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Intentional Torts: BATTERY
BATTERY:
 Intentional (desire OR knowledge to a substantial certainty
to make contact, not necessarily to cause the resulted harm)
 Infliction (Voluntary Act + Causation)
 Harmful or Offensive (objective “reasonable person”
standard)
 Contact (person to person OR transferred intent with
object; no certainty of contact required)
 with the Person of the π (must be a reasonably identifiable
person)
Battery: the intentional infliction of harmful/offensive contact
with the person of P:
1. Intentional: desire to bring about the consequences OR
knowledge/certainty that consequences will ensue
(statistical certainties are not sufficient.) Vosburg v. Putney,
Garret v. Dailey (toddler’s prank) Now codified in RST 3rd §
1 Intent:
2. Infliction: voluntary act and causation
3. Harmful/Offensive: what a reasonable person would find
harmful/offensive
4. Contact: person to person not required (transferred intent
applies
a. Talmage v. Smith (Mich 1984) (p.9)-intent can be
transferred. 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.
5. With the person of P: “contact”, no statistical certainty that
it will hit P is required, transferred intent applies
Defenses to Battery
a. Consent: P consented to what otherwise would be harmful
touching
i. Subjective/free consent (“meant to say yes”)
1. Actual
2. Substituted judgment (for minors)
ii. Objective consent
1. Implied consent
Defenses to Battery
1. Consent
a. Subjective/free
consent
i. Actual
ii. Substituted
judgment
b. Objective
i. Express
ii. Implied
c. No consent
i. Not within scope of
consent
ii. Mistake
iii. Duress
iv. Can’t consent to
illegal acts
v. Uninformed
consent
2. Insanity
3. Self defense
4. Trespass
a. Defense of prop
b. Necessity
i. Private
(incomplete
privilege)
ii. Public (complete
privilege)
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2. Implied-in-fact/Constructive consent (ER doctor saving a life)
iii. No consent:
1. Williams (Minn. 1905) D gets consent to operate on P’s right ear, but during
operation decides that it is better to operate on the left ear. P’s consent could
not be implied because every person has a right to complete immunity of his
person from physical interference of others. However, unlawful intent must
be shown for criminal tort.
a. Games and sporting events: ordinary plays and even violations of
rules are covered under implied. No implied consent to explicitly
prohibited actions: Hackbart v. Cincinnati Bengals (injury sustained
during football game.)
b. Nurse for insane: McGuire v. Almy (Mass, 1937): P sues insane girl for
injuries sustained during care. P could not have consented (under
her duty as nurse) because she didn’t realize the risk until she was
inside the room already. (Potential PP argument: encourage
guardians to keep an eye on their wards.)
2. consent was a mistake.
a. Mistake of fact: Π submits to eating candy, not knowing it’s poisoned)
b. Mistake of law: Π submits to arrest warrant thinking it’s valid, when
it’s not.
3. Consent was given in duress.
4. Cannot consent to unlawful acts.
a. Minority of states you can consent to illegal acts.
b. (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.
5. Uninformed consent
iv. No consent:
1. battery was not within scope of consent: M: Mohr v. Williams (Minn. 1905)
D gets consent to operate on P’s right ear, but during operation decides that
it is better to operate on the left ear. P’s consent could not be implied because
every person has a right to complete immunity of his person from physical
interference of others. However, unlawful intent must be shown for criminal
tort.
a. Games and sporting events: ordinary plays and even violations of
rules are covered under implied. No implied consent to explicitly
prohibited actions: Hackbart v. Cincinnati Bengals (injury sustained
during football game.)
b. Nurse for insane: McGuire v. Almy (Mass, 1937): P sues insane girl for
injuries sustained during care. P could not have consented (under
her duty as nurse) because she didn’t realize the risk until she was
inside the room already. (Potential PP argument: encourage
guardians to keep an eye on their wards.)
2. Consent was a mistake.
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a. Mistake of fact: Π submits to eating candy, not knowing it’s poisoned
b. Mistake of law: Π submits to arrest warrant thinking it’s valid, when
it’s not.
3. Consent was given in duress.
4. Cannot consent to unlawful acts.
a. Minority of states you can consent to illegal acts.
b. (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.
5. Uninformed consent
b. Insanity: no ability to form requisite intent (For insane person to be liable, she must
have cognized that she was in fact harming another human being, and not say an
object.)
i. 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.
ii. (Mcguire v. Almy): P is hurt while nursing for insane woman. Where an insane
person intends to harm another’s person or property, they are liable the same as a
sane person. (Make caretakers more watchful, prevents harm to innocent victim, too
difficult to determine who is insane.)
c. Self defense: reasonable and actual belief of imminent bodily harm and
proportionality of force with apparent danger.
i. 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.
ii. Deadly Force: can be used when actor reasonably believes that another’s conduct
will cause them death or serious bodily injury.
1. Courvosier v. Raymond: D accidently shoots a policeman, mistaking him for
a rioter about to attack him. Where a reasonable person would view Π as
endangering his life, and he uses self defense , he is justified
2. Duty to retreat
a. Majority: No duty to retreat.
b. Minority: Duty to retreat before using deadly force (RST view).
c. No duty to retreat when in your own home.
3. Retaliation not okay: Can’t use self-defense to retaliate, since harm has
passed.
iii. No privilege of self defense when danger has passed or when excessive force is used.
d. Defense of others: Same limitations of self defense
i. Can extend to anyone who is endangered
ii. Traditional view: actor can only use self defense if 3rd party could have.
iii. Modern view: RST 2nd allow for a reasonable mistake in the exercise of the actor.
e. Trespass: intentionally entering the property of another
i. Defense against trespassing chattels
1. Can use reasonable force to remove trespassing chattels
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2. Must also consider loss of value of actor’s property compared to value of
chattel.
ii. Defense against trespassers: 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.
1. Reasonable mistake defense is ineffective here because it is not a reasonable
use of force (Rest 85)
b. Necessity: Do not get to use deadly force: Use of force as matter of defense has to be
proportionate to harm that is being threatened and no less force will achieve the
purposes
1. Private necessity: incomplete privilege: must compensate: (Vincent v. Lake
Erie)
2. Public necessity: complete privilege (subject to constitutional constraints):
immediate and imperative necessity in good faith for public good
a. 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.
b. 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.
c. To hold otherwise would result in asymmetry of incentives for public
officials. (Limited benefit and unlimited loss)
d. Need an immediate and imperative necessity, not just utilitarian
e. Complete defense: Δ is not liable for any damage to land or chattels
Intentional Torts: ASSAULT = BATTARY + APPREHENSION (no CONTACT required)
D acts with intent to cause battery (or imminent apprehension of such contact) AND P is
put into apprehension of such contact (no contact required)
Hypo: A gets hit by B but never sees it coming battery but not assault because A never
manifests apprehension (A’s apprehension is key)
Test
1. 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.
2. 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
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responded in self-defense. No defense because P knew judges weren’t in town, D’s words
negated intent)
3. 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).
-CAUSATION
-DAMAGES: same as battery.
Defenses
 Consent
 Privilege (defense of others)
 Extra-sensitive P: Once D knows of P’s extra sensitivity, D is liable for less-thanreasonable threats
Other intentional torts (without contact)
 False Imprisonment (must be intentional total confinement)
 Intention infliction of Emotional Distress (extraordinary instances only)
Unintentional Torts: Strict Liablity
Strict Liability: Liable even if free from negligence:
Early cases
 Fletcher v. Rylands : D’s reservoir (built by negligent contracted engineers) breaks
and floods P’s mines through ancient shafts. Verdict for P on SL. D is liable for
consequences of his non-natural actions. (Turner v. Big Lake OH Co.: reservoirs
become “natural” to Texas because of it’s terrain and need for water.)
 Natural v. Unnatural: Brown v. Collins (NH 1873) Δ’s horse becomes frightened
and runs onto Π’s land and damages a post. Π sues under strict liability. 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) Δ operates a steam engine according to statutes, but a spark
burns Π’s hay rick. 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.
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o Coase theory: It’s not about trains causing harm to farmers, but rather it is a
deadweight loss that stems from incompatible activities trying to coincide. In
Coasian world, parties would bargain with no transaction costs and this
would lead to an efficient outcome regardless of initial allocation of property
rights. Coase theory assumes perfect information, perfect markets, and 0
transaction costs.
Modern cases:
 Bolton v. Stone (Eng. 1950) 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. Verdict for Δ.
The proper test is not merely foreseeability, but instead the substantiality of the risk
caused by Π to Δ.
o Lower court speaks the language of negligence standard, but D is still held
liable (learning towards SL). The risk is non-reciprocal and there is causation
with no consent of P to take this risk. Courts thought this was foreseeable
because it has happened before. (Court distinguishes between “It has never
happened” and “It has happened so rarely.”) Team should be punished for
inaction.
 Defense: Act of God: (ie storm) that causes “escape”, then there is no SL according to
Nichols v. Marsland (Exceptionally heavy rain caused artificial lakes, bridges and
waterways to be flooded and damage adjoining land. The D was not liable; doubted
by courts however.)
NEGLIGENCE
Negligence Action (prima facie case)
I. Duty owed to P
II. Breach
III. Causation
Landmark case: Brown v. Kendalli: D tries to break up dogfight between P and D’s dogs—
uses cane and accidently hits P in the eye. Verdict for D. D acted as reasonable man would.
(Question of duty: if it was not D’s duty to separate dogs—an “unnecessary act”—then he
should have exercised “extraordinary care.” In this case, however, it was his duty because it
was his dog)
Problem with negligence standard: D can claim that there is no precaution that can be
taken to make it cost/effective and courts may declare no negligence but neglect to ask the
next question, which is, given this, whether the activity is socially effective to keep around.
DUTY
Duty of Reasonable Care
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Affirmative Duties:
I. Rescue
a. Peril of D’s creation
b. Rendered P helpless after the harm (reminiscent of last clear chance)
c. Negligent conduction of rescue
d. Undertake & abandon (with worse off P)
II. Gratuitous Undertakings
a. Rest. 90 of Contracts (quasi-contracts)
i. N increases risk to P and lease to reliance of P
III. Owners & Occupiers
IV. Special Relationships
Duty to Rescue
I. No Duty Owed
a. Trespassers: Buch v. Amony Manufacturing Co. (NH, 1897, 565) P, 8 year
old, trespassed in D’s mill and was told to leave. P failed to leave and then had
his hand crushed in machine. D did not owe P a legal duty (thus not N for
failure to eject him.) There is no difference between this lack of duty to an
adult trespasser and a lack of duty to a child. Moral obligation does not equal
duty.
b. Doctors: Hurley v. Eddingfield ( Ind. 1901, 568)Family doctor refuses to
come to the aid of a violently ill P without reason. P dies as a result. Doctors
are not obligated to always respond. No common carrier obligations or
“special relationship”
c. Mental Impact: Yania v. Bigan (Pa., 1959, p568)
Affirmative Duties:
i. D taunts P into jumping into a cut. P drowns
I.
Rescue
and sues for wrongful death. No physical
a. Peril of D’s creation
b. Rendered P helpless
contact mental impact does not qualify
after the harm
for N unless P is mentally deficient or a
(reminiscent of last
child. D had no duty to rescue.
clear chance)
d. Theory:
c. Negligent conduction
i. Ames, Law and Morals (1908,569): Law is
of rescue
d.
Undertake & abandon
utilitarian but it is more reasonable to use a
(with worse off P)
standard of duty if there is no significant
II. Gratuitous Undertakings
cost or inconvenience for rescue. Hypo:
a. Rest. 90 of Contracts
hunter accidently shoots P and P falls face
(quasi-contracts)
down into shallow pool. Should hunter have
i. N increases
risk to P and
duty to rescue?
lease to
ii. Epstein: A theory of SL (1973, 571) Ames’
reliance of P
substantial cost/inconvenience standard
III. Owners & Occupiers
can be very problematic has far reaching
IV. Special Relationships
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potential applications that impinge on autonomy.
iii. Posner: Epstein’s Tort Theory: A Critique (1979, 5733) We can see tort
duties as a device for vindicating freedom of K if it were possible that
all people could come together and K for a mutual duty (consideration
being a commitment to reciprocate.) However, the obstacles of doing
so are insurmountable so courts will sometimes use torts to enforce
this. Stockberger v. US (2003, 574) If liability was imposed, it would
serve as a strong deterrent, pushing people to avoid putting
themselves in that position in the first place. Circle of potential liable
nonrescuers would be difficult to draw.
iv. Bender, A lawyer’s primer on feminist theory and tort (1988, 573) The
law dehumanizes the real impact of this failure to act. In law,
autonomy should not weigh less than our compassion for other
humans.
II. Duty Owed
a. Duty based on prior conduct creating a risk of physical harm
i. Montgomery v. Nat’l Convoy & Trucking Co. (S.C.1937, 579) D’s truck
broke down on icy road (no N in breakdown.) They put up flares and
lights on the truck, but had reason to know that this would not allow
cars to stop in time. P’s car crashed as a result.
1. Duty and reasonable foresight that flares and lights are not
sufficient (N, failure to act.) See Newton v. Ellis (580) (worker
dug a hole in public highway and left it unlit at night.)
2. If SL were applied: P would be liable even though he was not N
in blocking the highway strong incentives to take more
precautions to warn cars at the top of the hill.
b. Special Relationships
c. Duty to continue rescue (botched/negligence OR undertaken and
abandoned, causing net loss) (Rest. 324)
i. Must rescue with reasonable care: Black v. NY (train conductor left
drunk P halfway up stairs and he fell. D had not duty initially, but once
he helped P he was bound by duty of reasonable care. One may not be
guilty of malfeasance, but if attempt to rescue is initiated, then one
must do so with reasonable care.
ii. May not refuse to help rescuer: Soldano v. O’Daniels (1983, 682) D,
a bartender, refused ot allow would-be rescuer to use phone. D is
liable because his N prevents or disables the third person from giving
aid (Rest 327 and is morally repugnant.)
d. Owners and Occupiers
Good Samaritan Duties
 Some courts have statutes that insulate Good Samaritan for liability (unless gross N
or willful misconduct.)
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 Arguments for affirmative duty
o Potential social good if you can decide when the laws should apply
 Arguments against affirmative duty
o People should not be bound to rescue someone when they did not cause the
harm.
o Enforceability when there are many bystanders
o Problematic to determine when it should be enforced
o Potential disincentives: people avoid those situations for fear of being held
liable
o Morality handles the problem (don’t need laws.)
Theoretical takes
 Corrective Justice:
o Focus on relationships/moral obligations (not nec effy) (duty to aid certain
people, duty to help a rescuer)
o
Positive duty to go forward, esp when someone has relied on you to their
detriment, that has created a ‘right’ of your aid/protection (gratuitous
undertakings, reliance)
o
More opportunity for moral choice, especially where someone else lacks
the choice in the sense we think about it being informed (i.e. child
trespassers and attractive nuisance)
o
No sweeping omission liability – fairness of not holding people
accountable for things they didn’t create or wouldn’t have been able to
protect against
o
Private necessity/conditional privilege – create privileges that force
someone to allow others to use property in order to save more valuable
property or lives
 Economic
o
Putting certain duties on ppl with special relationships b/c often are
cheapest cost avoiders and creates the right incentives to prevent harm
(therapists, LLs, prison guards, etc.)
o
Sense of inefficiency of general omission liability – will probably create
more harms (keep people away from areas where might be expected to aid,
could cause blundered-rescues, lead to over-deterrence (too many rescues
when neither desirable nor necessary, could result in more injuries). Too
unclear, too difficult to administer, best left to moral considerations. (In a
sense, could look at the unwillingness to create expansive affirmative duties
as a rejection of tort law as reflective of morality. Seems to be saying that
except in some egregious cases – where, for example there is a quasicontractual relationship, we don’t want to get involved in policing moral
obligations).
Gratuitous Undertakings
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Manifested Duty
a.
Coggs v. Bernard (Eng., 1703, 606) Misfeasance: D breaks brandy barrels
of P when moving them. P sues for assumpsit (breach of simple K) Verdict for
P. D had duty to move the barrels w/o N once he undertook the activity.
Consideration for the K was P’s trust in him. Court uses K theories like
promissory estoppel and reliance in tort.
II.
Reliance creates duty:
a. Erie R.R. v. Stewart (1930, 609) Railroad gratuitously voluntarily provided
watchman for tracks. P was run over when watchman was not there. P relied
on expectation of a watchman. D created a duty by setting higher internal
standards for itself and thus is N for not meeting them. (See Lucy Webb
Hayes Nat’l Training School v. Perotti, 229) D had a duty because P relied
on this voluntary service.
b. Marsalis v. LaSalle (La., 1957, 612) P gets scratched by D’s cat in D’s store. D
promised to keep the cat locked up for 14 days to determine if it had rabies.
Cat escapes and P engages in medical treatment in case the cat had rabies.
She suffers extreme side effects from the rabies vaccine. Court held that D
had a duty. One who voluntarily undertakes to care for or to afford relief or
assistance to an injured or distressed person has a duty not to act
negligently.
III.
Duties to 3rd parties
a. Moch Co. v. Rensselaer Water Co. (N.Y.1928, 615) : No duty to 3rd party
beneficiaries. P’s warehouse is engulfed by fire and P notifies D. D fails to
provide more water/adequate enough water and water pressure to
extinguish fire. P sues D for breach of contract, tort action, or breach of
statutory duty. No breach of contract (D’s contract was with city to provide
water. Had not contractual duty to P) Cardozo suggests that the cheap water
costs meant that there was no assumption of duty to build in this liability to
private owners (and P enjoyed the cheap water costs.)
i. No tort: no duty. Might have failed to confer a benefit, but not a wrong.
D is not insurer of P’s property.
ii. No breach of statutory duty: they only have a duty to provide water,
nothing more than that.
iii. Potential reliance issue?
iv. Cardozo suggests that the nonfeasance of D meant no duty.
v. Rejected by Doyle v. South Pittsburgh Water Co (620) but affirmed by
Strauss v. Belle Realty Co. (620)
Duties of Owners and Occupiers
Limited Duty
 Considered an area of “limited liability” – required to exercise reasonable care with
regard to activities on her land for the protection of those outside the premises.
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 No duty of care is owed for “natural conditions”
 Have a duty to prevent unreasonable risk of harm to persons or property created by
artificial uses (Rylands)
 Note: Many jurisdictions have done away with the common law categories
distinguishing b/w types of visitors
Types of Visitors
1. Trespassers: safe from nothing but “willful and wanton misconduct” of owner
a. Owner must make the premises safe or at least post warnings for trespassers
if she
i. has knowledge (notice) that a limited portion of her land is
frequently used by trespassers or is being used by a trespasser; or
ii. when she knows children are likely to trespass, the area is
dangerous to children who are unlikely to realize the danger, the
benefit to children outweighs the cost of maintenance (CBA)
iii. when the owner maintains an attractive nuisance (swimming pool).
b. When the owner is not aware of the trespasser, then no duty. But can’t set
traps. (Bird v. Holbrook—spring guns.)
c. Attractive Nuisance Doctrine
i. Allows children to recover when lured onto D’s property by some
tempting condition created and maintained by D (e.g. swimming pool)
1. Maalouf v. Swiss Confederation (590); Child is attracted by
sledding hill and then is injured by hidden wire. Doctrine says
that the relevant is not what attracts the child, but rather the
nuisance itself.
2. Robert Addie & Sons v. Dumbreck (1929, 584): No duty to
take even reasonable care to trespassers. P’s 4 year old was
warned not to play in field and then was mangled by a big
wheel. D maintained a hedge that had sufficient gaps for
children to climb through. D’s servants kept watch to protect
property, not to watch trespassers. P had not duty to insure
trespasser, even if it was a child. The wheel was not an
attractive nuisance and P repeatedly spurned people from his
land (no implied permission.)
2. Invitees (commercial expectation of mutual benefit from visit)
a. Must take reasonable care that the land is safe (inspect/discover harms)
b. Must warn of known dangers that are not obvious
c. If the danger is obvious, no duty to warn.
3. Licensees (social)
a. Must take reasonable care that the land is safe. (So if faucet was clearly
cracked but didn’t think to/bother to inspect, this could violate std of
reasonable care.)
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i. Rowland v. Christian (Cal. 1968, 593) Rejection of Robbert Addie: D
invites P to home and P’s hand is sliced by broken faucet. D knew of
danger but neglected to warn. D had duty of reasonable care even if P
was a social guest. Collapse of rigid classification, which is
antiquated and inefficient. Reasonable under the circumstances works
better. Owners have a duty to warn all people on their land, subject to
circumstances. (Not all jurisdictions have collapsed the categ.)
1. Dissent: classifications serve an important practical purpose.
Social guests/licensees should take the premises as he finds it
(case-by-case adjudication based on reasonableness is
unstable.)
2. While Licensee/Invitee categories have evolved, there is
still resistance with trespassers.
b. Must warn of known dangers.
c. No duty to inspect premises or discover danger.
Special Relationships
Rest 2nd 315: There is no duty to control conduct of 3rd person as to prevent him from
causing physical harm to another unless
o Special relationship between actor & 3rd person which imposes a duty on
actor to control 3rd person’s conduct.
o Special relationship between actor or another which gives the other a right
to protection.
Landlord/Tenant
 Kline v. 1500 Mass. Ave. Ap. Corp (DC, 1970, 624): P, tenant, moves into D’s building
which is secured by receptionist and security. Over the years, these disappear and
increased crime in neighborhood. P complains and D has notice, but fails to act. P is
attacked and court holds that D has duty.
o L had special power to provide reasonable care and is the only one who is in a
position to do so (even though L is not insurer of T.)
o Dissent: P did not show L’s N was proximate cause for her injury and she had
knowledge (notice) that things were changing
o Kline provides new standard for L/T duties, but is still limited so as to no place
undue burden on L.
 Burgos v. Aqueduct Realty (631): causation must be made between
harm and L’s failure to provide adequate security (no causation for T who
was forced back into her building by robbers, though possibility of
proximate causation.)
 Colleges/Universities (students on campus)
 Common Carriers (reasonable if not unduly burdensome, Lopez v. So. CA Rapid
Transit, 632)
 Condo Boards (owners on board become de facto L, Frances T. v. Village Green, 632)
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 Shopping Malls (no duty because no foreseeability. T leases total control of shopping
area. Ann M. v. Pacific Plaza, 632)
 Doctor-Patient (duty to warn potential victim?)
o Tarasoff v. Regents of UC : therapist fails to warn potential victim that was was
in danger of mental patient. Patient killed her despite doctor’s unsuccessful
attempts to have him committed. CofA can be sustained for N failure to protect
victim
 Duty of care regardless of confidentiality clause (extreme circum.)
 No duty to actually confine D (therapists and police offers immune)
 Police had no special relationship with victim to impose duty.
 Creating the circumstances
o Weirum v. RKP General, Inc (CA, 1975, 623): teens in race to claim prize from
radio station run P off the road. S.C. said that radio station had duty derived from
specific intent to create this competitive circumstance. Ct. insists that this does
not open Pandora’s Box for liability of entrepreneurs when faced with product
scarcity.
Negligence: Breach of Duty
I. Breach of a Duty
a. Objective Standard: what an average reasonable person would do under the
circumstances
i. Holmes (177): Importance of a set standard. The common man does
not suffer from this standard (because they should be ingrained into
his common sense.) The stupid and clumsy have to try harder in order
to compensate. Question of defining what a “reasonable man” really is.
ii. No adjustment for stupidity: Vaughan v. Menlove (Eng., 1837, 171): D
builds hayrick on edge of property, ignoring warnings of people that
it’s a fire hazard. Hayrick catches on fire and burns down 2 cottages of
P. Verdict for P. D was not reasonable though he claims he was.
Reasonableness does not take account stupidity or variable standards.
i. No adjustment for age/infirmity: Roberts v. Ring (Minn, 1919, 178): D
hits boy who runs in front of his car. D was driving at speed limit, but
has sight and hearing impairments. Verdict for P. D needs to focus
harder than common man in order to reach the same standard of care:
he knows that he has these impairments before he got into the car (P
is not CN because he’s only 7)
iii. Reasonable foreseeability:
1. Fletcher v. City of Aberdeen (Wash 1959, 190) Blind man falls
into trench because workman forgot to replace the barrier.
Verdict for P. Reasonable city has to foresee that disabled
people are using the streets. P is only required to act as a
reasonable blind man would (ie use a cane)
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2. Robinson v. Proche (CA, 1855) Drunk man falls into open
manhole. Verdict for P. City has to take into consideration that
drunk people are a reasonable foreseeable risk (manhole
should have been covered whether or not they thought a
drunkard would fall in)
3. Blyth v. Birmingham Water Works (Eng.,1856, 194):
abnormally high frosts freeze plug, D fails to remove
accumulated ice and causes flood. D could not have foreseen
the abnormal weather conditions (acted reasonably based on
data) Bramwell says P has just as much responsibility as D to
remove the ice.
b. Subjective variations
i. Youth/Beginners : adjustment (unless doing adult act.)
1. Beginners in adult activities held at same standard to
encourage training, prevent double standards, and forestall
risk of fraud (public can’t be expected to bear risk). Daniels v.
Evans (NH, 1966, 180) P is a minor on a motorcycle (19yo)
that was killed in collision with D’s car. P should be held to
adult standard to (deter accidents by keeping higher
standards)
2. Exception: no license needed:
a. Gross v. Allen (183) 17 year old beginner skier not held
to adult standard of care because youths do not need a
license to ski. Problem with this: there are a lot of
activities that are dangerous that do not require a
license (ie ten-speed bikes) However, Dellwo v.
Pearson (183): 12 year old on speed boat was held to
adult standard even though there is no license needed
for speedboats.
b. Jackson v. McCuiston (p183) 13 year old on tractor
held to adult standard. This was cut back in Purtle v.
Shelton where 17 boy with firearm was held at minor
standard because “hunting is not exclusively an adult
activity.” (One dissenting judge argued that a bullet is
dangerous whether coming from kid or adult.)
ii. Insanity:
1. Breunig v. Am. Family Insurance (Wis, 1970,185): P has
insane fit during driving (Batman delusion) and drives head-on
to another car. P is not criminally liable (CL) because she was
fine when she got in the car and then the sudden fit hit her like
a heart attack. (Temporality difference between
reasonableness at point 1 versus point 2 Breunig)
iii. Emergencies:
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1. Lower standard of care for emergencies: Lyons v. Midnight Sun
(Ala., 1996, 215): P pulls in front of truck causing collision
though trucker tried to avoid her. Truck driver not CN.
2. 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.
iv. Specialist/experts (adjust high- more care expected)
v. Common carrier (adjust high- more care expected)
II. Calculus of Risk (B<PLN)—cost benefit analysis Blyth, Eckert, Osbourne (benefit to
driving is useful even given risk)
a. Hand formula: US v. Carroll Towing Co (2nd circuit, p206) Barge breaks
away and damages property. N of barge?
b. Application of BPL: Breach of Duty to Exercise Reasonable Care
i. Reasonable risks okay: Osborne v. Montgomery (Wis 1931, 201): Kid
on bike runs into the open car door of D. D not N. Risk/utility calculus:
risk of harming pedestrians is still lower than utility of driving under
ordinary care.
ii. Duty to protect the largest class in greatest harm: Cooley v. Public
Service Co. (NH, 1940) (p203) loud noises from telephone scares P
and she falls, injuring herself. P is traumatized by incident. D is not N
(precaution that P suggests is taken at risk to others and increases
collateral damage potential) P = low; B= high (due to the potential risk
of pedestrians if a basket was made)
iii. Where cost of B is low, π only need show minimal evidence for liability:
Andrews v. United (9th circuit) (p217) Common Carrier Passenger
struck by falling luggage when opening bin after landing. D claims
their announcement at the beginning of each flight constitutes a B, but
court says it is ineffective. Ct. says D would not be N if not for the
common carrier wrinkle that obligates a higher standard Summary
judgment denied and goes to jury L = relatively low ; P = low; B=tiny
(small nets)
iv. Allowable higher risk for saving a child: Eckert v. Long Island
Railroad (NY, 1871, 196) P runs in front of train to save a child on
tracks. Dies from collision with train. P was not N. Life is a very
valuable and allows for higher risk. Also an emergency situation. P had
reasonable belief that he could save the child and himself (was not
rash or reckless given the PL.)
Breach of CUSTOMS: standard known to potential D’s
Assume rational players will have incentives to meet standard under N standard
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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.
I. The Sword and the Shield
1. Duty
a. Theory
2. Breach
i. Pros:
a. Reasonable
1. Expertise
Person (under
the
2. Certainty
circumstances)
3. Choice (CJ)
b. Calculus of Risk
4. Efficiency (utility)—industry self adjusts
(B<PLN)
customs
c. Custom
ii. Cons
d. Statutes and
regulations
1. Risk of inefficiency: custom may not be
e. Rule of Law
reasonable
3. Causation
2. Without customs, people may think
a. Res Ipsa
inaction is okay
3. D sets rules (can set custom to least L)
4. Slow to change (time lag, fail to pick up
efficiently)
5. Stranger is not put on notice (unaware of customs)
6. Evidence of but not conclusive determinant of rule
7. Problematic when some companies set bar higher than custom
(held to self-established higher standards disincentive for
others to set high standards)
b. Shield: if there is no custom, D is not N (unless less than reasonable care)
i. When the Shield works:
1. Titus v. Bradford (Pa. 1890) (p221) P, employee, gets run
over by train when he jumps onto tracks in attempt to avoid
being crushed by round bottomed cars on insecure cargo. D is
not N. Non-stranger interaction (P is aware of custom.) Moves
away from pure N.
ii. When Shied does not work: custom is lower than reasonable duty
of care (Compliance with custom is non-negligent, but not decisive)
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1. Mayhew v. Sullivan Mining Co. (1884, p223) Independent
contracts falls through hole that D had dug without warning to
P. D failed to put up a railway, saying it was not custom. D is N.
D was acting according to custom of business (ie no want of
ordinary care.) but that does not mean no N—it’s common
sense and ordinary duty of care.
2. Variation From Custom May Ground Liability The T.J. Hooper I
(D.S.N.Y. 1931, 191) 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.
Failure 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.
3. The Issue is Cost/Benefit, Not Custom. The T.J. Hooper II : 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. Custom is not in and of
itself enough to alleviate negligence, nor is its want enough to
require a finding of negligence.
4. Lucy Webb Hayes Nat’l Training School v. Perotti (p229):
psychiatric hospital incident where D sets internal rules higher
than custom, but is found N when they fail to meet their own
standards.
c. Sword: If there is a custom, D is definitely N for not meeting it
i. Asymmetry: should we be more ready to punish when they do not
meet custom than when there is no custom (wield sword most often
than using the shield)
ii. Lama v. Borras (F.3d, 1994)(p231) D (physician) fails to prescribe
conservative treatment and proper pre and post surgery care (for ex.,
no antibiotic regiment). P gets infection. Nurses/hospital have
improper method that delays his diagnosis.
a. D is N. D fails to meet national standard of care. Hospital
is also N for insufficient standards of nurse reports
which delayed diagnosis.
b. Causation problem: surgery may have been necessary
anyway, even given the conservative treatment.
c. Was the infection caused by surgery or poor post-op
choices?
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Medical Malpractice: where custom has the most force even if potentially fails BPL calculus
1. Custom (Lama v. Borras)
a. National standard—local variations not adequate (Brune v. Belinkoff)
Because it is such a specialized find that we allow them to self-regulate (fact
finder has very difficult time assessing N)
b. Expertise level
i. Expert class: higher standard for board certified doctors
ii. Beginner class: lower standards for interns (strays from earlier
forgiving standard): p242
c. Two battling schools of custom (compliance to either is fine)
d. Disclosure
i. Problems teasing out a custom:
1. Complexity and variety of what physicians do is very
complex no identifiable customs to disclose
2. Different standards for different people? (different patients are
psychologically affected by different info)
3. Solution: Reasonable Disclosure under the circumstances
standard Doctor can start with objective person rules and
then move to reasonable person under the circumstances,
adjusting as he sees fit.
ii. Informed consent (physician is obliged to provide material info to a
reasonable person in the position that the doctor knows that the
patient is in. This is subjective to the extent of notice of patient’s
peculiarities harm operating through the vehicle of patient’s choice,
which is subject to hindsight bias system tries to keep it objective as
a result.
1. Canterbury v. Spence (DC, 1972, 244) P suffers permanent
damage from operation. D did not disclose risks prior to
operation.D is obligated to disclose “all perils bearing
significance” (Any decision that could reasonably be expected
to change his decision about treatment; in the capacity that
doctor knows the patient, adjusting to individual
circumstances. For example, don’t treat the foot fetishist the
same as the normal person.)
iii. Exceptions to duty to disclose
1. risk-disclosure poses such a threat as to be a detriment to the
patient to make treatment infeasible
2. emergency circumstances (constructive consent)
3. patient is incapable of consenting (must get consent of family)
4. incredibly obvious disclosures (ie risk of infection),
5. incredibly rare possibilities/ materiality of risks known at the
time (see United Blood Services v. Quintana, p255: AIDS case)
or if disclosure is not in the patient’s best interests
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(Information would lead to make an obviously poor choice,
though this is still debated on for reasons of patient autonomy)
2. Reasonable Patient Standard (RPS): would a reasonable patient given all the
relevant information, wanted the surgery?
a. Paternalistic argument vs. Patient Autonomy: “Doctor knows best?”: D argues
that full disclosure could produce psychological effects that unreasonably
deters patient from getting the surgery (saying that Dr. can do the BPL best)
b. Causation under RPS: If prudent patient in P’s circumstances would have
made different decision, then causation is established (Quintanta, p255)
c. Established when P would have chosen another route had he had all the
relevant facts (This risks hindsight bias)
3. Medical Malpractice Theory
a. Mello and Brennan Deterrence of Medical Errors: deterrence doesn’t really
work because costs are externalized (other payers, such as med insurance
foot the ill for N), making deterrence difficult and confuse the economic
incentives to improve. Deterrent effect operates primarily on institutional
level
b. physicians are overly sued
Breach: STATUTES AND REGULATIONS
Rest2nd 286 (266): When standard of conduct defined by legislation
or regulation will be adopted:
The court may adopt as the standard of conduct of a reasonable man the
requirements of legislative enactment or an administrative regulation
whose purpose is found to be exclusively or in part
(a) to protect a class of persons which includes the one whose
interest is invaded and
(b) to protect he particular interest which is invaded and
(c) to protect that interest against the kind of harm which has
resulted and
(d) to protect that interest against the particular hazard from
which the harm results.
1.
2.
3.
Duty
Breach
a. Reasonable
Person (under
the
circumstances)
b. Calculus of Risk
(B<PLN)
c. Custom
d. Statutes and
regulations
e. Rule of Law
Causation
a. Res Ipsa
Rule 14: Statutory violation as Negligence per se:
An actor is N 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.
(Restatement of the Law of Torts: Liability for Physical Harm)
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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
i. Coulter v. Superior Court (Ca., 1978, p279): bartender serves
drunkard alcohol and the latter harms 3rd party. Court says bartender
is proximately liable, but later, CA legislation is passed to say there is
no proximate liability for bartenders.
ii. Osbourne v. McMasters (Minn 1889, p265) D sued for selling poison
in drug store without labeling it as so. D is N (affirmed prior decision)
D violated statute and P is granted a common law remedy. D argues
that there is no common law liability existent, but court says that the
consumer was the party that the legislation meant to protect.
2) Whether recognition of a private right of action would promote the
legislative purpose, and (Gorris and Kernan)
iii. Statute designed to protect the interest invaded: Uhr v. East
Greenbush Cent. School (NY, 1999, p280) School is expressly
insulated from liability when they fail to administer the scoliosis test.
There is no statutory duty. Statute’s immunity provision was meant to
insulate schools against private action with the goal of minimizing
costs in mind (no intent of allowing private litigation in mind.)
b. Statute designed to protect that interest against the particular hazard from
which the harm results.
i. Statute designed to protect that interest against the kind of harm
which has resulted (scope of harm) : Martin v. Herzog (NY, 1920,
p270)P killed after collision with Ds car. P was driving without lights.
PH said that driving without lights is not N. Reversed on appeal and P
is found negligent because lights is a violation of statute requiring
lights and this violation was the cause of the accident. P is C.N.
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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.
Defenses 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.
Theory of Statutory violations: Enacted to protect a class of citizens and is determined by
legislature
 Pros:
o Closes off jury from making decisions based on reasonable standard
o Avoids the too-low standards or faulty custom
o Encourages private enforcement
o Avoids pitfalls of relying on experts
 Cons
o Grey areas
o Interpreting what the intent of the statues are
o D’s slipping through the cracks (p269: when P’s aren’t in the category meant
to be protected or if the “mischief” wasn’t the mischief the statute sought to
avoid. For example: the sheep in Gorris v. Scott p268 were nt the party the
legislation meant to protect)
 Exceptions: when there is a custom that promotes the goal/intent of legislation (ie
walking against traffic, p272)
Breach: RULE 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.
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 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.
 Setting a common law rule is useful because it is
o a predictable/knowable rule (lower transaction costs, higher uniformity)
o promotes higher level of safety
o truck driver may be CCA
o court has ability to hire experts to investigate
o policy aims and choices.
Negligence per se: Baltimore and Ohio R.R. v. Goodman (US, 1927, p290) D is run over by
train which crossing tracks in war even though he was reasonably careful. However his
sight was blocked by a building. PH verdict for D. Reversed on appeal (D was CN to put
himself in danger.) Holmes says that a man should know that the train will not stop for him.
Ct. Created Duty is Not Absolute. (Goodman rule ignored here): Pokora v. Wabash Ry.
(US, 1934, p291): P, in truck, tries to stop/look/listen but doesn’t see/hear anything so
he drives across, getting run over. PH verdict for D saying P was CN for not getting out
of car to check. Reversed on appeal. Getting out is an “uncommon practice” and
potentially dangerous, not to mention probably useless in the end (by the time a P gets
back into the car and starts it, their activity would have already been useless)
CAUSATION : P’s Tools: RIL; Smoking Out
1.
2.
Rest2d 328D (302): Res Ipsa Loquiteur:
(1) It may be inferred that harm suffered by the P is caused by
negligence of the D when
(a) The event is of a kind which ordinarily does not occur in the
absence of N
(b) other responsible causes, including the conduct of the P and
third persons, are sufficiently eliminated by the evidence; and
(c) the indicated N is within the scope of the D’s duty to the P
(2) It is the function of the court to determine whether the inference
may be reasonable drawn by the jury, or whether it must be necessarily
drawn.
(3) It is the function of the jury to determine whether the inference is
to be drawn in any case where different conclusions may be reasonably
reached.
3.
Duty
Breach
a. Reasonable Person
(under the
circumstances)
b. Calculus of Risk
(B<PLN)
c. Custom
d. Statutes and
regulations
e. Rule of Law
Causation
a. P’s tools
i. Res Ipsa
b. D’s tools
i. Contributory Neg
ii. A/R
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“Res Ipsa Loquitar”: The thing speaks for itself
 invoked when π seeks to establish ∆’s negligence from circumstantial evidence
 The doctrine allows the plaintiff’s case to reach the jury when ordinarily the case will be
lost.
RIL Test:
- the action does not ordinarily occur without negligence
- the action must be caused by an instrumentality within the exclusive control of the
defendant
- action must not occur due to the voluntary action on the part the plaintiff
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:
 Offer alternative explanations for injury other than Δs negligence
 Showing that injuries frequently happen without negligence.
 Showing that Δ did not have control, or that someone else did.
I. Unknown causation: Pathway to the harm is unknown: RIL
a. Classic Example: The event is of a kind which ordinarily does not occur in the
absence of N: Byrne v. Boadle (Engl, 1863, p299): P is hit by barrel falling out
of window of D’s shop. PH verdict for D (P could not furnish evidence of
causation.) Reversed on appeal (P is not burdened to prove what the specific
causes was—the fact that it happened proves N.)
b. Other responsible causes, including the conduct of the P and third persons, are
sufficiently eliminated by the evidence
i. No Res Ipsa w/o Foreseeability and Exclusive Control. Larson v. St.
Francis Hotel (p302): St. Francis was not held liable for chair that
flew out of window during V-J day celebrations. Hotel has no mastery
over their furniture.
ii. Connolly v. Nicollet Hotel (p303): Nicollet Hotel is held liable for
debauchery of Junior Chamber of Commerce national convention.
c. the indicated N is within the scope of the D’s duty to the P: Exclusive Control
Element can be Met by 3rd Party where Duty is Non-Delegable
i. Colmenares Vivas v. Sun Alliance Insurance Co. (Puerto Rico, 1986,
p307) P is injured when escalator malfunctions. Res Ipsa applied. D
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had exclusive control of escalator even though the maintenance was
handled by a contractor, Westinhouse. (RI can apply even when D
shares responsibility with another arty, but D is ultimately
responsible Westinhouse does not destroy Res Ipsa’s no 3rd party
prerequisite) D’s duty of care is non-delegable.
II. Specific D is unknown: Smoking Out
a. Ybarra v. Spangard (Cal. 1944, p316) P is partially paralyzed after
appendectomy. PH verdict for D, non-suit. Reversed on appeal.
i. Diversity of D’s does not render RI inapplicable because all assistants
and nurses are agents of head surgeon.
ii. Causation: the fact that P is injured is evidence enough.
b. “Smoke Out”: burden shift from P to D: sue everyone and hope that correct
will D will emerge by threatening liability to everyone.
i. Appropriate when D’s have more info than P (asymmetric knowledge)
and it is knowable knowledge (someone has the information)
ii. 3rd restatement rejects the smoke-out/asymmetric information
agreement
Issues of determination: how to know if the harm is caused by negligence or coincidence?
Hypo: faulty hand grenade causes harm. How do we know if it’s Res Ipsa negligence
or it’s just the 1/1000 chance that occurs even without negligence? Kaye (p314) #3
addresses this: “the probability of the injury given reasonable care is much smaller than the
probability of the injury given N”
D’S TOOLS: CONTRIBUTORY NEGLIGENCE (complete bar)
Most states have gotten rid of CN in favor of Comparative Fault.
Rule 465: Causal Relation between harm and Plaintiff’s Negligence:
(1) The P’s N 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 P’s
negligent conduct and the harm resulting to him are the same as
those determining the causal relation between the D’s negligent
conduct and resulting harm to others.
Reasonable Care of P Standard
 Butterfield v. Forrester (Eng., 1809, 328) P was riding hard
(and possibly drunk) and failed to see an obstacle in the road
that a reasonable person probably would have seen. P injures
himself as a result. Verdict for D, P was CN (opposed to SL)
 Cooter and Porat: “Does risk to oneself increase the case owed to
others? Law and economics in conflict.” One should calculate net
1.
2.
3.
Duty
Breach
a. Reasonable Person
(under the
circumstances)
b. Calculus of Risk
(B<PLN)
c. Custom
d. Statutes and
regulations
e. Rule of Law
Causation
c. P’s tools
i. Res Ipsa
d. D’s tools
i. Contributory Neg
ii. A/R
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cost of burden (harm to self and harm to others Hand neglects to also count
driver’s self-imposed risk and savings in BPL calculus): PL(others)  B – PL(self)*
*PL(self) is a net gain
 Therefore, B  PL(others) + PL (self)
Non-stranger interactions: Employees
 Beens v. Chicago, Rock Island and Peoria R.R. (Iowa 1882, p329) P is run over
when trying to uncouple two unsafe cars. P had signaled to engineers onboard to
slow down the train, but they failed to do so. P’s foot was caught in the track and
then was run over. Verdict of P (no CN)
 Gyerman v. US Lines Co. (Cal. 1972, p333) P is injured during unloading incorrectly
stacked stacks of fishmeal. He noticed the dangerous potential, but failed to report it
to supervisor. 3 days later, he is injured by a falling stack H: D did not meet burden
of proof in showing P’s CN case remanded to determine P’s CN.)
o P claims it was not unreasonable to continue to work while D claims that P
was obligated to report the circumstances. Ct. determines that D failed to
show that, if P had reported the incident, it would have absolutely prevented
injury and removed the risk.
The rules which determine the causal relation between the P’s negligent conduct and the
harm resulting to him are the same as those determining the causal relation between the
D’s negligent conduct and resulting harm to others.
 Smithwick v. Hall and Upson Co. (p340) D warns P to stay away from site lest he
fall. P ignores this and ventures onto site. House falls on P. Verdict for P (no CN)
because the resulting harm is not “within the risk” that made it dangerous for P to
venture over in the first place.
Sequential N
 Durheim v. N. Fiorito Co. (Wash., 1972, p345) D makes illegal left turn and runs into
P, who is not wearing a seat belt. H verdict for P (no CN). P’s act of CN occurred
before D’s N and D cannot say that P’s CN had any contributory effect on the
accident itself (only the extent of injury, but P cannot be made to shoulder that
burden.)
 Mahoney v. Beatman (p340) P was speeding in Rolls, D looses focus and veers into
oncoming Rolls, sideswiping it. P veers out of control and crashes. D is liable for all
damage even though the second crash (the big damage) probably wouldn’t have
happened if P had not been speeding. Nonetheless, P is not CN and awarded full
remedy.
CN vs. SL: Leroy Fibre Co., v. Chicago, Milwaukee & St. Paul Ry. (US 340, 1914, p342) P is
flax farmer who piled his flax within distance of tracks. Sparks from tracks burn his flax.
Verdict for P (P not CN.) Mckenna says P has right to enjoy his property: SL: Holmes says
P’s flax was too near (not reasonably safe distance from tracks): N
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Last Clear Chance/Gross negligence
 Fuller v. Illinois Central R.R. (Miss., 1911, p350) P is old man on donkey and fails to
move out of the way of oncoming train, even though D signaled with whistle. D had
last clear chance (enough time) to stop and save P, but failed to do so. P’s CN does
not excuse P’s gross negligence. D was going faster than usual (breach of custom)
and P is helpless.
 Question of knowledge:
o Should D know P is helpless?
 D did not know but should have seen P had no reasonable way to save
himself even given he is CN (D has LCC)P wins
 D knew, but continued anyway (D is in superior situation to know that
information and to act, as well as LCC) P wins
 D had no reason to know D wins
o Should D know P is inattentive?
 D knows and has LCC P wins
 D should know but doesn’t P wins (unless recklessness)
 D has not reason to know D wins
o Should D know P is reckless
 D knows D wins
 D should know but doesn’t D wins
 D has no reason to know D wins
D’s Tools: Assumption of Risk (bar on damages)
EXPRESS (Contracted) ASSUMED RISK
I. PRIMARY A/R (no duty of care or no breach of duty owed)
II. IMPLIED A/R (A/R as affirmative defense against breach of duty of care)
Express (Contracted) Assumed Risk
 Primary A/R (no duty of care or no breach of duty)
o Lamson v. American Axe & Tool Co. (Mass 1900, p360) P injured from fallen
hatchet on unsafe drying rack. P had already complained to employer about the
potential risk and was told to take it or leave it. P stayed on and then was
injured. P knew the risks, but stayed on the job he assumed the risk. Opposed
to Gyerman (p333) which considers the probability of the harm being solved by
a report.
 Employer/Employee relationship: risks are sometimes contracted into the
salary (Fireman’s rule)
o Dalury v.S-K-I Ltd. (Vt. 1995, p374) P signs full waiver in order to purchase a
season pass in ski report. Runs into a pole and sues. Ct. says one cannot K around
duty of care. One cannot enforce exculpatory agreements of this kind.
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 Public Policy: “Premises liability”/ Affirmative duty of care (akin to
Common Carrier standard) cannot contract around this
 Tunkl formula: cannot apply exculpatory agreements if it meets some or
all of the following:
 It is a regulated industry
 Service is open to all public or all members of public meeting
requirements (ex, ticket buyers)
 P was helpless in encountering the risk
 Service of essential nature (P lacks bargaining power)
o Obstetrics and Gynecologists Ltd. v. Pepper (p378) P is forced to sign an
adhesion contract (take it or leave it) in order to obtain care. P does not
understand the terms, suffers stroke afterwards. Verdict for P (binding
arbitration clause not applicable because D cannot prove a binding agreement
had occurred.) Ct. rules that adhesion contracts are not enforceable if not within
the reasonable exepectations of the weaker or “adhering” party” (#3 in Tunkl
formula)
Implied A/R ((A/R as affirmative defense against breach of duty of care)
o Implied Assumption of Risk
 Primary A/R: P assumes risk of being non-negligently harmed. (No duty
of care breached because D was not N.)
 Ex: In a football game, there is not longer a duty to watch where
one’s going when both parties are players. However, each party
still has a duty to play football in a reasonable manner (the only
duty owed is careful football playing. P can still claim N if D plays
football negligently.)
 Murphey v. Steeplechase Amusement Co. (NY 1929, p365) P gets
on Coney Island ride, “The Flopper” and breaks kneecap from a
sudden jerk. P had clear view of the risk . No express K to assume
risk (no waiver of rights) but there is implied A/R.
o One can assume R only if they know enough to do so.
However, even knowing the risks, there are some that are
too extreme to assume (though not the case here.)
o Perhaps D was N for not having adequate padding in ride
(not covered by reasonable assumed risk of P)
 Meistrich v. Casio Arena (NJ 1959, p371) P went on ill-prepared
ice rink. D was N in not preparing it well. There was no waiver (P
only agreed to regular skating risks even though he knew ice was
slippery.)

 Secondary A/R: A subset of Comparative Fault: P consciously takes an
unreasonable risk (N risk taking) (full defense, D is absolved)
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 P takes conscious, but reasonable risk (non-N risk taking) (Eckert v.
Long Island RR) (Courts split, some say P should be able to recover while
others say P had notice and this almost looks like an express A/R)
COMPARATIVE FAULT
Restatement (3d) of Torts- Apportionment of L (p399); Rule 7: Effect of
Plaintiff’s Negligence when P suffers an indivisible injury:
P’s N (or the N of another person for whose N the P is responsible)
that is a legal cause of an indivisible injury to the P reduces the P’s
recovery in proportion to the share of responsibility the factfinder assigns
to the P (or other person for whose N the P is responsible)
Comparative Fault
Proximate cause and CN do not explain LCC where P is still allowed to
recover. Prosser suggests that the explanation for the acceptance to the
rule of barring P’s relief is the 19th century mentality and the IR, during
which courts saw the rule as a “convenient instrument of control over
the jury, by which the liabilities of rapidly growing industry were
curbed and kept within bounds.” Prosser: CN (p383)
1.
2.
3.
Duty
Breach
a. Reasonable
person
b. BPL
c. Custom
d. Statutes
e. Law
Causation
a. Res Ipsa
b. Cont. Neg.
c. A/R
d. Comp. Fault
Common Law evolution:
Landmark case: Li v. Yellow Cab Co. of California (Cal. 1975, p384) P
drives through 3 lanes of oncoming traffic to get to service stop and is
then hit by D, who sped through a yellow light. PH verdict for D (P is CN
and barred from relief.) Reversed on appeal.
 CN fails to distribute fault inequitable
 Section 1714 of the Civil Code does not say that the “all or nothing”
rule reigns supreme
o The intent of the legislature was not to make CN immune,
but rather just to codify and formulate existing common law. Court has right to
change it (and indeed is encouraged to help it evolve.)
 Practical difficulties in determining CF can be surmounted
o Hard for fact finder to evaluate CF when all responsible parties are not present
o Difficulty of actually assigning the correct proportions. Can be solved by giving
guidelines to juries to assist it in keeping focused upon the true inquiry, and the
utilization of special verdicts or jury interrogatories
o LLC and A/R statutes LLC disappears when a true CF system is in place. A/R is
included in assessing liability in proportion
o Willful misconduct CN does not apply to willful or wanton misconduct
 “Pure form” of CF is better than CN “50% rule”
o Pure form: proportional L for proportional fault.
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o 50% rule: apportionment based on fault up to the point at which the Ps N is
greater than or equal to D’s fault. At this point, P is barred from relief. (Court
says this is a distortion of the very concept of CF)
 New rule should be given a limited retrospective application creates good incentives
for future parties to “bring up issues involving renovation of unsound or outmoded
legal doctrines.” it seemed unfair to give Li CF, but not others before who tried the
same defense.
Joint and Several liability
 Joint liability: several obligors (any person who bears an obligation) can be responsible
for the entire loss if the others are unable to pay
 Several liability: each obligor has an obligation parallel to that of the others. The share
of any final judgment against one parts is not increased by the default of another
 Joint-and-Several liability: obligors are joint to the obligee but bear several liability
amongst themselves (if all are available to pay.)
American Motorcycle Association v. Superior Court (Cal. 1978, p409) Former D appeals
from decision of court that did not allow D to claim CN of P’s parents as previously unjoined
alleged concurrent tortfeasors. Verdict for P (trial court should permit AMA to do this)
AMA argues that after Li there is a basis for dividing damages on CF basis. Ct agrees, but
says this case is not a divisible injury (no proof that N of another proximately contributed
to injury) Ct rejects this, saying that P’s failure to use due care for himself is not tortuous
and thus not applicable
a. Doctrine of partial equitable indemnity should be adopted at common law
to permit apportionment of loss among coD’s on pure comparative principle.
(permit a concurrent tortfeasor to obtain partial indemnity from other
concurrent tortfeasors on a comparative fault basis.)
b. California’s contribution statutes do not preclude the court from adopting
comparative partial indemnity as a modification of the common law
equitable indemnity doctrine (tortfeasor who has entered in good faith
settlement with P should be allowed to claim from concurrent tortfeasors
any partial or comparative indemnity.
Direct Causation: Cause in Fact:
Substantial factor test: whether D’s conduct was a “substantial factor” in producing the
harm.
I. Cause in Fact (tortuous conduct was necessary condition to the occurrence of
injury/P would not have been injured absent tortuous conduct of D.)
a. But For Test : Would, but for D’s N, P have suffered injury or harm?
i. NO: cause-in-fact proved
ii. YES: D not liable
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b. Substantial factor test (D’s N was major factor, and makes the injury more
probably than not) Can be seen as a variation of the But For Test
c. Eliminate other possible causes
i. Expert testimony: Daubert v. Merrell Dow (trial courts make
preliminary assessment of reliability/applicability of testimony)
d. Multiple Causes/Indeterminate Causes (an alternative to conventional test)
i. Injury caused by Multiple Sufficient Causes
1. Two Simultaneous Causes,
a. Both negligent: both L (better overdeterrence than
underdeterrence)
b. One N, one NOT N: courts split (but for test not satisfied,
some hold negligent D liable, others do not.)
2. Sequential causes: Pre-emptive causation (Assuming both are
N, only 1st D is L)
e. Joint and Several Liability: P can only recover full extent of his harm (if he
collects fully from one D, he cannot collect from other D) D’s have right of
contribution from other tortfeasors, and, with comparative negligence,
usually only has to pay for the amount of harm caused by his individual
negligence.
i. Joint Tortfeasors
ii. Independent tortfeasors J/S liable for a single, theoretically indivisible
harm (two cars both run red lights and one runs into a pedestrian
neither alone would have been sufficient to cause the injury, however,
no way to pinpoint the extent of each D’s causal responsibility.)
iii. Independent tortfeasors J/S liable for a single, theretically divisible
but particially indivisible harm. (Ex: one D caused one collision and
second D caused second collision. Harm is indivisible for practical
purposes, though each D is entitled to prove how much harm it
caused.)
f. Indeterminate Causes
i. Alternative liability: burden shifts to each D to prove he did NOT
cause the harm (Summers v. Tice)
ii. Industry-wide liability: though D’s might not have acted together to
cause injuries, threat of liability might encourage relatively small
industries to act together to prevent industry to encourage safety.
(Hall v. E.I Du Pont)
iii. Last Chance Doctrine: (Medmal): already injured or ill P’s chance of
recovery/survival are reduced by D’s N.
1. Usually D is liable for the reduction in the decendent’s chances
of suriving (loss of 10% = 10% of damages.) PP issue of not
encouraging doc’s to let people die when they already have bad
chances at life.
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iv. Market – Share Liability (rarely used.): each P can recover from each
D a portion of her damages equal to each D’s share of the market:
Sindell v. Abbot Labs (DES for pregnant women.) TEST:
1. “signature disease”: disease caused only by exposure to the
product (100% of the market caused 100% of the harm)
2. All D’s produce a chemically identity product (Skipworth v.
Lead Industries: no market-share L because D’s produced
chemically different lead paint.)
3. Relevant market data is available
4. Substantial share of the market is represented in the suit
(substantial number of D’s are named addresses the issue of
D’s who have gone out of business, etc.)
v. Unknown P’s: Toxic Harms and Statistical Proof of Causation:
identified D has caused the injury but not possible to prove which P’s
D has inujured.
1. Rely on statistical data (courts reluctant to do this.)
Proximate Causation:
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Generally
 Causation = Cause in Fact + Proximate Causation
 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 (Polemis): if the harm is a direct consequence of the negligent
act, proximate causation is established regardless of foreseeability
o Foreseeability (Wagon Mound): 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
 Manner: Still liable if outcome is foreseeable even if the means to that
outcome is novel or unique.
 Extent: Still liable for all the damages, though only a modicum of
damages would have been expected (Vosburg).
 Improbability: Still liable even for highly unlikely results if they are
foreseeable (Wagon Mound 2).
 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 (Palsgraf)
Directness Standard: In Re Polemis and Furness, Withy & Co. (Eng. 1921, 452) (still good
law in most US jurisdictions)
 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 it blew up.
 H: Once the negligence of a party has been established liability holds for consequences
of the conduct, foreseeable or not. Damages are not too remote. So long as the damage is
in fact directly traceable to the negligent act, and not due to the operation of
independent causes having no connection with the negligent act. Once the act is
negligent, the fact that its exact operation was not foreseen is immaterial.
The Foreseeability Test. Wagon Mound No. 1 (Overseas Tankship v. Morts Dock) (Aus.
1961, 471)
 Facts: D carelessly discharged oil from their ship while berthed in Sydney harbor. The
oil drifted over and pooled around P's shipbuilding dock, where welding operations
were ongoing. The P’s dock supervisor suspended welding operations until he
determined that the oil was not flammable while it was floating on the water, and when
the welding was recommenced, the sparks set fire to some debris floating in the oil
slick, and a conflagration ensued which destroyed the dock.
 H: No liability exists where the cause of harm is not reasonably foreseeable.
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 Rationale: A person is only liable for the probable consequences of his negligent
acts. The probable consequences are judged by the standard of foreseeability by
the reasonable man.
 Significance of details test: The Wagon Mound rule of foreseeability of damages
presents problems when the damages are neither routine nor freakish, but in the
middle. Then the test becomes significance; if the unusualness of the details is
significant in the outcome of the damage, then the damage was unforeseeable; if not
significant, then the damage was foreseeable.
 The thin skull rule, or "you take your victim as you find him": left unshaken by Wagon
Mound. (See Steinhauser v. Hertz Corp, 542, child developed schizophrenia after car
crash. P awarded damages)
Wagon Mound No. 2 (Overseas Tankship v. Miller Steamship) (Aus. 1967, 474)
 Facts: same as above, except here P 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 : 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. "Unforeseeability is irrelevant if damage is direct"
when a ship broke loose from its moorings, and drifted downstream to eventually block
the river and cause substantial flooding damage. They reasoned that just because the
risk of large damage is slight, that it should not be excused if it was direct.
Manner: Doughty v. Turner Mfg. Co., Ltd. (541) the court held that when an asbestos lid
was dropped into a vat of boiling chemicals, damage by splashing was foreseeable, but not
damage by violent explosion. Contrast Hughes v. Lord Advocate, where the explosion of a
paraffin lamp was held to be foreseeable, because it was not a "different type" of damage
than that by burning.
Improbability
 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.
 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. (May have been PP policy)
 Virden v. Betts and Beer Construction Company (2003, 545) P, a maintenance worker
at a high school, gets up on a ladder to fix a defect in the ceiling, and falls off ladder,
injuring himself. Defect in the ceiling was a result of negligent installation by the
contractor, D. P claims that the defect in the ceiling was the cause of his injuries H: D is
not legal cause of injuries D’s N is not proximate cause even if it is cause in fact. The
duty to install a solid ceiling is meant to prevent against it from falling and harming
someone, not to protect against workmen getting on ladders. Proximate cause should
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be defined by the purpose of the duty.
 Herbert v. Enos (2004, 547) D negligently lets his toilet overflow and P is electrocuted
in his yard while watering his plants. The water had gotten into the electrical system
and P suffered severe electrical shock when he touched the faucet. D is not liable
because negligence is too remote. Cause in fact is met but proximate cause is not
because there was no reasonable expectation that electrocution would happen if the
toilet overflowed. The result was so extraordinary that the defendant cannot be
expected to guard against it. Proximate cause cannot be found if a result is so
extraordinary that it cannot be foreseen.
 Ryan v. New York Central R.R. (N.Y. 1966, 436) D 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. 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. This is no longer good law, but does indicate beginnings of foreseeability
Class of P’s
Palsgraf v. Long Island R.R. (N.Y. 1928, 456) Man running to board D’s train, D 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.) : unforeseeable P’s are not covered because they are not within
the scope of the risk (thus Ry’s duty to Paslgraf was not breached because harm was not
foreseeable.) D violated no duty to P as to whom there was no foreseeable risk.
Dissent: (Andrews, J.) P’s injury was within the scope of D’s N, regardless of
foreseeability of victim (there was proximate causes, duty does not matter.) 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.
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Third Parties & Causation
Intervening Causes:
 an “intervening cause” is a force which takes place after ∆’s negligence and contributes
to the negligence producing π’s harm
o 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”
 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
Coincidence: where the negligent act exposes π to the risk and that risk occurs, ∆ is
proximate cause (Hines v. Garrett, 442)
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)
 When each of two successive acts is sufficient to harm the P, but the P is exposed to the
2nd cause only because prior negligence of 1st: Dillon v. Twin State Gas & Electric: boy
lost balance while trespassing on bridge and grabs D’s high voltage wires as he fell.
Current kills him, but D is only liable for boy’s exposure to the uncovered wires, not his
fall (P was deprived of only seconds)
 If the P acts in good faith to minimize the risk of loss from a dangerous situation of D’s
making, then those actions do not sever causal connection. Jones v. Boyce; Tuttle v.
Atlantic City (p501)
What Does and Does Not Interrupt Causation?
deLisle:
 Strong natural forces usually interrupt;
 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);
 independent and reflective acts do not nec. interrupt (Wagner);
 criminal and tortous acts do not nec. interrupt (Brower).
R2 §448: Causation where ∆ Negligently Creates an Opportunity for Criminal Activity
 ∆ 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
 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.
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 Brower v. New York Central & H.R.R. (N.J. 1918, 444): D’s N freight train collided with
P cart allowing bystanders to steal P’s goods. D claims that 3rd parties break causation.
Court held Negligent D is liable for foreseeable harms of intervening third parties. Cargo
was "lost" at the time of the accident because it put P in a position such that he could
not protect his cargo. The intervention of the thieves was deemed foreseeable by the D
because they employed their own detectives to prevent theft.
Dissent: The chain of causation was broken by the intervening criminal acts.
See Watson v. Kentucky (tank care with gas derailed b/c of D’s N. 3rd party threw
match on spilled gas w/arson intent. D is not liable)
Causality Not Truncated by Foreseeable Actions of Third Parties. Marshall v. Nugent
(1st Cir. 1955, 467) P was a passenger in a car when they collide with negligent truck
driver. Truck driver suggested to the P that he go around the curve to warn oncoming cars
of the expected danger. As the P was getting into position, the D pulled over to the left, went
into a skid, and ended up hitting P, causing serious injury. Court held truck driver 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. The truck driver’s
negligence could have been the proximate cause of the later accident, which injured the
plaintiff. The case should be taken to a jury.
The danger created by the negligent conduct was not completely over and the
situation had not become stabilized or normal when the accident occurred. It
does not matter that the exact situation was not foreseeable inasmuch as it
created more of a risk than just normally operating a car. Danger caused by
negligence is not completely over as soon as the negligent act ends. Thus, the
chain of proximate causation can extend beyond the immediate event. The truck
driver is liable if a jury finds causation here.
Pittsburg Reduction Co v. Horton (506) A young boy picked up the caps, and played with
them in plain view of his mother and father for a week before taking them to school and
exchanging them for some writing paper. The recipient tried to clean the caps with a
match and the explosion resulted in the child's loss of a hand. The mother's clearing
away of the caps at night broke the causal connection between the mining company and
the explosion.
Last Wrongdoer standard necessarily breached when the N of one D did not sever causal
connection (509)
 Suicide: modern cases usually allow jury to decide
 Johnson v. US, 512: convict hangs himself, psychological deterioration in jail. Posner
says no reason to believe that underlying unhappiness was caused by D or that a
session with shrink would have saved him.
 Fuller v. Pries, 512: doctor hangs seven months after accident. No causation.
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Duty Extends to Actors Not Breaking the Original Causal Link: Danger Invites Rescue
 Wagner v. International Railway (N.Y. 1921, 450) P and cousin were riding in a train.
The conductor did not shut the doors before the train got underway, and Herbert fell
out and over a bridge as the train turned a corner. P went to rescue (claims conductor
instructed him to do so.) P fell off the bridge in the darkness, and sued the D for
negligence, claiming that the failure to close the door was the cause of his injury
because he was trying to rescue his cousin. D denies that the conductor instructed Po
walk out on the bridge or followed with a light. Court held Liability for D. Volitional act
by P does not excuse the D’s proximate cause because it could have been foreseen, as
everyone knows, “Danger invites rescue.” D should expect and foresee that if they put a
victim in harm's way, that someone will step forward and attempt a rescue. Ct. rejects
the defense that the rescue was not immediate and "instinctive", stating that the rescue
does not need to be continuous with the injury.
Violation of Statute does not Mandate finding of Causation: Berry v. Sugar Notch Borough
(PA 1899, 502) P driving in storm through D’s town, speeding (violation of statute.) Tree
blows over and crushes P’s car, causing injury. P was speeding. And sues D for injury.
Verdict for P. P’s speeding was neither the cause of the accident nor contributory
negligence (violation of statute was coincidence, not cause, of the accident.) His actions did
not increase foreseeability or risk that tree would crush his car.
Strict Liability
: areas that resisted incorporation into Negligence
Steps in for liability even though D has exercised reasonable care.
Theory: worry about activities that require a lot of risk for small benefit in utility
Areas:
 Animals: within the scope of what makes the animal dangerous
o Wild
o Domestic
 Foreseeability of danger (warning signs)
 No foreseeability (unexpected lashing out)
 Abnormally dangerous activities
 Nuisance
 Products Liability
Wild Animals
defined by context and normal conditions of the animal (does it live in a zoo, a national
park, the city, & etc.)
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 Wild vs. domesticated animals:
 Wild animals : always SL
 Domesticated animals: only SL where there has been evidence of “dangerous
propensities”(where owner knows or has reason to know of the danger); If
owner does not know of dangerous tendency, then ordinary negligence
principles of foreseeability will apply
 Gehrts v. Batteen (SD 2001, 645): D visited girl’s home and girl asks to
pet dog in the back of her pickup truck secured by a harness attached to a
restraining device. D lets her and as Gehrts reaches to pet the dog, he
bites her face, causing injuries that require extensive medical treatment.
H: Dog owner not liable. No evidence that knew or should have known of
dog’s dangerous propensity; not foreseeable that the dog would attack
someone petting it.
 Baker v. Snell (Eng. 1908, ): D leaves dog to servant and P is bitten as a
result of a practical joke/dare by servant. H: Owner of dog is SL for harm
caused when owner knows of her animal’s vicious tendencies. Question of
whether the servant’s actions could have been a more appropriate place
of blame (for liability issues, depends on whether he was in the employ of
D when the incident happened. Judge says this is not relevant because D
should be liable for keeping a dangerous animal regardless.)
 Colier v. Zambito (807): P bitten by unprovoked dog while visiting D. D
had no knowledge, thus no liability.
 Dog bite statutes: removes the idea that the first bite is free
 Rationale for distinction:
 Reciprocal risks
 Extreme high cost of prevention
 Activity Level Adjustment - Assumption is that there is a requirement of
relocation or activity level adjustment, not an increase in exercise of care
(typical of SL cases)
 Owner is cheapest cost-avoider
 Deterrence for keeping wild animals in the first place
 Trespassing animals: SL for damage to property. Keepers of wild animals are
always subject to SL even if the animals is not known to be dangerous.
 Exceptions: N must be shown for animals in
 Zoos Denver v. Kennedy, 651: improper to apply SL to zoos which are
established in response to public demand.
 National parks: Rubenstein v. US, 651: D’s had put up signs warning of
bears so were not N when P got mauled while camping in Yellowstone.
Even under SL, D would be immune because the warnings dispatch duty
and P considered A/R
SL: Abnormally Dangerous Activities
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SL for dangers associated with activity in scope of what makes it dangerous in the first
place
General Principles:

Rest.2nd: 519: General Principle
 One who carries on an abnormally dangerous activity is subject to liability for
harm to the person, land or chattels of another resulting from the activity,
although he has exercised the utmost care to prevent the harm.
 This strict liability is limited to the kind of harm, the possibility of which makes
the activity abnormally dangerous.

Rest.2nd: 520: Abnormally Dangerous Activities: In determining whether the
activity is abnormally dangerous, the following factors are to be considered:
 Existence of a high degree of risk of some harm to the person, land or chattels
of others
 Likelihood that the harm that results from it will be great
 Inability to eliminate the risk by the exercise of reasonable care
 Indiana Harbor Belt R.R. v. American Cyanamid Co. (7th, 1990, 667): D’s
train leaked toxic fluid. P, the switching line, was required to perform
decontamination. H: (Posner, J.) The std. for liability shall not be strict
liability when the accident would have been prevented with due
care. This is not an ultrahazardous act b/c fails to meet reasonable care
will eliminate risk. Posner takes all factors and gives them a BPL
interpretation. Dangerous activity is the transportation of chemical,
not its manufacture (ADA applies to activities and not just the
production of the dangerous substance danger is derived from its
transportation)
 Extent to which the activity is not a matter of common usage
 Justifications: no reciprocity of risk, common expectations (knowledge of
how to take precautions)
 Inappropriateness of the activity to the place where it is carried on and;
 Extent to which its value to the community is outweighed by its dangerous
attributes

Rest.3rd 20: Abnormally Dangerous Activities – (latest iteration): A defendant who
carries on an abnormally dangerous activity is subject to strict liability for physical harm
resulting from the activity.
 An activity is abnormally dangerous if:
 The activity creates a foreseeable and highly significant risk of physical
harm even when reasonable care is exercised by all actors; and
 The activity is not a matter of common usage.
 Spano v. Perini Corp. (N.Y.,1969, 656): D’s blasting wrecked P’s garage on
nearby property. H: One who engages in abnormally dangerous activity, such as
blasting is held SL. (Old analysis was physical invasion of property, flying debris
and such; New analysis is just SL for abnormally dangerous acts.) Since it is not
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possible to engage in blasting with sufficient care to reduce risks, then the harm
should not be imposed on others. D is CCA.
 Extent of protection: : SL for harms that are within the scope of the unreasonable
risk (not all harms in the world)

Madsen v. East Jordan Irrigation Co. (Utah 1942, ): P’s minks are
frightened by nearby blasting and eat their young. H: No liability where effect is
unanticipated and unforeseeable (no proximate causation.)Mother minks
interrupted chain of causation. Blasting may cause certain sorts of harms, but
this is certainly not one we would expect. Has to fall within scope of harms
that actually make the activity dangerous. Purpose of activity doesn’t matter.
Not limited to D’s land (anywhere the activity is conducted.)
SL: Nuisance:
The intentional or negligent or abnormally dangerous activity that leads to unreasonable and
substantial invasion of plaintiff’s possessory/property interest in private use and enjoyment of
land. D may be acting reasonably, but action (if a nuisance) causes harm in SL sense.
Test:
1.
2.
3.
4.

Intentional (intent to act and know that acting may cause harm)
Unreasonable
Invasion
Private use/enjoyment of land (must be activity that ordinary people would be
bothered by.)
Determining reasonableness
 More than P should be required to tolerate: harm > benefit.
 Suitability of the invading use to the neighborhood where it takes place;
 Values of the respective properties;
 Cost to the defendant to eliminate the condition complained of; and
 Social benefits of allowing the harm to continue (RST 826(b))
 Degree of harm to the interest invaded.
 Substantial nuisance (significant harm)
 Courts in these cases tend to either come down either on the side of
unreasonable or substantial nuisance. A lot of courts that apply
unreasonable standard, however, will require some minimum level of
substantiality.
 Why wouldn’t we want to have a SL standard for small harms
(insubstantial) that do not meet BPL requirement for negligence?
 Inefficient, social costs
 Autonomy argument
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 Property rights are a social ideal and don’t extend to absolute right
to enjoyment of property free from any interference (property
rights are legal creation)
 Analysis
 What is the value of the activity vs. the harm (to all actors in the
community, not just the one harmed)? Rogers v. Elliot (692)
 What is a “substantial” invasion?
 Particularly sensitive P?
 Coming to the nuisance?
 How should damages be allocated? Injunction?
 Private vs. Public Nuisance
 Private Nuisance – non-trespassory interference with the P’s interest in
the use of enjoyment of her property.
 Public Nuisance – act by D that obstructs or causes inconvenience or
damage to the public in the exercise of rights common to all, or in the
enjoyment or use of common property.
 Private Nuisance
 No intentional invasion when no knowledge of harm: Vogel v. Grant-Lafayette
Electric Cooperative (Wis., 1996, 675): D provides electric power that causes
excessive stray voltage that harms animals of P, dairy farmers and members of
GLEC (coop that distributes electricity to their members.) Ps notify GLEC and
they fix. P later sues for private nuisance and intentional invasion. Holding: The
coop’s actions were not a private nuisance b/c was not intentional and once
they knew of harm, they came in and fixed the situation. Therefore was
unintentional and instead sounds in negligence.
 Nuisance law can apply to stray voltage claims (nuisance does not have to
be a physical invasion onto land; definition is sufficiently broad to be
flexible.)
 Question of what constitutes an “unreasonable or substantial invasion”
seem to require knowledge.
 Deprivation of light and air is not nuisance: Fountainebleau Hotel Corp. v. FortyFive Twenty-Five. Inc. (Fl, 1959, 687) P builds tower that casts shadow over D’s
pool and beach. P claims easement rights on the view, light, and air. D sues for
injunction preventing P from building further (the development is already
substantially underway.) PH: Temporary enjoinment grated, Fountainebleau
appeals. Holding: Land owners may use their property in any reasonable and
lawful manner, even if motivated by spite, so long as they do not thereby deprive
the adjoining landowners of any right of the enjoyment of their property. Light
and air is not a right of landowners recognized at law.
 As industrial ethic becomes less prevalent and economic ethic becomes
more prevalent, courts are less likely to follow this. Flaherty v. Moran:
Spite fences that have no other useful purpose are a nuisance.
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 Pah v. Maretti (Wi, 1982, 690) neighbor builds house that blocks out P’s
solar panels. Court repudiates Fontainbleau and says that unreasonable
obstruction of sunlight may be considered private nuisance (takes into
account emerging solar energy.)
 The Thin Skulled P: Nuisance must be objectively injurious: Rogers v. Elliot (Mass.
1888, 692): Church bell rang causing P, with serious sunstroke, to go into
convulsions. Holding: 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. Question of
what is reasonable given the circumstances and the effect upon people generally
(not those particularly over/under-sensitive, or upon the particular person who
happens to be affected by it.)
 Coming to the nuisance is not a complete defense: Ensign v. Walls (Mich. 1948):
Neighbors of dog-breeding allege private nuisance b/c of smells, barking, dogs
roaming the neighborhood. Breeder was there before the complaining
neighbors. Holding: There may be an actionable nuisance, even if the nuisance
predated the arrival of neighbors who are complaining.
 Coming to the nuisance is but one factor to examine in a balancing test.
Other factors are public health and safety. “Even if have carried on an
offensive trade for a number of years remote from buildings and public
roads, that does not mean that once houses and roads are built around
you you can continue your trade at will if it is a nuisance. That would
amount to control or impact on neighbor’s lawful use of land.”
 Although coming to the nuisance is usually not dispositive, it could be a
factor the courts will consider, especially with regard to damages.
 ‘Coming to the Nuisance’ Rule Theory
 Pro
o Provides notice
o P’s choice to move in
o Ps are best cost avoiders (Calabresi)
o P already compensated by lower cost of housing (Boomer)
 Anti:
o Nuisance a violation of property rights
o Would essentially allow private citizens to determine
zoning laws/control or impact neighbor’s lawful use of land
o Perverse incentives – each side motivated to build as
quickly as possible (over development)
o Non-reciprocal risks
 Nuisance damages (not specific performance) where utility of nuisance > Harm:
Boomer v. Atlantic Cement Co. (N.Y. 1970, 700): residential neighbors sue over
classic nuisance effects (smoke, noise, vibrations) Holding: Court acknowledges
nuisance but does not grant injunction, but instead damages to P. 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
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more feasible than either adjusting care level or discontinuing the bothersome
activity.
 Trial court is interested in encouraging changes, but very reluctant to
shut down factors (political reasons.) They have low confidence that the
factory can change their practices (with new R&D.) Thus, efficiency
gains overweigh property rights. Idea (theoretically) is to provide
incentives to spur better technology b/c won’t want to keep having to pay
damages.
Weighing Remedies and Injunctive Relief
 Injunctive Relief
 Advantages:
 Can provide benefits to would-be plaintiffs who are negatively affected by
the nuisance but whose AIC might not be sufficient to bring a suit or who
might not have the resources to do so
 CJ - If estimating plaintiff’s loss is hard to do, then this is easier solution
 Damages
 Advantages:
 Efficiency - Avoid potential hold out for more money, (leading to possible
of never reaching an agreement.)With damages, plaintiff gets what his
property is worth and no more.
 Can compensate P for loss without forcing major economic loss for D. D
pays for P’s loss to compensate for negative externality but it is worth it
because his property/use is worth more.
 Disadvantages:
 Subjective valuations of property by homeowners
 Transaction costs and additional problems of multiple Ps
 Allows you to buy the right to engage in the nuisance (Boomer – buys
right to pollute)
 Goes against CJ instincts (doesn’t stop harm, D can buy right to engage in
nuisance, hard to quantify the harm to P)
 Purchased Injunction
 Plaintiff can enjoin the defendant but only if compensates him for loss incurred.
(Ex. Spur Industries - plaintiff brought residents to the nuisance and now must
compensate defendant for reasonable amount of moving or shutting down)
Calabresi & Melamed, Property Rules, Liability Rules and Inalienability, (Supp, by
deLisle ed., 1998). Four possible remedies for solving nuisance activity from the
perspective of efficiency. In perfectly efficient world it would not matter which rule you
chose b/c parties would simply buy and sell, and bribe their way to perfect equilibrium <In
a perfectly efficient world the parties would not have bothered to go to court b/c they
would have been able to negotiate w/ ea. other and come to a perfectly efficient resolution
w/o the loss of admin. and ct. costs>
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1. Polluter Is Enjoined: This rule is used where the polluter is the cheaper
cost avoider. Is efficient, if the ct. is correct in determining who really is the cheaper cost
avoider.
2. Polluter Pays Damages: This rule is used where the ct. cannot determine
whether the polluter desired to pollute more than the P desired to be free from pollution.
The negative side effect is that sometimes it forces co. out of business.
3. Polluter Wins Litigation and the Status Quo Prevails: Good
distributive effects (C&M mean that money is not redistributed, and they prefer it that
way), but possibly bad efficiency effects if polluter tries to later buy out the P due to
possible hold-out problem.
4. Polluter is Enjoined, but P must Pay Damages (Spur): This rule has the
advantage of accomplishing distributional as well as efficiency goals. It is efficient to the
extent that the P removes the nuisance that was previously preventing perhaps numerous
homeowners from enjoying their property. We max efficiency by allowing more people to
get more use out of their land than was possible before. This rule also accomplishes
distributional goals to the extent that the polluter is not required to fire its employees, and
instead may move and continue operations elsewhere. The employee’s jobs are thus not
distributed away into the homeowner’s enjoyment of land.
Critique: <This of course is not strictly true, since it may take years for a factory to move
and employees will be forced to find new employment in the interim anyway. Most
employees will never return. In addition, it assumes the polluters don’t just take the money
and run. Polluters aren’t required to set up shop elsewhere, in which case employees lose
their job, not only in the short run, but forever. C&M want to set this arg up as if P were
really suing employees, making P’s look more repellant and litigious. C&M don’t want to
discuss the issue of “distribution” is really from the pockets of the elites, to Boomer and the
community, of which many of the employees are likely to be members.>


Public Nuisance
Private Action in Public Nuisance - General damages from public nuisances are
controlled only by direct public action, usually administrative or criminal.
Private action is maintainable only for “special” or “disproportionate” harm
to the individual plaintiff. To maintain private action for public nuisance, have
to show that your injury or inconvenience particularly extreme. (Ex: Obstruction
on a public road is a public nuisance, but also a private nuisance if blocks my
driveway.)
 Private Action for Public Nuisance Requires Disproportionate Harm: 532
Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc. (2001):
Consolidated cases: All involving major construction collapses in NY that
required streets and businesses to be closed for a number of weeks. Ps seek
damages for economic loss, saying their businesses were more adversely
affected. H: The injury suffered by the plaintiffs was common to businesses in
the entire area – only difference perhaps some degree – so cannot recover. A
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public nuisance is actionable by a private person only if it is shown that the
person suffered special injury beyond that suffered by the community at
large.
 Distinguishes from Leo where commercial fishermen brought private
action against companies spilling PCBs into water based on severe
economic loss b/c of affect on fish – in that case, they were distinctly
harmed and their kind of harm was unique. This type of action can be
seen as a tort action to a nonowner to prevent the premature destruction
of valuable resources (so could maintain even though didn’t own the fish
so couldn’t bring a tort action, e.g.)
 Public Nuisance Action Requires Control over Source of Nuisance: Camden
County Board of Chosen Freeholders v. Beretta, USA Corp: Camden County
bringing action against handgun manufacturers for damages incurred as a result
of crime by guns that they say have been in part created and exacerbated by the
defendant. H: Manufacturers of lawful products that are lawfully placed in the
stream of commerce cannot be held liable for a public nuisance that results from
the eventual unlawful use of the product. Too remote and intervening parties.
For a public nuisance to be actionable, the defendant must exert a degree of
control over its source.
 The limited ability of a defendant to control behavior outside of its sphere
explains why public nuisance law has been limited to real property and
violations of public rights. No duty to control the conduct of third parties.
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Products Liability___________________________
M. Cheng
______________
Categories of Defects:
1) Manufacturing Defects
a. In the manufacture of the product it was improperly made
b. True S/L applies
2) Design Defects
a. In the original design of the product there was a defect
b. Closer to a neg std; if are aware of unavoidable danger then either must
“obvious” or must have properly warned/guarded against
i. Consumer Expectation
ii. Risk-Utility Calculation
3) Warning Defect
a. Failure to adequately warn about potential dangers
b. Something slightly tougher than neg std
Defenses by Manufacturers
1) Negligence: (1) contrib. negl.; (2) state of the art technology was used but no
system is perfect and we all, as a society ought to bear that cost (a kind of reciprocal
risk arg). Most cts apply comparative fault principles.
2) S/l: (1) assumption of risk implied where P had knowledge of risk (e.g. didn’t heed
warning); (2) abnormal use or misuse that is not reasonably foreseeable is not
protected; (3) argue that defect was not proximate cause of harm, (4) alteration
after it was sold.
I. Manufacturing Defects
New Rule on SL – RST (3d) 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.
 Removed any distinction b/w bystanders and the consumer/user.
 This one has been slightly more controversial. Some courts follow.
Comment i: Unreasonably Dangerous: Must be unreasonably dangerous in that must be
dangerous beyond the extent contemplated by the ordinary consumer, with the ordinary
knowledge common to the community as to its characteristics. (Ex: Knife is not
unreasonably dangerous. )
Comment k: Unavoidably Unsafe Products

There are some products that are incapable of being safe in their ordinary
and intended use (certain drugs, vaccines) but whose use is justified b/c the
benefits outweigh the risks/costs.
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M. Cheng
Where something is unavoidably dangerous, if it is properly prepared
and accompanied by proper directions and warnings, it is not defective
and not considered unreasonably dangerous.
Also would apply to new/experimental drugs that have not had adequate
long-term testing in order to guarantee safety.
Requirements for Liability:
1. Must actually have been defective when it was sold. Generally, SL does not apply to
used goods or sellers of used goods.
2. No difference between product and its packaging.
3. Defects are not benign.
4. In order to prevent unreasonable use, sometimes must provide warnings or directions as
to proper use.
5. Contributory negligence – like with all SL areas – does not apply when it refers merely
to the failure to discover the defect or guard against it. But if it consists in voluntarily
and unreasonably proceeding to encounter known danger (assumption of risk) it is a
defense (again, as in other areas of SL).

RST 402(A) (748): Special Liability of Seller of Product for Physical Harm to
User or Consumer
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 w/o substantial
change in the condition in which it is sold.
2)
The above-state ruled applies although
a. Seller has exercised all possible care in the preparation and sale of the
product, and
b. The user or consumer has not bought the product from or entered
into a contractual relation with the seller.
1. Doesn’t allow for recovery by third-party/bystander, but most
courts will allow this.

Old Privity Rule: Manufacturer and P had to be in “privity of contract” so that if the
injured party didn’t purchase directly from the manufacturer, couldn’t sue.
o Winterbottom v. Wright (Eng., 1842, 728) Plaintiff, a mail coach driver, was
seriously injured when a vehicle broke down due to lack of repair. Defendant
had contracted with the Postmaster General to keep the coach in safe and
secure condition. Defendant failed to comply with this promise, resulting in
Plaintiff’s injuries. Does P owe a duty? H: No. Judgment for the Defendant.
 P is not privy to the contract entered into between the D and the
Postmaster General. D thus owes no duty (P wouldn’t be able to sue in
K, so should not be able to sue in tort
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MacPherson and Escola cases mark Shift to Strict Liability for Manufacturing
Defects
o MacPherson v. Buick Motor Co (NY 1916, 731) D buys wheels from a
separate manufacturer and sold car to retailer, which sold the vehicle to P.
Vehicle suddenly collapsed, because a spoke shattered which was
manufactured with defective wood. Plaintiff was thrown from the car and
injured. D did not inspect the wheel before selling the automobile to the
retailer even though defect was easily discoverable if it had been inspected. P
sues, saying D was negligent in not inspecting the wheels on the automobile.
D claimed there was no duty of care to anyone but the immediate purchaser.
H: There is a duty owed and D is negligent
 if a manufacturer is supplying goods in which a danger may be
foreseen if its construction is defective, there is a cause for
negligence. In this case, it was apparent that an automobile is a good
which fits this description. It could be foreseen that if the wheels are
defective, and an automobile is traveling at fifty miles an hour, an
injury would almost be certain.
 It should have been apparent to defendant, however, that an
automobile retailer, by nature of its business, would not use the
vehicle and would resell it to the general public. Therefore, the court
felt that it could be reasonably foreseen by defendant that plaintiff
would be injured by a defect in the wheels and therefore a duty of care
was owed.
o Escola v. Coca Cola Bottling Co. of Fresno, CA (1944): Waitress puts coke
bottles into fridge and bottle explodes as a result of a defect, causing injury.
H: Shift to strict liability for manufacturing defects.
 Rationale:
 Least Cost-Avoider and Ability to Spread Loss: Consumers
are unprepared for injuries caused by defective products. Such
costs can be devastating for individual consumers and
manufacturers are in a better position to insure against
damages and distribute costs among public.
 Note: Fairly radical claim that goes outside of
traditional area of torts.
 Public Policy: It is in the public interest to discourage the
marketing of defective products. Technology-forcing –
encourages development of safer products.
 Asymmetry of Access to Information: The inner workings of
a manufacturer’s company are a mystery to most consumers
and are often not in a position to refute or put forth evidence
regarding the negligence of the manufacturer, as the
manufacturer himself is. Manufacturer has information about
other products and potential defects. More on notice than
consumer.
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
It is hard to prove negligence. So this might be the only way
to adequately discourage defective products. (RIL-type
argument).
 Corrective Justice – people take these products into their
home based on faith that product is safe. Reciprocity of risks.
o
But manufacturer’s liability should be defined in terms of the safety of the
product in normal and proper use, and should not extend to injuries that
cannot be traced to the product as it reached the market.
o
This is a move away from the rule that contract law governed liability
for defects under law of express or implied warranty. Manufacturer can
no longer define the scope of his liability – not governed by contract but by
tort law. Warranties cannot indemnify against liability for injuries caused by
defective products.
Circumstantial evidence: Pouncey v. Ford Motor Co. (5th Cir. 1972): P injured when
radiator fan blade broke away. H: Manufacturer liability may be proven by meeting a negl.
std. based on circumstantial ev. Note: This is in fact a borderline negl. s/l case, though the
ct. calls it negl. Modern trend is that you’re not required to show that the product wasn’t
made acc. to design. That it broke is evidence enough of fault.
Foreign contaminants: Mexicali Rose v. Superior Court (Cal. 1992): Choked on chicken
bone. R: 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. H: Manufacturers strictly liable for foreign contaminants but only
negligence std for natural contaminants.
Ruling out other causes: Speller v. Sears, NY (2003): Basic idea is that P can win w/o
proving that a particular defect existed or caused the harm, only has to rule out other
causes. There is an RIL-type analysis, though is different b/c here there is no requirement
that the plaintiff show that in the absence of negligence would not have happened, b/c we
are talking about SL and don’t care about negligence.
Design Defects: There are several standards for determining what is a design defect.
Among them are:
I. Consumer Expectations: products that fail to perform as an ordinary consumer
would expect when used in an intended or foreseeable manner. Problematic
when there are overly high or low stds. (New RST moves away from this)
a. What would the reasonable, average consumer expect? (Linegar, Halliday)
b. But do consumers always have expectations about safety? And can we
measure that? Potter – keeps nominally the consumer expectation test but
recognizes its limitations and allows for risk-utility test in other situations
c. Consumer expectation test seems to only really apply to a narrow set of
cases (guns, bullet-proof vest), b/c often expectation does not match the
actual safety of a product (certain meds, cars) – consumers are not always
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adequately informed. Depending on the situation, one test might be more
exacting than another.
d. Also what is foreseeable and intended use?
e. So there is often need to apply risk-utility to better match reality of
circumstances
i. Risk-Utility Calculation: must balance safety w/ price, aesthetics and
utility.
1. Alternative design? Feasible and not excessively expensive?
2. Gravity and likelihood of the harm?
3. Benefits?
ii. Have we slid all the way back to negligence?
1. Courts do discuss negligence factors (CBA), but also add other
factors
2. Not strictly limited to dangers that are foreseeable and
undiscoverable
3. More backward-looking risk-utility balance than usual neg
test (w/ exception of state of the art def and consideration of
whether improvements came after the incident)
S/L vs. Neg: Where do courts tend to fall in terms of design defects?
The vast majority of courts will apply the risk-utility-balancing approach – will run the
spectrum from pure negligence (Volkswagen) and need to show some alternative design
that would have prevented harm (Barker, Piper)… to no need to show alt design if can
show that it is unreasonably dangerous (Mushkin).
Most courts often use both consumer expectation and risk-utility – balance against one
another.
Consumer Expectation/Foreseeable Risks:
Foreseeable Use: Intended use and any reasonably foreseeable use. Not a defense to argue
that didn’t use the way they were supposed to if that use was foreseeable. But the
foreseeable misuse std creates moral hazard problems b/c could encourage reckless
behavior. And it also transfers costs from careless to careful users b/c the manufacturer
cannot differentiate to what kind of user they are selling.

Defective Design & Foreseeable Harm - A Negligence Std
o
Volkswagen of America, Inc. v. Young (Md. 1974):

P killed when seat ripped away from floorboards during a rear-end
accident. Rule: An auto manufacturer is liable (but not s/l) for a defect
in design which the manufacturer could have reasonably foreseen
would cause harm, which was not patent or obvious to the user, and
which does in fact cause injury in a collision. A car is not only intended to
drive but to transport someone safely. Does not matter that this was a
“second collision” as long as defect caused or aggravated harm.
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This is a negligence standard and is an outlier -- is as far
toward negligence standard as courts go with design defects. This
standards is NOT the law in most jurisdictions.

Defective Design & Foreseeable Harm – More S/L Std
o
Phillips v. Kimwood Machine Co. (1974):

Employee is hurt while operating sanding machine, but employer had
not purchased another instrument that was supposed to go with it and
the machine had been used contrary to instructions by the
manufacturer’s employee. Rule: To impose liability there has to be
something about the article which makes it dangerously defective
without regard to whether the manufacturers was or was not at fault for
such condition. The test is whether the seller would have been
negligent if he had sold the product knowing the risk involved (s/l
imposes constructive knowledge of the condition). This is essentially the
same test as the RST 402(a) test about consumer expectations –
foreseeable risks.

This moves back toward a strict liability test. Not just whether
did or should have known, but whether might have known.

With Knowledge of a Defective Design
o
The Pinto: Grimshaw v. Ford Motor Co. (Cal. 1981): Ford aware of Pinto’s
dangerous structural problems and in this case a Pinto did burst into flames
upon rear impact. H: Strictly liable where manufacturer acts maliciously and
w/ a conscious disregard for public safety. Efficiency and BPL arguments are
rejected. Ford did a B vs. expected litigation costs analysis and betting that
prevention will still cost more. Ex. of defendants not really doing the full BPL
analysis.

Use of standards to see if negligent: statutory requirements
or guidelines? Compared to other similar models? Cost of making
the product safer? Knowledge of the potential harm?
Risk-Utility Calculation:

Utility and Consumer Expectation as Alternate SL Stds. in Product Design.
o
Barker v. Lull Engineering Co. (Cal 1978) P injured while operating D’s high
lift loader on a construction site. Rule: A product violates s/l test of
unreasonably dangerous design where (1) 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. (see below for factors). After P has made a prima facie showing
that a design defect was the proximate cause of his injury, burden shifts to D to
prove that his product is not defective.
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Alternative Design showing must demonstrate that by
comparison the alt design would have prevented the harm and
would be reasonable. Or, must show that there is no such
reasonable alternative design.
Essentially applying the CBA as method for determining
liability, especially where CE doesn’t work.

Consumer Expectation and Utility in Determining Design Safety
o Linegar v. Armour of America (8th Cir. 1990):
 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).Court applied the “open and obvious” approach (the
fact that vest didn’t fully cover parts of the body was obvious and
didn’t expect protection in those parts of the body). Reasons why a
purchaser would choose this model (less confining, less expensive)
and no reason manufacturer should be held accountable for that
choice. To hold them liable would be to make the company an insurer
for anyone shot while wearing a vest, regardless of whether shot
actually penetrated the vest.
 Apply Risk-Utility to this Case:
o Technical Feasibility – yes. D actually makes a vest that
would cover that area.
o Functionality/Safety – mobility. It alters the design and
some of the benefits.
o Cost – costs will be increased. And could prevent some
from being able to afford vests at all.

Modified Consumer Expectation Test w/ CBA.
o
Potter v. Chicago Pneumatic Tool Co. (Conn, 1997):

Plaintiffs injured by repetitive use of tools caused permanent injuries
as a result of excessive vibration of the tools. H: Court refuses to let go of
the “consumer expectation” test for design defects, but allows that in
certain situations where not useful or b/c product is very complex, then
courts should weigh the risks and utilities (do CBA analysis). But the
consumer expectation test is appropriate when the everyday
experience of a particular product’s users permits the inference.

Potter court is really recognizes the limitations of the
consumer expectation test and is allowing for risk-utility
balancing test in other situations

Safety as One Element Among Many
o
Wilson v. Piper Aircraft Corp. (Or. 1978):
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Plane crashed due to icing conditions (P theory). H: P’s proof of a
safer alternative design must also meet a general CBA of overall design,
and further, older models need not be considered unsafe simply due to
comparisons with newer, safer models. Negligence analysis. P has to
offer an alternative that is practicable in terms of overall
design/operation, and that considers other possible risks other than the
one in question.
Risk Utility Formula for Calculating Design Defect Liability
(1) utility of the product to the public as a whole;
(2) likelihood of product causing injury and gravity;
(3) availability of substitute material with better safety properties/alternative designs;
(4) manufacture’s cost of eliminating unsafe aspects of product, including potential to
create other/greater risks;
(5) user’s cost of avoiding the product’s proposed danger;
(6) anticipated user awareness of product’s dangers; and
(7) feasibility of manufacturer spreading the loss.

Products Intended to Be Dangerous.
o
Halliday v. Sturn, Ruger & Co. (MD, 2002): Boy shoots himself with playing
with his father’s handgun and his mother brings suit against the gun
manufacturer for liability for death. Gun had come with safety warnings about
where to store the gun so that kids couldn’t get to it, but father ignored. P bases
claim on CBA (alt designs for childproof, etc.). Court applies consumer
expectation. H: Legislature has not chosen to place this kind of burden on gun
manufacturers so court decline to do so.
o
Martin v. Harrington & Richardson (7th Cir. 1984): Suit being brought
against gun manufacturers for making a product that kills. R: Liability acc. to
Rest 402A extends to dangerous activities not products that are dangerous.
Rationale: Would have to likewise ban knives, drugs, alcohol, tobacco and red
meat.

Ex: Semiautomatic pistols (“Saturday night specials”) that have no
other use other than sale to criminals. This kind of sub-category of
product that might flunk CBA. This is about the design of a subcategory. Generally, courts won’t disallow an entire type of product (guns,
tobacco, etc.). But this is an outlier-case.

State of the Art Defense
o O’Brien v. Mushkin Corp. (N.J. 1983):
 P dove into 3 1/2 feet of water head first, hands slipped off the slippery vinyl
bottom and bashed his bone head. Rule: State of the art defense not
sufficient to exculpate (i.e. D argued no other material was any less slippery
or really used in any other pool). P’s CBA need not exhibit alternate safer
designs, only need to show that the material/risk is just too dangerous. Very
pro-P standard and extreme on the S/L side (opposite of Volkswagen).
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This was overruled by NJ statute – this is not really good law any more.
Limitation on “Open and Obvious” Defense
o Micallef v Miehle Co. (N.Y. 1976):
 P injured hand chasing a hickey. H: Open and obvious danger is not enough
in and of itself to exculpate a manufacturer from liability unless the
design defect remedy would have been prohibitively expensive, or would
have resulted in diminished effectiveness of the product. Rationale: Ct.
critiques old Campo “open and obvious” defense: (1) is a hold-over notion of
tort-as-fraud; (2) violates CJ notions of wrongful harm; (3) proximate cause
is present b/c harm is foreseeable, and that is enough.
deLisle Overview of Liability Std. for Drugs. Design defect has three stds. that have been
applied to drugs.
1. Straight s/l in Barker: May use the two part Barker test: (1) consumer
expectation or (2) causation with CBA of overall design, will find liability.
2. S/l most of the time in Kearl [840]: S/l for drugs generally, but negl. std.
if the drug (1) was expected to confer exceptionally important benefits, (2) posed a
substantial but unavoidable risk, and (3) was considered so valuable that its availability
o/w public interest in enhanced accountability.
3. Negl. test generally, under Brown (infra): Do a CBA to test drug, and
test for foreseeability of harms claimed by P.
K. deLisle Explains Why Drugs are Ana Separately from Other Products: Most
products produce a large number of medium to low level harms, whereas drugs tend to
produce a few high level harms. Drugs of course also provide tremendous benefits. People
are unable to subjectively process statistics, so that a few anecdotal cases of a
tremendously rare side effect has a disproportionate affect on people’s opinion of the drug.
deLisle thinks that drugs aren’t really different from other sorts of products in kind, just
degree, and thus ought to be ana similarly. The cts., however, disagree.
III. The Duty To Warn

Duty to Warn: Used when changes in the design are not practicable b/c would alter
their intended used (e.g. drugs).
o Required Where:
 Known/should have been known
 Somewhere b/w obvious risk and weird/unintended – some
level of reasonable foreseeability
 Above a certain threshold of danger/possibility
o Requirements:
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Warning must be sufficiently clear and intense to convey the danger
to the average consumer.
 Warning may not be buried in other warnings, unless an learned
intermediary (doctor) is available to sort the data.
 Open and obvious is only a defense when a warning would not
have changed the P’s behavior (child with lighter, for ex.).
o Standards/Defenses:
 Something slightly tougher than negligence std so even if didn’t
know about the danger, could be held liable if cts determine that they
should have known through reasonable testing and prudence. But still
closer to neg than s/l.
 State of the art defense usually works (Vassallo)
 Can also raise federal standards/regs (FDA labeling stds), but this is
NOT absolute defense, just a factor (Vasallo)
 What about if the possibility is very small? (mass vaccination)
Reasonableness std.
 Cannot warn your way out of every defect. Some improvements might
still be necessary.
o Unintended uses:
 Completely weird and outside the realm of foreseeability – no liability
(using a chain saw to file your nails)
 Foreseeable misuses – could be found liable (speeding w/ sports car)

o Causation:
 Need to prove that if had provided adequate warning, would have
prevented the harm/not taken X action. Defaults into reasonable std.
o Problems:
 If there is too exhaustive a list of potential harms, could dilute the
warning. You wind up under-deterring.

RST 420: Comment j
o Warnings may be necessary to prevent a product from being unreasonably
dangerous. (Applies to unavoidably dangerous products. But warnings may
not be sufficient – might need better design.)
o If product contains an ingredient to which a substantial number of the
population are allergic (peanuts, penicillin), and the ingredient is either one
whose danger is not generally known (silicone) or which the consumer
would reasonably not expect to find in the product, the seller is required to
give warning against it, if he has/should have knowledge of the presence of
the ingredient and the danger.
o Manufacturers are NOT required to warn about ingredients that are normally
safe but become dangerous if there is excessive consumption (not required
to warn that if you drink 10 gallons of water at once could kill you).
 Duty To Warn the Patient Directly
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o MacDonald v. Ortho Pharmaceutical Corp. (Mass. 1985): P injured from a
stroke caused by birth control pills. The pills included warnings about other
side effects, but not stroke. H: Prescription drugs (really just BCP in this
csae) for which the patient is so actively involved in choice and dispension of
the drug, so that the physician has a relatively passive role, must bear
explicit warnings directed at the consumer, about its possible side effects.
(The warning was also inadequate b/c stroke is a significant side effect.)
Patient usually doesn’t have to take BCP over any other method, so is actively
making a personal choice. Because of long-term use and annual refills, view
that doctor isn’t really regularly revisiting.
 This case is an exception due to the nature of the product and
the passivity of the intermediary. (see also vaccination
campaign).Risks: The list gets so exhaustive that is ignored
and dilutes warnings.
 The general rule is that manufacturers need only warn the
“learned intermediary” and not the patient. Generally, the
view is that the doctor is better equipped (has your medical
history) to give useful and particular advice about a medicine
to the patient. Can appropriately tailor the warning b/c
differs from patient to patient.
o Harris v. American Home (5th Cir, 1999): took opposite view, holding that
drug manufacturers only had duty to warn the learned intermediary
(doctor).
o Perez v. Wyeth Labs (NJ, 1999): imposed drug manuf duty to warn
consumers directly in light of Wyeth’s massive ad campaign directed at
women, including in women’s mags.
o Reyes v. Wyeth (5th Cir, 1974): court held that manufacturer of polio vaccine
that was dispensed in a mass vaccination campaign where there was no
opportunity for a physician to be involved had a duty to make sure the
warnings about 1 in a million chance of causing polio. But should the court
take into account the stats of what happens if no one gets the vaccine – would
be much higher.
 Adequacy of Warnings to Patients
o Vassallo v. Baxter Healthcare Corp. (Mass, 1998):
 Ps silicone breast implants ruptured, causing injuries. Company had
info about tests done by company that supplied the silicone of toxicity
and potential for rupture. Furnished warnings to physician about
some possible side effects, but not others. And other dangers didn’t
know about. H: D will not be held liable for failure to warn about risks
that were not reasonably foreseeable at the time of sale or could
not have been discovered by way of reasonable testing prior to
marketing the product. A manufacturer will be held to the standard
of knowledge of an expert in their field, and will remain subject to a
continuing duty to warn of risks following sale of the product.
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
The state of the art defense. Most courts will employ
something somewhat tougher than neg in that will not just
look at what actually knew but will consider what should have
known based on industry standards. (Few cts go all the way to
s/l that don’t care whether was even possible to know about
the danger.)
o Seminal Asbestos Case - Borel v. Fiberboard Paper Products Corp. (5th Cir.
1973): Asbestos injured an insulation worker. H: Manufacturers have a
duty to warn all workers of the dangers of that product so they could make
informed choice.
o Hood v. Ryobi America Corp. (4th Cir, 1999):
o Man is injured when using a mitter saw that he purchased after he
removed blade guards, which the instructions had explicitly warned
against doing. He claims that the instructions never indicated the
consequences of not following the warning. H: The manufacturer
doesn’t need to warn of every possible mishap or source of
injury, just a reasonable warning under the circumstances of
what should/shouldn’t be done with the product.
 Open and Obvious/Foreseeable Risks
o Liriano v. Hobart (2d Cir 1999)
 Seventeen yr-old P caught hand in meat grinder from which employer
had removed the safety guard. No warnings were given that it was
dangerous to remove the safety guard. Rule: If the injured person is
fully aware of the hazard through general knowledge, observation
or common sense, or participated in the removal of the safety device
whose purpose is obvious, may obviate failure to warn.
Theory
Warnings in Products S/l: Guido Calabresi & Jon Hirschoff, Toward a Test for Strict
Liability in Tort
 Adequacy in Warning in s/l product defect cases is really an analysis of which
party is the cheaper cost avoider.
o A warning does not necessarily preclude a user from recovery if the
manufacturer was in a better position to avoid costs (know about the risks or
discover them) by doing further research or by implementing risk reducing
technology. Warnings are only adequate as a defense where the user
was in fact the cheapest cost avoider. Ex. of where warnings are effective
to avoid liability: birth control warns of cancer and there are other devices
out on the market that do not pose such a risk. In such a case the user is the
best cost avoider because she has a real choice to use or avoid the product.
2.
Effective warnings are much like assumption of risks.
o Under theory of strict liability, assumption of risk operates as a complete bar
to recovery. “It is, and always has been, a kind of P s/l—the other side of the
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coin of D’s s/l.” [218] There are limits on assumption of risk and they track
who is the cheapest cost avoider (compare first vs. secondary implied A/R).
 “The first limit was usually put in terms of whether the injury
stemmed from the risk whose presence was the reason for making the
activity s/l.” For example a transporter of explosives may be s/l for
harm done by the exploding, but not for the harm done when the
barrels of explosives roll off the truck and crush your foot, absent
explosion.
 “The second limit was usually put in terms of whether the victim had
done something which, though not necessary negligent, had especially
exposed him to the risk.” For ex. a zoologist may enter a tiger cage to
study large cats, and do so carefully but suffer injuries. He has
assumed the risk.
3.
In products s/l the cts. prefer to analyze on a case by case basis to determine
who is the cheapest cost avoider instead of just assuming that it tends to be
manufactures or it tend to be victims.
4.
In cases of a third party victim, that victim must prove that the party she has
decided to sue, either user or manufacturer is in fact the cheapest cost avoider, in order
to prevail.
IV. Proper Defendants


Who are “sellers” under RST 402(a)?
o Includes not just the original manufacturer, but anyone downstream
(wholesalers, retailers) – they are held strictly liable b/c they have no control
over the design/manufacture.
o Rationale:
 Holding intermediaries liable will put pressure on manufacturer to
fix defects. May be in a good position to inform manufacturer of
defects b/c of direct contact w/ consumers. So if are held liable then
there is incentive for them to communicate complaints/injuries
to manufacturer.
 Can spread costs by either paying manufacturer less or charging
consumers more
o Strict Liability for ppl downstream (b/c their lack of involvement is
irrelevant)
Issues:
o But what happens when product is bundled with a service? (Cafazzo)
 Doc/pharmacists not held s/l for products
o What about someone who buys a used product and re-sells as a business?
(used goods store)
 Generally, they are not held s/l for defects (other than wear of use).
Rationale: There aren’t the same sorts of incentives, ability to spread
costs as there are w/ original retailers. Also view the used product
market as valuable b/c provides access to goods that would otherwise
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not be affordable – b/c are talking about lower market, the costs of
inspection/liability would likely outweigh the benefits.
o What about when altered in some way?
 Cafazzo v. Central Medical Health Services (PA, 1995): Patient tries to hold hospital
and doctor strictly liable for the defective prosthesis they implanted. H:
Doctors/hospitals are not “sellers” under the meaning of 402(a) and cannot be
held liable for defective products. Doctors/hospitals can only be held liable for their
own negligence.
o Rationale:
 You are paying for a service. Generally, courts hold that when a
product is ancillary to service, the intermediary is not held strictly
liable for product defects. (Can always hold acc for neg.)
o Doctors/Pharmacists NOT held strictly liable for injury caused by
products.
V. Plaintiff’s Conduct
 RST (3) 17: Apportionment of Responsibility Between or Among Plaintiff’s
Sellers and Distributors of Defective Products
o A plaintiff’s recovery of damages for harm caused by a product defect may be
reduced if the conduct of the plaintiff combines with the product defect to
cause the harm and plaintiff’s conduct fails to conform to generally
applicable rules establishing appropriate standards of care.
o The manner and extent of the reduction under (a) and the apportionment of
plaintiff’s recovery among multiple defendants are governed by generally
applicable rules concerning responsibility.
 So generally, plaintiff’s conduct is governed by comparative fault
principles (either pure comp neg or partial comp neg).
o Comment d: Latent Defects
 When D claims that P failed to discover a defect, there must be
evidence that P’s conduct in failing to discover the defect failed to
meet reasonable standard of care.
o Comment a: Contracting Against Liability
 Courts rarely allow a disclaimer or limitation for liability to bar a valid
products liability claim. In large part this is due to adhesive and
unilateral nature of such disclaimers.
 Foreseeable Misuse
o LeBouf v. Goodyear Tire and Rubber Co. (5th Cir. 1980):
 Overpowered car equipped with normal speed tires. Buried in
owner’s manual was a warning to use high-speed tires for high speed
driving. Drunk defendant was killed when tires separated at 100105mph. H: D shall be liable for injuries to P even where P misused
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D’s product if D may have reasonably foreseen P’s misuse, and did
not take steps to provide adequate warning. Rationale: Contrib. negl.
and assumption of risk defense is rejected here. Ford marketed the
car to be driven in excess of 85mph.
 Comparative Fault Still in Effect in S/l Product Cases
o Daly v. General Motors Corp. (Cal 1978):
 Drunk P thrown from auto wreck due to prob with door. H: S/l in
auto manufacturing defects does not preclude using comparative fault
principles (in fact, more beneficial to P b/c under S/L assumption of
risk completely bars recovery). A P’s negl. conduct should reduce his
recovery. Dissent: (1) Econ -- 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.
1) But the counter-argument to dissent is that this doesn’t really
decrease incentive b/c can’t count on the fact that plaintiff will
be negligent.
o
deLisle Notes: Most jurisdictions do introduce comparative fault of
plaintiff to reduce recovery.. Assumption of risk still stands in products
liability (“Flopper”), but it tends to be construed very narrowly (Messick).
 A/R not Present in Use of Defective Product if Use is Not Both Voluntary and
Unreasonable
o Messick v. General Motors (5th Cir. 1972): P continued to drive car he knew
to be faulty, and soon crashed due to those faults. H: P may recover even
when he is aware of product defects as long as his use of the product is not
both voluntary and unreasonable. Rationale: P had to use car to get to work.
4. Vicarious Liability (respondeat superior: “let the superior answer”): employer is liable
for employee even without negligence (employer is added as additional D) usually pretty
goal oriented
a. Test
i. Act of an employee (independent contractors excluded.)
ii. within the scope of employment (acts committed during a “detour” but
not a “frolic”) (Ira Bushey & Sons c. US: D is vicariously liable for drunken
sailors)
b. Defenses: Imputed contributory fault: needs true joint enterprises (rare) where
P’s N is imputed to the actor.)
c. Justifications
i. Employer probably is in better to make activity level adjustments and
research decisions
ii. Cost spreads to a D that has deeper pockets (loss distribution)
I. Compensatory Damages
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a. Percuniary damages: tangible monetary losses
i. Lost wages
1. Estimation
2. Inflation & interest
3. Mitigation
ii. Out of pocket expenses (medical expenses: Duncan v. Kansas City:
jury estimated a larger lifetime than was reasonable, P claims
astronomical remedy for future medical expenses) (may produce
perverse consequences: go back and make sure they’re dead)
b. Non-Pecuniary
i. Pain & suffering
1. Issue: coma patients (McDougald v. Garber: cognitive
awareness is not a necessary prerequesite)
ii. Lost enjoyment of life
c. Calculation methods
i. Per dium (suffering per day)
ii. Plaintiff sovereignty: how much money P would have required to
accept this harm (not really applied by courts)
iii. Structured settlements help mitigate uncertainty
iv. Remittitur: when jury award is excessive, P has the choice of new
trial or a specified reduction
v. Additur: when jury award is unreasonably low.
vi. Some states have placed cap
II. Non-Compensatory Damages/Punitive Damages
a. Justifications
i. Fix malice intent
ii. Community abhorrence
iii. Closet compensatories (to pad the P’s wallet a little bit indirectly)
iv. Protects property or autonomous rights (so that tort system does not
price everything)
v. Private prosecution of criminal behavior
vi. Posner: fear of vigilante action supports channeling this into civil
suits
b. Supreme Court trends
i. Damages can be higher depending on reprehensibility of action,
though ratio of punitive to compensatory damages cannot be
unreasonably high (4:1 ratio may be okay, but 25:1 may not.)
rd
III. 3 Party Claims
a. Subrogation: insurance company comes in and steps into the shoes of the P
(addresses the issue of collateral sources)
b. P is dead but tort survives death: Wrongful death suits
i. Beneficiaries: heirs at law (those that would inherit should P dies
intestate)
ii. Measure of Damages: beneficiary’s recovery is measured by the losses
she suffers as a result of P’s death. (percuniary costs—loss of
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benefit—as well as non-percuniary costs—loss of consortium for
spouses and children.)
iii. Defenses: comparative fault of decedent or the beneficiary himself.
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