TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
I.
II.
Introduction
a. Tort definition
i. Civil wrong. Violation of some obligation proposed by law, but doesn’t arises out of a
contract
b. Frameworks of Tort Law
i. Corrective justice – setting right wrongs, Δ wronged Π and law trying to set this right
ii. Compensation – people suffer losses in society, how should we deal with it
iii. Incentives – creating the right incentives to engage in certain actions, deter would be Δ from
committing an action, takes two to tort, maybe things can be done on both sides
c. Intentional Torts
i. Assault – creating a reasonable fear of imminent contact, doesn’t require contact
ii. Battery – Requires harmful or offensive contact
1. Usually hear assault & battery because when you suffer from a battery, usually there
is some apprehension that occurs beforehand
iii. False imprisonment
iv. Intentional Infliction of Emotional Distress
v. Trespass to Land
vi. Trespass to Chattels (moveable/personal property)
vii. Conversion
Intentionally Inflicted Harm: The Prima Facie Case and Defenses
a. Physical Harms : Trespass to Person, Land and Chattels
i. Battery:
1. RST §13. Battery: Harmful Contact
a. “acts intending to cause a harmful or offensive contact with the person of
the other or a third person, OR an imminent apprehension of such a contact
AND
b. Harmful contact with the person of the other directly or indirectly results.
2. Intent Requirement
a. Π has burden of proof
b. RTT §1. Intent: A person acts with the intent to produce a consequence if:
i. The person acts with the purpose of producing that consequence; OR
ii. The person acts knowing that the consequence is substantially certain
to result
c. Intent is also created when the Δ causes an imminent apprehension of a
harmful contact
d. Not necessary to intend harm
e. Once intentional tort is established, Δ is responsible for all ensuing harms,
foreseeable and unforeseeable
3. Intent to cause contact in a setting where contact was unlawful non-consensual
touching
a. CASE: Vosburg v. Putney (1891)
i. FACTS: Boy kicks other kid in the shin while sitting in the classroom;
causes extensive damage
ii. ISSUE: If no intent to do harm, does Π have a cause of action for
assault and battery proceeding?
iii. HOLDING:
1
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
iv. OTHER ISSUES:
1. Deciding Damages – he could recover damages for the time of
healthiness of limb lost
2. Poor Π v Wealthy Δ – depending on jury, argument could go
either way. Poor Π taking advantage of Δ’s wealth, or Wealthy
Δ spoiled brat used to getting his way
3. Egg Shell Skull Rule - holds an individual liable for all
consequences resulting from his or her activities leading to an
injury to another person, even if the victim suffers an unusually
high level of damage (e.g. due to a pre-existing vulnerability or
medical condition). Δ must "take their victims as they find
them"
4. Pl’s Negligence: Should he have been wearing a shin guard?
Not in classroom
a. Implied License in classroom is different than on
playground. Had the boys been on the playground and
the Δ was free of malice, wantonness or negligence and
intending no harm, outcome would have been different
b. CASE: White v. University of Idaho*
i. FACTS: Piano teacher touches student on her back
1. Intending contact or intending a strange or inappropriate act
can be treated as wrongful.
4. Intent Requirement satisfied if  is substantially certain that contact will follow from
his act
a. CASE: Garratt v. Dailey* (1955)
i. FACTS: Boy pulls chair out from under old woman who is in the act
of sitting
5. Battery Hypotheticals
a. A struck in eye by a stick that B threw at C & D, who were trespassing.
(Talmage v. Smith)
i. Battery. B liable because he intended to hit someone and it caused an
unwarranted injury, for which B is still responsible. Transfer of
Intent (intent can be transferred amont people and sometimes among
torts)
b. A intends to shoot just over B’s head, wants to shoot behind him. Misses
target and hits B.
i. Battery. Act created imminent apprehension (intent) and causes injury
c. A smoking in apartment, tosses lit cigarette out of window. B is walking on
street and get hit with the cigarette.
i. Battery. If crowded street, substantial certainty that you could cause
harm
ii. No Battery. If empty street, no substantial certainty that act would
cause harm.
ii. Trespass to Land
1. CASE: Dougherty v. Stepp (1835)
2
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
a. FACTS: Δ enter on, surveyed and claimed Π’s land as his own. No physical
damage to property.
b. ISSUE: i) What actions constitute trespass to land? ii) If trespass to land has
occurred, under what circumstances can damages be recovered?
i. Unauthorized (unlawful) entry (or use that interferes with possession)
onto another person’s property (NOTE: No trespass in instances where
there’s a necessity (i.e. taking someone to the hospital)
ii. For every unlawful entry, landowner is entitled to damages of varying
degree depending on the level of harm done. Some value in being able
to keep people off. Even if no damage caused, people can receive
nominal damages (court’s recognize rights to exclude)
2. Coase Theorem - when trade in an externality is possible and there are no
transaction costs, bargaining will lead to an efficient outcome regardless of the
initial allocation of property rights. In practice, obstacles to bargaining or poorly
defined property rights can prevent Coasian bargaining
a. Trespass – individuals crossing boundary lines; low bargaining price
b. Nuisance – harder to make deals to make efficient things happen, high
bargaining price
3. Ad coelum – if you own the soil, you own the area above and beneath it
a. Smith v. Smith* - Δ was found to be trespasser when the eaves of his barn
overhung the plaintiff’s land (trespass of real property can occur on, above or
below the surface of the land.
b. Neiswonger v. Goodyear Tire and Rubber Co.* – Δ found guilty of trespass
because airplane overflights within 500 feet of the ground violate air traffic
rules
i. Government set regulations for airlines to allow them to fly at a
particular level in the sky to prevent lawsuits and because transaction
costs would be too high to get everyone’s permission for a service that
benefits the public on the whole
4. Intangible Trespass (pollution, radiation, etc.)
a. Case: Public Sevice Co. v Van Wyk* i. Intangible trespass. Π must prove “physical damage to the property
caused by such intangible intrusion”. Intangible trespass must be
intentional.
ii. Δ can pollute but will have to pay Π damages.
iii. Example of nuisance
b. Property rules v. Liability rules
i. Property rules – protects our property from people going on it.
1. Π can take preventive measures or
2. Take action once trespass has occurred
ii. Liability rules – Violate right
1. Π can’t prevent it, but can get damages after act has been
committed
iii. Trespass to Chattels (personal property, not real estate)
1. If no damage to chattel then claim not actionable
3
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
a. RST §218 Illustration: If A climbs on B’s dog and pulls its ears, no harm has
occurred to the dog or any legally protected interest of B. A is not liable to B.
b. B can take dog to property and prevent A from pulling dog’s ears
2. CASE: Intel Corp. v. Hamidi (2003)
a. FACTS: Former Intel employee sent distracting emails to Intel employees, no
harm or disruption to Intel’s computers
b. ISSUE: What constitutes trespass to chattel?
c. HOLDING: Trespass to chattels occurs only when action causes damage to,
impairs functioning of or interferes with the possessor’s use or possession of
object
i. Epstein disagrees: says server isn’t like dog’s ears. You can’t take it
home. It’s accessible to anyone, shouldn’t be treated like a chattel
ii. Brown dissent – Intel deserve injunction (make Δ stop) because this is
Intel’s private property and they should be able to exclude unwanted
mail for any reason, including content (see Rowan v. U.S. Post Office
Dept.)
3. Case: CompuServe, Inc. v. Cyber Promotions, Inc.* – Trespass to chattels in case
where spam caused damage to the ISP and ISP customer’s computer systems
(leaving a tangible presence)
4. Trespass to Chattels Hypotheticals
a. Gas company retains title to meter on hous, you change readout on meter
i. Trespass to Chattel? No. No harm to property
ii. Trespass to Land? Meter is a fixture, not a chattel. Gas company can’t
move it. (Blondell v. Consolidated Gas Co.)
b. A using company’s PA system to make offensive jokes. Not authorized to use
system
i. Trespass to chattel? No. No damage to PA
ii. No tort remedy, but may be other forms of remedy (fire A. If they fire
A and he sneaks on property and use it, trespass to land)
c. A put a contraption on B’s seat to prevent him from reclining. Is this
actionable?
i. Contraption interferes with functionality of the chair. (Intel v. Hamidi)
ii. Who could bring action? Airline
iii. Recovering Damages? Interim loss of use? No lasting damage on the
chair.
iv. Defense? Self –defense to protect knees or laptop?
d. A hacked onto company’s computers and turn machine into zombies (spam
producing machines). Doesn’t impair computers during office hours, but does
during off hours
i. Trespass to chattels? How can this case be distinguished?
ii. Coase Theorem. Engage person in contract?
5. Damages
a. Limited to reduction in the value of the chattel. Def. could force pl. to take
chattel back, so that only in case of complete destruction could the full price
be awarded.
b. Physical Harms: Conversion
4
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
i. RST §223(b) – Conversion is always an intentional exercise of dominion over chattel. Mere
non-feasance or negligence, without such an intent, is not sufficient for conversion.
ii. CASE: Poggi v. Scott (1914)
1. FACTS: Poggi stored wine in basement under lock & key. Scott allowed two men to
take the wine.
2. ISSUE: What constitutes a claim of conversion?
3. RULE: Conversion is the “unwarranted interference by Δ with the dominion over the
property of the Π from which injury to the latter results.” (Ex. of breach of absolute
duty. Act itself is unlawful and redressible as a tort)
iii. Conversion Hypotheticals
1. A rents house from landlord B. B says there’s junk in basement I need cleaned out.
Do with it what you want. A goes in basement finds camping equipment uses it for
rugged camping trips(does a lot of damage) and tries to see lit on eBay. Equipment
belongs to C, who got permission to put this equipment in basement. C wants to bring
action against A. Conversion?
a. Yes. A intentionally exercised control over chattel that belongs to another
person.
b. When did conversion occur? Point when A acted as true owner. Selling
property? Maybe.Using it might not mean conversion because people use
things without thinking it’s their property.
c. Gift from B to A? Confusion about word “junk”
d. Conversion v. Trespass to Chattel
i. Trespass to chattel – interference of possession; if out of owner’s
possession no trespass
1. In hypothetical did trespass of chattel occur from A to C? No.
Chattel in B’s possession (C could possibly claim trespass to
chattel against B)
2. If C’s equipment in locked room? Trespass; A would be
interfering with C’s possession
3. Trespass, not conversion. If A removes B’s horses off the ferry
without intention of making further use of it, this can be
considered trespass de bonis asporati (asportation of chattels).
Fouldes v. Willoughby*
ii. Conversion – acting as the owner or in a manner consistent with the
title of owner
1. Is B liable for conversion of C’s property? Yes, when he
offered “junk in the basement” to A.
2. Dry cleaner B wears A’s jacket, but then cleans and gives it back to A.
a. Conversion? No.
b. While wearing jacket, B runs into A. Says jacket is his, when A asks about it.
i. Conversion? Maybe. Could be acting as true owner, but no
interference with possession because damage is minimal.
3. A get spleen removed by Doctor B. B uses it to find cure. A consented to surgery and
assumed spleen would be thrown out.
5
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
a. No conversion claim against doctor for failing to disclose plans for spleen. If
conversion stood, Π would be able to bring claim against anyone who used his
spleen cells. Too many transaction costs.
iv. Case: Maye v. Tappan* - Π mistakenly told Δ he owned land. Δ dug up land and found gold
1. Δ converted Π’s land. Used Π’s property as his own. It’s not necessary that one
intends to deprive another of ownership.
v. Damages
1. Δ may return the property, if it hasn’t suffered substantial damage, conditional upon
payment for the loss of interim use or for repairs.
vi.
c. Defenses to Intentional Torts
i. Consensual Defenses
1. Consent is limited and Δ can’t exceed the consent given.
2. CASE: Mohr v. Williams (1905)
a. FACTS: defendant diagnosed plaintiff with obstruction in right ear, during
operation discover that left ear was worse, operated on left ear
b. ISSUE: Does acting without authorization constitute as battery?
c. HOLDING: A Δ has committed battery when he performs an action Π’s
consent, unless the circumstances are such to justify action without consent
d. Medical procedures – Action without consent can be battery even if doctor
meant no harm. Unauthorized intentional contact = battery
i. Can’t assume that Π would have consented, b/c after operation hearing
was bad.
e. This has been solved by release forms, but it won’t necessarily negate possible
torts
3. Consent can be expressed or implied by conduct
a. Explicit - Written release or verbal interchange
b. Implicit
i. Implied consent in emergency settings where patient is unconscious
and surgery is needed to preserve life. There is reasonable belief that
consent would be given (Allore v. Flower Hospital*)
ii. Inferred from nonverbal communication ( O’Brien v. Kennard *)
consent implied for the vaccination case. Woman held up her arm to
get the vaccination. Action was deemed sufficient to be a
manifestation of consent.
c. Substituted Consent – Someone consents on another person’s behalf (ex.
minors and people with limited mental capacity)
4. Hypotheticals
a. Δ thinks Π wants to have sex when she pushes away and says no
i. No consent. Not enough that Δ thinks Π has consent
b. If someone is inwardly consenting, but giving no outward indication of
consent, then Δ must reasonably rely on manifestations of consent. Court will
decide what sort of manifestations are enough
c. Fraud in the factum v. fraud in the inducement
i. Fraud in the factum - fraud is really contemplated, doctor that sexually
assaults a patient when he’s supposed to check a pelvic bone.
6
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
1. Vitiate (make ineffective) consent.
d. Fraud in the inducement. A convinces B to have sex by saying he’ll love her
forever. A left B next day.
i. not enough to vitiate a consent
5. Limits on Consent Defense (Consent can be ineffective – protected by statute, child,
drunk, lack of capacity, fraud, duress, nondisclosure of a material fact)
a. CASE: Hudson v. Craft (1949)
i. FACTS: illegal boxing match with minor
ii. ISSUE: Can Δ be held liable for assault and battery injuries inflicted
to minor by 3rd party (W) in an illegal prize fight between adult (W)
and minor (L) when both parties consented?
iii. HOLDING: W Liabile. Consent no good because violation of statute
designed to protect the class, a member of protected class was injured,
was enough to constitute aiding and abetting. Court says promoter
liable regardless for promoting contact that was harmful or offensive.
There is substantial certainty that something bad will occur (similar to
Garratt v. Daly* (Majority Position – Rule favors L)
1. Minority and Restatement Position: No liability. Nothing W
did was tortuous. Consent is good. (Rule favors W)
a. Volunteers suffer no wrong - volenti non fit injuria
iv. PUBLIC POLICY: Most fighters believe they will win. High chance
of hurting someone else, low chance of getting hurt. Liability is a good
public policy tactic to decrease incentive for promoters to hold illegal
prizefights
b. Athletic Injuries – formal and informal settings
i. Before a party may proceed with a cause of action involving injury
resulting from a recreational or sports activity, reckless or intentional
conduct must exist.
1. RTT §2. RECKLESSNESS. A person acts recklessly in
engaging in conduct if:
a. The person knows of the risk of harm created by the
conduct or knows facts that make the risk obvious to
another in the person’s situation, and
b. the precaution that would eliminate or reduce the risk
involves burdens that are so slight relative to the
magnitude of the risk as to render the person’s failure to
adopt the precaution a demonstration of the person’s
indifference to the risk.
ii. Insanity
1. CASE: McGuire v. Almy (1937)
a. FACTS: Insane patient struck nurse with a lowboy
b. ISSUE: Can an insane person be held liable for assault and battery?
c. HOLDING: “Where an insane person by his act does intentional damage to
the person or property of another he is liable for that damage in the same
circumstances in which a normal person would be liable.” Insanity not a
defense in intentional torts.
7
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
2. People with certain incapacities may be able to use consent as a defense. Due to
mental incapacities couldn’t give consent
3. PUBLIC POLICY: Not allowing insanity as a defense for intentional tort may
encourage those who watch over them to be more care.
a. Good – autonomy enhancing for people with mental illnesses. Encourages
caretakers’ willingness to do job (if no ability to recover, would have to
increase their pay)
4. Not allowed: want people with resources to have to pay for their harms; litigation
argument – too difficult to determine what’s going on in people’s minds.
5. Insanity Defense Hypotheticals
a. Hitting someone while have a seizure
i. No battery. Involuntary act no intent.
b. Hitting someone while sleepwalking and dreaming about baseball
i. No battery. Sleepwalking treated as involuntary act.
c. Hitting A while under delusion that A is a bad nurse and perceived need to
defend self
i. Battery. Intent even though person is irrational
d. Delusion, lowboy is a laser beam that can’t touch anyone.
i. Liable or not liable? Arguments for both sides.
e. Thinks Π is a piñata? Liable
i. Difficult, How do you prove intent in this case? Does intent require
knowing you’re going to hit a human or knowing you’re going to
make an action?
ii. Similar to situation where A moves into apartment finds out his boxes
will be delayed, kicks a box that B is in. Harms B. (Similar to
throwing a cigarette out the window)
1. No liability. Unreasonable to think someone is in the box.
iii. Self-defense - c
1. Case: Courvoisier v. Raymond
a. FACTS: jewelry store owner shot police officer, thinking he was a threatening
robber
b. ISSUE:
c. HOLDING: No liability for defending yourself if the situation is such that
would lead a reasonable man to believe that his life was in danger or that
action is necessary for protection
2. Self- Defense Hypotheticals:
a. Child advancing toward large adult saying I’m going to kill you. If adult
shoots child, can he claim self-defense?
i. No need for force. A reasonable man wouldn’t feel life is in danger
b. Same situation except older child with baseball bat?
i. Can go either way depending on the level of threat
c. A home asleep and hears someone breaking into house. A sees B intruder. B is
armed. A is by door and hasn’t been seen by B. He could leave but shoots
instead. Self-defense?
8
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
i. Yes. If you’re outside you would have a duty to retreat if possible.
Home is a protected space, courts apply different standard of duty. Not
as much of a duty to retreat.
ii. If no one else is in home, harder case for self defense.
d. A opens fire at B for no reason. B returns fire and hits a bystander
i. Negligence standard of whether you knew you were creating an
unreasonable risk of causing harm. (Morris v. Platt* - court said not
actionable because force reasonably intended to repel attack by 3rd
party.)
1. RST §75 the Δ is only liable to the innocent 3rd party “only if
the actor realizes or should realize that his act creates an
unreasonable risk of causing such harm.”
e. A sees B about to hit C with a torts, can A shoot B?
i. Depends. Only if situation warrants risking death or bodily harm. B
and C could be playing.
ii. RST §76 – a person is entitled to defend a 3rd party if he correctly and
reasonably believes that his intervention will protect the 3rd party.
f. A is insane has delusional belief that all people with red hair are trying to kill
her. B has red hair and is trying to kill her. A shoots be because of the red hair
but b presenting the threat
i. When someone actually presenting threat, then you should always be
able to use this defense. It was reasonable to shoot in this instance.
iv. Defense of Property – No right to use deadly force in defense of property
1. Case: Bird v. Holbrook
a. FACTS: spring gun set to shoot those who entered walled garden; hits minor
recovering loose chicken
b. ISSUE: Under what circumstances can defense of property be used as a
defense to intentional tort?
c. HOLDING: A man who uses means of protection to protect his property
without giving notice of the use of those means can be found liable for any
injury that occurs to someone as a result of those means
d. If you had used a sign, that would be like moliter—a valid warning. In that
case, even if the force is “unreasonable”, it’s no longer an intentional tort.
e. What tort did Bird commit?
i. Battery: Intent to commit action? Yes. Substantial certainty? Yes. If
someone enters the device will activate.
2. Attack dog would be better mechanism to protect party. Gives intruder opportunity to
run away. Built in proportionality.
3. The court in Katko v Briney*(shotgun bedroom trap wounded Π intruder) affirmed
jury instructions that the lawful protection of property could not include means of
force that would take human life or inflict great bodily harm.
4. RST §85. Use of Mechanical Device Threatening Death or Serious Bodily Injury
a. “The actor is so far privileged to use a device intended or likely to cause
serious bodily harm or death for the purpose of protecting his land or chattels
from intrusion that he is not liable for the serious bodily harm that the actor,
9
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
were he present, would be privileged to prevent or terminate it by the
intentional infliction of such harm.”
5. M’Ilovy v. Cockran* – the def. (M’Ilovy) shot and severly wounded pl while he was
tearing down a fence on pl’s land. Court held that it is lawful to handle force with
force, where force is not being used in a trespass, the person’s who owns the property
may not use force but must request the trespasser to leave and then he can lay hands
on him.
v. Recapture of Chattels - Can use force if taken by force, fraud or without claim of title.
If  claims title, must seek legal redress
1. CASE: Kirby v. Foster (1891)
2. FACTS: Bookkeeper given money by manager from which he took what he thought
was owed him. Manager and son tried to take money back
3. ISSUE: Were the Δs justified in using force to retake the company’s money?
4. HOLDING: Right of recapture requires 1) possession by the owner AND 2) purely
wrongful taking (No possession of owner because Δ gave money to Π. Not a purely
wrongful act because Π had claim of right – consulted his counsel)
5. Any privilege of reacapture must be exercised promptly
6. Recapture of Chattels Hypothetical
a. Same facts as Kirby except Π took money from Δ’s wallet
i. Right of recaptured allowed because act interferes with possession of
owner and this is a purely wrongful taking without claim of right
7. Policy Concerns (if worried about breaches of peace)
a. Can’t use right of racapture
i. Positive because party out of possession won’t resort to force
ii. Negative - Knowing that people can’t use force gives other incentives
to take things that don’t belong to, causing people to have to resort to
legal process which is costly, delays return, and has uncertain result
b. Can use right of recapture
i. Positive – deters people from taking things that don’t belong to them;
Avoid legal process
ii. Negative – Party out of possession might breach peace
8. Right of Recapture Hypotheticals
a. A asks B to take picture of her family. B takes the camera and runs away?
i. Right of recapture. B has no claim of right even though peaceful
transfer Hot pursuit.
b. A sees shell game on the street and decides to play. Ends up losing money.
Can he reclaim it when he finds out the scam?
i. No claim of right if activity is legal. Game is fraud, but…
ii. Assumption of risk. A just as culpable for participating
vi. Necessity - valid defense if done to preserve property or life – must pay compensation
for damaged property in private necessity
a. Ploof v. Putnam (1908)
i. FACTS: Sloop moored to Δ’s dock seeking shelter from storm and Δ’s
servant unties it.
ii. ISSUE: Should the Δ be held liable for not allowing Π to moor his
ship? Was this act wrongful, negligent, or careless?
10
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
iii. RULE: vicarious liability- actions of the servant are the actions of the
master; necessity will permit trespass and servant may not resist entry
iv. Servants can’t resist but aren’t required to help
b. Vincent v. Lake Erie Transportation Co. (1910)
i. FACTS: ship tied up at dock caused damage to the dock during the
storm
ii. ISSUE: Is Δ liable for injury to property that results from an act of
necessity, over which he had no control.
iii. RULE: A person will be held liable for damages that result from an act
of direct intervention in a situation where property rules are suspended
by forces beyond human control; only when injury is attributed to an
act of God will that person be not held liable for damages.
c. Public v. Private Necessity
i. Public – complete privilege, don’t have to pay damages
1. PUBLIC POLICY REASONS: There’s no upside for official
and don’t want to create a downside; Gives an incentive to act
in time of danger; prevents inaction
ii. Private – incomplete/conditional privilege (generally); required to pay
damages
d. Reasons for necessity – allows people to do what they need to do without
feeling like a law breaker; prevents responsibility for punitive damages;
Creates incentives to save the most valuable property
e. Given Coase, Theorem, why need for necessity defense?
i. There may not be anyone present to bargain with
ii. Some may not want to bargain or will try to take advantage of
situation by charging exorbitant fees. Prevent bilateral monopoly
iii. You can override objections
f. Rubric of general average contribution (Mouse’s Case* - throwing casket off
ship to save lives is a necessity)
i. In emergency, all are treated as joint owners of property in question.
People who lose property are given pro rata compensation from the
other parties.
g. Necessity Hypothetical: A is driving and swerves to avoid a child, hitting B.
i. A committed battery, but could claim necessity. He would have to pay
B (under Vincent)
ii. Trolley Problem – draw a line between property and life. Necessity to
kill one person instead of four, but necessity to have organs trumps
saving four lives.
d. Emotional and Dignitary Harms: Assault
i. I. de S. and Wife v. W de S. (1348)
1. FACTS: W. pounded on door with hatchet and swung at her when she stuck her head
out of the window, tavern keeper’s wife sued for assault
a. Swinging at her head is assault. Tapping on the door isn’t
2. ISSUE: Can a person be liable for an act when no harm has been done?
11
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
III.
3. HOLDING: Assault does not require a touching; There is harm for an assault, and
damages are recoverable, even though there is no touching. fear of an unconsented to
touching is all that is required for assault.
ii. Tuberville v. Savage(1669)
1. FACTS: Man places hand on sword and says if not for assize-time, he would not take
certain language from him
2. ISSUE: Can a declaration be considered assault?
3. HOLDING: Assault requires the intention to assault and an act that fails to touch the
other party.
iii. RST §21 Assault
1. An actor is subject to liability to another for assault if
a. He acts intending to cause a harmful or offensive contact with the person
of the other or a third person, or an imminent apprehension of such a
contact, and
b. The other is thereby put in such imminent apprehension
iv. Assault Hypothetical
1. A points a gun at B thinking it’s loaded; B knows it’s not.
a. No assault, b/c no apprehension created.
Strict Liability and Negligence: Historic and Analytic Foundations
a. Debate: which is best to apply?
i. SL places losses that cannot be avoided cost-effectively on the tortfeasor, whereas neg.
places them on the victim.
ii. Strict Liability: subject to liability for all harms caused by your act no matter how careful
you were. If Π contributed to harm then may not be held liable
iii. Negligence (usual approach taken): liability on if you fail to exercise reasonable care to
avoid injury or damage.
b. Formative Cases
i. CASE: The Thorns Case (1466) - lays out the SL v. Neg debate.
1. FACTS: Δ cut thorns, some fell on property of Π, Δ came and took them, trampling
Π’s crops
2. ISSUE: Can a person be held liable for damages for committing a lawful act that
requires him to enter onto another’s property to retrieve his property?
3. HOLDING: Littleton: must compensate those you injure(STRICT LIABILITY);
Choke: falling (principle act) was not lawful, therefore taking away(thing which
depends upon it) was not lawful (STRICT LIABILITY with escape in instances
where you can prove act happened against your will)
4. Action of recapture?
a. No. Only applies when A takes from B. Then B has right to recapture. Here, Π
didn’t have anything to do with thorns.
5. Necessity?
a. Maybe. Even so, he would still be liable for damage. Must take into
consideration how careful he was in cutting. Did the thorns have to fall on the
Π’s property? (Vincent)
ii. CASE: Weaver v. Ward (1616)
1. FACTS: Δ and Π were soldiers, Δ accidentally shot Π during exercises
2. ISSUE: Is Δ liable for accidental action when it causes another harm?
12
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
3. HOLDING: Δ committed no negligence, as Π ran across his piece while it was
discharging; not intentional, so no battery
iii. Historians debate about whether this is strict liability or negligence standard
1. Inevitable accidents no liability, negligence narrowly defined.
iv. Difficulty fitting Accidental Injury into matrix
1. Problems for Δ
a. Strict liability rules involved. Very difficult to win
b. Issue with language: “utterly without fault” & “inevitable accident” – how
inevitable does it have to be
2. Problems for Π
a. Had to choose between 2 writs: trespass vi et armis(direct and forceful) or
trespass in case (indirect)
i. Trespass – throw a log and hit someone
ii. Case – throw a log on ground and someone falls on it.
3. Problems with vicarious liability
v. RELEVANCY: direct and indirect distinction no longer governs pleading, but comes into
play in deciding causes.
c. Forms of Action
i. CASE: Scott v. Shepherd (1773)
1. FACTS: Δ threw a lighted squib into crowded marketplace, thrown multiple times,
and ultimately landed with Π, in whose face it exploded
2. ISSUE: Is the action of trespass maintainable for throwing dangerous object that
causes injury to Π when there are intermediate intervening actors?
3. HOLDING: Nares –Δ liable for trespass for committing unlawful acts that cause
mediate or immediate harm. Focuses on unlawful nature of act. If it’s unlawful then
must fit within trespass. Blackstone – Δ not liable. A trespass will lie only if the
action causes immediate rather than consequential harm? (distinguishes this case from
raised ox that gets loose, similar to a rock. Intervening actor changed movement of
something that stopped) De Grey – action maintainable when Δ intends mischief and
commits a wrongful act, responsible for all that follows. Any innocent person
remving danger from himself is not liable.
4. Modern Application – assault and battery
a. Intent – Shephard meant to create an imminent apprehension of a harmful
contact
i. Even if no, substantial certainty that lit squib would create an
apprehension or contact
ii. Similar to A shoots B, B shoots back, and hits C. Negligence.
b. Could Potentially have: battery action; trespass action – property interests;
negligence action – lack of reasonable care
i. Battery or Negligence actions most likely.
ii. CASE & TRESPASS HYPOTHETICALS
1. Lit squib thrown by Δ in market place; lands on floor; someone trips and falls over it.
a. Indirect, example of case
2. Intervening actor throws squib out window toward countryside; causing injury to
truck driving on the road
13
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
a. Like cigarette out of the window case, was it reasonable to foresee risk,
liability depends on road traffic?
b. Indirect, example of case???
iii. CASE: Williams v. Holland* (1833) – Court of Common Pleas held: Π could sue in case, if
harm was immediate or consequential as long as Π could show that harm occurred as a result
of Δ’s negligence. Writ of trespass available for all immediate harm, whether willful or
negligent and only trespass would lie in cases of willful and immediate harm.
d. Strict Liability & Negligence in the Last Half of the Nineteenth Century
i. CASE: Brown v. Kendall (1850) – court sets out negligence standard.
1. FACTS: 2 dogs fighting, Δ took stick and tried to separate them, accidentally struck
Π in eye
2. ISSUE: Under what qualifications is Δ liable for the damage that results from an
unconscious act?
3. HOLDING: if Δ was exercising due care (ordinary care) and unintentionally harms Π,
no liability for the striking, Π has burden of proving negligence, carelessness, or want
of prudence to recover.
a. Not an intentional tort of battery, because he didn’t intend to hit or make
contact or create apprehension. Didn’t have substantial certainty that he would
hit him in eye.
ii. Due Care: The kind and degree of care that prudent and cautious men would use, such as
required by the exigency of the case. Also: whether the D took cost-effective precautions.
1. Negligence Regime
P using due care P not using due care
D using due Not liable
Not liable
care
D not using liable
Not liable
due care
(contributory
negligence rule)
a. Π must show Δ not using due care to prevail (prima facie negligence)
b. If Δ using due care, Π can’t make prima facie case
c. Δ doesn’t need to do anything to win. Doesn’t matter if Π using do care. (Δ’s
preferred regime)
2. Strict Liability Regime
P due care
P not using due
care
D using due Liable
Not liable
care
D not using Liable
Not liable
due care
(comparative
negligence rule)
a. Π doesn’t have to make any showing about Δ’s care
b. Δ in position to show that Π wasn’t showing due care. Δ has burden.
c. Comparative negligence – reduces amount Π can recover
3. Burden of Loss when both parties exercising due care. In SL – Δ and in Neg. – Π
iii. Which regime is better for big business and industry?
14
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
iv.
v.
vi.
vii.
viii.
1. Business would prefer a negligence standard, since no liability if due care
2. To industrialists it matters if you think you’ll always be a Δ or could sometimes be a
Π. If sometimes Π, want strict liability since you could win.
Significance of Debate
1. Procedural Reasons Δchoose one regime over other
a. SL – more possibilities that Π will bring a case, could impact # of lawsuits
i. Eliminate due care element. Costs of litigation might decrease, still
costly for Δs that lose.
2. Corrective justice/fairness – trying to get people to act towards others how they
would act in their own affairs
a. SL – get people to treat other’s stuff like it’s their own. Break it, you bought it
idea. Puts cost on Δ, leading that person to make the right decision
b. Neg. – trying to get Δ to make same calculation. Sets a standard. If you don‘t
meet it, you’re liable. If you meet or exceed it, you’re not liable.
CASE: Fletcher v. Rylands (1865) — leading case about what actions are subject to SL
1. FACTS: Δ constructed reservoir which flooded Π’s property
2. ISSUE: Is Δ liable for damage to Π’s property when they didn’t know damage would
occur?
3. HOLDING: Bramwell – Δ liable for all acts that cause damge to another, whether
they have knowledge that act will lead to such damage or not (SL). Martin & Pollock
– Δ not liable for damage caused as a result of an act he did without knowing the
damage that would ensue, unless negligent in committing that act (Neg.)
CASE: Fletcher v. Rylands (1866) – famous rule; most important
1. HOLDING: The person who for his own purposes brings on his lands and collects
and keeps there anything likely to do mischief if it escapes, must keep it in at his
peril, and, if he does not do so, is prima facie answerable for all the damage which is
the natural consequence of its escape. He can excuse himself by showing that the
escape was owing to the pl’s default or the consequence of vis major (act of war) or
an act of God.
CASE: Rylands v. Fletcher (1868)
1. HOLDING: Cairns: liable for any non-natural use of land that damages another’s
property. Cranworth – SL standard
a. Rule in Rylands v. Fletcher is a sub-species of nuisance, which is itself a tort
based on the interference by one occupier of the land with the right in or
enjoyment of land by another occupier of land as such
i. No claim in nuisance under the rule can arise if:
1. Events complained of take place on a single property or
2. Claim includes a claim for death or personal injury.
ii. When acts of God combined with a defendant’s action leads to damage
on the pl’s property, it is sometimes difficult to assess what damage
arose from the acts of God and what arose from the Δ’s action
1. Δ has burden of proof to show evidence to distinguish the too.
If he can’t then liable for all damage
Fletcher v. Rylands compared to Brown v. Kendall. Should real property be treated
differently from injury?
1. Hypothetical: same facts as Brown v. Kendall, except stick breaks a window.
15
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
a. Difference between land and people?
i. Land –passive element in accidents. Can’t move. People take on risk
of injury and are subject to risk of accident
ii. Bringing or keeping something on land that could cause mischief
b. Natural v. non-natural use of land –Cairns
i. Natural = ordinary, usual, typical; Unnatural = unusual
ii. Relevance?
1. SL – if act doesn’t benefit community then could use SL
standard
2. Neg. – if everyone does particular act could just as easily be
injurer or victim
a. Act could be beneficial to community
b. More costly to shift costs to Δ when many Πs
c. Binging/collecting on land – capable of mischief (Blackburn/Cranworth)
i. Language suggests intentionality
ii. Choice to engage in an unnatural use of land
ix. CASE: Brown v. Collins (1873)
1. FACTS: Π owned a stone post, Δ riding along highway, lost control of horses when
they became startled which smashed into stone post
2. ISSUES: Is Δ liable for damage to post located in the public way that was struck by
Δ horse?
3. HOLDING: Principles in Rylands v. Fletcher not extended; Negligence standard
given circumstance. People must assume some risk of living in an industrial society.
a. Blackburn distinguishes Rylands from “public way” cases
i. Brown: When people enter public way, they must take more care
because aware of greater probability that something could happen. In
civilized society, almost everything could be dangerous, so need to use
negligence standard. You must assume risk or do something to reduce
risk.
ii. Rylands - land on land injury; people think less like something bad
will happen
4. Possible Defenses – “owing to Π’s default” or acts of God, war (for land on land
injury)
a. Rylands – pouring water is an active act, so not an act of God
x. CASE: Powell v. Fall (1880)
1. FACTS: Δ running steam engine on highway, gave off sparks which set fire to Π’s
hay
2. ISSUE: Should Δ be held liable for damage done while operating machine with due
care under statute rules?
3. HOLDING: Δ using a dangerous machine will be held liable for any injury it causes
to Π’s property, even if using due care, no negligence, and following statute
guidelines.
a. Distinguishable from Rylands - property along public way.
4. RATIONALE: SL standard b/c if train can’t pay it’s own way for damage it cause
and still make a profit, it should be running. Loss shouldn’t be borne by the
community or injured party.
16
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
a. No reciprocal causation here. Train causes harm to train, but hay can’t harm
the train.
5. Significance: Powell didn’t have enough influence to introduce strict liability back
into the law of ordinary highway accidents.
6. Impact of Statute of common law liability
a. CASE: Vaughn v. Taff Vale Ry. (1860) – held that because the defendant
operated the railroad under statutory authorization, plaintiff had to show
negligence to hold it liable for damages.
b. CASE: River Wear Commissioner v. Adamson (1877) –when following
statute owners not liable withot proof of negligence. the owner of the injured
property must bear his own loss, unless he can establish that some other
person is in fault and liable to make it good on property adjoining to a spot on
which the public have a right to carry on traffic is liable to be injured by that
traffic
xi. Holmes – The Common Law
1. Makes argument for negligence standard. Neg. – offers a guide for action and
standards of conduct because you know to act with due care.
2. Rejects SL – once we accept SL, we get to point where people will always be liable
for actions because people continually act. How do you act when you know that any
thing you could make you liable for harm.
a. Counter-argument - any party can decide what precautions to take if instructed
from the outset that he or she is responsible for the harms that are caused
either by the direct application of force or the creation of dangerous conditions
e. Strict Liability and Negligence in Modern Times
i. CASE: Stone v. Bolton (1950)
1. FACTS: Δs were playing cricket, ball flew a really long way and struck Π
2. ISSUE: Was striking someone with a fly ball the realization of a reasonably
foreseeable risk?
3. HOLDING: Δ will be liable for damage that occurs from an act where there is a
reasonably foreseeable risk of harm, there is duty to prevent harm
a. Calling for strict liability for things that are forseeable
4. Rylands doesn’t apply to this case. Could make “public way” or natural use
arguments
a. Public way – Π chose to live next to cricket field, chose to go out on road.
Assume risk that something could happen
b. Natural use – might consider cricket natural use of land if field located there a
while
ii. CASE: Stone v. Bolton (1951) – decision looks more like negligence standard
1. ISSUE: What is the nature and extent of duty a person who promotes on his land
operations which may cause damage to persons on an adjoining highway.
2. HOLDING: Careful man must not create a substantial risk and must take reasonable
care to avoid injuries.
a. Reid considers the risk and magnitude of harm. Also consider the remedial
costs – cost that could be taken to prevent injury
3. Efficiency Hypotheticals
17
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
a. Farm = profits 50 (before damage); Railroad – profits of 10 (before having to
pay); Perfect Spark Guard (no damage if used) = 2, If no spark guard, there is
a damage of 3 (annual damage)
i. Negligence regime – Railroad installs guard b/c 2 is less than 3,
assume reasonable person will make cost-justified decision to prevent
injury.
ii. Strict Liability regime – Yes. Still cheaper.
iii. No Liability regime – No. (Negotiation might occur to create
incentive to do right thing – Coase Theorem)
iv. Farmer prefers Neg. and SL regimes
b. Farm = profits 50 (before damage); Railroad – profits of 1 (before having to
pay); Perfect Spark Guard (no damage if used) = 2, If no spark guard, there is
a damage of 3 (annual damage)
i. In Negligence & Strict Liability regime, railroad will choose to stop
running, only loses 1 in that case
ii. No Liability Regime – continues to run; no cost to railroad. Farmer
might pay him to shut down
c. Farm = profits 50 (before damage); Railroad – profits of 10 (before having to
pay); Perfect Spark Guard (no damage if used) = 2, If no spark guard, there is
a damage of 3 (annual damage);Crop shield – cost 1
i. Negligence & Strict Liability Regime (no contributory negligence) –
Railroad will bargain with farmer to use crop shield or buy a spark
guard
1. If contributory negligence – farmer would by spark guard;
cheaper cost avoider (Calabresi – when there’s a transaction
cost, cheapest cost avoider should pay)
ii. No liability – Farmer has to buy crop shield because he’s the cheaper
cost avoider
iii. CASE: Rinaldo v. McGovern*. golf ball hits the window of a woman driving by. Golfers not
held liable because there was no duty to warn people not in direct line of fire.
1. “To establish liability in tort, there must be both the existence of a recognizable risk
and some basis for concluding that the harm flowing from the consummation of that
risk was reasonably preventable.”
2. The risk of a mishit golf ball is not a fully preventable occurrence.
3. Injured person must show that golfer failed to exercise due care, for example, aimed
so inaccurately as to unreasonable increase the risk of harm.
iv. CASE: Hammontree v. Jenner (1971)
1. FACTS: Δ has seizure while driving, crashes into bike shop; Δ previous seizure
occurred 15 years prior since Δ was on medication (Πs base reasoning on strict
liabilities for products)
2. ISSUE: Can a person be held strictly liable for injury that results after Δ suddenly
struck by illness?
3. HOLDING: doctrine of strict liability does not apply to automobile drivers; especially
not absolute liability which applies to products; instruction was especially wrong
because it did not except those people who had no reason to anticipate the seizure or
illness.
18
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
IV.
4. Distinguished this case from products liability
a. Strict liability for products applies when a manufacturer or retailer puts an
article on the market knowing it will be used without inspection for defects,
proves to have a defect that causes harm to a person. Expect manufacturer to
know what’s going on with product
b. People not always in control of bodies, sometimes no way of knowing what’s
going on
5. Hold Physicians liable for injury to third party?
a. No because the physician will become overly restrictive and will exercise
role of reporters to DOT in an inflexible manner and not in their patient’s best
interests to prevent liability. Schmidt v. Mahoney (2003)*
v. Why tension btw negligence and strict liability
1. Courts seek to identify some social gain to justify the manifest social costs of
litigation
2. Case for tort liability rests on the need to fashion incentive that reduce the costs of
accidents and their prevention.
a. Negligence liability – seems unproblematic, provides incentives to avoid costs
that exceed benefits they generate.
i. Imposes liability only when it spots a shortfall in the def. behavior.
b. Strict liability – defendant-injurer must take the optimal level of precaution by
treating the pl’s loss as his own.
i. Makes defendant bear pl’s loss
vi. Choosing between the two
1. Reciprocity – incentives effect are same when view from ex ante perspective (before
the harm)
2. SL – eliminates the need to make a nice determination of the standard of care and
eliminates the need to ask whether the defendant complied with that standard
3. Negligence cuts out some expensive lawsuits since pl has to do more to win, although
remaining ones are more complex
The Negligence Issue (Negligence is approach usually taken)
a. Elements of Negligence Action
i. Π’s prima facie case must show:
1. Duty—Δ owed a duty of care to Π such that he was obligated to take reasonable
precautions to prevent an unreasonable risk of harm to Π.
a. Duty - An objective standard of care that a reasonable person would exercise.
2. Breach: Δ failed to meet this duty
3. Causation: Δ’s failure to take precautions was causally connected to Δ’s harm
a. Often divide into two parts:
i. Causation in fact
ii. Proximate causation
4. Damages: Π suffered personal injury or property damage due to Δ’s breach.
b. Definition of Negligent – engaging in “conduct which falls below the standard establishe by law for
the protection of others against unreasonable risk of harm.” RST §282.
i. Necessary to “balance interest” to determine whether the risks taken by Δ are justified by
ends sought
19
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
1. RTT: LPH §3, comment e: “[c]onduct is negligent if it disadvantages outweigh its
advantages, while conduct is not negligent if its advantages outweigh its
disadvantages.”
c. The Reasonable Man
i. CASE: Vaughan v. Menlove (1837)- objective standard of reasonable behavior
1. FACTS: Δ stacked hay such that there was a good chance that it would spontaneously
combust. Ignored warnings
2. ISSUE: subjective vs. objective standard for reasonable man?
3. HOLDING: Objective standard. When a man uses his own property in a way that
injures Π’s property, he will be held liable for negligence if he did not use caution
which would have been observed by a man of ordinary prudence
ii. Special Considerations for Reasonable Standard
1. Mental Acuity (Menlove) – no break
2. Consensual agreements
a. Bailments (arrangement where goods delievered to another with the intention
that they be redelivered at some future time) require a greater degree of care.
In bailment, bailee is subject to a standard of care varying in proportion to the
benefit that he derives from the bailment. Liable for “slightest negligence”
when the loan is for his benefit or use, but liable for “gross negligence” when
he undertakes saftekeeping for bailor. If both parties benefit, ordinary care
required.
3. Holmes, The Common Law 107-109 (1881) – jury considers what would be
blameworthy in the avg. man of ordinary intelligence and prudence to determine
prudence.
a. Exceptions
i. When a man has a distinct defect of such a nature that all can
recognize it as making certain precautions impossible, he will not be
held answerable for not taking them, i.e. blind man or an infant have
different standard of care. Insanity is more complex. An insane person
can be held liable unless he has insanity of a pronounce type that
manifestly incapacitates the sufferer from complying with the rule
which he has broken. He may use it as an affirmative defense.
4. Kids v. adult activities and Old Age
a. CASE: Roberts v. Ring (1919) – child doing kid activity. Boy of seven not
held at adult standard. Old man held liability, couldn’t use age as a defense
i. FACTS: 77 year old man with bad eyesight and hearing driving at 4 or
5 mph, hits boy
ii. ISSUE: Was Δ negligent for striking boy with his car? Was Π
negligent for running out into street?
iii. HOLDING: Negligence standard makes allowance for children
sometimes, but all adults are treated equally. Age or infirmities don’t
relieve person from negligence
iv. RTT:LPH §11, comment c. –refuses to take old age, into account , but
does take into account such infirmities associated with old age by
using the standard of a reasonably careful person with the same
physical condition.
20
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
v. Contributory negligence standard is care ordinarily exhibited by a
seven year old boy but negligence standard for  is not fitted to his
circumstances.
b. CASE: Daniels v. Evans (1966) – child driving car. Boy acting like adult.
Unable to distinguish him from an adult in a car. Others can’t adapt behavior.
i. FACTS: Π’s decedent son (19 years old) was killed when motorcycle
collided with Δ’s truck
ii. ISSUE : Should standard of care applied to minors prevail when minor
engaged in adult activity?
iii. HOLDING: minors must exercise the same standard of care as adults
when engaged in adult activities
iv. RTT: LPH §10 holds child to the standard of a “reasonably careful
person of the same age, intelligence, and experience.” In addition to
the exception for adult-like activities, it also provides that a child
under five years of age is incapable of negligence.
c. PUBLIC POLICY: Should minors be held to an adult standard of care when
they are  but a lower standard when they are s?
i. Maybe so b/c doesn’t place burden of accident loss resulting from the
extra hazards on innocent victims of substantial behavior
5. Beginners v. Experts
a. General rule holds beginners to the standard of care expected of those who are
reasonably skilled and practiced in the art.
i. Exception - Π has a assumed the risk that the defendant will exercise a
lower standard of care, i.e. when an experienced driver agrees to teach
a novice how to drive.
1. Inexperienced driver gets the benefit of the lower standard
against his driving instructor but not against an injured
pedestrian who did not assume the risk.
b. RTT: LPH §12, comment b., avg skills and judgment are ignored to prevent
the multiplication of separate standards and to forestall the risk of fraud.
c. RST §299A – Δ is “required to exercise the skill and knowledge normally
possessed by member of that profession or trade in good standing in similar
communities,” “unless he represents that he has greater or less skill” than
average.
d. RTT: LPH §12 similarly holds that the case for the higher rule is strongest
when the two parties have agreed to it, or when the defendant is engaged in
dangerous activities. But it does not issue any categorical rule, noting that
“skills or knowledge are circumstances to be taken into account in
determining whether the actor has behaved as a reasonably careful
6. Insanity
a. CASE: Breunig v. American Family Insurance Co. (1970)
i. FACTS: Δ was driving car, experienced delusions (God pulled her
steering wheel to the left) crossed lane and hit Π
ii. ISSUE: Under the negligence inquiry, did the defendant have such
foreknowledge of her susceptibility to such a mental aberration,
21
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
delusion or hallucination as to make her negligent in driving a car at
all under such conditions?
iii. HOLDING: Δ can’t be held liable for negligence when 1)insanity
affects person’s ability to understand and appreciate duty of care or
affects ability to control actions in an ordinarily prudent manner and 2)
person doesn’t have forewarning or notice that he may be subject to
mental illness or insanity
b. CASE: Ramey v. Knorr* – Δ had prior notice of mental illness and defense of
sudden mental incapacity was rejected.
c. Breunig has been narrowed in custodial setting. In Gould v. American Family
Mutual Insurance*, court wouldn’t apply Breunig when institutionalized
patient with Alzheimer’s injured his caregiver. Court didn’t want to place
unreasonable burden on the negligent institutionalized mentally disabled. Paid
caretaker can foresee risk.
7. Physical Disabilities
a. CASE: Fletcher v. City of Aberdeen (1959)
i. FACTS: city workers failed to replace barriers around an open hole in
the sidewalk, blind man came walking along and fell into hole
ii. ISSUE: What is the standard of care imposed on the city for
negligence and on a person with disabilities?
iii. HOLDING: A city is obliged to afford the degree of protection which
would give notice to a disabled person. Standard of negligence for a
disabled Π is the level of care engaged in by a reasonable person with
same disability.
iv. RTT:LPH §11(a). “the conduct of an actor with physical disability is
negligent only if it does not conform to that of a reasonably careful
person with the same disability.
v. CASE: Poyner v. Loftus* – legally blind man was injured when he
looked away while walking forward. Court affirmed summary
judgment for Δ because Π was negligent for not being more watchful
given his poor eyesight
8. Intoxication
a. CASE: Robinson v. Pioche, Bayerque & Co. (1855)
i. FACTS: Δs left uncovered hole in sidewalk, Π was drunk and fell in.
ISSUE: Can Δ’s use Π’s as a defense of contributory negligence
because he was drunk when he fell in a hole in front of their premises?
HOLDING: Π’s action constituted gross negligence- no contributory
negligence defense to gross negligence
b. Intoxication Hypotheticals:
i. Δ left a hole uncovered because he was drunk, Π falls in.
1. Drunkenness doesn’t entitle you to a different standard of care.
ii. Π jumped over a barricade and fell into a hole
1. Contributory negligence if person so drunk that a reasonably
safe street isn’t enough to prevent injury
c. Wealth
i. CASE: Denver & Rio Grande R.R. v. Peterson (1902)
22
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
ii. ISSUE: Does wealth make a difference in determining duty of care?
iii. HOLDING: Wealth is irrelevant. Want to make sure that people take
cost effective precautions, not that rich take more non-cost effective
precautions than poor.
1. 2 purposes for awarding compensatory damages: deterrence of
socially undesirable conduct and compensation of the victims
of such misconduct
a. Wealth is irrelevant to deterrence.
i. Δ’s existing assets do not increase the expected
value of a given future action.
b. Wealth is irrelevant to compensation aims.
i. In a successful tort Π is entitled to recover for
all losses proximately resulting from the action
for which the Δ is held liable.
ii. Irrelevant to Π’s right to recover, may be
important practical concern in settlement
negotiations.
9. General principles of way law applies reasonable person standard
a. Why? Easier to administer, help people choose which activities to engage in,
but tension with notion of negligence. Sometimes hold people to a standard
they really can’t meet.
b. Forewarning of own ability to meet the standard
i. No fault – seizure, heart attacks, kids being kids (slightly different)
c. Cheapest cost avoider
i. How much experience/expertise does party have?
d. Cost (feasibility) of not doing the activity
i. Cost of kids not doing adult activities – low
ii. Cost of people not doing activities - high
e. Ability of other party to adapt
i. If disability visible, kid doing kid thing, greater ability of others to
adapt
ii. Harder to tell when kid driving a car or motorcycle
f. Administration/proof
i. Mental & physical disabilities
g. Effects on other parties
i. Untaken precaution – identify some specific activity Δ could have
done, which would have prevent the accident from happening
1. Barricade case – act was putting up barricades
10. To what extent should we take into reasonable care when the person is a Π in
comparison to if they were a Δ?
a. Generally court wants unitary standard, but when plaintiff is a child want to
tailor standards when a Π, but not when you’re a Δ (Robert v. Ring)
b. If you have a Δ who can’t meet objective standard, you are holding them
liable when the y can’t meet the standard. Π are innocent. This is why
objective standard is more appropriate. However, when you have a Π then you
want a more flexible standard of reasonable care.
23
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
c. Hypothetical: 10 year old client driving a snowmobile across a frozen lake,
kid driving at a skill level for a kid but not for an adult
i. Scenario 1: kid (Π) falls in hoe in ice that ice fisherman negligently
left. When claim against Δ who wasn’t exercising due care, should Π
be treated like an adult or a kid?
1. Argument: Like drunk guy falling in the hole case, many can
use lake so you need use care to protect all who might use it
2. If not a lot of people use lake and those who do are 15 & up?
Arguments both ways
ii. Scenario 2: Kid (Δ) runs over ice fisherman who wasn’t acting
negligently
1. Δ liable and should be held to an adult standard
d. Calculus of Risk – determines how a reasonable person would behave
i. CASE: Blythe v. Birmingham Water Works (1856)
1. FACTS: Δs had statutory duty to lay water mains and fire plugs. fireplugs built
according to “the best known system.” Exceptionally cold winter caused the fireplugs
to freeze, flooding Π’s houses
2. ISSUE: Do the facts proved show that the Δs were guilty of negligence?
3. HOLDING: Negligence is not doing something a reasonable man would do or doing
something a prudent or reasonable person would not do. The reasonable man would
ask with reasonable standard of what happened on the average circumstance.
a. Should it be reasonable for company to think that something extraordinary
might occur and prepare for these circumstances as well?
b. Was it reasonable for the company to remove the ice when they saw that
average circumstance wasn’t occurring?
i. Court says there was a mystery about what was happening to the pipes
and also question of who was best positioned to fix problem
ii. CASE: Eckert v. Long Island R.R. (1871) – cost justified level of care (precaution)
1. FACTS: child on tracks, Π’s decedent ran to get him off, saved child but was killed
by train
2. ISSUE: Did the Π’s gross negligence (unreasonable conduct) contribute to the injury
that caused his death?
3. HOLDING: no contributory negligence on the part of the deceased- when the
exposure to a risk is for the purpose of saving life, it is not wrongful and therefore not
negligent, unless such as to be regarded either rash or reckless. Assumption of Risk:
Doesn’t apply to a reasonable assumption of risk.
a. He acted reasonably
b. We value life so highly we aren’t going to call his act reckless
c. No A of R b/c we don’t want to discourage rescuing
d. Let potential injurers know that they might be liable to both rescuer and
injured.
e. Restitution: Π saved the LIRR the cost of paying for the kid.
4. DISSENT: When a person put himself in a dangerous position by his own choice, he
must take the consequences of this act and can’t maintain an action for a wrong.
5. Linking reasonable person standard with cost-justified level of care
Expected Gain
>
Expected Loss
24
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
iii.
iv.
v.
vi.
vii.
Gain from saving X the net probability Harm to rescuer X probability
of being able to save the child’s life
with rescue – without rescue
Terry, Negligence.
1. Reasonableness of a given risk may depend upon 5 factors:
a. Magnitude of risk. Higher magnitude =more likely risk is unreasonable
b. Value or importance of that which is exposed to the risk, the object that the
law desires to protect (principal object).
c. Value of collateral (object the risk taker is pursuing) is properly considered
Utility of risk, probability that collateral object will be obtained
d. Probability collateral object wouldn’t have been obtained w/out taking risk
2. If a kitten or car on track, Π wouldn’t be justified for saving it unless train was going
slow and very far away. (Exception maybe, if resuer is a child)
a. Might give child a break in probability of harm.
b. Adult or child activity? In emergency setting, apply child or more lenient
standard.
3. Suppose the child wasn’t saved, different outcome? No. Must decide if rescuer was
negligent from ex ante perspective. Can’t base decision on outcome of behavior.
Seavey, Negligence –Subjective or Objective?
1. Terry calculus
a. Magnitude of risk X Value of the exposed object = the expected loss from the
relevant conduct.
b. Principal object X (Probability of success with the risk – the probability of
success without the risk) = the expected gain.
c. Negligence = expectant loss >expectant gain
CASE: Osborne v. Montgomery (1931)
1. FACTS: Δ opened car door while double-parked, striking boy’s bike and causing
injury
2. ISSUE: Was there an error in the instruction on the definition of negligence?
3. HOLDING: The social interest must be balanced to determine whether the
circumstances of a particular case warrant liability of the actor for the consequences
of his conduct
CASE: Cooley v. Public Service Co (1940) – Π argued for other untaken precaution
1. FACTS: Δ power company maintained uninsulated wires, one fell and struck a phone
line, which created a loud noise, causing Π to faint and suffer a rare neurosis
2. ISSUE: Was the Δ negligent in its duty of care to protect Π from noise that resulted
from uninsulated wires?
3. HOLDING: reasonable alternative standard- not required to take a precaution which
will create a new danger to someone else
a. Δ owe a greater duty to all the pedestrians rather than to this one,
unforeseeable Π
i. Necessity case – Δ can show that if precaution taken something worse
would happen to get out of the untaken precaution claim
United States v. Carroll Towing Co. (1947) FAMOUS CASE BY L. HAND
1. FACTS: Δ moving line of barges, one broke free and was damaged. no bargee on
board (hadn’t returned to work)
25
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
2. ISSUE: Is a barge owner slack in the care of his barge if the bargee is absent?
3. HOLDING: If the burden of adequate precautions is less than the probability of the
injury x the gravity of the injury, then you must take the precautions.
4. Learned Hand Test: If B(urden of precaution) < P(robability of harm) x L(oss), then
negligence
a. Problem: If you take the precaution, then you’re screwed, because it shows
that you thought the precaution was necessary, and if it fails, that’s neg.
b. Criticism: Sometimes too difficult to quantify elements; sometimes break
points aren’t obvious; assumes that some accidents are worth having.
Someone loses and can’t be compensated.
i. Assumes risk neutrality. If people are risk averse, losing something is
a lot more painful than gaining something of equivalent value, then the
formula may not be the right one. Might want to say that don’t want B
to be too much greater than P x L
5. B < (Pwo – Pw) L(fixed loss in both cases)
a. Burden > Expected Loss w/out Precaution – Expected Loss w/ precaution
b. Equation tries to see how much good the precaution does
6. Alternatives:
a. Bolton v. Stone – Don’t look at how much precaution costs, just look at
foreseeability and the harm that results.
b. Strict liability
c. Have people use common sense
7. RTT: LPH takes “balancing approach” to negligence:
a. §3. Negligence: A person acts negligently if the person does not exercise
reasonable care under all the circumstances. Primary factors to consider in
ascertaining whether the person’s conduct lacks reasonable care are the
foreseeable likelihood that the person’s conduct will result in harm, the
foreseeable severity of any harm that may ensue, and the burden of
precautions to eliminate or reduce the risk of harm.
8. Additional precautions should be tested at the margin and only taken so long as an
additional dollar of precautions reduces the expected costs of injury by at least a
dollar. On this analysis, Π establishes negligence by showing a net social gain from
taking the precautions. In principle, the Δ should be allowed to show that some lower
level of precaution would have generated a higher net social return
9.
viii. CASE: Lyons v. Midnight Sun Transportation Services, Inc. (1996)
1. FACTS: Π’s wife killed in a car accident with Δ. Π pulled out of parking lot in front
of Δ’s driver who was driving on the road
2. ISSUE: Should the court have instructed the jury on the sudden emergency doctrine?
3. HOLDING: Person must use standard of care of a reasonable person under the
circumstances. Sudden emergency instruction - only when the court finds that the
particular and peculiar facts of a case warrant more explanation of the standard of
care than is generally required.
a. Reasonable person standard already accounts for specific circumstances, no
need for special instruction.
26
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
4. RTT: LPH §9 “If an actor is confronted with an unexpected emergency requiring
rapid response, this is a circumstance to be taken into account in determining whether
the actor’s resulting conduct is that of a reasonably careful person.”
ix. CASE: Andrews v. United Airlines (1994)
1. FACTS: passenger hit by baggage falling from overhead compartment; airline only
provided warning
2. ISSUE: Did United Airlines take adequate measures to deal with the notion that what
goes up must come down?
3. HOLDING: common carrier and thus owes a duty of utmost care and vigilance of a
very cautious person; diligence is only that which is consistent with the mode of
conveyance and practical operation
a. Utmost care requires care a little higher than normally expected
b. Why higher standard of care? Probability low but injury would be high; can’t
hold other travelers responsible for injury.
4. Untaken precautions
a. Nets; telling passengers they couldn’t put heavy objects in overhead
compartments
5. Applying Hand Formula – B<PL=negligence
a. Difficult to know probabilty and severity.
b. Need to know the success rates with and with precautions to determine if
necessary
c. Nets might stop things from falling but could cause other risks – increase time
needed to board, people’s hands could get stuck (like Cooley problem)
d. If both Δ argue that when adding other factors B>PL, Π could argue that since
this is a common carrier, it’s ok to require a burden even though it’s greater
than expected loss. Take precaution unless the burden is grossly
disproportionate in cases where the utmost care is needed or required
e. Custom
i. If we look at standards of a particular industry we can find the cost efficient practice.
1. Customary practice can use as a sword by Π – Π argues that Δ is negligent because
his conduct fails to conform to custom a
2. Δs can use it as a shield by claiming no negligence because Δ’s conduct conforms to
custom
a. Just because you’re doing what others are doesn’t preclude negligence, could
be an instance of industry lag
i. Can be persuasive if Δ is doing opposite of what others are doing
ii. Stranger v. consensual (relationship) actions
1. Stranger cases – one party might not be informed about the customs of the industry
2. Consensual – assumption of risk and knowledge of what could happen since both
parties are likely to know custom. Involve interaction; if there is a great degree of
industry lag, people will demand better customs. This might not always work if a
party isn’t aware of lag, won’t agitate for shift
iii. CASE: Titus v. Bradford B. & K. R. Co. (1890) – takes dispositive view
1. FACTS: railway containers with curved bottom; decedent followed common practice
and used wedges secured with wire to hold them steady, wires came untied causing
the train to tip and the decedent to fall
27
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
iv.
v.
vi.
vii.
viii.
ix.
2. ISSUE: Was the company negligent for using standard car bodies on a narrow-gauge
road?
3. HOLDING: Common practices of the business control; jurors shouldn’t set those
standards. deceased also had full knowledge of the risks of his job
CUSTOM HYPOTHETICAL: industry-wide custom of loading broad gauge on a narrow
gauge. Δ first one to use Nypano cars
1. Δ’s shield – broadly define custom – followed custom of loading broad gauge onto
narrow gauge
2. Π can turn shield into sword – narrowly define custom – customary to load flat cars
but not round Nypano cars
CASE: Mayhew v. Sullivan Mining Co (1884) – says custom is irrelevant
1. FACTS: Δ cut a hole in the platform Π was working on, no precautions taken. Π fell
2. ISSUE: Can the Δ be held liable for doffing a ladder hole in the platform without
guarding or placing a barrier around it or warning the contractors if this is the
ordinary custom?
3. HOLDING: custom does not allow a gross lack of care, even though that lack of care
is universal
a. What if court allowed Δ to bring in evidence of custom?
i. Π would want to know details about customary practice to combat this
claim of custom. Want to examine anything else that is customary –
warnings –signs or telling workers
CASE: The T.J. Hooper (1931) – says custom is evidence and not dispositive
1. FACTS: Tugboat lacked radio, lost cargo in a storm which they would have had
warning of if it had a working radio.
2. ISSUE: Does the ordinary care standard require that the tugboats have effective radio
sets to pick up weather reports broadcast along the coast?
3. HOLDING: Another tugboat line equipped all its boats with radios. Custom controls
and the Δ should have equipped his boat as well
CASE: The T.J. Hooper (1932)
1. HOLDING: The practices of one line do not dictate the general custom. Instead, court
should drive custom in cases where “a whole calling may have unduly lagged in the
adoption of new and available devices.” (L. Hand) (positivism) although radios were
not customary, still negligent b/c cost effective to have a radio.
CASE: Trimarco v. Klein (1982)* - Π slipped in bathroom and received cuts from crashing
against a shower door made of glass. Door installed before new custom established that
termpered glass should be used. NY Court of Appeals allowed Π to reach jury and reversed
decision of the Appellate division.
1. Complicated since custom has changed since the time the glass door was installed and
when the injury occurred. Jury given responsibility to determine liability in this case.
Medical Malpractice
1. Custom is dispositive. Custom rules in medical malpractice and can be used as a
sword and a shield.
a. Sword - Judges, juries, and patients don’t have knowledge of what is
reasonable thing for doctor to do, so give more weight on custom. Experts in
medicine are best prepared to say what is the reasonable standard
28
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
2.
3.
4.
5.
b. Shield – If doctor followed custom, not responsible for resulting harm, if no
other negligence
CASE: Lama v. Borras (1994)
a. FACTS: Π suffering from back pain, Δ went right ahead with the surgery
without attempting conservative treatment, Π got infection
b. ISSUE: What degree of skill must a doctor use to avoid liability?
c. HOLDING: A doctor must use that degree or skill and learning which is
normally possessed and used by doctors in good standing in a similar practice
in similar communities and under like circumstances. on other issues of
divergence question was left to jury.
No reason to worry about industry lag because of consensual relationship between
doctors and patients. Market mechanism would cause advances in direction of due
care.
What counts as customary?
a. Locality rule – used to have this, eroding with idea of national standard.
Adoption of national standard allows you to draw on doctors around the
nation and not just the people around you
b. Type of facility – walk-in clinic in rural areas may not have the equipment to
do the same practice done in a major university research hospital
c. Doctor ability – (skill level, years of practice) – doctor won’t get a break for
being new or not as experienced
d. Two schools rule – multiple schools of thought have different standards to
take; if following any accepted schools of care that going to work. There must
be considerable number of respectable physicians that hold that view.
MEDICAL MALPRACTICE CUSTOM HYPOTHETICALS:
a. Δ worksin a small walk-in clinic in rural place. Patient comes in with snake
bite. Person had gone to Central America and transporting snakes to Canada.
Kills snake and bring it in. Doctor never seen snake before or this snake bite
before. Individual whose been bitten didn’t say anything about the
transnational snake smuggling scheme. Doctor treats wound by cleaning it
and bandaging it. If he had been up to the national standard he would have
known that you needed to administer serum X within 30 minutes. Small clinic
didn’t know and didn’t have serum X. Most small clinics don’t have this.
Larger hospitals would have this. Patient dies a week later. Estate sues doctor
for malpractice. How do we analyze this problem?
i. Several reasons patient didn’t get right care. Doctor didn’t have
knowledge. Had he known, the clinic doesn’t have serum x. we would
then want to know the location of nearest place. If close enough could
be argument that doctor was still negligent
ii. We could say reasonable for this type of facility.
iii. Could say that the Π was negligent per se because he was violating
statute by smuggling state. Π also didn’t tell him where he got the
snake and where it’s from. Counterarguments.
b. What if doctors have custom of leaving filled syringes in treatment room.
What if kid is left in room alone and injects himself? Doctor sued from doing
29
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
this. Doctor says that all he did what was customary. He makes a claim for
custom, how will this play out? Shield to liability?
i. Custom and negligence is obvious to a layperson. Something about
leaving dangerous objects on the surface and not about anything
medical. It might not be dispositive. Example of narrow category that
is not related to medical treatment and obviously negligent to a
layperson
c. What if patient wants new treatment? Should person be able to have a
contractual agreement to allow them to have treatment, waive right to sue later
for negligence.
i. Duty for doctors to obtain informed consent from their patient.
Without it, there still could be possible negligence case.
d. Doctors have separate duty to inform patients of risks of treatments.
i. Don’t have to tell them things that are obvious (infections)
ii. Don’t have to tell them things that are remote, very unlikely chance of
remote side effects
iii. Material, but not obvious
iv. To bring cause of action Π has to prove that had a reasonable person
known about the risk they would have made a different decision about
the surgery, looking at it ex ante.
f. Statutes and Regulations – statutes add additional duties
i. Reasonable person doesn’t go around breaking law, if a person breaks law then that person is
unreasonable
ii. Statutes can be used to decide
1. Negligence per se – if you violate the statute then you are negligent. Third
Restatement Approach. Even when per se some excuses can come into play
2. Evidence of negligence –
a. Presumption (rebuttal, takes a lot to rebut it) California Code deals with this.
b. Evidence mixed in with other evidence
3. No evidence – sometimes statute will see that it means to give rise to negligence for
evidence, other instances it will say that it can’t be used as evidence of negligence.
Other times it’s not clear. When it’s a safety statute that is meant to protect people
like the Π and tendency to prevent the risk that happened, it will treat it as negligence
per se
iii. How do you decide between the three?
1. Have to look at what statute says/kind of rule
2. Safety?
3. Protect who?
4. Against what?
iv. CASE: Osborne v. McMasters (1889)
1. FACTS: drug store clerk gave bottle of poison to Π’s intestate without labeling it
“poison”; statute requiring poisons to be labeled
2. ISSUE: Is the Δ liable for negligence for not following a statute when there was no
right of action for the alleged negligent act under common law?
3. HOLDING: violation of statute constitutes negligence per se if purpose of statute was
to prevent that type of harm
30
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
a. sets out 3 factors –
i. safety statute meant for protection or benefit of others
ii. meant to protect class of which Π is a member
iii. meant to protect injuries of the class like the one that is suffered here
b. Safety statute, no excuses, designed to prevent this risk and designed to
protect people from consuming poison
c. STATUTE HYPOTHETICALS:
i. like Osborne case except Π takes home poison, sets it on the stove and
the bottle of poison explodes
1. Question about what kind a risk of requiring labeling is created
to protect against
2. Δ could say that statute was designed to prevent people from
ingesting poison, would people know if it was labeled poison
that it was inflammatory.
ii. State law that requires all elementary school to only have safety
scissors. Teacher orders sharp scissors. Someone trips over box
scissors and breaks leg.
1. There’s nothing about this risk that was brought about by this
statute
iii. What if teacher’s assistant was hurt by sharp scissors
1. Δ - Statute wasn’t meant to protect adult.
2. Π – injuries to kids animated legislation, but shouldn’t
construe the legislation so narrowly to not include the teacher’s
assistant
v. RST §286. When Standard of Conduct Defined By Legislation or Regulation Will Be
Adopted
1. The court may adopt as the standard of conduct of a reasonable man the requirements
of a legislative enactment or an administrative regulation whose purpose is found to
be exclusively or in part
a. (a) to protect a class of persons which includes the one whose interest is
invaded, and
(b) to protect the 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.
vi. RTT: LPH §14. Statutory Violations of Negligence Per Se
1. An actor is negligent if, without excuse, the actor violate 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.
vii. Who is protected. In some cases, see Stimpson V. Wellington Service Corp.* court found that
statute had a dual purpose and extended it to protect property. However, the court took a
narrower view of the scope of regulatory protection in Burnett v. Imerys Marble, Inc.*
deciding that a regulation intended to protect miners could not be extended to an employee
who was not a miner. Employee was not a member of class Act was designed to protect and
therefore didn’t meet the elements of RST §286.
31
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
viii. In Gorris v. Scott*, court decided the Π could not recover when their sheep fell overboard b/c
Δ didn’t put them in a pen by claiming that Δ violated statutory regulation. The statute was
not designed to prevent sheep from falling overboard but to prevent animals from contracting
disease. Two separate issues so Π can’t use this Act to prove negligence per se.
ix. Hudson v. Craft – illegal prizefighter match. Violation of statute. Could promoter be held
liable if not found liable for intentional tort.
1. Safety statute? Yes
2. Kind of Π/injury meant to protect? Yes.
x. CASE: Martin v. Herzog (1920) – case about causation
1. FACTS: Π killed in an auto accident. Π’s vehicle lacked headlights, violating a
statute
2. ISSUE: Was the lower court’s instruction correct that omission of statutory rules is
some evidence of negligence and not negligent in itself?
3. HOLDING: A Π who commits an act that violates statute and that is a contributing
cause to injury may forfeit right to recover damages for committing contributory
negligence; violation of the statute was direct negligence, but there must be a causal
link between violation and the injury .
4. Negligence per se - negligence itself; not just something that is evidence of
negligence
a. Applies to contributory negligence also
5. CASE: Tedla v. Ellman*
a. Overrules Martin? (statute says must walk facing oncoming traffic along
highway, common law practice that you can walk with traffic if traffic is
lighter on that side)
i. Court treats it as statutory interpretation because there was a
background common law about customary exception. What does the
law really mean? Court says it isn’t overruling Martin, talking about
what is statute? Don’t limit the statute to what is written down. Take
into consideration customary law.
xi. Restatements provide that violation of a statute may be excused by necessity or emergency,
or be reason of incapacity, and when “the actor’s compliance with the statute would involve a
greater risk of physical harm to the actor or to others than noncompliance” (RTT:LPH §15(e)
xii. The Third Restatement states that statutory cause of action should be judged by negligence,
and not strict liability standards, by providing that a statutory violation is excused when “the
actor exercises reasonable care in attempting to comply with the statute.” RTT:LPH §15(b).
“Accordingly, the common law recognizes that person can rebut negligence per se by
showing that he person made a reasonable effort to comply with the statute.”Id., comment c
1. Ex. driver who inspects/maintain brakes that fail
xiii. If the statute says the consequences for tort actions, then it’s easy. Sometimes statute will say
no civil liability (no private right of action). i.e. California statute regarding sales to drunkard
and intoxicated person is a crime but seller can’t face civil liability if drunk person gets
injured.
1. Case: Vesley v. Sager, p.270: Drunk driver and tavern owner.
a. The opinion convicting tavern owner turned on the idea not that the drinkserving was the proximate cause, but rather that the tavern owner owed a duty
32
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
of care to people who would possibly be hit by a drunk driver. Key:
Foreseeability of the harm and proximate cause.
i. Hard to monitor drunkenness for tavern owner. Lots of suits and legal
costs will go up.
2. Who is in best position to avoid this action? Various perspectives
a. Monitoring
b. Knowledge
c. Least cost avoider
i. Before drinking – person drinking
ii. During drinking session – person serving
3. Difference when drunk hurts self (assumption of risk/contributory negligence
arguments) and when hurts 3rd party
4. Differences between social hosts & bartenders
a. Different incetives. Bartender has conflict of interest. Primary concern is
turning a profit. Less concerned or aware of a person’s well-being.
b. Bars have incentive to be in business. Social host benefit community by
having parties, don’t have to worry about what people would be doing instead
xiv. Issue of causation determined by:
1. Did the violation of statute cause harm?
2. Was there an intervening actor – might show a break in the chain of causation
a. Ex. violating law against leaving keys in ignition of car – not an example of
intervening factor.
xv. CASE: Brown v. Shyne (1926)
1. FACTS: Π went to chiropractor, after several treatments she became paralyzed,
chiropractor not licensed medical practitioners
2. ISSUE: Was the defendant’s violation of statute evidence of negligence?
3. HOLDING: statute not designed to protect against trained professionals practicing
medicine; for statute to be evidence of negligence it must be something statute was
designed to protect against; standard of care: qualified chiropractors
a. License as a proxy for experience? Now statutes saying that that not having
license is a prima facie evidence of negligence
4. DISSENT: Law didn’t recognize Δ as physician, so the court should not. His act,
which violated law, was the direct and proximate cause of injury, so he should be
liable irrespective of negligence.
5. General principles of proximate cause allow a Δ to defeat recovery in some instance
when the wrong of a third person “sever” causal connection between the Δ’s
negligence and the Π’s injury.
6. CASE: Ross v. Hartman (1943)* - Δ’s agent left keys in ignition of unlocked car
parked in an alleyway. Car was supposed to be taken to garage. Thief stole the car
and negligently ran over Π. Δ’s agent breached statutory ordinance by leaving an
unlocked car unattended in a public place.
a. Court held that deliberate intervention by the thief did not take the case
outside the statutory prohibition. Violation of safety measure is negligence.
Negligence was proximate cause of harm.
b. If by creating the hazard which the ordinance was intended to avoid it brings
about the harm which the ordinance was intended to prevent, it is the legal
33
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
cause of the harm. ’s act was negligent precisely b/c it created a risk that a
third person would act improperly.
c. Was statute meant to protect against theft or accidents?
i. Primarily about theft, but also about prevent thieves from driving and
getting into accidents while being negligent
ii. Δ could argue for exception. Custom to leave keys in the car so that
someone else can park it, so no negligence. Legislation didn’t mean to
not leave keys in the car when giving it to garage guy.
1. Not acceptable since facts of case state that Δ didn’t tell anyone
about the car and left it sitting for a while.
7. RTT:LPH §14, comment h: “In light, then, of the combination of the statutorypurpose doctrine and ordinary principles of scope of liability, the lack of a license is
not negligence per se on the part of the actor, nor is it evidence tending to show the
actor’s negligence.”
8. LICENSING/ CAUSATION HYPOTHETICALS
a. You are driving with an expired license and you observe all rules and
someone darts out in front of you.
i. Not liable, b/c the statute was meant to protect against bad drivers, not
drivers w/out licenses.
ii. Or causation arg.—had he complied with the statute, he would have
been driving w/a valid license. No causal connection between not
having a license and having an accident
b. Driver w/suspended license?
i. Causation no longer works. The point of suspension isn’t to prevent
injuries, but to punish you. Not really a public safety measure.
xvi. CASE: Uhr v. East Greenbush Cent. Sch. Dist. (1999)
1. FACTS: School failed to check Π for scoliosis. By the time it was discovered, surgery
needed to fix it
2. ISSUE: Does the Education Law §905(1) statute authorizes a private right of action?
1. HOLDING: A private right of action can be brought when: Π is one of the class for
whose particular benefit the statute was enacted; recognition of a private right of
action would promote legislative purpose; creation of such a right would be consistent
with the legislative scheme. Here the Π failed on the 3rd element
a. Court held that in past no right of private action and the legislature hasn’t
changed rule. Legislature would have changed rule if it didn’t like the
decision.
i. Weak rationale – legislature could be preoccupied with other issues,
can’t always say that not changing a law means legislature approves of
court decision. Legislature might not be aware of courts decision.
b. No liability for misfeasance (doing a bad job); logical that there shouldn’t be
liability for nonfeasance (failing to do the job)
i. Not obvious that these are the same logically
c. Private right of action – action in tort law; individual people hurt will be
allowed to sue
i. Public right of action – duty to create a test, enforceable under public
law
34
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
2. OSHA case – Hammond v. International Harvester Int’l
a. Just because no regulation at the time, later regulation could provide some
evidence of what would be reasonable.
ii. MORE STATUTE HYPOTHETICALS
1. Law against parking in front of fire hydrant. A perks in front of one. B smashes into
it. A sues B. B responds that A was parked illegally, this was an example of
negligence per se. Is it?
a. No – Π can argue that B statute was about getting access to hydrant.
b. Could be a different story if B was a fire truck.
2. State statute says all buildings must provide access for people with disabilities. All
buildings must has a ramp that can’t be steeper than specified degree. B has a build
with ramp that’s steeper than what’s specified by ordinance. A doesn’t have disability
but uses ramp because he has suitcase with rollers. He sleeps as a result of steepness
of ramp? Negligence per se?
a. Δ – No. Person isn’t a member of the class statute was designed to protect
b. Π – Yes. Broaden statute to a higher level of abstraction and say that statute
was meant to provide access to people. A’s needed to use ramp because she
had a rolling suitcase. This statute is about access for everyone who needs it?
i. If judge responds saying that access isn’t goal of statute?
1. Π – want to think about everyone’s protection, so in deciding
steepness of the ramp, it’s meant to protect everyone who uses
it.
f. Judge and Jury
i. Jury trial available in damages actions
1. Advantages of juries
a. Π – sympathetic to Π’s plight
b. Δ – might be some instances where Δ will do better before a jury when
considering assumption of risk
2. Both parties can decide to waive right to jury and have bench trial
ii. American legal system divides responsibility for deciding questions of fact between judge
and jury prevents either from taking complete control over a case unless both parties waive
jury trial.
iii. Forms of judicial control
a. Judges’ instructions to jury at the close of the case are
b. Instructions embody the relevant principles of law.
c. Substantive law made when the lawyers for either party challenge those
instructions on appeal.
i. Stops being good instruction when judge instructs jury to think about
what they would do in a given situation. Want juries to be objective
1. Arguably this is impossible. Jury members may draw from own
experience to determine what is reasonable
2. Court’s power to keep certain questions of fact from the jury
a. Jury’s traditional role to find “facts” to which it then applies the “law”
i. Negligence is a “mixed issue of fact and law.”
3. Judge can grant summary judgment before the trial or judgment as a matter of law –
assumes that no reasonable jury could come but to one conclusion
35
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
iv. Holmes, The Common Law 110-11, 120-124 (1881)
1. Since the cases with comparatively small variations repeat themselves, a judge who
has long sat at nisi prius (trial court) ought to acquire a fund of experience which
enables him to represent the common sense of the community in ordinary instances
far better than an average jury. He should be able to lead and to instruct them in
detail, even when he wants to take their opinion.
a. Exception when standard is rapidly evolving, i.e. medical malpractice In this
case want juries.
v. Pros & Cons of leaving tort action to jury to decide
1. Pros – juries can bring sense of the community to difficult estimations of reasonable
care required under a negligence system. Juries provide a check against the
domination of the legal system by government officials and professional people.
Cases are usually not exactly the same and rule can’t take into consideration subtle
variations of facts.
2. Cons – expensive jury system only runs by taxing the unwilling individuals who are
paid a fraction of their market wage for jury duty (large financial and opportunity
costs and costs). Juries may be subject to passion or prejudice
vi. CASE: Baltimore and Ohio RR v. Goodman (1927) – “stop, look and listen case”
1. FACTS: Π’s decedent killed by train while crossing track. Failed to check for train
when he had no practical view,
2. ISSUE: Did the court err in not directing for a verdict of contributory negligence?
3. HOLDING: A driver must take the necessary precautions (get out and check) to
check to see that a train is not coming before crossing a train track. If he doesn’t, he
does so at his own risk. Question of due care usually left to jury but court says since
its dealing with a clear standard of conduct, which “should be laid down once for all
by the courts.”
vii. CASE: Pokora v. Wabash Ry. (1934)
1. FACTS: Π approached four tracks and stopped, tried to look, and listened for train,
heard nothing. He could not see main track because a boxcar was stopped on the first
track. He didn’t get out of his car to get a better view. Hit by train when he crossed.
2. ISSUE: Should the precedent set by Baltimore & Ohio R.R. v. Goodman stand as
way to determine due care when crossing train tracks?
3. HOLDING: It should be up to the jury to decide suitable conduct for traveler caught
in a situation where the ordinary safeguards fail him. Need for caution in framing
standards of behavior that amounts to rules of law, especially when there is no
background experience out of which the standard emerged.
viii. Despite Pokora’s disapproval, Goodman has been cited hundreds of times, often with
approval. In Ridgeway v. CSX Transportation, Inc. (1998)*, court upheld a contributory
negligence defense as a matter of law in a single track wrongful death case.
1. Same outcome in Jewell v. CSX Transportation, Inc.* where Jewell family injured
while crossing track on an elevated portion of the road. Π-appellants argued for an
“extrahazardous” instruction. Court affirmed trial judge’s decision not to give the
extrahazardous instruction in the absence of “any physical obstruction to the driver’s
view of the train.”
ix. Π’s have greatest success in case when it’s not clear that the railroad has the right of way.
36
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
1. Toschi v. Christian (1944)* – Π hurt when truck was struck at crossing by Δ’s train.
Δs normally have flagmen to alert people that tracks weren’t clear. In this incident,
flagman was playing with mirrors, blinded Π, who stopped on first track and was
struck.
x. RTT: LPH §8, comment c – rejects idea that uniform rules can decide concrete cases: “what
looks at first to be a constant or recurring issue of conduct in which many parties engage may
reveal on closer inspection many variable that can best be considered on a case-by-case
basis.”
xi. Π bears the burden of proof in negligence cases - Duty of a party to substantiate an
Allegation or Issue, either to avoid dismissal of that issue in the trial or to convince the court
of the truth of that claim and hence to prevail in a civil or criminal suit.
1. To establish cause of action - Duty of a Plaintiff, at the beginning of a trial, to make a
prima facie showing of each fact necessary to establish the existence of a cause of
action
2. Of production - duty upon a party in a legal proceeding to introduce enough evidence
relating to an assertion of fact to have the issue be considered by the fact-finder rather
than summarily dismissed or decided; part of the burden of proof.
3. Of persuasion - onus on the party with the Burden of Proof to convince the trier of
fact of a preponderance of evidence for his or her case
a. If 50-50 (equipoise) – def. will win, must be more than 50 % likely for Π to
carry the day
g. Proof of Negligence
i. Res Ipsa Loquitor – “the thing speaks for itself” – burden-shifting device that shifts the
burden of production from Π to the Δ to respond; allows liability to be based on
circumstantial evidence
1. If established, burden of proof shifts to Δ. If Δ silent, question would go to jury. Jury
has permissive inference meaning jury can draw an inference of liability for
circumstantial evidence but doesn’t have to. (In this case likely that Π will win).
Court may also treat silence as rebuttal of presumption, they won’t give case to jury
and decide it as a matter of law
2. In some cases Π presents enough circumstantantial evidence to obtain a directed
verdict under res ipsa loquitor
a. California S.Ct. upheld trail court’s decision to take the case from the jury and
to direct a verdict for the Π in Newing v. Cheatham. Π’s decedent was killed
in a plane owned and piloted by Δ’s decedent. All circumstantial evidence
pointed towards Δ’s negligence – not having enough fuel, flying while drunk
and no circumstantial evidence proved Π’s contributory negligence.
b. Circumstantial evidence alone may authorize a finding of negligence. Where
the evidence of such facts and circumstances is such as to take the case out of
the realm of conjecture and into the field of legitimate inference from
established facts, a prima faice case is made
ii. Purpose
1. Necessary for cases where Π isn’t in best position to come forward with evidence, as
is case in Byrne v. Boadle. (Doctrine created before current discovery process, with
discovery less important)
2. Used in cases where there are multiple Δs
37
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
a. Ybarra v. Spangard - sued all people in operating room, getting appendix
remove but something went really wrong. Since no way for Π to know what
happened when he was under, used res ipsa loquitor to try to get some
information about what happened
a. Break a conspiracy of silence by requiring everyone to be potentially liable
3. Cases where Δ doesn’t even know what happened, vicarious liability. May view tort
system as compensation where since someone injured we’re going to allow
circumstantial evidence to prove negligence
iii. Conditions for res ipsa loquitor
1. Wigmore Prosser (smost straightforward idea)
a. Event ordinarily doesn’t occur without negligence
b. Δ has exclusive control
c. Π didn’t cause/contribute to injury
2. Restatement Approach (courts don’t have to follow this but may use it as a guideline)
a. RST §328D. Res Ipsa Loquitur.
i. It may be inferred that harm suffered by the plaintiff is caused by
negligence of the defendant when
1. the event is of a kind which ordinarily does not occur in the
absence of negligence;
2. other responsible causes, including the conduct of plaintiff and
third person, are sufficiently eliminated by the evidence; and
3. the indicated negligence is within the scope of the Δ’s duty to
the Π.
ii. It is a function of the court to determine whether the inference [of
negligence] may be reasonable drawn by the jury, or whether it
must be necessarily drawn.
iii. It is the function of the jury to determine whether the inference is
to be drawn in any case where different conclusions may b,e
reasonably reached.
b. RTT: LPH §17. Res Ipsa loquitor
The factfinder may infer that the Δ has been negligent when the accident
causing the Π’s physical harm is a type of accident that ordinarily happens as
a result of the negligence of a class of actors of which the Δ is the relevant
member.
iv. CASE: Byrne v. Boadle (1863)
1. FACTS: Π struck with a barrel of flour while walking past the Δ’s premises. Π
Injured.
2. ISSUE: Is the Π required to show proof of Δ’s negligence that resulted in flour falling
on him to recover from an injury resulting from this action?
3. HOLDING: There are certain cases of which it may be said res ipsa loquitor, where
the mere fact of the accident having occurred is evidence of negligence. * If there is
any state of facts to rebut the presumption of negligence, Δ must prove them.*
a. Exclusive control: employees and agents fall within Δ’s exclusive control
i. As owner he has exclusive control has right to determine who is and
isn’t there. Exclusive control even if chance that someone else might
be under control
38
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
ii. Δ can escape this by showing that even when due care sometimes this
injury will occur
v. CASE: Colmenares Vivas v. Sun Alliance Ins. Co (1986)
1. FACTS: Πs were injured on an escalator owned by Δ and maintained by 3rd party.
2. ISSUE: Under what circumstances does res ipsa loquitor apply?
3. HOLDING: 3 part test: accident must be of a kind which ordinarily does not occur
w/o negligence; caused by an agency or instrumentality within the exclusive control
of Δ; not due to any voluntary action on part of Π
a. There are some non-delegable duties which airports are required to provide
and maintain for their customers even if you have an independent contractor,
there is vicarious liability for a servant.
i. Exception: Hospitals not VL for Independently contracted doctors
(Ybarra). But they are for the foul-ups of their own doctors.
vi. Hotel Cases:
1. In Larson v. St. Francis Hotel*, Δ was not liable for injury suffered by Π when a
chair was thrown out of a window and hit Π who was walking on the sidewalk.
a. Court refused to apply res ipsa loquitor: “This occurrence is not such as
ordinarily does not happen without the negligence of the party charged, but,
rather, one in which the accident ordinarily might happen despite the fact that
the Δs used reasonable care and were totally free from negligence.
2. Connolly v. Nicollet Hotel* – court reinstates jury verdict for Π and reversed trial
court’s judgment. Distinguished this case from Larson as a case with a surprise
celebration. Π hit by falling object during a party that got out of hand. Management
had time to control the situation.
3. Difference is exclusive control. Control could have been exercised in Connolly case
but wasn’t. They had reason to believe that someone could get injured
vii. Res Ipsa Loquitor Hypotheticals:
1. A walking past bowling ball factory. Bowling ball falls out window and hits him
a. Like Byrne case, res ipsa loquitor
b. What if defect in machine
i. Was this a non-delegable issue? Delegable duty (like when car fairs)
2. A walking by alley. B walking by hit in shin.
a. Spontaneously instance of throwing ball out, sort of like someone throwing
out window in hotel. If people had been doing this all day long, then might
have a different argument. Court would have to determine whether it should
have been controlled
3. A walking in store and falls over strawberry yogurt. Storeowner liable if didn’t
regularly cleaned.
a. Event ordinarily doesn’t occur w/out negligence?
i. Π attorney would want to know how long it’s been there
ii. Depends on how you frame the event
4. A walking through downtown Chicago, window widget falls and hits a. Construction
crew working on the window.
a. If installed with due care, will still fall off 1 in 100,000
b. If installed negligently, will fall off 1 in 2 times
39
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
V.
c. 99% of time Δ uses due care, 1% negligent ( if Π want to show a very big
ratio between what would happen with due care and what would happen if
know due care
5. How to determine event ordinarily doesn’t occur w/out negligence
a. Ratio between two
b. Want to look a big ratio when not using due care
6. Hypothetical
a. A sneaking into amusement park after hours. Sky drop box drops on him
i. Might say it’s a non-delegable duty
ii. Π on their illegally. Assumption fo risk by Π. In instances of trespass
you may need to show more than just negligence.
iii. May not want to apply res ipsa loquitor since Δ didn’t have a duty to
the Π
1. RST might be a base for an argument
b. A jogging in front of condo complex. Barbeque tongs fall and hit A on the
head. Different groups of people barbecuing not easy to tell who dropped the
tongs. Sue all 15 who were barbecuing
i. Δ – is this an even that ordinarily occurs without negligence. Duty to
make sure that barbecue implements don’t fall. How often does a thing
happen without negligence?
ii. Exclusive control of Δ? Argument that when we have all these Δ they
have exclusive control over their area, but it might
1. Π could make an argument like Ybarra. Δ collective enterprise
knew that someone in the room did this, no way to know who
did it.
Plaintiff’s Conduct
a. Types
i. Contributory Negligence – established when the Π has not taken reasonable care, and in
consequence of her default has suffered injury.
1. At common law Π’s negligence, barred Π from recovery in ordinary negligence cases
if established on the facts (even if Δ is negligent), subject to exceptions regarding the
Δ’s “last clear chance” (last actor) to avoid the harm, or to his recklessness,
wantonness, or willfulness in causing it.
2. Δ bears burden of showing contributory negligence
a. Must show: Duty, Breach, Causation, and Damages
i. Must look at whether Π breach duty of care or if failed to meet all
requirements
3. Δ doesn’t have to use this affirmative defense, if Δ can show:
a. Didn’t have anything to do with incident
b. Δ using care (if in negligence regime)
c. Affirmative defense gives them an extra shot if not using due care
ii. Assumption of risk – asks whether Π has deliberately and voluntarily encountered a known
risk created by the Δ’s negligence and if so, it hold that the Π should not be allowed to
recover for the consequent harm
40
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
iii. Legislation and common law have moved toward comparative negligence – Π’s negligence
should not typically bar her cause of action, but should only reduce the amount of damages
recoverable proportionate to Π’s negligence.
b. Compartative Negligence
i. Controversy
1. Leaves potential for hurt Π to not be compensated, even when Δ did something for
which he isn’t held responsible
2. Argument: CN is unnecessary, b/c P knows D will be subject to a neg. rule, and so P
will not be careless b/c he knows D’s incentives, and P can’t recover unless he was
careful.
ii. Why have it at all?
1. Corrective justice – makes sense to have a standard of care for both parties if moving
money from Δ to Π
2. Gives both sides incentives to prevent accidents.
iii. CASE: Butterfield v. Forrester (1809)
1. FACTS: Δ obstructed highway, Π coming along at high speed was injured
2. ISSUE: Was the lower courts instruction correct saying that Π can’t recover for an
injury that resulted from his contributory negligence?
3. HOLDING: if you cast yourself on an obstruction which reasonable care would have
avoided, your action is blocked
iv. CASE: Beems v. Chicago, Rock Island & Peoria R.R. (1882)
1. FACTS: RR worker uncoupling cars, signaled engineer to stop, engineer didn’t stop,
RR worker’s foot caught in tires, died.
2. ISSUE: Did the Π engage in contributory negligence for going between the cars
without checking to see if the speed slowed down?
3. HOLDING: act of not checking to see if the cars had stopped was not contributory
negligence, since he was authorized to act without checking, Π dependent upon others
to follow signal
a. Workplace compensation regime usually provides exclusive remedy
i. FELA casestake away contributory negligence defense (Wilkerson v.
McCarthy) – reluctance to look into the fault of the employee. Want
employers to figure out the correct approach to take
v. Difference between stranger cases (accidents on highway) and consensual cases
(employer/employee)
1. Butterfield – stranger
a. Ability of each party to act prudently doesn’t depend on cooperation with one
another
b. More likely that standards of care imposed on Π and Δ will be the same
c. Want things to be reciprocal
2. Beems – consensual
a. Parties may have differential access to knowledge and a different ability to
take care.
b. More like a Coasean world where people can communicate and signal to each
other; more opportunities for bargaining
vi. CASE: Gyerman v. United States Lines Co. (1972)
41
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
1. FACTS: Π was stacking fishmeal aware that sacks were in an unsafe pattern, didn’t
follow protocol and report this to supervisor, they fell down and injured him
2. ISSUE: Does the Π’s contributory negligence bar his cause of action?
3. HOLDING: Π’s negligence is a contributing cause only if it is a substantial factor in
bringing about his harm.- contributory negligence must be proximate cause
vii. Cases when difficult to establish contributory negligence
1. Safety statute (Koenig)
a. CASE: Koenig v. Patrick Construction Corp (1948)* – court refused to allow
the defenses of contributory negligence or assumption of risk when the Π ws a
member of the class of person for whose benefit a particular statute the state
Scaffold Law was enacted
b. Rigor of Koenig has been tempered. Weininger v. Heagedorn & Co. (1998) *–
liability could not be established under the scaffolding statute if the Π was the
“sole cause” of the accident. If you break scaffold law, you can’t claim
contributory negligence of people hurt on scaffold.
2. Custodial cases – can’t claim contributory negligence b/c want to protect vulnerable
group
a. Padula v. State (1979)* – two patients at drug rehab snuck into printing room
through negligence of guards. Found ditto fluid mixed it with tang and drank
it. One died the other went blind. Court first held that actions done under an
irresistible impulse, even without specific proof of a mental disease, do not
sever causal connection and that the suit wasn’t barred when a person is in
custody of drug treatment program
3. Medical malpractice – differential in knowledge, hard to blam patient from not
knowing what to do
a. CASE: Dunphy v. Kaiser Foundation Health Plan of Mid-Atlantic States
(1997)* – Π suffered amputation after Δ failed to diagnose his bone infection.
4. Private necessity/emergency – running into traffic
a. Raimondo v. Harding (1973) *– Π runs into the path of a negligently
speeding car on public highway to escape from gang attack court reversed
decision below stating that a person faced with an emergency who acts
without opportunity for deliberation to avoid an accident may not be charged
with contributory negligence if he acts as a reasonably prudent person would
act under the same emergency situation, even though it appears later that he
didn’t take the safest course or exercise the best judgment
b. Distinguished from Vincent v. Lake Erie (intentional tort private necessity
defense). In that case, Π knowing appropriated something. Running into
traffic, Π doesn’t know what’s going to happen. Other party is a bad actor.
i. RTT: LPH §9 – law of negligence takes into account “an unexpected
emergency requiring rapid response” for Π and Δ. No party can rely on
an emergency created by her own negligence
viii. Restatements
1. RST §463 (1965) – Contributory negligence is conduct on the part of the Π which
falls below the standard to which he should conform for his own protection and which
is a legally contributing cause co-operating with the negligence of the Δ in bringing
about the Π’s harm.
42
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
2. RST §465. Causal relation between harm and Π’s negligence
a. The Π’s negligence is a legally contributing cause of his harm if, but only if, it
is a substantial factor in bringing about his harm and there is no rule
restricting his responsibility for it.
b. The rules which determine the causal relation between the Π’s negligent
conduct and the harm resulting to him are the same as those determining the
causal relation between the Δ’s negligent conduct and resulting harm to
others.
ix. CONTRIBUTORY NEGLIGENCE HYPOTHETICALS:
1. Recovering Alcoholic (A) attends parent-teacher conference. A sees supply room
and sees some ditto fluid. Violation of state statute which says taht hazardous
materials be locked up. A goes in finds tang and drinks it.
a. Safety statute? Δ argument – not meant to protect A, because he’s not a child
b. Custodial relationship? Δ argument – not a custodial action, school has no
way of knowing that he might have this irresistible impulse, depends on being
knowledge and setting where party can control
2. A told not to eat 10 hours before surgery. A does eat, then asked. A lies. D gives him
an overdose. A under longer than expected. A dies.
a. A Lies about a crucial fact; doctors only in best position to figure things out
when the patient lies.
3. A meter reader runs into a truck when trying to run away from a dog who’s attacking
her. Forgot work issued pepper spray
a. Emergency but contributory negligence because she could have prevented
emergency.
4. A driving 85mph B veers over to A’s lane. Little damage but A runs over guard rail
and fatalities result side swiping then losing control
a. Mahoney v. Beetman (340-341), sideswiping found to be caused accident.
Example of where comparative would be better
x. CASE: LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry.,
1. FACTS:  had stacks of hay near ’s RR. Sparks from ’s train spread to flax and
all flax was destroyed.
2. ISSUE: Should ’s use of land be limited b/c close to RR? Is there contributory
negligence?
3. HOLDING: The rights of one man in the use of his property cannot be limited by the
wrongs of another. Doctrine of contributory negligence is entirely out of place
4. Holmes CONCURRENCE: Right to place stacks where he wishes but RR’s liability
is tempered by location of stacks. Question for jury to determine if there was
substantial certain that risk could occur.
5. Have to consider likelihood of fires starting. If likely, then cheaper to have  store
hay at a safe distance. That way RR can carry on business taking necessary
precautions of course and no real burden on .
6. Not allowed as a defense in SL cases.
xi. CASE: Derheim v. N. Fiorito:
1. FACTS: Π’s not wearing seatbelt when Δ’s car collided with Π’s car. Δ made a left
turn in violation of driving rules.
2. ISSUE: Is failure to wear a seatbelt CN?
43
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
3. HOLDING: Since there is no statutory law requiring duty to wear a seatbelt, should
not be able to use seat belt defense for an accident for which the Π was in no way
responsible.
a. There will usually be a fine for failure to wear, but not liable for CN in tort
actions. (Seatbelt-specific)
b. You can only collect damages, as a rule, for the harm that would have
occurred anyway (damage to the car, etc.).
xii. Last Clear Chance - generally occurs when the Δ is in a heightened level of
blameworthiness
xiii. CASE: Fuller v. Illinois Central R.R.
1. FACTS: Π killed by oncoming train. Π wasn’t paying attention when crossing tracks.
Δ’s train could have slowed or stopped but didn’t.
2. ISSUE: Should the Δ be held liable for having the last clear chance of avoiding Π’s
injury when Π is contributorily negligent?
3. HOLDING: The contributory negligence of the party injured will not defeat the
action if it is shown that the Δ might by the exercise of reasonable care and prudence
have avoided the consequence of the injured party’s negligence. – doctrine of last
clear chance
xiv. RST §479 Last Clear Chance: Helpless Π
A plaintiff who has negligently subjected himself to a risk of harm from the Δ’s subsequent
negligence may recover for harm caused thereby if, immediately preceding the harm,
(a) The plaintiff is unable to avoid it by the exercise of reasonable vigilance and care,
and
(b) The Δ is negligent in failing to utilize with reasonable care and competence his then
existing opportunity to avoid the harm, when he
(i)
Knows of the Π’s situation and realizes or has reason to realize the peril
involved in it or
(ii)
Would discover the situation and thus have reason to realize the peril, if he
were to exercise the vigilance which it is then his duty to the Π to exercise.
xv. RST §480. Last Clear Chance: Inattentive Π
A Π who, by the exercise of reasonable vigilance, could discover the danger created by the
Δ’s negligence in time to avoid the harm to him can recover if, but only if, the Δ
(a) Knows of the Π’s situation, and
(b) Realizes or has reason to discover his peril in time to avoid the harm, and
(c) Thereafter is negligent in failing to utilize with reasonable care and competence his
then existing opportunity to avoid the harm.
xvi. Basic insight in this area is that once the Δ becomes aware of the Π’s peril, he becomes
obligated to react to that danger by taking steps to avoid it. The conduct that was optimal
without that knowledge of the peril is no longer so.
c. Imputed CN
i. Usually limited to some sort of pecuniary joint venture. Imputed in both a master/servant
relationship and a joint enterprise/venture—has nothing to do with a familial relationship.
Don’t impute CN of parents to their children. Usually applies to personal damage, but not for
property damage
ii. CASE: Mills v. Armstrong
44
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
1. FACTS: 2 ships collide due to mutual neglect of those on both sides. Employees
died. Trial court imputed contributory negligence of those in charge of their ship to
the decedents so as to bar their recovery.
2. HOLDING: Rejects Thorogood v. Bryan where a man killed when the omnibus didn’t
pull up to the curb to drop him off. Thorogood court imputed driver’s negligence to
. The neg. of the driver will not be imputed to the passenger due to the
driver/passenger relationship alone.
3. Both Ways Test: If A can be held vicariously liable for the torts of B, then the CN of
B should be imputed to A to bar A’s recovery.
4. Dashiell v. Keauthou-Kona (1973) – Mr. Dashiell was injured. Jointly through the
negligence of his wife, who was driving a golf cart in which he was a passenger and
the negligence of the Δ. Court held the joint enterprise defense inapplicable as a
matter of law. Dashiell reflects courts dissatisfaction with the “both ways test”
a. Joint enterprise: When the Δ can establish that the passenger and the driver
have entered into some relationship that makes the passenger vicariously
liable for the driver’s torts, the courts may impute the negligence of the driver
to the passenger. (courts typically require more than simple driver-passenger
relationship, sometimes dwelling on the “community of interest” that such an
enterprise presupposes)
d. Assumption of Risk
i. CASE: Lamson v. American Axe & Tool Co.
1. FACTS:  works for . Complains of unsafe working conditions.  says either shut it
or get out.  is injured.
2. HOLDING: If Π voluntary assume a known risk you can’t recover from it.
3. Fellow Servant Rule = If  is employed by  and is injured by one of ’s employees,
 can’t recover, b/c has assumed the risk. Didn’t matter whether  was aware of risk
or not.
a. Since Π couldn’t quit job might want to bargain with employees for more pay
given unsafe work conditions. This would give workers incentive to make
workplace safer if it’s more efficient to do so.
4. Meistrich v. Casino Arena Attractions, Inc. (man knew that Δ hadn’t prepared ice
correctly but skated anyway)
a. Primary assumption of risk: It occurs when the plaintiff has either expressly
(when, by contract or otherwise, a plaintiff explicitly agrees to accept a risk)
or impliedly (exists when the plaintiff's voluntary exposure to risk is derived
merely from her behavior, and not from explicit assent) relieved the defendant
of the duty to mitigate or relieve the risk causing the injury from which the
cause of action arises. It operates as a complete bar to liability on the theory
that upon assumption of the risk, there is no longer a duty of care running
from the defendant to the plaintiff; without a duty owed by the defendant,
there can be no negligence on his part.
b. Secondary assumption of risk: where the defendant does owe a duty of care to
the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by
the defendant's breach of duty . Must ask: would a reas. prudent man have
assumed the risk, and if so, would he have acted in the way the P acted?—the
doctrine is merged into the comparative fault scheme, and the trier of fact, in
45
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
apportioning the loss resulting from the injury, may consider the relative
responsibility of the parties
i. In situations where the Π knew, but it was important to take the risk he
did. – Emmanuel’s says many courts have abolished the AR defense in
this situation because it is unfair.
ii. CASE:Murphy v. Steeplechase Amusement Co.
1. FACTS: Amusement park ride called the Flopper. Ride involves moving belt which
causes passengers to fall down.  watches people on the ride and then decides to try
it. Falls down and hurts his knee.  claims ride stopped and started, was not
properly equipped to prevent injuries, was operating at a fast and dangerous rate of
speed and was not supplied with a proper railing.
2. HOLDING: Even if you establish there was a jerk, fall was still a foreseen hazard.
Πassumed the risk. Would have been different if there were many accidents of this
type. Would be a different situation if padding had been gone.
3. NOTES: Police officers and Public employees (like firemen) usually don’t have an A
of R defense because they have knowingly and voluntarily confronted a hazard.
4. Assumption of risk is the only defense in a strict liability tort action.
e. Comparative Negligence
i. Terminology
1. Contributory negligence – common law all or nothing rule , complete bar to recover
2. Comparative negligence –proportioning fault so that you would not have a complete
bar but a reduction in damages
ii. Forms
1. Pure: Damages apportioned strictly based on jury’s assessment of P and D’s fault
percentages (CA, NY, FL)
2. Modified: Π is not barred as long as they don’t reach a threshold (usually around
50%). If they reach threshold can’t recover at all.
a. Π recovers if fault is less than Δ
i. Π can recover if fault is 50-50
b. Π recover if fault is “not greater than” Δ
i. Π can still recover at 50-50
ii. Less than/not greater than wording could make a big difference.
Creates a cliff effect that is similar to contributory negligence idea)
c. Wrinkles when multiple Δ in a modified system. Assume not greater than rule
i. P = 40%, D1 = 30%, D2 = 30% (wouldn’t bar recovery – 40 is less
than sum of two Δ’s negligence – majority rule; Wisconsin statute –
minority rule – bar Π’s recovery, looks on Δ by Δ basis. 40>30 )
iii. How it works: Even if both parties believe that the outcome will be 70-30 proportion of
fault, it still works as long as people agree on an equal split of the fault %. Injurer will
expect the victim to be careful under his perception, so it will be better for injurer to take the
precaution.
iv. What becomes of the doctrine’s we’ve studied?
1. Elevated levels of blameworthiness on Δ – rule same under comparative negligence.
No comparative negligence defense under intentional torts. Could be incorporated
into the comparative negligence regime
46
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
VI.
2. Last clear chance – usually ditched entirely under comparative negligence regime.
Doesn’t make sense to have it
3. Assumption of risk – vary by jurisdiction how to deal with it
a. Primary - goes to the initial question of whether Δ was negligent in the first
place. Was a duty breached? If no prima facie case, then Δ still has 0% of
fault.
i. Ballpark case – Π & Δ agreeing that Δ will have a lower duty of care.
Π agrees to take on the risk. Unaffected by shift from contributory
negligence to comparative negligence.
b. Secondary – comes into play after established that Δ has breached duty. Π
could tell and went on and did it anyway. Π acting unreasonably following
Δ’s breach. Subset of contributory negligence so it becomes subset of
comparative negligence because unreasonable conduct by Π. It becomes
absorbed in the comparative negligence regime
v. CASE: Li v. Yellow Cab Co. of California
1. FACTS:  attempted to cross three lanes of oncoming traffic in order to enter a
service station. ’s driver was traveling at an excessive speed when he ran a yellow
light just before he struck the’s car. Was  barred from recovery b/c of
contributory negligence?
2. HOLDING: Problem w/ all or nothing quality of contributory negligence. How about
comparative negligence? Problems with comparative negligence: (1) cases involving
multiple parties are difficult to figure out, (2) administrative costs are high for fact
finding process, (3) what happens to last clear chance and assumption of risk?, (4)
should this even be considered in cases where one party is guilty of willful and
wanton misconduct.This court opts for pure comparative negligence b/c other option
is just another form of contributory negligence.
Multiple Defendants: Joint, Several and Vicarious Liability
A. Joint and Several Liability
i. Definitions:
1. Joint liability: implies that each of several Ds is responsible for the entire loss that they
all caused in part.
2. Several liability: holds each D responsible only for his proportionate share of the loss.
3. Joint and several liability refers to any situation where the Δs are joint to the Π
meaning each can be held responsible to the whole, but bear several liability amongst
themselves, if all are available to pay. (means joint)
ii. Common law background: hostility toward apportionment in contributory negligence cases, so
P could decide which D would bear all costs with no right of contribution (ability to recover
from other parties who are about at equal fault as you).
1. A wrongdoer could not bring suit against another party whose wrong is greater than its
own.
2. Π could decide which of two solvent Δ had to bear the entirety of the loss. If one Δ
made only partial payment, Π could then sue the 2nd for the remainder.
3. Only option for D: to seek an indemnity from codefendant for the full amount of the
loss. This only allows Δ to recover from someone who is much more guilty than you
were.
47
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
iii.
iv.
v.
vi.
vii.
a. Merryweather v Nixan (KB 1799): P sued two Ds for conversion. Ruling: if P
recovers all of damages against one D, that D cannot recover a part from the
other.
CASE: Union Stock Yards v Chicago, Burlington & Quincy RR (US 1905): Faulty nut in
switching car caused injury to P’s employee. Either P or D could easily have found and
rectified problem. Employee recovers full amount from P who wants contribution from D.
1. Held: usual rule = one D cannot recover against another D, but exception is when one
D is less culpable than the other b/c the second D is principally responsible for the
damage. E.g. Gray v Boston Gas & Light (MA 1873): D attached telegraph cable to
P’s chimney w/o P’s permission. Cable pulled chimney down and it injured passerby
on the street. P can recover against D b/c parties were not in pari delicto (in equal
fault). But in this case, the two companies were guilty of like neglect of duty, so
exception doesn’t apply.
2. For all joint tortfeasors, including those who did not act in concert, the traditional
common law rule treated a release of one as a release of all, regardless of the amount of
consideration received in exchange, unless the Π obtained an express reservation of
rights from the settling Δ. Recent cases have tended to reject the automatic release rule.
Law presumes that only releasing 1 Δ unless you go out of your way to say you’re
releasing more.
a. When 1 Δ settles the amount Π can recover from other Δ is reduced by the
proportionate fault share. Π can only recover the remaining proportion of
share. (This can be unfair to unsophistcated ’s) Sometimes the amount is not
reduced. (This can place a heavy burden on who don’t settle, but not have that
much fault).
i. Suppose 2 equally culpable Δ(damages = $100). First Δ settles for $30
($70). Π can only seek $50 from 2nd defendant. Π has to take $20 loss
($20 gain).
Partial Indemnity: If you are 10% guilty and you have to pay 100%, then you sue the other
guilty party for 90%
Pro Rata: If there are 4 Ds, then each automatically liable for 25%. Each D has opportunity
to disprove causation.
Statute adopted a regime of pro rata liability that allowed each Δ to recover from his coΔs any
amount above his own share. (Statutory contribution wasn’t available for intentional harms
and did not displace any available indemnity actions.)
1. These changes to rule of contribution didn’t change joint and several liabilty
CASE: American Motorcycle Association v Superior Court (CA 1978): P, a minor, injured
in motorcycle race organized by AMA. AMA sought to file cross-complaint against P’s
parents for improper supervision of their minor son, and asked that its portion of judgment be
reduced by the amount of the allocable negligence of the parents.
1. Held: Ct. allowed cross-claim against parents and upheld joint and several liability of
joint tortfeasors(a) the simple feasibility of apportioning fault on a comparative
negligence basis does not render an indivisible injury ‘divisible’ for purposes of the
joint and several liability rule. The mere relative culpability of one negligent D as
compared to another does not in any way suggest that each D’s negligence is not a
proximate cause of the entire indivisible injury. (b) A P may be completely free of
liability, but if you abolish the joint and several doctrine, the P will have to bear burden
48
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
of damages if one of the Ds can’t pay his proportionate share. (c) a concurrent
tortfeasor may seek partial indemnity from another concurrent tortfeasor on a
comparative fault basis.The allocation of the judgment among tortfeasors should be
based on each person’s % of fault
viii. Some states have gotten rid of joint and several liability, turning it into several liability where
Π can only recover share of fault of each Δ. Π bears loss if one of the Δ is insolvent.
1. Under AMA if one Δ is insolvent the other would be responsible for the fault.
2. Evangelinos rule – if party is insolvent and unable to bear their fair share of loss, the
shortfall created by such insolvency should be apportioned equitably among the
remaining culpable parties – Δs and Πs.
ix. In joint liability only regime, Δ can’t be held jointly liable unless their fault was above 50%.
Otherwise, Δ is only responsible for self.
B. Vicarious Liability
i. Vicarious liability is not personal liability. It is not based upon the D’s own fault, but only in
situations in which he is held liable for the wrongs of another.
ii. Respondeat superior: employers are jointly and severally liable along with the tortfeasor
employee for the torts of employees committed within the scope of employment.
1. Applies to all torts: The doctrine applies to all torts, including intentional ones and
those in which strict liability exists, provided that the tort occurred during the scope
of the employee’s employment
2. From employer’s perspective vicarious liability is strict liability since employer is
liable without personal fault
3. In theory, employer has right of indemnity against tortfeasor employee, but this is
rarely exercised since employee is usually judgment proof.
iii. Employer is liable even if the employee acts in a way the employer had expressly forbidden.
iv. Scope of employment
1. Employee has to be acting under employer’s control
2. Servant’s conduct is within the scope of his employment if it is of the same general
kind as authorized or expected, or incidental to such conduct, and
3. The Servant was acting within the authorized time and space limits.
a. Master is still vicariously liable if servant acts outside scope of employment if
employment aided him in accomplishing the tort.
4. Bright line rule: if you are on work time & on the premises of the worksite, you are
under the liability of the employer.
v. A person can be held responsible for acts by:
1. Self – gives rise to liability based on your own negligence, independent of vicarious
liability
2. Employees
3. Sometimes independent contractors
4. Borrowed servant
5. Partners in joint enterprise (sometime expanded to include people engaged in joint
activity)
vi. CASE: Bushey & Sons v. United States: Drunk seaman turned wheels on the drydock, Ship
slid off the blocks and fell against the wall. Parts of drydock sank and the ship partially did.
Drydock owner sued for compensation. Govt. objects on grounds that Lanes’s acts were not
w/in scope of his employment and so employer can’t be held responsible.
49
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
vii.
viii.
ix.
x.
xi.
xii.
xiii.
1. Held that there is vicarious liability b/c action was foreseeable and related to sailor’s
duties.
2. Lisa M v. Henry Memorial Hospital – technician assaulted Π in an exam room. No
vicarious liability because what he did had nothing to do with the scope of
employment even though his employment gave him access.
Most courts hold that where an accident occurs where the employee is travelling from her
home to work, she is not acting within the scope of her employment. If the employee is
returning home after business, courts are divided.
Frolic and detour: Even a detour or side-trip for personal purposes by an employee may be
found within the scope of employment if the deviation was reasonably foreseeable.
1. Deviation had to be slight, or is usual, expected, tolerated
2. Employee is acting in part in service of employer
3. Frolic: usually longer period of time or far from employment
Even if the act done was expressly forbidden by the employer, it will be "within the scope of
employment" if done in furtherance of the employment.\
An intentional tort does not relieve the employer of liability if it relates to the employment.
1. But if the employee merely acts from personal motives, the employer will generally
not be liable.
2. Intentional torts: where supervisor’s act is not directly related to his duties, but P can
prove that employer was negligent in not stopping the conduct b/c it knew or should
have known it was going on, this makes employer liable.
Sometimes employers may be held responsible for negligent hiring or supervision, even for
intentional wrong that fall outside the employee’s scope of employment.
1. Schechter v. Merchants Home Delivery, Inc, two workers hired by Δ robed Π while
installing a new washing machine in her house. Court held that action fell outside the
course of employment, but allowed the Π to reach the jury on the theory of negligent
hiring, on the issue whether Δ failed into its duty to supervise, train and maintain its
delivery personnel.
a. Doesn’t matter whether independent contractors or employee since work falls
out of scope of employment.
Sexual harassment is not conduct within the scope of employment, but employers are
vicariously liable for the creation of a hostile environment by a superior with direct or
successive higher authority over victim. Affirmative defenses available to employer:
1. employer that takes reasonable care to prevent and promptly correct any harassment
2. employee who unreasonably failed to take advantage of preventive or
correctiveopportunities provided by employer
Employees v. Independent Contractors
1. An employee is one who works subject to the close control of the person who has
hired him.
2. An independent contractor, by contrast, although hired to produce a certain result, is
not subject to the close control of the person doing the hiring.
3. The "control" required to make a person an employee rather than an independent
contractor is usually held to be control over the physical details of the work, not just
the general manner in which the work is turned out.
a. Consider whether the person works for a lot of people, how compensation
works, length of relationship, who provides tools
50
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
xiv. One who hires an independent contractor is not generally liable for the torts of that person.
1. Exceptions:
a. First, if the employer is herself negligent in her own dealings with the
independent contractor, this can give rise to employer liability.
b. Second, there are some duties of care that are deemed so important that the
person doing them will not be allowed to delegate them to anyone.
i. Duty of lateral support, can’t be delegated, blasting or cutting
electrical conduits, water pipes or gasoline lines below ground.
c. Finally, one who employs an independent contractor will also be liable where
the work is such that, unless special precautions are taken, there will be a high
degree of danger to others, the work by its nature poses a risk.
i. R2T §427: Negligence as to danger inherent in the work: One who
employs an independent contractor to do work involving a special
danger to others which the employer knows or has reason to know to
be inherent in or normal to the work, or which he contemplates or has
reason to contemplate when making the K, is subject to liability for
physical harm caused to such others by the contractor’s failure to take
reasonable precautions against the danger.
ii. This special rule of vicarious liability applies only to "peculiar risks,"
i.e., risks differing from commonly-encountered risks.
iii. Employer only liable if the independent contractor is negligent.
d. Petrovich v Share Health Plan (IL 1999): Decedent sued HMO and
physician for malpractice. HMO claims it can’t be held vicariously liable b/c
the doctors with which it contracted were independent operators. Ct. allows
liability to go to jury on doctrines of apparent and implied authority.
i. Apparent Authority: a principal will be bound not only by the
authority that it actually gives to another but also by the authority that
it appears to give. Functions like estoppel. Where the principal
creates the appearance of authority, court won’t allow it to deny
agency.
1. Elements to prove:
a. Holding out by principal—giving appearance of
authority
b. Justifiable reliance by P on that apparent authority
consistent with ordinary care and prudence.
i. Where person has no choice but to enroll with
HMO, the person justifiably relies on HMO to
provide health care
ii. Implied Authority: whether the alleged agent retains the right to
control the manner of doing the work. Where a person’s status as
independent contractor is negated, liability may result under doctrine
of respondeat superior.
1. When HMO controls doctor’s exercise of medical judgment
and that control is negligent, the HMO is liable.
xv. Borrowed servant doctrine—when an employer hires a sub-contracting employee:
51
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
VII.
1. Traditional rule: as long as the servant is furthering the business of his general
employer by serving another, there is no inference of a new relationship unless
command has been surrendered, and surrender is not to be inferred from mere fact of
its division
2. Modern rule: holds both the general and the special employer liable
xvi. Joint enterprise: rule that holds each partner to a joint enterprise vicariously liable for the
wrongs of another partner.
1. Four Requirements for joint enterprise:
a. an agreement, express or implied, between the members;
b. a common purpose to be carried out by the members;
c. a common pecuniary interest in that purpose;
d. and an equal right to a voice in the enterprise, i.e., an equal right of control.
xvii. Justification for vicarious liability:
1. Deep pockets—loss-spreading, employer can better pay
2. Efficiency—employer is superior risk bearer b/c of access to insurance, reduces
chance of an uncompensated risk to P, and P knows someone in the company will be
responsible for damage without having to know who.
3. Employer can go after employee where appropriate
4. Gives employer incentive to hire best, most competent employees
5. takes away risk of injured party being undercompensated
Causation
A. Introduction
i. Once Π has established that the Δ has engaged in some wrongful conduct, she must link that
conduct to her harm. Requirement of causal linkage raises 2 issues, which Π must show to
satisfy causation:
1. Cause in Fact—did D’s negligent conduct cause P’s harm.
2. Proximate Cause—the appropriate scope of D’s legal responsibility for negligence
that has in fact caused harm. (Not really about cause at all, but about consequences—
we know what caused the harm, we want to know if D is liable.)
ii. Cause in fact – physical or scientific inquiry; the cause that, as a factual matter, contributed
to P’s harm.
1. “But for” test: D’s conduct is a cause in fact if the Π’s harm would not have occurred
but for the conduct; conversely, D’s conduct is not a but for cause of the harm if the
harm would have occurred without it.
a. Δ’s act doesn’t have to be sole ‘but for’ cause
b. Counter factual inquiry – look back to figure out what woul have happened
had that negligence or wrongful act never occurred.
2. Substantial factor test – use this test in quirky cases wehre “but for” test gives the
intuitively wrong answer.
iii. Proximate cause – question of whether it is a legal cause, appropriate within the scope of
liability.
1. To pass substantial factor tests whether any of the intervening or concurrent human
actions or natural events that occur after Δ’s conduct but before the Π’s harm sever
the causal connection between them.
2. Two approaches
52
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
a. Forward-looking asks whether the chain of events that in fact occurred was
sufficiently “forseeable,” “natural” or “probable” at the outset for the Δ to be
held liable for the harm. Judgment is made from the standpoint of the Δ at the
time the tortious act was committed, and denies recovery for those harms that
are not “within the risk.”
b. Starts with the injury and works back toward the wrongful action of the Δ,
seeking to determine whether any act of a 3rd party or the Π, or any natural
event, has severed the causal connection between the harm and the Δ’s
wrongful conduct.
B. Cause in Fact
i. CASE: NY Central RR v Grimstad (2nd Cir 1920): Barge was hit by another ship,
decedent falls into water and can’t swim. Wife goes to get a small line but husband dies.
Was  negligent in not equipping the barge w/ life-preservers? Could life preservers have
saved decedent from drowning even if they were there?
1. In order to hold Δ liable there must be something to show that the Π’s injury would
not have occurred without negligence.
2. Here, no evidence to show that Δ’s negligence caused decedent’s death (that if life
preserver had been available he would have made it given he couldn’t swim).
3. Normally Π has burden to show causation, but duty shifts to Δ in absence of
evidence.
4. Case: Haft v. Lone Palm: Drowning in swimming pool, and there was a violation of a
statute requiring a lifeguard or a sign. Court focuses on absence of lifeguard. It
would frustrate the purpose of the legislation to allow the D to just focus on the
absence of a sign. You could imagine situations where there would be other people
around and it wasn’t clear that one of them wasn’t a lifeguard. Don’t require Ps to
establish causation to a great certainty, but rather place burden on D who had violated
statute in the first place, to show that its negligence was not the cause.
ii. CASE: Zuchowicz v United States (2nd Cir 1998): P had prescription filled. Prescription
erroneously told her to take twice the maximum dosage. She immediately started having bad
side effects, ended up being diagnosed with primary pulmonary hypertension and dying.
Prior to taking the drug, she was healthy. Expert testified that the drug side effects were
same as those of PPH and that he thought the overdose caused the PPH.
1. Held: If (a) D was deemed to have acted wrongfully b/c the act increased the chances
that a particular type of accident would occur, and (b) a mishap of that very sort did
occur, this is enough to support a finding that the negligence caused the harm. The D
then has to show evidence denying the “but for” cause.
iii. CASE: General Electric v Joiner (US 1997): P worked in proximity to dielectric fluids that
turned out to have PCBs and dioxins in them. P got lung cancer—he had been a smoker, but
argued that the PCB exposure hastened the onset of cancer. P’s experts alluded to
inconclusive research. Trial judge disallowed their evidence, saying it was too tenuous.
Issue: whether judge can decide to admit expert testimony.
1. Held: judge is the gatekeeper to ensure that scientific testimony is both relevant and
reliable (Daubert standard). Abuse of discretion is the proper standard of review a
district court’s evidentiary rulings.
2. Concurrence/dissent: Not unscientific for experienced professionals to arrive at a
conclusion by weighing all available scientific evidence.
53
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
3. Daubert v Merrell Dow (9th Cir 1995): P assembled recognized experts to testify
that a drug caused birth defects by reinterpreting research that said it didn’t. Daubert
overturned Frye v United States (DC Cir 1923) standard which allowed as admissible
only expert testimony generally accepted as reliable by the scientific community. Said
focus should not be on general acceptance but on reliability and relevance.
4. Some criticize Frye because it may exclude cutting-edge but reliable evidence
whereas Daubert stresses a more liberal and flexible approach to admission of
scientific testimony.
5. Lowered standard about who can be an expert, but can’t be just anyone: court has to
ask if the expert is qualified. An unclear standard.
6. Want judge to serve as gatekeepers because this is complicated info. Want to filter it
to decrease the errors made by jurors.
7. Kumho Tire Co v Carmichael (US 1999) expanded gatekeeper role to technical
evidence.
iv. Herskovits v Group Health Cooperative (WA 1983): D negligent in not diagnosing P’s
cancer on first visit; b/c of this, P’s chance of short-term survival decreased 14%, but P still
would have had less than 50% chance of survival anyway. Issue: is such a decrease in
chance of survival enough to go to a jury.
1. Held: yes, P doesn’t have to show there was better than a 51% chance if D had been
negligent. A person who negligently renders aid and consequently increases the risk
of harm to those he is trying to assist is liable for any physical damages he causes.
Here the increased risk of harm (the decrease in decedent’s chance of survival) and
the decedent’s death is sufficient to hold Group Health responsible. Damages limited
to award of premature death (14% of expected lifetime earnings, etc.). Full amount
of emotional distress.
2. Concurrence: Causation is not an all or nothing proposition. What caused the loss is
a separate question from what the nature and extent of the loss are. Allow recovery
for the loss of the chance of cure even though the chance was not better than even.
3. Dissent: allowing a lower standard would be too loose. P in a malpractice case must
prove that D’s negligence, in probability, caused the death.
4. The Lost Chance doctrine in medical malpractice actions refers to the injury sustained
by a patient whose medical providers negligently deprived the patient of a chance to
survive or recover from a health problem, or where the malpractice lessened the
effectiveness of treatment or increased the risk of an unfavorable outcome to the
patient. It allows a plaintiff to recover in proportion to her chance of survival prior to
the allegedly negligent treatment. To prove loss of chance, the plaintiff must show:
that the decedent had in fact been deprived of a chance for successful treatment and
that the decreased chance for successful treatment more likely than not resulted from
the defendant's negligence.
v. There are some instances where the “but for” test doesn’t give the right answer or give an
answer we don’t want. Problem scenarios in cause in fact—exceptions to the use of the ‘but
for’ test:
1. Overdetermined causation: Where two Ds act negligently and either one’s act would
have sufficed to have caused P’s injury. (Fires)
a. Apply substantial factor test
54
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
b. Kingston v Chicago & NW Ry.: ’s property destroyed by 2 fires. One
from NE caused by . One from NW caused by unknown origin. Both fires
proximate cause of damage. Either fire could have caused destruction by
itself. Should  be liable since we don’t know who the second tortfeasor is?
 doesn’t have burden of specifically identifying the origin of both fires in
order to recover damages.
i.  cannot escape liability on grounds that damage would have
happened without his fire b/c impossible to apportion damage and
to permit each of two wrongdoers to plead the wrong of the other
as a defense to his own wrongdoing would permit both wrongdoers
to escape and penalize the innocent party who has been damaged by
their wrongful acts.
ii. Granting that the union of that fire with another of natural origin, or
with another of much greater proportions, is available as a defense, the
burden is on the Δ to show that by reason of such union with a fire of
such character the fire set by him was not the proximate cause of
damage.
iii. If Δ fire and fire by natural cause converge to destroy property and
either could have caused harm, no liability. Lucky Δ!
iv. Sequential fires – 1st is natural fire, 2nd is negligent fire; destruction is
already done, 2nd is superfluous no liability
1. 2 sequentially negligent fires. Liability for 1st Δ not 2nd
2. 1st neg; 2nd natural – unfortunate that you got their first,
liability
v. Δ has burden to prove which Δ caused the injury. If they can’t both are
liable b/c alternative is no recovery for Π.
2. Alternative causation: Where two or more D’s simultaneously commit the same act,
one of which caused P’s injury, but P cannot ascertain which one. (bullets)
a. Ds share damages pro rata
b. Burden of proof shifts to each D to show that he did not cause the harm—
focal point liability
c. Summers v Tice (CA 1948)— D1 and D2 each fired a bullet at the same
time, one bullet hit P, and it is not clear from which gun it came. Both Ds
held jointly and severally liable on theory of alternative liability. A has 50%
probability of doing harm, and B has 50% probability of doing harm
(drugs/toxicity)
i. The court said the two Δ were not in concert, but nonetheless liable
because they are both wrongdoers and were both negligent.
ii. R2T §433B(3): Alternative Liability: Where the conduct of two or
more actors is tortious, and it is proved that harm has been caused to
the P only by one of them, but there is uncertainty as to which one has
caused it, the burden is upon each such actor to prove that he has not
caused the harm. The theory of alternative liability dictates that
tortfeasors who act in concert will be held jointly and severally liable
for the P’s injury unless the tortfeasors are able to prove that they have
not caused the harm.
55
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
3. Marketshare liability: not able to tell who cause Π’s injury, but Δ caused a universal
harm of which Π was a part.
a. Court reluctant to extend beyond DES (even when Δ can show they didn’t do
it, they can still be held liable as part of market that collectively caused Π’s
harm
b. Levels of causation that must be established in toxic torts:
i. substance source—substance for which D is responsible caused his
harm
ii. exposure causation—he was in fact exposed to the substance is a way
that caused the disease (often a signature disease)
c. Criteria laid out in Sindell v. Abbott (Cal. 1980):
i. All defendants named in the suit are potential tortfeasors (that is, they
did produce the harmful product at issue)
ii. The product involved is fungible (substitutes are available)
iii. The plaintiff cannot identify which defendant produced the fungible
product which harmed her in particular, through no fault of her own
iv. A substantial share of the manufacturers who produced the product
during the relevant time period are named as defendants in the action
d. Skipworth v Lead Industries Assoc (PA 1997): P sued all manufacturers of
lead paint for lead poisoning. P can’t identify whose paint it was, when it was
applied in the house, etc. P sued on theory of market share liability, which
court refused to apply in products liability action. But PA requires P to
identify exact D.
i. Market share liability is a bad idea here b/c (1) the possible time
period is too long (100 years), (2) it is impossible to determine when
the poison paint was applied, (3) lead paint is not fungible. Thus MSL
would distort liability.
vi. Settings with multiple Δ with but for causation
1. Δ in concert – working in team to cause harm together, joint and several liability
usually, but for tortious teamwork harm wouldn’t happened
2. Independent actors combining to create harm – without the negligence of both parties
acting negligently, then harm would not occur (two cars that crash into each other and
hurt another party) joint and several liability, both necessary to cause accident
3. Two actors acting independently and cause different proportions of harm – not joint
and several liability, because causation can be broken apart.
4. Person harmed by a cricket ball hitting head and leg injury due to a squib exploding
C. Proximate Cause: the appropriate scope of liability for harm
i. Introduction
1. Directness—Vosburg v Putney; liable for the harms caused as a direct result of neg.
2. Foreseeability—not liable for unforeseeable harms
a. Duty (aka “foreseeable plaintiff): If there is no duty, not liable.
b. Harm within the risk: as D, liable for harms within the risk of your tortious
conduct.
ii. Physical Injury
1. Natural and Probable
56
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
a. CASE: Ryan v. New York Central R.R. (Natural and probable) – , by
careless management of their engines set fire to their woodshed. ’s house
situated at a distance of 130 feet from the shed caught fire. Is the owner of the
first building liable to the second owner for the damage sustained by such
burning? How far do you go in attributing the harm to all injured parties?
i. Court holds that the immediate result was the destruction of the Δ’s
building and any damage beyond that is remote. Therefore, the Π is
prohibited from recovery from Δ. The damage done to the Π’s
building is remote because it resulted from a concurrence of accidental
circumstance not upon any necessity of a further communication of the
fire. It was not a result of the initial firing.
ii. Court reasons it would be destructive to civilization to make men
liable for his own loss by fire and the security of neighbors also. By
living in a commercial location, everyone risks the hazards of his
neighbor’s conduct. Each person can purchase insurance against these
hazards to obtain security against loss is cheapest way to handle this
rather than litigation.
iii. Jones v. Boyce - problem of intervening action also arises whenever
sudden emergency requires Π’s immediate action . Π allowed to
recover when he broke leg after jumping from Δ’s coach after it had
gotten out of control. Π has right of action to recover for physical
injury and the mental disorder naturally incident to its occurrence if
Δ’s conduct puts Π under reasonable apprehension of personal
physical injury and Π in a reasonable attempt to escape, sustains
physical injury. (If Π acts in good faith to minimize the risk of loss
from a dangerous situation of the Δ’s making , then those action do not
sever the causal connection. Some courts have invoked a foresight
limitation to bar recovery. Both the Π and Δ must be able to foresee
the danger.
2. Coincidence: type of risk being created by Δ’s negligence. Harm Π suffers is harm
you’d expect
a. Case: Berry v. Sugar Notch Borough: Π was driving above speed limit
when a tree fell in a windstorm causing Π’s injury. Court allows Π to recover.
i. Π’s speeding does not increase the risk of being struck from above. Δ
argues that the excess speed meant that the car was under the tree
when it blew down; court refuses theis argument as coincidence. The
speeding only becomes causally relevant when Π is unable to control
the vehicle after impact because of excessive speed, when any damage
attributable solely to the original impact is allowed. The decision
might have been different if the tree had fallen before the car reached
it, and the excessive speed disallowed moving out of the tree’s way.
b. Central of Georgia Ry. v Price (Ga. 1898) rejected defendant’s liability for
missing the plaintiff’s train stop and escorting her to a hotel where the
kerosene lamp exploded. Stated that there was the interposition of a separate,
independent agency, negligence of hotel, which the railway company neither
owned nor controlled.
57
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
i. Another intervening act, risk realized is not risk foreseen by leaving
him at a railroad station. Too far removed, risk of harm is different
than the injury that actually happened. Risk of passenger being let out
is the risk that they will be victimized by criminals, distinguishing fact
between Price and Hines
c. Hines v Garrett (Va. 1921) found defendant liable for driving a mile past the
plaintiff’s train stop and requiring her to walk through an unsettled area where
she was raped. “Whenever a carrier has reason to anticipate the danger of an
assault upon one of its passengers, it rests under the duty of protecting such
passenger against the same.”
3. Third Party Interveners:
a. Introduction:
i. There can be multiple wrongdoers who are proximate causes of the
harm. If 2nd wrongdoer’s conduct intervenes after D’s act is complete.
This new cause would be a superseding cause, and D would not be
liable.
ii. Dependent causation: each of 2 successive acts is sufficient to harm P,
but P is exposed to the 2nd cause only b/c of the prior negligence of
the 1st. The 2nd cause is dependent on the first, so that 2nd D is
usually liable only for the additional damages caused by his action.
b. CASE: Brower v NY Central & HRR (NJ 1918): Π and Δ collided killing
the Π’s horse, destroying the wagon and empty barrels and a keg of cider were
scattered and stolen. Π’s driven shaken up and Δ’s railroad detectives
protected train from 3rd thieves. Δ did nothing to protect Π’s property.
i. It holds that a 3rd person’s act intervening and contributing a condition
necessary to the injurious effect of the original negligence will not
excuse the 1st wrongdoer if such act ought have been foreseen. The
thieves act didn’t intervene between Δ’s negligence and the Π’s loss.
The two causes were simultaneous and concurrent.
ii. Dissent: don’t confound proximate cause with opportunity for crime.
The collision gave thieves and opportunity which they took advantage
of, but proximate cause requires unbroken continuity between cause
and effect, which is broken when an independent criminal actor
intervenes.
iii. Maliciousness usually breaks the causal chain (b/c relates to
likelihood): Watson: Recently discharged employee throws a match
into a puddle of gas. Rule: If negligent and unforeseen, then liability.
If he acted maliciously, that was unforeseeable, so not neg. The
degree of likelihood is key.
c. Rescuers
i. Wagner v International Ry (NY 1921): P’s cousin falls out of train,
P goes searching for his body and is injured. Is train liable? Held:
danger invites rescue, P’s dangerous rescue does not necessarily
eliminate D’s liability. D negligently creates a risk of harm A but harm
B that is not foreseeable results to P.
58
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
1. Π is third party in this case. Foreseeable that such a thing
would happen so liability. A reasonable rescuer who gets hurt
in rescue attempt can still get damages from person who
created the original rescue situation.
2. Rescue negates contributory negligence and assumption of risk,
as long as the attempt is not rash or reckless. To achieve
rescuer status one must demonstrate:
a. Δ was negligent to person rescued and such negligence
cause the peril or appearance of peril to the person
rescued,
b. The peril or appearance of peril was imminent
c. A reasonably prudent person would have concluded
peril or appearance of peril existed
d. Rescuer acted with reasonable care in effectuating
rescue.
4. Directness Test—ex post: trace the harm back looking for breaks in the chain of
causation
a. CASE: In re Polemis & Furness, Withy & Co. (KB 1921): Appellants
chartered a vessel from respondents to carry cargo including gas. While
unloading, plank fell into hold, gas exploded, destroying ship. Falling plank
found to be cause of the fire. Falling plank was negligence, so appellant is
liable for the consequences of the negligence, and since plank caused fire, for
the fire.
i. Polemis rule: what one can foresee is important and may be decisive in
determining negligence, but it is not decisive in determining proximate
cause. If act is negligent then guilty party is liable for all the direct
consequences of the act, foreseeable or not. Natural and proximate =
consequences which follow in unbroken sequence, without an
intervening efficient cause, from the original negligent act. Basically
foreseeable that some harm, no matter how freakish, would result from
the neg. dropping of the plank. Therefore, liable for unforeseeable
harm to a foreseeable P.
5. Foreseeability Test
a. Case: Palsgraf v. Long Island R.R 162 N.E. 99 (N.Y. 1928): Π hit by weight
while standing down train platform after man dropped a package carrying
explosives dropped package and it went off.
i. Rule: There is no duty to people whom you couldn’t foresee hurting.
(aka foreseeable plaintiff rule) Liable for unforeseeable harms to a
foreseeable P, if they are direct, but not to unforeseeable plaintiffs. In
Palsgraf Δ was negligent to passenger with package and could foresee
harm coming to him, but Mrs. Palsgraf, standing at the other end of the
platform, was not a foreseeable plaintiff. (This is forward-looking
approach.)
ii. Under Polemis rule, Paslgraf would be able to recover. Andrews
dissent says it’s not about who you expect to injure, but who you in
59
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
fact injure. He suggests a substantial factors test. Conduct is proximate
cause if it was a substantial factor in producing the harm.
b. Case: Marshall v. Nugent: Δ’s truck cut corner on an icy highway, forcing
Π’s son-in-law off the road. The truck driver offered to help pull Harriman’s
car back onto the highway and suggest the Π go around the corner to the
south. As the Π was getting into position, the Δ saw his way blocked by the
oil truck on one side of the road and the two men on the other. Pulled car over
to the left side. It skidded, hit a plank guard fence and severly injured Π.
i. Rule: “Harm within the Risk”--You are liable for the consequences
of foreseeable risks, but not for the consequences of unforeseeable
risks. This is the type of harm the you’d expect to result from the Δ’s
negligence. The risk resulting from the oil company’s neg. is any sort
of collision accident-related harm. Liable for foreseeable harms even
when they happen in an unforeseeable manner.
1. Also, if harm within the risk occurs due to unexpected cause or
neg. of a third party, D will still be liable. (Phone booth too
close to the road, so D liable even though it was a drunk driver
that hit it.) D not liable if he violated a statute that was not
meant to protect against the type of harm that P suffered.
6. Reasonable Foreseability
a. Overseas Tankship (U.K.) Ltd. V. Morts Dock & Engineering Col, Ltd.
(Wagon Mound No. 1): Δ spills oil which drifts under a wharf. Oil company
told Π it would be okay to continue welding.  resumes welding above, and
then the oil catches fire and burns the wharf.
i. Polemis doesn’t govern, because the harm that resulted was not a
“direct” result—there were intervening causes like the decision to
resume welding, the cotton rag that caught fire. The decision to
resume welding was reasonable, so for both parties it wasn’t
foreseeable.
ii. Palsgraf Test (no help to D): Wharf owner is a foreseeable P b/c he’s
close to the oil spill (if nothing else he would have to clean up the
muck).
iii. “Harm within the risk” Test: Foreseeable risk doesn’t include fire.
iv. New Test – ask whether the injury is the result of conduct that could
be foreseen by the negligence. The harm realized needs to stem from
the foreseeable risk. The court ruled that people must be liable only for
the probable consequences of their actions.
b. CASE: Virden v. Betts and Beer Construction Company - Π was asked to
reinstall an angle iron that had fallen from ceiling. Π fell from top of ladder
while doing job and sustained severe injuries. Π sued Δ, the contractors who
had installed the ceiling.
i. The court found that Π’s injury doesn’t fall with the scope of probable
risk created by Δ’s failure to install ceiling properly. Fall was neither
reasonably foreseeable nor probable consequence of Δ’s negligence. Π
assumed risk by getting upon ladder
60
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
c. CASE: Herbert v. Enos - Π received an electric shock while lawfully on the
Δ’s lawn to water Δ’s flowers. Π claimed that Δ’s faulty repairs of a toilet
caused it to overflow. The flooding water reacted with the home’s electrical
system, creating an electric current that shocked and injured Herbert when he
touched the outside water faucet.
i. Court applied a foreseeability test. Summary judgment is still
appropriate if Π has no reasonable expectation of proving that “the
injury to the Π was a foreseeable result of the Δ’s negligent conduct.”
Π’s injuries were the type of unforeseeable consequences of the type
of unforeseeable accident for which we do not hold the Δ responsible
in tort. Rejects directness argument.
iii. Emotional Distress
1. CASE: Mitchell v. Rochester Railway - As Π was boarding Δ’s train, Δ’s horse car
came close to the Π so that she stood between the horses’ heads when they were
stopped. She said the fright cause her to have a miscarriage and consequent illness
a. Π can’t recover because there is no immediate personal injury. A person
cannot recover from injuries that are the direct consequences of fright.
Parasitic rule: idea that emotional harms can only be recovered when they
attach to a physical harm. Idea if we let them stand on their own, this will
open the floodgates of litigation. Premise that people will be more legitimate
if they actual suffer a harm.
i. Maybe under-inclusive. Those with legitimate injury can’t recover and
those who suffer physical injury might fake it.
b. Dulieu v White & Sons (KB 1901)—P gave birth prematurely after almost
being run over by D’s horses while she was working behind the counter of her
husband’s public house. Ct rejected requirement of physical injury, and
damage can be proximate if it follows as direct and natural consequence of the
injury. Problem: what is zone of danger? Behind, next to, in front of harm?
How close?
1. CASE: Dillon v. Legg - Child struck by Δ driver while crossing the street. Three law
suits: Decedent’s mother and sister sued for wrongful death, mother sued for nervous
shock and serious mental and physical pain suffered by Δ’s negligence. Sister sued
for emotional and physical suffering . Mother close to daughter but out of “zone of
danger. ” Sister in “zone of danger.”
a. Amaya court held that you can’t recover unless you’re in a zone of danger,
close enough where you think you could be harmed. The court holds that the
Δ could reasonably foresee that a mother standing near the scene who watched
her daughter’s death would suffer emotional pain. Court develops three-prong
test to determine whether Δ owes a duty to Π: (1) whether plaintiff was near
the scene, (2) whether the shock resulted from observance of the accident, and
(3) whether the plaintiff and the victim were closely related. Look at these
factor together to decide and duty and determine liability
b. Burke’s dissent says it’s not clear where to draw the line in each case, making
life more difficult for trial courts.
VIII. Affirmative Duties
a. Introduction
61
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
i. Deals with nonfeasance (failure to act) as opposed to misfeasance (misdeeds).
1. In misfeasance cases, the basic duty is for all individuals to abstain from hurting
others, strangers and people Δ has relationship with.
2. For cases of nonfeasance, care refers to taking precautions to avoid contact, to
rendering material aid or support to others.
ii. Duty of affirmative care is divided into two halves:
1. Duty to strangers
2. Duty to individuals with whom the Δ has a special relationship
a. Duties to landowners and occupiers owe to persons who enter their premises.
Distinction between:
i. Social guests (licensees) – lower duty, merely to warn of known latent
defects
ii. Business visitors (invitees) – take reasonable care to both discover
danger and to keep the premises safe.
b. Gratuitous undertakings by the Δ to benefit or assist the Π. In some snese
contractual as the rest upon the Δ’s promise, express or implied, to the Π
c. Whenever the Δ owes a duty to prevent harm to the Π’s person or property
because the Δ stands in some sort of special relationship” either with the Π or
with the person who threatens harm to the Π.
b. Duty to Rescue
i. CASE: Buch v. Armory Manufacturing Co. - Π trespassed in Δ’s mill, where weaving
machinery was in operation. An overseer instructed him to leave, but he didn’t. Although this
was a clearly hazardous situation, the overseer didn’t put the boy out and he injured his hand
while his brother taught him how to use the machine.
1. Δ have no duty to protect the minor boy against the dangers he faces after committing
a trespass. Δ wasn’t required to warn Π against hidden or secret danger arising from
the condition of the premises or to protect him against any injury that may arise from
his trespass. This is case where a child exposes his or herself to open and visible
dangers which he or she is unable to appreciate risk.
ii. CASE: Hurley v. Eddingfield - Appellee refused to render aid to the appellant’s intestate
who suffered violent illness. No other physician could be procured. The doctor had no reason
why he refused to provide treatment.
1. Physician has the right to choose whether he will engage in practice at all or on other
terms that he may choose to accept.
a. Patient could try to bargain to get the doctor to go save the decedent
2. Yania v. Bigan – P and D were strip miners. P visits D’s mines to talk business. D
cajoled P into jumping into cut filled with water. P drowned D did nothing. D not
liable b/c P knew the danger and as an adult was capable of withstanding verbal
taunting.
iii. CASE: Montgomery v. National Convoy & Trucking Co.: D’s trucks stalled on icy road
without any negligence, blocking the road. P’s car came over crest of hill and was unable to
stop b/c of ice. D failed to place warning at top of hill even though they knew no car would
be able to stop once it was in position to see the roadblock.
1. Held: Ds clearly owed duty to other highway users in such a way as to prevent harm
because they created the risk, even though D wasn’t negligent. Putting flares around
62
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
the trucks was not sufficient to warn. No duty to help, but required to not do a harm to
someone
2. Zelenko v Gimbel Bros: D moves P from public to private place, doesn’t provide
medical care, which P might have gotten if she had remained in the public place.
Rule: if a D undertakes a task, even if under no duty to undertake it, D must not omit
to do what an ordinary man would do in performing the task.
3. Soldano v O’Daniels: V was in imminent peril of being shot, when another person
ran across the street to D’s bar and asked to use the phone to call the police. D
refused, V was killed. Held: D, though not required to aid himself, was required to
allow the police to be called.
c. Duties of Owners and Occupiers
i. CASE: Robert Addie & Sons (Colleries), Ltd. v. Dumbreck: Coal ash haulage system,
dangerous and not well protected from public including children, but D warned public to stay
away. Small child killed in wheel mechanism.
1. Child held to be trespasser, so Δ’s had no duty to prevent the accident. Proprietor has
no duty to fence his land under sanction that if he doesn’t the public become
licensees.
2. Invitees – Δ’s owe highest of care, must take reasonable care that premises are safe.
a. Business - someone who goes on land for some purpose in which he and the
proprietor have a joint interest.
b. Public - the place is held open to the public for a particular purpose, not going
to discriminate in way that you socially decide who’ll be a guest . open to all
3. Licensees – Occupier has no duty to ensure that the premises are safe, but he is bound
not to create a trap or allow a concealed danger to exist upon the premises, which is
not apparent to the visitor but is known to the occupier
a. someone whom the proprietor has not invited, but has either expressly
permitted him to use his lands or knowledge of his presence more or less
habitual, he has then given permission or shown no further action to prevent
him from frequenting the lands
i. Social guest (people who in our colloquial understanding is “invited”
ii. People who come on your land, before you tell them to get off
(canvassers, Jehovah’s witnesses)
4. Trespasser – occupier has no duty to take reasonable care for his protection or even
to protect him from concealed danger (no duty to warn). Trespasser enters at his own
risk. Occupier is only liable when injury is due to some willful act involve deliberate
intention to do harm or recklessness (i.e. sets a trap).
a. Trespasser – someone who enters without consent/privilege of landowner or
possessor of land, someone who doesn’t have privilege. Someone who if the
landowner knew was on the land, the landowner would make it known to
them that their presence wasn’t welcome.
5. Excelsior Wire Rope v. Callan (A.C. 1930): two children had hands crushed in
haulage mechanism. Held to be trespassers, but ct found D liable. Distinguished
from Addie b/c D’s employees acted in reckless disregard of Ps’ welfare.
6. RST §339 says attractive nuisance only applies to artificial condition on the land and
takes no position on whether it should apply to natural conditions. RST possessor
should have known or have reason to know: that kids are likely to trespass and that
63
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
conditions creates risk of death or harm, that kids can’t discover the condition or
appreciate the risk, and burden of eliminating risk is less than risk to children. Move
from three categories where legal consequence follows, to a hand formula-type
negligence sort of inquiry.
ii. Rowland v Christian (CA 1968): D invited P to her house, porcelain handle of faucet broke
severing nerves and tendons in P’s hand. D knew of the crack, but didn’t warn D of danger.
Danger was not obvious.
1. Ct decides to abandon 3 classifications of visitors to land b/c they are not reasonable
and it’s difficult to classify, and to apply general liability principles of duty owed not
to harm others. The court ruled that the Δ was negligent for not warning the Π when
she was aware of the defective and dangerous faucet and the high probability of harm
to the Π when he used the bathroom.
2. Counterargument: This is a freak accident. She was negligent in not warning him.
Didn’t fulfill duty of care but who would have foreseen that this would have been a
consequence. This is not the kind of outcome we would expect from a broken faucet.
You wouldn’t expect severe injury to his hand. She could argue that this wasn’t a
hidden danger. The nature of the object itself should have warned him. She shouldn’t
need to warn him.
a. Burke says classification system provided stability and predictability.
Legislature’s job to modify tort liability.
3. TYPICAL TORTS POLICY ARGUMENTS
a. Bring stability – lacks flexibility
b. Flexibility (connect to modern notions) - risks being arbitrary
c. Potential for Unlimited liability – courts can distinguish meritorious cases
from unmeritorious ones
d. Job for Legislature (better able, have people’s vote, institutional competence,
may not respond in way it should) – court (responds more rapidly, fills in
gaps left by legislature
d. Gratuitous Undertakings – issue is whether or not D assumed duty of care
i. Coggs v Bernard (KB 1703): D moved casks of brandy owned by P and in process some
split open a brandy was lost. D moved for arrest of judgment b/c there was no consideration
and he was not doing this as his job. Judgment for P b/c D had begun to act. Any man that
undertakes to carry goods is liable to an action regardless of his relationship to the Π if
through his neglect the goods are lost or damaged. The owner’s trusting him with the goods
is sufficient consideration.
1. Thorne v Deas (NY 1809): D & P are co-owners of a ship. D promises gratuitously
to insure the ship, P sets sail. D fails to insure, ship is wrecked. D is not liable in
action for non-feasance b/c promise was unsupported by consideration This case can
be distinguished from Coggs because the Δ didn’t do anything to undertake getting
the insurance (nudum pactum)
ii. Erie RR v Stewart (6th Cir 1930): P = passenger in a truck struck by train at crossing where
guard was not doing his duty in giving warning. Held: Where custom established usage, RR
had created a positive duty for itself by establishing a standard of due care upon which the Π
relied (concurrence says it doesn’t matter if a particular Π has knowledge of the custom, the
duty is still owed.). Once established the duty can’t be discontinued without warning.
64
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
iii. Marsalis v La Salle (La App 1957): P scratched by D’s cat in D’s store while P was
shop[ing there. P asked D to keep cat locked up to be sure it didn’t have rabies. D agreed,
but after 5 days, cat escaped. So P was vaccinated for rabies, P allergic to treatment. Rule:
one who voluntarily undertakes to care for, or to afford relief or assistance to an ill, injured,
or helpless person is under a legal duty to use reasonable care and prudence in what he does.
Held: P relied upon D to fulfill a voluntary duty, D obligated to use reasonable care; D did
not take any precautions to keep cat locked up and is liable for P’s damages.
1. Π is an invitee. Δ owes the utmost duty of care. Why is this not the end of the case?
The cat did not have violent or aggressive tendencies so owner not going to be
negligent. Animals usually given one free bite before owner will be found negligent.
2. R2T §323: Negligent performance of undertaking to render services: One who
undertakes, gratuitously or for consideration, to render service to another which he
should recognize as necessary for the protection of the other’s person or things, is
subject to liability to the other for physical harm resulting from his failure to exercise
reasonable care to perform his undertaking, if:
a. his failure to exercise such care increases the risk of such harm, or
b. the harm is suffered b/c of the other’s reliance upon the undertaking.
iv. Moch Co. v. Rensselaer Water Co. (NY 1928): D contracted with city of Rensselaer to
furnish city with water. While K was in effect, a building caught fire, spread to and
destroyed P’s warehouse. D failed to provide sufficient water to the hydrants to extinguish
the fire. Point: city paid for the water, P only contributed in the form of taxes. City had the K
with the water company. City had no legal duty to protect citizens from fire. Extending D’s
liability to those not in privity of K means D’s liability is being increased without its
compensation being increased.
1. RTT:LPH §42 imposes liability for gratuitous undertakings when a failure to exercise
reasonable care increases the risk of harm beyond that which existed without the
undertaking, or harm is suffered by reliance upon the undertaking. (have to show
reliance or increase of risk of harm, almost as if saying you can just show negligence)
e. Special Relationships
i. Restatement (Second) of Torts §315. General Principle: There is no duty so to control the
conduct of a 3rd person as to prevent him from causing physical harm to another unless (a) a
special relation exists between the actor and the 3rd person which imposes a duty upon the
actor to control the 3rd person’s conduct, or (b) a special relation exists between the actor and
the other which gives the other a right to protection.
ii. Covers all cases in which D is put in charge of P—D is assuming some charge or
protective role over P directly or over the premises P uses.
1. Carrier-passenger: utmost care, but doesn’t have to be armed guards
2. Innkeeper-guest
3. Landowner-invitee [see below]: shopping malls, hotels
a. Business and invitee of business: reasonable care to discover dangers and to
warn or protect
b. Example: a landowner whose invitee becomes ill may have a duty to summon
aid or at least provide shelter until invitee improves.
4. Custodian-ward—schools, hospitals, universities
a. Example: operator of day-care center has duty to use reasonable care to obtain
medical care for ill or injured child in his care.
65
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
iii.
iv.
v.
vi.
5. Employer-employee
6. Parent-minor child
7. Doctor patient
8. Courts may find other relationships: social companions, landlord-tenant
Level of care= reasonable care under the circumstances (negligence standard)
Contingencies against which D must guard:
1. D must take reasonable steps to free premises under his control from latent hazards
2. D must inspect and repair and correct dangers quickly when brought to his attention
3. D must maintain facilities to help rescue P in case danger arises
4. Newer standard: duty arises when there is a probable and predictable danger
a. Older rule: the first event of its kind is not foreseeable, so there is no liability.
Often replaced with a totality of the circumstances approach, which is giving
way to requirement that three be a high degree of foreseeability of the crime to
indicate that D should be taking precautions.
Weirum v. RKO General Inc. (Cal 1975): Disk jockey promotional stunt caused listeners to
drive recklessly to win prize. Special imposition of duty under theory that you are liable for
actions of 3rd parties if you inspire them to act in dangerous ways.
Kline v 1500 Massachussetts Ave Apartment Corp (DC Cir 1970): tenant robbed and
assaulted in hallway of her apt building. When she first moved in provided a variety of
security services, but stopped over time. Robberies became common. Landlord has duty of
reasonable care in providing safe building b/c he is The best risk avoider and only landlord
has power to take action in common areas. Doctrine: tenant’s ability to provide for own
safety is limited b/c tenant has submitted to partial control of landlord, the duty is imposed on
the one with control and thus power to act to take reasonable precautions to protect the
tenant. Provided that the violence is 1) foreseeable, and 2) not by an employee of the
landlord
1. MacKinnon argued that the Π did not negate that it was a tenant, guest, or person
properly on the property who committed the offense, and therefore failed to prove
that the negligence was the proximate cause of the assault. MacKinnon argued that
the plaintiff could not have expected a 1959 standard of protection in 1966, especially
with a month- to-month lease.
2. Let market determine what kind of security she wanted. By imposing this duty, court
requires everyone to purchase a certain degree of security. Cross-subsidy - People
who don’t want higher security have to pay for people who want it but don’t want to
pay for it. Everyone is going to have to pay for it. when landlords raise rent and when
they do people like Ms. Kline won’t be able to afford it and will have to move
somewhere else. The very people we are trying to help we’re going to hurt when
there’s a mandatory term of contract.
3. Posner held in Shadday v. Omni Hotels Management Corp. that a hotel didn’t violate
any duty of care because it was highly unlikely that a male guest would rape a female
guest whom he accosted in an elevator. (Court views these claims more skeptically
when the tenant has some responsibility in bringing about the harm.)
66
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
Buyers:
IX.
Losers
Pay higher price than would
prefer (pay lower price and
not get insurance)
Winners
Receive insurance they
otherwise would not receive
(especially the injured without
receiving compensation they
otherwise would not
Buy but otherwise would not
Do not buy but otherwise
would (as a result of increase
in price)
vii. Tarasoff v Regents of Univ of California (CA 1976): Poddar killed Tarasoff, 2 months
before he had told his psychologist he planned to kill her. Psychologist had police detain him
but he seemed sane. No further action taken to detain Poddar. No one warned Tarasoff.
Held: Once a therapist determines, or under applicable professional standards reasonably
should have determined, that a patient poses a serious danger of violence to others, he bears a
duty to exercise reasonable care to protect the foreseeable victim of that danger. (interest in
patient privacy is overcome by public interest in safety from violent assault.)
1. In Merchants Nat. Bank & Trust Co. of Fargo requirement to warn when someone
with violent proclivities is given to another who will have custody.
2. Rule: D has duty to warn against potential foreseeable harm posed by 3rd party if he
has a relationship with the 3rd person or with the person to be protected.
3. Courts try to limit circumstances to those where there’s an identified victim and the
harm is imminent.
Traditional Strict Liability
a. Animals
i. Gehrts v. Batteen: Δ had her dog restrained in the back of her truck, the Π asked if she
could pet him and the Δ allowed her to do so. The dog bit Π causing injuries requiring
extensive medical treatment.
1. The court held that owners of domesticated animals may be held liable for harm
caused by their pet if the owner knows or has reason to know that the animal has
abnormally dangerous propensities.
2. Wild animal – strict liability
3. Domesticated animal: dangerous propensity?
a. If yes, then strict liability regardless of amount of care exercised by owner.
b. If no, then negligence regime. Liability if negligent.
4. “Distress damage feasant” is the taking of chattels, whether animate or inanimate, that
are doing damage to or encumbering land, or depasturing chattels and the retaining of
them by way of security until compensation is paid.
ii. Fencing out v. Fencing in
1. The American West used a fencing out rule because the federal government owned
nearly all the land, and a fencing in rule would have eliminated grazing. But now as
Western land is being used more intensively, the system is shifting to the closed range
fencing in system. Under a closed-range rule farmers can participate in a voluntary
agreement to allow some ranchers limited grazing rights without opening the land up
to all ranchers. Closed-range system encourages more specialized land uses.
a. Animals can’t trespass because they can’t form intent.
b. Ultrahazardous Activities
67
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
i. Consider following factors to decide if activity is abnormally dangerous (RST §520)
1. existence of a high degree of risk of some harm to person, land or chattels of another
2. likelihood that the harm that results from it will be great
3. inability to eliminate the risk by the exercise of reasonable care
a. when safety cannot be attained by the exercise of due care there is reason to
regard the danger as an abnormal one
4. extent to which the activity is not a matter of common usage (undesirable activity?)
a. e.g. driving is hazardous but so common that it doesn’t meet this criterion
5. inappropriateness of the activity to the place where it is carried on
6. extent to which its value to the community is outweighed by its dangerous attributes
a. if the utility of carrying on the activity doesn’t justify the risk it creates, it may
be negligent even to do it
b. D does not have to get a monetary benefit from the activity
c. If the value to the community is great, the risk will not be considered
abnormal
i. Courts disagree about importance of this factor b/c utility is a
subjective measure
ii. RTT: LPH §20.
1. An actor who carries on an abnormally dangerous activity is subject to strict liability
for physical harm resulting from the activity.
2. An activity is abnormally dangerous if:
a. The activity creates a foreseeable and highly significant risk of physical harm
even when reasonable care is exercised by all actors; and
b. The activity is not one of common usage
iii. CASE: Spano v Perini Corp: P’s garage and car damaged by D’s blasting.
1. Court held one who engages in blasting must assume responsibility and be liable
without fault for any injury he causes to neighboring property. The court overruled
Booth v. Rome which distinguished physical invasions and “damages setting the air
in motion”: if physical debris, strict liability; if no, then negligence regime governs.
2. Rationale: D is best risk bearer, risk avoider and absolute liability will encourage
blasters to find alternative methods
iv. CASE:Indiana Harbor Belt RR v American Cyanamid Co: D shipped hazardous
chemical into train car (owned by Missouri Pacific RR), which was carried to P’s switching
yard, where it was found to be leaking. P sues D in strict liability to recover cost of clean-up.
Ct refuses to apply strict liability because 6 RST §520 criteria not met (see above). It
wouldn’t necessarily be safer to route train away from metropolitan areas; it is possible to be
safe using reasonable care. [Epstein: Posner got it wrong, case of negligence per se; Posner
doesn’t respect resident’s property rights. Posner: Coasean view: tries to figure out terms of
agreement in Coasean world to determine tort rule to follow to get people to act in socially
optimal ways]
1. Deciding between strict liability and negligence
a. Administrative costs
i. Costs to litigant
ii. Legal error
b. Residual risk
i. Desist from the activity
68
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
ii. Substitute/alternative activity
iii. Option 1 & 2 are a change in the activity level
c. Evidentiary aspect of dangers should push us in the direction of strict liability
d. Strict liability might create moral hazard for victims not to take care
themselves. Greater need for contributory negligence in strict liability
c. Nuisance
i. Private Nuisance
1. CASE: Vogel v. Grant-Lafayett Electric Cooperative: stray voltage released by
D’s system harms P’s cows. D promptly remedied problem when it was told about it.
Held: stray voltage can be nuisance b/c interfered with private use and enjoyment of
land. But it was an unintentional nuisance.
2. Trespass v. Nuisance:
a. Trespass requires physical presence, interference with possession,
i. No tolerance for trespass regardless of whether there was a harm
b. nuisance – nontrespassory or nonpossessory intereference, doesn’t involve
sense of physical invasion.
i. High tolerance for nuisance—P has to show actual and unreasonable
harm
3. Elements of Nuisance:
a. P has to have a possessory interest in the land.
b. It must be substantial enough to get beyond live and let live
i. Unreasonableness measured by the reasonable expectations of the
normal person occupying P’s land.
1. Higher standard of living, lower tolerance for nuisance
ii. Factors to consider:
1. Non-reciprocal: one harm is much greater and outside ordinary
use
a. Some activities are annoying but we’re just as likely to
be annoyed by them as much as we are likely to impose
them on others. If you’re doing an activity that is
atypical given the environment, then we’ll say it’s a
nuisance. We also say that interference should be
substantial
2. Character of the neighborhood or social expectations
a. nuisance is location specific
3. Magnitude, frequency, or duration exceeding neighborhood
norms
4. Priority in time or priority in space: coming to the nuisance
5. Gravity of harm
6. Lack of utility of D’s activity
a. even if D’s activity is properly conducted in a proper
location, if it is of no social utility, it may still be a
nuisance.
7. Utility of D’s activity
69
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
4.
5.
6.
7.
a. social value is a factor, but if harm outweighs the
utility, courts will find a nuisance, if the activity would
also count as a nuisance if its utility were disregarded
b. If social utility is high, P might reasonably be expected
to put up with a higher level of nuisance
i. Nuisance is simultaneously a public good and a
public bad, so you aggregate all the gains and
losses to establish the benchmark of harm.
R2T §826 Unreasonableness of Intentional Invasion: An intentional invasion of
another’s interest in the use and enjoyment of land is unreasonable if
a. the gravity of the harm outweighs the utility of the actor’s conduct, or
b. the harm caused by the conduct is serious and the financial burden of
compensating for this and similar harm to others would not make the
continuation of the conduct not feasible.
CASE: Michalson v. Nutting: roots from Δ’s tree penetrated Π’s land filling up
sewer and drain pipes and causing cracks in cement of Π’s cellar. Πs requested Δs to
remove roots, but they refused
a. Court holds “as against adjoining proprietors, the owner of a lot may plant
shade trees upon it, or cover it with a thick forest, and the injury done to them
by the mere shade of the tree [or by the invasion of roots] is damnum absque
injuria. It is no violation of their rights. Court extends precedent to include
invading roots, saying that underlying principle is that an owner is at liberty to
use his land as he desire. Π has right to cut intruding roots, but not worth
spending time and effort and arguing these cases in court.
CASE: Fountainebleau Hotel Corp v. Fort-Five Twenty-Five, Inc.: : Δ in process
of building 14-story hotel on beach, will block light and air to Π’s building on
adjoining property. Π – a’ee sought to enjoin Δ - a’nts from continuing construction
of building.
a. A Π cannot bring a cause of action for damages or injunction under the maxim
sic utere tuo ut alienum non laedas (one must not use his property so as not to
injure the lawful rights of another) if the structure serves a useful and
beneficial purpose even though it may cut off the light and air and interfere
with the view that would otherwise be available over adjoining land in its
natural state. It doesn’t matter that the structure was built partly out of spite.
No legal right to the free flow of light and air from the adjoining land, either
by common law, contract or statute.
Extra Sensitive Π --CASE: Rogers v Elliot: Δ Elliot operated a church bell. The Π
Rogers was recovering nearby from sunstroke and suffered from convulsions when he
heard the bell. The Π’s doctor asked the Δ to stop ringing the bell, and the Δ refused
a. court ruled that a person’s right to use his property does not depend on the
peculiar temperament of nearby people, because legal rights would be left to
uncertainty. The court ruled that nuisance must be determined by the effect of
noise upon people generally. If Π prevails private nuisance would change
depending on who was around at a particular time.
i. Some courts aren’t concerned with aesthetics.
b. If we allowed this recovery, there would be
70
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
i. Uncertainty about how you could use your land. We don’t know
everyone’s particular sensitivities.
ii. Concern about fraudulent claims. If someone is extrasensitive, there
might be likelihood that people would bring fraud claims. Difficult to
provide evidence.
iii. Belmar Drive-In Theater v Illinois State Toll Highway commission
(Ill. 1966) relied on extrasentive Π test to deny liability for a toll
center that shined bright lights near the Π’s outdoor movie theater
making it impossible for Π to exhibit his outdoor movies.
8. Coming to the Nuisance – CASE: Ensign v. Walls: The Δ Walls bred St. Bernard
dogs. The dogs released odors, attracted rats and flies, and escaped into the
neighborhood. The Π owner property in the neighborhood, who claimed the breeder
manner of conducting business, was a nuisance. Most of the property owners moved
into the neighborhood in recent years.
a. Court ruled that nuisances must move as the city grows. The court ruled that
the health and comfort of the population demand this rule. Carrying on an
offensive trade for any number of years in a place remote from buildings and
public roads, does not entitle the owner to continue it in the same place after
houses have been built and roads laid in the neighborhood, to the occupant of
which and travelers upon which it is a nuisance.”
b. Coming to nuisance is not a bar to recovery but a factor court will consider
when trying to decide whether later comer can recover. Must consider:
i. What are the potential factors
1. Who is the highest value user
a. As between parties
b. 3rd party benefits
2. Harms/ Externalities that arise from conflicting uses.
3. Lowest Cost Avoider
a. Mitigation – ability to coming up with some mitigating
technology
b. Relocation – issue of whether something is appropriate
to location
4. Administrative costs
a. Decision costs – borne by court itself
b. Litigation Costs – borne by the parties and litigants
c. Enforcement Costs
5. Transaction costs, e.g.:
a. Collective action problem,
b. Bilateral monopoly – parties will be strategic to get the
bargaining surplus that lies between the two
c. Credibility building - Implication of this transaction on
subsequent transactions, so parties want to be really
tough to establish credibility
d. Endowment effects – idea that if I don’t possess
something I value it a certain amount, once it gets into
my possession I value it much more
71
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
6. Error Costs
c. In the world where the transaction costs are zero, the parties will bargain. It
doesn’t matter who has the initial entitlement. We only worry about the court
when transaction costs are high.
9. CASE: Boomer v. Atlantic Cement Co. - Δ Atlantic Cement operates a large
cement plant. The Πs are neighboring land owners alleging injury to property from
dirt, smoke, and vibration from the plant.
a. The court granted injunction conditioned on the payment of permanent
damages to the Πs which would compensate them for the total economic loss
to their property. Remarkable solution in the case.
b. The tradition solutions are:
i. (Property Right)Injunctions – property rights
1. Permanent
a. Issues to consider
i. Risk of D’s insolvency
ii. Protecting other innocent 3rd parties not joined
in suit
iii. Lower administrative costs because court
doesn’t have to assess damage amounts
2. Conditional - conditional on parties reaching agreement or one
party buying out the other (E.g. Boomer, Spur)
ii. (Liability) Damages – Liability rule. Court separates the two types of
damages:
1. Periodic – more accurate damages, but will have to deal with
the issue over and over
2. Permanent – less accurate damages, but will get done over and
over
a. Error cost v. decision (administrative) costs
iii. (Property Right for Δ) No remedy
1. Weigh incentive to mitigate v. decision costs
c. Court also says that making them pay at once, will give companies incentives
to reduce pollution.
d. DISSENT: Jasen argued that the incentive to reduce the pollution will be
eliminated once the permanent damages are paid. If they have to pay these
damages periodically, then they would have an incentive to find ways invest
in mitigation technologies. Jasen argued that inverse condemnation should not
be invoked for private gain. In other cases where courts awarded money
damages and denied injunction, the property benefited the public. This is not
so in the instant case. He says court is licensing a continual wrong
e. Should there be a delayed injunction – impose injunction until they come up
with a mitigation technology or Δ buys out Π by permanent damages. Court
dismisses the mitigation technology.
f. Temporary damages allow the court to make an accurate assessment of actual
harm without having to speculate on future events; but they have high
administrative costs and burden Π with having to bring multiple actions to
redress one continuing wrong. Permanent damages run risk of one inaccurate
72
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
X.
valuation but avoid a multiplicity of subsequent actions. Permanent damages
do not offer a once and for all solution if the Δ increases its interference with
the Π’s land beyond expected levels.
g. Π may enjoin the Δ but only if she prepared to compensate the Δ for the loss
incurred. Spur Industries v Del E. Webb Development Co. (Ariz. 1972) found
for the Π when the Π development corporation developed land near a cattle
feedlot on the outskirts of town; the court noted that it had not applied the
coming to the nuisance defense because the Π sold some units to individual
purchasers. The court suggested that Webb might be liable to Spur for
bringing people to the nuisance. Court says it doesn’t seem harsh to require a
developer who has taken advantage of vacant and cheap land to indemnify
those who are forced to leave as a result.
ii. Public Nuisance
1. CASE: Anonymous: Π used to have a way from his house to a close over the king’s
highway. Δ stopped the King’s highway so that Π couldn’t pass
a. Rule: General damages from public nuisance are controlled only by direct
public action, usually administrative regulation or criminal prosecution. The
private action is maintainable only for special, peculiar, or disproportionate
harm to the individual P.
2. Two classes of special damages:
a. total loss of access to private land
i. blocked road, polluted water
ii. partial loss and/or inconvenience not sufficient
b. personal injury that is different in kind from injuries suffered by general
public
i. example: D’s pollution causes everyone respiratory problems, and P’s
problem is the same, P has no special private cause of action.
3. Difficult to assess who has standing to bring private suit.
4. CASE: 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc.:
Sections of an office tower at 540 Madison Avenue collapsed and bricks fell to the
street. The city closed fifteen blocks on Madison Avenue and many businesses
including Π’s were forced to close.
a. Court ruled that private action for a public nuisance requires special injury
beyond that suffered by the general community. The injuries should be special
and different in kind, not merely in degree.
5. CASE: Camden County Board of Chosen Freeholders v. Beretta, U.S.A. Corp.:
Π Camden County sued the Δ Beretta for marketing and distributing handguns that
created and contributed to the widespread criminal use of handguns in their county.
a. Public nuisance is an unreasonable interference with a right common tot the
general public.” For the interference to be actionable, the Δ must exert a
certain degree of control over it source. If independent third parties cause the
nuisance, parties that have not controlled or created the nuisance are not
liable. (no proximate cause)
Economic Harms
a. Inducement of Breach of Contract
73
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
i. Statute of Labourers (1351) - If you don’t’ have a job and someone offers you a job, you’re
bound to take it. You can’t haggle over the wage; you have to take the prevailing wage. Once
you have that job, you can’t leave to take another job. If you offer someone a job, you
receive a penalty.
ii. CASE: Lumley v. Gye (1853) - Π contracted with Johanna Wagner to perform in his theatre
for a certain time with condition that she couldn’t sing elsewhere during that period. Δ
enticed and procured Wagner to refuse to perform even though he knew of the terms and the
agreement was still in effect.
1. The court holds that a person may bring an action against a Δ who entices a servant,
who is under a valid contract to give exclusive personal services to the Π for a
specified period, to refuse to give such services during the period for which the
services have been contracted, whereby the Π is injured.
a. Ms Wagner isn’t servant in same sense used in Statute of Labourers, but court
doesn’t rest decision on merchant/servant relationship or beginning of service
b. Requirement for liability: maliciously procure party to breach
i. Malicous procurement - a person who wrongfully and maliciously, or,
which is the same thing, with notice. (Intent to ruin a rival trader)
b. Interference with Prospective Advantage
i. CASE: Tarleton v. M’Gawley: Πs owned ship called the Tarleton that was off African cost,
positioned to trade with Africans. Δ, seeing that some Africans approached Π’s ship for
trade, shot at and killed an African causing the Africans to not trade with Πs. He did this
knowing of the trade agreement and was contriving and maliciously intending to hinder and
deter the natives from trading with Π’s commander. Δ said Africans owed him a debt and
wouldn’t let them trade without settling.
1. Distinguish form Lumley
a. Lumley – Δ tryin to take away relationship from Gye
b. Tarleton – doesn’t want totrade with Π or Africans, just wants to punish
them. This is more malicious.
2. Act of trading is not itself immoral and the trade law is not binding on foreigners. The
government and not the Δ should have executed the law. If this was an accident, no
action could be brought, but it is proven that Δ had expressed intention not to permit
any to trade, until a debt due from the Africans was satisfied.
ii. CASE: People Express Airlines, Inc. v. Consolidated Rail Corp. - Fire began in Δ’s
freight yard when ethylene oxide manufactured by Δ escaped from a tank car, punctured
during a “coupling” operation with another rail car and ignited. The Π was part of group
ordered to evacuate in case of explosion. Π claims that it suffered business-interruption
losses due to the evacuation. The Π suffered no physical damage to property or personal
injury.
1. The court ruled that a Δ owes a duty of care to take reasonable measures to avoid the
risk of causing economic damages to identifiable classes of Πs whom the Δ has
reason to know are likely to suffer such damage from its conduct. Π’s cause of action
had been established by facts including the close proximity of the terminal, the
foreseeability of the economic losses, the knowledge of the ethylene oxide’s
volatility, and the evacuation plan.
2. Court says you have to do analysis on a case-by-case basis:
74
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
a. Particular foreseeability – court says old rule is arbitrary. To do better is to
require courts to figure out who is particularly foreseeable.
i. In this case, the company had an evacuation plan. They did foresee this
type of accident.
ii. Economic loss rule
XI.
Products Liability
a. Introduction
i. Three classes of products liability:
1. Manufacturing defects—strict liability
2. Design defects—negligence
3. Warning defects—negligence
ii. Issue is design defects and warnings: how to set standards on what is reasonably safe
iii. Most modern products liability cases fall into the last two categories
iv. Why do we not need products liability law?
1. What’s the different between ultrahazardous activity and products liability?
a. Ultrahazardous activities – injury occurs on your land, bound to uses of land
b. Products liability – party who created object no longer has control over it
because it leaves their possession (object traveling through society)
2. Can the marketplace solve this problem for us
a. People will stop buying bad products. Too bad for the 1 person who has to
bear the costs. It could be anyone.
i. No capacity to inspect
ii. No Information, now information is easily accessible about products.
The market will work
1. Long-term latent risk – product might cause long term harm
2. Conflicted and self-interested sources of info which consumers
are unable to process and determine true risk
iii. Consumers might not be able to process this information. (for
example, optimism bias)
iv. No substitutes// no technology available to consumers that’s of equal
quality. Manufacturers might not be able to make other things.
v. Market competition. There might be a monopoly
b. Exposition
i. PHASE ONE: privity limitations prevented the injured party from suing the remote supplier of
the product.
1. Rule: the liability of the contractor or manufacturer for negligence in the construction
or sale of articles which he makes or vends is limited to the persons to whom he is
liable under his contracts of construction or sale.
2. Winterbottom v Wright (Ex 1842): D contracts with Postmaster to supply and
maintain coaches for mail delivery. 3rd party contracts to supply horses and drivers.
P is a driver, injured b/c of defective coach. Held for D b/c P not in privity of
contract with D, so there is no cause of action. Rationale: allowing such an action
would make D liable for actions by any user of the coach no matter how remote.
Court is afraid of “floodgates” of litigation, also a line drawing problem –
manufacturers don’t know who’s going to use products. Difficult to foresee who is
75
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
harmed and how. Privity rule allows manufacturer to know qualities of person who
could bring lawsuit. Allows manufacturer to communicate dangers of the product.
a. Levy v. Langridge – court allows this action even though the Π wasn’t privy
to contract. Father bought gun for son, said that dad was proxy for son. The
son couldn’t enter into the contract himself.
3. Three exceptions in American cases: (Huset)
a. When negligence of manufacturer or vendor is imminently dangerous to life
and committed in preparation of product intended to preserve, destroy, or
affect life. (mislabeled poison)
b. owner invites user to use defective product on owner’s premises and user is
injured, owner may be liable. (badly built scaffold)
c. one who sells or delivers an article which he knows to be imminently
dangerous to life or limb to another without notice of its dangerousness, is
liable for any injury that might have been reasonably anticipated, with or
without contractual relationship. (knowledge of defect, fraud,
misrepresentation)
d. Huset v J.I. Case Threshing Machine (8th Cir 1903): P injured by defective
threshing machine which D sold knowing that one of the parts would not
serve the purpose for which it was meant.
e. Kuelling v Roderick Lean Manufacturing Co (NY 1905): P injured by
defective roller D made out of bad wood and with a knot that D had tried to
hide by putty and paint. Action allowed as fraud.
ii. PHASE TWO: reject privity limitation and impose liability in negligence on a remote seller.
1. Rule:
a. If a product is reasonably certain to cause harm if defective, it is a dangerous
thing.
b. Manufacturer of dangerous thing is liable when:
i. it is foreseeable that it will be used by those other than the purchaser
without undergoing further tests
ii. the danger inherent in a defective thing is probable, not merely
possible
2. MacPherson v Buick Motor Co. (NY 1916) Cardozo, J. P=car dealer injured when
defective wooden wheel of new car crumbled. Issue: does manufacturer own duty of
care to anyone but immediate purchaser. Held: in this case, the one person not likely
to use the car is the dealer. Silly to prevent buyer from having cause of action.
Maker of finished product has duty to test parts made by sub-manufacturers.
a. Rule: If danger was to be expected as reasonably certain, there was a duty of
vigilance, and this applies whether the danger is inherent or imminent. The
company that sells a product that will reasonably be used by others without
inspection will be held liable for damages and injuries occurred to the people
using the product. [Cardozo combined exceptions 1 and 3 and used negligence
standard, turning exception into the rule.]
iii. PHASE THREE: strict liability should govern manufacturer’s liability.
1. Escola v. Coca-Cola Bottling Co (CA 1944), Traynor, J.: P injured when Coke
bottle exploded in her hand. P = waitress, so not in privity of K with bottler.
76
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
a. Held: manufacturer is absolutely liable b/c he is the best risk avoider, the best
loss-spreader, it is in public interest to discourage manufacturer’s from
marketing defective products, too difficult for P to prove negligence, the issue
is not a K warranty issue but a tort issue, so privity is not necessary. Doesn’t
want to use res ipsa loquitor, so we should have strict liability
i. Traynor’s two limitations
1. Defect narrowly defined as latent miscarriage in the
manufacturing process
2. Normal and proper use by P where the defect is traceable to the
product in the condition in which it reached the market.
ii. Traynor assumes market can bear the costs of strict liability.
b. several justifications here: loss minimization, loss spreading, elimination of
proof complications, food analogy, corrective justice
i. Loss minimization –Traynor says the manufacturer is the least cost
avoider. Strict liability will get manufacturer to change their activity
level
ii. Loss spreading – wants manufacturer to increase products slightly so
everyone pays a little bit more to allow the injured person to be
compensated
1. Service providers are better able to provide this insurance.
(Kline) The waitress can buy health insurance
2. Cross-subsidy argument
iii. Proof complications – for certain kinds of accidents evidence is
obliterated by accident itself, so we need strict liability.
1. We don’t need to move to strict liability when we have res ipsa
loquitor to help get over these complications
iv. Food stuff analogies – it speaks for itself, we don’t need strict liability.
Strict liability, we don’t need to litigate. Why make Π’s litigate when
the food was sealed in a container.
v. Corrective justice – all things being equal, if one party does something
awful and the other person is injured and hasn’t done anything wrong,
then injuring party should do something.
1. How does it increase justice when there is no fault. You take
due care. Negligence might give you all the degree of care you
need for you to decide that person isn’t at fault.
vi. Parallel set of developments in warranty
c. The Restatements:
1. R2T §402A provides:
a. 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
i. the seller is engaged in the business of selling such a product, and
ii. it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold.
b. The ruIe stated in Subsection (1) applies although
77
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
2.
3.
4.
5.
6.
i. the seller has exercised all possible care in the preparation and sale of
his product, and
ii. the user or consumer has not bought the product from or entered into
any contractual relationship with the seller.
RTT:LPL §1: Liability of Commercial Seller of Distributor for Harm cause by
Defective Products
a. One engage 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.
RTT:LPL §2: Categories of Product Defects
a. A product is defective when, at the time of sale or distribution, it contains a
manufacturing defect, is defective in design, or is defective because of
inadequate instructions or warnings. A product:
i. Contains a manufacturing defect when the product departs from its
intended design even though all possible care was exercised in the
preparation and marketing of the product;
ii. Is defective in design when the foreseeable risks of harm posed by the
product could have been reduced or avoided by the adoption of a
reasonable alternative design by the seller or other distributor, or a
predecessor in the commercial chain of distribution, and the omission
of the alternative design renders the product not reasonably safe
iii. Is defective because of inadequate instructions or warnings when the
foreseeable risks of harm posed by the product could have been
reduced or avoided by the provision of reasonable instructions or
warnings by the seller or other distributor, or a predecessor in the
commercial chain of distribution, and the omission of the instructions
or warnings renders the product not reasonably safe.
Caveat: no opinion expressed whether the rules may not apply to harm:
a. to persons other than users or consumers,
b. to the seller of a product expected to be processed or otherwise substantially
changed before it reaches the user or consumer,
c. to the seller of a component part of a product to be assembled.
A defect is that which is not what the consumer expected.
a. Defective condition: rule applies only where product is already defective
when it leaves seller’s hands, and when the ultimate consumer doesn’t expect
that, and where defect will be unreasonably dangerous to consumer.
i. Unreasonably dangerous: dangerous to the extent beyond that which
would be contemplated by the ordinary consumer who purchases it,
with the ordinary knowledge common to the community as to its
characteristics. Not something dangerous in excess or in an abnormal
use.
Seller
a. Seller may be required to give directions or warning to prevent product from
being unreasonably dangerous. Seller allowed to assume that warning will be
read and heeded.
78
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
b. Seller who supplies inherently dangerous but useful product (e.g. medication)
is not held strictly liable for harms as long as proper warnings given, proper
packaging and marketing.
c. Seller not liable for defect that occurs in subsequent mishandling. Burden of
proof of defect is on P
d. Seller not liable when consumer uses product in abnormal way
7. No distinction between problem with the product or with its packaging
8. Warranties not the basis for the cause of action.
9. Contributory negligence doesn’t apply to failure to discover defect or guard against it,
but does apply to voluntary assumption of risk if user discovers defect and uses
product anyway.
ii. Phase Four: Modern product liability—defective design and duty to warn are the primary
issues
1. What are products: tangible personal property, but not blood and tissues; in some
cases real property and electricity
2. Distinction between services and products
a. Products fall under strict liability, services under negligence.
i. Negligence covers service b/c the success or failure of the service
performed depends not only on competence of D but also on thing or
person on which service is being performed—negligence standard
prevents D from having to insure the thing/person being worked on.
ii. Products fall under strict liability insofar as D had complete control
over them and is in a position to avoid risk
b. Cafazzo v Central Medical Health Services (PA 1995)—P wants to sue Dr.
for defective prothesis. Held: Dr was only performing a service and is not
strictly liable for a product defect. 4 part test:
i. Are there other members of the market exchange available? No
denture manufacturer is bankrupt.
ii. Would strict liability provide an incentive to safety? No
iii. Would the supplier be in better position than manufacture to restrict
the circdulation of defective products than doctors? Yes.
iv. Whether the supplier of the product can distribute the cost of
compensating for injuries resulting from defects by spreading the
charges? Supplier is better.
c. Murphy v E.R. Squibb & Sons, Inc. (Cal. 1985) ruled that a pharmacist was
providing a service, not selling a product, because of the educational and
professional requirements of obtaining a license. Didn’t want to make
pharmacists liable because it might cause them to refuse to dispense
medicines out of fear and they might only dispense the most expensive ones
by established manufacturers and be afraid to use cheaper substitutes.
3. Potential Ds—all sellers from manufacturer on down—all held to same standard, all
held to same liability as manufacturer—even when intermediaries have been entirely
passive.
a. Vandermark v Ford Motor Co. (Cal. 1964) held a car dealer strictly liable for
product defects. Traynor argued that making retailer strictly liable serves an
added incentive to safety, because retailer will exert pressure on manufacturer.
79
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
Product liability has been extended to the builders of mass-produced homes,
wholesalers and distributors, and to lessors and bailers of personal property.
b. Exception: casual sellers & dealers in used products not in business of selling.
i. Dealer in used products is liable for any defects it introduces in
rebuilding, remanufacturing or reconditioning the product
4. Potential Ps—all users and consumers of products
a. Modern law also allows bystanders to recover from manufacturer
i. Rationale: bystander harmed by process which he did not make
5. What harms are covered: physical harms but not economic harms
a. line between them is difficult to draw
i. Economic losses: disappointed economic expectations—controlled by
K, essentially the product damages itself
ii. Tort losses: harm above and beyond disappointed expectations
b. Casa Clara Condo Assoc v Charley Toppino & Sons (FL 1993):
homeowners can’t sue in tort maker of defective concrete used in building
their houses b/c this was an economic harm. No “other product” involved,
just the house as a whole. Homeowners not in strict privity with concrete
supplier.
i. From perspective of Seely v. White Motor, there is no physical
damage, the concrete is just of lower value/ quality. Peter’s dissent in
Seely is important. Peters has a proximate cause argument. He says
that the nature of the damage sustained is by the Π is immaterial, so
long as it proximately flowed from the defect. It doesn’t matter if we
think about this as a whole product or pieces of a product
1. Toppino knew that this concrete would be used to make homes
and that the concrete needed to have a certain amount of salt.
The harm is foreseeable so they should have to pay.
d. Product Defects
i. Manufacturing Defects
1. RULE: manufacturer’s liability for a defective product is predicated upon negligence
in the manufacture or design of the product.
a. P has to prove that injury resulted from a condition of the product which was
unreasonably dangerous and which existed at the time the product left the
manufacturer’s control.
i. Defect doesn’t have to manifest itself at once
ii. Have to show that defect renders product dangerous
2. Complication: food cases where some natural ingredient is both natural and
dangerous, Example: fish bone in fish chowder
a. Test becomes consumer expectations: natural ingredient is defective if not
expected.
3. CASE: Speller v. Sears, Roebuck and Co.: Π’s child Sandra Speller was killed in a
house fire, and their seven year old son was injured. The fire marshal decided that a
stove top grease fire was the cause of the fire, but the Spellers claimed that the fire
was caused by faulty wiring from a refrigerator sold by the Δ Sears, Roebuck and
manufactured by Whirlpool
80
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
a. Π must prove that the product did not perform as intended and exclude all
other causes for the product’s failure that are not attributable to Δ to proceed
in the absence of evidence identifying a specific flaw.
b. R3T §3 allows P to recover without specifying defect responsible for the harm
if other causes of the harm can be excluded.
4. R2T and R3T impose strict liability “when the product departs from its intended
design even though all possible care was exercised in the preparation and marketing
of the product.”
ii. Design Defects
1. Concealed design defects are treated like manufacturing defects—require
manufacturer to make his product design meet his own performance standard.
a. You can never have a design defect case where you can’t point to what’s
wrong b/c with design issues you have perfect knowledge. If it is unclear
what the defect is—try it under construction defect.
2. Crashworthiness cases expanded design defects liability. Defect lay in car’s failure to
protect occupant [P] against crashed caused by P or by 3rd party
a. Decided on negligence: It doesn’t make sense to hold D strictly liable when D
is being required to protect P from a 3rd person.
i. Use Hand formula: are the burdens of precautions worth taking in light
of the risk to be averted?
b. Base expectations of safe operating on ‘intended use’ of the car—including
foreseeably risk of accidents.
c. Volkswagon of America v Young (MD 1974): P killed in second collision
when 3rd party hit his car and he was thrown b/c seat brackets broke. Issue:
does crashworthiness fit into intended use of a car? Rule: under negligence,
manufacturer is liable for a defect in design which it could reasonably have
foreseen would cause or enhance injuries on impact, which are not obvious to
user, and which in fact lead to injuries in a collision. No recovery if danger is
obvious to user. Safety features only have to be reasonable—don’t have to
protect against every contingency.
3. Standards of design defect liability—theories
a. Open and obvious dangers—offer and acceptance model. Shifts blame to
consumer.
i. Once P has manifest notice of the danger, he can decide whether to use
the product or seek out a safer one.
ii. Campo v Scofield (NY 1950)—P’s hands injured when caught in
onion topping machine. Recovery denied b/c user could see the
danger and manufacturer not obligated to make the machine accident
proof or foolproof. Rule: manufacturer is under no duty to guard
against injury from a patent peril or from a source manifestly
dangerous. (This case stands for open and obvious dangers) Consider
cost of manufacturer to take extra precaution as compared to the cost
of user to be more careful. Manufacturer might be least cost avoider
1. Risk-utility standard
81
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
a. Δ may try to offer evidence to show that if you increase
precaution you undermine utility (introduce another
risk, impractical, prevent proper functioning)
iii. But, Micallef v Miehle Co (NY 1976)—lack of safety mechanism on
printing machine. Held: machine design could be defective even if
danger was obvious b/c manufacturer in best position to improve the
design and liability gives him incentive. Rule: manufacturer is
obligated to exercise that degree of care in his design se as to avoid
any unreasonable risk of harm to anyone who is likely to be exposed to
the danger when the product is used in the manner for which it was
intended as well as unintended yet reasonably foreseeable use.
Reasonableness = balance of cost, likelihood of harm, gravity of harm,
function.
iv. Rationale: simplified litigation, clearly delineates spheres of
responsibility between manufacturer and consumer, D doesn’t have to
justify design to jury.But jury will still find for P when a simple safety
feature could have prevented injury.
b. Reasonable alternative designs—negligence standard generally used.
i. R3T PL §2(b): A product is defective in design when the foreseeable
risks of harm posed by the product could have been reduced or
avoided by the adoption of a reasonable alternative design by the seller
and the omission of the alternative design renders the product not
reasonably safe.
ii. Courts are divided over the standard.
1. Doesn’t require alternative design be one in general use—relies
on experts to establish safe alternative.
2. Turns on a cost-benefit analysis
iii. Barker v Lull (CA 1978): high lift loader incorrectly used by
inexperience driver. [Should have been settled as a workers comp
case.] P claims there should have been more safety features. D says
those features would not have been safer and that they are not industry
standard. P only has to show that some condition made the product
unsafe, but does not have to show a specific defect.
iv. Held: The court ruled that a product is defective in design when (1) the
product fails to perform as safely as an ordinary consumer would
expect when used as intended or as is reasonably foreseeable, or (2)
the benefits of the challenged design do not outweigh the risk of
danger of the design. In deciding (2) jury may consider the gravity of
the danger posed by the challenged design, the likelihood that such
danger would occur, the mechanical feasibility of a safer alternative
design, the financial cost of an improved design, and the adverse
consequences to the product and to the consider that would result from
an alternative design, among other factors. (approach looks at
foreseeability from hindsight)
v. Cf. Risk-utility test—makes everything relevant and nothing
dispositive—favors P.
82
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
1. Usefulness and desirability of the product—its utility to the
user and to the general public
2. The safety aspects of the product—the likelihood it will cause
injury and the probably seriousness of the injury
3. Availability of alternative product which would meet the same
need and not be as unsafe
4. Manufacturer’s ability to eliminate the unsafe character of the
product without impairing its usefulness or making it too
expensive
5. User’s ability to avoid danger by the exercise of care in the use
of the product
6. User’s anticipated awareness of the dangers inherent in the
product and their avoidability based on general public
knowledge and accompanying information
7. Feasibility, on the part of the manufacturer, of spreading the
loss by setting the price of the product or carrying liability
insurance.
vi. Linegar v Armour of America (8th cir 1990): P killed when bullet
entered chest under his arm where bullet-proof vest did not cover. No
recovery allowed b/c the limited coverage of the vest was patent. The
choice in vest style was based on a trade-off with comfort. Law
doesn’t obligate manufacturers only to make the safest possible design,
b/c other factors like cost and consumer preference are involved.
1. O’Brien v Muskin Corp. (N.J. 1983) allowed the jury to
consider a claim that a vinyl pool should have used latex
instead even though no other above ground pool used latex,
stating that it was not necessary for Π to prove the existence of
alternative, safer design
c. State of the art—products are reasonably safe when D’s product design
conforms to state of the art of the relevant trade or industry. In setting the
appropriate design standard for product safety, many courts look in part to the
state of the art in the product supplier’s trade or business. Most courts don’t’
allow compliance with the state of the art to resolve the design defect question
in Δ’s favor but treat it as a factor to consider what is necessary and probative
on the issue of ‘unreasonably dangerous’.
d. Consumer expectations—totality of the consumer’s knowledge about product
i. Looks to appearance, common knowledge about product’s use and
limitations, literature that accompanies it.
1. Tries to determine if design reflects its safe and intended use—
any other use is at consumer’s risk
ii. R2T §402A seems to use this test “defective condition unreasonably
dangerous” taken to mean that article must be dangerous to an extent
beyond that which would be contemplated by ordinary consumer with
ordinary knowledge of how it works. (looks at foreseeability at
foresight)
83
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
iii. Example: everyone knows cigarettes are dangerous, butter causes high
cholesterol.
iv. CASE: Halliday v. Sturn, Ruger & Co.: Jordan Garris was a threeyear-old child who shot himself while playing with his father’s
handgun. The gun was manufactured by the defendant Sturn, Ruger &
Co. The father disregarded warnings from the retailer and left the gun
under his mattress with a loaded magazine on the bookshelf in the
same room. The child assembled the gun and shot himself in the head.
1. Court ruled that no cause of action existed under the consumer
expectations test, and the court refused to apply a risk-utility
standard on a broad, general basis. The gun did exactly what
consumer expected. No malfunction her and guns aren’t illegal.
e. Problems—policy issues:
i. Present system of design defects requires manufacturer’s to guard
against many forms of user neglect, deliberate misconduct, or natural
catastrophe as long as these are foreseeable
ii. Suits try hypotheticals b/c P has to reverse engineer the product to
establish how harm could have been prevented
1. System is unnecessarily expensive and unpredictable
iii. No evidence that litigation leads to safer designs.
1. Designs have to be set from ex ante perspective, and tradeoffs
made.
iv. Law doesn’t take into account cost of the design features—if products
cost too much, people won’t buy them and will continue to use older,
more dangerous products.
iii. Duty to Warn
1. Relation to design defects
a. RULE: as long as D has no duty to design out obvious features of his product,
then he is under no duty to warn of them.
b. Warnings and design features = substitutes for each other
i. Manufacturer will make designs safer rather than use warnings on
apparently safe products with latent dangers
ii. But some products need warnings to supplement design features
c. R2T rule = too broad: where a warning is given, the seller may reasonably
assume that it will be read and heeded.
2. CASE: Hood v. Ryobi America Corp.: Π Wilson Hood removed the blade guards
from a miter saw manufactured by the Δ Ryobi America. While cutting without the
guards, the blade flew off the saw and amputated Hood’s thumb and lacerated his leg.
Hood had been warned not to remove the guards, but argued that he should have been
warned that removing the guards permitted the blade to detach from the saw.
a. The court ruled that the Δ provided warnings sufficiently clear and specific to
apprise the ordinary consumer that it is unsafe to operate the saw without
guards.
i. Warning is adequate because you don’t want to provide too much
information because people might ignore it.
b. Possibilities
84
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
i. Liability
ii. Warning
1. Best solution for cost spreading reasons
2. Might want to have different levels of information
a. There might be excessive fear of loss that will
discourage people from using, or there might be
optimism bias and people will use it too much.
b. If the nature of product is such that it will always cause
danger, then you need to provide warning.
iii. Banning
1. Or Limit Access
3. Drugs and chemicals: deadly but useful poisons, drugs beneficial in isolation but
deadly in combination with others, products safe when properly stored but otherwise
dangerous. Bans are inappropriate so warnings and instructions are used to control
risk.
4. Reasonableness standard for warnings:
a. R3T PL §2: A product…(c) is defective b/c of inadequate instructions or
warnings when the foreseeable risks of harm posed by the product could have
been reduced by the provision of reasonable instructions or warnings by the
seller or a predecessor in the commercial chain of distribution and the
omission of the instructions or warnings renders the product not reasonably
safe.
5. Scope of the Duty—who should warn whom?
a. Manufacturer of finished product has to create warning and all downstream
distributors have to transmit it with the product.
i. Manufacturers of component parts upstream are insulated from the
requirement.
b. Retailer is liable when manufacturer fails to include warning in a sealed
package
i. Why impose this on retailers who would have to open the package to
discover the defect? Retailer is ill-suited to avoid the risk, whereas
consumer will discover warnings are missing.
c. Problem: when manufacturer markets product directly to consumer.
d. CASE: McDonald v. Ortho Pharmaceutical Corp.: Π Carole MacDonald
was prescribed contraceptive pills manufactured by the Δ Ortho
Pharmaceutical Corp. The prescription was filled annually after visits to
MacDonald’s gynecologist. After three years of using the pill, MacDonald
suffered a stroke and was permanently disabled.
i. The court held that the birth control manufacturer’s duty is to provide
the consumer written warnings conveying reasonable notice of the
nature, gravity and likelihood of known or knowable side effects, and
advising the consumer to seek fuller explanation from the prescribing
physician or other doctor of any such information of concern to the
consumer. The court ruled that oral contraceptives have peculiar
characteristics from other prescription drugs: (1) consumers are
actively involved in the decision to use the pill, (2) the patient does not
85
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
have the regular opportunity to consult with a physician, and (3) the
pill is subject to its own federal regulations.
ii. In instances where a trier of fact could reasonably conclude that a
manufacturer’s compliance with FDA labeling requirements or
guidelines did not adequately apprise oral contraceptive users of
inherent risks, the manufacturer should not be shielded from liability
by such compliance.
6. Scope of the Duty: How?
a. Instructions/warnings have to be transmitted in a way calculated to reach the
consumer in its ordinary use of the product
i. Broad range of distribution patterns makes this complex
b. Usual RULE: reasonable efforts should be made to bring the risk to the
attention of the actual users, or, if that is not possible, to qualified
intermediaries who then can either act on the information required or pass it
on to those who need it.
i. Example: drug manufacturer warns doctor who warns patient
c. Mass vaccination: Where downstream product control is extensive, any duty
to warn should attach not to the manufacturer but to the administrator of the
program.
i. Davis v. Wyeth Laboratories (9th Cir 1968): mass polio vaccination
program, not run by doctor, aided by vaccination producer, there was a
duty to warn of risks of using the live polio vaccine, especially b/c
risk, though small, would have a very significant effect.
7. What are adequate warnings?
a. Identify the risks for which warnings are required
i. Where there are serious risks, seller is more likely to know about them
than user
ii. Where risks are minor, seller is not required to produce
information/warnings
iii. Hard cases: intermediate levels of dangers
1. E.g. allergies known to affect a small fraction of the product’s
users.
b. Balancing test:
i. Frequency of harm
ii. Severity of harm
iii. warning needs to be in lay terms people can understand—MacDonald
v Ortho Pharmeceutical: “the adequacy of such warnings is
measured not only by what is stated, but also the manner in which it is
stated.”
1. E.g. has to be appropriate level of urgency.
8. CASE: Vassallo v. Baxter Healthcare Corp.: silicon breast implant leaks, causes
damage to D. D’s held liable in part b/c they knew of potential for leakage and did
not warn either doctors or users. The court announce new rule that Δ is not liable to
warn of risks that were not reasonably foreseeable at the time of sale, or could not
have been discovered by reasonable testing prior to marketing.
iv. Plaintiff’s Conduct
86
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
1. Current regime adopted by most courts and R3T favors comparative negligence rule
a. Daly v General Motors (CA 1978): decedent killed when car he was driving
hit divider and he was thrown from car. Sued D for defective door lock
design. But, decedent was drunk, wasn’t wearing seatbelt, and didn’t have
doors locked. Court holds that CA will switch to a comparative fault regime
even though product defect is strict liability. This creates incentives on both
sides, since D still can’t avoid liability if the defective product is at fault.
b. Mosk dissented that negligence should not be injected into products liability,
because the Π should be relieved from the burden of proof. Mosk also
dissented that assumption of risk should be retained as a total defense.
c. What’s at stake here?
i. It doesn’t matter for the incentives of care. Either strict liability or
negligence will work.
ii. Concern about proof
1. About decreasing litigation cost
2. Strict liability rule is better at saving on litigation costs. When
Π come forward here, they can achieve recovery at lower costs.
a. The cost per case will be less, but more cases will be
brought because strict liability makes it easier for Πs to
bring them. There will be much greater volume of
litigation.
iii. Concerned with the conduct of the Π and the Δ. If you believe the
court will work accurately and only looking at the aggregate you might
feel indifferent about whether to use strict liability and negligence.
1. Judge v. jury
a. Judge – strict liability
b. Jury – negligence
iv. What about justice? Which is better?
1. In strict liability regime, there will be greater cross-subsidies to
cover the laiblity. They will pass on to consumers a higher cost
for product. Those who aren’t negligent will have to pay for the
negligence of others.
a. If we increase liability on manufacturer, they will be
less likely to reduce. They price will be higher for
consumers and the quantity produced will decrease.
i. The reaction of the consumers and producers
increases the price in all circumstances.
v. Federal Preemption
1. The Supremacy Clause of the Constitution provides that any federal statute or
regulation shall take precedence over an inconsistent state law.
2. The doctrine of implied preemption can apply in three circumstances: 1) when the
state law is inconsistent with the federal statute; 2)when the federal statute is
sufficiently comprehensive to occupy the field; and 3)when the enforcement of the
state law frustrates the federal scheme.
3. CASE: Geier v. American Honda Motor Co.: Π was driving a Honda Accord and was
seriously injured when she collided with a tree. The car was equipped with manual
87
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
XII.
seat belts, but no airbags or passive restraint devices. Geier sued Honda for the design
defect of not installing an airbag. The Federal Motor Vehicle Safety Act of 1966
contained a preemption provision that no state has the authority to establish safety
standards applicable to the same aspects of performance as the federal standard.
a. The court held that the federal act pre-empts the lawsuit. The “no airbag”
lawsuit conflicts with the objectives of FMVSS 208, a standard authorized by
the Act, and is therefore pre-empted by the Act. The Court, in preempting the
state tort claims, opined that a state tort damage award would effectively set a
mandatory airbag standard that would obstruct the objective of the federal
regulations, which was to achieve safety through a phasing‐ in of passive
restraint devices.
Misrepresentation
a. Introduction
i. Π is required to show that she was misled by the Δ’s misstatements or misrepresentation and
that Δ knew that statements or representation were false or at least that he was indifferent to
truth or falsity.
ii. RST §525. Elements of Fraud:
1. One who fraudulently makes a misrepresentation of fact, opinion, intention or law for
the purpose of inducing another to act or to refrain from action in reliance upon it, is
subject to liability to the other in deceit for pecuniary loss caused to him by his
justifiable reliance upon the misrepresentation.
b. Fraud
i. CASE: Pasley v. Freeman
1. Π asks Δ about John Falch’s financial condition. Δ assured that he could be trusted. Π
gave Falch goods on credits and he never paid. Argue that Δ knew all along that Falch
was a bad credit risk
a. If no injury is occasioned by the lie, then it is not actionable, but if it be
attended with a damage, then it becomes the subject of an action. (Requires
proof of deliberate lying.
2. In Peek v. Derry, to sustain an action of deceit there must be fraud. Fraud is proved
when a false representation has been made knowingly, without belief in its truth or
recklessly, careless whether it is true or false. One who makes a statement under such
circumstances can have no real belief in truth. A false statement is NOT fraudulent, if
person honestly believes statement is truth. If fraud is proven, then person’s motive is
immaterial.
ii. CASE:Vulcan Metals Co. v. Simmons Manufacturing Co.: Δ sold Π all of its things to
manufacture cleaners, During negations Δ made two types of representations to the Π about
commendation of the cleanliness, economy, and efficiency of the machine, saying that it was
superior to others and that the company hadn’t try to sell the machine to anyone.
1. Misrepresentation regarding quality of the machine. The buyer has reason to suspect
that seller will stretch the truth to make the sell. Puffing is not fraud to bring action of
misrepresentation. Buyer could have gotten this information by testing it out.
2. Misrepresentation regarding vacuums having never been put on market. The actual
test of experience in their sale might well be of critical consequence in Π’s decision
to buy the business. The jury would has right to accept that his reliance upon this
information was determinative of his final decision.
88
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
iii.
iv.
v.
vi.
3. A retraction of a false statement before contract is executed would be a defense to
action. Δ must make sure the Π was in position to read retraction.
CASE: Swinton v. Whitinsville Savings Banks: Δ sold Π house with termites. Δ knew the
house was infested, but didn’t tell Π. Π couldn’t observe termites when inspecting the house.
Learned of termites about two years later. There was no false statement or representation by
Δ or indication that he prevented the Π from finding out this information about the condition
of the house.
1. Δ has no duty to provide Π any information regarding non-apparent degects known to
him in the subject of the sale which materially reduces its value and which the buyer
fails to discover. The charge here is concealment, a failure to reveal, with nothing to
show that Δ had any particular duty to speak.
a. Other cases have held that actions by Δ to cover up some defect count as
fraud, even in the absence of words to that effect. Π’s verdict sustained in case
where Δ set back car’s odometer without making any verbal
misrepresentations.
CASE: Laidlaw v. Organ: Π learned that war was ending, bought tobacco from Δ before
info had been made public. Before the sale was complete, Δ asked Π if knew of anything that
might affect price. Π either didn’t reply or court doesn’t know what he said. When the peace
was announced the price of tobacco rose between 30 & 50 percent. Δ took tobacco back by
force.
1. No duty on buyers of goods to disclose information to sellers. If both parties are
engaged in this industry, then we shouldn’t require them to divulge information to the
other.
2. Π wasn’t bound to communicate information to Δ
CASE: Edgington v. Firzmaurice: Π bought bonds from corporation of which the Δs were
directors and officers. Δs made false statements in circulars:
1. Installments or whether lenders could recall mortgage early. Held no to be false
statements, but rather non-disclosure, not fraud
2. Outstanding mortgage – also non-disclosure, which isn’t fraud
3. Use fo funds – This is crucial because investor will want to know how you’re going
to use money. This case is about statement of future intentions whereas the others are
about statement of fact about present or past actions. Future intentions are crucial in
determing decision to invest. Verdict for Π
CASE: Laborers Local 17 Health and Benefit Fund v. Philip Morris, Inc.: Union has
health plan created under ERISA with workers. Workers suffering medical problems from
the tobacco company. Tobacco company selling cigarettes causing workers health problems
leaving union with all these financial problems to cover the health problems of their workers.
Union (Π) suing Tobacco Co (Δ) arguing that Δ is fraudulent for misrepresenting the dangers
of smoking.
1. Court says injuries are not sufficiently direct. Claims are derivative of the workers’
claims.
a. Policy consideration: difficult to calculate damages. If you allow indirect
liability it would explode potential for lawsuits, risk multiple recoveries.
b. Workers should sue instead and the plan should sue the works by subrogation.
Health plan should seek compensation for whatever workers collect from
tobacco companies.
89
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
c. Negligent Misrepresentation
i. CASE: Ultramares Corporation v. Touche: Fred Sterns hires Touche accountants to audit
financial statements. Banks took statements from Fred Sterns. Banks (Π) bring claim against
accountants for negligence and fraud.
1. No fraud because no mal intent to deceive.
2. This case can be distinguished from Glanzer v. Shepard (the service rendered by the
Δ in Glanzer was primarily for the information of third party) whereas in Ultramares (
the service was primarily for the benefit of the Sterm company and only incidentally
use of those who Sterm disseminated it to later)
a. Commercial relationship was much closer in Glanzers. Weighters knew who
they were dealing with, direct communication between Π and Δ. Ultramares –
the accountants might be able to guess what they’re being used for but don’t
know
b. Glanzer – much easier to calculate damages, Touche also doesn’t have
knowledge about the nature of the transaction, the gravity of the damage and
the nature of the damage.
XIII. Damages
a. Introduction
i. CASE: Sulivan v. Old Colony Street Ry.: Purpose od damages is compensation. The object
is to give the equivalent in money for the actual loss caused by the wrong of another. The
idea is to place the Π in position in she would have enjoyed if the tort had never been
committed.
ii. 3 elements of damages: pain and suffering, medical expenses, and lost earnings attributable
to the accident. Damages are implicit in every case.
1. Pecuniary damages - economic consequences of the injury(medical expenses, lost
earnings and cost of custodial care)
2. Nonpecuniary damages - damages awarded to compensate an injured person for the
physical and emotional consequences of the injury, such as pain and suffering and the
loss of the ability to engage in certain activities
iii. Damages establish the implicit price payable for a violation of a legal right.
1. Damages set by the expected cost of D’s act, which depends on probability of D
being found liable and the damage awarded.
a. Damage award too high: D will spend too many resources trying to avoid
causing harm.
b. Damage award too low: D will have no incentive not to harm.
iv. Problem: how do we set optimal damages when ex ante we don’t know what the harm will
be?
1. Possible that damage awards don’t influence primary conduct of Ps very much, but
they do influence Ds b/c awards are so large.
v. Easy cases: property damage, b/c P can recover market value.
vi. Hard cases: personal injuries, especially serious ones.
vii. With injuries and death, this can’t happen, so system has to find a way to approximate even
though money is insufficient replacement for life and health.
1. Ergo: money damages are neither necessarily efficient, nor are they necessarily just,
which throws a wrench into the intended purpose of the tort system: to be just and
efficient.
90
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
viii. Goal of damages: compensation, deterrence, and insurance
1. Insurance – want to make those who suffer harm whole. Mimics insurance.
2. Deterrence - court in McDougald created a perverse incentive because the amount of
damages will increase as the harm is greater. At point, where the harm renders the
person unconscious then there’s a major drop off
ix. Compensable damages
1. Nonpecunary injuries, including both bodily harm and pain & suffering
2. Medical expenses
3. Lost earnings
a. Cover period before the trial and some estimate of future losses.
b. Pain and Suffering
i. Strategy is assessing damages: break down losses in order to come to some rational measure.
(Belli measure: have jury break down the person’s life into minutes and ask themselves how
much the pain and suffering of each minute is worth—not favored in courts.)
1. But how do you create a monetary value for pain and suffering
a. McDougald v Garber (NY 1989): woman made comatose vegetable by
negligent administration of anesthesia. Issue: since P can’t enjoy life can she
get damages for loss of enjoyment and pain & suffering? Held: to get these,
there has to be some minimal level of awareness. The court also held that pain
and suffering and loss of enjoyment should be considered together as nonpecuniary damages.
i. Argument on the other side. We want to compensate for lost positive
and the actual negative that she suffered that’s why we should require
jury to decide how far below they were from neutral and also how
much
c. Economic Losses
i. O’Shea v. Riverway Towing Co.: plaintiff Margaret O’Shea was coming off duty as a cook
on a tugboat, and sustained an injury while getting off the boat. After the injury, she was no
longer able to work as a cook.
1. Held: The court held that calculation of lost earnings can and should be analytical
rather than an intuitive undertaking and asked district court judges in the circuit to
indicate the steps taken to arrive at damage awards for lost figure earnings. Posner
ruled that previous wages do not put a cap on future wages, because tort victims are
entitled to damages based on what they would have earned in the future. The court
ruled that lost future wages could be calculated by either (1) taking inflation out of
the wage and the discount rate, or (2) using a higher discount rate based on the
current risk-free interest rate, and applying that rate to an estimate of lost future
wages that includes expected inflation. (Interest rate, salary/wage, work life, and
alternative employment – mitigation – inflation)
2. Π has a general duty to mitigate damages. But McGinley v United States (1971) ruled
that a plaintiff did not have to undergo further surgery with a two-thirds chance of
success of alleviating pain in his back.
ii. Duncan v Kansas City Southern Railway: The three Duncan sisters were riding in a church
van when it was struck by a locomotive of the defendant Kansas City Southern Railway. One
sister was killed, one sister was rendered a quadriplegic, and one sister suffered less serious
injuries.
91
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
1. The court says that the trier of fact has a lot of discretion, but reign them in by
looking at other courts The court ruled that the court had abused its discretion in
fixing the general damages award, and reduced the pain and suffering award to $6.0
million after a review of cases involving similar injuries. The court also reduced the
award of medical expenses to $10.5 million, because the treating physician’s life
expectancy estimate of 57 years was more realistic than the plaintiff’s expert’s
estimate of 81 years.
2. Should Π be present in the courtroom or is it prejudicial to the Δ.
a. Salient bias – seeing girl in wheelchair makes jury feel like suffering is greater
than it is.
b. If staring at numbers on a sheet you might not be able to appreciate the Π’s
harm.
c. Strategically showing Π could contriute to the shock
3. Damage caps
a. Want companies to think about the average when deciding what level of
degree to take. If you have a damage cap, it will skew what the average
damage award will be. The average will shift down. They will take them not
to take extreme care, because in really extreme cases you will be capped and
won’t have to be paid the actual amount
4. Under remittitur, the plaintiff can avoid the cost of a new trial by accepting a
reduction in the size of the jury award. Under additur, the defendant can avoid the
cost of a new trial by accepting a larger verdict.
d. Contingency Fees, Fee-Shifting Devices, Sales of Tort Claims and Litigation Insurance
i. Harding v. Town of Townshend: Π sued for injuries caused by reasons of an insufficiency of
a highway of the Δ. Π received payment of $130 from an insurance policy that he purchased
for $7.
1. The money received by the Π from insurance company doesn’t serve as a defense for
the Δ to prohibit Π’s recovery from Δ when the insurer and Δ aren’t joint tortfeasor or
joint debtors so as to make a payment or satisfaction by the former to operate to the
benefit of the latter or where there is no legal privity between the Δ and the insurer so
as to give the former a right to avail itself of a payment by the latter. Insurance is
collateral to the remedy against the Δ, and was procured soley by the Π and at his
expense and to the procurement of which the Δ was in no way contributory.
2. Collateral source rule – the fact of this 3rd party compensation should not be
something admissible in Π’s tort’s action.
a. Fear that Π will be able to recover twice.
3. Subrogation and Indemnification
a. Indemnification - arises from insurance company. In event of jury award that
covers things like medical expenses and the insurance company also recovers,
the Π have to reimburse insurance for the protection.
i. Insurance is like a loan. Premium of the insurance will be lesser with
an indemnification provision than it would be without one
b. Subrogation - indemnification plus. Insurance company steps in the sues in
the Π’s behalf.
ii. Lawyers for personal injury claims receive a contingency for their services (1/3 of damages)
92
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
1. Don’t pay by hour because some Π’s can’t afford this. Hourly pay may give attorney
to work more slowly.
2. If Π takes case on contingency fee, they have more control about what happens than
they would if they allowed subrogation
3. Π only pays if he wins. This allows broke Πs to bring suits to court
e. Punitive damages
i. Kemezy v. Peters: Π sued policeman claiming that Δ wantonly beat him with a nightstick in
an altercation in a bowling alley where Δ worked as a security guard. Jury awarded 10,000
compensatory damages and $20,000 punitive damages.
1. Given the various reasons for punitive damages court that the Π does not present
evidence of Δ’s net worth when assessing damages. This may give Π incentive to
plead for punitive damages, especially when they think opponent is a deep pocket.
a. Reasons why punitive damages are awarded:
i. Compensatory damages don’t always compensate fully. Some things are more
difficult to assess what exactly the right compensation is.
ii. Punitive damages are necessary to make sure the the tortious conduct isn’t
underdeterred
1. Juries usually overcompensate
2. Have to say compare to what.
iii. When a tortious act is concelaable, a judgment equal to the harm done by the
act will underdeter. Aperson who only gets half the time will not be
confronted by the full social cost of his activity.
1. Use damage multiplier to ramp up costs so the probability that they
will get cost doesn’t matter.
iv. Retribution
1. Punish someone when they’ve done something wrong
v. Expressing society’s abhorrence
1. Signaling rationale, want to communicate to others what we think the
right penalities are and that we impose them
vi. Self-help
1. Give people injured by relatively minor outrages a judicial remedy in
lieu of punitive damages
vii. Make sure that people channel transactions through the market when the costs
of voluntary transactions are low.
1. Bargain for what you want rather than steal if, if you’re forced to pay
punitive damages.
b. Should we tell jury about the wealth of the Δs?
i. What do you say when it’s beyond the capacity of Δ to pay
c. When do we impose punitive damages?
a. Conduct must be reckless and wanton, malicious, reprehensible, when there is
disregard for the harm they will cause.
ii. State Farm Mututal Automobile co. v. Campbell - Ospital’s estate sues Campbell (who
attempted to pass six vans). State Farm subrogated Δ’s claim. Subrogation is where the
insurer steps in the shoes of the litigant and runs the litigation for them. Π’s wanted to settle
for policy limit ($50K), but State Farm decides not to settle. State Farm told Campbell that
there assets were safe. Jury awarded $185k to Πs. Campbells make a deal with Slusher and
93
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)
TORTS OUTLINE
Fennell/Miles
Fall 08/Spring 09
Ospital saying that they weren’t going to make Campbells pay. Campbell sues State Farm for
bad faith and fraud and intentional infliction of emotional stress. Ospital agrees to drop
judgment against Campbells if they sue State Farm and give Ospital 90%.
1. State Farm committed fraud by telling false statements on which the Campbells relied
Appellate courts may review DE NOVO awards of punitive damages, adhering to the
following three considerations: "(1) the degree of reprehensibility of the defendant's
misconduct; (2) the disparity between the actual or potential harm suffered by the
plaintiff and the punitive damages award; and (3) the difference between the punitive
damages awarded by the jury and the civil penalties authorized or imposed in
comparable cases." Court goes on to suggest that "few awards exceeding a SINGLEDIGIT RATIO between punitive and compensatory damages ... will satisfy due
process."
94
(* Cases marked with asterisk are ones that appear in the notes and/or mentioned in class)