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I. When should accidental injuries result in liability?
A. There are tort claims for some, but not all, unintentional injuries
1. Must be negligence
2. Hammontree v. Jenner – Epileptic Driver – Where an epileptic who was
appropriately managing his disability suffered an unexpected seizure while
driving and drove through the window of a bicycle store, the driver was not
liable for injuries and property damage because he was not negligent and strict
liability did not apply.
II. Liability for Negligence, Generally
A. Generally
1. A cause of action for negligence requires the plaintiff to show that:
a) Defendant had a duty of care to the plaintiff
b) Defendant breached that duty of care
c) The breach was the legal cause of
d) Plaintiff’s injury
2. Negligent acts are defined as those that fall below an applicable standard of
care (duty).
3. If a court upholds a cause of action for negligence, compensatory and punitive
damages are available. Compensatory damages include:
a) Medical expenses
b) Lost wages
c) Loss of consortium
d) Pain and suffering
B. Vicarious Liability
1. Respondeat superior – Employers are vicariously liable for torts committed by
their employees while the employee is acting within the scope of their duty.
a) Factors to consider:
(1) Employee’s conduct must be of the general kind the employee
is hired to perform, or “the employee must be about the
employer’s business and the duties assigned by the employer,
as opposed to being wholly involved in a personal endeavor”
(2) Employee’s conduct must occur substantially within the hours
and ordinary spatial boundaries of the employment
(3) Employee’s conduct must be motivated, at least in part, by the
purpose of serving the employer’s general interests
b) Christenson v. Swenson – Guard gets soup – Where a guard left the
premises briefly to pick up lunch from a nearby shop as allowed by the
employer and was involved in an accident, the guard was sufficiently
acting within the scope of her duty and the employer could be held
liable for the accident under a theory of respondeat superior.
c) Ybarra v. Spangard – Court notes that a surgeon may be responsible
for the negligence of his nurses during surgery under a theory of
respondeat superior (even where the surgeon and nurses are all
employees of a hospital)
2. Principal-Agent Liability – As a general rule, a principal may be held liable
for the acts of its agent that are within the course and scope of the agency.
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a) Factors to consider:
(1) Express authority – Was the agent expressly authorized to
undertake the action on behalf of the principal?
(2) Apparent authority (Roessler v. Novak) – Authority which a
principal knowingly tolerates or permits, or which the principal
by its actions or words holds the agent out as possessing.
Apparent agency exists if all three of the following elements
are present:
(a) A representation by the purported principal
(b) A reliance on that representation by a third party
(c) A change in position by the third party in reliance on
the representation
(3) Inherent authority – Where an agent appears to act with the
authority of the principal based upon title or position and the
usual authority that comes with it
b) Roessler v. Novak – Contractor radiologist misread scans – Where a
patient was seriously injured because a contracting radiologist misread
diagnostic scans, the hospital could be held liable for the injury under
an agency theory of liability.
3. Parents – Parents are not liable for the torts of their children but may be liable
for negligent supervision.
III. Duty
A. Is there a duty?
1. Special Relationships
a) Joint Social Venture
(1) Farwell v. Keaton – Chasing girls (140) -- Defendant friend,
upon taking control of his incapacitated buddy, assumed a duty
to get help for the buddy. When the defendant did not get help
in a timely manner and abandoned the buddy in the backseat of
a car in his grandparents’ driveway, resulting in coma and then
death for the buddy, the defendant is liable for the result.
b) Custodial
(1) Persons who have custody of another person under
circumstances in which that other person is deprived of normal
opportunities of self-protection
c) Doctor-Patient
(1) Informed Consent
(a) The doctrine of informed consent requires a physician
to obtain a patient’s consent for medical treatment
(b) To obtain a patient’s informed consent to one of several
alternative courses of treatment, the physician should
explain medically reasonable invasive and noninvasive
alternatives, including the risks and likely outcomes of
those alternatives, even when the chosen course is
noninvasive
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d)
e)
f)
g)
(c) Failure to obtain any consent for medical treatment,
except in cases of emergencies, can lead to a cause of
action for battery (an intentional tort).
(d) It’s not the patient’s duty to ask about the risks
involved. It’s the doctor’s duty to tell her.
(e) Matthies v. Mastromonaco – Non-surgical option (123)
-- Where a defendant doctor did not explain all the
available treatment options to the plaintiff because the
doctor believed the surgical options were potentially
dangerous to the plaintiff, and instead suggested only
the non-surgical option which left the plaintiff unable to
walk, the defendant was liable for injuries caused to
plaintiff under the doctrine of informed consent.
Doctor-Third Party
(1) Where the psychologist/psychiatrist has reason to believe that a
patient will harm a third party, the psychologist/psychiatrist has
a duty to warn the third party. Here, the therapist has special
knowledge of the danger and has the potential ability to affect
the actions of the patient. The third party is a beneficiary of the
special relationship between the therapist and the patient
(2) Tarasoff v. Regents of the University of California – Psych
must warn (157) -- Where a therapist and hospital attempted to
have a patient detained for threats made regarding a third party
but did not warn the third party of the threats, the defendants
could be held liable for the subsequent death of the third party
at the hands of the patient.
Common Carrier
Landlord/Tenant
Landowner/Entrant
(1) The duty for landowners differs in many jurisdictions
depending on the status of the land entrant. There are three
types of entrants:
(a) Trespassers – No invitation to enter and no permission
to enter
(i) No duty to trespassers
(ii) Exception: Child trespassers – Landowners
may be held liable for physical harm to a
trespassing child caused by an artificial
condition upon the land if:
(a) The place where the condition exists is
one upon which the possessor knows or
has reason to know that children are
likely to trespass
(b) The condition is one of which the
possessor knows or has reason to know
and which he realizes or should realize
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will involve an unreasonable risk of
death or serious bodily harm to such
children,
(c) The children because of their youth do
not discover the condition or realize the
risk involved in intermeddling with it or
in coming within the area made
dangerous by it, and
(d) The utility to the possessor of
maintaining the condition and the burden
of eliminating the danger are slight as
compared with the risk to children
involved and
(e) The possessor fails to exercise
reasonable care to eliminate the danger
or otherwise to protect the children
(b) Licensees – Invitation to enter but no benefit to the
landowner (i.e. social guest)
(i) Reasonable care to protect from dangers of
which the landowner is aware
(ii) Duty to repair dangers of which the landowner
is aware rather than to fix them
(iii)Some courts or states recognize social guests as
a separate category
(iv) Carter v. Kinney – Bible study fall (195) -Where the plaintiff entered the defendant’s
property for a bible study and slipped on ice that
had formed overnight that the defendant was not
aware of, defendant was not liable for the
plaintiff’s injuries. The plaintiff was and
licensee, not an invitee, and the defendant only
had a duty to warn the plaintiff of dangers of
which he was aware.
(c) Invitees – Invitation to enter and some benefit to the
landowner (i.e. potential customer, ticket holder)
(i) Duty to protect with reasonable care
(ii) Duty to perform a reasonable inspection
(iii)Duty to repair dangers that might be likely to
injure someone on the property
(d) Heins v. Webster County – Santa Claus falls (201) -Where a man visited a hospital to see his daughter who
was employed by the hospital in addition to
coordinating plans for playing Santa Claus and where
he slipped and fell in the doorway due to ice and snow,
injuring his hip, the court held that the licensee-invitee
distinction should be abandoned and instead owners
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and occupiers have the duty to exercise reasonable care
in the maintenance of their premises for the protection
of lawful visitors; the case should go to trial. Factors to
consider:
(i) The foreseeability or possibility of harm
(ii) The purpose for which the entrant entered the
premises
(iii)The time, manner, and circumstances under
which the entrant entered the premises
(iv) The use to which the premises are put or are
expected to be put
(v) The reasonableness of the inspection, repair, or
warning
(vi) The opportunity and ease of repair or correction
or giving of the warning
(vii) The burden on the land occupier and/or
community in terms of inconvenience or cost in
providing adequate protection
h) Social Hosts
(1) They have a duty to warn about known dangers only, but have
no duty to inspect and find dangers.
(a) Harper v. Herman – Boat diver (134) -- Defendant boat
owner was not liable for injuries suffered by an adult
passenger who dove head first without notice into
shallow water.
(b) Reynolds v. Hicks – Drunk nephew at wedding (183) -Defendant bride and groom, as social hosts, were not
held liable for the injuries suffered by the victims of a
car accident caused by the defendants’ underage
nephew who became intoxicated at the wedding
reception. The court held that social hosts have a
different level of liability than do commercial vendors,
in part because the commercial vendors are in a better
position to monitor the situation.
i) Privity
2. Undertaking
a) Once a person takes control of a situation, he assumes a duty of
reasonable care. This is the “undertaking” theory.
(1) Farwell v. Keaton – Chasing girls (140) -- Defendant friend,
upon taking control of his incapacitated buddy, assumed a duty
to get help for the buddy. When the defendant did not get help
in a timely manner and abandoned the buddy in the backseat of
a car in his grandparents’ driveway, resulting in coma and then
death for the buddy, the defendant is liable for the result.
3. Foreseeable Victims
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a) Where the plaintiff’s conduct results in foreseeable harm, plaintiff may
be held liable. This is because, as a general rule, all persons have a
duty to use ordinary care to prevent others from being injured as a
result of their conduct
b) Adams v. Bullock – Swing a long wire – Where a trolley company, in
the lawful exercise of its business, runs a live wire underneath a bridge
protected by an 18 inch parapet, it was not liable when a child swung a
long wire and connected with the live wire, causing electrocution,
because ordinary caution did not involve forethought of this peril.
c) Randi W. v. Muroc Joint Unified School District – Letters of rec (148)
Where four school district defendants wrote positive letters of
recommendation misrepresenting the character and qualifications of a
former employee when the employee resigned at each district under
allegations of sexual misconduct with students and unqualifiedly
recommending the teacher for any position, the school districts could
be held liable for the former employee’s subsequent sexual misconduct
against a student at a fifth school district.
4. Affirmative Duty to Act
a) There is generally no affirmative obligation to act unless there is some
sort of special relationship between the parties.
b) However, one may be liable for failing to help in a non-negligent
injury (i.e. train hits passenger while departing from a station and
doesn’t stop but continues to run over passenger repeatedly as train
cars pass)
c) Superior knowledge of a dangerous condition by itself, in the absence
of a duty to provide protection, is insufficient to establish liability in
negligence. Harper v. Herman.
d) One may be liable for non-negligent creation of risk (i.e. driver hits a
utility pole but not as a result of his own negligence, then fails to stop
to warn others of the fallen pole or fix the problem himself) – this
would invoke an affirmative duty.
5. Intervening Criminal Acts
a) In cases where the plaintiff is a victim of a crime committed by a third
party on the defendant’s land, liability for injury generally hinges on
the foreseeability of the injury. There are four main tests used to
determine whether the harm was foreseeable:
(1) Specific harm rule – (outdated) A landowner does not owe a
duty to protect patrons from the violent acts of third parties
unless he is aware of specific, imminent harm about to befall
them
(a) Courts have generally agreed that this rule is too
restrictive in limited the duty of protection that business
owners owe their invitees
(2) Prior similar incidents test – Foreseeability is established by
evidence of previous crimes on or near the premises
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(3) Totality of the circumstances test – Number, nature and
location of prior similar incidents, but the lack of prior similar
incidents will not preclude a claim where the act was
foreseeable
(4) Balancing test – Balances foreseeability of the harm against the
burden of imposing a duty to protect against the criminal act
(a) Posecai v. Wal-Mart – Wal-Mart robbery – Where a
customer of Wal-Mart is robbed in the parking lot, and
the neighboring area has a high crime rate, though the
parking lot itself does not have a history of crime, the
court used a balancing test of weighing the
foreseeability of harm against the burden of imposing a
duty to protect against the criminal acts of third persons
to decide that Wal-Mart did not have a duty to protect
the customer against criminal acts of third persons.
6. Miscellaneous
a) Brown v. Kendall – Dog whacking – Where a man was using a stick to
separate two fighting dogs and accidentally hit the other dog’s owner,
causing severe injury to his eye, the court found the man was not liable
because the man committed a lawful act with due care. Plaintiff has to
prove that defendant didn’t use due care.
B. What is the duty?
1. Duty generally
a) Baltimore & Ohio Railroad Co. v. Goodman -- – Get out and look (60)
-- Where a man failed to slow at a railroad crossing where the view of
the tracks were partially blocked by a building, obscuring the
oncoming train, and was hit and killed, the court held that the driver
should have known to slow down or stop to make sure there was no
oncoming train if he couldn’t see the tracks and thus could not recover
for his injuries.
b) Pokora v. Wabash Railway Co. (62) – Don’t get out and look -- Where
a man had absolutely no way of spotting an oncoming train unless he
approached the track so nearly that he could not escape the train, the
court held that the driver was not required to get out of the truck to
look as suggested by Goodman. Instead, the court applied a
reasonable person standard and held that the railroad could be liable
for the injuries should a jury decide so.
2. Reasonable Person Standard
a) The usual standard of care is that of a reasonable person of ordinary
prudence under the circumstances. This is the “reasonable person
standard.”
b) A reasonable person strives to avoid foreseeable injuries.
c) A reasonable person takes measures to prevent accidents where the
preventative measures cost less than the probability of injury
multiplied by the gravity of the injury (B<PL). See United States v.
Carroll Towing.
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3. Lower Standards
a) Reasonable child standard
(1) Children engaged in non-adult activities are compared to a
standard of children of like age, intelligence, mental capacity,
training and education
(a) Children that are engaged in adult activities are held to
a reasonable person standard
b) Physically handicapped
(1) People with physical disabilities are held to a standard of
reasonable persons with similar physical disabilities.
(a) Persons with mental disabilities are held to the
reasonable person standard and get no lowered standard
based on their lower capacity for understanding.
4. Higher Standards
a) Professionals
(1) Professionals are held to the national standards of other
practicing professionals in their specialty
(a) Sheeley v. Memorial Hospital – Specialized experts –
Expert witnhess was not required to be from the same
locality as the defendant because a national standard of
care applies to medical professionals, not a local
standard of care. Also, the expert could be a specialist
and testify about the acts of a general practitioner that
fell within the specialist’s field
b) Common Carriers
(1) Andrews v. United Airlines, Inc. – Overhead bins (66) -- Where
an airplane passenger was injured by luggage falling from an
overhead compartment and it was a fairly common occurrence
on airplanes, common carrier could be held liable for violating
a duty of utmost care and case should be submitted to a jury.
(2) But see Bethel v. New York City Transit Authority –
Wheelchair seat case – Where a disabled man was hurt on a
negligently maintained wheelchair accessible seat on a bus, the
court held that the defendant bus owner was not liable because
the appropriate standard of care was not “utmost” care as
previously required of common carriers, but “ordinary care.”
c) People with Special Skills
(1) Expected to use those skills
5. Difficult Situations – Emergencies
C. B<PL
1. United States v. Carroll Towing Co.—Absent Bargee – Where a barge
carrying cargo owned by the United States broke free in a busy harbor after
being negligently secured by Carroll Towing’s tugboat employees, causing
significant damages and loss of cargo, the plaintiff barge owner could be held
liable for the extended absence of its bargee, whose presence would likely
have prevented the damages.
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a) This case contains Judge Learned Hand’s famous equation, B<PL,
which finds that there is liability where the burden of taking adequate
precautions is less than the product of the probability of injury
multipled by the gravity of the resulting injury.
b) The barge’s owner could be held liable here because the cost of
keeping a bargee on board during the busy hours of the harbor was
much less than the probability of the injury (likely) multiplied by the
extent of the injury (high).
IV. Breach of Duty
A. Proving Breach
1. Constructive Notice and Failure to Act
a) Negri v. Stop and Shop, Inc. – Baby food jars (87) – Where a plaintiff
fell backwards on broken baby food jars and was injury, no witness
heard the jars break in the 20 minutes prior to the accident, and the
aisle had not been cleaned or inspected for two hours, this
circumstantial evidence was not insufficient as a matter of law to
permit the jury to draw the inference that the defendant should have
known about and remedied the dangerous condition.
(1) The food had apparently been there long enough that the store
could have constructive notice of it.
b) Gordon v. American Museum of Natural History – Wax paper on
museum steps (88) -- Where a plaintiff slipped and fell on a piece of
wax paper on steps near a museum concession stand but could provide
no evidence that the museum knew or should have known of the
presence of the dangerous condition, the court held the museum was
not negligent.
2. Violation of Statute’s Purpose May Be Negligence
a) If a statute is promulgated for the protection of a party and the other
party violates the statute, violation of the statute is negligence per se.
(1) Martin v. Herzog—Buggy in the dark – Where plaintiff’s
buggy had no lights on while driving in the dark and is hit by
defendant’s oncoming vehicle that drifts left of center on a
curve but has no warning of the other vehicle because of the
lack of lights, the plaintiff was negligent per se on account of
violating the statute, and the jury may not find otherwise.
b) If a statute is promulgated for the protection of a party and that same
party violates the statute in order to lessen the danger under the
circumstances, violation of the statute is not proof of negligence.
(1) Tedla v. Ellman – Walking with traffic – Where pedestrians
were walking on the wrong side of the road against the statute
to avoid the busier side of the road and were subsequently hit,
violation of the statute could not be used as proof of negligence
because there was a good reason for such violation.
(a) The court held violation of the statute was not
negligence per se when violating the statute would
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further the purpose of the statute more than obeying the
statute.
c) If a statute is promulgated for the protection of a party and the
violation of the statute results in the injury of a third party, violation of
the statute is not proof of negligence.
(1) Reynolds v. Hicks – Defendant bride and groom not liable for
providing alcohol at wedding reception to underage nephew,
who subsequently drove a car and injured plaintiffs. The
statute outlawing giving alcohol to minors had several
exceptions allowing minors to obtain alcohol (i.e. from parents,
for medicinal or religious reasons) that undercut the argument
that the statute was enacted to benefit third parties.
d) Key: If the violator of the statute acts consistently with the policy
behind the statute, violation of the statute is not per se negligence.
(1) So in Martin v. Herzog, the policy behind the statute was to
protect all the drivers on the road. Violating the statute was
against the policy because there wasn’t a good reason to drive
without headlights at night.
(2) In Tedla v. Ellman, however, the policy behind the statute was
to protect the pedestrian. In that case, the heavy traffic on the
“correct” side of the road would have been more hazardous.
The plaintiffs acted consistently with the policy behind the
statute when they moved to the “wrong,” but nearly empty,
side of the road.
e) Even if the defendant does violate a statute and the plaintiff is harmed
as a result, there may not be a private right of action. See Defenses,
below.
3. Res Ipsa Loquitur
a) This rule permits, but does not compel, an inference of negligence
under certain circumstances.
b) The plaintiff must establish:
(1) That the instrumentality causing the injury was under the
exclusive control of the defendant;
(a) But note that in Ybarra v. Spangard, the unconscious
patient was not required to show what the exact
instrumentality was that caused his injury
(2) That the accident is one that would not, in the ordinary course
of events, have occurred without negligence on the part of the
defendant; and
(3) That the accident cannot be due to any voluntary action or
contribution on the part of the plaintiff
c) Essentially, but for the failure of reasonable care by the party in
control of the injury-producing object, the accident would not have
occurred
d) The conclusion of negligence in a res ipsa loquitur case generally
relies on a matter of general knowledge or the basis of past
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experiences common to the community. However, expert witnesses
can be used in res ipsa loquitur cases involving medical malpractice.
(1) States v. Lourdes Hospital – Experts for res ipsa, ovarian cyst
(119) -- Where a plaintiff undergoes surgery for removal of an
ovarian cyst and awakes with an arm injury, the plaintiff may
use expert witnesses to “bridge the gap” between the jury’s
common knowledge and experience and the specialized
knowledge of physicians to determine whether an injury would
have occurred without negligence under a theory of res ipsa
loquitur.
e) Generally in res ipsa loquitur cases, direct evidence of negligence is
not available, but to apply the doctrine, it is not required that no direct
evidence be available.
f) Byrne v. Boadle—Flour barrel – Where the defendant was a dealer in
flour and the plaintiff was hit by a barrel of flour falling from
defendant’s shop, the injury was prima facie evidence of negligence
under the doctrine of res ipsa loquitur and it was the defendant’s
burden to prove he was not negligent.
g) McDougald v. Perry – Spare tire (95) -- Where a plaintiff was injured
by a spare tire that fell from beneath the defendant’s truck onto
plaintiff’s car, res ipsa loquitur applies.
h) Ybarra v. Spangard – Appendectomy becomes paralyzed arm (102) -Where a plaintiff undergoes an appendectomy and awakes with a
paralyzed arm, res ipsa loquitur applies and the plaintiff may recover
even though he cannot show exactly which defendant caused the
injury. In this case, the plaintiff was not required to prove what
instrumentality caused the injury. It was enough to show that the
plaintiff was unconscious and whatever happened must have been
caused by the medical staff caring for him.
4. Professional Standards
5. Customs and Social Norms
a) Trimarco v. Klein – Shower door customs (69) -- Where a tenant is cut
badly on a thin glass shower door that most apartment managers would
have replaced years ago with a thick and tempered glass door because
of the known dangers associated with such thin doors and where such
replacements were the custom, apartment managers could be held
liable for negligence.
(1) Must weigh the reasonableness of the custom with the
reasonableness of the defendant.
6. Negligent Entrustment
V. Causation
A. Cause in Fact
1. “But for” Test
a) “But for” the defendant’s negligence, the injury would not have
occurred
2. Substantial Factor (more than one “but for” cause)
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a) Whether the defendant’s negligence was a substantial factor in the
occurrence of the injury (generally used where there are multiple
sufficient causes of the injury)
b) But for causation is required before a substantial factor exists. The
substantial factor test was developed to resolve the problem the ‘but
for’ test presents when two independent forces are each capable of
causing the harm. The Third Restatement of Torts rejects the
substantial factor approach because of confusion and misuse in the
factual cause context to conclude that one party’s negligence
outweighs another’s thereby exonerating the latter from liability, thus
imposing a more rigorous standard on the plaintiff than the but for
standard
3. It is the plaintiff’s burden to prove cause.
a) If two or more possible causes exist, for only one of which a defendant
may be liable, and a party injured establishes facts from which it can
be said with reasonable certainty that the direct cause of the injury was
the one for which the defendant was liable, the plaintiff isn’t penalized
for not showing that it was certain that the defendant caused the injury.
Stubbs v. City of Rochester.
(1) Stubbs got typhoid when the city’s water supply mixed with a
contaminated source for several months. Although Stubbs
couldn’t prove with certainty that the water caused his illness,
it could certainly be inferred from the facts as presented. Case
was remanded for new trial.
(2) Zuchowicz v. United States – Overdose causes PPH – Where a
woman is mistakenly prescribed a double-dose of danocrine for
several months, subsequently develops Primary Pulmonary
Hypertension, and dies while waiting for a lung transplant, the
court found the plaintiff’s expert testimony persuasive that the
double-dose was a substantial factor in plaintiff’s illness. The
court established four factors to determine whether the
reasoning or methodology underlying the expert testimony was
scientifically valid and could be applied to the facts of the case:
(a) Whether the theory can (and has been) tested by the
scientific method
(b) Whether the scientific theory or technique has been
subjected to peer review and publication
(c) The known or potential rate of error
(d) Whether the theory is generally accepted
4. Lost chance
a) Plaintiff alleges that something the doctor didn’t do deprived them of a
chance for a better medical outcome than what they got
b) Alberts v. Schultz – Lost chance leg – Where a man claimed that had
his doctor acted more quickly and appropriately, he might not have
had to get his leg amputated, the court acknowledged this was a valid
cause of action but found that the plaintiff had not proved that he was a
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good candidate for the alternative treatment he claimed would have
saved the leg
(1) A lost chance claim must prove duty, breach, loss and
causation and differs from malpractice only in the nature of the
harm for which relief is sought
(2) The causal connection between the negligence and the resultant
injury must be medically probable
(3) Proof of a “reasonable degree of medical certainty” that there
was a loss of chance due to negligence is almost always
established though expert testimony
(4) The court must consider the underlying injury caused by the
presenting problem and the exacerbation of the presenting
problem which evinces the chance that has been lost
(5) Calculation of damages is apportioned by valuing the chance of
a better result as a percentage of the value of the entire life or
limb
5. Increased risk of future harm
6. Multiple potential tortfeasors (joint and several liability)
a) Summers v. Tice – Both men shot -- Where a man was hunting and two
other hunters negligently fired shots in the man’s direction resulting in
injury to the man’s eyes face, the court held that both hunters can be
held joint and severally liable despite the fact that the shot causing the
injury was from one or the other and they were not acting in concert
and the plaintiff could offer no evidence as to which defendant’s shot
caused the injury. The court found that to hold otherwise would
exonerate both from liability although each was negligent and the
defendants are in a better position to offer evidence to determine
which one caused the injury (similar to Ybarra v. Spangard).
b) Hymowitz v. Eli Lilly & Co. – DES daughters -- When it is later
discover that the use of a drug leads patients’ daughters to develop
cancer but it is impossible to identify which defendant drug companies
supplied the drug to the patients, the court held that plaintiffs could
apportion liability under a market share theory and recover in a
products liability case against all of the companies manufacturing and
marketing the drug
B. Proximate Cause
1. Directness
a) In re Arbitration between Polemis & Furness, Withy & Co. – Slipping
board causes explosion -- Where stevedores employed by defendants
slung benzene across a wooden board, which fell, causing the ship to
catch on fire, the court found that as defendants were negligent in
transferring benzene, they are liable for all directly caused injuries,
even those that are not foreseeable
2. Foreseeability
a) General Cases
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(1) Overseas Tankship v. Morts Dock and Engineering Co.
(Wagon Mound case) – Welding boats and oil spill -- Where
defendant’s ship spilled oil near plaintiff’s wharf and where 2
days later that oil caused a rag to catch on fire, leading to
damages to wharf and equipment, the court overruled Polemis
and held that defendant should not be liable for all unforeseen
consequences, instead only those harms that a reasonable
person would foresee
(2) Doe v. Manheimer – Bushes don’t rape people -- Where
plaintiff was abducted and taken behind overgrown vegetation
on defendant’s property where she was sexually assaulted in
daylight, the court found that defendant’s actions were not a
proximate cause (substantial factor) of the assault, as he would
not have reasonably foreseen that his overgrown vegetation
would cause a violent criminal assault
(3) Palsgraf v. Long Island Railroad Company – Fireworks
package -- Where a train guard assisted a man boarding a train
and negligently pushed a concealed package of fireworks onto
the track where they exploded injuring plaintiff, who was
standing on the platform, the court found that the train owed no
duty to plaintiff because as she was an unexpected victim and
suffered an unexpected injury, there was no foreseeable harm
b) Eggshell Plaintiff
(1) Benn v. Thomas – Eggshell has heart attack after accident -Where defendant negligently caused a car accident and
plaintiff, who had a history of coronary disease, suffered
injuries and died of a heart attack 6 days later, the court held
that the jury can be instructed on “eggshell plaintiff” rule and
defendant may be liable for all injuries he proximately causes,
regardless of foreseeability
VI. Injury
A. Physical Impact
1. Metro-North Commuter Railroad Company v. Buckley – He might get
asbestosis – Where a railroad worker was exposed to asbestos for years in the
course of his employment but experienced no adverse symptoms, the court
dismissed his claim for negligently inflicted emotional distress under the
Federal Employers’ Liability Act because case law interpreted FELA to
require a physical impact rather than mere exposure and because common law
precedent denies recovery to those who are disease and symptom free
B. Emotional
1. Where negligence causes fright from a reasonable fear of immediate personal
injury, which fright is adequately demonstrated to have resulted in substantial
bodily injury or sickness, the injured person may recover if such bodily injury
or sickness would be regarded as proper elements of damage had they
occurred as a consequence of direct physical injury rather than fright.
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a) Falzone v. Busch – Wife almost gets hit -- Where a wife, while sitting
in a legally parked car, watched her husband get hit by a car driven by
the defendant, which then stopped just short of hitting the wife, and
where the wife was not physically injured, the court allowed the wife
to recover only for emotional injuries. (This overturned previous case
law that said you couldn’t recover for emotional injuries only.)
2. A plaintiff without physical injuries may recover for negligent infliction of
emotional distress where the situation was likely to cause emotional distress
a) Gammon v. Osteopathic Hospital of Maine, Inc. – Leg in a Bag –
Where a hospital gave a man a bag purported to contain his dead
father’s personal effects, but instead it contained a severed leg from
another man, the court allowed the claim of negligent infliction of
emotional distress to proceed without evidence of physical impact,
objective manifestation, underlying tort, or special circumstances.
Grieving families are especially vulnerable and a jury could find the
defendant was negligent
3. Plaintiffs can recover in certain circumstances from witnessing the death or
injury of another, even when there is no potential of personal injury to the
plaintiff
a) Three factors to determine whether an emotional injury would be
compensable because “foreseeable” (from Dillon v. Legg):
(1) Whether plaintiff was located near the scene of the accident as
contrasted with one who was a distance away from it
(2) Whether the shock resulted from a direct emotional impact
upon plaintiff from the sensory and contemporaneous
observance of the accident, as contrasted with learning of the
accident from others after its occurrence
(3) Whether plaintiff and the victim were closely related, as
contrasted with an absence of any relationship or the presence
of only a distant relationship
b) Required factors to prove (from Portee v. Jaffee):
(1) The death or serious physical injury of another caused by
defendant’s negligence
(2) A marital or intimate familial relationship between plaintiff and
the injured person
(3) Observation of the death or injury at the scene of the accident
(4) Resulting severe emotional distress
c) Portee v. Jaffee – Elevator kid – Where a child got stuck between the
elevator door and wall in an apartment building and was dragged three
floors upwards, then later died while his mother watched the
emergency personnel attempt to free him, the court held that the
mother could sustain a claim of action for negligent infliction of
emotional distress against the landlord.
d) Johnson v. Jamaica Hospital – Kidnapped baby -- Where an infant
was abducted from a hospital during a bomb threat and was not
returned to her parents for 4 ½ months, the court found that the
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hospital was not liable to the parents for negligent infliction of
emotional distress because the hospital’s duty of care extended only to
the patient, not the patient’s family.
C. Economic
1. In these cases, there is no personal injury or property damage to the plaintiff.
2. Traditionally, the courts have not protected economic interests as extensively
as those involving physical security of a person and property – even when the
harm was inflicted intentionally, by fraud
3. Robinson Dry Dock & Repair Co. v. Flint – No recovery for economic harm
where boat repairs were not finished in time for a chartered tour
4. Accountants and Economic Harm: Nycal Corporation v. KPMG Peat
Marwick LLP – KPMG had a contract with Gulf and prepared an audit report
pursuant to such. In reliance on the audit report, Nycal bought lots of Gulf
stock. Gulf went bankrupt three years later and Nycal lost significant amounts
of money. Nycal sued KPMG claiming the report materially misrepresented
Gulf’s financial condition. The court found that KPMG could not be held
liable for economic injury to Nycal pursuant to Restatement § 552, which
states:
a) “One who, in the course of his business, profession or employment, or
in any other transaction in which he has a pecuniary interest, supplies
false information for the guidance of others in their business
transactions, is subject to liability for pecuniary loss caused to them by
their justifiable reliance upon the information, if he fails to exercise
reasonable care or competence in obtaining or communicating the
information.”
b) Liability is limited to:
(1) “loss suffered (a) by a person or one of a limited group of
persons for whose benefit and guidance he intends to supply
the information or knows that the recipient intends to supply it;
and (b) through reliance upon it in a transaction that he intends
the information to influence or knows that the recipient so
intends or in a substantially similar transaction.”
5. 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc. –
Defendant’s building collapsed due to negligence during a construction
project. The collapse closed many streets in Manhattan and forced the
plaintiff to close its doors for weeks. The court finds that a landowner who
engages in activities that may cause injury to persons on adjoining premises
surely owes those persons a duty to take reasonable precautions to avoid
injuring them. However, a landowner does not hold a duty towards an entire
neighborhood to protect them from purely economic harm.
D. Increased Risk
1. See Metro-North Commuter Railroad v. Buckley
E. Wrongful Birth/Life
1. Wrongful birth cases are typically brought by parents, whereas wrongful life
claims are typically brought by children
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VII.
2. There is typically a cause of action when a physician negligently performs a
sterilization action, but the measure of damages differs depending on your
jurisdiction:
a) Limited recovery (majority rule) – compensation for the original
procedure, the medical and hospital caosts of the pregnancy, the
expense of subsequent sterilization procedure, loss of wages, and
sometimes for emotional distress, loss of consortium, and child rearing
costs
(1) Emerson v. Magendantz – When a woman undergoes a tubal
ligation in order to prevent the birth of another child and the
procedure is done negligently and the woman gives birth to a
child with congenital birth defects the court opted for a
“limited recovery rule” and held that the woman may recover
for the medical expenses of the ineffective sterilization and
subsequent sterilization, the medical expenses for the unwanted
pregnancy including prenatal, delivery, and post natal care, loss
of wages, and loss of consortium to her spouse
b) Full Recovery rule (two jurisdictions) – Allows recovery of all
damages that are reasonably foreseeable and that would result from the
negligent performance of the sterilization procedure.
(1) Some courts adjust for benefits conferred by the pregnancy
Defenses
A. Government Immunity -- The government can only be sued to the extent that it
allows itself to be sued (generally, by legislation).
1. Police protection cases – Generally, there is no duty to provide police
protection unless there is a special relationship, which elements are (See Cuffy
v. City of New York):
a) An assumption by the municipality through promises or action, of an
affirmative duty to act on behalf of the party who was injured
b) Knowledge on the part of the municipality’s agents that inaction could
lead to harm
c) Some form of direct contact between the municipality’s agents and the
injured party
d) That party’s justifiable reliance on the municipality’s undertaking
e) Example police protection case: Riss v. City of New York – Stalker to
hurt me (230) -- Where a woman notified police she was being stalked
by an ex-boyfriend but police did nothing and woman was
subsequently injured by a thug hired by the stalker, the court refused to
hold the police liable in tort for protection of members of the public
because that would amount to the court determining how police
resources should be allocated without predictable limits.. (If the police
had said they would take action and failed, however, they might have
been liable.)
2. Liability for Employee Negligence
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a) Municipalities can be held liable for the negligence of their employees,
but a distinction is drawn between “discretionary” and “ministerial”
governmental acts
b) Discretionary acts – conduct involving the exercise of reasoned
judgment
(1) May not result in the municipality’s liability even when the
conduct is negligent
c) Ministerial acts – conduct requiring adherence to a governing rule,
with a compulsory result
(1) May subject the municipal employer to liability for negligence
(2) To make a claim for negligence, the plaintiff must still show
that the municipal employee had a duty of care towards the
plaintiff
(a) Must be more than a duty owed to society in general
(b) Is the governing rule for the benefit of the plaintiff?
(c) Is there a special relationship between the plaintiff and
employee? (Use Cuffy test, above)
(3) Example case: Lauer v. City of New York – A medical
examiner initially declared a child’s death as a homicide,
casting suspicion on the parents. After further examination, the
death was found to be a result of a ruptured brain aneurysm,
but the medical examiner didn’t correct the autopsy report or
death certificate and failed to notify law enforcement
authorities. Parents lost on a claim of negligent infliction of
emotional distress because there was no duty of care towards
the parents. The law governing the medical examiner’s job
required reports to the district attorney and was not meant to
protect suspects. Additionally, there was no special
relationship between the plaintiff and the medical examiner.
3. Traffic cases
a) Municipalities owe to the public the absolute duty of keeping ts streets
in a reasonable safe condition
b) In the field of traffic design engineering, the State is accorded a
qualified immunity from liability arising out of a highway planning
decision
c) A governmental body may be held liable when its study of a traffic
condition is plainly inadequate or there is no reasonable basis for its
traffic plan.
d) Example case: Friedman v. State of New York—Where a driver was
sideswiped causing her to swerve into oncoming traffic where she was
hit head-on, the court held that where a proper study had been done
determining no median was necessary, the municipality is not liable,
but where a study had been done recommending a median and more
than a reasonable time to implement the median had passed before the
accident, the municipality is liable.
(1) Nondelegable duty to keep streets safe
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(2) Duty exercised through
(a) Planning and decision; and
(b) Execution of planning and decision
(3) Qualified immunity for planning and decision (no immunity in
some cases)
(4) What cases? Where planning and decision process is plainly
inadequate or unreasonable municipality duty boud to keep
streets safe may be liable
4. Federal Torts Claim Act
a) District court has exclusive jurisdiction over tort claims against US
government for injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his office or
employment, under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of
the place where the act or omission occurred
b) No jury
c) No punitive damages or pre-judgment interest
d) 25% fee limit on attorney fees
e) Exemptions:
(1) Discretionary functions
(2) Postal issues
(3) Intentional torts
(4) Treasury and money regulation
(5) Combatant activities of the military
(6) Claims arising in a foreign country
f) Test to Determine Liability Under FTCA– From U.S. v. Gaubert, as
applied in Cope v. Scott:
(1) Step One: Does any federal statute, regulation, or policy
specifically prescribe a course of action for the employee to
follow?
(a) Yes. The course of action was prescribed and the
employee had no choice
(i) Did he follow the directive?
(a) No: Government is not immune
(b) Yes: Government is immune
(b) No. The employee had a choice . Discretionary acts
may have immunity.
(i) Are the challenged discretionary acts of the
employee of the sort Congress intended to
shield (i.e. susceptible to policy judgment and
exercise of political, social, or economic
judgment)?
(a) Yes: Immunity under FTCA
Discretionary Function exception, 2680a
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(b) No: No immunity. Government is liable
under the FTCA for negligence.
B. No private right of action
1. Even if the defendant does violate a statute and the plaintiff is harmed as a
result, there may not be a private right of action. (Usually the defendant here
would be a governmental entity) The test to determine whether there is a
private right of action is as follows (from Uhr v. East Greenbush Central
School District):
a) Whether the plaintiff is one of the class for whose particular benefit
the statute was enacted
b) Whether recognition of a private right of action would promote the
legislative purpose
c) Whether creation of such a right would be consistent with the
legislative scheme
d) Uhr v. East Greenbush Central School District – Scoliosis screening
(168) -- Where a school district failed to conduct required scoliosis
screenings as required by law and a child’s condition progressed to her
detriment, the parents had no private right of action because the statute
specifically provided the school district was not liable for failure to
conduct the screening, the law didn’t mention a private right of action,
and the law already included an enforcement mechanism.
C. Pre-emption
1. Geier v. American Honda Motor Company-- Where Congress has granted a
regulatory authority such as the Department of Transportation with the power
to impose standards, and where those standards include an array of choices
(such as airbags among other passive safety devices) but mandates none of
them, a state-law tort claim that rests merely on the car manufacturer’s
negligence in failing to have one of those options is pre-empted by the
agency’s regulation
D. Good Samaritan laws – Not every state has them, but if a passerby sees someone
injured and stops to help, they may be covered under the state’s Good Samaritan law.
E. Firefighter Rule
1. Levandoski v. Cone-- Where a person has disregarded a police officer’s orders
to stop, and where the officer has good reason to believe the person is carrying
illegal drugs, and where the person runs away and the officer falls and is hurt
while pursuing him, the person is liable for the officer’s injuries because it
was reasonably foreseeable the officer would be injured pursuing the person.
a) The court declined to expand the Firefighter’s Rule from premises
liability
F. Assumption of Risk
1. This doctrine is not an absolute bar to recovery in a comparative fault scheme.
2. Express Agreements
a) Where a plaintiff had signed a form releasing ski resort from liability
and where he then becomes injured after colliding with pole in control
maze, the court held that b/c of public interest, the ski resort cannot
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G.
H.
I.
J.
waive responsibility for their own negligence, as they have a duty of
care to keep their premises reasonably safe.
3. Implied Assumption of Risk
a) Murphy v. Steeplechase Amusement Co.-- Where an amusement park
ride’s name and appearance transparently presented its risks (falling
and flopping) to everyone, and where the risks constitute the point of
the ride, and where there had not been a history of injuries such that
the ride was so dangerous it shouldn’t continue to operate, a man’s
choice to step onto the ride constituted assumption risk, and he could
not recover for his injuries.
b) Davenport v. Cotton Hope Plantation Horizontal Property Regime -Where an apartment building had three usable stairways, and where
one of those stairways was hazardous due to lack of lighting, a
resident’s decision to climb the staircase despite his knowledge of the
danger will not bar him from recovery under comparative fault unless
his negligence exceeded the defendant’s.
Contributory Negligence
1. Exceptions: Last clear chance, discovered peril
2. Alabama and a couple of other states still retain
3. At common law, this was an absolute defense
Last Clear Chance
1. Counter defense to claims of contributory negligence
2. Last chance says that in a situation where the plaintiff had been contributorily
negligent, if the defendant had the last opportunity to avoid the consequences
of their own or the plaintiff’s negligence, the plaintiff may recover
Discovered Peril
1. Counter defense to claims of contributory negligence
2. Exception: Discovered peril – if the plaintiff and defendant are both negligent
but the negligent defendant observed the plaintiff in a position in helpless peril
but did nothing.
Comparative Fault
1. “Pure” – Dozen or so states, Fed. Statute
2. If P 20% at fault, D1 20%, D2 60%. Under a pure system, the plaintiff could
recover 80%
3. Greater or equal fault bar (thirty or so states)
4. Slight/gross (few states) – Court asks jury whether defendant’s negligent was
gross compared to the plaintiff’s slight negligent? Where there is not a gross
imbalance of fault towards defendant, plaintiff may not be able to recover. So
in the case above, P would be able to recover against D2 but not D1
5. Serves to reduce the liability of the defendant
a) What happens to joint and several liability with comparative fault?
(Some states say yes and other say no.)
b) What happens if you have an absent defendant that probably was
negligent but can’t find them? Do we ask the jury to assign a
percentage to the absent defendant?
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c) Understand that we have comparative fault, that there are four versions
of it, and that there are certain issues courts are working
6. Fritts v. McKinne -- Where defendant surgeon negligently performed a
tracheostomy on plaintiff, who had been admitted into the hospital 5 days
earlier after a drunk driving accident, the court held that the plaintiff’s
negligence that necessitated his medical treatment was irrelevant, not
contributory, to the subsequent medical negligence.
K. Privity
1. Where the negligence involves a contract, there may be no duty of care if it is
not specified in the contract.
2. Strauss v. Belle Realty Co. – Power outage (176) -- Where a plaintiff had a
contract with the utility company for electrical service in his apartment and
the defendant landlord had a contract with the same company for electrical
service in the common areas of the building, and where plaintiff was injured
in a common area of the building due to lack of lighting during a power
outage, the utility company was not liable to the plaintiff for his injuries
because the utility company’s duty to provide power to the common area was
through a contract with the landlord and the plaintiff was not a third-party
beneficiary to the contract because of “crushing liability” concerns. (Note that
in this case, the court might have found liability without privity, but the court
was trying to limit the liability caused by the black-out on “crushing liability”
public policy grounds.)
L. Parental Harm
1. Parental Immunity – This common law immunity is eroding in the courts.
Originally, it was disallowed because courts didn’t want to disturb tranquility,
undermine discipline, or create a temptation for collusion or fraud by allowing
children to sue parents. Now, however, parents are held to a reasonable parent
standard and can be liable when they fail to take reasonable caution to protect
their child from harm
a) When parents are sued for their child’s injuries, the homeowner’s
insurance may step in to pay the judgment
b) Broadbent v. Broadbent – Where a parent stepped away from her
toddler for a moment to answer the phone and the child fell into the
pool and suffered total incapacitation, the child could sue the parent
VIII. Strict Liability
A. Development of Strict Liability
1. Typically, there is strict liability for the following:
a) Wild animals – Restatement (Second) of Torts Section 507
b) Livestock – Restatement (Second) of Torts Section 504
c) Abnormally dangerous domestic animals (i.e. pit bulls)– Restatement
(Second) of Torts Section 509
(1) No strict liability from not abnormally dangerous domestic
animals – Restatement (Second) of Torts Section 518
d) Escaping hazards/peril – some judges emphasize the fact that the
defendant was holding on his land a hazard that escaped onto the
property of someone else.
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(1) Fletcher v. Rylands (506)/ Rylands v. Fletcher (511) – Where
a person has lawfully brought something onto his land, such as
water, that remains harmless while contained, as in a reservoir,
and the thing escapes and causes damage to a neighbor’s land,
that person is responsible for all the natural consequences of
the thing’s escape.
(a) Exceptions: “out of character” behavior, acts of God,
contributory negligence
e) Abnormally Dangerous Activities – Section 519 of the Restatement
(Second) of Torts
(1) Six factors to determine whether an activity is abnormally
dangerous – Section 520 of the Restatement (Second) of Torts,
cited in Indiana Harbor Belt Railroad Co. v. American
Cyanamid Co. (519):
(a) The risk (probability) of harm was great
(b) The harm that would ensue if the risk materialized
could be great
(c) Such accidents could not be prevented by the exercise
of due care
(d) Whether activity is a matter of common usage
(e) Appropriateness of the activity to the place in which it
took place
(f) Extent to which its value to the community is
outweighed by its dangerousness
(2) Explosives: Sullivan v. Dunham (514) – Where a landowner is
performing a legal but hazardous activity (like blasting a tree),
and where the direct consequences of that act trespass on
another’s property (like throw a piece of wood onto the
highway), and where a person is harmed by the piece of wood,
the landowner is liable for the harm despite there being no
negligence in the performance of the act
(a) The court distinguished direct and immediate effects
(the wood flying through the air and striking the
property) from indirect, consequential effects (property
damage due to the earth shaking as a result of a blast);
there is liability for the former, but not for the latter
(b) The court also distinguished intentional hazardous acts
from accidents; no liability for the consequences of
accidents (steam boiler explosion – Losee v. Buchanan
page 512) if there was no negligence that caused them
(3) Transporting Hazardous Materials:
(a) But see: Indiana Harbor Belt Railroad Co. v.
American Cyanamid Co. (519) -- Where a manufacturer
is shipping a hazardous chemical, and where there a
many other more hazardous chemicals, and where there
is no suggested replacement for said chemical, there is
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no basis for strict liability, and the general rules of
negligence will apply when there is a spill. (Essentially
this wasn’t hazardous enough for strict liability)
2. Assumption of risk survives as an affirmative defense to strict liability.
Section 503.
B. Theoretical Perspectives
1. Goals-Oriented Approach for Abnormally Dangerous Activities (Joseph King,
page 534)
a) Loss-Spreading (ex post)
(1) Distributive justice goal helps to spread otherwise devastating
losses among a broad array of people
(a) Privately: Insurance
(b) Publicly: Government-based loss-spreading
b) Loss Avoidance (or Risk Reduction) (ex ante)
(1) Imposes accident costs on those who engage in the activity as a
deterrence goal
c) Loss Allocation (or Internalization) (ex ante)
(1) Promotes better-informed choices
(2) Encourages investment in safety
(3) Discourages investment in more hazardous products
d) Administrative Efficiency
(1) Removes cost of proving fault
(2) Promotes recovery where evidence was destroyed or
unavailable
e) Fairness
(1) Person or company who benefits from ultimately injurious
activity should be liable (he who benefits should pay)
f) Protection of Individual Autonomy
IX. Product Liability
A. Introduction
1. MacPherson v. Buick Motor Co. (550) – Where it is reasonably certain that a
thing, if negligently manufactured, will put life or limb in danger, as a car
with a defective wooden wheel, the final-stage manufacturer of that product
will be liable for defects even where that manufacturer was not the
manufacturer of the wheel if there is evidence the defects could have been
discovered by reasonable inspection.
a) “If the nature of a thing is such that it is reasonably certain to place life
and limb in peril when negligently made, it is then a thing of danger.”
b) “If to the element of danger there is added knowledge that the thing
will be used by persons other than the purchaser, and used without
new tests, then, irrespective of contract, the manufacturer of this thing
of danger is under a duty to make it carefully.”
c) Privity was not necessary here because the consequences of negligence
were foreseeable.
2. Escola v. Coca Cola Bottling Co. of Fresno (556) -- Where a soda bottling
company produces and distributes a bottle of soda and it later explodes in a
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B.
C.
D.
E.
waitress’s hand, and the bottling company can show the bottle was not
defective when it came to the bottler, the bottling company is liable under res
ipsa loquitur, though it cannot be shown whether it was a defect in the glass or
too much pressure that caused the explosion, because the explosion does not
ordinarily happen where there was been an exercise of due care, and the
instrumentalities for manufacture and inspection were in exclusive control of
the bottler.
a) Concurrence by Traynor – Argues for strict liability instead of res ipsa
loquitur.
3. How to bring a claim:
a) Negligence – Seller breached duty of care
b) Warranty – Product unfit for sale (contracts + torts)
c) Products Liability – Strict liability for defective product
d) Can try all three or a combination of claims depending on the situation
Section 402A, Restatement (Second) – Page 566
1. One who sells any product in a defective condition unreasonably dangerous to
the user or consumer or to his property is subject to liability for physical harm
thereby caused to the ultimate user or consumer, or to his property, if
a) The seller is engaged in the business of selling such a product, and
b) It is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold.
2. The rule stated in Subsection (1) applies although
a) The seller has exercised all possible care in the preparation and sale of
his product, and
b) The user or consumer has not bought the product from or entered into
any contractual relation with the seller.
Section 2, Restatement (Third) – Page 567
1. A Product:
a) Contains a manufacturing defect when the product departs from its
intended design even though all possible care was exercised in the
preparation and marketing of the product;
b) Is defective in design when the foreseeable risks of harm posed by the
product could have been reduced or avoided by the adoption of a
reasonable alternative design by the seller or other distributor, or a
predecessor in the commercial chain of distribution, and the omission
of the alternative design renders the product not reasonably safe;
c) Is defective because of inadequate instructions or warnings when the
foreseeable risks of harm posed by the product could have been
reduced or avoided by the provision of reasonable instructions or
warnings by the seller or other distributor, or a predecessor in the
commercial chain of distribution, and the omission of the instructions
or warnings renders the product not reasonably safe.
Manufacturing Defects
1. Defects must be latent, not patent
2. Must eliminate other potential causes for the defect
Design Defects
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1. Two tests for design defects from Soule v. General Motors Corporation
(below)
a) Consumer expectation test – Product failed to perform as safely as an
ordinary consumer would expect when used in an intended or
reasonably foreseeable manner
(1) Note: Hard to use if people don’t know enough about the
product to have expectations
(2) Note: If something is obviously hazardous, people will expect
it to be hazardous so there would be no liability here under this
test.
b) Risk/Utility Test – Whether the design of a product is such that the
risk imposed by that design on the consumer/user are outweighed by
the benefits of the design. Five factors to consider:
(1) Gravity of posed danger
(2) Likelihood that danger would occur
(3) Feasibility of safer alternative
(4) Financial cost of improved design
(5) Adverse consequences to product and consumer of an
alternative design
c) Jurisdictions differ on which test/tests they use for this.
d) If your state has adopted the Third Restatement, the court only applies
the risk/utility test but can consider consumer expectations.
2. Risk/Benefit vs. Consumer Expectations: Soule v. General Motors
Corporation (571) – Where the subject matter of a products liability claim is
highly technical such that a juror cannot be expected to make assessments
based on the consumer expectations test, for example, when as a result of a car
crash the floorboards of a car have smashed the consumer’s ankles, it is error
to instruct the jury on the consumer expectations test, but if voluminous
evidence was presented on the risks and benefits of the design, the error will
not be reversed, as it is highly unlikely the jury did not actually make their
decision by weighing the risks and benefits.
3. Crashworthiness Doctrine: Camacho v. Honda Motor Co., Ltd. (584) -Where a man bought a motorcycle without crash bars, an optional device, the
man was in a motorcycle accident and suffered severe leg injuries and so sued
various parties in the chain of distribution claiming that the absence of crash
bars made the product defective under a strict liability analysis, the court
accepted the crashworthiness doctrine and rejected the contention that
motorcycle manufacturers should be exempt from liability because serious
injury to users of that product is foreseeable.
a) Crashworthiness doctrine: (adopted by a majority of courts, including
here) – a motor vehicle manufacturer may be liable to negligence or
strict liability for injuries sustained in a motor vehicle accident where a
manufacturing design defect, though not the cause of the accident,
caused or enhanced the injuries
b) Factors in determining whether a product is unreasonably dangerous:
(1) Usefulness and desirability of the product
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(2) Safety aspects of the product
(3) Availability of a substitute product
(4) Manufacturer’s ability to eliminate the unsafe character of the
product without impairing its usefulness
(5) User’s ability to avoid danger by exercise of care
(6) User’s anticipated awareness of the dangers inherent in the
product and their avoidability
(7) The feasibility on the part of the manufacturer of spreading the
loss by setting the price of the product or carrying insurance
4. Section 3 of the Products Liability Restatement -- Circumstantial Evidence
Supporting Inference of Product Defect
a) 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
(1) Was of a kind that ordinarily occurs as a result of product
defect and
(2) Was not in the particular case solely the result of causes other
than product defect existing at the time of sale or distribution
F. Safety Instructions and Warnings
1. Warnings Must Be Reasonable:
a) A manufacturer may be liable for placing a product on a market that
bears inadequate instructions and warnings or that is defective in
design. Hood v. Ryobi America, below.
b) A warning need only be one that is reasonable under the
circumstances. Hood v. Ryobi America, below.
c) A clear warning doesn’t need to include all the specific possibilities
that could happen if the warning is ignored.
d) Products liability law generally requires a manufacturer to warn
consumers of danger associated with the use of its product to the
extent manufacturer knew or should have known of the danger.
Edwards v. Basel Pharmaceuticals.
e) Factors for determining whether the warnings on prescription drugs
are adequate (Pittman v. Upjohn):
(1) Adequate indication of the scope of the danger
(2) Reasonable communication of the extent or seriousness of the
potential harm resulting from misuse
(3) The physical aspects of the warning must be adequate to alert a
reasonably prudent person to the danger
(4) A simple directive warning may be inadequate when it fails to
indicate the consequences that might result from a failure to
follow it
(5) The means to convey a warning must be adequate
f) Hood v. Ryobi America Corp. (596) – Where a man purchased a
Ryobi miter saw, fully assembled including two blade guards shielding
nearly the entire saw blade, a number of warnings appeared in the
operator’s manual and were affixed to the saw itself, that the man read,
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that the saw should only be used with the guards in place, the man
removed the guards, anyway, and had an accident where the saw
amputated his left thumb and partially lacerated his right leg, the court
held that Ryobi’s warnings were clear and unequivocal, providing
sufficient warning to apprise the ordinary consumer that it is unsafe to
operate a guardless saw.
2. Learned Intermediary Doctrine:
a) “Learned intermediary doctrine” – exception to manufacturer’s duty to
warn the ultimate consumer if the manufacturer adequately warns
prescribing physicians of the dangers of the drug. Two exceptions to
the learned intermediary doctrine: mass immunizations (may not have
a physician-patient relationship) and where FDA mandates that the
warning be given directly to the consumer – Edwards v. Basel
Pharmaceuticals.
b) See factors about warnings on drugs, above
c) Edwards v. Basel Pharmaceuticals (607) – Where a man died of a
nicotine-induced heart attack as a result of smoking cigarettes while
wearing two nicotine patches, and where his wife brought a wrongful
death suit against the manufacturer of the nicotine patches under the
theory that the warnings on the packet insert were inadequate to warn
her husband of the risk of smoking and overuse of the patches, the
court held that the nicotine patches fall under the FDA mandated
warning exception to the learned intermediary doctrine and so the
manufacturer can be liable when failure to warn the customer can
render the drug unreasonably dangerous (state products liability law
must be applied to determine the adequacy of the warnings).
3. Warning of Reasonably Foreseeable Risks: Vassallo v. Baxter Healthcare
Corporation (612) -- Where a plaintiff claimed that silicone breast implants
manufactured by the defendant company had been negligently designed,
accompanied by negligent product warnings, and that defendants breached the
implied warranty of merchantability, the court upheld the jury verdict on the
negligence and warranty counts but revised the state liability law concerning
the implied warranty of merchantability and rejected the state’s effective strict
liability for failure to warn and adopted the Third Restatement.
a) A manufacturer is liable for failure to warn or provide instructions
about risk which are reasonably foreseeable at the time of sale or could
have been discovered by way of reasonable testing prior to marketing
of the product;
b) Manufacturers will be held to the standard of knowledge of an expert
in the appropriate field and will remain subject to a continuing duty to
warn (at least purchasers)of risks discovered following the sale of the
product at issue.
G. Defenses to Products Liability
1. Assumption of risk
2. Product met expectations of consumer
3. Consumer misuse of product
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4. State-of-the-art defense – at the time the product was sold, the design was
about as good as it could possibly be
5. Open and obvious
6. Some states use comparative fault in products liability cases. Other states use
comparative liability. A small minority of states uses “equitable
apportionment” whereby responsibility is apportioned to all parties. They
mean exactly the same thing.
a) “Fault” is a problematic term because this is supposedly a no-fault area
of liability
7. General Motors Corporation v. Sanchez (620) -- Where a man drove to a
corral to feed animals and stopped to shut a gate and mis-shifted into what he
thought was the “park” gear but was actually a neutral position between park
and reverse and the truck slipped into reverse and pinned him between the
truck and the gate causing him to bleed to death and the jury found the man
50% responsible for the accident but the trial court disregarded this finding:
the Supreme Court of Texas held that the man’s negligence in failing to
perform any of the safety measures described in the owner’s manual went
beyond a failure to discover or guard against a product defect (which is not a
defense for strict liability) and accepted a comparative responsibility defense
and reduced the damages award by 50 percent because more is expected of a
consumer where there is a licensing requirement and public policy favors
reasonable conduct by consumers regardless of whether a product is defective.
H. Work-Related Injuries
1. Jones v. Ryobi, Ltd. (629) -- Where a woman is injured in using a printing
press whose guard has been removed the court upheld the district court’s
judgment as a matter of law because to recover on a theory of strict liability
for defective design the plaintiff must show that her injury was a direct result
of a defect that existed when the press was sold and when a third party’s
modification makes a product unsafe the seller is relieved of liability even if
the modification is foreseeable.
a) There was sufficient evidence, even taking into account the
obviousness of the concealed danger, that duplicator was unreasonably
dangerous and thus was defectively designed: the duplicator could
have been equipped with external adjustment handles and the fact that
most machines have their guards removed is evidence that the
duplicator was incapable of operating efficiently according to industry
standards. This case should have gone to the jury.
2. Liriano v. Hobart Corp. (633) – Hand in the meat grinder – Where a grocery
store removed the safety guard on a meat grinder and no warnings about doing
so were displayed on the machine, and where a seventeen-year-old employee
who had recently immigrated to the country was not trained on the machine
and lost his forearm and hand, the maker of the machine could be held liable
for failure to warn even where the substantial modification defense would
preclude liability on a design defect theory.
a) The court noted that manufacturers could be held liable for failure to
warn against the dangers of foreseeable misuse of its product,
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sometimes even after the product has been sold, especially where the
manufacturer becomes aware of the product being misused after sale.
b) The court noted that a safety device is often the most effective way to
communicate that operation of the product without the device is
hazardous
c) When a warning adds nothing to the user’s appreciation of the danger,
no duty to warn exists
d) The court wasn’t supposed to determine whether the manufacturer was
actually liable; they were just answering a question from the federal
court
3. Enterprise Responsibility for Personal Injury Vol. II Approaches to Legal and
Institutional Change (644)
I. Beyond Products?
1. Royer v. Catholic Medical Center (648) – Where plaintiff undergoes a knee
replacement and has to undergo a second operation to replace a defective
prosthesis and the plaintiff sues the Catholic Medical Center which performed
the operations and provided him the prosthesis for strict liability, the court
held that the prosthetic device is merely incidental to providing a
service although the defendants charged separately for the prosthesis and
earned a profit on the “sale” the CMC provided the prosthesis and the surgeon
performed the service.
a) Because the policy rationale underlying strict liability does not
support the extension of the doctrine here because there is no
possibility of negligence and would result in higher health care costs
for all patients and impose an unreasonable burden on physicians and
hospitals to test or guarantee products used in hospitals by doctors;
research and innovation would also be inhibited.
J. Intersection of Tort and Contract
1. Economic loss rule normally limits recovery to injuries to people and
property. If something damages just itself, no economic recovery and
recovery should be under a warranty action not a tort action.
a) East River Steamship Corp. v. Transamerica Delaval Inc. (656) -Where turbines malfunctions on ship and plaintiffs bring tort claims
against defendant manufacturer for lost income and the cost of
repairing the ships while they were out of service the court adopted the
majority-land based approach and held under admiralty law that a
manufacturer in a commercial relationship has no duty under either
negligence or strict products liability theory to prevent a purely
economic loss because a tort action could subject the manufacturer to
indefinite damages and it would be difficult for a manufacturer to take
into account the expectations of persons downstream who may
encounter the product and this claim is most naturally understood as a
warranty claim under contract law where parties can insure and
allocate the risks.
X. Damages
A. Compensatory Damages
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1. Seffert v. Los Angeles Transit Lines – Where a woman is caught in a bus door
resulting in serious painful disabling and permanent injuries, the court finds
that the jury verdict of $187,903.75, including $134,000 for pain and
suffering, was high, however not so high as to shock the conscience and give
rise to the presumption that it was the result of passion or prejudice on the part
of the jurors.
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