Torts

Torts Outline



Intentional Torts



a. Civil wrongs that the actor meant to do.

b. Prima facie case for intentional tort



Battery – Defined as an intentional infliction of harmful or offensive bodily contact upon another.

(Restatement § 18).



1. Act: you have to actually do something, not pushing someone out of the way of a

bus is not a battery because you didn’t act.

2. Intent: (determined using subjective test). Did Δ intend to commit some act?

Includes either purpose to accomplish invasive result, or if Δ is substantially certain

that the invasive result (the injury, not just the circumstances that lead to the injury)

will follow from his action.

i. Garratt v. Daley 5 year old who pulled chair out from under aunt.

Brian’s conduct constitutes a battery so long as a jury can infer from the

circumstances of the event that Brian pulled the chair either for the

purpose of causing Π to fall to the ground, or with knowledge that

pulling the chair was almost certain to result in her falling.

ii. Irrelevant if you don’t mean harm, or do not fully appreciate potential

for harm in your actions.

iii. Factfinder will have to reconstruct the actor’s mental state by

considering the act and the circumstances which took place. What Δ

actually knew about the consequences of his action, not what a

reasonable person would or should have known.

iv. Require not merely a risk or chance that Π would suffer requisite

contact, but instead that Δ knew Π would in fact suffer the contact.

v. Accidental “degree” of harm is still the responsibility of the wrongdoer,

so long as the underlying act was wrongful, eggshell plaintiff. Examples:

Vosburg v. Putney, schoolboy liable for battery despite lack of

subjective intent to do harm. Wrongdoer may be liable for all injuries

from wrongful act whether they were foreseeable or not.

vi. If one intentionally performs the sort of act that is unlawful in the sense

of violating norms of permissible behavior in the setting in which it took

place, intent to cause a type of contact that is typically harmful or

deemed offensive under prevailing social norms.

vii. Policy: Should Δ have to pay even if he only does a little wrong with

disastrous consequences? Rights/morals framework, economic

framework.

2. Transferred Intent: If you mean to shoot A but you accidentally shoot B, B can sue you

for battery. Justifications: Intent transfers from A to B, or shooting is reckless and

careless towards anyone in the vicinity of A, or shooting a gun means strict liability.

3. Impact: Requires contact that is offensive. Context matters, a jostle in a crowded vs. un-

crowded subway might define inoffensive v. offensive.

i. Contact: Can also just be of something intimately associate with a person,

doesn’t have to be their actual self, i.e. clothes, glasses. Picard, dude who

pushed camera that was right in front of woman’s eye deemed to be battery, so

a camera right up against your face is “intimately associated” with you.

ii. Offensive: whether a reasonable person would have found the sort of touching

experience by Π to be offensive under the circumstances. Permits the law to

track changing mores regarding the propriety of different kinds of touching.

Wishnatzky, since he was overly sensitive Christian nut, closing door on him not

deemed to be offensive in light of reasonable person standard. If it wouldn’t be

that offensive to a normal person but the actor knows it would be offensive to

this particular person, it could be battery (Leichtman, anti-smoking advocate

who has smoke blown in his face, court considers particulate matter to be

physical enough). Brzoska v. Olson, fear of HIV doesn’t constitute offensive

contact, unreasonable without actual exposure to the disease. Don’t want to

open Pandora’s box of AIDS fears.

4. Policy: One’s person is inviolable, one has a right against all other to be free from their

intentional touches.

5. Defenses to Battery:

i. Consent: Must be uncoerced and knowing.

i. Implied

1. Mistaken? Cunard, woman vaccinated coming off of ship, says

she didn’t consent. Court: Under the circumstances it was

completely reasonable to assume she wanted this for her own

good, and she didn’t object at the time.

2. Can’t be obtained through fraud, Neal v. Neal woman sues for

battery against cheating husband, perhaps consequences of

fraud are important here, she could’ve gotten an STD.

3. Hackbart v. Cincinnati Bengals: Even when you’re a football

player you don’t consent to battery outside the general customs

of football, like intentional punching or striking.

ii. Express

iii. Illegal activity?

1. Hart v. Geysel: Majority rule, fact that parties voluntarily

engaged in the combat is no defense to an action by either of

them to recover damages for personal injuries. Minority rule:

absence of a showing of excessive force or malicious intent,

they are denied relief for civil action. Rules for no recovery.

Policy: Can’t profit by own wrongdoing, personal rights to give

consent as one pleases.

iv. Scope of Consent?

1. Barbara A v. John G: Guy told woman he couldn’t get her

pregnant, then she got pregnant. 1impregnating her went

beyond the scope of her consent, 2consent obtained through

fraud is invalid.

ii. Medical Necessity? Blood transfusion battery for Jehovah’s Witness. Werth v.

Taylor says you need a contemporaneous fully conscious decision by Π to

override necessary blood transfusion.

iii. Self Defense: 1acted honestly in using force, 2fears were reasonable under the

circumstances,3means made use of were reasonable. Courvoisier: guy shoots

police officer because he thinks he is in danger, mistake permitted. Also

Crabtree v. Dawson, guy strikes other guy who he thinks was guy he threw out

of a party who threatened to come back and hurt him. BUT there’s a duty to

mitigate damages, and a duty to retreat if possible.

iv. Protection of Property: Katko v. Briney, no privilege to use any force calculated

to cause death or serious bodily injury to repel the threat to land or chattels,

unless there is also such a threat to Δ’s personal safety as to justify a self-

defense. Posner’s reasonableness test involves: value of property, existence of

adequate legal remedy, location of property, warning given, deadliness, cost of

avoiding interference by other means. Privilege to protect property is calibrated

to the interest protected.









-Assault-



- Occurs when Π reasonably apprehends that she is about to be touched in a harmful or offensive

manner.



1. Policy: Undermines sense of physical security, protection of mental tranquility. Fact

that words aren’t enough perhaps recognizes that it is desirable for law to give

people the outlet of using angry and threatening words as an alternative to carrying

out violent acts.

2. Imminence: Future threats are not assault, no significant delay but doesn’t have to

be immediate.

3. Threat: Has to be of bodily harm (i.e. I’m going to embarrass you is not assault). And

must really be there. Fear is not necessary, you just have to be reasonably sure it’s

going to happen.

4. Reasonable: especially timid soul who regularly sees threats of imminent harmful

contact in ordinary gestures will not prevail. Mere verbal threat not enough. UNLESS

Δ knows that Π is particularly fearful of contact and plays on that vulnerability. Or

unless together with acts and circumstances they put the other in apprehension of

an imminent offensive contact, like if you don’t sleep with me I’ll kill you.



-False Imprisonment-



- Protects liberty of movement, frees people from others efforts to keep them located in a particular

space. “Unlawful restraint of an individual’s personal liberty or freedom of locomotion.” Trying to

protect against trapped state of mind.



1. Act

2. Intent to Confine: Accidental i.e. locking someone in the library when it closes does

not suffice. What if you don’t intend but she still feels threatened?

3. Act causes Π to be confined: if she has an out that she doesn’t take, not confined.

But if she believes there is a guard at the door to shoot her, that’s imprisonment.

1. Actual force is unnecessary, you can use barriers, overpowering physical

force, threats of physical force, other duress, and asserted legal

authority (Restatement § 38-41)

2. Lopez: Not enough for Π to have felt compelled to remain in baking

room in order to protect her reputation, evidence must establish a

restraint against Π’s will. What about threat of being deported?

4. Π is aware of confinement: Some jurisdictions have criticized this component.

1. Parvi: Just because you’re black-out while imprisoned doesn’t mean

you’re not “aware”, it just means you don’t remember it later. Also, cop

putting guys in cop car just to take them out of town and put them on a

golf course so they won’t hurt themselves is not privileged. Dissent: If

guy can’t remember it his testimony isn’t valid. Also no proof of

confinement, just exclusion from a particular area.

5. Defenses to False Imprisonment:

i. Consent

1. Eilers: Apparent consent it not a defense, where Π pretends to go along

either out of fear or as a means of making an escape, at least when your

family kidnaps you.

ii. Self-defense

iii. Authority/Privelege: Police officers who have probable cause to believe person

has committed or is attempting to commit a crime, likewise to citizens for

serious crimes, but those are taken at the peril of the actor. “Shopkeepers

Privelege” allows business owner or operator to detain persons on their

premises as long as they reasonably believe that person was stealing or about to

steal their property. (Coblyn v. Kennedy, old man puts own ascot in pocket and

takes it back out as he’s leaving the store, employee mistakenly detains him and

he has a heart attack, court rules was not reasonably justified in believing he

was engaged in shoplifting). Must be conducted reasonably though.

1. Eilers: not a defense to say they acted with good motives. Δ’s claimed

necessity, which needs 1reasonable belief that there was a danger of

imminent physical injury to Π or others, 2lasts only as long as is

necessary to get to proper authorities, 3must use least restrictive means

of preventing apprehended harm. Parents failed on the last two.

2. Peterson: When parents seek to extricate child from what they

reasonably believe to be a religious or pseudo-religious cult, and child at

some juncture assents to actions in question, limitations upon child’s

mobility do not constitute meaningful deprivations of personal liberty

sufficient to support a judgment for false imprisonment. She was aware

of means of escape though, this holding is a little broad. Dissent: Good

faith is no defense,

3. Bright v. Ailshie: Can’t arrest someone where statute says they have to

have committed a felony, even if you have probable cause to believe

they have (errant brother pretends to be other brother).



-IIED-



- Individual’s right to be from having a certain kind of pall cast over him by another. Liable if you “by

extreme and outrageous conduct intentionally or recklessly cause severe emotional distress to another.”

Restatement § 46.



1. Conduct: must be abominable and atrocious. No social value or remotely plausible

justification. Gross deviation from norms of acceptable conduct.

2. Degree of Impact: Unbearable even for persons of ordinary fortitude.

3. Recklessness: Probably meant to capture case of cruel jokester who professes with

some plausibility not to have even considered whether his conduct might cause his

vulnerable target to be devastated, although risk was enormous and blatantly

obvious.



-Trespass-



Volitional act of intrusion onto someone else’s land, need only intend to be there; intent to trespass, e.g.

knowledge that it’s someone else’s land is not required. Intrusion can be by Δ or something else caused

by Δ, nominal as well as actual damages.



1. Defenses

i. Necessity: Vincent v. Lake Erie: Necessity, like in the case of a raging storm, may

require the taking of private property for public purposes (like mooring your

boat at the closest dock), but compensation must be paid for damages (like

when your boat messes up the dock). Argument was that it was an inevitable

accident, but no dice. Ploof v. Putnam: Helper ejects victim, loses on property

rule and liability rule. Would extreme poverty necessitate stealing?



-Trespass to Chattels-



- Δ must intend to make physical contact with property and must succeed in doing so, and can be held

liable even if contact was made with reasonable but mistaken belief that the property was not owned by

someone else. “committed by intentionally dispossessing another of the chattel or using or

intermeddling with it.” Restatement § 217, so you’re entitled to self-help. Liability attaches when “he

dispossess other of the chattel, or the chattel is impaired as to its condition, quality, or value, or the

possessor is deprived of the use of the chattel for a substantial time, or bodily harm is caused to the

possessor, or harm is caused to some person or thing in which the possessor has a legally protected

interest.” Restatement § 218.



1. Actual Harm

i. Physical Damage

1. Intel v. Hamidi: Must Π prove harm or damages apart from intrusion

itself? Δ sent mass emails to Intel’s intranet, they made clear it was not

welcome and claimed that it harmed their chattel, i.e. computer

equipment. Hamidi argued no tangible damage. SC of CA said w/o proof

that the emails damages the equipment or significantly interfered with

the functioning, no trespass to chattels. Other courts say if it

significantly diminishes functionality, that is trespass to chattel.

2. Glidden: Child pulled a dog’s ears and was bitten. Court: Dog wasn’t

harmed, so she wasn’t trespassing on the chattel, so you can’t use that

as a defense that prevents her from collecting when he bit her.

3. Compuserve: Emails that demand disk space, drain the processing

power of Π’s computer and is not available to Compuserve subscribers,

value is diminished. Also they harm Π’s business reputation and

goodwill with its customers, that counts as damage to sustain trespass

to chattels.

ii. Deprivation of Use

1. For a substantial time.



Negligence



1. Duty: Δ owed a duty to Π to take due care against causing an injury of the type

suffered.

2. Breach (or negligence)- below standard of care. Hammontree v. Jenner, dude

has a seizure and his car goes through a store window. “stricken by illness or

physical condition which he had no reason whatever to anticipate.” (when risks

are reciprocal, like when it could happen to anybody, it evens out). Maloney v.

Rath court refused to hold strictly liable for non-negligent violation of traffic

law, brake failure due to her garage mechanic’s negligence. Waschek v. State

DMV only negligently performs mandatory duty if they conclude that driver is

unqualified and issue a license anyway. Bashi v. Wodarz, woman who has a

sudden unanticipated onset of mental illness that renders them unconscious is

chargeable with negligence, court worried about 1difficulty of drawing a

satisfactory line, 2mental illness can be feigned, 3if mental defectives are to live

in the world they should pay for the damage they do, 4this will stimulate people

who take care of them to be more careful. .

a. Standard of Care: If you fall below the standard of care, you do

something a reasonable person wouldn’t do. Reasonable person

standard expands or contracts to cover the situation. Exception for

dangerous instrumentalities. But doesn’t adjust to slightly stupid

people, or slightly handicapped people.Holmes: each of us is entitle toe

expect that others will go about their business as safely as an ordinarily

constituted person would do.

i. Law will not lessen the required standards for someone who has

abilities lower than the reasonable person, however the law will

hold someone with superior ability to a standard higher than

the reasonable person in keeping with his or her superior

abilities. Ex. Doctor would be held to standard of reasonable

doctor in a malpractice suit rather than reasonable lay person.

Expert or professional. Disability, restatement says standard is

what a reasonable man with a like disability would do, only in

the cases of physical disability like blindness.

ii. Children are held to care that a reasonable child of their age,

intelligence, and maturity would have. But when they are

engaged in adult activities, like operation of a motor vehicle,

they are held to adult standards.

iii. Emergency: Emergency not caused by individual require the

individual show only an “honest exercise of judgment”, but

some states don’t give a special emergency charge because the

usual standard of care is interpreted to include the

circumstances.

iv. Vaughn v. Menlove: Δ piled hay in a way that unknowingly

created a fire hazard, when it resulted in a fire, court rejected

his argument that he should not be liable just because he was

dumb and acted to the best of his judgment, because a

reasonable person would have known better.

v. Roberts v. Ramsbottom: Elderly Δ had a stroke before driving

and didn’t realize he was incapacitated. Court holds that if he

retained some control over his limbs, albeit imperfect control,

and his driving was below the required standard of care, he’s

liable.



o Adams v. Bullock: trolley line with electric wire doesn’t fall

below standard of care b/c ordinary caution did not involve

forethought of this extraordinary peril (little kid swinging a wire

that contacted electric wire and gets shocked). Also insulation

impossible with trolley wires. Because there was no special

danger with this bridge, no similar accidents before, and taking

the precaution was reasonable, ∆ is not liable

vi. Braun: Wires above a vacant lot, Δ should have reasonably

expected that their lot would be used and that someone would

get shocked by the wires just hanging there.

vii. Greene v. Sibley: standard of care is to be looked for in a busy

world, common and simple act in plain sight, just because

woman sees where you are, looks away for a second and then

moves to her right and trips over you doesn’t mean negligence.

viii. U.S. Carroll Towing: Fair standard of care that bargee should be

aboard barge during working hours of daylight, not beyond

reasonable expectation that there might be haste due to war

activity.

1. BPL: Goes through analysis that if B (burden of avoiding

risk) is less than Probability of injury times injury, no

liability. Interesting thought experiment. Hand admits

it’s hard, injuries are always variable within limits, and

probability changes with the severity of the injuries.

2. If the burden is greater than the benefit, society would

be better off without the precaution. If the cost of

paying for accidents is less than the cost of prevention,

profit-making incentives will encourage the paying of

tort judgments rather than taking of expensive

precautions. As a society, we want the parties to do

whatever is cheaper

a. Bolton v. Stone: cricket ball flies over fence and

hits woman, in saying cricket team wasn’t

below standard of care judge says take into

account whether the risk was really small, but

also how serious the consequences are likely to

be.

ix. Chicago Burlington & Quincy: Children play on railroad’s

unlocked turntable, get hurt. Court: dangerous machinery

makes our lives better, but danger could be lessened by a lock,

the use of which is so slight that it is outweighed by the danger

to be anticipated from an omission to use it, so public good

demands use of lock.

x. McCarty v. Pheasant Run: Woman assaulted when dude comes

in through hotel’s sliding glass door, she says Δ should have kept

it locked or warned her to keep it locked. Posner: we can’t really

use BPL, we just have to use rough judgments of

reasonableness, Hotel not unreasonable to not warn lady.

xi. Wood v. Groh: Π was shot with Δ’s gun fired by Δ’s teenage son

who used a screwdriver to access the locked gun cabinet and

took unloaded gun and ammo, Court says jury should have been

charged that Δ owed highest degree of care in safekeeping the

handgun as a dangerous instrumentality, reasonable care is not

enough.

b. Judges and Juries deciding reasonable care:

i. Akins v. Glen Falls City School District: Judge decides that Δ had

fulfilled the duty of reasonable care by erecting 24 foot

backstop even though fan was hit by foul ball while in not

protected seats, no basis for a jury to find them negligent.

Dissent argues that judges shouldn’t be issuing blanket rules

about what constitutes reasonable care because it’s the jury’s

job to reflect the shifts in actual standards of care.

ii. Andre v. Pomeroy: Π’s sometimes make SJ motions, Π daughter

was passenger in car, Δ mother admitted to taking her eyes off

the road to look into her purse, negligence is super clear so SJ

appropriate. Why would Π risk SJ and reversal on appeal instead

of relying on jury? She and her mom just wanted insurance

money.

iii. Andrews v. United Airlines: Court holds that SJ was

inappropriate, should be a question for jury about whether the

hazard is serious enough to warrant more than a warning about

items falling from overhead bins. Jury “particularly well suited”

because of their experience as passengers.

c. Custom provides guidance to jury about what is reasonable.

i. Trimarco v. Klein: When proof of a customary practice is

coupled with evidence that it was ignored and caused the

accident, this may establish liability. (shatterproof glass should

be used in bathrooms, Π hurt himself because of flimsy glass.

Custom does not need to be universal, just clear enough so that

actor can be charged with actual/constructive knowledge.

Customary practice must be reasonable.

ii. T.J. Hooper: Court holds that there was no custom one way or

the other as to radios on tug boats. Dicta: “Courts must in the

end say what is required; there are precautions so imperative

that even their universal disregard will not excuse their

omission.”

3. Cause (in fact)

4. Proximate Cause

5. Harm: Π has suffered an injury.

6. Economic perspective of negligence: a judgment of negligence has inescapable

overtones of moral disapproval, for it implies that there was a cheaper

alternative to the accident. Where the measures necessary to avert the

accident would have consumed excessive resources, there is no occasion to

condemn Δ for not having taken them.

7. Policy considerations:

a. Openness problem: How to articulate a standard that offers guidance to

actors, while being open-ended enough to permit negligence to

function as an all-purpose accident tort? Reasonably prudent person.

8. Different from intentional torts, although people sometimes try to plead

negligence when other people punch them to collect from their insurance

company (Topps v. Ferraro).



Negligence Per Se



b. Only criminal statutes applyRestatement § 286: A statute or regulation may set the standard for

behavior when purpose is at least in part to

1. Protect the safety of someone like claimant

2. Against the sort of harm that happened.

1. Platz v. City of Cohoes: Law against driving on a Sunday meant to

promote public order, not safety, not a defense for a city negligently

leaving an obstruction in the road that hurts a Sunday driver.

2. Da Haen v. Rockwood Sprinkler: The hazard out of which the

accident ensued must have been the particular hazard or class of

hazards that the statutory safeguard in the thought and purpose of

the legislature was intended to correct; wall was meant to protect

workers from falling, so a radiator falling isn’t the same.

3. Rushnik v. Gerstheimer: Statute against leaving keys in car

unattended meant to deter theft and injury caused by unauthorized

driving, but not to protect unauthorized users from the effects of

their own actions.

4. Gorris v. Scott: Contagious diseases act says to pen sheep, if you fail

to pen them and they wash overboard that’s not the harm the

statute contemplated.

3. If a statute is so obscure, outdated, or arbitrary as to make its adoption as a

standard of reasonable care inequitable, trial judge may exercise discretion

(Sweet v. Sisters of Providence).

4. Martin v. Herzog: Both people involved in road accident violated driving

statutes. Jury receive a charge stating that driving without lights was not

negligent in itself (although prohibited by statute). For violation of statutes

intended for the protection of the injured party, jury has no power to relax

statutory duties.

5. Exceptions: Tedla v. Ellman, strict observance of “general rules of conduct”

may defeat the purpose of the rule in unusual circumstances. They were

walking eastward on the edge of the east bound lane, to be safer. Exception

to conduct required by statute when stautory general rule of conduct fixes

no definite standard of care which would under all circumstances tend to

protect life, limb, or property, but merely codifies or supplements a

common law rule.

1. Emergency: Bassey v. Mistrough: Inability to perform action

required by statute may excuse failure to perform action. Judge said

jury should have been instructed to excuse Δ’s violation of the

statute. i.e. illumination of car on highway when your car’s electrical

system fails.

2. NOT AN EXCUSE: Common practice: Common failure to cross at a

crosswalk does not excuse the action, Robinson v. DC.

6. When Compliance isn’t enough (this check operates against the tendency

of political branches to be at times captured by regulated entities or special

interests, are under pressure from powerful political figures and private

actors.

1. Edwards v. Basel Pharmaceuticals: Dude died of nicotine induced

heart attack while smoking and wearing two patches, warning on

label said overdose might cause you to faint, relatively

comprehensive. Court: Manufacturer’s duty to warn was not

necessarily satisfied by compliance with FDA minimum

requirements.

2. Hubbard Hall v. Silverman: Congressional warning requirements

were met in the labeling of dangerous insecticide, but Δ should have

forseen that product would be used by laborers with limited

education, needed a picture or something.

3. Alvarado v. JC Penney: Δ’s compliance with state regulatory scheme

inconclusive for due care standard, woman’s robe and nightgown

ignited from an open flame gas heater.

c. Res Ipsa Loquitor: Particularly appropriate when Δ is the only one with access to evidence.

b. Accident of the kind that does not occur without negligence

c. Caused by Agency or instrumentality within the exclusive control of Δ

d. No contribution by Π

i. Byrne v. Boadle: Barrel of flour fell from a window above Δ’s shop and

injured Π. Court finds that presumption of negligence can arise from the fact

that the accident happened. Barrels don’t normally fall from buildings

without something going wrong, the barrel was in exclusive control of Δ

before falling, Π did nothing to case the injury.

ii. Ybarra v. Spangard: Court accepts res ipsa argument and shifts burden of

proof from Π to Δ after surgery. He was unconscious during surgery but

woke up with chronic pain in his shoulder. Also despite the fact that there

were multiple Δ’s, res ipsa still applies, Δ’s have to explain their conduct.

(necessary to overcome conspiracy of silence among Δ’s).

iii. Fireman’s Fund American Insurance v. Knobbe: Fire starts and no noe can

prove which Δ had negligently caused fire. Court rejected Ybarra, said you

shouldn’t be able to recover for falling flower pot from all tenants of an

apartment building unless the innocent ones can identify the guilty one,

When cause of problem is under control of innocent people as well as

responsible people, how should courts respond?

e. Policy: Availability of evidence might be limited, but we still want Π to recover,

sometimes it may be more fair to shift the burden, encourages Δ’s to tell on each

other.







Vicarious Liability



c. You can impute the wrongful conduct from one party to another in certain cases. Purposes

are to assure compensation to victims, to spread losses, to encourage responsible hiring,

prevent future injuries.

1. Respondeat superior: Employer/employee

 Christiansen v. Swenson: Factors below used, reasonable minds

could differ on whether security guard considered agent of security

company when she collided with Π’s motorcycle on the way back

from her lunch break.

 Doing the employer’s business

 Conduct within hours and boundaries of employment

 Motivated at least in part by serving employer’s interest

o Sage Club v. Hunt: Bar held vicariously liable when

bartender attacked patron for accusing him of taking more

money for drinks than he was entitle to, court says duties

included collecting money for drinks and he lost his temper

over that matter, his duty also included keeping order in the

bar and removing disruptive customers, which he

apparently tried to do by pushing Π down the stairs.

2. Apparent agency: If you employ a contractor and their services are

accepted with a reasonable belief that they’re being rendered by the

principle, they are your agent. OR if the principal by conduct causes Π to

reasonably believe that services are rendered by principal, and Π justifiably

relies on that belief.

 Representation by the principal

 Detrimental reliance by Δ

 Roessler v. Novak: Independent contractor interprets scans in

radiology department of hospital, jury question whether he is

apparent agent (but his office is at the hospital, his co is exclusive

radiology provider at hospital, patient took his advice. Concurrence

says you can’t avoid medical negligence when patient does not have

realistic opportunity to shop on the open market for radiology.

 Baptist Memorial : Signs denying doctors were employees (agents)

and patient form stating doctors were not employees meant no

liability. Nothing the hospital did could have created the belief that

doctors were hospital agents, so there is no liability even if the

patient did not read or sign the form. (Maybe if you were

completely unconscious upon arrival this wouldn’t count).

3. Intentional tort standard: A vicarious liability relationship plus not

unexpectable result.

 Lisa M. v. Henry Mayo Hospital: Hopsital technician’s assault on

patient was not a risk predictably created or fairly attributed to the

nature of technician’s employment.

 Clark v. Pangan: Action from purely personal motives in no way

connected to empoyer’s interests or conduct that is unprovoked,

highly unusual, or quite outrageous is outside the scope of

employment (postal supervisor struck a subordinate in a dispute

that arose over how to conduct an inspection).

 Baker v. Saint Francis Hospital: Conduct in the course of

employment and response to job related stimulus counts within

scope of liability (childcare person banged baby’s head against a

blunt surface in frustration when it wouldn’t stop crying).

 Kuehn v. White and Inner-City Auto Freight: Slight traffic

altercation between car and truck driver, truck driver gets out and

beats him with a pipe because he gave him the finger. “Where a

servant steps aside from his master’s business in order to effect

some purpose of his own, the master is not liable, even though the

employment situation provided the opportunity for the wrongful

acts or the means for carrying them out.



Duty



d. Duty not to be negligent arises when you act intentionally, or your actions create a

particular situation, unless there are vicarious liability rules, parents & kids, negligent

entrustment, negligent misrepresentation.

e. Otherwise if there is no action, there is no duty. Unless a special relationship exists.

o Examples of that: guest in home, common carrier and passenger, innkeeper and

lodger, $ exchange, relied-upon promise, custodial relationship, reliance on

proffered superior knowledge, joint social venture

f. If you attempt to come to someone’s aid, you can’t make his or her situation worse, must

carry through reasonably.

g. Also if you prevent a third party from rendering aid

h. Also if you’re the government.

i. Concerns when attempting to discern whether duty is owed: 1misfeasance v. nonfeasance.

2

relationship between victim and defendant 3limiting class of potential plaintiffs 4getting to

the right social outcome.

1. Special Relationship usually only found with common carriers, persons who have

custody over another person, etc. Restatement § 314. Reasoanbly foreseeable

victims are generally owed a duty, persons whom one can expect might suffer

personal injury or damage because of one’s careless conduct.

a. Custody: when Π is typically in some respect particularly vulnerable and

dependent upon Δ.

b. Harper v. Herman: superior knowledge of a dangerous condition in the

absence of a duty to provide protection is insufficient to establish

negligence. Boat captain not expected to warn dude about shallow water,

when diving guy was not deprived of opportunities to protect himself, and

Herman was not expected to provide protection. He did not have

considerable power over Harper’s welfare, and he did not receive a financial

gain by hosting Harper on his boat.

c. Farwell v. Keaton: Court finds affirmative duty to act from the special

relationship, two men were friends engaged in a common undertaking

“companions on a social venture. Implicit in such an undertaking is the

understanding that one will render assistance to the other when he is in

peril if he can do so without endangering himself.” Dissent: this is elevating

moral duty to legal obligation.

d. Ronald M. White: No affirmative duty to act for kids driving in car where

others were drinking or taking drugs. Distinguished because they were

minors?

e. H.R. Moch v. Rensselaer Water Co: Court holds government contractor has

no duty to provide adequate water, “liability would be unduly and

indefinitely extended by this enlargement of the zone of duty”, mere

negligent omission unaccompanied by malice or other aggravating

elements. Misfeasance v. nonfeasance.

f. Randi v. Muroc Joint Unified School District: assault was foreseeable,

morally blameworthy, and alternate conduct was available to Δ, either by

writing a full disclosure or no comment letter. Writer of recommendations

owes third parties a duty not to misrepresent facts if making these

misrepresentations would present a substantial, foreseeable risk of physical

injury to 3rd persons. Misleading half truths constitute misrepresentation in

context where obligation was to disclose all relevant facts (unreservedly

affirmative recommendations of dude who had prior record of sexual

misconduct).

g. Tarasoff: Therapists are immune to liability for failure to warn except when

patient has communicated a threat against a reasonably identifiable victim

or victims, and the duty to warn shall be discharged by the psychotherapist

making reasonable efforts to communicate the threat to the victim and to a

law enforcement agency. Or take “one or more reasonable steps”.

h. Strauss v.Belle Realty: Guy falls down apartment’s basement stairs in the

dark during power outage. Court: Liability of electric company for injuries in

a building’s common areas should as a matter of public policy be limited by

the contractual relationship. No privity = no recovery. Otherwise too many

victims, must limit the “orbit of duty”. Protect against “crushing exposure to

liability.” Dissent: The more persons injured, the less responsibility for the

injuries incurred?

i. Reynolds v. Hicks: Defendant social hosts who furnished alcohol to a minor

owe no duty of care to third persons injured by the intoxicated minor. “to

expect them on their wedding day to monitor their minor guests’ alcohol

consumption in the same manner as we expect of an alcohol vender is

unrealistic and has far-reaching social implications.” Dissent: No justification

for applying different standards to vendors and social hosts, stop it at the

source, it’s not that bad. Hicks though are liable to drunk minor if they hurt

themselves (Hansen v. Friend).

j. Kelly v. Gwinnell: Host who enables adult guest at his home to become

drunk may be liable to the victim of an automobile accident caused by the

drunken driving of the guest. Facts matter: guest was visibly intoxicated,

host knows that they are and that they will be operating a motor vehicle.

Goal: fair compensation of victims who are injured as a result of drunken

driving. “Potential revision of cocktail party customs does not constitute a

sufficient threat to social well-being to warrant staying our hand.” Dissent:

leave this to the legislature.

2. Government Liability/Duty

a. Government used to be totally immune, gave way to current regime.

Government officials make policy choices balancing costs and benefits,

much of governmental activity in the affirmative duty sphere.

b. Government as private actor, as public protecter/provider of services, as

policymaker. Limited resources = tough judgments. No duty vs. limited

immunity. Reliance as main factor- which means promises that are

communicated to party in need.

c. Special relationship encompasses:

i. Promises or action leading to affirmative duty

ii. Knowledge that inaction could lead to harm

iii. Direct contact

iv. Justifiable reliance

d. Municipal Liability: Are there reasons not to proceed to a negligence

analysis? Does the case involve the police? What are the particular facts? Is

there a special relationship, reliance, particularly vulnerable class of people,

i.e. kids? Does the case implicate big discretionary spending decisions? Is

the case beyond the court’s institutional competence or role?

e. Riss v. City of NY: Woman was terrorized by a stalker, and police refused to

protect her after she received threats from him. Is a municipality liable for

failure to provide special protection for a threatened person? Amount of

protection available limited by resources, and legislature should determine

scope of public responsibility, not courts. No predictable limits to potential

liability for failure to provide adequate police protection. Distinction

between government activities which take the place of private entities (like

highways and public buildings) and government activities that concern the

provision of limited resources based on legislative-executive decisions.

Dissent: fear of financial disaster a myth. Police would only need to do what

is reasonable, including duty to inquire. Courts are constantly reviewing

what government entities do to carry out duties.

f. Schuster v. City of NY: Police had legal duty to respond reasonably to

threats on life of man who helped police find criminal from FBI flyer. Duty

because government was active, not passive, and affirmatively reached out

and called upon a citizen for help.

g. Sorichetti v. City of NY: father who injured daughter during visitation

despite mother’s requests for police aid; duty based on police inaction:

protective orders, history of violence, assurance that the police would take

action.

h. Cuffy v. City of NY: sought police protection from neighbors, promise

something would be done first thing in the morning, sued city for injuries:

special relationship through 1promise of action, 2knowledge that inaction

would lead to harm, 3direct contact between municipality’s agents and

party,4 justifiable reliance- but they weren’t relying on police promise by

time injuries had occurred.

i. Transport Assaults

i. Weiner v. Metropolitan Transit Authority: subway assault with no

guard present, no duty to protect without special relationship (even

if non-governmental common carrier would be liable), allocation of

resources argument.

ii. Crosland v. NYC Transit Authority: employee witnessed attack and

failed to summon assistance even though could have without

personal risk; ;distinguishes Weiner in holding government

responsible.

j. 911 Calls

i. De Long v. County of Erie: 911 operator’s assurance that help was

being sent right away created duty to respond with due care to the

victim.

ii. Merced v. City of NY: Required relationship not established when

the caller was not the victim, so no direct contact between injured

party and municipality’s agent.

iii. Muthukumarna v. Moco: Dispatcher gave the wrong address but no

duty because the person at risk must have a special relationship

with the government; third party does not suffice.

k. Schoolchildren:

i. Florence v. Goldberg: police had duty to care for the children

crossing the street because they provided substitute guards.

ii. Hoyem v. Manhattan Beach City School District: School district

liable for student who left school and was killed, duty of care to

supervise child. “schools must be reasonably supervised, not truant-

proof.”

l. Government Liability (State)

i. Government as private parties: duty exists; negligence test.

Government as public protector: police and other custodial

relationships: no duty exists unless there’s an exception. I.e. CUffy

factors. Government as policymaker and planner: limited immunity.

Government planning is “plainly inadequate” or “no reasonable

basis” for finding. Once decision is made, must follow through

reasonably.

m. Government Liability (Federal)

i. FTCA: No jury; limited attorney’s fees; no punitive damages. Just

negligence (not intentional; not strict liability). The waiver of

immunity shall not apply to: Any claim based upon an act or

omission of an employee of the Government, exercising due care, in

the execution of a statute or regulation, or based upon the exercise

or performance or the failure to exercise or perform a discretionary

function or duty on the party of the government, whether or not

the discretion involved be abused. Discretionary = intertwined with

political, social, economic factors.

ii. Discretionary rule discourages courts from using the occasion of

private litigation to second-guess legislative and executive branch

policy decisions.

iii. FTCA waived federal government general tort immunity in 1946.

1. 1346b: If government takes proprietary action, you can sue

for negligent act or omission of employee acting within

scope of employment.

2. 2680a: No liability when 1government actor following

statute with due care (whether statute is valid or not) OR

2

exercise or performance of a discretionary function.

iv. Cope v. Scott: Guy is injured on curvy road with worn polished

surface that was slick when wet. Sues for failing to appropriately

and adequately maintain the road, and failing to place and maintain

adequate warning signs.

1. Is the action prescribed by statute? If yes, was it done with

due care? If not, ask second question.

2. Doe its quality/nature tend to be fraught with public policy

consideration? Road maintenance claim is a discretionary

function. BUT sign placement does not involve the kind of

policy decisions protected by the FTCA.

v. Cestanaro v. US: family accosted at gun point in parking lot located

in historic national park site, husband killed. Sued for failing to

provide adequate lighting. Park Service: we were trying to make it

appear more historic. Holding: NPS should have either eliminated

the parking area or assumed the duty of providing a safe area.

Discretionary power must be exercised consistently. Decision to

provide some but not enough lighting doesn’t make sense as being

grounded in a “policy objective.”

3. Duty – Emotional Harm

a. Originally, rule was no recovery without physical injury or impact.

i. NIED analysis: Suppose regular negligence, causing physical injury.

What do you recover for?

ii. Medical bills: 1apprehension of physical injury, 2contemporaneous

experience of injury 3pain and suffering that lingers.

iii. Falzone: zone of danger: Must have physical manifestation of

symptoms, medical bills, fear of impact, psychological instability

manifested physically post-non-impact.

iv. General, Gammon: Δ must avoid foreseeable severe emotional

distress caused in a reasonably sensitive person. “Special

relationship” required? No clear physical injury or sickness arising

from distress. Distress was severe.

b. Falzone v. Bush: Woman seated in lawfully parked car, negligent driver

veers towards her and almost hits her, she feared for her safety and became

ill and required medical attention. New rule: negligence caused physically

manifested fright from a reasonable fear of personal injury. (zone of

danger).

c. R.J. v. Humana of Florida: Π alleged that due to Δ’s negligence he was

diagnosed as HIV positive and remained under that impression until he was

retested 18 months alter. Court says no recovery unless treatments or

injections harmed him, rare insistence on impact. BUT Baker v. Dorfman,

man recovers for emotional distress who was negligently and incorrectly

informed that he had tested positive for HIV.

d. Wooden v. Raveling: Recovery for distress when care drives up on property

and nearly kills you.

e. Lawson v. Management Activities: No recovery for fear plane will crash on

you, virtually limitless liability to airlines would result and costs would go up.

f. Quill v. Trans World Airlines: Recovery for plane passenger after intense

plunge in plane. “unusually disturbing, ... physical symptoms.”

g. Most courts allow recovery when Π was aware of impending death, even if

period of awareness was very short.

h. Shatkin v. McDonell Douglas: Passenger on right side of plane was not

shown to be aware of impending disaster prior to crash, no recovery.

i. Shu-Tao Lin v. McDonnell Douglas Corp: Passenger on left wing given award

since he might have seen engine break off on left side.

j. Benyon v. Montgomery Cablevision Limited Partnership: Pre-impact fright

recovery based on skid marks ($140k per second of assumed fright).

k. Gammon v. Osteopathic Hospital of Maine: Severed leg case. No physical

impact showing required, recovery is limited by tort principle of

foreseeability (hospital should have foreseen that members of family would

be vulnerable to emotional shock if they received a leg in their late father’s

personal effects), recovery only for psychic damage that could reasonably

be expected to befall the ordinarily sensitive person.

l. Dobran v. Franciscan Medical Center: Lingering fear of cancer prolonged by

mishandling of tissue sample not enough for recovery. More liberal

treatment of claims for emotional distress when more outrageous conduct?

m. Bryan R v. Watchtower Bible & Tract Society of NY: Π sues church for abuse

alleged to have been inflicted by an adult member of the church. Court: only

where a particular duty based upon the unique relationship of the parties

has been established may Δ be held responsible, absent some other

wrongdoing, for harming the emotional wellbeing of another.

n. Marzolf v. Stone: Emotional distress must be susceptible to medical

diagnosis and proven through medical evidence (depression, sleeplessness,

loss of weight, and social and professional dysfunction)

o. Sullivan v. Boston Gas Co: Repeated attacks count, but transient symptoms

don’t. i.e. vomiting.

4. Emotional Harm from Witnessing Harm

a. Portee v. Jaffee: Mom not in the zone of danger, Court announces Dillon

test for foreseeability of emotional injury:

i. Proximity to the Scene of the Accident

ii. Sensory and contemporaneous observance of the accident

iii. Closeness of relationship with victim.

iv. And court adds: Severity of the physical injury causing distress.

b. NIED requires proof of:

i. The death or serious injury of another caused by defendant’s

negligence.

ii. A marital or intimate family relationship between plaintiff and

victim.

iii. Observation of the death or injury at the scene of the accident

iv. Resulting severe emotional distress

c. Barnes v. Geiger: Mother who reasonably but mistakenly though her child

had been horribly injured in an accident she witnessed, died the next day

from trauma alleged to have resulted from her experience. Recovery

denied. “unwilling to expand the circle of liability.”

d. Sell v. Mary Lanning Memorial Hospital: Plaintiff mother incorrectly and

negligently informed her son had been killed. Learned 2 days later it was

mistaken identity, plaintiff’s suit for emotional distress was rejected. Her

normal signs of grief were held inadequate.

e. Thing v. La Chusa: mother neither heard nor saw the accident injuring her

child but was told about it and rushed to the scene to see the child’s bloody

and unconscious body lying in the roadway. Recovery denied. Viewing of

consequences insufficient.

f. Bovsun v. Sanperi: extended duty to members of the immediate family who

were themselves in the zone of physical danger. Zone of danger rule

mitigates possibility of unlimited recovery.

g. Marzolf v. Stone: close relatives came by the scene of an accident shortly

after it happened, court upheld recovery for observing an injured relative at

the scene of an accident shortly after its occurrence and before there is a

substantial change in the relative’s condition or location.

h. Elden v. Sheldon: Denial of recovery for Richard witnessing death of Lisa, his

serious live in girlfriend. Strong interest in marriage relationship, difficult

burden to court to inquire into whether relationship was stable and

significant, need to limit number of persons to whom a negligent defendant

owes a duty of care. Dunphy v. Gregor says inquire into the relationship.

i. Pizarro v. Port Associates: woman denied recovery when as she stepped

onto an elevator, she caught her foot, man moved to free her, elevator

suddenly lurched upwards with door still open, decapitated him, she had to

ride the elevator with his head. No claim, even though she was in the zone

of danger, because she was not closely related to him.

5. Distress from Harm to Property

a. Lubner v. City of L.A.: No recovery for emotional distress caused by loss of

property.

b. Erlich v. Menezes: Damages to dream house not enough for recovery.

c. Rodriques v. State: Recovery for damage to house plaintiffs built with own

hands for emotional distress because “ a reasonable man normally

constituted would be unable to adequately cope with the mental stress

engendered by the circumstances of the case.

d. Campbell v. Animal Quarantine Station: plaintiffs learned over the phone

that their dog died because of negligence of defendant, recovered 200 each

after a finding that they had each suffered sever emotional distress.

e. Roman v. Carroll: plaintiff denied recovery, she watched her dog get

dismembered by another dog, court said dog is personal property, no

distress from witnessing injury to property. \

6. Economic Harm: People Express

a. As a general rule, there is no recovery for purely economic harm. Exception

is People Express. Recovery for economic harm when harm to a specific

plaintiff or class of plaintiffs is particularly forseeable. Defendant’s

dangerous chemical excaped from railway tank car, resulting in evacuation

from surrounding area, including of plaintiff, commercial iarline, forced to

evacuate premises and suffered economic losses. Economic harm to PE

particularly foreseeable due to:

i. Close proximity

ii. Obvious nature of plaintiff’s business operation

iii. Existence of emergency plan.

b. Koch: Blackout claims for looting and vandalism that damaged property

valid. Claims for recovery based on emergency wages and lost revenue

(purely economic harms) not valid.

c. Summary: Economic harm fits traditional model like negligent infliction of

emotional distress

i. NIED usually requires some physical harm before allowing recovery

for physical and emotional harm.

ii. Economic harm follows same pattern: no recovery unless there’s

physical harm (with the People Express exception for a concretely

identifiable and foreseeable plaintiff.)



Causation



a. Two types of causes:

a. Cause in fact: actual cause

b. Proximate cause: legal cause.

b. But for causation: Necessary but not sufficient for the outcome.

c. Requirements of causation:

a. Action can’t be too remote to influence outcome. Rinaldo v. McGovern, Failure by

golfer to shout “fore” not actionable because warning would have been futile anyway,

and too remote to have mattered. Unlikely that plaintiffs on nearby roadway would

have heard.

b. Harm must not have been inevitable: If hurricane would have destroyed even a well-

built dam, fact that dam was shoddy not a cause in fact.

c. Actual Harm must have occurred: Tollison v. State of Washington:Since family would

have adopted child anyway despite being aware of other serious problems, failure to

give information required by statute not a cause.

d. Stubbs: Stubbs gets typhus. Did it come from sewage-infused water? He recovered for it.

a. Standard of Proof: Reasonable certainty, substantial factor. How to accord with

“preponderance of the evidence?” Where two or more causes exist and defendant

could only be liable for one, and party presents facts where there can be reasonable

certainty that the direct cause of the injury was one for which the defendant was liable,

a party complies with the spirit of the rule. But if everyone with typhoid sued

individually, how to deal with conflicting verdicts? What if each sick person collects full

damages even though statistically the city is not responsible for every case of typhoid?

Proportional liability as a solution.

i. Reasonable Certainty is put forward as the standard of proof. This appears to at

least mean plaintiff doesn’t have to eliminate every other possible cause. Actual

likelihood: indeterminate. But that’s less than reasonable certainty isn’t it? The

role of breach/fault, but still a series of all or nothing outcomes.

b. Types of experts: Doctors who treated Stubbs, doctors who didn’t treat Stubbs but

know a lot about sewage.

c. Types of evidence: One can get typhus from sewage water, more typhus in sewer year

than regular year, 200 vs. 50, where else does typhus come from? Other people

(perhaps on streetcar) fruits, vegetables, houseflies, anything else, we basically have no

idea what else causes it.

e. Probabalistic Recovery:

a. Proportional liability allows recovery for a portion of plaintiff’s damages corresponding

to the chance that defendant caused them.

b. Maura v. Raymark Industries: those with better than even chances of getting a future

disease can sue for all future damages.

c. Dillon v. Evanston Hospital: Recovery permitted for low but increased risk of future

injury that is not reasonably certain to occur, but amount of compensation reflects the

low probability.

f. Speculation and Causation

a. Mitchell v. Pearson Enterprises: Hotel guest murdered in the room with no sign of

forced entry. With no evidence as to whether the guest invited the killer in or the killer

broke in, proof of causation was lacking and was too speculative for a jury to consider,

inadequate security measures could not be assumed.

b. Burgos v. Aqueduct Realty Corp.: Tenant sued landlord for assault in the building and

presented evidence that the person who assaulted her was an intruder, not another

tenant. Court held that if the jury can conclude through logical inferences drawn from

evidence that it was more reasonable than not that the assailant was an intruder, it is

sufficient.

g. Multiple Causes

a. Anderson v. Minneapolis: Two fires, either sufficient to destroy a building, arrive at

same time. Use the substantial factor test to determine whether a particular fire was a

cause of the harm.

b. Basko v. Sterling Drug: Plaintiff blinded after taking three drugs made by defendant.

Substantial factor test provides better deterrence against tortfeasor’s wrongdoing.

c. The but for test could absolve everyone, so we don’t use it.

h. Joint and Several Liability: Π can sue Δ’s together or separately and recover full damages from

either Δ. Puts the burden of pursuing other tortfeasors on Δ, who looks to other Δ’s to get

reimbursed.

a. Summers v. Tice: Two hunters both shot summers, no way to know who fired the shot

that caused the injuries. Both are liable.

i. Shifts burden of proof onto the defendants, who are in a better position to offer

evidence on what actually happened during the accident. Both hunters acted

wrongly regardless of which shooter actually caused the injuresi. But If hadn’t

acted negliegently, no liability, like in Garcia v. Josephi Vince, saber pile. It had

been put back into a pile of sabers so nobody could tell which one was

defective. Ybarra had an inference of negligence, but this case has an inference

of causation.

b. Veazey v. Elmwood Plantation Associates: Woman raped in her apartment, brought an

action against management company for failure to exercise due care for safety of

residents. Court: not appropriate to compare negligence and intentional fault in this

case, first, defendant should not be able to reduce liability when its failure brought

about very harm feared by not providing safe place to live, second, comparison would

be against pub pol because would reduce safety incentives, third, intentional torts are

fundamentally different from negligence.

c. Hutcherson v. City of Phoenix: 75% blame to negligent 911 operator, 25% to murderer,

Court: when you add relative timing into the picture, the balance starts to shift.

Operator has notice of a potentially imminent harm and a chance to avoid it. Proper

factor for fact finder to weigh operator’s responbility for foresight and avoidance.”

d. Ravo v. Rogatnick: Plaintiff suffered sever brain damage, obstetrician negligent and

pediatrician’s role unclear. 80% fault to obstetrician, 20% to pediatrician. Joint

tortfeasors, who act in concert, can be held jointly and severally liable. For successive

tortfeasors, with successive and independent liability, the initial tortfeasor liable for the

whole damages and successive tortfeasore liable only for separate injury/aggravation.

But injuries incapable of reasonable division make tortfeasors jointly and severally

liable.

e. Non parties can be assigned fault so long as they are identified.

f. Wiggs v. City of Phoenix: city had a contract with T to keep city’s streetlights in repair,

T’s negligence in not keeping a streetlight functioning leads to an accident, city is liable

because its duty is nondelegable.

g. So when to apply joint and several? Multiple defendants act together to produce a

single injury, injuries incapable of reasonable division of responsibility among multiple

defendants, industry wide liability.

i. Market Share Liability: Hymowitz v. Eli Lilly & Co: Impossible to know which drug manufacturer

caused an individual plaintiff’s injuries, rejects alternative liability doctrine from Summers as

limited to situations with a small number of possible wrongdoers and wrongdoers in a better

position to produce evidence, here there were lots of manufacturers and a small probability of

guilt. Laibility according to their share of the national market, even if in an individual case can

prove they were not the cause, liability is several but not joint, so plaintiff may not achieve full

recovery. Court basically says well you were marketing them for pregnant women, basically a

fortuity that you didn’t harm this specific plaintiff. Breaks with causation requirement.

a. Hall v. E.I. Dupont De Nemours: defednatns were 6 blasting cap manufacturers, whole

industry basically. Defendants had adhered to an industry wide standard of safety and

they had delegated some functions of safety such as labeling to trade association.



Proximate Cause



j. Eggshell plaintiff rule: take plaintiff as found. Two conceptions:

o Once defendant is otherwise negligent (duty, breach, causation, harm),

unforeseeable extent of damages are defendant’s responsibility too.

o Extra susceptibility to harm is defendant’s responbility, once other elements are

established, even if extra susceptibility isn’t foreseeable.

k. Proximate cause: Polemis: responsible for all direct, natural results of action so long as

negligence (breach) already established.

l. Wagon Mound 1: oil fouls up spillways, then unexpectedly catches afire, then see Polemis.

Polemis is wrong! Completely unforeseeable vs. foreseeably unforeseeable.

a. Benn v. Thomas: Man with coronary disease dies of heart attack six days after car accident;

accident aggravated prior latent condition to point of death. Liable for full disability- the injury,

not the dormant condition, is the proximate cause of the harm. Eggshell plaintiff rule applies not

just to damages but also to proximate cause. Eggshell plaintiff rule rejects requirement of

foreseeability normally required for proximate cause.

b. Dillon v. Twin State Gas and Electric: no causation if harm would have happened without

defendant’s action. If the boy would have been killed by the fall anyway, then his recovery

against the wire company dramatically reduced.

c. Steinhauser v. Hertz: schizophrenia after car accident enough for recovery if it was precipitated

by accident. But damages reduced if other factors would have lead to her disease too.

d. Bartolone v. Jeckovich: slight injury in car crash leads to social/psychological deterioration after

pre-exisitng schizophrenia exacerbated, liable for full damages.

e. Fuller v. Preis: Surgeon hurt in crash left suicide note; irresisitible impulse could also include

planning of suicide. Third restatement: when plaintiff suffers greater damages than those

foreseeable because of preexisting physical/mental condition, plaintiff may recover for all such

harm.

f. Stafford v. Neuro Medicine: Liable for suicide after negligently allowing patient to receive mail

indicating incorrectly that she had a brain tumor.

g. Zygmaniak v. Kawasaki Motors Corp: Liable for assisted suicide after negligence left victim a

quadriplegic.

h. Proximate Cause and Incremental Damages

a. Stoleson: Plaintiff developed hypochondria after heart problems from exposure to

chemical in workplace. Original wrongdoer can be held liable for additional harm (even

if from negligent care at hospital, etc.)

b. Pridham: Plaintiff died when ambulance driver had a heart attack and crashed,

defendant liable for the death because ambulatory care a step in medical services.

c. Wagner: Defendant liable when plaintiff slips and breaks leg a second time after

defendant caused leg to break first time.

i. Kind of Harm: Polemis: Stevedores negligently dropped a plank and the ship burned down.

Some damage was foreseeable, but total destruction of ship was unforeseeable. Foreseeability

question only related to negligence, not to damages. Damages question is whether the fire was

directly traceable to the negligence. Tortfeasor can’t determine what extent of damage was

foreseeable. If damage foreseen, the kind of damage doesn’t matter, i.e. if you foresaw that if

you dropped a plank something would get broken and there’d be damage, it doesn’t matter that

the ship burst into flames instead.

a. Smith v. London and Southwestern Ry: defendant’s railway passed near plaintiff’s

cottage, small strip of grass extended a few feet on each side of the line. Left grass

clippings that ignited and cottage burned down.

j. Wagon Mound: rejects Polemis. Liability for results of oil spill: Unexpected harm of ship burning.

Congealed oil interfered with ships slightly, on this ground can consider fire damages. Polemis

no longer good law. Responsible for probable consequences of act, reasonable foreseeability,

not direct consequences test. Room for distinction between type and extent of harm? S

a. Smith v. Leech Brain & Co: through the defendant’s negligence in providing inadequate

shielding, a worker was burned on the lip by a piece fo molten metal, it ulcerated and

developed into a cancer and spread. Worker died 3 years later. Judge: Wagon Mound

does not alter the principle that defenat must take victim as he finds him.

k. Unexpected Victim: Palsgraf

a. Was the Railroad negligent? Cardozo: not a specific enough question. Was the RR

negligent toward ...? To passenger: maybe negligent vis a vis the passenger in not giving

due care to the passenger’s package. That negligence doesn’t relate to Ms. P. To Ms. P:

no negliegence because no duty. Andrews: not duty question, but about proximate

cause. Therefore: often a case by case analysis.

l. Rescuer

a. Wagner v. International RR: Rescuing a man who fell off train due to crew negligence

can sue because “danger invites rescue”, even if the wrongdoer does nto foresee the

coming of a rescuer.

b. Moore v. Shah: Man who gave kidney can’t recover as rescuer because action to donate

not “spontaneous or instantaneous” but “deliberate and reflective”, not in emergency

setting.

m. Time

a. Firman v. Sacia: Defendant hit three year old, who suffered brain injury and later shot

plaintiff. Too much time had passed since initial tort for plaintiff to recover and risk to

plaintiff was not within the range of apprehension.

n. Distance

a. Ferroggiaro v. Bowline: defendant negligently hit box with master traffic signals and

liable for crash caused miles away.

o. Fire

a. Ryan v. NYC RR: Sparks from engine ignited a shed and the fire spread to plaintiff’s

building but no recovery. Not a necessary or usual result that fire should spread to other

building.

p. What’s the problem Proximate cause is trying to solve?

a. Fortuity

i. Unexpectedly fragile plaintiff? Defendant pays the difference.

ii. Unexpected degree of harm? Defednatn pays the difference unless policy

intervenes.

iii. Unexpected type of harm? Has to be direct/natural/probable vs. foreseeable.

What if no negligence at all?

iv. Unrelated harm. Speeding ambulance vs. regular ride to hospital.

v. Succeeding events. Rescuers; ancillary events tied to accident. Negligent

doctors.

vi. Catch-all policy based limits: time, distance.

Assumption of the Risk



m. Types of this can be contractual waiver of liability, commonly accepted risks (all part of the

fun), the role of warnings, knowingly encountering existing negligence. (What if it’s

reasonable to do so?)

a. Express assumption: Plaintiff must be aware of the risk; subjective. Express assumption:

o Plaintiff has expressly agreed (often, but not always, by signing something) not to

sue over defendant’s negligence (or anything else for that matter).

o What does the release say? Does it cover the situation in question? Even if release

by its text covers the situation, will the court allow it to apply?

o Why refuse to enforce the agreement not to sue? Public policy, possibility of

insurance and risk spreading, is the activity necessary? Is the risk necessary to

engaging the activity?

b. Primary or Secondary Assumption of the Risk

o Cohen v. McIntyre: Does vet assume risk of dog bites? Yes. Primary assumption of

risk when defendant has no duty to protect plaintiff from particular risk, firefighter’s

rule.

o Secondary: when defendant owes a duty of care to plaintiff but plaintiff knowingly

encounters a risk of injury caused by defendant’s breach of that duty.

o Just another way of saying no duty? Or breach? Risks inherent and acceptable in an

activity

1. Flopper (broken kneecap either freak accident or natural occasional

consequence: “some quota of accidents was to be looked for in so great a

mass.”

2. Amateur sports cases.

3. Plaintiff is subjectively aware of the risks. If not, might be negligent not to

warn, and correspondingly, warning alone might cure if specific enough.

4. Secondary assumption: Defense to plaintiff’s prima facie case. Everything

you say is true BUT. As with primary, traditionally a complete bar to

recovery, but this is changing to a comparative fault framework. Plaintiff

voluntarily undertakes a risk perhaps indeed negligently created by

defendant. Reconciling assumption of risk and comparative negligence =

comparative fault.

c. Shorter v. Drury: Wrongful death case on behalf of patient who refused blood transfusion

for religious reasons. Assuming risk for refusing blood vs. assuming risk for a doctor’s

negligence. Assumption of risk vs. comparative negligence. When is an exculpatory release

against public policy? What about liability if doctor had done transfusion against patient’s

wishes?

d. Lowe v. California league of Professional Baseball: Even if plaintiff assumes the risk of an

activity, defendant has a duty not to increase the inherent risks. Does a mascot’s

inadvertently distracting a man at a baseball game increase the inherent risk of getting hit

by a foul ball enough that primary assumption of risk does not apply? How much must a

defendant do to increase the risk so that the defense of assumption of risk does not apply?

e. Implied Assumption

o Murphy v. Steeplechase Amusmenet: The flopper. Falling a foreseeable risk of ride

that had the purpose of making people fall. If injuries were more serious, more

people hurt, or dangers were obscured or unobserved, then the amusement park

might be liable. Awareness of danger can show implicit acceptance of danger.

o Knight v. Jewett: Touch football game injury not enough for liability. Recover only if

plaintiff intentionally injured defendant or was so reckless as to be totally outside

the range of ordinary activity involved in the sport.



Contributory/Comparative Fault



d. Defendant’s negligence must be an actual cause of plaintiff’s harm and a proximate cause of the

harm. (Hightower v. Paulson truck lines, plaintiff’s recovery not affected despite his having

followed to closely on the highway, because defendant suddenly slowed without warning, he

still could not have stopped in time even from a reasonably safe distance.)

e. Generally defendant must prove plaintiff’s contributory negligence.

f. All or nothing; any negligence by plaintiff is a total bar.

o Total bar harshness: thought to breed common law exceptions to temper the harshness

of the rule, e.g. negliegent rescuers may still recover in some cases, won’t apply against

defendant’s gross negligence.

g. Some statutes interpreted as barring contributory negligence claims (to protect definite class of

persons), i.e. Chaiani v. Board of Ed (statute about crossing street is to protect kids from their

own negligence, kid’s comparative negligence not accounted for) and Feisthamel v. State

(dudes had violated statutory obligation to mark revolving glass door, girl runs into it, court says

no recovery because of contrib., statute not meant to protect people from hazard which they

themselves are capable of avoiding.)

h. Last Clear Chance: defendant had but failed to utilize last clear chance to avoid harm from

plaintiff’s carelessness. Plaintiff in helpless peril and defendant knew or should have known in

time to avoid plaintiff’s plight by due care.

o Plaintiff oblivious to danger but if behaving reasonably could become aware of it and

avoided harm. Apply if defendant had actual knowledge of plaintiff’s danger in time to

avoid harm by due care.

o Helps the plaintiff, operates when defendant can prevent harm and plaintiff no longer

can, compare helpless v. negligently inattentive, where last clear chance applicable,

plaintiff’s contributory negligence is irrelevnet.

i. Limits on Contrib. Negligence

o Reckless/willful Defendant: contributory negligence is only a defense in cases of

negligence. If not, defense would be contributory recklessness or contributory willful

misconduct.

o Refusel to impute contributory negligence: Continental Auto Lease Corp: Renter of car

gets in accident where both driver are negligent. Rental company sued other driver for

property damages to car. Renter’s negligence should not be imputed to rental company

(otherwise innocent victims left uncompensated).

j. Contrib. Negligence and Juries: When reasonable people could differ over characterization of

plaintiff’s conduct, goes to jury. Juries often did not return a verdict for defendant as they

should under contrib.. negligence, just reduced plaintiff’s damages under contributory

negligence as though the standard were comparative negligence. Works only when the question

is if plaintiff had been negligent.

k. Comparative Negligence: Comparative negligence, a negligent plaintiff’s recovery depended on

how serious the plaintiff’s negligence was in comparison to the defendant’s negligence. Pure

comparative negligence, plaintiff 90% to blame can recover 10% from defendant who is 10% at

fault.

o Modified system: plaintiff recovers so long as plaintiff’s negligence not as great as

defendants.Plaintiff recovers if negligence is no greater than defdndants. Some states

adopted comparative negligence by judicial decision instead of through legislature.

l. Socially Offensive Conduct: No comparison when plaintiff’s conduct is socially offensive?

o Barker v. Kallash: plaintiff was making a pipe bomb which exploded in his hand. NO

recovery because engaging in prohibited not regulated activity.

o But in Alami v. Volkswagen, limited to when parties involved in underlying criminal

conduct or criminal seeks to impose a duty arising from an illegal act. Kid drives drunk,

but injuries were enhanced by negligent design of car. Court says duty to design well

doesn’t arise from criminal act of drunk driving.

o Compare to Ashmore v. Cleanweld Prodcuts INC. , when teenager making a pipe bomb

could recover under the restatement.

m. Chianese v. Meier: Plaintiff attacked in apartment building hallway, apportion responsibility to

owner (negligent) and attacker (intentional). “to do otherwise would deny the benefit of several

liability to a negligent defendant when another party committed an intentional tort.”

n. Hickey v. Zezulka: campus police officer negligently left belt on person in cell, entitle to

comparative negligence instruction after decedent commits suicide.

o. Informing juries of consequences

o HE Butt Grocery v. Bilotto: using special verdicts that tell the jury consequences of any

verdicts okay because jurors will speculate anyway.

o BUT Weiss v. Goldfarb: Jury shouldn’t know hospital’s statutory max liability.

o Lacy v. CSX: Jury shouldn’t be told about operation of joint and several liability. But

Kaeo v. Davis: jury should be told effect of holding defendant 99% at fault and

defendant 2 1% at fault in joint and several liability.

p. Plaintiff’s duty to mitigate harm: goes to damages, not liability. If mitigation should have

happened before the harm itself, “avoidable consequences.” Seat belts, Frits.

q. Fritts: plaintiff injured in drunk driving accident, underwent surgery to repair his facial fractures,

doctor performed negligent tracheostomy and dude died. Doctor argued that artery was

anomalous, and also his injury arose in the automobile accident that he cause, and also that the

fact that he was an alcoholic was relevant to the damages because it would have shortened his

life. Court: physician may not avoid liability for negligent treatment by asserting that the

patient’s injuries were originally caused by the patient’s own negligence. However, history of

substance abuse is relevant to damages for life expectancy.



Strict Liability



- We don’t care about care. Goals: Loss spreading (less social and economic disruption if it is shared by

many people), loss avoidance (impose accident costs on those engaging in the injurious activities who

could reduce accident costs more cheaply), loss allocation (reflec t the loss in the cost of the enterprise’s

services), administrative efficiency(removing the need for proving fault), fairness(a victim has a right to

recover for nonreciprocal risks).



a. Why strict liability for a pet tiger? We don’t like most tigers because theyr’e dangerous unless

kept in a zoo, where they’re still dangerous, but we like them there. The public benefits from

zoos, it doesn’t benefit from one guy having a tiger in a dorm room and putting others at risk.

Not just about pet tiger safety but also about discouraging tigers as pets.

b. Strict liability vs. negligence: conventional economic view. Incentives:

a. SL & negligence are rough equals if it’s to induce an actor to take proper care; BPL no need to take care (no negligence, or not worth it to take care. BUT:

aspects of care that might not be considered by courts; many elements of behavior

might not be included in the negligence calculation (how often do you check the

rearview mirro? How would anyone know?)

b. BUT: level of activity/purpose is not an element of the negligence calculation

(supermarket for a trivial purpose) firms can indeed moderate activity level, and will

through price.

c. S&L v. negligence II: conventional economic view: risk spreading/insurance. Who bears

risk, regardless of magnitude? Negligence: victim, in the absence of proof of negligence.

Strict liability: the injurer, by definition. SL is good because firms bear liability instead of

individuals, to the extent firms are defendants? BUT: plaintiffs can buy insurance against

losses if they know they won’t otherwise be covered – state could even supply it. BUT:

pain & suffering not covered by 1st party insurance (people only want to insure against

hard costs) do you insure your pet? Do parents insure their children?

d. SL v negligence III: conventional economic view: administrative costs. Negligence more

complicated, but SL means greater volume of cases.

e. Sullivan v. Dunham: men dynamiting a tree accidentally kill man on highway nearby.

Are defendants liable as trespassers on P’s person? Even if done in most careful manner

still liable for injury.”use of land by proprietor is not therefore absolute but qualified

and limited by the higher right of others to the lawful possession of their property.”

i. Booth v. Rome: when injury not direct but consequential (e.g. concussion

injuries property), no liability without negligence. Notes difference in harms by

debris and concussion. Safety of property more important than particular use of

single piece of property by owner. But here public policy sustained by building

shit. This distinction tough has disappeared.

f. Heeg v. Licht: Liable for stored powder exploding even without negligence, nuisance

case. Restatements 519 and 520. 1st restatement covered ultrahazardous activity, risk

that cannot be eliminated by utmost care and is not a matter of common usage. 2nd

restatmenet covered abnormally dangerous activity, even though utmost care used to

prevent harm.

i. Six factors for abnormally dangerous activity: existence of risk of harm,

likelihood harm will be great, inability to eliminate risk by reasonable care,

whether activity common usage, inappropriateness of activity to place, extent of

activity’s value to community weighed by dangerousness.

i. Liability for defective products: traditionally, needed privity (contractual

relationship) as basis for duty of due care for defective products.

ii. Macpherson v. Buick Motor Co: car with defective wheel. Does defednatn

owe a duty of care to anyone but immediate purchaser? Yes. If the nature of a

thing is such that it is reasonably certain to place life and limb in peril if

negligently made, it is a thing of danger. If manufacturer also knows that it will

be used by people other than the purchaser without new tests, then the

manufacturer is under a duty to make it carefully.

iii. Ryan v. Progressive Grocery: Pin in the loaf of Ward’s bread. Breach of

implied warranty of merchantability; liable for full damages, not just

difference between good and bad loaf of bread. Knew bread would be eaten,

so liable. Privity problem dealt with by calling wife agent of husband

(warranties).

iv. Smith v. Peerless Glass: soda bottle exploded and hurt plaintiff. Court treated

bottle maker as manufacturer of a component part and brought it within the

Macpherson principle.



Products Liability



i. Traditionally, needed privity (contractual relationship) as basis for duty of due care for defective

products. Courts perceive problem of increased consumer injuries due to mass produced and

more dangerous consumer products; common law often denies recovery. Suing anyone

upstream from retailer run into privity problesm. Suing retailer runs into genuine proof of

negligence problems. Reactions: loosen privity requirement, but standard still negligence.

Explore warranty as separate theory for recovery, but privity still required plus personal injury

damages only because a food case.

ii. Warranties

a. Smith v. Peerles Gas: liable for exploding soda bottle.

b. Escola v. Coca Cola Bottling Co. of Fresno: waitress injured when coke bottle broke in

her hand. Res ipsa case for negligence. Traynor argues manufacturer should owe

absolute liability when article placed on market when manufacturer knows it will be

used without inspection. Fix responbiility where most able to reduce hazards, injured

person real party in interest, close relationship between producer and consumer has

been altered in modern times, now accept products on faith, makes more sense for

manufacturer to be liable than retailer.

c. Products liability: ‘what’s the problem that PL is trying to solve? What’s the scope of the

application fo products liability? To what products/defendants does it apply? If within

scope, how do we know what’s defective? Two approaches to defect.

d. Products liability II: Why strict liability for harmful products? Risk spreading,

manufactuerer can insure its product with slightly higher prices for everyone else.

Cheapest cost avoider, manufactuer is in the best position to avoid what risk there may

be. Consumer can’t research the product manufacturing process, consumer can’t come

to know the manufacturer by reputation (but consumer reports mabes) consumer can’t

easily produce evidence of negligence, simplifies the civ pro.

e. 3rd Restmt on PL: Three types of defects, 1manufacturing defects (when departs from

intended design), 2design defect (when omission of reasonable alternative design

renders the product not reasonably safe) 3inadequate instructions or warnings.

f. What’s a design defect: consumers hurt by defective products get to recover for their

injuries. What’s a defect? Consumer expectations test: rest. 2nd: comment i: “must be

dangerous to an extend 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.” Risk/benefit test, Rest. 3rd. Manufacturer responsible for

foreseeable misuse.

g. Greenman v. Yuba Power Products: power tool hurt plaintiff when the piece of wood

flew up and struck him in the forehead. Lathe was of defective design because the set

screws were inadequate to hold the wood given the lathe’s normal vibrations, and that

better fastening of the machine’s parts would have prevented the harm.

h. Vandermark v. Ford Motor: Brakes locked, causing an accident. Ford could not insulate

itself by delegating final inspection and adjustment to car dealer.

i. Elmore v. American Motors: car veered and killed people. Defect because drive shaft

fell out, bystanders entitled to same strict liability protections as those in the car.

j. Tillman v. Vance Equipment Co: sellers of used goods likely not liable strictly.

k. Welge v. Planters: glass jar of peanuts smashed, did defect develop before or after

retail sale? No summary judgment against plaintiff. Seller responsible for consequences

of selling defective product even if defect introduced without any fault on his part by

supplier or other person.

l. Soule v. GM: Plaintiff’s ankles were hurt in car crash when floorboard smashed into

feet. Instructions to jury on consumer expectations test incorrect – no expectations

about what will happen in a crash (plaintiff wanted consumer expectations test,

defendant wanted cost-benefit anslysis of design) where minimum safety of a product

common knowledge, no expert witnesses to demonstrate ordinary consumer

expecatitons. “ ordinary consumer of autos cannot reasonably expect that a car’s frame,

suspension, or interior will be designed to remain intact in any and all accidents.

Complicated design considerations at issue, injection of ordinary consumer expectations

into the design defect equation were improper.”

m. Soule v. GM II: “the crucial question in each individual case is whether the

circumstances of the product’s failure permit an inference that the product’s design

performed below the legitimate, commonly accepted minimum safety assumptions of

its ordinary consumers.” If no such inference, then risk-benefit test.

n. Things to know: when does a situation call for products liability? What products liability

test should be applied? What result if the test is to be applied? Doctrinal v. judicial

answer.



Reasonable Alternative Design approach to Risk/Benefit Test



iii. Plaintiff must prove that a reasonable alternative design would have reduced foreseeable risk of

harm. Broad range of factors ma be considered in determining whether an alternative design is

reasonable. How do we figure patents into this calculus?

iv. Irreducably Unsafe Products: Some products with known and great dangers cannot be made

less unsafe.Exploding cigar example.

a. O’Brien v. Muskin: vinyl pools, consider the relative benefit or need for the product. Are

warnings enough to make up for an inherent danger?

i. Baughn v. Honda: mini-bikes on public roads.

v. Camacho v. Honda: motorcycle without crash bars. Crashworthiness doctrine: liable when

design contributes to injuries, even when not the cause of accident. Honda wanted consumer

expectation test, risk of accidents foreseeable to users. Plaintiff wants risk benefit test. Court

rejects consumer expectations test and uses risk-benefit anlyasis: usefulness and desirability of

product, safety aspects of the product, availability of a substitute product which would not be as

unsafe, manufacturer’s ability to eliminate the unsafe character of the product without

impairing it’s usefulness or making it too expensive, user’s ability to avoid danger by the exercise

of care in the use of the product, user’s anticipated awareness of the dangers inherent in the

product and their avoidability, feasibility of manufacturer spreading the loss by price or liability

insurance.

vi. Soule & Camacho: Soule: experts on consumer expectations? Who has burden of proof under

r/b? Consider RAd. Comparable products, irreducibly unsafe product, vinyl swimming pool.

Camacho: Why consumer expectations? Vs. assumption of risk? Technical, scientific

explanation? Consumer expectations for bystanders?

vii. Hood v. Ryobi: miter saw without blade guards despite warnings. How specific must warnings

be? Not required to list all possible dangers; must merely be reasonable under the

circumstances (benefits of a more detailed warning must outweigh the costs of requiring

change) cost of proliferation of warnings undermining effectiveness of warnings figured in.

a. Criteria: adequately indicate scope of danger, reasonably communicate extent or

seriousness of harm that could result from misuse, physical aspects must be adequate

to alert reasonably prudent person, simple directive warning may be inadequate when I

fails to indicate consequences, means to convey must be adequate.

Heeding presumption for warnings: Party responsible for the inadequate warning must show

that the user would not have heeded a better warning. Contrast: GM v. Saenz: no reason to

believe a better warning would have been followed about dangers of overloading truck.

viii. Must reach the person who is likely to use the product.

ix. Misuse as a defense: Misuse/unintended use not complete defense if misuse reasonably

foreseeable:

a. Binakonsky v. Ford drunk driver who crashes dies from fire caused by plastic pipes in

fuel system, could have anticipated high speed collision.

b. Briscoe v. Amazing Products: high school student threw drain cleaner knowing it was

dangerous; D in product chain not required to anticipate that use.

x. G.M. v. Sanchez: Truck left running mis-shifts and kills user. Jury found GM transmission

defectively designed and warning inadequate. But plaintiff was 50% responsibl.e All

transmissions can mis-shift – hold GM responsible?

a. Comparative Responsibility: comparative responsibility: reduce claimant’s recovery by

percentage of responsibility attributed, applies to claimant’s duty to use ordinary care

or other applicable legal standard.

b. No duty to discover or guard against defect BUT the consumer’s conduct other than this

is subject to comparative responsibility. Saying there is a duty to discover defects

defeats the purpose of strict liability.

c. Was this conduct negligence unrelated to product defects? Yes. Driver has a duty to take

reasonable precautions to secure his vehicle –licensing requirement.



Apportioning comparative Fault



i. Daly v. GMC: comparative fault hard for a jury to apportion.

ii. Zuern v. Ford: drunk driver rear-ends plaintiff, relative degrees of fault: 70% driver, 30% Ford.

iii. Binakonsky v. Ford: drunk driver hitting tree reduced recovery from Ford for enhanced injuries

from fire caused by defective design?

iv. Seffert v. Los Angeles Transit Lines: woman’s foot caught in bus. Are damages excessive? No.

Injuries painful, disabling, permament. Pecuaniary loss 53k for medical care, lost earnings. Pain

and suffering past and future 134K. per diem calculation. Appellate court can interfeter only if

verdict shocks the conscience and suggests passion, prejudice or corruption on part of jury.

Traynor dissent: can’t compensate fully for pain and suffering since no rational person would

trade places for money. Ordinarly P&S damages do not exceed pecuniary damages. Per diem

number are opinion and mislead jury.

a. Some states don’t allow lawyers to give estimates to jury.

b. Some states set maximum amounts that may be awarded for pain and suffering.



Compensatory Damages Timeline



(pain & suffering, physical injury, loss of earnings)(pre impact fright) accident (shock, pain) (humiliation,

pain, doctors bills, medical expenses, lost wages, lost promotions) going until death. If you die at the

accident you get funeral expenses.

Calculating Damages



 Issue of taxation in calculating lost earnings. Figuring future lost earnings – how long worked?

What pay? Benefits? Costs of employment? Discount to present value/inflation rate.

 Snow v. Villacci: lost opportunity for great financial success, could recover if would have

succeeded but for the injury in opportunity to which already given success.

 Role of Damages: Jaffe, compensation performs no function, doesn’t make sanse to embarrass

negligent defendant with real economic loss to do honor to plaitniff’s experience of pain.

 Kwasny v. US: posner: without pain and suffering, tortfeasors would bear lesser costs and

moren gelignece would result.

 Modifications and Limits on damages: remittitur: court conditionally grants new trial unless

plaintiff consenst to reduction of damages to amount court thinks not excessive. Additur if

defendant agrees to adjustment upwards, statutory caps on total awards, statutory caps on

awards for intangible losses, maximum P&S amounts.

 McDougald v. Garber: malpractice left girl in coma. Can sue for conscious pain and suffering and

loss of enojoymnent of life? Awareness prerequisite to loss of enjoyment of life recovery.

Separate awards in danger of becoming duplicative and excessive. Nonpecuniary damages

already guesswork, distortion amplified by repetition. Award of damages is to compensate

victim, not punish wrongdoer. No punitive damages for negligence, temptation to balance injury

and damages has nothing to do with meaningful compensation for victims.

 Green v. Bittner: no damages for death of teenager, calculate services child performed and

expenses, damages for loss of companionship/familial services.

 Andrews v. Reynolds: lost earnings for death of one-day old child based on national averages

and background of baby’s parents.

 Greyhound v. Sutton: Can’t use average income of the community to calculate child’s expected

income.



Punitive Damages



 Taylor v. Superior Court: alcoholic in car accident, conscious disregard for safety of others,

sufficient for punitive damages. Deterrence, drunken driving a big problem. Dissent: punitive

damages unjust enrichment, criminal law meant to punish wrongdoers, punitive civil award

double punishment, must consider insurance factor, punitive damages can nullify all insurance

coverage.