to exercise ordinary care.
 Court uses an objective standard of ordinary care
 Burden of proof is on Π
B. STRICT LIABILITY

Abnormally dangerous activities follow strict liability.

RST 2nd 520: Ultrahazardous activites are those abnormal to the area, which necessarily involve a risk
to persons, land, or chattels which can not be eliminated by the utmost use of care.
EARLY CASES

Fletcher v. Rylands (Eng. 1865)
o Δ builds reservoir which bursts and floods underground shafts leading to Π’s coal mine. Π did
not know about shafts, although his agents may have.
o Held: A landowner who introduces an unnatural, artificial device onto his property which then
escapes from his property, is responsible for all damages that occur to others land/chattels as a
consequence.
o Courts are split on whether this also applies to personal injury.
o If there is an act of God (ie storm) that causes “escape”, then there is no SL according to Nichols
v. Marsland.

Brown v. Collins (NH 1873)
o Δ’s horse becomes frightened and runs onto Π’s land and damages a post. Π sues under strict
liability.
o Held: Court refused to apply SL to escaping horse. Says that basically everything you do with
you land unnatural, and thus you would be liable for anything that escaped.

Powell v. Fall (1880)
o Δ operates a steam engine according to statutes, but a spark burns Π’s hay rick.
o Held: The existence of a statute can not prevent Δ from strict liability.
 There was no attempt of statute to exempt Δ from SL.
 Reasonable that when Δ uses dangerous machine he should have to pay for damage.
 If profit of using machine does not exceed costs of damages, then it should not be used.
MODERN TIMES

Bolton v. Stone (Eng. 1950)
o Π was struck by a cricket ball hit over a high fence from a neighboring cricket field. Δ argues
that in past 30 yrs, only dozen balls had been hit over the fence, thus it was not a reasonably
foreseeable risk.
o Held: For Δ. The proper test is not merely foreseeability, but instead the substantiality of the
risk caused by Π to Δ.

Rinaldo v. McGovern (NY 1991)
o Presence of a risk by itself does not import tort liability. You would have to show that the golfer
failed to exercise due care by proving that he aimed so inaccurately as to increase the risk of
harm.
C. UTILITY V. CORRECTIVE JUSTICE
Holmes, The Common Law (p.121)

Liabilities incurred by Ks are more or less fixed by agreement of the parties, but tort liabilities are
independent of any previous consent of the wrong doer to bear the damages of the act.


The only liability which in some senses is predictable is strict liability.
2 theories of common-law liability for unintentional harm:
o Austin’s theory of a criminalist: only based on personal fault, negligence. (Used by courts)
o Man acts at his peril: If the act was voluntary, D is liable for all consequences regardless of
intention.

Above Two Theories Fail; Instead Holmes Suggests: is to look at the consequences that a reasonable
man would have contemplated.

We Should Not be Insurers to One Another
Negligence is a System of Efficiency. Richard Posner, A Theory of Negligence, in Perspectives on Tort Law
322 (Robert Rabin ed., 4th ed. 1995).

Old explanations about what negl. seeks to accomplish fail: (1) negl. std. was not dev. to “subsidize
the infant industries” of the industrial rev; (2) the system does not primarily seek to compensate victims;
(3) negl. is not and does not attempt to be a moralistic system, “The morality of the fault system is very
different from that of everyday life.” [17]

The real function of the negl. system is to “generate rules of liability that if followed will bring about,
at least approximately, the efficient—the cost justified—level of accidents and safety.” [19]
Theory of General Deterrence. Guido Calabresi, The Costs of Accidents, in Perspectives on Tort Law 187
(Robert Rabin ed., 4th ed. 1995).

Three Myths (stated correctly—i.e. the following are true, not myths): (1) we are not committed to
preserving life at any cost; (2) Ec. theory fails in helping us answer the question how far do we want to
go in preserving human life; (3) “risk distribution” may mean many things (spreading losses over
people/over time, deep pockets, or placing losses on the activities that engender them) and these
different interpretations are inconsistent w/ ea. other.

We seek to reduce accidents in three aspects: (1) we want to reduce the number and severity of
accidents; (2) we want to reduce the societal impact of individual accidents; (3) we want to minimize
costs in administration of accident management.

General Deterrence: The free market solution is best. “[N]o one knows what is best for individuals
better than they themselves do.” Accident costs ought to be included in the prices of products and
services in order to let the market sort out the importance of engaging in various activities. Adv: (1)
creates incentives for user to engage in safer activities; (2) encourages the activity, or the product to
become safer.
Reciprocity. George Fletcher, Fairness and Utility in Tort Theory, in Perspectives on Tort Law 256 (Robert
Rabin ed., 4th ed. 1995).

Defined. Risks that most people impose upon one another offset each other thus are reciprocal and no
liability holds for them.


Paradigm of reciprocity is most pervasively relied upon in cases of s/l. Ex. Vincent and Rylands.
Non-reciprocal risks are sometimes excused when (1) there is compulsion, or (2) unavoidable
ignorance. Excuses are allowed b/c (1) excusing does not “undercut the victim’s right to recover,” [264]
and (2) they are, “available in all cases in which the right to recovery springs from being subjected to a
non-reciprocal risk of harm.”

J and Excuses: A new paradigm emerged in modern tort theory that distinguished between two
exculpatory forces, the justification which examines the act and says, “that in the future, conduct under
similar circumstances will not be regarded as wrongful or illegal” and the excuse which examines the
actor only but, “leaves intact the imperative not to engage in the excused act. [267] Ex: acquittal by
reason of insanity is an excuse and does not change the norm prohibiting murder, while self defense is a
justification that the actor has a right to engage in.

Paradigm of Reasonableness. The modern emphasis on maximizing efficiency had the effect of
shifting fault “orientation from excusing to justifying risks.” [268] The consequences: “(1) fault became
a judgment about the risk, rather than about the responsibility of the individual who created the risk; (2)
fault was no longer a question of fairness to the individual, but an inquiry about the relative costs and
benefits of particular risks; (3) fault became a condition for recognizing the right of the victim to
recover.” [268] This ana is the foundation, “for the paradigm of reasonableness, a way of thinking that
was to become a powerful ideological force in tort thinking of the late nineteenth and twentieth
centuries.” [268] Thus the paradigm of reasonableness is the paradigm of efficiency.

Paradigm of Reciprocity in Tension with Efficiency: Sometimes the paradigms overlap and yield
identical results. However, when they do not the court must decide, “whether to focus on the parties and
their relationship [reciprocity] or on the society and its needs [efficiency/reasonableness].” Ex: Court
sides with reciprocity in Boomer by imposing costs on the agents regardless of overall social utility.
A hit B. Richard Epstein, A Theory of Strict Liability, in Perspectives on Tort Law 275 (Robert Rabin ed., 4th
ed. 1995).

Goal “The task is to develop a normative theory of torts that takes into account common sense notions
of individual responsibility.” [275]

Paradigm: “The combination of force and volition is expressed in the simple transitive sentence, A hit
B.” Thus for assault: A frightened [made apprehensive] B. For compulsion: A compelled B to hit C.
Dangerous conditions are (1) inherently dangerous cond., (2) placing a thing in a dangerous cond. (3)
and dangerous things because they are defective.
Mixed CJ. Coleman, Risks and Wrongs, in Torts Supplementary Materials 11 (Jacques deLisle ed., 1998)

CJ Explained: “Wrongs are invasions of rights. In the relational view, CJ requires that wrongs be
annulled by imposing a duty to repair them on the right- invader.” [p. 19] It is possible to
distinguish between the wrongs one does and the consequences occasioned by the wrongs. <This is
a fine parsing of the word “wrong” to mean just the act and not, as we would normally think of it,
the consequences flowing from the act.> There will be occasions when small negl. will generate
large losses to another, like in the foolish but hardly malicious driving by a teenager. Under
“relational CJ” (or just “CJ” as deLisle tends to use the term) the tortfeasor would be responsible for
only a small portion of the loss, if at all (the author suggests an apology may be sufficient). The
solution is “mixed CJ.”

Mixed CJ: “[T]he duty of wrongdoers in corrective ju is to repair the wrongful losses for which
they are responsible.” [p.24]
CJ and Efficiency as Applied to S/L and Negl. Jacques deLisle. The notion that CJ supports s/l while
efficiency supports negl is incorrect. As long as we are only concerned with activity level adjustments then CJ
and efficiency give you identical motivations to reduce risk under s/l or negl. regime. The only point at which
the two diverge is where B far exceeds PL and nonetheless we still find harm accrued to be unacceptable (ex.
some products liability, nuclear reactors. See infra, XXVI C, for details.) Note: As far as efficiency theory
goes, this comparison assumes a frictionless world. With transaction costs, poor or expensive knowledge,
stubborn negotiators, imperfect courts, risk takers or risk adverse agents, the indifference between s/l or negl.
may vanish. Real World Concerns: Calabresi argues for ex. 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.
VII. Revisiting Basic Principles. Further Discussion of Negl.
A. No S/l in Careful Driving. Hammontree v. Jenner (Cal. Ct. App. 1971): D, w/ legal license,
accidentally drove through P’s bicycle shop during an epileptic seizure. H: Not s/l but negl. at worse when D
comporting with law and causes damage to another’s person and prop. No negl. b/c seizure not foreseeable.
Rationale: S/l for consumer products does not apply to auto accidents.
III. Negligence: Breach of Duty
A. Reasonable Person
Objective Standard of Care: In general, standard of care is that which an average reasonable person would
follow under the same or similar circumstances.

Stupidity won’t lower it
o Vaughan v. Menlove (Eng. 1837): D was warned of the flammability of his hay rick near
another’s prop. Despite making an aperture the rick spontaneously ignited destroying P’s prop.
H: D will be held liable for the harm she causes acc to a rule that requires the D’s threshold of
safety be equal to or greater than that of a prudent man in the same circumstance (i.e. an obj.
std.). Note: unforeseeability would excuse.

Age/infirmity won’t lower it
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: D shall be held liable for personal injuries to P if resulting from
a failure to meet a std of care as exercised by ordinary, prudent, normal men regardless of the
handicap that age or infirmity had wrought, and if P is but a youth, he shall be held to a std of
contributory negligence appropriate to average children of his own age. Note: No contributory
negl. b/c the child was engaged in the harmless activities of children.



Voluntary Intoxication of Π won’t lower standard for Δ: drunken man is entitled to safe sidewalk.
Wealth of Δ won’t lower it.
Criticism is that juries often come back w/ varying “objective” standards.
Subjective Variations:

Infancy/children will usually be held to standard based on age, intelligence, and experience. UNLESS
engaging in adult activities.
o Minors’ Duty in Adult Activity is That of an Adult’s. Daniels v Evans (N.H. 1966): Motorcycle
(minor) crashed into car and rider was killed. H: Minors engaged in adult activity potentially
harmful to others are to be evaluated by an adult obj. std. of duty.

Insanity may lower it, but only when there is a sudden, unforeseeable delusion that blurs understanding.
If there is a history, then no excuse.
o Breunig v. American Family Insurance (Wis. 1970): D suddenly veered across the center lane,
seized with delusions, striking another vehicle, causing serious injury. H: Where delusions
without forewarning overcome a D’s ability to appreciate her duty to drive a vehicle with
ordinary care, and accidentally injures another, she shall not be liable. Rationale: Like drunk
driving cases, negl. may arise when one knowingly decides to drive incapacitated. No such
warning was present here. Thus negl. is examined at the moment of actually driving, and none is
found b/c the infirmity was beyond willful control.

Blindness of Π may increase standard for Δ.
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 fell in, suffered injuries. H: A municipality must
operate in such a manner as to protect infirm members of the community. Rationale: The
physically disabled are deserving of the same level of safety as the rest of the city. Thus a higher
std. of care is owed where it is foreseeable that the normal std. will alienate. Note: this
protection does not extend to drunks.



Disabled Π is expected to exercise amount of care that a person w/ similar disability would.
Emergency may lower it to what a reasonable person in that emergency would have done.
Experts will be held to standard of other experts.
B. Duty Owed by Δ to Exercise Due Care
Generally:


Calculus of risk is essentially a reaction to the vagaries of the “reasonable person” standard.
It seems as though the correct way to go about analysis is to first look to the “reasonable person”
standard and then move to the calculus of risk
The Hand Formula: B<PL


B=Burden, P=Probability, L=Liability
Where the burden to precaution against the action is less than the probability of that action
occurring multiplied by the liability if it were to occur then ∆ is liable.
o Example: If the cost of putting a fence around a pool is $500; the probability of a child
falling in, given a busy neighborhood, 25%; and the cost of the injuries if a child falls in
$5000, clearly ∆ is liable. Because $500< (25% of $5000)

United States v. Carroll Towing Co. (2d Cir. 1947, 175)
o Facts: Tug lost its barge w/o bargee. Ran into propeller of another tanker and leaked its load
of gunk, or whathaveyou.
o 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.
o Note: The third restatement adopts this “balancing approach” in laying out factors to be
considered in determining “reasonable care”:
 whether conduct lacks reasonable care are the foreseeable likelihood that it will result
in harm, the foreseeable severity of the harm that may ensue, and the burden that
would be borne by the actor and others if the actor takes precautions that eliminate
reduce the possibility of harm.

Critique of Hand Formula
1. Indeterminacy of the factors. 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.
2. “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.
3. Judges tend to manipulate B to fit their desired outcome. Reductio: In Bolton B may very
well just be a single spike on the fence where the cricket ball was hit.
4. Marginal precaution. A small precaution that does not stop the harm, may be enough to
meet BPL level of care.
5. Provides poor ex ante guidance b/c variables change acc. to idiosyncratic interp.
6. Assumes risk neutral individuals, but not everyone is risk neutral.
7. Tends to be more about care level adjustments than risk level adjustments.
What about risk adverse or risk seeking individuals? Should they be discounted in the formula?
Duty Case Law:

Reasonable Precautions Are Sufficient.
o Blyth v. Birmingham Water Works (Eng. 1856, 166):
 Facts: Defective stopper encrusted with ice failed and caused a leak in the water main
that flooded P house.
 H: Waterworks shall not be held liable where neither work nor materials were
substandard and where the circumstances contributing to the damage was
unforeseeable (worst winter on record seemed to contribute to the mishap).
Rationale: A reasonable person could do no more.

Duty to Protect Self is Eased During Acts of Heroism.
o Eckert v. Long Island R.R. (N.Y. 1871, 167):




Facts: Intestate 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
negligent in ones own death where it was reasonably believed that the rescue was
possible.
Rationale: High regard for life mandates that no negligent be assumed in people who
attempt to save human life, unless rashness or recklessness is present.
No Liability for Reasonable Risks.
o We are constantly doing things that, although they injure others, do not involve our
negligence and do not result in liability.
o Osborne v. Montgomery (Wis. 1931, 171)
 Facts: 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. where it can be shown that behavior that caused injury is typical of the
“great mass” and that such acts produce benefits far outweighing the probability that
they will cause harm.

Duty to Ameliorate Competing Harms Among Classes is Owed to Largest Class in Most Severe
Danger.
o Cooley v. Public Service Co. (N.H. 1940, 173)



Facts: 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: D cannot be held liable for negligence in precipitating a rare disease 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 for both dangers to ppl talking on phone
and ppl walking under power lines. Where mutually exclusive, must protect the
class of people most likely to suffer the greatest harm.

Where cost of B is low, π only need show minimal evidence for liability
o Andrews v. United Airlines (9th Cir., 1994, 184)
 Facts: π injured by briefcase falling from overhead compartments. π claims ∆ is
liable b/c the injury was reasonably foreseeable but ∆ did nothing to prevent it.
 H: This is only to defeat summary judgment, but the court reasons that the cost to
outfit the bins with netting is minimal so reasonable care may not have been taken.

Notes: This case also notes the rule that common carriers owe a duty of utmost
care and vigilance of a very cautious person towards its passengers.
THEORY Handouts for Calculating Risks:



POSNER, Economic Analysis of Law (1995)
CALEBRESI & HIRSCHOFF, Toward a Test for Strict Liability in Tort
CALFEE & CRASWELL, Some Effects of Uncertainty on Compliance With Legal Standards
C. Custom: Practice and Reasonableness
Generally:


Is custom safety related? If not then doesn’t really matter.
Custom in the community is admissible as evidence of the standard of care, but it is never
conclusive. A custom may found to be negligent.


Great sword, but bad shield. Most traction in medical malpractice cases.
Compliance with custom is evidence of due care, but non-compliance is not necessarily evidence of
negligence.

The use of custom in setting standard of due care allows the benefit of some community knowledge.
The community has already dealt with the calculus of risk, so we can trust it to do things right.
Case Law:

Old view was that Custom could get you off:
o Problem with this view was that it would never encourage innovation.
o Titus v. Bradford, B. & K. R. Co. (Pa. 1890, 188)
 Facts: Nypano car bodies, with a convex bottom were regularly hauled. The
decedent, having worked as a brakeman for D, rode atop a loaded Nypano freight car
when it began to wobble as the train rounded a curve. Decedent jumped off the car
onto the track and was killed when struck by the car following.

H: D running a RR shall not be held liable for the death of an employee 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) An employer is not necessarily liable just because a
particular accident might have been prevented by some special device, when such a
device is not in common use:
Modern View: Custom not sufficient to get Δ off
o Mayhew v. Sullivan Mining Co. (Eng. 1884, 190)
 Facts: An independent contractor fell through, a hole in a mine shaft and received
serious personal injury.


H: A mining co may still be held liable for an accident involving an employee
injuring himself within 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.

Variation From Custom May Ground Liability
o The T.J. Hooper I (D.S.N.Y. 1931, 191)
 Facts: The T.J. Hooper and the Montrose, neither of which were equipped with
working radios, lost two barges and their load of coal on their way from VA to NY,
in a gale off the coat of NJ. Four other tugs, on the same route, received warnings of
the gale from the radio and took safe harbor.


H: (Cox, J) Tugboats that fail to meet the normal standard of seaworthiness by
failing to conform to commonly held and 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 of ubiquitous and standard sea faring technologies.
The Issue is Cost/Benefit, Not Custom.
o The T.J. Hooper II (2nd Cir., 1932, 192
 H: (Hand, J) There was no established custom to have the radio sets but ∆ is still

liable because the failure to have these radios amounts to a failure to exercise
reasonable prudence. Injury was a direct consequence of the unseaworthiness.
Rationale: Custom is not in and of itself enough to alleviate negligence, nor is its
want enough to require a finding of negligence.
Custom in MAL-PRACTICE

Mal-practice is where custom has the most traction, but could potentially fail BPL
o Modern Standard: “a doctor must use that degree of skill and learning which is normally
possessed and used by doctors in good standing in a similar practice in similar
communities and under like circumstances.”
o Specialists/Experts will be held to higher standard than regular practicioners,
residents/interns are held to standard of average resident/intern, not a full-fledged Dr.
o Expert testimony is the most common way of determining the applicable standard of care.
o Alternative Procedures:

Two schools: If alternative methods are accepted within the medical profession, a
doctor is free to use either treatment.

Exception for respected minority: If a “reputable and respected” minority follows an
alternative method, the doctor is free to use the alternative method.
o Lama v. Borras (1st Cir. 1994, 197)
 Facts: π (Lama) goes to ∆ for back pain, ∆ schedules surgery but does not prescribe
“conservative treatment.” Symptoms return, 2nd surgery required, Δ provides no antibiotics, wound becomes infected & π further hospitalised.

H: Essentially the court finds that the doctor did not take ordinary care because the
conservative treatment was established custom. If Dr. negligently exposes patient to
risk-prone surgery, physician is liable for harm w/in foreseeable risk.

Local Custom Rejected in Favor of a Nat’l Std.
o Old Locality rule (now basically dead): A doctor must use that degree of skill and learning
normally possessed and used by doctors in a similar practice in similar communities.
Nationally certified practitioners are held to national standard. However, country doctors are
not necessarily held to the same standard as city doctors.
o Brune v. Belinkoff (Mass. 1968, 205)
 Facts: When P attempted to climb out of bed 11 hrs. after giving birth, she slipped
and fell, suffering injuries due to an excessive dosage of pontocaine.
 H: If a physician’s practice causes a patient injury, then that practice shall be deemed
negligent if it fails to meet the national standard of medical care, though some leeway
shall be allowed for regional practitioners with limited access to resources.

Custom Trumped by Urgency and BPL.
o Helling v. Carey (Wash. 1974, 207)
 Facts: Custom was not to administer glaucoma test to patients under 40. π not given
test immediately by ∆ ophthalmologist and consequently goes blind
 H: BPL demands. Custom no excuse, even if medicine was practiced this way since
the days of Tubal-Cain. Hooper analysis applied: B is cheap and L is high.
 Note: This decision has been beaten up, acc. to deLisle by the leg and the judiciary.

Contracting for specific results is unlikely to hold
o Sullivan v. O’Connor (210): courts sceptical of medical contracts for specific results.

PHYSICIANS DUTY TO DISCLOSE:
o Canterbury v. Spence (D.C. Cir. 1972, 210):
 Facts: Complaint alleged negligence in performance of laminectomy and failure to
inform him beforehand of the risk involved. Dr. Spence did not reveal the risk of
paralysis from the laminectomy, 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, comparative 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 patient would
have attached significance to the risk in making their decision
o 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.
o Exceptions to IC:
1) patient is unconscious or otherwise incapable of consenting (if there is any family, next of kin,
you must consult them)
2) risk-disclosure poses such a threat as to be a detriment to the patient to make treatment
infeasible
o Two competing theories about when information need to be disclosed

British Rule: more lax, gives Dr. discretion to determine what the patient needs to
know

American Rule: determined by what the reasonable patient would want to know;
what information would be material in order to make a decision about their own care?
o Many states have codified IC in statute.
o Many cases of med-mal occur w/out suit. Auto-ins system is much better at compensating.
D. Statutes and Rules of Law: Legislative/Social Choices and
Reasonableness
1. STATUTES
Generally:



If you can sue under statute(explicit or implicitly) Π doesn’t need to prove negligence(majority
view). Violation of statute creates negligence per se.
When a statute explicitly creates a private remedy for those injured, the court merely need follow the
statutory command.
When a statute is silent, the courts must decide whether a private right to action may be implied.
They ask:
1) Whether the plaintiff is one of the class for whose particular benefit the statute was enacted
2) Whether recognition of a private right of action would promote the legislative purpose, and
(Gorris and Kernan)
3) Whether creation of the right would be consistent with the legislative scheme (Uhr)


Showing of these elements often creates a negligence per se situation
However, the converse does not apply: proving that one is in compliance with all stat. does not
protect from negligence claim. Care sometimes must be taken beyond that proscribed by stat.

Exceptions to application (excuses for violating statute):
(1) D unaware of stat;
(2) D reasonably and diligently attempted to comply with stat;
(3) emergency not of D’s own design;
(4) compliance would have involved an increase risk of harm.

Osborne v. McMasters (Minn. 1889, 228)
o Facts: D’s clerk sold P intestate poison w/o labeling as such.
o H: Violation of statute to sell unmarked poison = liability. Rationale: Stat intended to
protect class of people that P was a member of from this particular ham.
o “negligence is the breach of legal duty.” It doesn’t matter if that duty is imposed by common
law or statute; failure to perform constitutes negligence.

RST 3 §14: Statutory Violations as Negligence Per Se: “An actor is negligent if, without excuse, the
actor violates a statute that is designed to protect against the type of accident the actor’s conduct
causes, and if the accident victim is within the class of persons the statute is designed to protect”
Case Law:

Violation of Statute as Negligence Per Se
o Martin v. Herzog (N.Y. 1920, 233):
 Facts: P intestate struck, riding in a buggy w/o lights by an auto.
 H: Where a statute explicitly demands that an individual do something to protect his
or other’s safety in a given situation and he fails to do this, it is per se negligence

Where statute codifies custom, it implicitly accepts custom exceptions.
o Tedla v Ellman (p.235)
 Statute is to walk facing traffic, while custom is to walk on side with least amount of
traffic.
 Court says that statutes aren’t everything. What the statute actually did was to codify
existing custom, you walk against traffic unless there is less traffic on the other side.
Thus they really didn’t violate statute.

A Causal Link Between Stat Violation and Harm Required for Liability.
o Brown v. Shyne (N.Y. 1926, 235):
 Facts: D held himself out as a licensed medical practitioner when he was not, 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 there is a logical connection b/t the vio of statutory
duty and the alleged negl.
 “If violation of the statute by the defendant was the proximate cause of the plaintiff’s
injury, then the plaintiff may recover upon proof of violation; if violation of the
statute has no direct bearing on the injury, proof of the violation becomes irrelevant.”


Dissent: The cts. afford protection to the D that the leg. denies in the vio of stat, that
implicitly sets a std. of care.
Intent of statute
o Gorris v. Scott (1874, 230) Statute required ship owners to hold sheep in pens for the sake of
disease control. Ship owner violated statute and sheep were lost in a storm. Plaintiff could
not recover damages because statute was not meant for loss of property.
o Kernan v. American Dredging Co. (USSC, 1958, 231): Regulation of height of open-flame
kerosene lamps on ships designed to protect against collision, but court here allows recovery
under the statute when failure to comply caused a fire on the ship. Although this runs
contrary to Gorris, it may possible just be an exception for the Fed. Employers Liability Act.

Is the CoA consistent w/ the legislative scheme?
o Uhr v. East Greenbush Central School District (NY, 1999, 242)
 Facts: Statute mandates that schools check students for scoliosis every at least once
every year. Student (Uhr) is checked one year, no scoliosis, not checked the following


year, and then checked the year after that when she’s found to have scoliosis.
H: The Court finds that a private right of action would not be consistent with the
intent of the legislature in enacting the statute. One way or the other, the legislature
simply doesn’t want to open up the schools to the expense of litigation on these suits
Dram Shop Statutes: Bars and Such
o Ewing v. Cloverleaf Bowl (241): Bartender kept serving drinks to drunken customer. Willful
misconduct rendered bartender liable.
2. “RULES OF LAW”
Generally

If an act was negligent as a matter of law(negligent per se), the judge will so instruct the jury. Thus,
the “proper” standard of care is given the effect of law by the courts. If an act is not negligent per se,
the judge will leave it to the jury to determine whether the act was negligent. This procedure has
been adopted in order to prevent injuries from being overly swayed by their emotions.

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 D is required to know, and would suggest that nothing could be
learned by experience.
Case Law:

Negligence Per Se
o Baltimore and Ohio R.R. v. Goodman (U.S. 1927, 251)
 Facts: P was driving a truck and was killed by a train running across the road.
 H: (Holmes, J.) Drivers must stop their vehicle, look down the track, and if necessary
get out of his vehicle for a better look. STOP, LOOK, and LISTEN RULE. Where
the standard of conduct is clear the reasonable person standard is trumped by
the stated standard.

Ct. Created Duty is Not Absolute. (Goodman rule ignored here)
o Pokore v. Wabash Ry. (U.S. 1934, 252)
 Facts: A truck 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 negligence
rules made by courts. Diversity of facts outruns the ability of courts to capture them.
There are no ironclad rules as to what is negligence, duty varies w/
circumstances. P should be given the chance to let the jury decide if the rule of
law was appropriate.

The Standard to be applied is Often Unclear and Goodman Still Stands Today
o Jewell v. CSX Transportation Inc. (6th Cir, 1998, 253)
 Facts: π crosses tracks, gets hit by train, husband dies and daughter injured. Under
KT law only an extra-hazardous x-ing needs lights, gates or other warnings.
 H: x-ing was not hazardous, so no extra warnings needed, so π was contributorily
negligent in failing to stop, look, and listen.
THEORY Handouts for Statutes & Rules of Law:


HENDERSON, Expanding the Negligence Concpet: Retreat from the Rule of Law
FARBER & FRICKEY, In the Shadow of the Legislature: The Common Law and the Age of the
New Public Policy
E. Res Ipsa Loquitur: Problems of Proof of Negligence

“Res Ipsa Loquitar”: The thing speaks for itself
o invoked when π seeks to establish ∆’s negligence from circumstantial evidence
o The doctrine allows the plaintiff’s case to reach the jury when ordinarily the case will be lost.

Requirements:
1) the action does not ordinarily occur without negligence
2) the action must be caused by an instrumentality within the exclusive control of the defendant
3) action must not occur due to the voluntary action on the part the plaintiff
****4) Δs have evidence that Π can not get access to (Smoking out the conspiracy of
silence)

Where RIL gets Π:
1) Most common allows case to go to jury based on assumed breach of duty of care
2) Other places make proving RIL a prima facie case, which then shifts burden to D to prove
otherwise
3) Some approaches go as far to allow judge to find on directed verdict without submitting to jury.

Defenses:
a. Offer alternative explanations for injury other than Δs negligence
b. Showing that injuries frequently happen without negligence.
c. Showing that Δ did not have control, or that someone else did.

Example Analysis:
1. first level analysis: the odds of accident w/o negl (for ex say 1/1.0 mil); this info is in fact not
enough to est. res ipsa
2. second level analysis: the comparative odds of accident with negl (say 1/100,000) this is in
fact not enough either, but many courts will stop here

First to second level comparison: 1:10 non-negl to negl; meets the 50% std of
“preponderance of the ev.” so P would win here
3. third level analysis: how often actors are careful v. how often they are careless over time (a
“particular actor” component)
a. say for example: 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 example. 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
Case Law:

Classic Example
o Byrne v. Boadle (Eng., 1863, 261)



Smoking out the conspiracy of silence
o Ybarra v. Spangard (Cal. 1944, 276)
 Facts: P’s back and neck is injured under anesthesia during surgery.
 H: P 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 if he meets the res ipsa test
regardless if the precise instruments, nor the precise persons responsible can be


Facts: P struck by falling barrel of flower falling out a window.
H: Onus is on ∆ to prove he’s not negligent b/c the facts in of themselves point to
him being negligent. Satisfies the 3 requirements.
known.
Note: DeLisle notes here that res ipsa is often the only way to combat the strict code
of silence among medical professionals
Exclusive Control Element can be Met by 3rd Party where Duty is Non-Delegable
o Colmenares Vivas v. Sun Alliance (1st Cir. 1986, 168)
 Facts: P injured trying to hold up his large wife on a suddenly startled escalator at a
Puerto Rican Airport.
 H: Res ipsa applies even if the defendant shares responsibility with another, or if the
defendant is responsible for the instrumentality even though someone else had
physical control over it.

No Res Ipsa w/o Foreseeability and Exclusive Control.
o Larson v. St. Francis Hotel (Cal. App. 1948, 264)
 Facts: P hit from sidewalk by chair thrown from S.F. hotel window in effervescence
and ebullition of VJ Day.
 H: Res Ipsa not apply b/c Hotel doesn’t have exclusive control and could not have
predicted VJ day or resident’s destructive response to it.
THEORY Handouts for Res Ipsa

GRADY, Res Ipsa Loquitur and Compliance Error
o 1. Negl contains a “pocket of strict liability.” There are times when reasonable and sensible
behavior is still a violation, 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 supra). 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. 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
o 2. The paradox of technology is that as overall accidents decrease, compliance error, thus
res ipsa increases because each bit of technology creates more elaborate, complex, and time
consuming ways to make errors (ex. old planes to new planes). Is possible for technology to
become so advanced that it corrects for human error thus lowering res ipsa cases, but only
where it does not comparatively reduce overall error rates. The final problem is that each
layer of tech requires maintenance and oversight, a sort of endless pealing onion.
IV. Π’s Negligence, Assumption of Risk, and
Apportioning Fault
A. Contributory Negligence and Last Clear Chance:
Generally:

The old std was such that any contributory negligence barred any and all recovery; the courts
wrangled and squirmed to deal with the undue harshness of this std, resulting in poor D/P negligence
symmetry.
o Cont. negl. uses same standard as traditional negl., except it looks to a person’s duty to
exercise care for their own safety rather than other
o What a reasonable person in Π’s circumstances would have done
o Burden of proof is on Δ for cont negl. and causation
o Limitations:
 Defense is not available to Δ if Πs injury did not result from a hazard w/ respect to
which Π failed to exercise reasonable care
 Not a defense to intentional torts, willful and wanton conduct, or reckless misconduct
 Not available as a defense under certain types of statutes


Contributory negligence and assumption of risk are complete bars.
DeLisle notes that 45-46 states have gotten rid of contributory negligence and gone to
comparative fault(apportionment of liability).

R2 §465: Relation Between Harm and Plaintiff’s Negligence
(1) The plaintiff’s negligence is a legally contributing cause of his harm if, but only if, it is a
substantial factor in bringing about his harm and there is no rule restricting his responsibility
for it.
(2) The rules which determine the causal relation between the plaintiff’s negligent conduct and
the harm resulting to him are the same as those determining the causal relation between the
defendant’s negligent conduct and resulting harm to others.
Rules:
Case law:

Paradigmatic Contrib. Negl.
o Butterfield v. Forrester (Eng. 1809, 288)
 Facts: 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 egl placed
pole in the road. P need ride with ordinary care to recover, thus P is held to a middle
level std; both faults may be considered equal

No Contributory Negligence
o Beems v. Chicago RR (Iowa 1882, 289)
 Facts: 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 signal, 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.

Proof of Cont. Negl.
o Gyerman v. United States Lines Co. (Cal 1972, 293)
 Facts: 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 should be 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.

Warning of Harm Must Pertain to Actual Harm.
o Smithwick v. Hall & Upson Co (Conn. 1890, 299)
 Facts: 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.”

Substantial Factor Test Applies to Immediate Causation, not Causation Exacerbated by P.
o Mahoney v. Beatman (Conn. 1929, 299)
 Facts: Rolls speeding, but D caused crash by veering into oncoming lane.
 H: When D’s acts are the proximate cause in running another off the road, she shall
be liable for all damages, though P’s actions contributed toward increasing those
damages.

Note: Poor symmetry. No appeal to speed limit statute. The difference between this
case and Derheim, is that Derheim is a cleaner application of the rule. Derheim had
no seatbelt stat, while this case did have a speed limit. DeLisle thinks this is a
confused application of the contrib. negl. rule. I suspect it was more about protecting
elites than about applying fair rules of law.

No Duty to Protect Property from Negligence of Another
o LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry. (U.S. 1914, 300)
 Facts: Spark from a train lit 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 not in use to injure others but legally situated. π has a right to use his property as
he sees fit w/o having that right infringed upon
 Holmes Dissent: what if ∆ is using proper care but π is stacking the flax too close?
 Economic Analysis of LeRoy Fibre where harm of burning hay is $5:
World
$ to move
$ for Spark
Party
Efficient
Hay
Catcher
Negligent
Action
A
6
3
∆
S Ctchr
B
6
6
none
Burn H
C
4
3
Π+∆
S Ctchr
D
3
4
Π+∆
Move H
E
4
6
π
Move H
i. Using CJ argument, you could find S/L for train since the risk is not reciprocal.
ii. Coase: it is not all about reciprocal risk, but just that some activities(baker and doctor)
can’t coexist without conflict. There is a net loss to minimize.

Seat Belt Defense: No Contributory Negligence Where it did not Contribute Directly to the
Accident
o Derheim v. N. Fiorito Co. (Wash. 1972, 304)
 Facts: Auto accident in which P was not wearing safety belt (no law requiring)
 H: A P shall not be considered contributorily negligent in an auto accident simply
because she does not wear her seat-belt.
 Rationale: contributory negligence is something that happens, or fails to happen at


the time of the accident that contributes toward it. Since not wearing a seatbelt did in
no way contribute toward the crash, no contrib. negl may be found.
You take the P as you find him, as in Vosburg.
Note: However, you may use the seat-belt issue however in calculating damages.
Looks like comparative fault. And the seat-belt case is still controversial.
LAST CLEAR CHANCE
Generally:

Shifts burden 100% one way or the other. Has been eliminated in most courts.

May be used as a defense by P against contrib. negl. claims. D’s negligence was last in time, so
Contrib. Negl. couldn’t bar suit. The D had last opportunity to avoid harm where she knew or should
have known of the impending harm to the helpless or inattentive Π (even if cont. negligent).

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).
P Helpless
P Inattentive
D Knows
P wins
P wins
D Should Know
P Wins
D wins(usually)
D Should Not Know
D wins
D wins
-Reason for difference in middle column: we feel that P is at fault for being inattentive, but not for being
helpless. Also that P has more of a choice to avoid harm of being inattentive.
Rules:
R2 §479: Last Clear Chance: Helpless Plaintiff

A plaintiff who has negligently subjected himself to a risk of harm from the defendant’s subsequent
negligence may recover for harm caused thereby if, immediately preceding the harm,
(a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and
(b) the defendant is negligent in failing to utilize with reasonable care and competence his then
existing opportunity to avoid the harm, when he
(i) knows of the plaintiff’s situation and realizes or has reason to realize the peril
involved in it or
(ii) would discover the situation and thus have reason to realize the peril, if he were to
exercise the vigilance which it is then his duty to the plaintiff to exercise
R2 §480: Last Clear Chance: Inattentive Plaintiff

A plaintiff who, by the 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
(a) knows the plaintiff’s situation, and
(b) 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
(c) thereafter is negligent in failing to utilize with reasonable care and competence his then
existing opportunity to avoid the harm
Case Law:

Paradigmatic Last Clear Chance (D with actual knowledge)
o Fuller v. Illinois Central R.R. (Miss. 1911, 308)
 Facts: Train conductor sees car, doesn’t slow, collides 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 negligent and contrib. negl shall not be a defense.
 Note: This is also where he quotes Davies v. Mann where man puts his puts his
donkey in plain sight of the freeway and it’s run over

Last Clear Chance and Δ Should Have Known
o Kumkumian v. City of NY (NY 1930, 312)
 Facts: D failed to check the tracks after the subway emergency brake device was
tripped three times.
 H: D liable where had last clear chance and should have known of the danger
regardless of P’s contributory negligence
B. ASSUMPTION OF RISK

Defense arises when Π voluntarily encounters a known danger and by his conduct expressly or
impliedly consents to take the risk of the danger. Is a complete bar to recovery.

Π’s action need not be negligent (ie. going to baseball game)

Requirements:
a. Danger must be one that a reasonable person would have notice of. If Π had no knowledge,
there can be no ass. of risk, even if they should have.
b. Π’s assumption of risk must be voluntary. If Π had no other alternative due to Δ’s actions,
then can’t use AOR.

Majority of court’s now reject AOR, instead use duty element to bar suit in that Δ owed Π no duty.

Express AOR: Contractual Bargain
a. AOR by an Employee
i. These cases are usually treated as a K that allocates risk(and adds risk premium) to Π.
If random person off the street walked into axe factory, AOR prob. wouldn’t hold.
ii. Π can get exception to AOR if Δ is grossly negligent (MedMal), under duress, or if it
violates public policy concerns
iii. Lamson v. American Axe (Mass. 1900): D replaced racks where axes were held, but
new racks didn’t work well. Injured by falling ax. H: A person cannot recover for
negligently inflicted injuries when she freely decides to stay employed instead of
quitting in the face of a known danger. Rationale: P was working under a voluntary
agreement. Cases of this sort usually involve a risk premium. Fear of losing job was
wasn’t sufficient to make involuntary.
iv. Fellow Servant Rule (Farwell v. Boston & Worcester): In old days, if you were
injured by co-worker’s negligence you couldn’t recover from employer. This defense
is no longer needed due to Workers’ Comp laws.
b. AOR in MedMal
i. Issue of Drs. contracting out of liability w/ patients:



If patient does not have perfect info., K is thrown out. Must be informed.
We want Drs. to have incentives to practice carefully.
Duress Voids the Assumption of Risk. 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 K,
and if physician is unable to prove that this K is valid, patient shall not be bound.

Madden v Kaiser Foundation Hospitals came out differently because there was
equal bargaining power since employees were represented by a state board.
Ana of Assumption of Risk in the Workplace. Richard Posner, A Theory of Negligence, in Perspectives on
Tort Law 15 (Robert Rabin ed., 4th ed. 1995).
1. Respondeat superior is inapplicable. Says Posner, “with important exceptions to be noted, an employer
was not liable to his employees for injuries inflicted by their fellow employees.” [7] The fellow servant rule is
an exception whereby when a fellow servant tells the employer of danger of another servant inflicting risk on
others, and the employer is thereby on notice, the employer is liable. This creates positive efficiency effects
because the servant is encouraged to report risks or be w/o recourse if she is harmed, and the employer is
incentivized to remedy excessive risks with the cheaply acquired knowledge.
2. Assumption of Risk is a stratagem supported by ec. logic. Risk preferers will assume the risk and be
compensated for it. Risk averse individuals will ask to be protected from the risk and in exchange will pay for
that protection. 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.
Implied AOR

Primary Implied Assumption of Risk: Where Δ has no or reduced duty to protect Π from the
particular type of harm.
o Murphy v. Steeplechase (N.Y. 1929): P rides the Flopper. He gets flopped. H: When one
engages in a sport (or amusement) she accepts the dangers that inhere in it insofar as they are
obvious, and a P’s injury shall be considered but an unfortunate accident for which the operators
of the activity are not to be held liable. 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)

Secondary Implied: D owes a duty of care to the Π but Π knowingly encounters breach of that
duty.
o Meistrich v Casino Arena Attractions, Inc. (p.326)
 D would normally have duty to make rink safe for ppl, but when you step on ice knowing
its too hard you assume risk of slipping.
C. Comparative Fault:

Definition: A "comparative negligence" system rejects the all-or-nothing approach of contributory
negligence. It instead attempts to divide liability between P and D in proportion to their relative
degrees of fault.
o Commonly adopted: 46 states have adopted some form of comparative negligence

"Pure" versus "50%" systems:
o Only 13 states have adopted "pure" comparative negligence. (Li standard)
o The rest completely bar P if his negligence is (depending on the state) "as great" as D’s, or
"greater" than D’s.

Adoption of contributory fault regimes:
o Last clear chance is jettisoned under comparative fault in most courts
o Assumption of risk is retained as a bar to recovery except in secondary implied
assumption of risk situations where ∆’s duty is factored into calculating comparative liability
levels.
o Wanton and Wilful Conduct does not bar comparative fault in most states. That is, if ∆
acts not just negligently, but recklessly, π’s recovery can still be modified due to his own
negligence.
o Intentional Torts prevents application of comparative fault in most states. If ∆ acts
intentionally most courts will no longer adjust recovery based on π’s negligence.
o Seatbelt Defense is increasingly accepted as a factor in calculating comparative fault even
though this was almost universally rejected in contributor negligence regimes.
Rules:

R3 §7: Effect of π’s Negligence When π Suffers an Indivisible Injury
(1) Plaintiff’s negligence (or the 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 factfinder assigns to the plaintiff
(or other person for whose negligence the plaintiff is responsible).
Case Law:

The Seminal Comparative Negl. Case. “Pure” Comparative Negligence
o Li v. Yellow Cab Co. of Cal. (Cal. 1975, 337)
 Facts: P injured in auto accident in 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 example) for each “contributing” to the injuries, but P nor D
could sue ea. other; (2) jurors operate in comparative negligence universe, and
settlements are worked out in this fashion; (3) if fault is to be taken seriously as a
means to judgment then comparative negligence is superior; (4) greater efficiency due
to better ex ante predictive effects.

Inception of 50% System of Comparative Negligence
o Bradley v. Appalachian Power Co. (WV 1979, 344), court declines to follow Li in choice of
pure form. π is not barred from recovery “so long as his negligence or fault does not equal or
exceed the combined negligence or fault of the other parties involved in the accident.”

Assumption of Risk Still Bars Recovery under Comparative Fault
o Knight v. Jewett (Cal. 1992, supp.)


Facts: 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, so this is primary implied AoR.

Note: While Express AoR and Primary Implied AoR are retained as bars to recovery
under Comparative Negligence, Secondary Implied is not a bar. See above for
differences.
D. Joint and Several Liability

Joint tortfeasors: If more than one person is a proximate cause of P’s harm, and the harm is indivisible,
each defendant is liable for the entire harm. The liability is said to be "joint and several."
(Example: D1 negligently scratches P. P goes to the hospital, where she is negligently treated by D2, a
doctor, causing her to lose her arm. P can recover her entire damages from D1, or her entire damages
from D2, though she cannot collect twice.)

Class Hypo w/out settlement:
$1000 in harm
P 30% at fault
D1 10%
D2 60%
How do we decide where $70 comes from?
-Several Liability: Π gets $100 from D1.
-Joint and Several Liability: Π gets $700 from D1.
-Partial Indemnity: allows D1 to sue D2 for $600, or just join D2 in first case.

Notes Hypo w/ INSOLVENT Δ (following Evangelatos v. Superior Court (365) also adopted by
RST 3rd but varies by jurisdiction:
Same as above but Δ2 has no $$. Δ1 pays proportion of Δ2’s shortfall.
P gets $100 + (10/40) * $600 from Δ1 = $250 total

Class Hypo w/ SETTLEMENT (two approaches):
$1000 harm
P 30%
D1 10%
D2 60%
I.
$300 settlement from D2 $400 from D1
$650 settlement from D2 $50 from D1
II.
D1 $100
D1 $100
$700 settlement from D2 $0 from D1
D1 $100
I. Pro Tanto: P gets his money, no matter what.
-prevents P from getting screwed
-creates incentives to settle out.
II. Claim reduction/proportionate share(adopted by RST 3): More like several liability.
-prevents D from getting screwed
-creates very little incentive to settle

Fault: Many states use proportion of fault. Δ is responsible for their % of fault multiplied by total
damages. Delisle says this is more about comparative fault than comparative causation.

Mary Carter agreements are illegal: D2 settles but stays in suit secretly and helps get more $$ out of
D1.
Case Law

American Motorcycle Association v. Superior Court (359): Contributory Negligence by Π does not
prevent joint and several liability.
P minor was injured at a motorcycle meet. AMA cross-complained for P’s parent’s failing to supervise,
claiming that joint and several liability does not hold when Π is contributorily negligent.
Held: A P may recover full damages from any single tortfeasor under joint and several liability
regardless of the fault regime suggested by comparitive negl. Partial equitable indemnity holds (system
where one D may go after other D’s for the judgment owed a P based on percentage of fault, but if the
original D loses, she is still on the hook to P for the full amount).

Safeway Stores v. Nest-Kart (365): Partial indemnity still applies if one Δ is sued under negligence and
another Δ under S/L.

McDermott Inc. v. AmClyde & River Don Castings, Ltd. (368): both of the above options have their
benefits, but SCOTUS adopts proportionate share approach(II).
V. Causation
A. Cause in Fact
1. Basic Principles: “But For”?
CB 394-418
Generally

"But for" test:
o The vast majority of the time, the way P shows "cause in fact" is to show that D’s conduct
was a "but for" cause of P’s injuries
o had D not acted negligently, P’s injuries would not have resulted.

Concurrent causes:
o Sometimes D’s conduct can meet the "cause in fact" requirement even though it is not a "but
for" cause. This happens where two events concur to cause harm, and either one would have
been sufficient to cause substantially the same harm without the other.
o Each of these concurring events is deemed a cause in fact of the injury, since it would have
been sufficient to bring the injury about.

Multiple fault:
o If P can show that each of two (or more) defendants was at fault, but only one could have
caused the injury, the burden shifts to each defendant to show that the other caused the harm.
o Where each of the two events would have been sufficient by themselves to bring about the
harm, the test for each is whether it was a substantial factor in bringing about the harm.

Burden of Proof for Toxic Torts:
o Substance can cause contracted injury or disease
o ∆ is the source of the substance
o π was exposed to substance in a way that could cause the injury
Rules
R3 §26: Factual Cause
“An actor’s tortiuous conduct must be a factual cause of another’s physical harm for liability to be
imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the
conduct…” goes on to adopt the “but for” test.
Case Law

∆ Must be Proximate Cause of Harm for π to Recover
o N.Y. Central R.R. v. Grimstead (2d Cir. 1920, 394)


Facts: P’s husband drowns, as no life saver was on ship.
H: Decedent shall not recover where the proximate cause of death was not brought by
D, and it is indeterminable if any safety precautions not taken by D would have
averted death. Since it is not true that but for a life preserver the P would have
undoubtedly been saved, no causation exists to link the D’s carelessness to the
fatality.
o Note: (1) This is an old case and Grimstead would fare better in a modern court; (2) the
glaucoma case (Helling)is different b/c detection would have arrested the disease.

The becomes one that could cause the harm at 50+%
o Haft v. Lone Palm Hotel (CA 1970, 397)



Facts: Statute requires sign to be posted at polls w/o lifeguards. No lifeguard at pool
and no signs, father + son drown.
H: Tough because the witnesses are dead, so showing “but for” causation could go
either way, really. Court switches the burden of proof from π (where the burden on
causation usually resides) to ∆; so ∆ must show that πs would have drowned even if
he had posted the sign.
“But for” Causation Where Negligent Act only Increases Chances of Harm
o Zuchowicz v. United States (2nd Cir. 1998, 398)
 Facts: Naval hospital Dr. prescribes π a much too high dosage of drug. Develops a

fatal disease and later dies from disease. Disease was exacerbated by π’s pregnancy.
H: π must establish causation which means showing both that the overdose caused the
disease and that the disease caused death. Court puts forth a rule: if a negligent
action increases the likelihood of a harm and then that harm occurs, then his
action if the “but for” cause of the harm.

Causation is Not Defeated when the Harm may have occurred w/o Negligence
o Reynolds v. Texas & Pacific (LA 1885, 402), “where the negligence of ∆ greatly multiplies
the chances of the accident to ∆, and is of a character naturally leading to its occurrence, the
mere possibility that it might have happened without negligence is not sufficient to break the
chain of cause and effect between the negligence and injury.”

Toxic Harm Cases Rely on Probability Since Direct Causation Can’t be Shown
o General Electric Co. v. Joiner (USSC 1997, 404)
 Facts: π electrician exposed to ∆’s fluid coolant which contains PCBs. π gets lung
cancer and sues ∆ even though he (π) is a smoker
 H: Issue is whether expert testimony on animal studies is sufficient to establish
causation. “A court may conclude that there is simply too great an analytical gap
between the data and the opinion proferred.”

Liability for Causing a Lost Chance of Life as an exception for 50+% Standard
o Herskovits v. Group Health Cooperative of Puget Sound (WA 1983, 412)
 Facts: D’s failed to diagnose P as having lung cancer, reducing chance of survival
from 39% to 25%. D’s argued that since P would probably have died anyway, their
negligent delay was not the cause in fact of his death.
 H: If a doctor misdiagnoses the patient’s condition, thus delaying treatment, and 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.”
o 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 she had actually incurred the harm.
2. Special Problems of Multiple Defendants
CB 418-422, 425(n.4)-435
Generally

Concurrent causes:
o Sometimes D’s conduct can meet the "cause in fact" requirement even though it is not a "but
for" cause. This happens where two events concur to cause harm, and either one would have
been sufficient to cause substantially the same harm without the other.
o Each of these concurring events is deemed a cause in fact of the injury, since it would have
been sufficient to bring the injury about.

Multiple fault:
o If P can show that each of two (or more) defendants was at fault, but only one could have
caused the injury, the burden shifts to each defendant to show that the other caused the harm.
o Where each of the two events would have been sufficient by themselves to bring about the
harm, the test for each is whether it was a substantial factor in bringing about the harm.
Rules
R2 §433A: 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.

Comment d: apportionment can happen where, say, two herds of cattle trespass and damages to the
crop can be determined by the number of cattle each owner owns.
Case Law

Where Two Events Concur and either would have been Sufficient, Both are a Cause in Fact to harm
o Kingston v. Chicago & N.W. Ry. (WI 1927, 418)
 Facts: Fire from NW and NE. Fire from NE caused by ∆’s train. Cause of fire from
NW unknown. The fire’s converge north of π’s property, fire destroys property.
 H: b/c it is impossible to apportion damage between the two, and the damage would
have happened if either were solely responsible, both are liable for the entire damage.
Burden is on ∆ to show his individual lack of fault.

Where Which ∆ Caused harm cannot be determined All are Deemed Cause of Harm Jointly
o Summers v. Tice (CA 1948, 425)
 Facts: Quail hunters. Both ∆s shot at the quail in π’s direction and π was shot.
 H: Where two or more ∆s are involved in negligent behavior but which ∆ directly
cause the harm can’t be determined, all ∆s are jointly liable and the negligence of
both is deemed the cause of the harm. Burden shifts to individual ∆ to prove his
individual lack of causation.

Market Share Liability
o Skipworth v. Lead Industries Association (PA 1997, 428)
 Facts: Child gets lead poisoning repeatedly, cause is presumably lead paint, but


parents (π) can’t identify the manufacturer of the lead paint in their house, so they file
suit against a consortium of lead paint manufacturers.
H: Market share liability spreads liability according to the market share of each
producer. But it is rarely applied and only if:
 all the named ∆s are potential tortfeasors
 all the harmful products are identical and share the same defective qualities
 all the manufacturers that created the product during the relevant time period
are named as defendents.
Obviously π does not meet this burden here (not all manufacturers named, products
not identical, etc…)
o Notes on Market Share Liability:
 1st applied in Sindell v. Abbott Laboratories for the drug DES which was
manufactured by as many as 300 companies and was the same from co. to co.
 Actually calculating liability even in these non-fungible cases is extremely difficult,
however, due to all the factors (dosage size, potency, usage, etc…)
 Courts have been reluctant to extend MSL beyond fungible products like DES
 Courts have rejected applying it to asbestos cases
B. Proximate Causation; Finding a Duty
CB 436-479
Generally

Even after P has shown that D was the "cause in fact" of P’s injuries, P must still show that D was
the "proximate cause" of those injuries.

The proximate cause requirement is a policy determination that a defendant, even one who has
behaved negligently, should not automatically be liable for all the consequences, no matter how
improbable or far-reaching, of his act.

Today, the proximate cause requirement usually means that D will not be liable for the
consequences that are very unforeseeable.

Two Co-Existing Standards (both are still used, but Foreseeability is more common):
o Directness: if the harm is a direct consequence of the negligent act, proximate causation is
established regardless of foreseeability
o Foreseeability: limits proximate causation only where the risk imposed would have been
foreseeable, both in kind of injury and person injured, by a reasonable person at the time of
the negligent act

Foreseeability at the edges:
(1) Manner: Still liable if outcome is foreseeable even if the means to that
outcome is novel or unique.
(2) Extent: Still liable for all the damages, though only a modicum of damages
would have been expected (Vosburg).
(3) Improbability: Still liable even for highly unlikely results if they are
foreseeable (Wagon Mound 2).
(4) Class of P’s: Though injury to a particular individual may not be foreseeable,
liability will still lie when the P is of a class of people for which foreseeability of
harm attaches (Kinsman Transit)

Intervening Causes:
o an “intervening cause” is a force which takes place after ∆’s negligence and contributes to
the negligence producing π’s harm
 some intervening causes are sufficient to prevent ∆’s negligence from being held to
be the proximate cause of the injury. There are called “superseding causes”
o Generally courts use the foreseeability rule to determine whether an intervening cause is
superseding:


if neither the intervening cause nor the kind of harm was foreseeable, the intervening
cause will supersede ∆’s liability
Other twists:
o Coincidence: where the negligent act exposes π to the risk and that risk occurs, ∆ is
proximate cause (Hines v. Garrett, 442)
o Independent and dependent causation: where a second cause is dependent on the first
negligent act in order to impose a harm, the secondary harm is considered “dependent” and ∆
is only liable for the incremental damages. (Dillon v. Twin State Gas & Electric, 442)

What Does and Does Not Interrupt Causation? deLisle:
(1) natural forces, though not weak ones, usually interrupt;
(2) reactive and instinctive forces usually interrupt, unless caused by hypersensitivity or other
anomalous conditions like mild dementia (full blown hallucinations, however do exculpate,
remember Batman in Breunig);
(3) independent and reflective acts do not nec. interrupt (Wagner);
(4) criminal and tortous acts do not nec. interrupt (Brower).
Rules
R2 §281: Risk to Class of Which Plaintiff is a Member
o If the actor’s conduct creates a recognizable risk of harm only to a particular class of persons,
the fact that it causes harm to a different class, to whom the actor could not reasonably have
anticipated injury, does not render the actor liable to the persons so injured.
 Note: Codifies Cardozo’s ruling in Palsgraf
R2 §431: What Constitutes Legal Clause
o The actor’s negligent conduct is a legal cause of harm to another if
(a) his conduct is a substantial factor in bringing about the harm, and
(b) there is no rule of law relieving the actor from liability because of the manner in
which his negligence has resulted in the harm
o Comment a: The word “substantial” is used to denote the fact that the defendant’s conduct
has such an effort in producing the harm as to land reasonable men to regard it as a cause
R2 §448: Causation where ∆ Negligently Creates an Opportunity for Criminal Activity
o ∆ is not liable for damages occurring by a 3rd party’s criminal activity even where ∆ created
the opportunity for that criminal activity to occur through a negligent act
o Unless ∆ had reason to know the likelihood that his act would create such a situation and that
a 3rd party might avail himself of the opportunity to commit a crime.
Case Law

Direct Cause Proximate Causation does Not Require Foreseeability
o In Re Polemis and Furness, Withy & Co. (Eng. 1921, 452)


Facts: ∆s unloading π’s ship and negligently dropped a plank into the storage hold
striking an unknown substance or object, creating a spark which ignited the petroleum
carried by the ship and blew the whole damn thing up.
H: Once the negligence of a party has been established liability holds for
consequences of the conduct, foreseeable or not.
o Note: This is still good law in most US jurisdictions

The Foreseeability Test.
o Wagon Mound No. 1 (Overseas Tankship v. Morts Dock) (Aus. 1961, 471)
 Facts: D’s ship spilled oil into a bay. The 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.”
o Wagon Mound No. 2 (Overseas Tankship v. Miller Steamship) (Aus. 1967, 474)
 Facts: same as above, except here π lost his ship in fire
 H: Ships engineer should have known that oil would possibly be ignited if discharged
into harbor; foreseeability is shown. D is liable for a remote, but foreseeable risk.

American Response to Polemis and Wagon Mound
o Kinsman Transit Co. (2nd Cir. 1964, 478), American Courts reject the foreseeability test
where the consequences of the action are direct, such as in Polemis

There is no Proximate Causation where the risk imposed is not Foreseeable and ∆ has no duty to π
o Palsgraf v. Long Island R.R. (N.Y. 1928, 456)
 Facts: Man running to board ∆’s train, ∆ workers help man on train, in process had
his package jostled loose. Fireworks in the package exploded on the rails, when they
fell, causing scales at the other end of the platform to fall, injuring P.

H: (Cardozo, J.) The conduct of D’s employee was not a wrong in its relation to the P,
standing far away. Generally, “a wrong is defined in terms of the natural or probable
at least when unintentional.” D violated no duty to P as to whom there was no

foreseeable risk.
Dissent: (Andrews, J.) D bears a burden of due care to “protect society from
unnecessary danger, not to protect A, B, or C alone.”
 Andrews uses a worth while metaphor: into a stream flow many tributaries
and for a while it may be possible to distinguish from where one drop of water
comes, but eventually they all blend to one. This is similar to attempting to
trace an effect to its harm—after a time, the distinction of what effect caused
the harm. Law arbitrarily picks that point.

Rejection of Polemis Reductio; the Nightmare of Infinite Liability Solved with the Foreseeability Std.
o Ryan v. New York Central R.R. (N.Y. 1966, 436)
 Facts: 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” of the
negligent operation of the engine, but the damage of P’s house is too remote.


Rationale: “To sustain such a claim would subject the defendant to a liability against
which no prudence could guard.”
Note: this is no longer good law, but does example beginnings of foreseeability

Violation of Statute does not Mandate finding of Causation
o Berry v. Sugar Notch Borough (PA 1899, 440)
 Facts: π driving in storm through ∆ town, tree blown over and crushes π’s car +
causes injury. π was speeding. π sues ∆ for injury.
 H: π’s speeding was neither the cause of the accident or contributory negligence to.

Problem of Coincidence
o Georgia Ry. v. Price (GA 1898, 442), π dropped off at wrong RR stop, spent the night in a
hotel b/c of it, hotel sets fire, π sues RR. Harm held to be too remote.
o Hines v. Gaerrett (VA 1921, 442), π dropped off at wrong RR stop, had to walk home, raped
twice on the way back. ∆’s negligence directly exposed π to risk causing harm, π wins.

Intervening Willful and Wanton Third Parties Do Not Truncate Causation.
o Brower v. New York Central & H.R.R. (N.J. 1918, 444)
 Facts: D freight train collided with P cart allowing bystanders to steal P’s goods.
 H: Negligent 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 criminal cats of the thieves.

Duty Extends to Actors Not Breaking the Original Causal Link.
o Wagner v. International Railway (N.Y. 1921, 450)
 Facts: Train threw Herb out. P left the train and walked along the trestle, looking for
Herb’s body, but he fell through the trestle, suffering injury.
 H: (Cardozo, J.) D owed a duty to P, the rescuer, as well as Herb.
 Rationale: Volitional act by P does not excuse the D’s proximate cause because it
could have been foreseen, as everyone knows, “Danger invites rescue.” Note:
Broader def. of foreseeability tends to protect P, while more narrow def. protects D’s.

Causality Not Truncated by Foreseeable Actions of Third Parties.
o Marshall v. Nugent (1st Cir. 1955, 467)
 Facts: 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
road. 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 parities, 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.
VI. Finding a Duty (2): Affirmative Duties and Liability for Failures
to Act
A. Duty to Rescue
CB 496-512
Generally

Failure to Act: Typically don’t impose negligence for not acting by coming to aid of others

Exceptions to Duty to Rescue
o Peril of defendant’s creation
o Risk of further harm attributable to defendant
o Rescue attempt. If the defendant voluntarily acts to aid the plaintiff, he owes a duty of
reasonable care. Abandonment is negligent if plaintiff is left worse off. Zelenko v. Gimbel
Bros.,
o No Good Samaritan Duty
a.) Omission/No Duty (Epstein (libertarian/pro-contract argument-but carves out some):
I didn’t act or take action to harm someone;
 Exceptions: Special relationship, taking care of kid or trip kid
 The type of agreement you would make if you had gotten together with
society; economic argument allows
b.) Strict Liability:
c.) Infringement on Autonomy: cost; constantly thinking about rescue
d.) Net Loss: social welfare; more kids drown; people avoid situations where they would
be able to rescue
e.) More people will create situations where they need rescue
f.) Extortion/People will try to rescue for money
g.) Egoism
h.) Morally Bad: Kantian argument; not morally good if do it out of tort law; people no
longer rescue to be a hero feel obligated, Hero

The Limited Duty of the Good Samaritan. Ames, Law and Morals, (1909) [565].
1. “The law is utilitarian.” [565]
2. The Good Samaritan Law suggests, 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 great bodily harm follows as a consequence of his inaction, shall be
punished criminally and shall make compensation to the party injured or his widow and
children in the case of death. Any duty that burdens the good Samaritan beyond the “little or no
inconvenience” threshold is inappropriate. “The law does not compel active benevolence
between man and man.” [566]
o Good Samaritan Law: If you are acting as a good Samaritan and you injure him; you don’t
have to defend botched rescue (legislatures extend immunity)

Richard Epstein, A Theory of Strict Liability, 2 J. Legal Stud. 151 (1973).
1. Ames’ Contradiction: A tension exists between Ames’ conception of law as utilitarian, and
individual actor’s entitlement to not be burdened with excessive social obligations to rescue. <A
utilitarian conception, to the contrary, would require rescue where rescue would advance greater
benefits to society in the aggregate over the costs of rescue to the hero.>
2. Overburdensome: Epstein suggests Ames would always have us donate $10. to save
starving children, or risk liability. He does not say outright, but intimates that this is an
overburdensome demand.
3. Ames Reductio is the Forced Exchange: Ames would also require the surgeon to travel
excessive distances to perform surgery whenever he was sufficiently remunerate to make the
burden of the journey essentially trivial. This is also overly burdensome. It is a sort of forced
exchange. Forced exchanges, if accepted, turn formerly voluntary acts, made possible by K and
charity into rights, that the victim will demand of rescuers. Liability becomes endless. There
must be a place for egoism. Thus even Ames’ <relatively low impact> Good Samaritan Rule
must be rejected.
Case Law

No Duty Rescue
o Buch v. Amory Manufacturing Co. (N.H. 1897, 497)
 Facts: 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: Did not invite child on land and no
special relationship taken as affirmative duty position; he is a trespasser and not there
legitimately

No Obligation to Practice
o Hurley v Eddingfield (Ind. 1901, 499)
 Facts: Eddingfield (D) was a practicing physician who had been Hurley’s (P)
physician for years. D refused to render aid, P died.
 H: D not liable for refusal to render medical assistance.Being licensed is preventive,
not compulsive, does not require him to practice. Dr. who does not want to leave
house to save child

No Duty to Rescue Where π Enters into Harm under own Free Will
o Yania v. Bigan (PA 1959, 500)
Facts: ∆ dares π to jump into water in a cut out strip mine, π jumps in and dies. ∆ is a strip
miner and knew of the danger yet didn’t warn π and made no effort to rescue
o H: First count dismissed, Bigan did not make any physical contact, second count failed b/c
Yania as strip mine operator knew of obvious danger and third it was Yania’s fault for
undertaking dangerous action, just b/c Bigan say Yania in peril, did not impose legal duty
Montgomery v. National Convoy (S.C. 1937) (Misfeasance)p. 507
C. Owners & Occupiers of Land
CB 513-533
Generally
Invitee: A person on the property to conduct business with the owner; public officials on official business. CL
rule is that "reasonable care" must be taken to ensure invitee's safety.
RST 2d § 332: (1) An invitee is ether a public invitee or a business visitor. (2) A public invitee is a
member of the public invited onto the land for the purpose for which it is held open to the public. (3) A
business visitor is a person invited onto the land for a purpose directly or indirectly connected with
business dealings with the possessor of the land. (p. 520)
Post v. Lunney (1972): Museum guest is public invitee when she paid $5 admission and tripped over
transparent vinyl rug cover. (p.520)
Mounsey v. Ellard (1973): Police officer delivering a summons is an implied invitee. (p. 521).
Licensee: A person on the property with owner's permission (implied or express), but not for business purposes
(e.g., social guest). CL rule is that no duty except that no "wilful and wanton" or deliberate harm.
Lemon v. Busey (1969): Church employee brought granddaughter to work for her own convenience.
Child wandered off the roof and died. Church not liable since she was a licensee. (p. 520)
Knorpp v. Hale (1998): Daughter's boyfriend who was cutting down a tree on Δ's land was a licensee
since he did not expect compensation for cutting down the tree. (p. 520)
Trespasser: A person on the property against owner's wishes and owner doesn't know he is there or objects to
his presence. Exception for attractive nuisance. CL rule is that no duty except that no "wilful and wanton" or
deliberate harm.
Gladon v. Greater Cleveland Regional Transit Authority (1996): Railroad passenger lost invitee status
and became trespasser one he exceeded the scope of his invitation and entered the area near the track.
Attractive Nuisance
Allows Π-child to recover when Δ maintains presence dangerous to kids and knows kids likely to get
harmed. Exceptions for natural conditions, like rivers, ponds, wagons, axes, plows, woodpiles,
haystacks. In 1800's was concern that attractive nuisance would create too much liability because "there
is no limit to the objects which can be made attractive playthings." (p.517) Most courts still allowed
these actions if "Δ, in the construction, location, management, or condition of its machine" did not take
reasonable care "to prevent the occurrence of accidents." (p.518). There is no duty to investigate the land
to determine whether kids are trespassing. If kids can appreciate the risk, will be barred from recovery
(assumption of risk). Examples of attractive nuisance on p.519.
RST 2d § 339: Artificial Conditions Highly Dangerous to Trespassing Children
A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an
artificial condition upon the land if possessor knows/has reason to know (a) possessor knows/has reason
to know that kids likely to trespass, and (b) possessor knows/has reason to know the condition will
involve an unreasonable risk of death or serious bodily harm to kids and (c) the kids will not appreciate
the risk because of their youth, and (d) the utility is slight compared to the risk, and (e) possessor fails to
exercise reasonable care to eliminate danger or protect kids.
Classifications: Many jurisdictions blend Invitee/Licensee into one or eliminate distinctions entirely, relying
upon reasonable care considering the circumstances (i.e., more care required when expected than unexpected
people on the property).
Robert Addie & Sons (Collieries), Ltd. v Dumbreck (1929) p. 513
F: Δ operated a haulage system to remove coal ashes from a mine with an endless wire cable; its wheel was
protected on top by boards, but left space between the boards and the ashes. Was in an unfenced field where
many children played. Δ's employees often told kids to keep out and posted sign against trespassing. 4-year-old
Π killed while sitting close to the pulley/rope and the Δ's employees started the system in motion. H: Discusses
classification system of invitees (on owner's land to do business), licensees (given permission, expressed or
implied; social guests), trespassers (no invitation and presence unknown or objected to). Child was trespasser to
whom no duty of reasonable care is owed (duty only not to deliberately or recklessly harm.)
Exceptions to Trespasser Rule for Wilful and Wanton Conduct
Excelsior Wire Rope Co v. Callan (1930) p. 516
F: same as Collieries except playground next door and "swarms" of children frequently came onto the land. H:
was reckless disregard to start the pulley without being sure it was free of children since they knew kids were
always playing on it. [Beginnings of "Attractive Nuisance" doctrine?]
Gould v. DeBeve (1964) p. 517
Δ (landlord) liable for "willful and wanton misconduct" after a baby fell out of a window with defective screen;
though baby was a trespasser, Δ had ignored his statutory obligation to replace the defective screen.
Some Jurisdictions Eliminate/Modify Traditional Classifications in Favor of "Reasonableness"
Rowland v. Christian (1968) p. 521
F: Δ invited Π to her apartment. Δ was aware of a dangerously cracked faucet handle and did not warn Π before
he used it. It broke and injured Π's hand. I: whether liability depends on trespasser/licensee/invitee
classification. H: rejects the classifications and instead uses reasonable care under the circumstances test for
negligence. This more or less accomplishes similar ends, since greater degree of care is required for friends than
unexpected thieves.
Mallet v Pickens (1999) abandons invitee/licensee distinction, but keeps common law rule for trespassers (p.
527)
Sargent v. Ross (1973): Landlord owes general duty of care to all people on the premises; eliminates
invitee/licensee distinction. (p.528) Oulette v. Blanchard (1976): eliminates trespasser category, but says
landlord cannot be expected to maintain safe premises for persons who enter against his wishes.
Pridgen v. Boston Housing Authority (1974): Owner liable and has affirmative duty to shut off power when he
knows someone is stuck in the elevator shaft and turning off the power will prevent him from being injured.
[Hint of willful and wanton] (p. 529).
Ward v. K-Mart Corp (1990): customer who walked into concrete post while exiting the store could recover for
injury because it was reasonably foreseeable that customers leaving the store with packages blocking their view
would not be able to see the post. There was no warning sign and no windows from the inside of the store that
would enable customer to see the post before leaving.
Liability of Landowners to People not on the land
Sprecher v. Adamson (1981): Landowner liable for mudslide caused by heavy rain that damaged neighbor's
property because it was foreseeable that mudslide would happen if she didn't do something about it. Similarly,
Whitt v. Silverman (2001) held gas station owner liable for pedestrians' injuries when driver leaving the station
could not see them because gas station owner did not trim his hedges and it was foreseeable that such an
incident would occur. (p.533)
D. Special Relationships
p548-568
Generally
RST 2d § 315: There is no duty to control conduct of a third person from committing harm to another unless (a)
a special relationship exists between the actor and the third person which imposes that duty, or (b) a special
relationship exists between the actor and the other which gives him a right to protection.
In general, there is a duty to provide reasonable care to prevent harm to lessees/clients from assault or harm, but
not to take unreasonably expensive precautions.
RST 2d § 319: One who takes charge of a third person whom he knows or should know to be likely to cause
bodily harm to other if not controlled is under a duty to exercise reasonable care to control the third person to
prevent him from doing such harm.
Duty not to negligently create dangerous situations
Weirum v. RKO General Inc. (1975): radio station liable for drivers' crash when it repeatedly broadcasted that
the first one to get there wins a prize, since "liability is not predicated upon Δ's failure to intervene but upon Δ's
creation of an unreasonable risk of harm." (p.548-49)
Lundgren v. Fultz (1984): where psychiatrist told police to give his patient's guns back, he was liable when the
patient then killed somebody.
Estates of Morgan v. Fairfield Family Counseling Ctr (1997): Δ psychiatrist who saw a patient once is liable
when patient killed his parents after the psychiatrist took patient off antipsychotics though another psychiatrist
who had treated him much more closely had prescribed them.
Duty of Landlord to Tenants and Third Parties
Kline v. 1500 Mass. Ave. Apt. Corp. (1970)
Π was injured robbed in the hallway of her apartment building which was under exclusive control of Δ landlord.
Δ used to post guards at entrances, but stopped doing so. Δ knew about increasing number of similar crimes on
the premises but did nothing. H: Δ liable despite the intentional assault: "duty is to take those measures of
protection which are within his power and capacity to take, and which can reasonable be expected to mitigate
the risk of intruders assaulting and robbing tenants." Reasoning is that Π could not have undertaken those
precautions herself since she had no right to put locks on hallway, and since would not be economically feasible
for tenant to provide security for whole building. Essentially least cost avoider argument. (p. 549) Probably
need notice of prior similar incidents to become liable (see Ann M. below). Further, negligently secured
entrance must be the proximate cause of the attack (see Burgos).
Peterson v. SF Comm. College (1984): university owes duty to prevent foreseeable criminal assault by trimming
the hedges in parking lot so that criminals can't hide there. Similar duty exists for parking lot operators. (p.55556)
Frances T. v. Village Green Owners Assoc. (1986): duty exists for condo owner's association and it's members
to protect unit owners.
No liability for neighbor's failure to take due care
Kuzmicz v. Ivy Hill Park Apts, Inc. (1997): Δ apartment owner not liable to Π when Π was assaulted while
trespassing on Δ's neighbor's lot. (p. 557)
Harm within the risk
Burgos v. Aqueduct Realty Corp (1998): Δ landlord not liable if assailants gained entrance in some manner that
was not the result of negligently maintaining building security (break in through windows, are residents of the
building or guests of another resident, etc.) (p. 557)
Wassell v. Adams (1989): Π was 97% contributorily negligent when she opened her hotel door without asking
who it was in the middle of the night in a bad neighborhood when hotel didn't warn her that it was a high-crime
area.
Limitations on Duty
Drew v. Le Jay Sportsmen's Cafe (1991): Restaurant has duty to call for help when diner is choking, but not to
have someone on staff trained in first aid/CPR/Heimlich.
Atcovitz v. Gulph Mills Tennis Club (2002): Tennis club not required to have an AED for heart-diseased
member.
Mastriano v. Blyer (2001): Cab driver only required to ensure passenger gets out safely, not that he doesn't
drive drunk later.
KFC of California v. Brown (1997): No duty to capitulate to criminal's demands when he has a hostage.
Nivens v. 7-11 Hoagy's Corner (1997): Δ store has no duty to provide security guards because unfairly shifts
police burden to store. (p. 555)
Ann M. v. Pacific Plaza Shopping Ctr. (1993): no special duty exists for shopping mall landlord to lessee's
employee. Mall decided not to hire security guards because it would have been cost prohibitive, and instead
hired a security company to drive by occasionally. "Degree of foreseeability rarely can be proven without notice
of similar incidents on the premises."
Lopez v. Southern Cal. Rapid Transit Dist. (1985): utmost care duty for common carriers creates special
relationship, but duty is to provide utmost "reasonable" care (that is, not unnecessarily expensive).
Duties to Warn where Special Relationships Exist
Tarasoff v. Regents of University of California (1976) (p. 559-65)
F: After kissing each other once in December 1968, Prosenjit Poddar killed Tatiana Tarasoff in October 1969
after she was unresponsive to further advances. Poddar had told his intention to his psychologist Lawrence
Moore, employee of the University of California. Δ told campus police to detain Poddar, but he was released
and Tarasoff was never warned. H: The special relationship between Poddar and his therapist creates an
affirmative duty to warn a third party of foreseeable harm. Because a therapist can't perfectly predict violent
acts, he should exercise judgment with the same "reasonable degree of skill" that a therapist in his position
should have.
Must be specific threat to create duty to warn
Beauchene v. Syanon (1979): No duty for private rehab center/halfway house to public at large.
Thompson v. County of Alameda (1980): even though juvenile said he would kill a kid living in his
neighborhood when released from juvie, police owed no duty because no threat to specific person who could be
warned.
Nasser v. Parker (1995): Woman killed by her abusive boyfriend when he was released from psych hospital and
they did not warn her so that she would be able to leave home.
Long v. Broadlawns Med. Ctr. (2002): Hospital held liable when promised woman that would warn her when
releasing abusive husband, but did not do so. Harm was within the risk and they negligently failed to warn her.
Think Promissory Estoppel.
VII. Strict Liability: Liability w/out Negligence
A. Animals

Wild animals: A person who keeps a "wild"(RST 3rd: not generally domesticated and likely to
cause injury) animal is strictly liable for all damage done by it, as long as the damage results from a
"dangerous propensity" that is typical of the species in question (bear falling off fence not the
propensity that makes bears dangerous). However, if animals are kept under a public duty (ie zoo,
national parks) only a negligence standard applies.

Domestic animals: But injuries caused by a "domestic" animal such as
a cat, dog, cow, pig, etc., are held to a negligence standard unless the
owner knows or has reason to know of the animal’s dangerous
characteristics, then S/L (RST 3rd).
o Why the difference?
 Reciprocity of risk.
 Puts burden on least cost avoider.

Dog Bite Statutes: Reverses common law rule that each dog gets one free bite before owner is S/L.
Owner just needs to see some sort of sign (growling, etc). Owner not liable if Π was trespassing or
committing a tort.

Trespassing: General rule is that the owner of animals that are likely to and do stray onto the land of
another is strictly liable for any damage caused by such animals.
Case Law

Gehrts v. Batteen (581): Δ was correctly held to a negligence standard since the dog had shown no
prior dangerous propensities. Court declines to adopt S/L standard for dogs w/out prior signs.
B. Ultrahazardous or Abnormally Dangerous Activities


Those engaging in ADAs are S/L
Rationale:
o Non-reciprocity of risk
o Negligence rule affects care-level adjustment, but S/L is needed to affect activity level
adjustment.

Care Level: A level of care in performing the task. This is how we normally think of
BPL, or negl. tests in general. Ex. When you carry a mocha over new, white carpet you
try to avert risk by using a saucer or walking slowly.

Activity Level: An adjustment of not how carefully you do the act, per se, but where you
do the act, or an ana if you should do the act at all. In some cases BPL says we may
proceed, nuclear reactors, for ex. However, we feel this is insufficient. We want to be
protected even though B is tremendously high. BPL, in a sense, has been tricked. To
correct we look to activity level adj. Ex. Before you even carry that mocha over the
white carpet you ask yourself if there isn’t some back route to get where you’re going
over which carpet has not been laid (say go out the kitchen back door, around the house
and back in the front door). Alternately, you may ask if moving the mocha is worth
while at all.

Defenses: RST 523: assumption of risk (complete bar), RST 524: comparative/contributory negligence,
RST 524: abnormally sensitive Π

RST 2nd § 519
(1) One who carries on ADA is S/L to harm caused to person, land, or property of others.
(2) Limited to the kind of harm which makes it an ADA
-ie. Madsen v. East Jordan Irrigation Co: blasting 100 yards from a mink farm, mink are
not actually hit by anything, just bug out, not ADA. Blasting is not an ADA due to its risk of making minks go
crazy.

RST 2nd § 520 ADAs
In determining what constitutes, consider:
a)
b)
c)
d)
existence of a high degree of risk of some harm to person, land, or chattels of others (BIG P)
likelihood that the harm that results will be great (BIG L)
inability to eliminate the risk by use of reasonable care (NO B)
extent to which the activity is not a matter of common usage
-Comment i: common usage is customarily carried on by the great mass of mankind or many ppl in
the community
e) inappropriateness of the activity to the place where it is occurring
f) extent to which its value to the community is outweighed by its dangers
***Note that under RST 522, Δ engaged in ADA is still strictly liable if harm is caused by third party, animal,
or force of nature intervention.
 RST 3rd § 20: ADAs
a) A Δ who carries in an ADA is subject to strict liability for physical harm
b) Activity is ADA if:
(1) creates a foreseeable and highly significant risk of phys. harm even when reasonable care is
excercised by all actors
(2) not matter of common usage
***Note that RST 3rd dropped the (f) criteria of social utility.
Case Law
 Spano v. Perini Corp. (589): S/L for blasting
Π’s garage and a car inside damaged from blasting 125’ away. Δ was found liable, even though he wasn’t
negligent.

Airplanes are generally not held to be ADAs since they are safer than cars, which use a negligence
standard. Ground damage from planes, however, is held to S/L in some states.
 Indiana Harbor Belt R.R. v American Cyanamid Co. (p.599)
D American manufactured and loaded a hazardous chemical onto a leased RR car. Car then leaked in Π’s
yard and cost $981K in damages.
Held: Shipping hazardous chemicals by rail is not ADA, and thus only negligence standard applies. Leak
was not caused by dangerous properties of chemical, but just by carelessness of RR car. Negligence
standard would still have come out for Π, so no need to go to S/L.
Class discussion:
o It is not AD substances, but activities
o Residents moved next to RR after it was already there (assumption of risk).
o Cheaper cost avoider is the RR shipper, not the manufacturer.
o To reroute around town, would actually increase PL since trains would have to travel further
distance.
o Siegler v. Kuhlman (605) held that the transportation of gasoline was sufficiently dangerous to justify
S/L. Danger is amplified by high speeds and an explosion is likely to destroy all evidence. Risk can not
be eliminated by exercise of reasonable care.
C. Nuisance
o Distinguished from trespass in that it does not require physical invasion.
o RST 2nd 821: Public nuisances refer to an act or omission that damages the public in the exercise of
rights common to all citizens. In order to recover privately, a Π must prove that his injuries were
different from those of the general public.
o Defined:
o intentional OR negligent OR ADA
o unreasonable AND/OR substantial nontrespassory invasion

RST. 2nd §826: Unreasonable if

(a) [efficiency test] the gravity of the harm outweighs the utility of the Δ’s
conduct OR
o this is NOT a BPL analysis


(b) [CJ test] 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 impossible.
o This leaves many of the greatest harms uncompensated for.
EXAM ?: Some courts say both unreasonableness and substantiality are needed, some
say just one. Substantiality sets a threshold, to prevent minute suits and encourage
private negotiation.
o of Π’s possessory/property interest in private use/enjoyment of land
o Defenses:
o Contributory negligence: only available if Π accuses negligence in first prong(not intentional
or ADA)
o Assumption of risk: available under S/L or negligence.
o Mere fear of harm is not nuisance. Ie. if factory is rumored to leak gas into your land, and your
prop value drops, you can’t collect.
o Eyesore(ie. junk pile) is not nuisance, but odors may be (ie. hog farm).
o Remedies: injunctions or damages or both. Also, although frequently overlooked, court could require Π
to purchase injunction from Δ. (see Spur below)
Private Nuisance Case Law:
o Vogel v. Grant-Lafayette Electric Cooperative (608)
Π’s cows were acting strangely, so Δ installed an isolator to reduce stray voltage, which fixed problem.
Π then sues for nuisance.
Held: Stray voltage may be considered a nuisance. Π did not request stray voltage, just normal levels.
o Deprivation of Light and Air is not Nuisance: Fontainebleau Hotel v 4525 Inc. (618): D want to
build a high-rise that would cast a shadow on other’s prop. H: Land owners may use their prop. in any
reasonable and lawful manner, even if motivated by spite, so long as they do not thereby deprive the
adjoining landowners of any rt. of the enjoyment of their prop. Light and air is not a rt. of landowners
recognized at law.
Class Discussion:
o As industrial ethic becomes less prevalent and eco. ethic becomes more prevalent, cts. are less
likely to follow this.
o A pure spite fence is usually considered nuisance, here there were mixed motives.
o There is a square tradeoff here, someone will get screwed(Δ or Π) fact that it turned out to be Π
is not enough to justify nuisance.
o Zoning now takes care of most of this (See Pritchett’s Class infra (puts gun to head))
o Nuisance Must be Objectively Injurious (no ultrasensitive Π) Rodgers v. Elliot (622): 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.
o Coming to the Nuisance is Not a Complete Defense. Ensign v. Walls (625): D ran a smelly and noisy
dog kennel in a residential neighborhood. H: There may be an actionable nuisance, even if the nuisance
predated the arrival of neighbors who after having moved in, pray for relief. Rationale: Coming to the
nuisance is but one factor to examine in a balancing test. Other factors are public health and safety.
o Argument for Valid Aff. Defense (Δ): (1) Provides notice; (2) P’s choice to move in or not,
charges them with moral and volitional responsibility; (3) P’s are best cost avoiders, because
they can choose to obviate the dilemma; (4) Takes two to tango, so P in a sense is hitting D; (5) P
already compensated b/c absent the kennel, homes would have been more expensive.
o Argument against Valid Defense (Π): (1) Coming or going, the kennel is still a vio of prop. rts.
(2) Bottom line, D hit P with odor and noise; (3) Coming to the nuisance defense would allow
priv. citizens to determine zoning laws; (4) Coming to the nuisance generates perverse
incentives. Each side is motivated to build as quickly a possible so that the other would be
considered to be “coming” to them. This results in over-dev.; (5) Dog-hoards are a nonreciprocal risk.
o Nuisance Damages (not specific performance) Where Util. Outweighs harm Boomer v. Atlantic
Cement Co. (629): 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. Note: Technically the ct. ordered
a perm inj, with the option left for D to lift the inj by paying damages. Why not just award damages?
deLisle says this is done out of deference to precedent.
1. Problem with negotiating damages are (the Vincent problems) (1) subjective valuation of
prop. by homeowners, (2) over-inflated prices, (3) transaction costs, and the additional problem of multiple P’s,
(4) hold-out-ers (the hold out problem is exhibited by the little old lady who wouldn’t sell her prop to Donald
Trump for his Atlantic City Casino, and as a result was offered $1mil).
2. deLisle further criticizes the holding by suggesting that after damages have been paid, the D
had no incentive to decrease pollution and just the opposite, since it has effectively bought the right to pollute.
A better solution, deLisle offers, might be to revisit damages over time. This would give the polluter an
incentive to decrease it’s impact on the community.
3. CJ Critique of Perm Damages: (1) damages innap. b/c D created the wrong and is obliged
to rectify; (2) Non-reciprocal risk requires the risk to be eliminated; (3) Cement factory hit Boomer and not
vice-versa, and we want to stop the hitting, not just medical care in perpetuity.
4. CJ Defends the D: (1) two to tango: joint causation means that there would be no harm if the
homeowners were not there to begin with; (2) D has property rights as well, and they are impinged by having
to pay for lawful use of the land; (3) A no liability rule would exculpate; (4) D performs a lawful activity; (5)
Larger social reciprocity demands: Boomer wants to live in a modern world with inexpensive and useful
products made possible by factories like Atlantic’s. Boomer’s home may very well have been made with
Atlantic materials. Boomer wants it both ways. He wants the use of Atlantic’s product but does not want the
inconvenience of suffering through while Atlantic makes the same product for others. (See Losee at V. H.,
supra) (6) reverse Coasain bargain would be better solution, i.e. make Boomer bribe Atlantic to move.
o Coming to the Nuisance May Require P Pay D for Specific Performance. Spur v. Del Webb
Development(638): The problem: 1 mil lb. of wet manure per day. H: When a developer comes to a
nuisance such that only a permanent inj with solve the public health problem presented to a residential
community, and through no fault of its own, a lawful business must stop activates and/or move
elsewhere, P must pay damages to D to compensate for the loss.
Public Nuisance Case Law:
o 532 Madison Ave. Gourmet Foods v. Finlandia (641)
Piece of Δ’s building falls off and streets are closed for 2 weeks. Πs attempt to sue privately in addition to
public suit.
Held: Π did not suffer special kind of harm beyond that suffered by the community as a whole. Their harm
was merely economic like everyone else, although they may have lost more $$ than say a window washer.
Class notes:
o If this bness was a radio station and they could no longer broadcast their signal, this would
probably qualify as a private nuisance.
o Degree of control required: Camden County Board of Chosen Freeholders v. Beretta (646)
County sues to collect costs of harm by guns, alleging a public nuisance since they endanger public safety
and impose great costs.
Held: No nuisance. Nuisance has never been applied to manufacturers of lawful products. Merely injecting
a product into a stream of commerce is not sufficient control to justify public nuisance. Δ can not be held
liable for actions of 3rd parties.
VII. Products Liability
A. The Decline of Privity and the Emergence of Strict Liability
Case Law:

Privity Required (antiquated)
o “Privity”= requiring contractual contact
o Winterbottom v. Wright (Eng. 1842, 655)
 Facts: P injured by defective mail coach gov. bought from D.
 H: Parties to a K are liable only to ea. other for breaches. Rationale: (1) privity
required to recover in tort; (2) w/o privity infinite liability and endless litigation.

S/l Where Danger Foreseeable. (abandons Winterbottom)
o MacPherson v. Buick Motor Co. (N.Y. 1916, 657)
 Facts: (Cardozo, J.) P injured by defective wooden wheel.


H: Manufacturers of products that are “reasonably certain to place life and limb in
peril when negl. made” owe duty of reasonable care to all foreseeable users, and
s/l when fail to do so. Rationale: privity is a good indicator of foreseeability, but not
an end in itself.
Note: This seems to overturn Winterbottom in cases where the manufacturer could
foresee the purchaser using the item in a potentially perilous fashion

Warranty of Merchantibility Violation.
o Warranty of merchantability doctrine notes that sales of products by default carry with them
an implied warranty by the seller that the product is of merchantable quality; that it has been
inspected and is deemed reasonably suitable for the ordinary uses that the product is sold for.
o McCabe v. Liggett Drug Co. (Mass. 1953, 664)
 Facts: P injured when her coffee maker, the “Lucifer Lifetime,” blew up.
 H: A product of design such that it will foreseeably cause injury upon its normal and
proper use violates warranty of merchantibility and thus lays liability upon its
manufacturer.

A Proposal for Full Blown Products S/l.
o Escola v. Coca-Cola Bottling (Cal. 1944, 665)
 Facts: Waitress injured when bottle blew up.


H: Res ipsa finds liability. Concurrence (Traynor, J.): Manufacturer of a defective
product should be held strictly liable for any injuries which result.
Rationale:
(1) Loss minimization b/c manufacturer is best cost avoider;
(2) Best cost spreaders over consumers;
(3) Elimination of proof complications such as res ipsa;
(4) Analogy to foodstuffs i.e. bad or spoiled food is a departure from design, and
likewise an exploding bottle.

Implied Warranty Extended Beyond Parties of Transaction
o Henningsen v. Bloomfield Motors, Inc. (N.J. 1960, 671)
 Facts: Husband bought car with disclaimer to all except purchaser. Gave car to wife
who drove it into a wall upon the failure of the steering mechanism.
 H: A disclaimer of liability is void where it is unfairly imposed upon consumer and
where the implied warranty of uses supersedes by extending its protection to all
foreseeable end users.

Rule for S/l Redefined.
o Greenman v. Yuba Power Products (Cal. 1962, 673)
 Facts: Lathe spun out a block of wood and bashed P in head.

R: To find s/l must prove
(1) product used as intended,
(2) defect in design caused the harm, and
(3) Plaintiff is unaware of the defect.
B. Restatement Formulations
Restatement (second):

R2 §402A: Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) Seller of any products “in a defective condition unreasonably dangerous” is liabile for any
harms to the buyer, end-user, or their property, if
(a) the seller is engaged in the business of selling the product
(b) the product is expected to and does reach the buyer without substantial change in
condition
(2) This rule applies even if
(a) the seller has exercised all possible care in preparation and sale
(b) there is no privity between the end-user or buyer and the seller

Notes on §402A
o section 1(a) provides for exceptions where the seller is not in the business of selling the
product. Such as the occasional seller of food-stuffs or the person who sells their car in the
paper.
o Section 1(b) exempts the seller from liability when he the product is safe at the time of
delivery but is subsequently mishandled before consumption
o A product is not defective when it is safe for normal consumption and injury results from
abnormal consumption.
o “Unreasonably Dangerous”: measured by the normal use that the ordinary consumer
would consider it intended for. So, even though alcohol can kill you, it’s not unreasonably
dangerous unless, say, it’s been spiked with antifreeze.
 This may, however, prompt directions for normal use on the label or other such
disclaimers
 Or where a side-effect is common enough to be foreseeable, like peanut allergies
o Unavoidably unsafe items: Like certain drugs, some things have a clearly desirable use but
have inherent dangers. In these cases strict liability doesn’t hold as long as warning is given
and the product is responsibly prepared and marketed.
o Contributory negligence doesn’t apply but assumption of risk can be a defense: where the
consumer knows of a defect but continues to use the product and is injured, recovery is
barred.
o Bystanders: today the liability of he manufacturer or seller to the bystander is universally
allowed.
Restatement (Third):

R3 §1: Liability of Commercial Seller or Distributor for Harm Caused by Defective Products
“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.
A product is defective when, at the time of sale or distribution, it contains a manufacturing
defect, is defective in design, or is defective because of inadequate instructions or warnings.
(a) A product contains a manufacturing defect when it does what it’s not supposed to
even tough all possible care was used in making the product
(b) A product is defective in design when the omission of reasonable alternative design
by any of those in the chain of distribution causes foreseeable risks
(c) A product is defective due to inadequate instructions or warnings when a party in
the chain of distribution fails to include instructions that would mitigate foreseeable risks.
C. Manufacturing/ Construction Defects
R3 §3: Products Liability
(1) “It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing
at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the
plaintiff:
(a) was of a kind that ordinarily occurs as a result of product defect; and
(b) was not, in the particular case, solely the result of causes other than product defect existing at
the time of sale or distribution”
Third Restatement Standard in Action

Speller v. Sears, Roebuck & Co. (NY, 2003, 697)
o Facts: Plaintiffs’ decedent was killed and her son injured in a house fire caused by ∆’s
defective refrigerator
o H: π’s survive summary judgement b/c circumstantial evidence can show that, res ipsa, the
product was defective and was the cause of the house fire.
Defective Foodstuffs.

Mexicali Rose v. Superior Court (Cal. 1992, 712)
o Facts: Choked on chicken bone.
o Rule: S/l std is met where (1) the foreign object could not be reasonably expected by the
average consumer and (2) the product is unfit under theories of the implied warrant of
merchantibility.
o H: s/l for foreign contaminants but only negligent for natural contaminants.
Defenses by Manufacturers
1. 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)
2. S/l: (1) assumption of risk implied where P had knowledge of risk; (2) abnormal use or misuse that is
not reasonably foreseeable is not protected; (3) argue that defect was not proximate cause of harm
D. Design Defects
CB 703-708, 711-731

Wade, On the Nature of Strict Tort Liability for Products (1973, 703)
o Factors to weigh for determining if a product is unreasonably dangerous:
(1) Usefulness and desirability of product; to user and public
(2) Likelihood and probable seriousness of injury
(3) Availability of a safe substitute product
(4) Ease of making the product safe without making is useless or too expensive
(5) User’s ability to avoid harm through use of reasonable care
(6) User’s awareness of the product’s dangers
(7) Feasibility of cost spreading mechanisms on the part of the manufacturer, such as
liability insurance

Paradigmatic Defective Design.
o Volkswagen of America, Inc. v. Young (Md. 1974, 704)
 Facts: P killed when seat ripped away from floorboards during a rear-end accident.
 H: It doesn’t matter that the defect didn’t cause the initial accident, manufacturers are
liable for design elements that could have been reasonably foreseen to cause or
enhance injuries where the defect is not evident to the user. BUT court refuses to
apply strict liability under §402A

Note: this is a negl. std. that sounds like s/l b/c defective design is defined as
carelessness in and of itself.

Danger being Open and Obvious does not Necessarily Bar Recovery
o Micallef v. Miehle Co. (1976, 711)
 Facts: π attempts to remove an object from a moving printing press, gets his finger
caught and is unable to reach the shut-off button.
 H: Even where the danger is open and obvious, ∆ is obligated to avoid unreasonable
risk of harm to anyone using the product in the intended or reasonably foreseeable
manner.

Knowledge of a Defective Design Means a High Bar
o Grimshaw v. Ford Motor Co. (Cal. 1981, supp.)



Facts: Ford aware of defect and in this case a Pinto did burst into flames upon rear
impact.
H: Liable where manufacturer acts maliciously and w/ a conscious disregard for
public safety. Efficiency and BPL arguments are rejected.
Seller-Oriented Standard of “Unreasonable Dangerous”
o Phillips v. Kimwood Machine Co. (OR, 1974, supp.)
 Facts: π injured by ∆’s sander when machine ejected piece of wood into π’s abdomen
 H: Strict liability is held where a reasonable person would not sell the product if he
had knowledge of the product’s harmful potential. Court argues that this selleroriented standard is the other side of the same, consumer-oriented, standard put forth
in the restatement.

Rejecting the “unreasonably dangerous” restriction on Product Defects
o Barker v. Lull Engineering Co. (Cal 1978, 712)
 Facts: P injured while operating D’s high lift loader on a construction site at UCSC.

H: A product violates s/l test of unreasonably dangerous design where (1) P proves
the product failed to perform as safely as an ordinary consumer would expect (obj,
test) when used as intended or in a reasonably foreseeable manner, or (2) the P proves
that the product design proximately caused injury and the D fails to rebut by proving
that in light of the relevant factors, on balance, the benefits of the design o/w the risks
inherent.

Compliance with Gov’t Regulation Standards is not enough to Avoid Liability
o Wilson v. Piper Aircraft Corp. (Or. 1978, 716)
 Facts: Plane crashed due to icing conditions (P theory).
 H: Although FAA approval is but a “minimum” only and doesn’t provide ∆ with a
default shield, P’s proof of a safer alternative design must also meet a general Cost
Benefit Analysis of overall design, and further, older models need not be considered
unsafe simply due to comparisons with newer, safer models.
Risk-Utility Analysis vs. Consumer Expectation Test

Consumer Expectation and Utility in Determining Design Safety.
o Linegar v. Armour of America (8th Cir. 1990, 721)
 Facts: 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 doesn’t demand because alternative designs
would decrease overall use of the vest, thus decreasing safety, and increase cost (itself
decreasing safety through decreased use). In fact, the police force decided to use this
vest over other designs due to increased utility.

State of the Art Defense doesn’t Work
o O’Brien v. Muskin Corp. (N.J. 1983, 724)
 Facts: P dove into 3 1/2 feet of water head first, hands slipped off the slippery vinyl
bottom and bashed his bone head.
 H: State of the art defense not sufficient to exculpate (i.e. D argued no other material
was any less slippery). P’s Cost Benefit A need not exhibit alternate safer designs.
 Note: this was modified by statute in NJ and responded to in R3 which requires that π
show a reasonable alternative design when contesting the safety of the industry
standard.
o State of the art defense: Allows ∆ to escape liability where the practice is state of the art
and no other reasonable alternative design exists. Somewhat codified in the third restatement
o Consumer expectation test: a product’s defectiveness is to be determined by the
expectations of an ordinary consumer.

Expressly rejecting the Third Restatement State of the Art Defense for Consumer Expectation
o Potter v. Chicago Pneumatic Tool Co., (CT 1997, 725)
 Facts: π’s tools had vibration so excessive that ∆’s sustained serious medical


problems from continued use. Experts established causal connection.
H: Feasible alternative design requirement of R3 (stated above in O’Brien) imposes
an undue burden on πs that might preclude valid claims. The old consumer
expectation test stands where everyday experience permits the inference that the
product did not meet minimum safety standards, but where it cannot be so inferred
the jury should conduct Cost Benefit Analysis
Rejection of Risk-Benefit Analysis for Consumer Expectation Test
o Halliday v. Sturn, Ruger & Co., (MD 2002, 728)
 Facts: Mother (Halliday) sues gun company for death of son while playing with his
father’s handgun.

H: π argues that the court should apply a “risk-utility” analysis and hold that the cost
of excluding child safety measures is outweighed by the risk of not doing so.
Consumer expectation test applies and, unfortunately, the gun operated just as
designed and intended to.
E. Proper Defendants
CB 689-695

Those engaged in Services are not S/L
o Cafazzo v. Central Medical Health Services, Inc., (PA, 1995, 689)
 Facts: Defective prosthesis implanted in π by ∆s, π sues ∆ claiming that they placed
the device in the stream of commerce (manufacturer is bankrupt)
 H: 4 part test for determining whether the supplier should be held liable as a §402A
seller: [court found based on these factors ∆ is not liable]
1) which members of the marketing chain are available for redress?
2) would imposition of liability encourage safety?
3) Is supplier in a better position than the consumer to prevent the circulation of
defective products?
4) Can the supplier distribute the cost of compensation for injuries by charging for
it in his business? (cost spreading)


R3 §19(b): Services, even when provided commercially, are not products. [consistent w/ earlier law]
Where Services and Sales are hybrid, ∆ not S/L
o Murphy v. E.R. Squibb & Sons, Inc. (Cal. 1985, 693)
 Facts: P developed cancer caused by DES taken by her mother, bought at D’s
pharmacy.
 H: Those who perform a hybrid sales and service, such as a pharmacist, will not be


held s/l for harm caused by the product sold.
Rationale: (1) ex ante, would restrict the variety of drugs; (2) cost increase due to the
elimination of generics; (3) unfair to penalize pharmacists required to follow Drs.’
orders (the Nuremberg defense).
BUT All Traditional Distributors are Interpreted as Sellers
o Vandermark v. Ford Motor (CA 1964, 693), “retailers like manufacturers are engaged in the
business of distributing goods to the public.”
o This retailer as seller liability has been extended to builders of mass-produced homes
o R3: nonmanufacturing sellers and distributors are still product sellers under s/l even where
they do nothing to make the products dangerous
o This was not extended to used equipment resellers under Tillman v. Vance
F. The Duty to Warn
CB 731-755
Generally:

Rationale:
o Often when there’s a dangerous design defect in a product the reasonable thing to do is
design out the defect or the dangerous components
o but some products usefulness is dependent upon inherently dangerous elements, such as table
saws or pharmaceutical products
o in these cases a warning may be appropriate, but the question then becomes how to protect
against liability

Standard
o Warning must be clear and visceral.
o Warning may not be buried in other warnings, unless an learned intermediary (doctor) is
available to sort the data.
o Open and obvious is only a defense when a warning would not have changed the P’s
behavior (child with lighter, for ex.). Warnings do not excuse design defects.
Rules:
R2 §402A – Defective product unreasonably dangerous

Comment j: a product “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”

Comment m: charges manufacturer with the duty to perform reasonable testing prior to marketing
a product and discover risks and risk avoidance measures
R3 §2(c) – Warning defective where foreseeable risks could have been reduced/eliminated by
reasonable instructions/warnings
Case Law:

Duty to Warn Patient Directly
o MacDonald v. Ortho Pharmaceutical Corp. (MA 1985, 731)
 Facts: P injured from a stroke caused by birth control pills
 H: Prescription drugs (really just the pill as far as we are concerned) for which there
is “heightened participation” on the part of the patient to such an extent that the
physician is relegated to a relatively passive role, must bear explicit warnings directed
at the consumer, as to its possible side effects.

Note: The general rule is that manufacturers need only warn the “learned
intermediate” and not the patient. This case is an exception

Physicians as Learned Intermediaries
o Harrison v. American Home Products (5th Cir. 1999, 736), prescription drug manufacturers
are harder to pin b/c the physician play a significant role in prescribing the drug and
educating the patient about usage. Duty to warn is on the physician.
o Perez v. Wyeth Labs (NJ 1999, 737), Same problematic contraceptive as in Harrison but here
NJ finds that the massive ad campaign directed at women imposed a duty to warn on ∆

Pharmacists’ Duty to Warn
o McKee v. American Products Corp. (WA 1989, 738), refuses to extend physician duty to
warn to pharmacists.
o Reyes v. Wyeth Labs (5th Cir. 1974, 738), mass vaccination was a prescription drug but was
administered by pharmacists and promoted by ∆. Court held ∆ had duty to warn.

Duty to Warn under Implied Warranty of Merchantability
o Vassallo v. Baxter Healthcare Corp. (MA 1998, 741)
 Facts: π gets breast implants manufactured by ∆’s predecessor company. π claims
negligence in design and warnings as well of breach of implied wrnty merchantability

H: ∆ will not be held liable under an implied warranty of merchantability for failure
to warn about risks that were not reasonable foreseeable at the time of sale or
could not have been discovered through reasonable testing

S/l for Asbestos.
o Borel v. Fiberboard Paper Products Corp. (5th Cir. 1973, 746), Asbestos injured an
insulation worker. H: Manufacturers have a duty to warn all workers of the dangers of
that product.
o Beshada v. Johns-Manville Products Corp. (N.J. 1982, 747): Injury from asbestos. H: S/l on
product. State of the Art defense ineffective. Rationale: S/l (1)spreads risk, (2) advances
accident avoidance, (3) decreased litigation complexity. Note: This case has not fared well
in the cts.

Reasonable Warning
o Hood v. Ryobi America Corp., (4th 1999, 748)
 Facts: π removed guard from miter saw and sustained serious injuries when using
thereafter. Manual has a number of warnings not to operate w/o guards in place.
 H: a warning need only be reasonable under the circumstances and here it was.

Warnings and Design Modifications
o Liriano v. Hobart Corp. (2nd Cir. 1999, 752)
 Facts: π caught arm in ∆’s meat grinder from which employer had removed the safety

guard; no warning were given that removing the guard was dangerous
H: (Calabresi, J) jury verdict for π stands b/c π was new to country and jury could
reasonably find that π had no idea that a safety guard might have been needed or
available. This is in response to the district court that noted that where risk is obvious
failure to warn might not hold.
G. Plaintiff's Conduct
CB 755-764
Rules:
R3 §17: Apportionment of Responsibility between or Among Plaintiff, Seller and Distributors of
Defective Products and Others
(a) 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.
(b) The manner and extent of the reduction under subsection (a) and the apportionment of
plaintiff’s recovery among multiple defendants are governed by generally applicable rules
concerning responsibility.
Case Law:

Comparative Fault Still in Effect in S/l Cases.
o Daly v. General Motors Corp. (Cal 1978, 755)
 Facts: Decedent thrown from car in accident; π alleges defective door locks. ∆ notes
that decedent was drunk, car had seat belt, and speeding.
 H: S/l in auto manufacturing defects does not preclude using comparative fault prin.
A P’s negl. conduct shall reduce his recovery.
 Dissent: (1) under-deterrence b/c it reduces manuf. liability; (2) CJ defective products
hurt good and bad users alike, they don’t discriminate, and neither should the ct.
o deLisle Notes: Assumption of risk still stands in products liability (Flopper), but it tends to
be construed very narrowly (Messick infra).

“P Misuse” Defense Rejected where Harm Foreseeable.
o LeBouf v. Goodyear Tire and Rubber Co. (5th Cir. 1980, 761)
 Facts: Overpowered car equipped with normal speed tires. Buried in owners manual
was a warning to use high-speed tires for high speed driving. Drunk defendant was
killed when tires separated at 100-105mph.
 H: D shall be liable for injuries to P even where P misused D’s product if D may
have reasonably foreseen P’s misuse, and did not take steps to provide adequate
warning. Rationale: Alcohol did not contribute to the accident. Contrib. negl. and
assumption of risk defense is rejected here. Ford marketed the car to be driven in
excess of 85mph.
Products Liability Theory Handout

Alan SCHWARTZ, Proposals for Products Liability Reform: A Theoretical Synthesis
o Consumer Sovereignty Norm

Actual Consent
 well-informed, uncoerced consumers actually consent to particular contract
clauses; not controversial, universally supported
 Hypothetical Consent
 afflicted consumers do not actually consent
 in these cases consumer sovereignty says we should only enforce contract
clauses to which well-informed, uncoerced consumers would have assented
o Two possible meta rules for products liability law:
 Maxmin


complete compensation in all situations, even the very worst one
would impose too costly of requirements, most likely almost everyone would
reject this
 Utility maximization
 social safety nets provide substantial mitigation of bad outcomes with less
cost than the odious requirements of maxmin
o Corrective Justice appears to be consistent with the consumer sovereignty principles

CALABRESI& Jon Hirschoff, Toward a Test for Strict Liability in Tort
o Adequacy in Warning in s/l product defect cases is really an analysis of which party is the
cheaper cost avoider. A warning does not necessarily preclude a user from recovery if the
manufacturer was in a better position to avoid costs by doing further research or by
implementing risk reducing technology. Warnings are only adequate as an affirmative
defense where the user was in fact the cheapest cost avoider.
 Example 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.
o Thus effective warnings are much like assumption of risks. “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. “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 pit in terms of whether the
victim had done something which, though not nec negl., had especially exposed him to the
risk.” [219] For ex. a zoologist may enter a tiger cage to study large cats, and do so carefully
but suffer injuries. He has assumed the risk.
o In products s/l the cts. prefer to ana 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.
cases of a third party victim, that victim must prove that the party she has decided to sue, either
user of manufacturer is in fact the cheapest cost avoider, in order to prevail.
IX. Damages
A. Compensatory Damages: Purposes and Recoverable
Elements
CB 783-791, 774-783, 793-799

Future Value of $1 = $1 x (1 + i)n
o where i= the uniform rate of interest applicable during the period and
n= the number of years until payment is made
Case Law
 Inflation and Discount Rates Factored into Lossed Earnings Damages.
o O’Shea v. Riverway Towing Co. (7th Cir. 1983, 783)
 Facts: P slipped and hurt her leg and is unable to perform her
job as ship’s cook.
 H: When examining lossed earnings, P’s damages shall 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).
 Limitations on P’s Duty to Mitigate Damages.
o Note: π generally has a duty to mitigate damages. Moreover, refusal
to undergo pain relieving surgery is a factor in considering nonmitigation.
o McGinley v. United States (789)
 Facts: P injured and refused to submit to a third surgery.
 H: π does not have a duty to mitigate where the surgery is a
very serious one. The duty extends only so far as “reasonable”
treatment where reasonableness is to be determined by the jury.
 Non-Pecuniary Damages Require Awareness of Suffering.
o McDougald v. Garber (N.Y. 1989, 774)
 Facts: During surgery patient was deprived of O2 and suffered
brain damage.
 H: Some degree of cognitive awareness is a prerequisite of a
P’s recovery of damages for the loss of the enjoyment of life,
and such damages should be treated as part of the P’s recovery
of damages for pain and suffering.