F Torts
Professor Allen-Castellitto
Fall 2007
Table of Contents
Table of Contents .............................................................................................................................1
Introduction ......................................................................................................................................5
Three Areas of Tort Law:............................................................................................................ 5
Goals of Tort Law: ...................................................................................................................... 5
Burden of Proof in Tort Law:...................................................................................................... 5
Intentional Torts ............................................................................. Error! Bookmark not defined.
Introduction ................................................................................ Error! Bookmark not defined.
Standard is subjective ..................................................... Error! Bookmark not defined.
Intentional Torts: ........................................................................ Error! Bookmark not defined.
Intent Defined ............................................................................ Error! Bookmark not defined.
Diminished Rational Capacity and Intentional Torts ................. Error! Bookmark not defined.
Children .......................................................................... Error! Bookmark not defined.
Insanity: .......................................................................... Error! Bookmark not defined.
Transferred Intent and Mistake .................................................. Error! Bookmark not defined.
Assault........................................................................................ Error! Bookmark not defined.
Defined: .......................................................................... Error! Bookmark not defined.
History ............................................................................ Error! Bookmark not defined.
Criminal Assault v. Tort Assault: ................................... Error! Bookmark not defined.
Elements of a Prima Facie Case of Assault .................... Error! Bookmark not defined.
No consent or privilege .................................................. Error! Bookmark not defined.
Damages ......................................................................... Error! Bookmark not defined.
Battery ........................................................................................ Error! Bookmark not defined.
Elements of Prima Facie Case of Battery ....................... Error! Bookmark not defined.
No consent or privilege .................................................. Error! Bookmark not defined.
Assault and Battery Cases .......................................................... Error! Bookmark not defined.
Illustration of Assault and Battery ......................................... Error! Bookmark not defined.
No Battery Where Contact Not Reasonably Offensive (Eggshell Plaintiff) .................. Error!
Bookmark not defined.
False Imprisonment .................................................................... Error! Bookmark not defined.
Defined: .......................................................................... Error! Bookmark not defined.
Elements of Prima Facie Case of False Imprisonment ... Error! Bookmark not defined.
No consent or privilege .................................................. Error! Bookmark not defined.
Accidental Confinement Not Included ........................... Error! Bookmark not defined.
P’s Awareness of Confinement ...................................... Error! Bookmark not defined.
Bounded Area ................................................................. Error! Bookmark not defined.
Means of Confinement or Restraint................................ Error! Bookmark not defined.
No Minimum Time ......................................................... Error! Bookmark not defined.
Transferred Intent: If A intends an assault (battery, trespass to chattel or conversion) on
B and either B or C is unintentionally imprisoned, A is still liable for false imprisonment.
Error! Bookmark not defined.
Mistake: .......................................................................... Error! Bookmark not defined.
Policy Issues ................................................................... Error! Bookmark not defined.
Intentional Infliction of Emotional Distress ................................................................................ 6
Defined ........................................................................... Error! Bookmark not defined.
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History ............................................................................ Error! Bookmark not defined.
Elements for Prima Facie Case of IIED ......................... Error! Bookmark not defined.
Outrageous and intolerable conduct ............................... Error! Bookmark not defined.
Intentional or reckless conduct ........................................................................................ 6
Severity............................................................................................................................ 6
Causation ......................................................................................................................... 6
Defenses to Intentional Torts ...................................................................................................... 6
Burden of Proof: ..................................................................................................................... 6
Consent .................................................................................. Error! Bookmark not defined.
Self Defense ........................................................................... Error! Bookmark not defined.
Protection of Property ............................................................................................................. 7
Public Necessity/Private Necessity ......................................................................................... 7
Negligence ........................................................................................................................................8
Negligence Defined: ................................................................................................................... 8
Historical Development: ............................................................................................................. 8
Elements of the Prima Facie Case for Negligence: ..................................................................... 9
The Standard of Care ................................................................. Error! Bookmark not defined.
The Reasonable Person Standard of Care .................................. Error! Bookmark not defined.
Learned Hand Rule: ......................................................................................................... 9
Flexibility in the Reasonable Person Standard........................... Error! Bookmark not defined.
Physical Illness/Disability: ............................................. Error! Bookmark not defined.
Mental conditions (treated entirely differently than physical conditions) .............. Error!
Bookmark not defined.
Children: ......................................................................... Error! Bookmark not defined.
Emergency Doctrine: ...................................................... Error! Bookmark not defined.
Superior Attributes, Skill, or Knowledge: ...................... Error! Bookmark not defined.
Activities Requiring Skill: .............................................. Error! Bookmark not defined.
Physician: ....................................................................... Error! Bookmark not defined.
Common Carriers ....................................................................... Error! Bookmark not defined.
The Roles of Judge and Jury ..................................................................................................... 10
Custom in Negligence Cases ..................................................................................................... 11
Role of Statutes ......................................................................................................................... 12
“Negligence Per Se” Doctrine: ...................................................................................... 12
Proof of Negligence .................................................................................................................. 14
Slip and Fall Cases and the Role of Constructive Notice .............................................. 15
Res Ipsa Loquitur .......................................................................................................... 16
Professional Negligence/ Medical Malpractice......................................................................... 18
The Duty Requirement – Physical Injury.................................................................................. 18
Nonfeasance v. Misfeasance .......................................... Error! Bookmark not defined.
o Duty to Control Third Parties ........................................ Error! Bookmark not defined.
Duty to warn P with no special relationship to D: ......... Error! Bookmark not defined.
Negligent Misrepresentation .......................................... Error! Bookmark not defined.
Alcohol-Related Injuries ................................................. Error! Bookmark not defined.
Negligent Entrustment .................................................... Error! Bookmark not defined.
The Duty Requirement -- Landowners and Occupiers............... Error! Bookmark not defined.
Common Law: ................................................................ Error! Bookmark not defined.
Immunities: Intrafamily Duties ................................................. Error! Bookmark not defined.
Spousal Suits .................................................................. Error! Bookmark not defined.
Parent-Child Suits........................................................... Error! Bookmark not defined.
Duty of Governmental Entities .................................................. Error! Bookmark not defined.
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Historical ........................................................................ Error! Bookmark not defined.
Statement of Doctrine ..................................................... Error! Bookmark not defined.
Municipal and State Liability: ........................................ Error! Bookmark not defined.
Federal Immunity: The Federal Tort Claims Act ........... Error! Bookmark not defined.
The Duty Requirement: Nonphysical Harm: ............................................................................ 19
Emotional Harm (Negligent Infliction of) ............................................................................ 19
Economic Harm (Negligent Infliction of) ............................................................................ 21
Wrongful Pregnancy/Contraception ..................................................................................... 22
Causation ........................................................................................ Error! Bookmark not defined.
Introduction ................................................................................ Error! Bookmark not defined.
Two requirements to prove causation ........................................ Error! Bookmark not defined.
Cause in Fact.......................................................................... Error! Bookmark not defined.
Introduction to Joint and Several Liability: ........................... Error! Bookmark not defined.
Multiple Causes: .................................................................... Error! Bookmark not defined.
The Special Case of Toxic Harms: ........................................ Error! Bookmark not defined.
Proximate Cause ........................................................................ Error! Bookmark not defined.
Unexpected Manner: .............................................................. Error! Bookmark not defined.
Unexpected Victim: ............................................................... Error! Bookmark not defined.
Unexpected Harm: ................................................................. Error! Bookmark not defined.
Defenses .........................................................................................................................................23
The Plaintiff’s Fault ................................................................... Error! Bookmark not defined.
Contributory Negligence: ...................................................... Error! Bookmark not defined.
Comparative Negligence: ...................................................... Error! Bookmark not defined.
Avoidable Consequences: ...................................................... Error! Bookmark not defined.
Assumption of Risk................................................................................................................... 24
Express Agreements: ............................................................................................................ 24
Implied Assumption of Risk: ................................................. Error! Bookmark not defined.
Preemption Defense: .............................................................. Error! Bookmark not defined.
Strict Liability ................................................................................................................................24
Animals ..................................................................................................................................... 26
Abnormally Dangerous Activities............................................................................................. 27
Five Major Arguments for Strict Liability (King article) .......... Error! Bookmark not defined.
Liability for Defective Products .....................................................................................................32
Negligence ................................................................................. Error! Bookmark not defined.
Breach of Warranty ................................................................................................................... 34
Strict Tort Liability ................................................................................................................... 35
Establishment of Strict Liability for Product Injuries: ........... Error! Bookmark not defined.
Codification of Liability for Product Injuries: ....................... Error! Bookmark not defined.
Limitations of Strict Liability in Products Liability: ............. Error! Bookmark not defined.
Manufacturing Defects: Typically just strict liability, no need to apply reasonableness
test. Error! Bookmark not defined.
Design Defects: .............................................................. Error! Bookmark not defined.
Safety Instructions and Warnings: ........................................................................................ 43
Defenses to Defective Product Liability ................................................................................... 48
Work-related Injuries ................................................................. Error! Bookmark not defined.
Only Economic Harm ................................................................ Error! Bookmark not defined.
Trespass and Nuisance ...................................................................................................................55
Trespass...................................................................................... Error! Bookmark not defined.
Nuisance ..................................................................................... Error! Bookmark not defined.
Damages ......................................................................................... Error! Bookmark not defined.
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Compensatory Damages ............................................................ Error! Bookmark not defined.
Pecuniary (actual) Damages ........................................... Error! Bookmark not defined.
Pain and Suffering .......................................................... Error! Bookmark not defined.
Loss of Consortium ........................................................ Error! Bookmark not defined.
Collateral Source Rule:................................................... Error! Bookmark not defined.
Punitive Damages ...................................................................... Error! Bookmark not defined.
Insurance .................................................................................... Error! Bookmark not defined.
Alternatives to Tort Liability ..........................................................................................................58
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Introduction
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The primary concern of tort law is whether one whose actions harm another should be
required to pay compensation for the harm done.
Tort law helps reimburse people for damages who otherwise would not have received
reimbursement.
Tort law governs wrongdoing that isn’t necessarily criminal.
There is no limit on the number of claims P can make
Three Areas of Tort Law:
1. Intentional Torts – the person has knowingly caused the injury
 One must plead the predetermined sort of injury (battery, assault, trespass, emotional
distress, etc…). Must use the prescribed categories to prevail.
 Covers physical injuries, mental injuries, and injuries to property. Defamation is also
an intentional tort (telling lie about someone, written slander).
 Some intentional acts are not torts – calling a race by a slanderous name is not a tort.
Perhaps they create emotional distress, but the courts have not upheld this view.
Other countries treat them more seriously.
2. Negligence – Negligence is its own tort.
3. Strict Liability – No mental state required. If you committed the tortious act, you are liable.
Goals of Tort Law:
1. Compensation – paying back the plaintiff (lost wages, medical expenses, pain and suffering)
2. Deterrence –discourages risky or intentional conduct (maintains social order).
3. Punishment/Retribution – tort law is a punishment, people feel as though they have done
something wrong, the plaintiff feels that the defendant has been punished for the wrong they
have committed
4. Shifts Costs – tort law functions to shift costs to those who should and/or can pay; also can
spread costs to all contributors to the insurance pool
Burden of Proof in Tort Law:
1. In a tort action, the plaintiff has to prove to a preponderance of the evidence (that it is more
likely than not that the facts are as the plaintiff says).
2. This is less of a burden of proof than in criminal cases, which is beyond a reasonable doubt.
3. So, it is harder to convict in criminal cases than in civil cases.
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Intentional Infliction of Emotional Distress
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Intentional or reckless conduct:
o Although characterized as an intentional tort, recklessness, in addition to intent,
generally suffices for liability.
o The inclusion of recklessness is endorsed by the Restatement
o Intentional (and reckless) infliction of emotional distress must be distinguished
from negligent infliction of emotional distress, which evolved later.
o If A, intending to injure B, recklessly disregards this high probability that C will
suffer emotional distress, A is therefore also liable for IIED to third party C.
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Severity: The victim’s emotional distress must be severe.
o IIED requires proof both that the D intended or recklessly imposed the risk of
severe mental distress and that the victim actually suffered severe mental distress.
o Mere unhappiness, humiliation, or mild despondency for a short time is not
sufficient.
o Initially, physical manifestations of severe mental distress were required to prove
severity of distress, but most jurisdictions no longer require physical
manifestations for the intentional tort (see history section above).
o Today, severity of distress can best be documented by the outrageousness of the
wrongdoer’s conduct.
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Causation: Between D’s conduct and the emotional distress
Defenses to Intentional Torts
1.
2.
3.
4.
Consent
Self Defense
Protection of Property
Private Necessity
Burden of Proof:
 While the plaintiff has the burden of proving the elements of the tort (by a preponderance of
the evidence), the defendant has the burden of proving a defense.
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Defense of Others:
o A person can use reasonable force to protect a third person from immediate
unlawful physical harm. An individual can interfere on behalf of a stranger
o Limited Privilege Rule:
 The privilege to use force in defense of a third person exists only when
the person being defended was privileged to use force. The intervener
must stand “in the shoes of the person” being protected. Only when the
person being defended has the right of self defense can the intervener
claim a privilege
 If A reasonably believes B is being unlawfully attacked by C and uses
reasonable force against C to protect B, A is liable if it turns out that B
was knowingly resisting arrest and C was an undercover agent. B did not
have the privilege of self defense. Therefore A’s behavior, however
reasonable, is not privileged.
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Restatement Rule: An increasing number of modern courts have concluded there
is a privilege to use reasonable force to protect a third party whenever the actor
reasonably believes a third party is entitled to exercise self-defense.
 So, A’s behavior in the example above would be privileged.
Protection of Property:
 Rule: One is privileged to use only that force reasonably necessary to defend one’s
property. Deadly force generally can only be used in defense of one’s dwelling, and
many courts (as in Katko) further restrict its use to situations where the invasion appears
to threaten death or serious bodily harm (ie, tying it into another privilege – self defense
or defense of others). Unlike self defense, a reasonable mistake will not excuse force that
is directed against an innocent party.
 Personal Rights are more important than Property Rights:
o Mechanical infliction of deadly force, such as the use of spring guns, is justified
only when the trespasser was committing a felony of violence or a felony
punishable by death, or where the trespasser was endangering human life
 Katco (plaintiff, respondent) v. Briney (defendant, appellant), SC of IA, 1971
o Facts: D and wife owned farmland on which their grandparents and parents
lived, but no one had lived there for some time. The land was trespassed upon
several times, so D put up no trespassing signs and a loaded a spring gun that
would automatically shoot an intruder in the leg if he entered the bedroom.
There was no specific notice of this danger. P broke into the house with a friend
to steal antique bottles and jars. P went into bedroom, was shot, and suffered
severe leg damage.
o Holding: D not justified in using the spring gun b/c P did not endanger his or his
family’s personal safety.
 A landowner cannot mechanically do what he could not do in person.
The value of life outweighs that of the interest of the landowner; he has
no right to use force likely to kill or inflict serious harm, unless selfdefense or another privilege is involved.
o Comment: The same rule applies to vicious dogs
 Recovery of Personal Property: An individual may use reasonable force to recover
property when in “hot pursuit” of the wrongdoer. As in all cases of protection of
personal property, if force is directed at an innocent party, against whom the privilege
does not apply, the actor is liable even if the mistake was reasonable.
o Many states have adopted a merchant’s privilege which allows stores to use
reasonable force to detain a person for reasonable periods to investigate possible
theft. The detention must be within or near the immediate parameters of the
store. The merchant’s privilege generally allows reasonable mistake, so an
innocent customer cannot recover against the store if the store acted reasonable.
Public Necessity/Private Necessity:
 Necessity is a defense which allows the defendant to interfere with the property interests
of an innocent party in order to avoid greater injury. The defendant is justified in her
behavior because the action minimizes the overall loss.
 Public Necessity:
o Exists when the D appropriates or injures a private property interest to protect the
community.
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o
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Public necessity is a complete defense. D will not be liable (even if that seems
unfair to innocent P)
Private Necessity:
o Exists when the individual appropriates or injures a private property interest to
protect a property interest valued greater than the appropriated or injured
property.
o Private necessity is an incomplete defense: The D is privileged to interfere with
another’s property but is liable for the damage.
o Vincent (plaintiff, respondent) v. Lake Erie Transportation Co. (defendant,
appellant), SC of MN, 1910
 Facts: The steamship Reynolds, owned by D, moored its boat to P’s
wharf so that P’s cargo could be unloaded. During unloading, a storm
arose that prevented the boat from leaving the dock. The storm threw the
boat against the dock and damaged the wharf.
 Issue: May one who is forced by necessity to use the property of another
do so without liability for injury to the property caused by his use?
 Holding: No. The ship’s master exercised ordinary prudence and care in
keeping the ship moored during the storm. In doing so, he deliberately
protected the ship at the expense of the wharf. Having deliberately
availed himself of P’s property as the storm gave D the right to do, D
was liable for injury inflicted by his actions.
 Dissent: The damage was unavoidable, and the person who constructs a
dock assumes the liability for damage done to it by boats during a storm
Negligence
Negligence Defined:
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Negligence is the doing of something which a reasonably prudent person would not do,
or the failure to do something which a reasonably prudent person would do, under
circumstances similar to those shown by the evidence.
Negligence is the failure to use ordinary or reasonable care.
Historical Development:
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Pre-negligence tort liability based on rigid writ system
Two writs most relevant to tort liability:
o Trespass – Direct and immediate harms. Strict liability, P not req. to prove fault
by D
o Trespass on the Case (or “Case) -- Indirect harms. P required to prove some
fault on part of D to recover. Became precursor to negligence
Mid 1800s saw rise of negligence theory
o Without proof of harm, P could not recover, even for direct and immediate harm
o Firmly established in US in Brown v. Kendall – which shows the shift to finding
laiability on the part of a D only if he is legally at fault.
o Brown (plaintiff, respondent) v. Kendall (defendant, appellant), Supreme
Judicial Court of MA, 1850
 Facts: Defendant was amidst the act of breaking up dogs, belonging to
both the D and P who were fighting. He was doing this by hitting the
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hounds with a large stick. While hitting the dogs with the stick, the D hit
the P in the eye with the stick, causing severe injury. Trial court placed
burden on D to show that he had exercised extraordinary care because he
was not engaged in a necessary act. Judgment rendered for P; D appeals
 Was the court correct in requiring D to show that he had exercised
extraordinary care?
 Holding: No. When a D is engaged in a lawful act and injures a P, the P
may not recover damages if:
 The P and D both exercised ordinary care
 The P and D both failed to exercise ordinary care; OR
 The P alone failed to exercise ordinary care
The act of breaking up the dogs was a lawful act. In doing so the D did
practice ordinary care and unintentionally hit the P in the eye. Unless jury
finds that D is chargeable with fault, ie negligence, carelessness, or want of
prudent or ordinary care, P fails to sustain the burden of proof and is not
entitled to recover.
Note: Court applies an objective standard of care (see below). Also, court
says that the P and not the D has the burden of proof.
Elements of the Prima Facie Case for Negligence:
1. Defendant has duty of care to plaintiff
a. What duty of care applies? Is there a special duty?
i. Duty defined by the standard of care required
b. Always apply the default standard (reasonable person standard) when no
heightened or lessened duty arises
2. This duty of care has been breached
3. Causation (negligence caused injury)
a. cause in fact – actual person creating the damage, can be controversial also
b. proximate cause – no intervening cause (another person’s negligence, for
example), hard to decide
4. Injury was inflicted
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Learned Hand Rule:
o (burden of adequate precautions)<(Probability of Injury)*(likely severity of resulting
injury)=party should take precautions. If they don’t, they are negligent.
o Economic Rationale: (Posner): If the cost of safety measures or of curtailment –
whichever cost is lower – exceeds the benefit in accident avoidance to be gained by
incurring that cost, society would be better off, in economic terms, to forgo accident
prevention. A rule making the enterprise liable for the accidents that occur in such
cases cannot be justified on the ground that it will induce the enterprise to increase
the safety of its operations.
o United States (plaintiff, appellant) v. Carroll Towing Company (defendant,
respondent), US Court of Appeals, Second Circuit, 1947
 Facts: The Connors company had a tugboat that was fastening the lines
aboard the Anna C, a barge owned by Connors what was carrying US
property. The lines broke free and the barge drifted and hit a tanker whose
propeller punctured the Anna C and made it sink. Connors was wanting to
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recapture the value of its cargo from Carroll. Carroll wanted to reduce
damages pursuant to admiralty law because the plaintiff’s bargee was not
aboard the ship at the time of the accident. The bargee could have stopped
the accident had he been there.
 Holding: Burden of precaution should have been taken. Barge attendant
should have been there due to the busy port.
 Comment: The main question in a negligence case is whether a reasonable
person would have realized the risk involved in a course of action but still
would not have changed his conduct; in that case, no negligence can be
inferred.
 To determine what reasonable person would do:
o Apply Learned Hand formula
o Just think of what a reasonable person would do in the situation → foreseeability:
would a reasonable person foresee such an accident?)
The Roles of Judge and Jury
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It is now well settled that the jury decides whether the defendant acted unreasonably,
thereby breaching her duty.
However, this result has not been without exception or controversy.
o Leaving question of reasonableness to a jury invites differing results in similar
cases, which could lead to arbitrariness of tort system/ neg impact on public
confidence
Rule that jury decides reasonableness is not an absolute principle. Sometimes judge
makes the ultimate call, usually in context of a directed verdict or judgment
notwithstanding the verdict. In such cases, judge concludes that based on the evidence,
no reasonable jury could find that the D was unreasonable or reasonable. However, if
reasonable minds can disagree, decision is left to jury
Some scholars (Holmes) advocated judges to create fixed standards of reasonabless
whenever possible to encourage greater predictability and reduce arbitrariness. Idea was
that the proper standard of care would be given the effect of law by courts, and the judge
would instruct the jury as to the standard as a matter of law (negligence per se).
Holmes established this principle in Baltimore & Ohio Railroad v. Goodman:
o Baltimore & Ohio Railroad (defendant, appellant) v. Goodman (plaintiff,
respondent), Supreme Court of the US, 1927
 Facts: P was approaching a RR track that was partially blocked from
view. He was approaching the track slowly, but did not see the train and
was hit at a train going more than 60 mph and was killed. Widow sues
for damages due to negligence.
 Holding: (Holmes) This is a standard of conduct that is obvious and
should be directed to jury. When a man crosses a RR track, he should be
aware of the possibility of a train coming, even if he does not hear it or
has only partial vision of it. Motorists are negligent unless they stop and
get out of their vehicle to ensure that it is safe to cross
 Acc to Holmes, “when the appropriate standard of conduct is clear it
should be laid down once and for all by the courts.”
 Holmes’ approach dramatically limited the role of the jury in the
determination of breach. Holmes laid out a specific, fixed rule as to what
due care required
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Fixed standard of reasonableness approach was short lived.
Cardozo, in Pakora opinion, rejected the Holmes approach. Cardozo urged “caution in
framing standards of behavior that amount to rules of law.” Judge created rules of law
lack the flexibility to take into account unusual situations and could lead to irrational
results. Moreover, completely identical fact patterns rarely arise in negligence cases.
After Wabash, it is quite rare for a court to set a fixed standard of reasonableness.
o Pokora (plaintiff, appellant) v. Wabash Railway Company (defendant,
respondent), Supreme Court of the US, 1934
 Facts: P was driving across four RR tracks, the first of which was
occupied by standing boxcars. These boxcars blocked the view of the
second track to the North, and prevented Pokora from seeing anything
coming from the North on the track. A train hit Pokora at a speed of 2530 mph and made no noise to alert others of its presence. Pokora sued
for damages due to negligence by the railroad.
 Holding: Pokora took the ordinary amount of safeguards and no one can
expect someone to actually step out of his car to check for hidden
approaching trains. This kind of precaution is out of the ordinary.
Summary judgment not appropriate where satisfaction of reasonable care standard is
ambiguous (reasonable minds could differ, so should be left to jury to decide)
o Andrews (plaintiff, appellant) v. United Airlines (defendant, respondent), US
Court of Appeals, Ninth Circuit, 1994
 Facts: P was hit by a falling piece of luggage when a passenger opened
an overhead bin after the aircraft landed. No one knows who opened the
compartment, but it was not airline personnel. P claims her injury was
foreseeable and thus preventable.
 Holding: Jury could have found reason to decide in favor or against
United, the facts are not clear as to one way or the other – judge should
not be the one deciding, thus summary judgment used in district court is
unjustified. United must prove that adding luggage nets is cost
prohibitive and will grossly interfere with convenience of passengers
Custom in Negligence Cases
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Custom and Usage. In determining whether conduct is negligent, the customary conduct
of the community, industry, profession, or other relevant group in similar circumstances
is relevant as evidence of negligence but not conclusive. Exception: In professional
negligence cases involving physicians and certain other professionals, customary conduct
usually is conclusive as to the standard of care. §295A
Custom bears on the Learned Hand Formula:
o Existence of custom suggests some degree of probability of the harm, as custom
probably developed in response to an industry’s perception of the potential risks
of a particular activity
 However, P must show that the harm the custom developed to avoid is
the same as that suffered by P.
o Existence of custom suggests that for D to have acted as do most others would
not have been too burdensome.
When certain dangers have been removed by a customary way of doing things safely, this
custom may be proved to show that the one charged with dereliction has fallen below the
required standard
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Evidence of D’s compliance w/ custom is usually admissible as evidence of D’s lack of
breach
Proof of custom may show what ought to be done, but reasonableness should always be
applied – jury may find custom is unreasonable
o Trimarco (plaintiff, appellant) v. Klein (defendant, respondent), Court of
Appeals of NY, 1982
 Facts: P badly cut himself when he fell through a glass door that
enclosed his tub in the D’s apartment building. The door was made out
of thin glass that looked the same as tempered glass that the P thought it
was. P presented evidence that since the 1950s the practice had been to
use shatterproof glass for these showers.
 Holding: Jury had enough evidence to prove that custom of shatterproof
glass existed and that it was reasonable to adhere to the custom.
Role of Statutes
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Overview
Section focuses on relevance of statutes in negligence actions
Statutory tort law: State legislatures can regulate tort law as long as the statutes they
enact are constitutional
o However, statutes designed to affect negligence law are rare
“Negligence Per Se” Doctrine:
o In certain situations a criminal statute (or administrative regulation or municipal
ordinance) may be used to set the standard of care in negligence cases
o These statutes are not intended to directly regulate civil liability, but rather are
adopted by courts as a standard.
o Rationale for adopting this standard is that legislature in crafting the statute
defined what constitutes appropriate conduct in a specific context
o Under Negligence Per Se, a specific legislative standard replaces the more
general reasonable person standard
Factors for Determining the Propriety of Adopting a Statute as the Standard of Care
Which statutes to apply as standard of care is up to discretion of judge
Judge must examine the legislative purpose of the statute to determine:
o Whether the statute was designed to protect against the type of harm suffered by
the P.
o Whether the class of persons designed to be protected by the statute includes P
2d Restatement §286: Legislation is relevant on the standard of care in a negligence case
only if the statute was intended, at least in part, to protect a class of persons which
includes P against the particular hazard and kind of harm which resulted.
3d Restatement §14 “An actor is negligent if, without excuse, the actor violates a statute
that is designed to protect against the type of accident the actor’s conduct causes, and if
the accident victim is within the class of persons the statute is designed to protect.”
Effects of Judge’s decision not to adopt a statute:
o If judge refuses to use a statute as the standard of care, the case proceeds under
the usual “reasonably prudent person” standard of care. P may still prevail upon
proof that D failed to act reasonably.
Effects of adoption of a statute and statutory violation:
o Majority View: In an overwhelming majority of jurisdictions, the statute
replaces the usual reasonably prudent person standard of care. Breach of duty
occurs when D violates the statute. If P also can establish the other elements of a
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negligence cause of action – causation and damages -- violation of a relevant
statute will constitute prima facie negligence or negligence per se. This means
that if no evidence is introduced by D to excuse the violation, D's negligence is
conclusively established. §288B
 In jurisdictions following the majority rule, the jury role is quite limited.
Rather than having to determine if D used reasonable care, all the jury
needs to find is that the statute was violated.
o Minority View. In some jurisdictions, violation is merely evidence of
negligence. In these jurisdictions, the statute has no effect on the relevant
standard of care.
 The jury will consider the statute along with all other evidence in
determining whether D acted unreasonably.
Criticisms of Negligence Per Se Doctrine:
o Places much weight on laws that were enacted without any indication of an intent
to affect negligence law
o Wide divergence btwn impact of a statutory violation in criminal context and
negligence context – although small fine in crim context, in neg context, huge
financial burden to D, as D becomes liable for all harm proximately caused by
the statutory violation. Moreover, in crim context, prosecution must prove
beyond a reasonable doubt that violation occurred, whereas in tort context, must
prove violation by a preponderance of the evidence. So, easier to show D
committed violation.
 To respond to this, most jurisdictions increasingly consider defenses of
contributory negligence and assumption of risk.
o Negligence Per Se Doctrine greatly constricts the jury’s traditional role of
determining breach and often invests the trial judge with broad discretion to
impose standards of care.
o It is legislature’s prerogative to legislate civil liability, and it may be an
encroachment by courts to presume intent to apply these laws to tort domain.
Martin (plaintiff, appellant) v. Herzog (defendant, respondent), Court of Appeals of NY,
1920
o Facts: P and husband were traveling in a buggy when the D hit them while
traveling in his car. It was rather dark and buggy had no lights; the car did have
lights on. P charged D with negligence for not staying to the right of the
highway. D charges P with contributory negligence for not traveling with lights
on the buggy. There was a statute in NY state Highway Law requiring lights for
the safety of others and yourself. D was denied a jury instruction that the
absence of light on the wagon was prima facie evidence of contributory
negligence.
o Issue: Is the unexcused violation of a statute contributory negligence per se?
o Holding: Yes. Trial court should have upheld D’s request for an instruction that
absence of light on P’s vehicle is prima facie evidence of contributory
negligence. Unexcused omission of the statutorily required lighting is
negligence per se.
o Reasoning: To omit safeguards prescribed by statute for the benefit of others is
to fall short of the duty of diligence owed toward the rest of society. The trial
court erred in giving the jury the power to relax the duty that P’s intestate owed
to other travelers.
Exception to Majority Rule of Negligence Per Se Doctrine:
13
o

A statute may accomplish its purpose under usual conditions, but when the
unusual occurs, strict observance of the rule of conduct may further endanger the
person. If following the statute would defeat its purpose, failure to follow the
statute does not automatically assign negligence.
o Tedla (plaintiff, respondent) v. Ellman (defendant, appellant), Court of Appeals
of NY, 1939
 Facts: Two junk collectors were walking eastward along a highway.
They could not use the sides or grassy middle because their cart of junk
would have sunk. The D hit them while he was traveling eastward. A
1933 statute laid out guidelines stating that pedestrians should always
walk against traffic with all traffic passing on their right. The Ps were
walking with the traffic along the side of the road. They did this because
the traffic traveling westbound was very heavy, hence they walked with
traffic along the side of the road, contrary to statute.
 Issue: If a statute sets forth a general rule of conduct without fixing a
standard of care that would, under all circumstances, tend to protect life,
will a justifiable deviation from the general rule be regarded as
negligence per se?
 Holding: No. Following the statute would have caused more danger
than it was designed to prevent, thus not following the statute is
reasonable
 Reasoning:
 The legislature intended to set forth a general rule that would
provide for the safety of pedestrians
 Nevertheless, in this situation, obedience to the rule would have
subjected the pedestrians to great danger
 We cannot reasonably assume that the legislature intended that a
statute enacted for the safety of pedestrians must be observed
when observance would subject them to more imminent danger
 Statutes such as the one in question may be properly construed
as intended to apply only to ordinary situations. Thus, the statute
may be subject to an exception if disobedience is likely to
prevent rather than cause the accident that the statute seeks to
prevent.
Licensing Statutes – Licensing statutes are not ordinarily used to set standards of care.
Accordingly, failure to obtain a license is not negligence per se.
Proof of Negligence
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P has the burden to prove each element of a negligence cause of action – duty, breach,
causation, and damages – by a preponderance of the evidence.
The happening of an accident is never enough by itself to permit a jury to find that a D
behaved unreasonably.
How to Prove Breach of Duty: Kinds of Evidence
o Direct Evidence: Comes from personal knowledge or observation. There is no
need to draw any inferences from direct evidence. The only issues are credibility
and reliability. As a practical matter, direct evidence is rare in negligence cases.
Direct evidence includes:
 Witnesses: expert witnesses, eye witnesses
 documents/papers/records/files
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 physical evidence
 photos, objects of relevance, videotape, audiotape
o Circumstantial (indirect) Evidence: Most common form of evidence used by
Ps to establish D’s unreasonable conduct. Circumstantial evidence is proof that
requires the drawing of an inference from other facts to have probative value (ie,
from dog prints fresh in snow, we can draw the inference that a dog recently
passed by). Some circumstantial evidence is weak and will not be admitted bc it
would require the jury to speculate rather than to draw a reasonable inference.
 Res ipsa loquitur is a type of circumstantial evidence (discussed below)
Slip and Fall Cases and the Role of Constructive Notice
o In some contexts, such as slip and fall cases, special rules establish particularized
proof requirements for Ps relying on circumstantial evidence
o Constructive Notice: Although a defendant may not have actual notice of a
hazardous condition, the defendant has “constructive notice” of the condition if
the condition existed for a long enough time that D should have discovered it and
should have remedied it. To constitute constructive notice, a defect must be
visible and apparent and must be there for a sufficient time for the D to notice the
condition.
o Negri (plaintiff, appellant) v. Stop and Shop (defendant, respondent), Court of
Appeals of NY, 1985
 Facts: P slipped and fell on baby food that had splattered on the floor and
thus caused a slippery situation. A witness contends that she didn’t hear
any jars break in the 15-20 minutes prior to the accident, and that the
aisle had not been cleaned or inspected for up to 50 minutes prior to the
accident…some evidence thought it was up to 2 hours. Jury found for P;
appellate division reversed and dismissed the complaint. P appeals.
 Issue: Is the evidence sufficient to submit the case to the jury?
 Holding: Yes, there was sufficient evidence that the jury could find that
the broken baby food jars had been on the floor for an extended period of
time. During this time, D’s employees could have discovered and
remedied the situation. P made a prima facie case and the case should
not have been dismissed.
o Gordon (plaintiff, respondent) v. American Museum of Natural History
(defendant, appellant), Court of Appeals of NY, 1986
 Facts: P fell when he slipped on the front entrance steps of D’s museum.
The P claims to have slipped on a piece of waxed paper that came from
vendor D had contracted to sell food. P claims that the D should have
noticed paper and picked it up before someone fell on it.
 Issue: Is there sufficient evidence to submit the case to the jury?
 Holding: No. Problem with P’s case is not proving that the paper caused
the fall (causation), but rather the lack of proving constructive notice of
the condition.
 Reasoning: There is no evidence in the case indicating how long the
piece of paper might have been on the steps. This absence of evidence
offers no way to determine whether D’s employees should have had
constructive notice of its presence. In the absence of evidence on a
material issue, a court should not submit the case to the jury.
o Negri and Gordon may be distinguished by the amt of evidence offered by each P
15
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Res Ipsa Loquitur
 “The thing speaks for itself”
 Form of circumstantial evidence. Where res ipsa loquitor applies, it enables the jury
to infer that D acted unreasonably without any further proof.
 P usually has to prove by the preponderance of the evidence that D was negligent.
Res ipsa loquitur inverts this burden upon the D (usually because the D is the only
one that can prove non-negligence). This does not mean that the D automatically is
liable, just that the burden is upon him now. If P can establish a prima facie res ipsa
loquitur case, he need not prove by direct or other evidence the specific conduct of D
which was negligent. (Note, Understanding Torts says that in most jurisdictions
invocation of res ipsa does not shift burden to D, but rather jury may elect to infer
from res ipsa that D was unreasonable. However, it says that in some jurisdictions
res ipsa may raise presumption of negligence which the D must rebut, and in other
jurisdictions it raises a presumption and also shifts the ultimate burden of proof to D.
Clarify this).
 Res Ipsa is most important and has greatest impact in cases where P is unable to
make specific allegations about what the D did wrong.
 From the happening of the accident and the D’s relationship to it, the P seeks to
establish:
o 1. The harm causing event was probably due to negligence, and
o 2. The D was probably the culpable party
 Three elements to establish Res Ipsa Loquitor (Prosser):
o 1. Accident normally does not happen without negligence
o 2. D has exclusive control of the instrumentality or agency causing accident
o 3. Absence of voluntary action or contributory negligence by P
o P must prove by a preponderance of the evidence that each of these factors
exists
o It is not enough that the accident occurred to prove D’s breach of duty – P
must establish the above elements
o The exclusive control element:
 Taken literally, this posed a substantial hurdle to P. Now, even in
those jurisdictions that continue to adhere to the traditional elements
have liberalized the exclusive control element. It is usually enough
for the P to provide evidence showing that others were probably not
the responsible party and the defendant probably was.
o Absence of Contributory Negligence Element:
 Under traditional formulation, P was required to prove that his injury
was not due to any "voluntary act" by P, or that P's own conduct was
not a significant causative factor, or, most recently, that P was not
contributorily negligent. However, most jurisdictions recognize that
this element has lost much of its importance either because of the
advent of comparative fault or because the focus is encompassed
within the showing that the D has probable control.
 Note below, the 2d Restatement still requires that the P show that she
was not a responsible cause of the harm as part of establishing the
D’s control.
 2d Restatement Formulation §328D (somewhat diff. than comm. law):
o “It may be inferred that harm suffered by the P is caused by negligence of the
D when:
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(a) the event is of a kind which ordinarily does not occur in the
absence of negligence;
 (b) other responsible causes, including the conduct of the P and third
persons, are sufficiently eliminated by the evidence; and
 (c) the indicated negligence is within the scope of the D’s duty to the
P
o Comments to 2d Restatement states that res ipsa loquitur is based on “a basis
of past experience which reasonably permits the conclusion that such events
do not ordinarily occur unless someone has been negligent.”
o The 2d Restatement states forthrightly that “exclusive control is not essential
to a res ipsa loquitor case. Exclusive control is not a prerequisite
o Some jurisdictions have adopted this (rather cumbersome) approach
Proposed 3d Restatement (simplifies the res ipsa test):
o “the factfinder may infer the D has been negligent when the accident causing
the P’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 defendant is the relevant
member.”
Fairness of Res Ipsa:
o Pros for Plaintiff:
 For P, prevents people from having to take constant ridiculous
precautions (wearing a helmet every time they walk down the street)
 Also, places burden of proof on person most competent to figure out
what happened because the D usually has the evidentiary advantage.
 Also, D is in a better position to take precautions to make things
safer, but the P has no way to make things safer.
 The cheapest cost avoider is D
o Cons for Defendant:
 Since burden of persuasion is shifted to D from P, res ipsa may be
seen as unfair. Once res ipsa is established, D is presumed negligent
and has to prove innocence.
Cases:
o Byrne (plaintiff) v. Boadle (defendant), Court of Exchequer, 1863
 Facts: P was walking by the D’s flour factory and was hit from above
by a barrel of flour causing serious injuries. No one warned the P of
the impending accident, and P brought two witnesses that saw the
accident to prove the barrel came from D’s factory.
 Holding: P not bound to show that this is negligence, it is D’s job to
prove that he isn’t negligent.
 created Res Ipsa Loquitur
o McDougald (plaintiff, appellant) v. Perry (defendant, respondent), Supreme
Court of Florida, 1998
 Facts: In 1990 the P was driving behind a tractor-trailer that was
carrying a spare tire underneath its trailer. The spare was held to the
trailer by a cage that was slanted at an angle, and was chained by a
chain that was originally latched to the trailer but was bolted at the
present time. D did a check of the trailer prior to the trip, and
checked the chain, but did not check each link of the chain.
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o
Holding: Tire escaping from under truck is not an ordinary
occurrence, and it could not have occurred without the negligence of
the D.
Ybarra (plaintiff, appellant) v. Spangard (defendant, respondent), Supreme
Court of CA, 1944
 Facts: Plaintiff entered hospital for a surgical operation for an
appendectomy. The procedure was to be performed by Dr. Spangard
at a hospital owned by Dr. Swift. The P was generally anesthetized,
and woke up from the surgery with pain in his right shoulder that
was later paralyzed. This injury was caused by some injury or
trauma to his shoulder, most likely during the operation itself.
 Holding: Res ipsa loquitur applies in this case, and when a P
receives unusual injuries while unconscious, all Ds who had control
over his body should be called upon to meet the inference of
negligence by giving an explanation of their conduct. Res ipsa
loquitur applies in this case because:
 The number or relationship of the Ds does not alone
determine if res ipsa loquitur applies.
 It is enough that the plaintiff can show an injury resulting
from an external force applied to him while he was
unconscious on the table…he shouldn’t have to prove what
instrumentality caused the injury.
 Note: It is unlikely that this case will be extended much beyond its
facts. Typically, a P may not sue a whole class of potential Ds,
casting a wide net and forcing the Ds to exculpate themselves or pay
damages.
Professional Negligence/ Medical Malpractice
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Standard: In most jurisdictions, the standard of care of medical doctors (and
sometimes other professionals) is conclusively established by the customary or usual
practice of minimally qualified practitioners in that field of good standing.
Specialists Physicians or others who are certified specialists, or who hold themselves
out as specialists, are held to the standards of that specialty, but again, in most cases
the customary conduct of reasonably well-qualified specialists conclusively sets the
standard of care.
So, normal considerations of reasonableness do not apply in context of professional
negligence – custom determines the standard of care, and deviations from custom
establish a breach of duty, unlike in general, non professional cases where custom is
only evidence of a breach and is not determinative
Burden of Proof: falls on the P to prove as part of his prima facie case that the D
departed from the recognized standard of medical care exercised by other physicians
via testimony from expert witnesses. The profession has set its own standards for
conduct.
The jury may not consider the profession’s standard of conduct unreasonable
The Duty Requirement – Physical Injury
 Legal Principles:
18
o Positivism (W): go back in time to preexisting times and norms
and apply these rules today
o Realism (E): looking forward to how our decisions will affect
policy implications in the future
o Upward (N): looking to overarching natural law reasoning to
make court decisions
o Downward (S): courts look to public opinion as to how the case
should come out; base holding on what people would wan
The Duty Requirement: Nonphysical Harm:
Emotional Harm (Negligent Infliction of)
 Traditionally: Some physical impact or contact was required before the courts would
allow recovery by the plaintiff.
o Rationale: Gives the D reasonable grounds for declaring a defense and acts as a
deterrent to fraudulent claims.
 Today: As with the tort of intentional infliction of emotional distress, there seems to be a
move away from the requirement that there must be physical impact before the P can
recover.
o Foresesability test: Some courts that have rejected the requirement of a physical
impact have held that a defendant is bound to foresee psychic harm only when
such psychic harm reasonably could be expected to befall the ordinary sensitive
person (ordinary foreseeability test)
 See Gammon, below.
o Physical Manifestation requirement: UNLIKE intentional infliction of
emotional distress, physical manifestations from the emotional disturbance
caused by the defendant’s negligent act are still required for the plaintiff to be
entitled to any damages.
 Physical manifestations differ from physical impact. Physical
manifestations, which remain a requirement for recovery, are physical
effects of emotional distress. In contrast, physical impact, which is not
required, is a showing that in addition to the emotional distress, the P
suffered direct physical injury as a result of the D’s conduct. Courts are
moving away from requiring physical injury.
 Gammon (plaintiff, appellant) v. Osteopathic Hospital of Maine (defendant,
respondent), Supreme Judicial Court of Maine, 1987
o Facts: P’s father died in Ds hospital. When asked by the P to send the personal
effects of the deceased home, the D mistakenly sent a severed leg from another
body. The P thought it was the leg of his father and suffered severe emotional
distress that caused. P began having nightmares, his personality was affected,
and his relationship with his wife and children deteriorated.
o Issue: Whether a jury might find D liable for negligent infliction of emotional
distress in absence of physical injury
o Holding: Yes
 D should have foreseen that mental distress would result from their actions,
and a jury might find that the D did not exercise reasonable care to prevent
this distress.
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o

 A person’s psychic well-being is as much entitled to legal protection as is his
physical well-being.
Reasoning:
 Previously have required that Ps show physical injury resulting from
emotional distress, thus preventing spurious claims – this arbitrary
requirement should not bar legitimate claims from compensation for severe
emotional distress
 Adequate to rely on trial process to protect against fraudulent claims
 Also adequate to use traditional tort principles of reasonable person and
foreseeability to provide protection against spurious claims.
 D bound to foresee psychic harm only when such harm reasonably could be
expected to befall the ordinary sensitive person
 Exceptional vulnerability of family of recent decedents makes it highly
probable that emotional distress will result from mishandling the body, so
jury could find that D should have reasonably foreseen that mental distress
would result from his negligence
Test for Bystander Recovery in cases of Negligent Infliction of ED:
o Portee (plaintiff, appellant) v. Jaffee (defendant, respondent), SC of New Jersey,
1980
 Facts: P’s son became trapped in the elevator between the elevator doors
and the walls of the shaft. The elevator began operating, and dragged the
boy to the third floor. The mother watched as the police tried to free the boy
for several hours. The boy suffered internal injuries and multiple fractures,
and died before he could be extracted. The mother attempted suicide and
became severely depressed. She required extensive psychotherapy and
counseling. P sued D and the companies involved in designing and
maintaining the elevator.
 Issue: Whether liability should exist where there was no potential for
personal physical injury to P, but distress resulted from perceiving the
negligently inflicted injuries of another and such emotional injury was
foreseeable.
 Holding: P should be allowed compensation
o Three factors to determine whether an emotional injury would be
compensable because “foreseeable” (from Dillon v. Legg):
1. Whether plaintiff was located near the scene of the accident
as contrasted with one who was a distance away from it
2. Whether the shock resulted from a direct emotional impact
upon plaintiff from the sensory and contemporaneous
observance of the accident, as contrasted with learning of the
accident from others after its occurrence
3. Whether plaintiff and the victim were closely related, as
contrasted with an absence of any relationship or the
presence of only a distant relationship (this is the most
crucial factor)
o Court adopts the Dillon test and adds that the negligence must result
in death or serious physical injury of another. Court adopts following
test for bystander recovery that P must prove:
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1. The death or serious physical injury of another caused by
defendant’s negligence
2. A marital or intimate familial relationship between plaintiff
and the injured person
3. Observation of the death or injury at the scene of the
accident
4. Resulting severe emotional distress
Note: So, tort law allows recovery both for wrongful death of son (his
injury) AND emotional injury to mother, as long as it meets the above
criteria.
Direct and indirect injuries
o Hospitals do not owe a direct duty to the parents of hospitalized children, only to
the hospitalized children themselves
 (Kalina v. General Hospital – plaintiffs, an observant Jewish couple, sue
hospital bc a Dr., not a mohel, circumcised baby on fourth instead of eighth
day, thus violating religious laws. Ps sue for emotional distress, court
dismisses on ground that Ps are “interested bystanders to whom no duty was
owed”).
o Johnson (plaintiff, respondent) v. Jamaica Hospital (defendant, appellant),
Court of Appeals of NY, 1984
 Facts: Ps daughter, Kawana, was born in Ds hospital. When P returned to
the hospital a week later, her daughter had been abducted. Police located and
returned the baby 4.5 months later. P sued for emotional distress she
underwent while the police were searching for her daughter. A separate suit
was filed on behalf of Kawana.
 Issue: May Ps recover damages from D for mental or emotional distress
suffered as a result of the direct injury inflicted upon their daughter by Ds
breach of duty of care to her? Does D have a duty of care to parents?
 Holding: Ps parents cannot sue for emotional distress they have suffered as a
result of direct injury inflicted upon their daughter
Economic Harm (Negligent Infliction of)
 In General:
o In these cases, there is no personal injury or property damage to the plaintiff.
o Tort law has been reluctant to extend liability for negligent conduct that results
solely in economic harm to P. Recovery for those losses may be obtained, but
courts usually require a strict showing of foreseeable plaintiffs and foreseeable
harm.
 Foreseeable Plaintiff: In order for a P to recover for a negligently caused economic
harm, there must be proof that a duty was owed specifically to that plaintiff.
 532 Madison Ave Gourmet Foods, Inc. v. Finlandia Center, Inc.: Defendant’s
building collapsed due to negligence during a construction project. The collapse closed
many streets in Manhattan and forced the plaintiff to close its doors for weeks. The
court finds that a landowner who engages in activities that may cause injury to persons
on adjoining premises surely owes those persons a duty to take reasonable precautions to
avoid injuring them. However, a landowner does not hold a duty towards an entire
neighborhood to protect them from purely economic harm.
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Rationale:
o Rationale for nonrecovery without physical injuries or property damage:
 Requiring damage or injury is able to limit the foreseeable consequences
of negligent conduct
 Acts as a clamp on otherwise boundless liability because it proves the
link between the negligent act and the plaintiff
o Rationale for recovery without physical injuries or property damage:
 The above fear of limitless liability is only a limitation on, not denial of,
liability.
 Contemporary tort doctrine says that wronged persons should be
compensated for their injuries, and those that made the incident happen
should bear the cost of their tortious conduct.
Wrongful Pregnancy/Contraception
 Recovery Allowed: Most jurisdictions have considered negligent sterilization a tort for
which recovery would be allowed under state law. When D's negligence fails to prevent
conception resulting in the birth of an unwanted but healthy child, most courts allow the
parents to recover, but the amount of damages varies.
 Amount of Damages:
o Most jurisdictions adopt limited recovery rule, allowing compensation to
plaintiffs for medical expenses of the ineffective sterilization procedure, medical
and hospital costs of the pregnancy, expense of subsequent sterilization
procedure, the costs of pre and post-natal care, loss of wages, and sometimes for
emotional distress arising out of the unwanted pregnancy.
o Some courts have allowed, in addition, child-rearing expenses, most requiring
that such expenses be offset by the accompanying financial and emotional
benefits to the parents.
 Benefit to Offset Harm Rule: When the Ds tortious conduct has caused harm to
the P and in so doing has created a special benefit to the P harmed, the value of
benefit is considered in mitigation of damages, to the extent that is equitable
(Restatement §920)
o A very limited number of jurisdictions adopt a full recovery rule, without
offsetting the economic or emotional benefits to be derived from having a healthy
child.
 Emerson (plaintiff) v. Magendantz (defendant), SC of Rhode Island, 1997
o Facts: After the birth of their first child, the Emersons decided to prevent future
births for economic reasons by the wife getting sterilized. They hired the D to do the
surgical tubal ligation. Five months later, the wife was confirmed pregnant and gave
birth 9 months later to a daughter, Kristen, who suffers from congenital birth defects.
o Issues:
1. Is there a cause of action when a physician negligently performs a sterilization
procedure and the patient subsequently becomes pregnant and delivers a child from
that pregnancy?
2. If so, what is the measure of damages?
o Holding:
 Issue 1: Yes, negligent performance of a sterilization procedure is a tort for
which recovery may be allowed
 Issue 2: Adopts a modified limited-recovery rule for healthy children.
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o
o
For a healthy child:
o Court adopts a modified limited recovery rule, allowing compensations
for limited recovery listed above BUT NOT for emotional distress
arising from unwanted pregnancy of healthy child. Since it is a version
of the limited recovery rule, damages do not include child rearing
expenses of healthy children.
For a mentally or physically handicapped child:
o However, in case of physically or mentally handicapped child, special
and medical and educational expenses BEYOND normal rearing costs
should be allowed
o When physician placed on notice in performing a sterilization procedure
that the parents have a reasonable expectation of giving birth to a
physically or mentally handicapped child, or if the physician should be
placed on notice by reason of his medical expertise, the entire cost of
raising such a child would be within the scope of recoverable damages.
o Extraordinary costs of raising a handicapped child would not end when
child reached majority, and nor would physician’s liability at that point
o In event of the birth of a physically or mentally handicapped child, the
parents should be entitled to compensation for emotional distress
Reasoning: Overwhelming majority of jurisdictions allow tort liability for negligent
performance of a sterilization procedure. Court chooses to adopt modified limitedrecovery rule for healthy child because:
o No compensation for emotional damages for healthy child because not
sure if this is a loss to parents. Court says healthy child is a “joy or
benefit” to parents even if they didn’t want the kid. (Dissent attacks this,
saying it is wrong to assume that the child is necessarily a “joy” to
parents. Says this is a convenient device by court to support holding)
o No rearing costs because the parents did decide to keep the child instead
of putting it up for adoption. Fact that parents decided to forgo option of
adoption or abortion is persuasive evidence that the parents consider the
benefit of retaining the child to outweigh the economic costs of child
rearing
Concurrence and dissent: The true nature of this action is medical malpractice, and
the patient should be allowed to recover for all of the injuries and damages that can
be proven to have been reasonably foreseeable and proximately caused by the
tortfeasor’s negligence.
Defenses
Introduction
 Traditionally, there were only two defenses to negligence:
o Contributory negligence
o Assumption of Risk
 Both constituted complete defenses and completely barred the plaintiff from recovery.
 In all but a handful of states, contributory negligence has been converted by statute or
judicial ruling into some form of comparative negligence.
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Unlike contributory negligence, comparative negligence need not be a complete bar to
the plaintiff’s recovery, but acts only as a partial bar resulting in a percentage deduction
from otherwise recoverable damages.
The majority trend is to merge implied assumption of risk (assumption of risk implied by
P’s conduct) into comparative negligence.
Some states retain assumption of risk as a complete defense, some merge certain types of
implied assumption of risk into comparative negligence and retain parts as a complete
defense, and others have abolished assumption of risk completely.
Traditionally, assumption of risk, but not contributory negligence, was a defense to strict
liability.
o Where assumption of risk and contributory negligence are both absorbed into
comparative negligence, some jurisdictions allow comparative negligence to be a
partial defense to strict liability
In addition, immunities protect some defendants from tort liability (see sections above)
Assumption of Risk
Defined:
Strict Liability
Introduction:
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Summary of Tort Categories and the Relevance of Fault:
Intentional Tort
Proof of “intent” (i.e. knowledge or
purpose) causing injury
Negligence
Proof of “fault” (breach of duty of care)
causing injury
Strict Liability
Proof of D’s causal role in injury
 Abnormally dangerous activities
 Rylands – Perils Escaping/Nonnatural water
“Strict” Products Liability
Proof of D’s role in manufacturing or
sale of product that injures P due to defective
design or manufacturing or labeling flaw
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Fault
Fault (However, a D may be subject to liability
under vicarious liability although he himself is
not at fault).
No Fault
Quasi no fault
Used to be considered “strict” liability, but
with Third Restatement, dropped the strict and
now just called products liability. If you can
show that your product was made or sold in a
reasonable manner, it is a defense. So, not
strict liability.
Theoretical Underpinnings of Strict Liability:
o From the earliest common law, there have been recognized discrete subsets of
conduct for which, should injury or damage occur, the actor will be responsible
without regard to due care or fault. In other words, the actor is strictly liable.
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o
o
In these well-defined categories of conduct, usually covering high risk activities, a
person will be held liable in damages for injury or loss even if he exercised all
possible care to prevent it.
Why impose strict liability on these activities?
 King: Five goals of strict liability:
 loss-spreading – allows manufacturer to spread loss to its consumers
through increasing prices; insurance spreads losses (manufacturer
pays for liability insurance and thus spreads liability over insurance
pool)
 loss avoidance/risk reduction – reduces the severity and frequency of
accidents
 loss allocation/internalization – liable firm internalizes cost; have
firm realistically determine what the cost of their production is,
including the cost of the potential damages the product will cause
(loss spreading is one of the ways to internalize this added cost of
production)
 administrative efficiency – less time spent in deciding strict
negligence cases b/c it takes time and money to prove negligence
cases (expert witnesses, etc…)
 fairness – b/t two innocent parties, the initiator who benefits from the
ultimately injurious activity should be liable
 Posner: One purpose of imposing strict liability for high risk activities is to
reduce the frequency with which actors choose to pursue these activities
 In certain activities, harm cannot be prevented by exercising due
care.
 Rather, these activities can better be avoided, or at least the
consequences minimized, by relocating, changing, or reducing the
level or amount of activity giving rise to the accident.
 The greater the risk of an accident and the costs of an accident if one
occurs, the more we want the actor to consider the possibility of
making accident reducing activity changes and the stronger the case
for strict liability.
 Fletcher: Rationale for strict liability focuses on the non-reciprocal nature of
the risks to which the defendant’s conduct exposes the plaintiff.
 If the plaintiff (P1) is driving down the road, the risk a passing
motorist creates for P1 is roughly equal to the risk the plaintiff poses
to the other driver.
o Thus, their risks are conceptually reciprocal
o In such a case, negligence law suffices to mediate liability
for any accident costs
 If, on the other hand, P2 passes a blasting site that is part of a
highway widening project, and the concussion of a blast shatters his
rear window, P2’s conduct has posed no measurable risk when
compared to the risk created by the use of the explosives to blast
rock near a traveled road.
 The non-reciprocal nature of the risk, Fletcher argues, commends
imposition of strict liability
 Acc. to Fletcher, we should provide compensation for the P because
it is the right thing to do. To Fletcher, the aim of courts is not to
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create and apply efficiency rules (as Calibresi suggests) but rather
reciprocity rules.
This theory of reciprocity has gradually been replaced in courts by
the idea of reasonableness. There was a paradigm shift in courts, as
negligence became more dominant than strict liability principles.
Acc to Fletcher, courts began to care more about efficiency, cost
reduction, and utility than about the moral value of fairness.
o For example, the Coase Theorem: In the absence of
transaction costs, parties will negotiate to reach an efficient
outcome. When there are transaction costs and it is hard to
bargain, then legal rules can provide a context to reach an
efficient outcome
Fletcher is unclear about why this shift happened.
Doctrinal Development
 Initially, courts imposed strict liability only in isolated cases and limited categories of
activity, such as escaping fires, wild animals, and straying cattle.
 American tort law was respectful in giving landowners and entrepreneurs leeway in their
activities and so really limited the application of strict liability.
 Courts have ventured beyond such cases to fashion a more comprehensive principle of
liability without fault.
 However two major categories persist:
o Animals
o Abnormally Dangerous Behavior
Animals
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Trespassing Animals: The general rule is that the owner of all animals, including
domesticated ones (excluding cats and dogs) that are likely to stray and that do stray
onto the land of another is strictly liable for any damage caused by such animals.
Wild Animals: The possessor of wild animals (animals not customarily domesticated
in that region) is strictly liable for any harm done by the animal if such harm results
from its normally dangerous propensities. The keeper of a wild animal is required to
know the dangerous properties normal to the class to which the animal belongs.
However, where animals are kept under a public duty for the public benefit (ie, zoos),
strict liability does not apply; negligence must be shown, although a high degree of care
will be required.
Known dangerous domestic animals: One who possesses or harbors an animal
customarily domesticated in that region is strictly liable for other harm only if (a) he
knew or should have known that the animal had a harmful or dangerous propensity or
trait and (b) that particular trait or propensity was the cause of the harm. Otherwise he is
liable only if he was negligent.
o “Dog Bite” Statutes: “Dog bite” statutes have been enacted in several
jurisdictions. Basically these statutes reversed the common law rule that every
dog was entitled to one bite before it became known to be an animal with
dangerous propensities. As a general rule, the possessor of a dog who knows or
has reason to know that the dog has on occasion exhibited a tendency to attack is
strictly liable for all damage or ham caused by the animal, unless the plaintiff
was a trespasser or was committing a tort.
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Abnormally Dangerous Activities
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Unnatural Conditions on Land:
Released Peril Doctrine: the person who for his own purposes brings on his land and
collects and keeps 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 (strictly liable) for all the
damage which is the natural consequence of its escape, regardless of fault
o Defendant can be excused only by showing that the harm was actually the
plaintiff’s fault or that it resulted from an act of God or vis major
o Fletcher (plaintiff, appellant) v. Rylands (defendant, respondent), Exchequer
Chamber, 1866
 Facts: Rylands was a tenant operating a cotton mill, Fletcher was a tenant
operating a coal mine. Rylands had a water reservoir built on his land by
competent engineers, neither of whom knew that Ryland had mine shafts
running near the reservoir area that were abandoned. The abandoned coal mine
shafts weakened the reservoir and permitted the flow of water onto P’s
property, into the active shafts under Fletcher’s land.
 Issue: Does a person who brings on his land something that will cause harm to
another if it escapes have an absolute duty to prevent its escape?
 Holding: Yes. This case is distinguishable from traffic and other cases that
require proof of a defendant’s negligence for recovery. They involve situations
where people have subjected themselves to some inevitable risk. Here there is
no ground for saying that P took upon himself any risk arising from the use to
which D chose to put his land (This sounds like an early “reciprocity”
argument, similar to Prof. Fletcher’s).
Non-natural doctrine (Rylands Rule): If a person uses his land for an artificial or nonnatural use, then he can be held strictly liable for damage resulting therefrom without
regard for fault.
o Fletcher (plaintiff, appellant) v. Rylands (defendant, respondent), House of
Lords, 1868 (Fletcher II)
 Facts: Same as above
 Issue: Is a person who makes a nonnatural use of his land strictly liable for any
damages that result to another’s property?
 Held: Yes. An owner of land may use the land for any purpose for which it
might, in the ordinary course of enjoyment, be used. Thus, if the water had
accumulated naturally and run off onto adjoining land, there could be no
complaint. Nevertheless, a landowner who introduces onto the land that which,
in its natural condition, was not present, does so at the peril of absolute liability
for consequences arising therefrom.
America didn’t recognize these principles to begin with b/c of a fear that strict liability
would impede industrialization – courts believed that if you have something on your
land that causes harm to someone else by its own volition, the person harmed is
compensated through the general good produced by the object
Right to safety is greater than the right to an owner’s particular usage on his property:
Sullivan (plaintiff, respondent) v. Dunham (defendant, appellant), Court of Appeals of
NY, 1900
o Facts: Two men were conducting blasting operations for Dunham (D). They
were directed to dynamite a tree on D’s land. The explosion threw a piece of the
wood onto a highway, and killed a woman. The deceased’s representative,
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Sullivan (P), sued for the injury. The trial court instructed that negligence need
not be proven, and P received a verdict.
o Issue: Is strict liability appropriate for injuries caused by blasting?
o Holding: Yes, defendant should be held strictly liable
o Reasoning: Although D had the right to conduct the blasting on his property, the
deceased had a right to be on the highway. Her right to safety as greater than D’s
property right. Here, D’s acts were the direct cause of the death. Strict liability
will apply for such direct results of a dangerous activity. If the harm had been
indirect, such as an injury from shock or concussion from the explosion,
negligence would need to be shown. This holding is justified by the loss
avoidance and fairness arguments for strict liability
o Comment: The distinction between strict liability for direct injury and
negligence for concussion injury has since been abolished in New York.
 Losee v. Buchanan – court refused to hold manufacturer of boiler that exploded liable for
the resulting damage b/c it would hamper the progress of an industrializing society
o Distinguishing from Sullivan: In Losee, the activity that proximately caused the
injury was not voluntary, in Sullivan the activity was voluntary
 2d Restatement:
o The Second Restatement allows strict liability for "abnormally dangerous
activities" (formerly called "ultrahazardous" activities). It is not necessary that
the activity be conducted on D's land, or that the harm be caused by something
which "escapes." §519
o RST §520: one who carries on an abnormally dangerous activity is subject to
liability for harm resulting from the activity, although he had exercised the
utmost care to prevent the harm. Rather than declaring the elements that must be
met, the 2d Restatement lists six factors that should be balanced when
determining if an activity is abnormally dangerous and therefore subject to strict
liability:
1. Whether the activity involves a high degree of risk
2. Whether the gravity of that risk is high
3. Whether the risk can be eliminated with reasonable care
4. Whether the activity is not a matter of common usage
5. Whether the activity is appropriate to the place where it is being carried
out; and
6. Whether the value to the community is outweighed by the danger
o Airplanes are held strictly liable for the damage they cause if they fall from the
sky (§520A)
o However, common carriers are usually not subject to strict liability for the
carriage of materials that make the transportation of them abnormally dangerous,
because a common carrier cannot refuse service to a shipper of a lawful
commodity (RST §521)
o Indiana Harbor Belt RR (plaintiff, respondent) v. American Cyanamid Co.
(defendant, appellant), US Court of Appeals, 7th Circuit, 1990
 Facts: ACC was shipping 20K gallons of acrylonitrile from LA to NJ in a RR
car leased from the North American Car Corporation. MO Pacific RR picked
up the car and transported it to Chicago where it needed to be switched to
Conrail for the last part of the journey. The car was switched in a switch
station owned by P, and the car began to leak 5K gallons of the hazardous
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chemical onto the surrounding area causing the area to be evacuated and the
IEPA to order a $1 million clean-up. P sues D for these costs.
 Issue: Should the shipper of a hazardous chemical by rail through a
metropolitan area be strictly liable for the consequences of a spill or other
accident to the shipment en route?
 Holding: No, this is not a case for strict liability – it is a case of negligence.
 Reasoning:
 Using the Restatement §520 as a basis for the application of strict
liability, there is no reason for believing that a negligence regime is not
perfectly adequate to remedy and deter an accidental spilling of
acrylonitrile from rail cars at reasonable cost.
 The damage was caused not by the inherent properties of the chemical,
but by lack of due (average) care by the car company or RR company –
things that could be discouraged by negligence charge.
 Accidents resulting from a lack of care can be prevented by taking care,
and when a lack of care can be demonstrated in court, such accidents are
deterred adequately by the threat of negligence liability
 Indeed, an exercise of greater case would have prevented the accident
more efficiently than would a change in the activity of transporting the
chemical altogether. Accordingly, this is not an apt case for imposing
strict liability.
Strict Liability v. Negligence: When Unintended Injury Should Result in Strict
Liability:
o Hammontree (appellant, plaintiff) v. Jenner (defendant, respondent), Court of
Appeal of CA, 1971
 Facts: Jenner (D) had suffered a seizure in 1952 and was subsequently
diagnosed as an epileptic. He was given medication and his seizures
were brought under control. Beginning in 1955 or 1956, D had to report
his condition to the Department of Motor Vehicles on a period basis.
Since his seizures were under control, he was allowed to keep his
driver’s license. In 1967, D had a seizure while driving, lost control of
his car, hit the Hammontrees’ shop, and struck Maxine Hammontree. Ps
sued for personal injury and property damage. Ps wanted the jury to be
instructed on strict liability, but the trial court refused the strict liaibility
instruction and instead instructed on negligence. The jury found for D,
and Ps appeal
 Issue: Is strict liability an appropriate theory for recovery when sudden
illness renders an automobile driver unconscious?
 P’s Arg: Application of Product Liability: New product liability
standards allow strict liability to be imposed against a manufacturer
when a product defect harms a purchaser of the product. This is
analogous to the automobile accident in that the driver was the only
person who could know what his ailment could have done while driving
a car (they are the only ones that know the risk), thus the liability should
be predicated on strict liability. For a product, one should not have to
inspect the product before usage, and the common bystander should not
always be worried about a random car hitting them. In this way, Allen
points out that lawyers frequently try to shape and mould tort law in new
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o
and innovative ways. Unfortunately for Ps, the court did not agree with
this argument.
 Holding: No, when products cause injury, strict liability is an appropriate
theory. The manufacturers make a profit from sales and should pay for
any injuries. Those costs are the costs of doing business. The theory of
negligence, however, is adequate for auto accidents. Drivers share the
roads and should allocate damages based on fault. Since D used
reasonable care to control his seizures, negligence has not been shown.
“Strict Liability Features” In Negligence Law:
1. Res Ipsa Doctrine
2. Vicarious Liability/ Respondeat Superior
3. Mental Illness; Small Children
Defenses to Strict Liability:
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The government is generally immune from strict liability under the FTCA
Assumption of risk may be asserted as a defense against a plaintiff who voluntarily
encounters a known danger and by his conduct expressly or impliedly consents to the
risk of the danger. The fact that the plaintiff may have failed to use reasonable care for
her own protection is irrelevant.
o For example, if P speeds through an area where D is blasting so quickly that she
does not have the opportunity to read the warning signs D posted, P will get full
recovery if injured due to D’s blasting. This is so even if it was unreasonable for
P to be speeding to the point she did not read the warning signs.
o However, if O read the warning signs and elected to ignore them, she will likely
have assumed the risk based on a showing that P knew the danger, understood
the risks involved, and elected to encounter it voluntarily.
Contributory negligence is not a defense to strict liability unless the plaintiff’s
negligence was the cause of the ultrahazardous activity. This is because the liability is
not based on negligence or fault and so the P’s contributory negligence should not bar
the D’s liability. unless P knowingly and unreasonably subjects himself to the risks of
harm from the activity
Comparative negligence: Some courts in comparative negligence jurisdictions have
been willing to reduce a plaintiff’s recovery to reflect the amount that his fault
contributed to the injury.
Injury within the risk created: For strict liability to be imposed, the injury must have
been within the group of risks that made the activity ultrahazardous
o Different Risk: In Foster v. Preston Mill Co., the D conducted blasting
operations. The plaintiff incurred damage when his minks became frightened by
the blasts and killed their kittens. Since the danger of flying debris made the
blasting ultrahazardous and since the resulting harm was not from that which
makes the activity ultrahazardous, the court did not impose strict liability.
o Unforeseeable intervening cause: Even where the damage is within the
foreseeable risk, the majority of courts hold that there is no strict liability if it was
brought about by an unforeseeable intervening cause, eg, an act of God or the
intentional acts of third persons (aka there was no proximate cause).
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Absolute and Vicarious Liability
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Respondeat Superior: The most frequent example of vicarious liability is a situation
where employers are held liable under a theory of respondeat superior for the actions of
employees within the scope of their employment.
o Employers who have neither acted nor intended the action may be liable for their
employees’ negligence. This usually turns on whether activities are “within the
scope of employment” given facts of particular case
 Note: The “coming and going” rule generally excludes imposing
liability on employers for ordinary commuting by employees unless
special risks are created)
o Respondeat Superior is a “strict liability” feature in negligence law.
o Rule: Birkner criteria for determining whether an employee is acting within or
outside the objectives of employment:
1. the employee must be engaged in activities for which the employer has hired
the employee, not for personal endeavors.
2. the employee’s conduct must occur within the hours and spatial boundaries
of the employment.
3. the employee’s conduct must be motivated, at least in part, by the purpose of
serving the employer’s interest.
o Christensen (plaintiff, appellant) v. Swanson et al (defendant, respondent),
Supreme Court of Utah, 1994
Facts: Swenson is an employee for the Burns corporation (defendant) and was
working at the Geneva Steel Plant as a security gate guard. The guards at the
gates work continuous 8-hour shifts but occasionally need to take 10-15
minute breaks for the restroom and to get meals, which are always eaten on
the job. Swenson left her post to get a cup of soup she ordered from the
Frontier Café (a local restaurant no more than 250 yards from her gate) via a
phone inside her post, alongside which a menu from the restaurant was
posted. She intended to return to her post within the 10-15 minute break time
that was permitted as a paid break. However, after leaving the Frontier Café,
the defendant hit the plaintiff’s motorcycle injuring several people.
Holding: Reasonable minds could differ as to if Swanson was operating within
the scope of her job when the accident occurred, thus summary judgment of
the lower court is inappropriate.
o Vicarious liability is also applicable to intentional torts when the employee’s
acts are reasonably connected with the employment
o Employers cannot insulate themselves from liability by simply enacting safety
procedures or even taking all possible precautions, because despite such
precautions, they are ultimately responsible for the acts of their employees within
the scope of employment.
o Employers are generally not liable for the torts of independent contractors, with
exceptions for public policy reasons in situations involving non-delegable duties
and inherently dangerous activities or when employer closely supervises the
contractor’s day to day activities.
Partners and those participating in temporary joint enterprises are vicariously liable for
torts committed by each other when acting in furtherance of the partnership or enterprise
Parents and Children: Common law does not impose vicarious liability upon parents for
torts committed by their children.
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o
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However, many states have enacted statutes imposing limited liability in
situations where children intentionally harm others or their property.
Automobile owners: Not liable for the negligence of a permitted user under the common
law.
Liability for Defective Products:
Intentionally Caused Injuries
Intentional Torts: Battery,
Assault, False Imprisonment,
Intentional Infliction of
Emotional Distress, Trespass,
Conversion, Etc.
Accidental Injury Cases – Not
Caused by Defective Product
A. Negligence.
B. Strict Liability – E.G.
blasting/ “ultra
hazardous activities,”
wild animals, “bad”
domesticated animals
Defective Products Cases
o
o
o
Breach of Warranty;
Breach of Implied
Warranty of
Merchantability
Negligence
Products Liability
.
Introduction to Products Liability:
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“Products liability” refers broadly to the decisional and statutory law permitting money
damages from manufacturers and sellers of defective products that injure persons or
property.
The four principle doctrines underlying products liability suits have been:
o Negligence
o Breach of one or more warranties
o Liability without fault (i.e., strict products liability)
o Misrepresentation
The Restatement (Third) of Torts: Product Liability (aka Products Liability Restatement)
proposes consolidation of these doctrines into one unitary products liability theory based
upon the nature of the product defect, which is to say: Manufacturing defect, Design
defect, or Warnings (instructions) defect
o The central virtue of the Products Liability Restatement is that its liability rules
take into account the reality that the factual situations accounting for practically
all claims in products liability are the result of one of the above three defects.
Prerequisite of Sale of Product: Irrespective of whether a products liability claim is
brought in negligence, strict products liability, warranty, misrepresentation, or the
Products Liability Restatement, the claim is predicated upon a sale of a product
o However, in limited instances, non-sale transactions have been subject to
products liability claims when the position or expertise of the defendant place
him in the effective role of a seller, such as, for example, lessors of new
automobiles.
Recoverable Damages: The successful products liability plaintiff may recover all of his
or her proved compensatory damages, including both economic and non-economic harm.
Economic Damages Independent of Defective Product: With regard to economic
damages, there exists the limitation that a plaintiff may not recover for economic loss
unless there is also damage or injury to a person or to property other than the defective
product itself.
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History of Products Liability:
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In early English common law, liability for defective products was grounded in either tort
or contract.
o Tort actions: Originally limited to cases of deceit where there was a breach of an
assumed duty.
o Contract actions: By the beginning of the 19th century, the plaintiff’s action
gained substantial recognition in contract, but only those injured plaintiffs in
“privity of contract” with the manufacturer or supplier of the defective product
were permitted a cause of action against them (Winterbottom v. Wright ). .
Privity Requirement: So, prior to MacPherson, the general rule was that unless the
injured plaintiff was the buyer, no recovery could be had, either in tort or in contract, no
matter how negligent the seller’s or the manufacturer’s conduct. On the tort side, the
early cases generally involved defects known to the seller but undisclosed to the buyer.
Gradually, the courts began to make cracks in the privity wall, moving from contracts to
torts, and accepting a theory that manufacturers and suppliers of products owe a duty of
care with respect to the condition of the product.
Breach of this duty (i.e. supplying the plaintiff with a defective product) was held to be
negligence.
As the crack widened, the courts began to extend this duty to nonpurchasers.
At first, special relationships were required between the purchaser and the injured
nonpurchaser (e.g. husband-wife, family members, employer-employee, etc.)
The birth of products liability can be dated at 1916, with MacPherson v. Buick Motor Co.
Negligence
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In general, ordinary negligence principles apply to product liability actions brought on a
negligence theory.
McPherson Rule: If a reasonable person would have foreseen that the product would
create a risk of harm to human life or limb if not carefully made or supplied, the
manufacturer and supplier are under a duty to all foreseeable users to exercise
reasonable care in the manufacture and supply of the product.
MacPherson (plaintiff, respondent) v. Buick Motor Co. (defendant, appellant), Court
of Appeals of NY, 1916
o Facts: MacPherson (P) purchased a Buick from a dealer, who had purchased the
car from Buick Motor Company (D), the manufacturer. While P was driving the
car, a wheel with defective wooden spokes collapsed and P was thrown out and
injured. The wheel was not made by D, but was purchased from a subcontractor.
Evidence indicated that D could have discovered the defect by reasonable
inspection, which was omitted.
o Issue: Is privity between the manufacturer and the plaintiff necessary for the
plaintiff to be able to recover against the manufacturer?
o Holding: No.
o Reasoning:
 If the nature of a product is such that it is reasonably certain to place life
and limb in peril when negligently made, it is a thing of danger
 If the manufacturer knows or can reasonably foresee that it will be used
by persons other than the immediate purchaser (supplier) without new
tests, then, irrespective of contract, the manufacturer is under a duty to
make it carefully.
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When it comes to liability of products, manufactures will be liable even
in the absence of privity of contract. Cannot escape liability when there
is a long chain of possession before reaching the user. So, in this case,
the Manufacturer (Buick) has a contract with a retailer, who sells to the
purchaser, who may or may not be the user (user could be friends,
family, etc.). The manufacturer is still liable to the user, even though the
direct contract was with the retailer.
Extensions of the MacPherson Rule: The MacPherson rule has been further
developed such that buyers, users, consumers, or bystanders in proximity to an
unreasonably dangerous product and injured in person or in property by its dangerous
propensities may recover in damages from the manufacturer or intermediate seller.
Types of defendants that may be held negligently liable:
o Manufacturers: Negligence in the manufacturing process includes negligent
design (§398); errors or omissions during production (§395); failure to properly
test or inspect; unsafe containers or packaging; inadequate warnings or
directions for use; and misrepresentation. A subsequent seller's failure to inspect
does not relieve the manufacturer of liability for his negligence (§396).
o Subsequent Sellers: Subsequent sellers (distributors, retailers) may be negligent
in failing to warn of the existence of an unsafe condition or otherwise protect the
user (§401). Under the majority view, such seller is liable only for dangers of
which he knew or had reason to know; he has no duty to inspect or test the
product to discover latent dangers (§402).
o Other Suppliers: Lessors and others who furnish chattels commercially are liable
for negligence in furnishing an unsafe chattel; their duty includes a duty to
inspect (§§391-393, 408). Other suppliers donors, gratuitous bailors are subject
to liability if they knew or had reason to know that the product was unsafe (§388,
389, 405). And D may be liable for furnishing a chattel to one whom he knows
or has reason to know is incompetent to use it safely (§390).
o Independent Contractors: Contractors who make, rebuild, or repair a chattel are
subject to similar rules (§403, 404).
o Ostensible Suppliers: One who puts out as his own a chattel manufactured by
another is subject to the same liability as though he were its manufacturer (§400).
Breach of Warranty
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Warranty only replaces the product or compensates for faulty product. If the product
causes you injury, warranty does not cover those damages.
Traditionally based on privity – you buy the car from a dealer and the dealer gives you a
warranty, but privity is no longer required, and the liability is strict:
o Warranties running with the chattel – wherever the chattel goes, the warranty
follows despite the lack of warranty agreement b/t the parties
o Third-party beneficiaries: suppose a friend borrows the car and then gets in a
wreck – b/c there is a contract b/t seller and buyer, there is also a contract b/t
third parties that use the product (very common in contract law)
o Assignment: created a fiction of assignment when you allow a friend to use the
car, you assign your rights to the friend
Types of Warranties (from UCC):
o Express (§ 2 313): Express warranties are promissory assertions of fact or
descriptions which are part of the basis of the bargain.
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o
o
Implied Warranty of Merchantability (§ 2 314): The implied warranty of
merchantability implies minimum standards of quality including safety. (D must
be a "merchant" with respect to goods of that kind); a UCC standard that
warrants products will be safe for consumption for the general reason why it’s
used
Implied Warranty of Fitness for a Particular Purpose (§ 2 315): This warranty
arises when the buyer relies on the seller to furnish goods suitable for a particular
specified use, but the product doesn’t meet this purpose
Strict Tort Products Liability
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Obstacles Posed by Negligence and Warranty Theories of Recovery:
o Plaintiffs seeking remedy for defective products under a theory of negligence
encountered serious obstacles, the most obvious being the requirement that the
plaintiff identify and prove the point in the process of manufacture or sale at
which the manufacturer’s or seller’s conduct fell below the requisite due care.
o Plaintiffs were not familiar enough with complex manufacturing designs or
processes to prove their case or rebut defendants’ assertions that they acted with
due care.
o Under warranty, plaintiffs dealt with obstacles such as the requirement of timely
notice to the seller, privity barriers that varied from state to state, and the seller’s
ability to limit warranty remedies or disclaim warranties altogether.
 Strict Liability as a Solution:
o Three basics objectives of strict liability in products liability (use these to
determine if a products liability theory should be applied):
1. Gets around the lack of privity b/t seller and buyer
2. Gets around the duty to prove negligence of a distant manufacturer using
mass production techniques
3. Risk-spreading: manufacturers will spread the risk of dangerous products
amongst all consumers
 Evolution of Strict Liability in Defective Product Torts:
 Concurring opinion in Escola (S. Ct. of CA) declared that manufacturers ought to be
strictly liable for injuries caused by defective goods on grounds that public policy
requires that the public be insured against injury at the seller’s expense.
o Escola (plaintiff, respondent) v. Coca Cola Bottling Co. of Fresno (defendant,
appellant), SC of CA, 1944
 Facts: Escola, a waitress, had a Coke bottle explode in her hand even though
she used due care in opening the bottle. P sued Coca Cola Bottling Companmy
of Fresno (D) for her injuries. The basis of liability was negligence, but
lacking evidence of D’s specific negligence, P relied on the doctrine of res ipsa
loquitur. Trial court found for P, and supreme court affirmed.
 Issue: Is this case appropriate for res ipsa loquitur?
 Holding: Yes. The circumstances of the injury create a presumption of
negligence. Res ipsa was justified in this case b/c Coke had exclusive control
over the bottle during its filling.
 Concurring opinion (more influential than majority holding): Manufacturers
ought to be absolutely liable for injuries caused to consumers by defective
goods. Public policy dictates that manufacturers ought to pay the cost of the
injuries they cause. The doctrine of res ipsa loquitur is just an attempt to allege
negligence and then allow recovery without proof of negligence. The court
35
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



should just recognize that a form of strict liability is being used. This strict
liability is justified both because of the fairness of placing the cost on the
manufacturer and because the consumer is unable to closely inspect modern
complex products. The manufacturer can better bear the cost and control
quality. There is no reason in law, logic, or public policy to continue to require
the consumer to prove fault on the part of the manufacturer.
 Only the manufacturer can guard against some defects – thus they should
always be held liable – consumers buy products on the faith of their trademark
and do not have the knowledge necessary to make a proper inspection. The
manufacturer’s obligation to the consumer must keep pace with the changing
relationship b/t them; it cannot be escaped b/c the marketing of a product has
become so complicated as to require one or more intermediaries
Subsequent California Developments: Beginning in the early 1960s, a series of
California decisions foreshadowed similar developments in other jurisdictions that have
now become accepted by the overwhelming majority of states
1963 Decision in Greenman v. Yuba Power Products, Inc (St. Ct. of CA) established
strict liability tort remedy, eliminating the necessity of proving negligence:
Greenman Rule: (Strict Products liability rule in effect today) A manufacturer incurs
strict liability when an article that he had placed on the market, knowing that it is to be
used without inspection, proves to have a defect that causes injury to human beings,
regardless if negligence can be found – this cost should be passed along to consumers as
an added cost of doing business.
o This rule essentially eliminates the need for the P to prove where the fault lies –
now the burden is immediately on the defendant to prove that they are not
responsible; it is circuitous for P to prove negligence
Subsequent decisions in CA held as follows:
o Retailers such as car dealers also held strictly liable for defective products they
sell (Vandermark v. Ford Motor Co. 1964)
o Injured bystanders can also hold manufacturers strictly liable for the injury they
received from the defect in the product they produced (Elmore v. American
Motors Corp. 1969)
Restatement 2d §402A: Prompted by the decision in Greenman, in 1965 the ALI’s 2d
Restatement proposed strict liability in tort for defective products.
Codification: Restatement (2d) of Torts, §402A –Product Injuries:



The 2d Restatement is the most widely accepted approach to products liability among
the states. That being said, the common law in states that have adopted the 2d
Restatement has typically evolved to adopt the distinctions delineated in the 3d
restatement. Allen believes that the main reason why the 3d Restatement has yet to be
officially accepted by most states is time – the 3d restatement is rather new.
Still not completely Strict Liability: While a D will likely be held strictly liable for a
manufacturing defect, a defect of design must be unreasonably dangerous – which
inserts an element of negligence into the equation. The courts looks to consumer
expectations and also risk-utility to determine safety of design – these both hinge on
fault-based principles, thus they are defenses to products liability that reduce the punch
of strict liability
Defined:
1. One who sells any product in a defective condition unreasonably
dangerous to the user or consumer or to his property is subject to liability
36


for physical harm thereby caused to the ultimate user or consumer, or to his
property, if
a. The seller is engaged in the business of selling such a product (and
selling that product is alone what he is paid for), and
 (if the seller is merely providing a service, however, there
is not liability absent proof of a violation of a legal duty)
b. It is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold
2. The rule stated above applies although
a. the seller has exercised all possible care in the preparation and sale
of his product (strict liability clause), and
b. the user or consumer has not bought the product from or entered into
any contractual relation with the seller (no privity requirement)
Necessity of Showing a Defect:
o The plaintiff must establish that the product was defective, and that the defect
was a substantial factor in bringing about the plaintiff’s harm.
o Focus is on condition of product, not liability of seller
o Statutes of Repose: By statute in some jurisdictions a product implicated in an
injury will be conclusively presumed to be non-defective where the accident
occurs more than a certain number of years following initial sale, or following
manufacture.
Unreasonable Danger:
o Not all states apply the reasonably dangerous requirement, but the majority of
states do. Most jurisdictions require that the product be in both (1) a defective
condition, and (2) unreasonably dangerous
 Arguments for “Unreasonably Dangerous” Requirement: The
reasoning behind the “unreasonably dangerous” requirement is that tort
law is primarily concerned with remedies for conduct and conditions that
create risk of injury; merely defective products that create no hazard or
danger are the proper concern of warranty law.
 Arguments against: A minority of jurisdictions, including California,
rejected the requirement that a design defect be “unreasonably
dangerous,” maintaining that such a requirement hearkens too closely of
the language of a negligence analysis and thus induces juries to adopt a
higher burden of proof than necessary in a strict liability regime.
o Courts Vary Application of Unreasonably Dangerous Test Based on Type of
Defect: As case law developed, courts that adopted the Restatement 2d’s
“unreasonably dangerous” standard began to distinguish between manufacturing
and design defects (including warning defects) in applying the reasonableness
standard.
 Manufacturing defects were subject to strict liability,
 Design defects and warning defects had to be unreasonably dangerous
before manufacturers and sellers were held liable.
 This distinction ultimately was codified in the 3d Restatement, published
in 1998.
o In 1972, in Cronin v. J.B.E Olson Corp, the S.Ct of CA rejected the Restatement
2d’s “unreasonably dangerous” standard in both the manufacturing and design
defect contexts.
37
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
(However, the S. Ct of CA went on in Barker v. Lull Engineering Co. to
create a test for whether or not a product may be considered defective
that adopted several of the tests used by the Restatement and other courts
in deciding whether a defect is “unreasonably dangerous.” In claiming
that they were rejecting the unreasonableness test yet applying similar
scrutiny (consumer expectations and risk/utility analysis) in establishing
the presence of a defect, the court appears to me to be contradicting
itself.)
o Allen says that the condition that the design defect be unreasonably dangerous
softens the strict liability, adds an element of negligence theory.
Tests of whether a product has a design defect:
o The following tests have been adopted by various courts in determining whether
a design is defective under the 2d Restatement regime.
o Some states adopt one or the other or apply a hybrid of both.
 The 3d Restatement rejects the consumer expectations test in favor of the
risk utility test.
o Majority approach: More particularized risk/utility evaluations for what
constitutes a design defect have been adopted by most courts, with “consumer
expectations” retained as one of several evaluative factors (described below)
o Within the risk/utility test, described below, many courts looked to the
availability of alternative designs as one criterion in the risk/utility balancing
analysis. This criterion developed in importance and was codified in the 3d
Restatement as an independent part of the plaintiff’s prima facie case
(Reasonable Alternative Design). As such, it is discussed in the following
section on the 3d Restatement.
o Consumer Expectations Test:
 Comment I to §402A suggests a “consumer expectations” standard for
what represents an unreasonably dangerous condition.
 Meant to cover cases where consumers have clear expectations – coke
bottles, tires. However, consumers don’t have clear expectations
regarding all products, and is a reason why courts have looked to risk
utility test (below).
 Acc to this comment to the Restatement, a product may be considered
unreasonably dangerous if it is dangerous “to an 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.”
 Focus is on reasonable expectations of the user and the surprise element
of danger involved
 Elements of Consumer Expectations Test:
1. The manufacturer’s product failed to perform as safely as an
ordinary customer would expect
2. The defect existed when the product left the manufacturer’s
possession
3. The defect was a “legal cause” of plaintiff’s “enhanced injury”
4. The product was used in a reasonably foreseeable manner
 Determining Ordinary Consumer Expectations: It is often difficult to
determine the reasonable expectations of the consumer
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
o
Some courts have applied the “foreign-natural” test in cases
where an object is found in a product, such that a cherry pit
would be “natural” in a cherry pie or a fish bone “natural” to fish
chowder, but a beetle unnatural/ foreign.
 The defense cannot produce expert testimony about the relevant
benefits and risks of the design – it is up to the jury to decide
what is ordinary knowledge of consumers.
 The consumer envisioned by the “consumer expectations” test is
the ordinary adult consumer with ordinary knowledge common
to the community as to the product’s characteristics.
o So, the special background and experience of an
individual plaintiff is not important. The proper
evaluation is that of the community familiarity with the
risk.
o If the individual plaintiff does have a particularized
knowledge of the hazard, the D may use such proof in a
defense based upon P’s assumption of the risk, but not
on the issue whether the product creates an unreasonable
hazard.
Risk/Utility Test: The product is defective as designed only where the magnitude
of the hazards outweigh the individual utility or broader societal benefits of the
product. Requires weighing of cost, practicality, risk, and benefit. Is this product
too risky relative to the utility the design?
 Reasonably safe products are those products whose utility outweighs the
inherent risk, “provided that risk has been reduced to the greatest extent
possible consistent with the product’s continued utility.” (Beshada v.
Johns-Manville Prods. Corp.)
 Under a pure risk/utility test, standards of ordinary consumers are
irrelevant
 However, most courts applying the risk/utility test do consider
consumer expectations as an evaluative factor
 A seven factor evaluation for a risk utility analysis was advanced by
Dean John Wade, and has been followed in numerous courts in several
jurisdictions. These factors were laid out in Ortho Pharmaceutical Corp.
v. Health (1986) (Discussed in Camacho, p. 588).
1. The usefulness and desirability of the product – its utility to the
user and to the public as a whole
2. The safety aspects of the product – the likelihood that it will
cause injury and the probable seriousness of the injury
3. The availability of a substitute product which would meet the
same need and not be as unsafe
4. The manufacturer’s ability to eliminate the unsafe character of
the product without impairing its usefulness or making it too
expensive to maintain its utility
5. The user’s ability to avoid danger by the exercise of care in the
use of the product
6. The user’s anticipated awareness of the dangers inherent in the
product and their avoidability because of general public
39
knowledge of the obvious condition of the product, or of the
existence of suitable warnings or instructions
7. The feasibility, on the part of the manufacturer, of spreading the
loss by setting the price of the product or carrying liability
insurance.
Restatement Third: Products Liability

Differences from Restatement 2d §402A:
o The 3d restatement drops the “unreasonably dangerous” language
o The 3d restatement explicitly lists the three common areas of products liability:
manufacturing defects, design defects, and defects in warning
o Drops the consumer expectations test in favor of a risk/utility test
 Restatement 3d Provisions:
 §1 provides that “one engaged in the business of selling or otherwise distributing
products who sells or distributes a defective product is subject to liability for harm to
persons or property caused by the defect.”
 §2 provides that for purposes of determining whether a product is defective, there are
three types of defects:
1. Manufacturing Defects:
o Under Products Liability Restatement §2(a), “a product contains a
manufacturing defect when the product departs from its intended design even
though all possible care was exercised in the preparation and marketing of
the product”
 The product is different from all other products, and consumer is
relying on manufacturer that all its goods will be produced with
equal care.
o Example: A manufacturing defect occurs when all coffee cups of a certain
design have a half inch sippy cup opening, but mine was manufactured
defectively and has a whole inch, making me spill coffee everywhere and
burn myself.
o Patent v. Latent Manufacturing Defects: There are not many open and
obvious (“patent”) manufacturing defect cases. Manufacturing defects are
almost always latent.
o Manufacturing Defects Held Strictly Liable: The Third Restatement adopts a
strict liability approach to aberrational individual products that inadvertently
fail to conform to the product’s intended design and that cause harm.
 The defect is generally apparent in the flawed unit by the time of
trial, and so most courts have concluded (in accordance with 3d
Restatement) that strict liability should follow.
 There is no need for the plaintiff to apply the reasonableness test or
prove negligence or carelessness
o Who is liable: All sellers and distributors in the chain of distribution may be
liable in addition to manufacturers
 This encourages retailers to deal with reputable and financially sound
manufacturers.
2. Design Defects:
o Negligence elements of a design defects claim:
40

o
o
o
o
o
While some jurisdictions have dropped the “unreasonably
dangerous” language, others have not. The “reasonableness”
language is negligence-like.
 The Third Restatement states explicitly that plaintiff must prove the
existence of a reasonable alternative design. Again, the “reasonable”
language is borrowed from negligence.
Products Liability Restatement §2(b) defines a product as “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,
and the omission of the alternative design renders the product not reasonably
safe.”
Example: A design defect occurs where all coffee cups are designed with a
whole inch opening, making coffee spill out over all users of the design. The
design is therefore defective.
Some think a design defect under 3d restatement is a kind of trumped up
negligence regime, looking for alternatives and reasonability
3d Restatement Applies Risk/Utility Test: The 3d Restatement rejects the
consumer expectations test and adopts the risk utility test for defective
design. This is the same test as described above in discussion of Restatement
2d.
Reasonable Alternative Design: In applying the risk/utility factors, much
attention had been given to the feasibility of alternatives.
 In Banks v. ICI Americas, (GA 1994), the court noted that “one factor
consistently recognized as integral to the assessment of the utility of a
design is the availability of alternative designs, in that the existence and
feasibility of a safer and equally efficacious design diminishes the
justification for using a challenged design…The essential inquiry,
therefore, is whether the design chosen was a reasonable one from
among the feasible choices of which the manufacture was or should have
been aware.”
 3d Restatement Approach: The approach in Banks has been formalized
in the 3d Restatement §2 comment f, which asserts that the plaintiff
“must prove that a reasonable alternative design would have reduced the
foreseeable risk of harm and would have provided a similar function at a
comparable cost.”
 Sometimes the “feasibility of a reasonable alternative design is
obvious and understandable to lay persons and therefore expert
testimony is unnecessary to support a finding that the product
should have been designed differently and more safely.”
 Other products already on the market may meet RAD criteria
 “The comment is explicit about some criteria for determining whether an
alternative design is reasonable and whether its omission renders a
product not reasonably safe, but it recognizes that the criteria will
generally vary from case to case. The factors include, among others:
 The magnitude and probability of the foreseeable risks of harm
 The instructions and warnings accompanying the product, and
 The nature and strength of consumer expectations regarding the
product, including expectations arising from product portrayal and
marketing
41

o
In addition, the relative advantages and disadvantages of the product and
its proposed alternative must be considered. These include the impact on
production costs and on “product longevity, maintenance, repair, and
esthetics; and the range of consumer choice among products.”
 Price is a factor that must be considered. The alternative design must not
appreciably increase the price – sometimes you pay less for a product
that is less safe (economy cars).
 Exception to RAD Requirement -- Irreducibly unsafe products: These are
products whose dangers are known and often great, but for which there
are no RADs. The 3d Restatement states that liability may flow even if a
product has no RAD if its value is deemed to be minimal. The utility of
the product must be weighed against the risks its usage poses –
sometimes the product itself constitutes a design defect, regardless if
there is no reasonable alternative design (ie, it’s as safe as it can be). In
such cases, the manufacturers and sellers should be liable for product
defect, even if a P can’t prove a RAD. Public policy dictates that
manufacturers and sellers of these products should be discouraged from
keeping them on the market and products liability will help achieve those
incentives. (O’Brien v. Muskin)
o Some states have rejected O’Brien, saying that if there is no
RAD, a product is free from design defects as long as it bears an
adequate warning.
Crashworthiness Doctrine: (Pre-dates 3d Restatement) A manufacturer can
be held liable in negligence or strict liability for injuries in a motor vehicle
accident when a manufacturing or design defect, though not the cause of the
accident, caused or enhanced the injuries. Auto manufacturers should
anticipate that accidents will occur and should take reasonable precautions to
prevent injuries. (Larson v. GM)
 This also applies to motorcycles, and just because they are dangerous
vehicles does not absolve the manufacturers from injuries.
 Camacho (plaintiff, appellant) v. Honda Motor Co. (defendant,
respondent), SC of CO, 1987
o Facts: In 1978 Camacho (P) bought a new Honda Hawk
motorcycle that was not equipped with crash bars. P
suffered severe leg injuries in an accident and sued the
parties in the chain of distribution, claiming that the absence
of crash bars to protect the legs made the product defective
under a strict liability analysis. Depositions supplied by
mechanical engineers asserted that effective leg protection
devices that would have reduced or completely avoided P’s
injuries were available in March 1978 and that
manufacturers other than Honda Motor Company (D) had
made such devices available as optional equipment.
o Issue: Is the risk-utility test the proper test to apply in
determining whether a product has a design defect causing it
to be in a defective condition that is unreasonably
dangerous?
o Holding: Yes. There are factual differences from the expert
witnesses, thus the case should be remanded. Adopts the
42
crashworthiness doctrine, rejects the consumer expectations
test, and adopts the risk/utility test.
3. Safety Instructions and Warnings:
o Majority Rule: (RST 2d §402A comment j) the seller is required to give
warning against a danger if he has knowledge of, or by the application of
reasonable, developed, human skill and foresight should have knowledge of
the danger.
o RST 3d Products Liability §2c: A product may be defective because of
inadequate instructions or warnings of the foreseeable risks of harm, and the
omission of the instructions or warnings renders the product not reasonably
safe
o Warning v. Design Defects:
 Warnings will not inevitably defeat liability for a product’s defective
design—a company cannot make a defective design and then disclaim
liability by warning that it is defective.
 In Hansen v. Sunnyside Products, Inc. the court argued that the warning
provided is but one factor to be weighed in the balance in a design
defect case.
 The warning may become a factor to be weighed in the “consumer
expectations test”
o The manufacturer has a duty to perform reasonable testing prior to marketing
a product and to discover risks and risk-avoidance measures that such testing
would reveal. A seller is charged with knowledge of what reasonable testing
would reveal.
o MA addition: a manufacturer will be held to the standard of knowledge of an
expert in the appropriate field, and will remain subject to a continuing duty to
warn purchasers of risks discovered following the sale of the product at issue.
o Role of Warnings:
 Warnings may reduce risk by instructing users in how to obtain the
benefits from the product’s intended use and by alerting users to the
dangers of using the product in ways unintended by the manufacturer
 Warnings may also alert potential buyers and users to irreducible dangers
in the product, that is, dangers that cannot be reasonably reduced by the
manufacture nor avoided by consumers no matter how careful they may
be.
o The most common example are warnings of side effects of
pharmaceuticals
o The Effect of Obviousness of Danger
 The first issue is when a warning must be included at all.
 The majority rule is that there exists no duty to warn of certain obviously
hazardous conditions, where it is common knowledge that the product is
hazardous or the hazard is obvious and apparent. (This is the position of
Restatement 3d)
o Ie, no need to warn that a knife cuts, no duty to warn that tequila
will cause harm if consumed too heavily; no duty to warn that it
is dangerous to ride in the back of a pick-up
43

o
Applies to Children: The doctrine of denying recovery for injuries caused
by product hazards that are obvious or known to the user or consumer
has been applied even where the injured parties are children
o A product intended for adults need not be designed to be safe for
children solely b/c it is possible for the product to come into a
child’s hands
 If there is uncertainty as to whether the dangers of using a product are so
commonly known or obvious, then the issue is properly for the jury
Adequacy of Warnings and Instructions:
 Where a warning is required, the warning only needs to be reasonable
under the circumstances and need not be an encyclopedia and warn of
every possible injury that could result.
o Too many warnings might defeat their purpose b/c they would lose
their punch and effect – dilutive (see court’s reasoning below).
 A reasonable warning will, by its size, location, and intensity of language
or symbol, impress upon a reasonably prudent user of the product the
nature and extent of the hazard.
 The warning should be targeted towards the person most likely to use the
product
 An adequate warning should also advise of significant hazards from
reasonably foreseeable misuse of the product, and where appropriate,
antidotes for misuse (see section below on misuse).
 Factors for the manufacturer to consider
o the extent of the risk
o the likelihood that it will arise
o the user’s likely understanding of the danger
o the means available to convey a warning
o the likelihood that too many warning will decrease the
effectiveness of each warning
 Criteria for determining whether a warning is adequate
o the warning must adequately indicate the scope of the danger
o the warning must reasonably communicate the extent or
seriousness of the harm that could result from misuse of the
drug.
o The physical aspects of the warning must be adequate to alert a
reasonably prudent person to the danger
o a simple directive warning may be inadequate when it fails to
indicate the consequences that might result from failure to follow
it
o the means to convey the warning must be adequate
 Hood (plaintiff, appellant) v. Ryobi America Corporation (defendant,
respondent), US Court of Appeals, 4th Circuit, 1999
o Facts: Hood (P) purchased a fully assembled Ryobi TS-254
miter saw with a 10-inch diameter blade for home repairs. The
blade was controlled by a finger trigger on a handle near the top
of the blade. Two blade guards shielded almost the entire saw
blade. The owner’s manual and warnings affixed to the saw
warned in several places to keep the guards in place during
operation. When P used the saw the day after he purchased it, he
44
o
removed the guards to saw a piece of wood. He continued to
saw with the blade exposed for about 20 minutes. In the middle
of a cut, the blade flew off the saw and back toward P. P’s left
thumb was partially amputated and his right leg was cut. P
admits he read the owner’s manual and warning labels, but he
believed the guards were meant to prevent clothing or fingers
from coming into contact with the blade. P claims he was not
aware that the blade would detach, but Ryobi (D) was. In fact, D
had been sued for such an event in the past. P sued D for failure
to warn and defective design.
o Issue: Did D provide adequate warnings on its product?
o Held: Yes
o Reasoning:
 P’s argument that D’s warnings were insufficient
because they did not inform the user of the consequences
of using the saw without the blade fails. A warning need
only be reasonable under the circumstances. A
manufacture need not warn of every conceivable danger.
 In determining the adequacy of a warning, we ask
whether the benefits of a more detailed warning
outweigh the costs of requiring the change
 The cost of changing the labels is not the only
consideration. More detail on a label threatens to
undermine the usefulness of the warning altogether.
Voluminous and technical labels are often not effective
 D’s warnings are clear and unequivocal. Two of the
seven labels warn of “serious injury.” Had the warnings
been followed, injury would have been prevented in this
case.
 The only other incident similar to P’s occurred 15 years
before P’s. P has not shown D’s warnings ot be
insufficient.
o Comment: In most cases, adequacy of warning is a matter for
the jury. In clear cases, however, it may be a question of law.
 Distinguish warnings from instructions: Warnings call attention to a
danger, while instructions are intended to describe procedures for
effective and reasonably safe product use.
o So, a warning may be adequate while its instructions are
deficient or visa versa
The Effect of Unintended or Unforeseeable Misuse:
 In general, a manufacturer is required only to produce a product that is
reasonably safe for its intended or reasonably foreseeable use
 However, a manufacturer has a duty to warn against latent dangers
resulting from foreseeable uses of its product of which it knew or should
have known.
 A manufacturer also has a duty to warn of the danger of unintended uses
of a product provided these uses are reasonably foreseeable (and not
obvious to the user).
 Misuse of a product is only a defense if the misuse was unforeseeable
45

This duty to warn is not limited by whether the foreseeable misuse is
likely or unlikely; it need only be reasonably foreseeable
 A few states hold a manufacturer liable for unforeseeable defects
o Duty to Warn After Product in Stream of Commerce:
 There is a duty to warn after a risk is observed after the product enters
the stream of commerce if :
o The seller knows or reasonably should know that the product
poses a substantial risk of harm to persons or property
o Those who would benefit from the warning can be identified and
are likely unaware of the risk
o A warning can effectively be communicated to and acted upon
by recipients
o And that the risk of harm is sufficiently great to justify the
burden of providing a warning
o Causation and Disregard of Warnings:
 Pivotal to the successful maintenance of P’s failure to warn claim is the
demonstration that the seller’s failure to warn adequately of the hazard
was the cause in fact and the proximate cause of the injury.
 Two presumptions bearing on causation have gained widespread
approval in duty to warn litigation:
o Where a warning is given, the seller may reasonably assume that it
will be read and heeded
o Where no warning has been given, a plaintiff may benefit from the
presumption that, had a warning been given, it would have been read
and heeded.
o Warnings in context of pharmaceuticals:
 For most products, manufacturers caution against putting too much in the
warning. However, in pharm cases, manufacturers put intricate details
into warnings. Why:
o Pills are somewhat mysterious to consumers, we don’t know
what it is that we are putting in our bodies, in the same way we
know what a chain saw is when we purchase it.
o Important for docs to ensure they have informed consent from
patients
o FDA requires it
 Many courts have put manufacturers of drugs in a special category, called in the
Restatement “manufacturers of inherently dangerous products.” These are products
whose risk cannot be reduced without reducing the utility of the product. To justify
freeing the manufacturers of such products from liability, courts require detailed
warnings to patients.
 Learned Intermediary Doctrine: shields a manufacturer’s liability when a physician
prescribes a medication and is given appropriate warnings of the medication – thus
the doc is supposed to pass this information onto the consumer. The doctrine is an
exception to the requirement to warn consumers of design defects. However, there
are two exceptions to this exception (where pharm manufacturers do have a duty to
warn customers):
a. Mass immunizations (too costly and time intensive to provide a
learned intermediary)
46

b. When the FDA mandates that a warning be given directly to the
consumer (seems to apply to products taken voluntarily, or
driven by patient – i.e. birth control and nicotine patches)
o Products liability law generally requires that a manufacturer
warn consumers of danger associated with the use of its
product to the extent the manufacturer knew or should have
known of the danger – manufacturer not required to warn of
obvious dangers
Edwards (plaintiff) v. Basel Pharmaceuticals (defendant), SC of
OK, 1997
o Facts: Edwards died of a nicotine-induced heart attack b/c he
smoked a cigarette while wearing two Habitrol nicotine
patches. Edwards’ wide, D, sued Basel on a failure of duty to
warn the consumer of the potential risks of too much nicotine.
o Issue: Whether the learned intermediary doctrine would bar
liability
o Holding: the FDA requires that information be given directly
to the consumer regarding nicotine patches, thus the Learned
Intermediary Doctrine does not apply in this case and is not a
defense for Basel
Products Liability—general considerations/special concerns
o
o
o
Successors in interests
 General question: what is the liability of a successor corporation for a
defective product marketed by the business before it was bought by the
successor?
 Restatement §12
 Liability is imposed on the successor if the acquisition
o Is accompanied by an agreement for the successor to
assume such liability OR
o Results from a fraudulent conveyance to escape liability
for the debts or liabilities of the predecessor OR
o Constitutes a consolidation or merger with the
predecessor
o Results in the successor becoming a continuation of the
predecessor
Used good sellers
 Most courts have declined to impose strict liability on sellers of used
goods—even then the claim is that the product has had the defect since it
was first marketed.
 Courts are even less likely to impose liability on an “occasional” seller of
used goods
Other “nonsellers”
 Franchise relationships
 some courts have extended the doctrine of products liability to
franchisors who impose quality control on their franchisees.
 Free samples
47

o
o
o
o
strict liability has been imposed on commercial sellers who give
products away or provide free samples as part of a promotion.
Government contractors
 The Supreme court has held that a private contractor who followed
government specifications in making a product could NOT be held liable
for inadequacies in the design when
 the United States approved reasonably precise specifications
 the equipment conformed to those specifications
 the supplier warned the United States about the dangers in the
use of the equipment that were known to the supplier but not to
the United States.
Res Ipsa Loquitor in Products Liability—Restatement (3d) Products Liability §3
 “It may be inferred that the harm sustained by the plaintiff was caused by
a product defect existing at the time of sale or distribution without proof
of a specific defect, when the incident that harmed the plaintiff
 was of a kind that ordinarily occurs as a result of product defect
 and was not, in the particular case, solely the result of causes
other than product defect existing at the time of sale or
distribution.”
Causation in products liability
 “Enhanced injury”
 The courts disagree about who bears the burden of showing that
a defect caused harm over and above what was suffered in the
original impact.
 When the injuries are “separate and indivisible” the plaintiff
must show that the defect enhanced the injuries.
 Majority view—indivisible injuries
o Once the plaintiff establishes that the defect was a
“substantial factor” in producing damages over an above
those that were probably cause as a result of the original
impact, the burden shifts to the defendant to show which
injuries were attributable to the initial collision and
which to the defect.
 Proximate cause questions are still relevant in a products liability suit.
Emotional distress
 See Bray v. Marathon Corp, where plaintiff was allowed to recover for
emotional distress after a trash compactor malfunctioned, crushing a coworker with whom plaintiff had worked for 15 years. (p. 566) Plaintiff
was held to be a user of the malfunctioning machine because he was
pushing buttons to help fix the compactor.
Defenses to Defective Product Liability

Contributory Negligence and Assumption of Risk:
o In the strict products liability context (under 2d Restatement), contributory
negligence is not a defense but assumption of risk is a defense:
o 2d Restatement §402A Comment N
 Contrib. negligence of the P is not a defense when such negligence
consists merely in a failure to discover the defect on the product, or to
guard against the possibility of its existence
48




If the consumer is aware of the defect but still proceeds unreasonably,
then he is barred from recovery: “The form of contributory negligence
which consists in voluntarily and unreasonably proceeding to encounter a
known danger, and commonly passes under the name of assumption of
risk, is a defense to liability under this section as in other cases of strict
liability. If the user or consumer discovers the defect and is aware of the
danger, and nevertheless proceeds unreasonably to make use of the
product and is injured by it, he is barred from recovery.”
o Negligence context: in jurisdictions applying contributory negligence in nonproducts negligence cases, contributory negligence also applies in cases of
negligent products liability
Comparative Responsibility: Has been applied in the products liability context in the
overwhelming majority of states.
o 3d Restatement §17a: P’s conduct should be considered to reduce a damages
recovery if it fails to conform to applicable standards of care
o GM (defendant, appellant) v. Sanchez (plaintiff, respondent), SC of TX, 1999
 Facts: Sanchez died while pinned b/t his GM truck and a corral gate
when the truck rolled backwards b/c the gear was stuck in “hydraulic
neutral” b/t park and reverse when Sanchez got out of the truck and then
the gear popped into reverse and rolled backwards, pinning Sanchez.
 Issue: Is a consumer’s conduct, other than the mere failure to discover or
guard against a product defect, subject to comparative responsibility?
 Holding: Yes. Jury finds comparative responsibility at 50%
 A consumer has no duty to discover or guard against a product
defect, but a consumer’s conduct other than the mere failure to
discover or guard against a product defect is subject to
comparative responsibility. Sanchez was negligent in failing to
properly secure his truck when he was getting out of it, thus his
negligence should be taken into consideration to reduce the
damage awards
 Note: This is not a res ipsa case, bc P was partially at fault
Misuse (Substantial Modification Defense): Product misuse of a substantial and
nonforeseeable nature may be a defense against P’s claim in negligence, warranty, and
strict liability.
o A manufacturer is not liable for injuries caused by substantial alterations to the
product by the victim or a third party that render the product defective or unsafe
– manufacturer not required to insure that subsequent owners and users will not
adapt the product to their own unique uses. A manufacturer does not have to
design a product that cannot have its safety measures circumvented – this is too
much of a burden.
o Such misuse will itself become the proximate cause of the loss or injury,
precluding any claim against the seller or manufacturer
Disclaimers: A disclaimer is a statement accompanying the sale of a product similar to:
“The manufacturers retain no responsibility for injury of any kind from this product”
o 3d Restatement §18: Disclaimers… do not bar or reduce otherwise valid
products liability claims against sellers or other distributors of new products for
harm to persons.”
o 2d Restatement §402A comment m: “The consumer’s cause of action is not
affected by any disclaimer or other agreement.”
49


Three distinct viewpoints on disclaimers (p. 628)
 the disclaimer, as an express assumption of risk, bars a
negligence action, but not a strict liability action because the
purpose of strict liability is to prevent a manufacturer from
defining scope of responsibility.
 No public policy objections. Disclaimers valid as an express
assumption of risk.
 Both negligence and strict liability clams can be waived by a
disclaimer.
Defenses to Design Defects:
a. “open and obvious” dangers
i. See Camacho v. Honda Motor Co., Ltd. (Vollack, J., Dissenting) where
J. Vollack argues that defendant should not be liable when plaintiff
purchases a motorcycle despite the “open and obvious” danger of injury
in a collision when the motorcycle did not have leg protection devices.
ii. Irreducibly dangerous products (i.e., knives)
 If the product is irreducibly dangerous and the danger is open and
obvious, then the design is not likely to be found defective and there
is not duty to warn because the manufacturer has no duty to warn of
dangers people already understand.
iii. Products with RADs
 If the danger is open and obvious, but could have and should have
been removed, then the fact that it was open and obvious is not a
defense.
iv. NOTE: be careful with the “open and obvious” defense. Taken literally,
this defense would mean that a manufacturer could create an
unreasonably dangerous product as long as the danger was “open and
obvious.” This is absurd, and not what the defense aims at. The defense
aims, instead at pointing to dangers that CANNOT be designed out (i.e.,
irreducibly dangerous products).
b. “Simple tool rule”
i. under this rule, a design is not defective when the risks and benefits of
the design are readily apparent to everyone (i.e., disposable lighters)
c. “State of the Art Defense.”
i. “State of the art claims” can be either a defense by the defendant, or part
of the barrier plaintiff must climb to establish her prima facie case.
ii. A state of the art defense claims that a defendant should not be liable
because the dangers of a product were unknown and unknowable at the
time of the sale.
d. Government contractors
i. The Supreme court has held that a private contractor who followed
government specifications in making a product could NOT be held
liable for inadequacies in the design when
 the United States approved reasonably precise specifications
 the equipment conformed to those specifications
 the supplier warned the United States about the dangers in the use
of the equipment that were known to the supplier but not to the
United States
50

Defenses to Warning Defects: Note, a manufacturer cannot create a machine that is
patently dangerous and then disclaim liability by warning about it. Warning itself is not
a. Defenses to warning claims
i. “open and obvious”
ii. “state of the art”
 The state of the art defense asserts that the manufacturer did not
have the ability to reasonably foresee the injury at the time the item
was manufactured, despite reasonable testing. The “state of the art”
at the time made it impossible to anticipate the injury incurred.
i. Products Liability restatement §402A, comment j
1. “the seller is required to give warning against a danger if he
has knowledge, or by application of reasonable, developed
human skill and foresight should have knowledge, of
the…danger.”
ii. See Vasallo v. Baxter Healthcare Corporation in which the court
held that defendant corporation ought not be held liable for the
unforeseeable risks of silicone breast implants.
iii. Some courts reject this defense on the grounds that products
liability ought to be strict liability and the corporation is the
least-cost avoider and the best risk-spreader.
iv. This “defense” can also operate to attack an element of the
plaintiff’s case: defendant argues that there was no tort because
the manufacturer is not responsible for unforeseeable harm. This
means that plaintiff would have to show that defendant should
have known of the harm.
v. Discovery of danger after distribution
 Most state impose a duty to warn of dangers discovered after the
distribution
 Products Liability Restatement §10
i. A reasonable seller will warn if
1. the seller knows or reasonably should know that the product
poses a substantial risk of harm to persons or property
2. those who would benefit from the warning can be identified
and are likely unaware of the risk
3. a warning can effectively be communicated to and acted
upon by recipients
4. the risk of harm is sufficiently great to justify the burden of
providing a warning.
 Subsequent remedial measures
i. When the defendant takes steps to mitigate the damage, the rules
of evidence prohibit use of those measures to prove that the
product was defective. This is to incentivize risk-minimizing
activity.
Summary: Elements of a Products Liability Claim:

March through these elements when looking at a products liability claim:
1. Seller
a. Seller must be engaged in business of selling
51
2.
3.
4.
5.
6.
7.
b. Includes distributors and sellers along with manufacturer – everyone in the
chain of distribution (part supplier, manufacturer, distributor, retailer, seller)
Product
a. Services not included in products liability
Defective condition that is unreasonably dangerous (Given case law and
codification of 3d restatement, most courts hold manufacturing defects strictly
liable. Only design defects (inc. warning/labeling defects are subject to
reasonableness considerations.)
a. Most states adopt the unreasonably dangerous phrase, but not all
b. Legal standard to determine if a design is defective:
i. Consumer expectation test – does the product operate how a reasonable
consumer would expect?
ii. Risk/utility test – balance the risk of the product against the utility derived
from the product → this is why you have automobiles that are dangerous but
are still around b/c they serve an important function in society
iii. Reasonable Alternative Design – Jurisdictions that adopt 3d Restatement
require P to prove this in her prima facie case
iv. Crashworthiness doctrine – Jurisdictions that adopt 3d Restatement require P
to prove automobile was not crashworthy
User or consumer (may also include a bystander or property of user or consumer)
Physical harm (injury)
Causation (the defect caused the injury or enhanced the injury)
Consider potential defenses:
a. Assumption of Risk
b. Comparative responsibility
c. Misuse of product
d. Substantial modification or alteration of product
e. Open and obvious risk
Products liability in the employment context: Work-Related Injuries


General policy concerns
o All states have worker’s compensation systems that shield an employer from
liability. With the introduction of products liability, many employees elect to sue
the manufacturer. The manufacturer then impleads the employer, circumventing
the immunity granted by worker’s compensation statutes.
o The worker may accept compensation benefits and pursue the tort action
simultaneously without waiving one or the other
 However, a few states don’t allow claims against third parties who pay
into the workers comp system
o Often, however, if the employee wins a suit against the manufacturer, she must
repay the amount provided by the worker’s compensation system.
Worker’s suits for injuries in the workplace are often barred by worker’s compensation
statutes that provide for a fixed damage award.
o See Jones v. Ryobi where court held that a plaintiff could not recover damages
from the manufacturer of a piece of office equipment when she had been injured
at work and the safety devices that came equipped with the office equipment had
been removed by the employer.
52



BUT the advent of products liability has allowed plaintiffs to sue the manufacturer of a
defective product.
o In Liriano v. Hobart Corp., a manufacturer was held liable for failing to warn of
the dangers of removing a guard from a meat grinder even though the defendant
would normally be exempt from liability because the meat grinder had been
modified by the injured party’s employer.
o Liriano is also important because it addresses a manufacturer’s duty to warn in
cases where a third party has substantially altered a product:
o Liriano (plaintiff) v. Hobart Corp. (defendant), NY Court of Appeals, 1998
 Facts: Liriano, a 17 year-old recent immigrant, was hurt while employed
at a Super grocery store when a mean grinder cut off his right hand and
forearm b/c a safety device had been removed by the store. Super
purchased the meat grinder in 1961, and Hobart began warning not to
take off the safety device in 1962. The accident occurred in 1993.
 Issue: Whether manufacturer liability can exist under a failure to warn
theory in cases in which the substantial modification defense would
preclude liability under a design defect theory?
 Rule: A manufacturer has a duty to warn against latent dangers resulting
from foreseeable uses of its product of which it knew or should have
known. A manufacturer also has a duty to warn of the danger of
unintended uses of a product provided these uses are reasonably
foreseeable. However, the substantial modification defense says that a
manufacturer is not liable for injuries caused by substantial alterations to
the product by a third party that render the product defective or unsafe.
 Holding: Manufacturer liability can exist under a failure to warn theory
in cases in which the substantial modification defense might otherwise
preclude a design defect claim.
 Reasoning: There is a duty to warn against forseeable misuse, and so
also there is a duty to warn against foreseeable alterations, like removing
the safety shield.
 Note, this case shows that in a design defect case, one major defense is
the substantial modification test – a third party substantially modified the
product.
Exceptions to products liability in employment
o Bulk suppliers
 Companies who supply a product in bulk to a large enterprise where it
will be used by many workers are often immune from liability.
 List of factors to determine whether “bulk supplier defense” applies
 The likelihood of serious injury from a supplier’s failure to warn
 The burden on a supplier of giving a warning
 The feasibility and effectiveness of a supplier’s warning
 The reliability of employers to warn their own employees
 The existence and efficacy of other protections
 The social utility of requiring suppliers to warn.
Defenses to Work Related Product Injury
o Assumption of Risk:
 An employer or manufacturer will have assumed to have been barred
from an assumption of risk defense when the employee involuntarily had
to use a defective product in the line of his/her job,
53

o
Courts are split on whether the employer’s waiver or assumption of risk
applies to the employee
What is the liability when an employer purchases a manufactured good without
optional safety devices?
 Factors to determine whether a device without optional safety device is
defective
 The buyer is thoroughly knowledgeable regarding the product and
its use and is actually aware that the safety feature is available.
 There exist normal circumstances of use in which the product is not
unreasonably dangerous without the optional equipment.
 The buyer is in a position, given the range of uses of the product, to
balance the benefits and risks of not having the safety device in the
specifically contemplated circumstances of the buyer’s use of the
product.
Products Liability for services

General Rule: Restatement requires that the D be a seller of goods in order for strict
liability to attach. Providers of services may only be held liable for negligence.
o This is the “legal fiction” of the services/products dichotomy
o A legal fiction is something that exists only through legal definition with no realworld manifestation. It is a heuristic device for determining cases.
o But legal fictions may actually impede decision making and lead to inequitable
results.
o This means that putting a consumer good in the “product” or “service” legal
category has important consequences.
e. Royer (plaintiff, appellant) v. Catholic Medical Center (defendant, respondent),
SC of NH, 1999
i. Facts: Royer underwent a total knee replacement at CMC (D) and has a
prosthetic knee implanted. The prosthetic knee was later found to be
defective, and a second surgery was required. Royer sues the hospital for
the defective product because they supplied the defective product.
ii. Issue: Is a health care provider that supplies a defective prosthesis in the
course of delivering health care services a “seller” of prosthetic devices?
iii. Holding: The hospital was not a seller of the prosthetic knee, but was
just providing a service to Royer – his primary reason for the hospital
visit was not to purchase a knee, but to receive medical services. As a
provider of services, the hospital could only be held liable for
negligence, not strict products liability.
Tort Versus Contract


Contract law v. Tort Law:
o Contract is based on privity
o Tort law requires no privity
o Treating contracts like torts would undermine the purpose of creating contracts
o Both do deal with losses b/t parties that have a fiduciary relationship (contract) or
a legal relationship (tort)
Pure Economic Loss: Using tort theories in order to recover damages when the loss is
purely economic is difficult. Courts have generally been reluctant to allow consumers to
54


use strict products liability as a basis for recovery when the only loss suffered is an
economic loss.
Damage to Product Itself: When a defective product malfunctions and causes damage
only to itself, the courts are split as to the applicability of strict products liability:
o Majority view: Recovery is denied under tort law. The plaintiff is restricted to
normal contract remedies arising out of warranty. This is the rule of Seeley v.
White Motor Co. (Cal. 1965)
o Minority view: Recovery allowed. This is rule in Santor v. A&M Karagheusian,
Inc. (N.J. 1965)
East River Steamship Corp. v. Transamerica Delaval Inc., US Supreme Court, 1986
o Facts: Delaval made turbines that were used in four ships that were chartered for
20-22 years by the four plaintiffs. On East River’s ship’s maiden voyage, the
turbine was found to be defective (value was installed backwards, and valve ring
disintegrated) and caused significant property damage to the turbine itself. East
River sues under strict liability although the only damages were economic (lost
revenues during the repair time of the ship and damage to the turbine).
o Issue: Can P recover in strict liability for a defective product when the only loss
is the purely economic loss of damage to the product itself?
o Holding: No. Because the only harm that resulted was economic, a products
liability claim will not suffice b/c only economic harm resulted.
o Reasoning: Tort theories are designed to protect the injured party from
dangerous conditions that could harm the plaintiff. Where the loss is of the
product itself, the loss can more properly be covered by a bargained-for
exchange. Contract remedies, specifically warranty rights, are the appropriate
method of handling such problems.
o Note: Court adopted position of Seely (majority rule), and rejected Santor,
minority rule.
Nuisance

Nuisance refers to interference by the D with a right of the P to the use or enjoyment of
property. Nuisances are types of damage or harm. The utility of the defendant’s activity
versus the harm to the plaintiff’s interests is the key to nuisance. Each possessor of land
is privileged to use her own property or to conduct her own affairs at the expense of some
harm to her neighbors; if the use is “unreasonable,” it will constitute a nuisance.
Private Nuisance:



Theory:
Fletcher’s view of nuisance: a victim of harm has a right to recover for injuries caused by
a risk greater in degree and different in order from those created by the victim and
imposed on the D – in short, for injuries resulting from nonreciprocal risks
Coase – “The Problem of Social Cost”: in the absence of transaction costs, it matters not
who the legal entitlements are assigned, b/c the parties will bargain afterwards to an
efficient outcome
 The person inflicting a nuisance can just pay the person inconvenienced – there is a
price the person harmed will accept for the nuisance, and there is a price the person
harming will accept to stop the actions causing the nuisance
 A law judgment destroys this efficient market outcome
 Illustrates how causation works both directions
55
o
o
o
o
o
o
o
o
o
o
Defined:
A private nuisance is an unreasonable and substantial interference with the use or
enjoyment of an individual’s property interest in land. It is distinguished from trespass in
that it does not require a physical entry upon a plaintiff’s premises. It follows from the
principle that everyone should use her property so as not to injure the property of another.
To prove nuisance: Show that Ds conduct was an intentional or negligent interference
with the use and enjoyment of the land
Restatement Rules:
Substantial Interference: Nuisance liability requires substantial harm, of a type which
would be suffered by a normal person in the community, or by property in normal
condition and used for a normal purpose. §821F
RST §822: one is subject to liability for conduct that is a legal cause of an invasion of
another’s interest in the private use and enjoyment of land if the invasion is either:
o Intentional and unreasonable (see §826), or
o Unintentional and arising out of negligent or reckless conduct or abnormally
dangerous conditions or activities
RST §826: factors involved in determining the unreasonableness of the act:
o The gravity of the harm (see §827) outweighs the utility of the actor’s conduct
(see §828)
o 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
RST §827: Factors involved in determining the gravity of harm of the act:
o The extent of the harm involved
o The character of the harm involved
o The social value that the law attached to the type of use or enjoyment invaded to
the character of the locality
o The burden on the person harmed of avoiding the harm
RST §828: Factors involved in determining the utility of the conduct:
o The social value that the law attached to the primary purpose of the conduct
o The suitability of the conduct to the character of the locality
o The impracticability of preventing or avoiding the invasion
Sometimes the gravity of harm is so great that no matter what the utility of the conduct is,
that compensation must be given (§829)
Remedies for Private Nuisances
o 2 options – damages or injunction
o There is always the opportunity for the losing party to buy out the result. There is no
prohibition to post-judgment negotiation.
 Coase suggests that in absence of transaction costs, post-judgment bargaining
will occur to reach an efficient result.
o If the court grants P an injunction, P has the opportunity to “sell” the injunction to the D.
P can tell D that they will enforce the injunction, unless D pays P off.
 From a law and economic test (Coase), this assumes that P has a price at which
they will sell the injunction. Some people argue that it is possible that a P has no
price at which he will sell. For example, in Estancias, below, the elderly couple
refused to be bought out of their home.
56
 Despite predictions of the law and economics folks (like Coase), post judgment
bargaining does not happen too often. Why?
 It could be because many Ps have no price for which they will sell – but
what if D offered P $1 mill? $2 mill? You would think at some price,
people would sell.
 Another probable explanation is that the psychological impact involved with
going through litigation is profound and prevents people from wanting to
negotiate following judgment
o Boomer v. Atlantic Cement:
1. Facts: D operates a large cement plant near Albany. These are actions for injunction
and damages by neighboring land owners alleging injury to property from dirt,
smoke, and vibration emanating from the plant.
2. Issue: Court had applied the Jost threshold test to determine if there was a nuisance,
and determined there was. Now question was what the remedy should be.
3. NY Common Law Rule: Whenever the damage resulting from a nuisance is found
not “unsubstantial,” injunction would follow.
a. In English, this meant that any substantial damage to the plaintiff would warrant
an injunction
b. Acc to this rule, NY did not balance the equities (compare injuries that would be
suffered if injunction were to be granted v. not granted).
4. Holding: Overrules common Law. Court adopts a balancing of the equities test that
takes into account the harm of shutting down the company to D and to the public
versus the harm to the plaintiffs
5. Ct decides to grant an injunction conditioned on the payment of permanent damages
to the plaintiffs which would compensate them for the total economic loss to their
property present and future caused by D’s operations. If cement company paid all
future and present damages, the injunction was lifted
a. With this option, the company is essentially paying to have their future activity
condoned by the court and may deter any efforts to make changes the activity
b. Permanent damages – the damages the complainant is suffering now combined
with all future damages they will likely suffer as a result of the nuisance. P
cannot sue in the future for any other damages. Moreover, the permanent
damage judgment is a servitude on the land (runs with the land forever) and is
carried forward to subsequent purchasers. So, permanent damages covers any
damage now and all damages that cover forward
6. Reasoning: Why did Ct overrule common law?
a. Utilitarian concern of protecting D’s investment and protecting the jobs at the
cement plant.
b. This is a nationwide issue that should be decided by the legislature, not by the
courts, who do not have the technical know-how required to regulate air
pollution and other environmental issues.
7. Reasoning: Arguments in Favor of Permanent Damages:
a. Cts decision to allow D to avoid permanent injunction by paying permanent
damages is more efficient because the injured party is compensated for the
harm, and D is put on notice of the bad conduct and may lead them to
internalize the externalities and may take them into consideration when
figuring out future actions
57
b. prior to any suit, the nuisance would be an externality and the company was
taking actions without thinking of the affect on other neighbors
c. Is efficient because it compensates the injured party without completely wiping
out the actor
i. i.e. the cement company did not take into account the cost of its actions
prior to the lawsuit – now they must account for the cost and action
because they may be liable
8. Dissent: The dissent argued that once the company paid the damages, they had no
incentive to change their practices
9. Comment: Problem with Permanent Damages
a. Is it possible to quantify the true social cost of the D’s actions
b. The cement company’s activities were much worse than described in the case
c. A real challenge exists in figuring out what the true costs of future damages
would be
o Summary of four remedial options when there is a nuisance: (Calibresi)
ii. Find an entitlement in P and protect it by a property rule (an injunction)
iii. Find an entitlement in P and protect it with liability rule (damages)
iv. Find an entitlement in D and protect it with a property rule (denial of injunction)
v. Find an entitlement in D and protect it with a liability rule (damages by P)
Public Nuisance:
o
o
o
A public nuisance is an unreasonable interference with a right common to the general
public. It includes interference with the public health, safety, morals, peace, comfort, or
convenience. The right interfered with must be common to the public as a class, and not
merely that of one person or even a group of citizens.
Remedies: A private citizen has no civil remedy for the harm he has sustained as a result
of a public nuisance if that harm is of the same kind as that suffered by the general
public, even though he has been harmed to a greater degree than others. The remedy is a
criminal prosecution or suit to enjoin or abate the nuisance by public authorities or others
on behalf of the public.

This is to guard against the multiplicity of lawsuits that would follow if everyone
were permitted to seek redress for a wrong common to the public
A private citizen may sue for harm caused by a public nuisance only if his harm is a
special injury, different in kind from that suffered by other members of the public.
Alternatives to Tort Liability
Tort
o
o
Private Actions
Open ended damages
Tort Reform
o
o
Began in an aggressive way in 1970s to fix basic perceived problems with tort regime
Corporate America was complaining about the large damage awards (cigarettes,
automobiles) – everyone is getting sued.
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o
o
o
o
o
o
o
o
o
Insurance companies were also unhappy at this time and felt threatened b/c corporate
America did not want premiums to rise – thus insurance and corporate America
joined to lobby for limits to damage awards.
Lobbyists for corporate America rampaged against laws that would allow large
damage awards and against lawyers who were driving up damage requests to get the
high commission
Responses:
First reform was elimination of contributory negligence defense and its replacement
with comparative fault. This has continued through 80s and 90s to present day
Also reform included radical departure from joint and several liability rules
 Under comparative fault, each person was only liable for their
apportioned share
 Made some corporate Ds very happy – before, P could go after the
jointly and severally liable D with the deepest pocket.
Another major area of reform in the area of damage caps.
 Statutes limited damage awards for pain and suffering, loss of
consortium, and other non-economic damages. Medical expenses and
future wages (economic damages) remained fixed.
 Knowing what cap is enables company to more rationally insure
 On the other hand, those who have been inflicted with severe pain and
suffering may not be able to as completely recover
 Also, another reform involved limits on or elimination of punitive
damages
 Since we have a criminal justice system, we should not allow
excessive punitive damages
 Also, if many victims to a crime, the first one to sue could get a
huge punitive damage check, and the rest were SOL bc the
defendant was left bankrupt. This wasn’t fair
Insurance companies were somewhat successful in getting the collateral source rule
eliminated (such as in medical malpractice)
Another reform involved limiting the statute of limitations to shorter periods
Medical malpractice statutes
 Perceived crisis in malpractice in 1970s: increased damage awards
against physicians making physicians to pay up or insure against these
losses, but insurance companies were not willing to do this without a
high premium. The private tort system was felt to not be working b/c it
was driving the costs of medical care up due to the large malpractice
insurance premiums.
 Medical malpractice reforms were prompted by the sense that we were
actually losing out on the number and distribution of medical
practitioners because of litigation.
 Litigation was driving some docs out of business and out of specialties
like OB-GYN and making it difficult for these practitioners to provide
services to lower income people
 Why increase for malpractice claims: change in society about role of
physician and rights of patients. In the 50s and 60s, the physicians could
perform a procedure without informed consent – the courts entrusted the
docs with the paternalistic duty to provide care. Docs not questioned –
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o
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presumed to be ethical and knowledgeable. Docs only liable if the doc
was grossly negligent in ordering tests.
 Bioethics was formed as a result of the lack of informed consent research
experiments – now we have informed consent!
 To relieve pressure of medical malpractice, state legislatures began to
pass statutes to protect practitioners:
 Capped med malpractice damage awards
o Capping and limiting pain and suffering awards
o Capping and limiting total damage awards
 Created arbitration procedures to encourage settlement
“No fault” auto insurance/ uninsured motorist policies
 By using statutory requirements, drivers would get in their car knowing
that if they had an accident without regard to whose fault it was the
insurance company would be there to pick up the tab
Alternatives to Tort: Workers Compensation:
Introduction: Employer liability for employees injured at work was the field in which
liability insurance first developed. Shortly thereafter, legislation was passed (now every
state has such a system) to provide employer contributions to a state fund to compensate
injured employees, regardless of fault (known as “workers’ compensation” statutes).
Benefits are limited in amount and duration.
Clodgo v. Industry Rentavision
o Facts: Claimant worked as manager of rentavision. During lull between customers,
claimant began filing staplers at a coworker who was sitting on a couch watching
television. Coworker shot three staples back at him and hit clamant in the eye.
o Issue: Whether claimants horseplay bars him from recovery under Vermont’s
workers compensation act?
 Whether or not the statutory requirement of cause has been met: Was
this injury caused by work? Did this injury arise out of or in the course
of employment?
o Holding: Employer not liable.
 Court says the key question is whether employee deviated too far from
the course of his duties.
 Four criteria:
 Extent and seriousness of deviation
o Allen would ask: “Is this the kind of activity for which a
person would be fired?” Depends on context of setting.
 The completeness of deviation
 Extent that the activity had become accepted
 Extent the activity could be expected on the job (more of a
normative question).
 Although shooting staples was common among employees, this was not
an accepted part of employment
 If you can show that the activities are comingled with work activities, (ie,
paralegal hurt while stapling papers together), that can make employer
liable. However, accident was unrelated to work; no comingling of
horseplay with work duties.
o Notes:
 Allen thinks this case can be argued both ways.
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

Argument against liability: The shooting of staples out of the staple gun
has nothing to do with employment – nothing to do with purpose for
which employees were hired, and not approved conduct.
 Argument for liability: It is foreseeable that employees will engage in
horseplay. Horseplay is common. Arguably, in a modern workplace,
employers should for policy reasons be liable for foreseeable horseplay.
Moreover, during the course of employment, the employees engaged in
horseplay, and this is foreseeable.
 Allen would add a fifth and very important criteria: Does the activity
further the employer’s interest?
History of Worker’s Compensation:
o 19th Century:
 Workers who got hurt at work were largely out of luck
 A number of legal doctrines made it difficult for workers to sue their
employers (not impossible, but difficult)
 With industrialization came a whole new era of workplace injuries.
 Industry/Enterprise liability to third parties: (Industry is responsible for
defective products/injury): View was that given that we need industry and
transportation, we cannot choke progress by imposing strict liability rules on
industry
 In workers injury context, there was a similar kind of problem: if we find
workers responsible too much, this could stifle progress
 Defenses to workers comp:
 Fellow servants rule – Employer not responsible for injury caused by
other coworkers
 Assumption of risk – In 19th century this was also a complete defense
 Philosophy that wages compensate workers for their injuries.
Employers said that wages reflect the risk employers take on
– assumed equal bargaining power for wages. By paying $5
instead of $3 per hour, employer said that employee chose to
assume the risk for additional compensation
 Contributory negligence – In 19th century this was a complete
defense)
 Industrialization period: Unions organize in response to this
o 20th Century:
 States move toward statutory solutions for workers compensation
 Features of a contemporary workers compensation statute:
 State Fund: All states have a workers’ comp fund that employers
are required to pay premiums into. This is certainly the cheapest
form of insurance for most employers, particularly small businesses.
 The state Workers Compensation Board is responsible for providing
payouts to employees from this state fund
 If an employer is injured and is seeking recovery, she can file a claim
either at the Board or frequently even from her own office.
 The Board will review the claim. The want to see proof of injury,
etc. If the employer does not contest the claim, the Board will cut a
check
 By virtue of state law, every employer is liable for injuries that occur
in the workplace on a strict basis, without regard to fault.
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However, the employer does have the option of challenging the
claim through a lawsuit.
 An employer would do this to:
 Prevent an increase in their premiums to the state fund
 To discourage employees from performing risky behaviors
on the job or from making fraudulent claims with threat of
an expensive law suit
 Maintain the employer’s good reputation.
Limited Cause: Workers compensation covers accidents arising out
of or in the course of employment
 “Coming and Going” Rule: (Mentioned earlier in context of
vicarious liability) Accidents occurring in commuting to and
from work are not covered.
Benefit Amounts: Statutes specify types of damages that must be
paid and the mechanism for paying
 In most states, payouts are very standardized. A leg injury
costs X, an arm injury costs Y, etc.
 In determining payouts, most state statutes consider the
seriousness of the injury, expected length of incapacity, and
average weekly wage of the worker. This provides lost
wages. States also set a maximum amount allowable
Exclusive Remedy: Typically, workers’ compensation is the sole
remedy an employee has against his employer.
 Workers cannot bargain with employers to try to get out of
workers comp such that they can bring a negligence suit.
Statute prevents this.
Policy Grounds for Making Workers’ Comp the Exclusive
Remedy:
 The workers’ compensation statutes provide prompt, certain
recovery for injured workers. The worker does not have to
prove fault and does not risk losing benefits due to
contributory negligence, assumption of risk, or other
defenses.
 The employer gains the benefit that the compensation
benefits are limited in amount and are generally the
exclusive remedy available to the injured employee.
Alternative to Tort: New Zealand System:

1974 Original Plan: Rejects idea of fault or litigation. Costs are not litigation costs, but
administration costs.
o Workers: No need to go to court or file a lawsuit if you are injured, no matter
where injury took place employer is liable (exception: if worker in an
automobile, they get covered under auto accidents).
 80% lost wages
 Medical expenses
 Rehabilitation costs
 All paid for by employer (who can get insurance)
o Automobile or Vehicle accident:
 Medical expenses
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

 Lost earning capacity
 Financed by levies on vehicle owners
o Non-workers:
 General treasury pays for all general medical expenses
Amended in 1992:
o Categories of injuries that were covered was narrowed. Under original plan,
virtually any accident you got into would be covered. Under the revision, certain
injuries not tied to a day or time accident would not be covered
o Off the job injuries to workers would no longer be paid for by employers
contribution, but rather employees were required to have an insurance plan that
they paid for out of their own wages.
o Gasoline excise tax added to help finance compensation for auto/vehicle injuries
o “Medical misadventure” compensation added, financed by premiums paid by
health care providers.
Under both the 1974 and 1992 plans, additional sums available to injured parties:
o Lump sum payments to people who lost a body part
o Also awards for pain and suffering and loss of enjoyment of life.
o However, these were limited -- $10,000-$17,000 in New Zealand dollars.
This system has not caught on internationally
Alternatives to Tort: Government Managed Payment Schemes:
 Workers Compensation payments (All 50 states)
 Black Lung Disease Compensation (federal)
o Coal Mine Health and Safety Act of 1979. Provided benefits to people injured as
a result of their employment in coal mines
o To recover, did not have to prove that your employer was at fault, just that you
were a coal miner, worked in that business for a number of years, and developed
certain disorders.
o Paid for by the coal mining operators paying an excise tax on their goods
 Vaccine Injury Compensation (federal)
o Especially Polio
o Polio was an enormous public health problem in this country prior to 1950s.
o Doctors created a vaccine
 Some of the dead virus vaccines had live polio in them and people got
sick
 The live virus vaccines were more effective but a small percentage of
people would also get sick
o But, gov encouraged and eventually required children to get these vaccines
o So, gov eventually created a fund to compensate people who were crippled by
polio vaccines, extended to other vaccine injuries
o National Childhood Vaccine Injury Act of 1986:
 Enacted to limit the number of lawsuits from vaccines that children are
required to have b/f entering school
 The gov’t set up a fund to compensate children who become sick from a
vaccine manufactured by a private manufacturer
 Theory is that society should pay for a basic level of public health
 This keeps the cost of these vaccines down b/c manufacturers are not
concerned with liability
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Note: child injured from vaccination still has the option of bringing a tort
suit. However, if you do bring a private law suit, the law has placed such
strong limitations on that law suit that going that route is made
unappealing. There are several defenses available to vaccine
manufacturers (even the learned intermediary defense, even though in
earlier case it said that that excluded mass vaccines??) and the plaintiff
can rarely succeed in such a suit.
Birth-Injury Compensation (selected states)
o Not very popular and hasn’t been copied by very many states
9/11 Victim Compensation fund (federal)
o Who will pay for 9-11 injuries
o One possibility? Sue the airlines? The WTC? The firefighters? The employers
in the WTC?
o Congress instead passed this Victim Compensation fund
o Special master decided not to do a specialized individual judgment in every case,
but created categories and some damage caps.
 Average death benefit proved to be about 2 mill, largest was 7.1 million
dollars
Why Tort?
o Compensate victims (welfare, justice, deters and efficiency)
o Deter (efficient and just)
o Punishment (just and deters)
Why Tort Reform?
o Improve on basic goals
o Cost avoidance at a reasonable cost
Why Alternatives to Torts?
o Improve more
o Modify or abandon old goals
Defamation:
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Blends common law and First Amendment principles
Starting in 1964, Supreme Court recognized constitutional limitations on defamation
claims
Since then, courts have been struggling to find an accommodation between a P’s right to
be compensated for reputational harm and a D’s right to free speech:
There has been a move away from constitutional protection in the defamation arena
during the last few decades, a development that has added renewed importance to the
common law rules
Common Law Background:
o Introduction:
 At common law, every element of the prima facie case of defamation
was based on strict liability except that of publication. Publication had to
be intentional or negligent.
 Elements of common law tort:
 Defamatory Statement
o Libel (oral defamation)
o Slander (written defamation)
 Of and Concerning the Plaintiff
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o
o
o
It must be understood as referring to the plaintiff
It must be understood in a sense defamatory to the
plaintiff
 There must be a publication
o This means it must be communicated to a third party
 At common law the falsity of the allegedly defamatory statement was
presumed, and in most instances, damages were presumed
 Once P proved her prima facie case, the D then had the opportunity to try
to assert a defense, such as the truth of the statement.
Defamatory statement:
 P must persuade jury that the statement at issue is defamatory
 Common law rule: to be defamatory, a statement must hold the plaintiff
up to scorn, ridicule, or contempt
 2d Restatement: A communication is defamatory if it “tends so to harm
the reputation of another as to lower him in the estimation of the
community or to deter third persons from associating or dealing with
him.”
 Typically, defamatory statements accuse a person of immoral or criminal
conduct
 Mere insults, hyperbole, obvious jokes or pure opinion cannot be the
basis for a defamation action.
 Judge v. Jury: Romaine v. Kallinger (NJ 1988): “If a published
statement is susceptible of one meaning only, and that meaning is
defamatory, the statement is libelous as a matter of law. Conversely, if
the statement is susceptible of only a non-defamatory meaning, it cannot
be considered libelous, justifying dismissal of the action. However, in
cases where the statement is not capable of being assigned more than one
meaning, one of which is defamatory and another not, the question of
whether its content is defamatory is one that must be resolved by the trier
of fact.”
 The court and jury give the statement its “fair and natural meaning” as
understood by reasonable persons, rejecting tortured and extreme
interpretations.
 The context in which the language is used and even the punctuation, as
where words are placed in quotation marks, may affect the determination
of whether it is defamatory
 Defamatory to Whom?
 P need not show that most people to whom the statement was
communicated would have interpreted it in a defamatory fashion.
 Rather, it is enough for the P to show that a “substantial and
respectable minority” or a “right thinking minority” would
comprehend the defamatory nature of the communication.
 If the group that could interpret the communication in a way that
injures the P’s reputation is blatantly anti-social, courts may
deny the plaintiff a defamation action.
o Thus, a neo-Nazi wrongly accused of marrying someone
Jewish will have no defamation action.
o Courts have confronted issue of whether defamation
statements imputing certain traits or behaviors, such has
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o
o
homosexuality, should be a basis for a defamation
action.
 Statements Not Facially Defamatory: Inducement and Innuendo:
 Sometimes the defamatory nature of a statement is not selfevident but can be understood by the addition of extrinsic
information
 In such situations the plaintiff is obligated to plead the extra facts
needed to make the statement defamatory (“inducement”) or to
explain the defamatory impact (“innuendo”) if it is not obvious
Of and Concerning the Plaintiff:
 The plaintiff must show that the defamatory statement was understood as
referring to her.
 Under common law, the defamed P must be both alive at the
time of the alleged defamation and at the time of the trial.
 If the P can show this, it is irrelevant that the D did not intend for the
statement to refer to the P
 Restatement: “A defamatory communication is made concerning
the person to whom its recipient correctly, or mistakenly but
reasonably, understands it was intended to refer.”
 Similarly, even if the defendant intended to create a fictional character, a
defamation action will lie where recipients of the communication
reasonably believe that the character is really the plaintiff.
 Colloquium: Where the plaintiff is not expressly named in the
communication, the P must plead “colloquium” to connect herself to the
defamatory statement.
 Group Defamation: Sometimes defamatory communications do not
specifically name individuals but ascribe discrediting behavior to
unnamed members of a group. If the group is small and the defamatory
sting may attach to each group member, each member of the group may
bring a defamation action
 The larger the group, the less likely it is that a court will permit a
defamation action by all the affected group members.
o Where the line is to be drawn is far from clear
 Corporate Plaintiffs: Corporations and other business entities may be
defamation plaintiffs where the communication tends to cast aspersions
on their business character, such as trustworthiness, or deters third parties
from dealing with them. Where the attack is on a product, the action is
typically for product disparagement (sometimes called trade libel or
injurious falsehood).
Publication and Republication:
 For a communication to be published, it must simply reach one person
other than the defamation plaintiff. That third party must understand the
communication’s defamatory thrust.
 Any additional number of recipients may be relevant to
calculating the damages the plaintiff suffered
 Any repetition of a defamation is considered publication, even if the
republisher attributes the statement to the initial source
 Most jurisdictions today have adopted by statute or court decision a
single publication rule whereby an entire edition of a book or a periodical
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constitutes a single publication (rather than each copy of a book or
newspaper constituting a new publication).
o
Damages:
 Depends on whether the defamation is classified as libel or slander and,
if slander, whether the defamation falls into a category dominated
“slander per se”
 However, all plaintiffs in defamation cases could recover punitive
damages upon proof of malice
 Libel: Defamation appearing in some written or printed form, ie reduced
to some permanent, physical embodiment such as in newspapers, a letter,
a photo, a statute, or a sculpture etc.
 Majority View: General Damages: Under the traditional view,
which remains the position of most jurisdictions and of the
Restatement, any libel plaintiff may recover general damages –
recovery without any proof of loss beyond the defamatory nature
of the communication.
o General damages are awarded because in libel cases, a
plaintiff’s reputational injury may be presumed,
permitting the plaintiff to recover compensation without
any proof beyond the defamatory nature of the
communication
o General damages provide compensation for the
emotional harm suffered by the P whose reputation was
besmirched
 Minority View: Libel Per Se v. Libel Per Quod: Some states
have narrowed the dominant approach and have distinguished
between libel per se (libel on its face) and libel per quod (libel
that requires extrinsic evidence such as inducement or
innuendo). In these states, damages are:
o Libel per se: general damages
o Libel per quod: requirement of special damages
 Slander: Slander is usually oral defamation – representations to the ear
rather than to the eye. Principle character of slander is that it is in a less
physical form.
 Slander v. Slander Per Se:
 Slander: Requirement of Special Damages:
o Where the defamation is characterized as slander, the P
generally must meet the substantial burden of pleading
and proving special damages.
o “Special Damages” are specific economic losses
stemming from the defamation, such as lost profits, and
must be pled with specificity.
o In these cases, if the plaintiff proves these special
damages, she can then recover general damages;
however, special damages are often hard to prove
 Slander Per Se: Exception to Requirement of Special Damages.
o For slander per se cases, general damages apply.
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o


o
Since early common law, certain slanderous statements
were deemed so horrible that reputational injury to Ps
could be presumed even without proof of special
damages. These special “slander per se” categories are
widely followed today
o Four Slander Per Se categories:
 Slanderous communications that directly call
into question the plaintiff’s competence to
perform adequately in her trade or profession
 Statements claiming the P has a current,
loathsome disease such as syphilis or AIDS.
 Allegations of serious criminal misbehavior by
the P (typically immoral criminal behavior)
 Statements suggesting a lack of chastity in a
woman (most controversial – today, Restatement
proposes that this category encompasses any
serious sexual misconduct regardless of gender
Difficult Cases: In some cases, it is very difficult to determine whether
the publication is slander or libel. For example, the defamations
contained on an audiotape or videotape seem to contain elements of each.
 In these cases, courts usually consider the following factors:
o The permanency or nonpermanency of form
o The area of dissemination; and
o Whether the publication is deliberate or premeditated
Restatement 2d §568A provides that “broadcasting of defamatory
matter by means of radio or television is libel, whether or not it is read
from a script.”
Common Law Defenses:
 Most of these remain extremely important, even though
constitutionalization of the tort of defamation has profoundly affected
some of the traditional common law defenses
 Substantial Truth: At common law, defamatory communication was
presumed false, and it was incumbent upon the defendant to establish
truth of the underlying allegation as a defense (if statement was true, no
action for defamation existed).
 While the D had to show the accuracy and truth of the statement
in issue, she did not have to show the literal truth of every aspect
– substantial truth is the test.
 Absolute Privileges: There are certain absolute privileges under which a
D may escape liability even if she knew that the statement was false or
published it in order to hurt the P’s reputation. Absolute privileges
typically arise in governmental proceedings involving judicial,
legislative, and executive communications.
 Judicial context: statements made in court or in official court
papers are absolutely privileged as long as relevant to the court
proceeding
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Legislators: Not liable for defamation even if (s)he makes a
knowingly false statement during debate on the floor of the
legislature
 Non-governmental contexts:
o Communications made privately by one spouse to
another are absolutely privileged, as are television or
radio stations’ obligatory broadcasts of a candidate’s
response to another candidate pursuant to laws
mandating equal access in the electoral process.
Qualified Privileges: Qualified (or conditional) privileges have
developed from the recognition that there are certain interests which
could be seriously impaired by the common law’s strict liability
approach to defamation.
 Type of qualified privileges:
o D has a qualified privilege to protect her own interest (ie,
where she accuses P to exculpate herself from
accusations of wrongdoing)
o D has qualified privilege when she responds to a
perceived duty to convey information of interest to a
third party (ie, D, P’s former employer, giving a
prospective employer an honest assessment of P)
o Where D and recipient of information share a common
interest, D has a qualified privilege
o “Fair and accurate report” privilege allows a newspaper
to report exactly what happened, even if it repeats a
defamatory statement, so long as the report is accurate
and unbiased.
 Qualified privileges can be lost. Up to jury to decide if D lost
privilege. Qualified privilege can be lost if jury finds that D did
not have an honest or reasonable belief that the statement was
true or if D disclosed the information to more people than
necessary
Constitutional Constraints:
o
o
1st Amendment: Congress shall make no law abridging the freedom of speech
or freedom of the press. Although it says Congress, read it as “no governmental
entity shall make no law…”
 However, in US you aren’t allowed to say anything you want to say.
Acc. to Supreme Court, the following types of speech may be restricted:
 Obscene speech
 Fighting words – if speech is so provocative as to constitute
“fighting words,” that kind of speech can be restrained.
o Seldom used doctrine. Takes a lot to constitute fighting
words.
 Speech that defames or that invades privacy.
o This section focuses on speech that defames.
Prior to 1964, courts had repeatedly determined that the First Amendment played
no role in the defamation context because defamatory speech is false.
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
o
o
o
So, defamation was entirely defined by the state law without any
constraints imposed by the United States Constitution
 Sweeny v. Patterson: Defamation case that occurred pre-Sullivan
(official accused by media of being anti-Semitic, he sued for libel).
1964, in New York Times v. Sullivan (below), Supreme Court determined that
the Constitution affected defamation law in certain contexts. Since 1964, the tort
of defamation is no longer always a strict liability action. .
 Since Sullivan, analysis of a defamation case requires a consideration of:
 The status of the plaintiff (whether she is a public official, public
figure, or private person)
o If the plaintiff is a public figure, it must be proved that
the defendant knew that the statement was false or
recklessly disregarded truth or falsity.
 Status of the subject matter of the defamation (whether it is of
public or private concern).
o If the plaintiff is a private figure and the matter is one of
public concern, at least negligence must be proved
Common law defamation rules remain important bc they determine the pleading
requirements and provide various defenses.
Public Officials:
 NYT v. Sullivan Rule: A public official plaintiff can only prevail in a
defamation action where the public official shows that the defendant
either knew that the statement was false or recklessly disregarded
whether the communication was false -- a fault standard known as
“actual malice.” P has heightened burden of proving actual malice with
“clear and convincing” evidence.
 Note: The Sullivan decision only affects defamation actions
against public officials. Not everyone on the govt payroll is
classified as a public official. Public officials are those
individuals who are positioned to affect policy. As one moves
away from those at the top of the decisionmaking structure, the
issue becomes cloudier. For example, most courts have
determined that police officers are public officials, while public
school teachers are not.
 New York Times Co. (petitioner, defendant) v. Sullivan (respondent,
plaintiff) (US 1964)
 Facts: New York Times Company (D) published an
advertisement that criticized the action of officials in
Montgomery, AL, with regard to their treatment of civil rights
workers. The advertisement stated that the treatment violated
constitutional rights of blacks through intimidation and violence.
It was uncontroverted that many facts asserted in the
advertisement were false. Commissioner Sullivan (P) was
responsible for the police department. P sued D, and the trial
court awarded P $500,000 in damages. The trial court held that a
false publication is libelous per se if it injures an official in his
public office or imputes misconduct to his office. The award
was sustained by the Alabama Supreme Court, and D appeals.
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o
Issue:
o May a public official recover damages for a defamatory
falsehood relating to his official conduct if he does not
prove that the statement was made with actual malice?
o May an impersonal criticism of a governmental
operation be the basis for a libel suit brought by the
public official responsible for the operation
 Holding: No and No.
 Reasoning:
o The constitutional guarantees of free speech and press
require a federal rule that prohibits a public official from
recovering damages for defamation unless the statements
were made with actual malice
o The advertisement was an expression of protest on a
major public issue and hence clearly qualifies for First
Amendment protection
o Protection of statements made in the exercise of a First
Amendment freedom has never depended upon the truth
of the statement
o The fact that the Alabama law allows the defense of
truth does not save the law from unconstitutionality. A
rule compelling a critic of official conduct to guarantee
the truth of his statements on pain of a libel judgment
imposes self-censorship and a dampening of free choice
o P’s case lacks proof of actual malice
o There was no reference to P in the advertisement either
by name or position, and there was no basis suggested at
trial to justify P’s belief that he was personally attacked
by references in the advertisement to the police.
Public Figures:
 A few years after Sullivan, the Supreme Court determined that “public
figures,” like public officials, should have to prove actual malice in order
to prevail in defamation actions.
 So, Sullivan doctrine applies to public figures as well as public officials.
 Substantial litigation has involved who constitutes a public figure for
defamation purposes.
 Supreme Court has recognized two general categories of public figures:
 All purpose public figure (someone who is widely known, like
Bill Gates, Michael Jordan, or Madonna)
 Limited public figures (a person who either “voluntarily injects
himself or is drawn into a particular public controversy and
thereby becomes a public figure for a limited range of issues”
related to that person’s public figure status. See Gertz, below.
For limited public figures, the press (or any defamation D), is
only safe to make comments regarding the specific range of
issues the person is drawn into the public for.
 The S Ct has narrowly construed the public figure category, recognizing
that classifying a person as a public figure has a profound impact on that
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individual’s ability to receive compensation for reputational harm (bc she
must show actual malice in order to recover for damages)
The Court made clear that it “would not lightly assume that a citizen’s
participation in community and professional affairs rendered him a
public figure for all purposes,” adding “Absent clear evidence of general
fame or notoriety in the community, and pervasive involvement in the
affairs of society, and individual should not be deemed a public
personality for all aspects of his life. (see Gertz, below)
Wells (plaintiff, appellants) v. Liddy (defendant, respondant) (4th Circuit
1999).
 Facts: It is commonly believed that the burglars involved in the
Watergate break-in at the Democratic National Committee
(“DNC”) in June 1972 were trying to replace malfunctioning
listening devices that had previously been installed illegally.
Wells (P) worked for the Executive Director of the Association
of State Democratic Chairmen, whose phone was tapped. P’s
calls on that phone were also tapped and a key to P’s desk was
found in the burglars’ possession when they were arrested. P
was subpoenaed to testify before a Grand Jury and before the
Senate Select Committee that investigated the break-in. Liddy
(D) was counsel to the Committee to Reelect the President, and
as a result of the break-in was convicted and jailed. Two books
were published about the events that tied the break-in to the
DNC arranging for call girls for visiting dignitaries. One book
asserted photographs were locked in P’s desk drawer. D agreed
with the theory and repeated it during tow public appearances,
during a radio show, and on a web site for Accuracy in Media. P
filed a defamation action against D.
 Issue: Is P an involuntary public figure who must prove actual
malice by clear and convincing evidence?
 Held: No
 Reasoning:
o Gertz (below) created three types of public figures:
 Involuntary public figures, who become public
figures through no purposeful action of their
own
 All purpose public figures, who achieve such
pervasive fame or notoriety that they become
public figures for all purposes and in all
contexts, and
 Limited purpose public figures, who voluntary
inject themselves into a particular public
controversy and thereby become public figures
for a limited range of issues.
o In order to classify a plaintiff as a limited purpose public
figure, the D must prove that:
 The P has access to channels of effective
communication
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o
o
o
The P voluntarily assumed a role of special
prominence in the public controversy
 The P sought to influence the resolution or
outcome of the controversy
 The controversy existed prior to the publication
of the defamatory statement, and
 The plaintiff retained public figure status at the
time of the alleged defamation.
In order to classify that a plaintiff is an involuntary
public figure, the D must demonstrate that the P has
become a central figure in a significant public
controversy and that the allegedly defamatory statement
has arisen in the course of discourse regarding the public
matter. A plaintiff is a central figure if she has been the
regular focus of media reports on the controversy. A
significant public controversy is one that touches upon
serious issues relating to, for example, community
values, historical events, governmental activity, or
public safety. Also, although an involuntary public
figure may not have sought to publicize her views on the
relevant contfoversy, she must have nonetheless
assumed the risk of publicity, taken some action, or
failed to take action when action was required, in
circumstances in which a reasonable person would
understand that publicity would likely inhere.
P is neither a limited purpose public figure or an
involuntary public figure bc she fails to meet these tests.
P is a private figure.
Private Figures:
 Current state of the law in the private plaintiff context requires that the
subject matter of the defamation be analyzed to discern whether it deals
with matters of public concern or matters of private concern.
 S. Ct. says that to discern this, one must look at the “content, form, and
context” of the communication (Dun & Bradstreet v. Greenmoss
Builders, Inc 1985).
 This provides very little guidance
 The more widely distributed the communication, the more likely that it is
of public concern.
 Further, though the status of the defendant is not a determinative factor
in defamation law, if there is a media defendant, it is probable that the
subject matter is of public concern.
 Public Concern: When a defamation action is brought by a private
plaintiff and involves a matter of public concern, the proof requirements
depend in large measure on the kind of damages the plaintiff is seeking,
and are affected by the state’s own law of defamation.
 Gertz Rules of Private Plaintiff/Public Concern Context: (Note:
Nowhere in Gertz does the Court discuss the kind of subject matter
involved. Rather, the Court spends its time determining that the plaintiff
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is not a public figure and outlines the standard to be used for private
plaintiffs. Only after more than a decade, do we learn in Dun &
Bradstreet that Gertz was intended to apply only to matters of public
concern. This was a surprising discovery, as many interpreted Gertz as
rejecting any focus on the subject matter involved in the defamation).
 Private plaintiffs should be able to recover more readily than
public plaintiffs for defamation
 States could permit private plaintiffs to recover damages for
“actual injury,” under any standard OTHER THAN strict
liability. (Actual injury means loss aside from the presumed
injury inherent in the defamation itself, defined as proven
“impairment of reputation and standing in the community,
personal humiliation, and mental anguish and suffering,”)
o So, if D is negligent in defaming P, he can be held liable.
Actual malice not required for P to recover on actual
injuries.
 Tougher fault standard of actual malice was appropriate when
the plaintiff sought either presumed damages or punitive
damages.
o Awarding of punitive damages must necessarily be
limited, otherwise juries have the power to punish the
expression of unpopular views.
Gertz (plantiff, appellant) v. Robert Welch, Inc. (defendant,
respondent) (U.S. 1974)
 Facts: Gertz (P), a reputable attorney, represented the family of
a youth who had been shot and killed by a police officer in a
civil action against the officer. Robert Welch, Inc. (D) published
an article in its magazine accusing P of participation in a
Communist conspiracy against the police, and membership in
two Marxist organizations. P sued D for libel, and the trial court
directed a verdict on the liability issue in P’s favor because the
statements were admittedly false and libelous per se. The jury
returned a verdict of $50,000, but the trial judge entered a
judgment notwithstanding the verdict for D on the ground that
the article was about a matter of public interest and protected by
the New York Times Rule, absent a showing of actual malice. P
appeals.
 Issues:
o Is there a constitutional privilege to publish defamatory
falsehoods about an individual who is not a public
official or a public figure?
o May a private individual who sues for defamation be
awarded punitive damages when liability is not based on
knowledge of falsity or reckless disregard of the truth?
 Held: No and No. See rules listed above.
 The balance of freedom of speech and the state’s interest in
protecting its citizens from libel requires that a different rule be
applied to private individuals than that stated in New York Times
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A private individual does not have the access to the media that is
available to public officials and public figures to contradict the
libel and minimize its impact
 Public officials and public figures, by their involvement in public
affairs, accept the risk of close public scrutiny. Private
individuals who are defamed are thus more deserving of
recovery
 So long as they do not impose liability without fault, the states
may define the appropriate standard of liability for defamation of
a private individual
 P, although he had been active in civic and professional
organizations, was not a public figure. He had not sought public
notoriety. Furthermore, he never discussed the case with the
media.
Private Concern: The constitutional (1st Amendment) interest is highly
limited (or possibly absent) in a case involving a private plaintiff and a
private matter.
 S. Ct. held in Dun & Bradstreet that the Constitution does not
require that a private plaintiff suing in a case involving a matter
of private concern prove actual malice to recover presumed and
punitive damages, as is required of private plaintiffs suing in
cases involving matters of public concern.
 The S. Ct. has yet to clarify whether the decision would permit a
state to return to the common law strict liability approach in
these cases or whether some low level of fault, such as
negligence, might be constitutionally required.
Summary:
o
o
Actual Malice:
 As defamation law now stands, public officials, public figures, and
private plaintiffs in cases of public concern in which they seek presumed
or punitive damages must show clear and convincing evidence of actual
malice
 The fault standard of actual malice requires the P to prove that either the
D knew of the falsity of was reckless as to truth or falsity
 Must show proof that the defendant had “in fact entertained
serious doubts as to the truth of his publication.”
 Court may be moving slowly toward redefining actual malice slightly so
that it can be satisfied with a lower level of fault on the part of the D
 For example, Court has noted that a D’s “purposeful avoidance
of the truth” could constitute actual malice (Harte-Hanks
Communications, Inc. v. Connaugton, US 1989)
Falsity:
 P must prove falsity as part of her prima facie case in cases of public
officials, public figures, and private figures with matters of public
concern
 The Court has decided neither whether:
 An elevated burden of proof is required on the falsity element,
nor whether
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o
A state may return to the common law rules regarding falsity
where the P is a private person and the subject matter is private
Conclusion:
 It remains unlikely that there will be an expansion of First Amendment
protections in defamation law.
 In fact, some Justices have expressed disdain towards the
“constitutionalization” of defamation law
 While it is unlikely that the Court will take dramatic steps to return to
pre-New York Times v. Sullivan common law, it will probably permit
states to move in that direction as it retracts some of the constitutional
protections it has given.
Invasion of Privacy
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New to this century
Article by Brandeis and Samuel Warren, The Right to Privacy is generally credited with
significant influence in prompting ultimate judicial acceptance of the tort.
Restatement has defined four separate torts for invasion of privacy:
o Intrusion upon seclusion
o Appropriation of Plaintiff’s Name or Picture
o Placing the P in a false light before the public
o Public disclosure of private facts
Unlike defamation, invasion of privacy makes communication of true facts subject to
liability. Now, courts are concerned with limiting the scope of liability for truthful
information. Within such limits, however, courts appear to accept invasion of protected
privacy as a valid basis for liability even when the information disclosed is accurate.
Questions remain regarding the extent to which the media/news can invade privacy with
impunity
Intrusion upon seclusion:
o Restatement definition: “One who intentionally intrudes, physically or otherwise,
upon the solitude or seclusion of another or his private affairs or concerns, is
subject to liability to the other for invasion of his privacy, if the intrusion would
be highly offensive to a reasonable person.”
o Tort addresses acts of intrusion and other interferences with a victim’s “zone of
privacy.”
o There is no requirement that the information be obtained or communicated; it is
the intrusion itself that constitutes the harm.
o No requirement that trespass be committed
 Ex. intrusion could be spying into someone’s bedroom window with
binoculars
o No requirement that victim be aware of the intrusion
 However, constant disturbance, such as the incessant following and
photographing of a celebrity, can lead to liability based on interfering
with the victim’s tranquility
o Liability for intrusion upon seclusion can be imposed even if the intruder gains
information that is in the public interest to reveal, such as illegality or corruption
Appropriation of name or picture and the right to publicity:
o Restatement: “One who appropriates to his own use or benefit the name or
likeness of another is subject to liability to the other for invasion of his privacy.”
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o
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Dimensions difficult to delineate:
 Applies to an unauthorized endorsement of a product
 Does not apply to journalistic articles about a person
 An unauthorized book-length biography does not constitute
appropriation
Public Disclosure of Private Facts:
o Elements include (1) publicity or (2) private facts (3) highly offensive to a
reasonable person which are (4) not of a legitimate public interest
o Note: Media ONLY has the right to publish information that is considered
newsworthy. If not newsworthy, they may be subject to a tort. However, media
gets broad discretion regarding what they think is newsworthy.
o Example is a newspaper that outs a homosexual who would prefer to keep it quiet
False Light:
o Occurs when D publishes something that is technically true but, in the context, is
presented in a negative light
o Requires that a reasonable person would object to the publication
Cases:
o Rape victims: Many states pass tort laws that prevent media from publishing
names of rape victims
 Could put victims in danger – rapist at large will know she went to police
 Could make victim subject to ridicule – people can label her unchaste,
weak, etc.
o But does this comport with First Amendment freedom of press?

o The Florida Star (appellants, defendants) v. B.J.F (appellees, plaintiffs) (US
1989)
 Facts: Police mistakenly publicly released police report about rape of
appellee. Appellant published the name and full police report of a rape
victim
 Rule: FL law makes it unlawful to “Print, publish, or broadcast…in any
instrument of mass communication” the name of the victim of a sexual
offense.
 Issue: If media publishes the name of rape victims, are they liable in tort,
or does the First Amendment of the Constitution provide some sort of
protection (freedom of press) that would prohibit states from enforcing
their own laws against rape victim publication?
 Holding: First Amendment mandates that press should not be held liable
for publishing the report after the police published it because the press
lawfully obtained the information.
 Where the newspaper publishes truthful information that is
lawfully obtained (here, due to a mistake made by the police
department), they may not be punished unless there is a
compelling state interest to prevent publication (which is not the
case here).
 This case seems to give an absolute right to publish information
obtained lawfully.
o Reporting Newsworthy but Highly Private Information Relating to a
Person’s Health:
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o
Courts have held that only in an egregious case of press intrusion will the
court second guess the publication
 General rule: Media always wins
 Exception: Dietemann – when media uses deception to obtain
the information
 Exception: Media cannot intrude on plaintiff’s seclusion to beef
up their story
Shulman v. Group W Productions, Inc. (US 1998)
 Facts: Plaintiffs, mother and son, were injured when a car in which they
and other family members were riding overturned, and tumbled down an
embankment. Left mother a paraplegic. A rescue helicopter came to
retrieve them. A videocameraman was on board the the helicopter,
recording the events for later broadcast. The nurse on the helicopter was
wearing a microphone, recording the situation. Later on, the P mother
sees the footage on television on a rescue operation show and sues.
 Issue: Whether Ds invade P’s privacy by accompanying Ps in the
helicopter?
 Holding: Ds had no constitutional privilege to intrude on P’s seclusion
 Allen’s take on this case: The mistake the defendant made was
not in publicizing the story or putting Ps image on the television
set, but filming in the ambulance. Courts do treat places of
homes or places of presumed seclusion as special. Court thinks
that perhaps the ambulance is kind of like a hospital room or a
home – a place of presumptive seclusion, where microphones
and cameras should not be unless the P consents.
Policy and Overview

In Tort we are responding to injury and death. In the United States, we have determined
that the most appropriate response is private litigation, a private law solution.
o Alternative: Administrative remedies (like workman’s compensation)
 Would potentially reduce the costs and burdens of litigation, would
spread the risks of injury across society by creating an insurance fund,
likely through tax revenues
 Like the polio vaccine fund, some people got polio from the
vaccine, set up a government compensation fund for people that
contracted from vaccine
o Why have a private system as opposed to the administrative system?
 Deterrence value (over deterrence problem)
 Retributive value
 Reduces the size of government, keeps government from interfering in
private affairs
 Individuals ought to be responsible for their choices
 The wrongdoer himself makes the victim whole – self responsibility
o Problems with private law system
 Litigiousness
 Over deterrence (Lyme’s disease cases, had a vaccine, people who did
not get hurt by vaccine claimed injury and so had to take it off the
market)
 Leads to potentially ill-gotten gains and deceit by lawyers
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Bad evidence and fraudulent claims
May make viable claims with good evidence harder to see, and
may deny them relief
 Potential for over and under compensation
Philosophical goals of Tort
o Deterrence (over deterrence?) Bentham, Mill
 Specific Deterrence – deter the specific actor through liability from doing
this type of activity in the future, may drive out of market (Lyme’s)
 General Deterrence – deter other potential actors from engaging in
activity
o Compensatory (compensation of victims, over or under compensation?)
o Punish the perpetrator (retributive justice) Kant
Economic Goals
o Risk spreading – do not have the victim bear the risk entirely
o Cost spreading – cost of alleviating injury
o Finding the better briber – Bolton v. Stone (similar to entitlements in property,
only just using liability entitlement, although perhaps could argue that if find for
cricket club, they are giving the club a property entitlement) – see Bolton for
cheapest cost avoider, etc.
Case Law Policies
o “Two innocents rule” – as between two innocent parties (without fault) let the
cost fall on the person that caused the accident (strict liability, does this make
sense?)
o “We must have bridges” social contracts – only find liability when someone is at
fault, because we want bridges and improvements, so we all take a certain risk of
injury from those activities. Economic development movement to negligence
 Losee v. Buchanan – paper mill explodes, damages neighbor’s property –
should the owner of the paper mill be strictly liable? No, should only be
liable if there is fault
 In direct conflict with common law precedent, in particular, the
perils doctrine – Fletcher v. Rylands
Also look to history of tort law, why did we go from strict liability to negligence to
negligence and strict + strict products liability
o Why did we give up with strict liability in 19th C and yet turn back towards it in
the 20th C, and how does the shift reflect our commitment to these particular
values?
 Likely economic explanations for the first shift
 Legally justified by a “confusion” in the precedents over pleading rituals
o Strict liability – over deterrence
o Products liability – fear of not getting compensated, risk spreading
 May have difficulty proving fault, additionally, the manufacturers appear
more capable of bearing the risk of defect – small number of defects over
a wide range of products (particular to manufacturing, which of course,
is the only true for of strict products liability)
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